As filed with the Securities and Exchange Commission on March 15, 2001
Registration Nos. 333- , 333- -01 and 333- -02
-------- -------- --------
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------
ALLETE
(LEGALLY INCORPORATED AS MINNESOTA POWER, INC.)
(Exact name of registrant as specified in its charter)
Minnesota 41-0418150
(State of incorporation or organization) (I.R.S. Employer Identification No.)
ALLETE CAPITAL II
ALLETE CAPITAL III
(Exact name of registrants as specified in its charter)
Delaware To Be Applied For
(State of incorporation or organization) (I.R.S. Employer Identification Nos.)
30 West Superior Street
Duluth, Minnesota 55802-2093
(218) 279-5000
(Address, including zip code, and telephone number, including
area code, of registrants' principal executive offices)
DAVID G. GARTZKE PHILIP R. HALVERSON, Esq.
Senior Vice President-Finance Vice President, General
and Chief Counsel and
Financial Officer Secretary
30 West Superior Street 30 West Superior Street
Duluth, Minnesota 55802-2093 Duluth, Minnesota 55802-2093
(218) 279-5000 (218) 279-5000
JAMES K. VIZANKO ROBERT J. REGER, JR., Esq.
Treasurer Thelen Reid & Priest LLP
30 West Superior Street 40 West 57th Street
Duluth, Minnesota 55802-2093 New York, New York 10019-4097
(218) 279-5000 (212) 603-2000
(Names and addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
------------------------
It is respectfully requested that the Commission also send copies of all
notices, orders and communications to:
MICHAEL CONNOLLY, Esq.
Morrison Cohen Singer & Weinstein, LLP
750 Lexington Avenue
New York, New York 10022-1200
(212) 735-8600
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this registration statement becomes effective when warranted by
market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
============================== =================== ====================== ====================== =============
TITLE OF EACH CLASS OF AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED AGGREGATE OFFERING AGGREGATE OFFERING REGISTRATION
PRICE PER UNIT PRICE (1) FEE
- ------------------------------ ------------------- ---------------------- ---------------------- -------------
Common Stock, without par (1)(3) (2) (1)(2)(3) N/A
value
- ------------------------------ ------------------- ---------------------- ---------------------- -------------
Preferred Share Purchase (5)
Rights (4)
- ------------------------------ ------------------- ---------------------- ---------------------- -------------
First Mortgage Bonds (1)(7) (2) (1)(2)(6)(7) N/A
- ------------------------------ ------------------- ---------------------- ---------------------- -------------
Debt Securities (1)(8) (2) (1)(2)(6)(8) N/A
- ------------------------------ ------------------- ---------------------- ---------------------- -------------
Preferred Trust Securities (1)(9) (2) (1)(2)(6)(9) N/A
- ------------------------------ ------------------- ---------------------- ---------------------- -------------
Guarantee with respect to
Preferred Trust Securities
(10)(11)
- ------------------------------ ------------------- ---------------------- ---------------------- -------------
Junior Subordinated
Debentures (10)(12)
- ------------------------------ ------------------- ---------------------- ---------------------- -------------
Total (13) $500,000,000 (6) (2) $500,000,000 (6) $125,000
============================== =================== ====================== ====================== =============
(1) In no event will the aggregate offering price of all common stock, first
mortgage bonds, debt securities and preferred trust securities issued from
time to time pursuant to this registration statement exceed $500,000,000.
If any such securities are issued at an original issue discount, then the
aggregate initial offering price as so discounted shall not exceed
$500,000,000, notwithstanding that the stated principal amount of such
securities may exceed such amount.
(2) The proposed maximum offering price per unit and the proposed maximum
aggregate offering price will be determined, from time to time, by the
registrants in connection with the issuance of the securities registered
hereunder.
(3) Subject to footnote (1), there is being registered hereunder an
indeterminate number of shares of common stock which may be sold, from time
to time, by ALLETE.
(4) The preferred share purchase rights are attached to and will trade with the
common stock. The value attributable to the preferred share purchase
rights, if any, is reflected in the market price of the common stock.
(5) Since no separate consideration is paid for the preferred share purchase
rights, the registration fee for such securities is included in the fee for
the common stock.
(6) Exclusive of accrued interest or distributions, if any.
(7) Subject to footnote (1), there is being registered hereunder an
indeterminate principal amount of first mortgage bonds which may be sold,
from time to time, by ALLETE.
(8) Subject to footnote (1), there is being registered hereunder an
indeterminate principal amount of debt securities which may be sold, from
time to time, by ALLETE.
(9) Subject to footnote (1), there is being registered hereunder an
indeterminate amount of preferred trust securities which may be sold, from
time to time, by ALLETE Capital II and/or ALLETE Capital III.
(10) This registration is deemed to include the rights of the holders of the
securities under the ALLETE guarantee, the trust agreement, the junior
subordinated debentures, the subordinated indenture and the agreement as to
expenses and liabilities, together constituting the backup undertakings as
described in this registration statement.
(11) No separate consideration will be received for the ALLETE guarantee or the
agreement as to expenses and liabilities.
(12) The junior subordinated debentures, to be issued by ALLETE, will be
purchased by ALLETE Capital II and/or ALLETE Capital III with the proceeds
of the sale of preferred trust securities. No separate consideration will
be received for the junior subordinated debentures.
(13) Pursuant to Rule 429 under the Securities Act of 1933, the combined
prospectus filed as part of this registration statement also relates to
1,814,000 shares of common stock and the related preferred shares purchase
rights registered pursuant to Registration Statement File No. 333-52161 and
to $25,000,000 aggregate principal amount of first mortgage bonds and debt
securities registered pursuant to Registration Statement File No.
333-41882. Registration fees with respect to such registration statements
were paid in the amount of $35,483 and $105,600, respectively.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
================================================================================
SUBJECT TO COMPLETION, DATED MARCH 15, 2001
PROSPECTUS
$525,000,000 AGGREGATE AMOUNT
ALLETE
(LEGALLY INCORPORATED AS MINNESOTA POWER, INC.)
COMMON STOCK, FIRST MORTGAGE BONDS AND DEBT SECURITIES
ALLETE CAPITAL II
ALLETE CAPITAL III
PREFERRED TRUST SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED AS SET
FORTH HEREIN BY
ALLETE
&
1,814,000 SHARES OF COMMON STOCK
ALLETE
- --------------------------------------------------------------------------------
We will provide specific terms of these securities, their offering prices
and how they will be offered in supplements to this prospectus. You should read
this prospectus and any supplement carefully before you invest.
ALLETE's common stock is listed on the New York Stock Exchange and trades
under the symbol "ALE." The last reported sale price on the New York Stock
Exchange on March 14, 2001 was $23.40.
ALLETE's principal executive offices are located at 30 West Superior
Street, Duluth, Minnesota 55802-2093, telephone number (218) 279-5000. The
principal place of business of both ALLETE Capital II and ALLETE Capital III is
c/o ALLETE, 30 West Superior Street, Duluth, Minnesota 55802-2093, telephone
number (218) 279-5000.
-----------------------------------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
, 2001
---------
The information in this prospectus is not complete and may be changed. ALLETE
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any jurisdiction where the offer or sale is not permitted.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS.........................................................3
WHERE YOU CAN FIND MORE INFORMATION...........................................3
INCORPORATION BY REFERENCE....................................................3
SAFE HARBOR STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM
ACT OF 1995.................................................................4
ALLETE........................................................................5
ALLETE CAPITAL II AND ALLETE CAPITAL III......................................7
USE OF PROCEEDS...............................................................7
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND RATIOS OF EARNINGS
TO FIXED CHARGES AND PREFERRED DIVIDENDS....................................8
DESCRIPTION OF COMMON STOCK...................................................8
DESCRIPTION OF FIRST MORTGAGE BONDS..........................................12
DESCRIPTION OF DEBT SECURITIES...............................................16
DESCRIPTION OF PREFERRED TRUST SECURITIES AND COMMON TRUST SECURITIES........24
DESCRIPTION OF THE GUARANTEE.................................................31
DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES................................34
PLAN OF DISTRIBUTION.........................................................43
EXPERTS......................................................................44
LEGAL OPINIONS...............................................................44
2
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission, or SEC, using a "shelf" registration
process. Under this shelf process, we may, over a period we currently do not
expect to exceed two years, sell combinations of the securities described in
this prospectus in one or more offerings up to a total dollar amount of
$525,000,000 plus an additional 1,814,000 shares of common stock. This amount
includes 1,814,000 shares of common stock registered under an earlier
registration statement and $25,000,000 aggregate principal amount of first
mortgage bonds and debt securities registered under an earlier registration
statement. This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both this prospectus
and any prospectus supplement together with additional information described
under the heading "Where You Can Find More Information."
For more detailed information about the securities, you can read the
exhibits to the registration statement. Those exhibits have been either filed
with the registration statement or incorporated by reference to earlier SEC
filings listed in the registration statement.
WHERE YOU CAN FIND MORE INFORMATION
ALLETE files annual, quarterly and other reports and other information with
the SEC. You can read and copy any information filed by ALLETE with the SEC at
the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C.
20549. You can obtain additional information about the Public Reference Room by
calling the SEC at 1-800-SEC-0330.
In addition, the SEC maintains an Internet site (http://www.sec.gov) that
contains reports, proxy and information statements, and other information
regarding issuers that file electronically with the SEC, including ALLETE.
ALLETE also maintains an Internet site (http://www.allete.com). Information
contained on ALLETE's Internet site does not constitute part of this prospectus.
INCORPORATION BY REFERENCE
The SEC allows ALLETE to "incorporate by reference" the information that
ALLETE files with the SEC, which means that ALLETE may, in this prospectus,
disclose important information to you by referring you to those documents. The
information incorporated by reference is an important part of this prospectus.
ALLETE is incorporating by reference the document listed below and any future
filings ALLETE makes with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934, until this offering is terminated.
Information that ALLETE files in the future with the SEC will automatically
update and supersede this information.
o ALLETE's Annual Report on Form 10-K for the year ended December 31, 2000.
You may request a copy of these documents, at no cost to you, by writing or
calling
Shareholder Services
ALLETE
30 West Superior Street
Duluth, Minnesota 55802-2093
telephone: (218) 723-3974
email: shareholder@allete.com
You should rely only on the information contained in, or incorporated by
reference in, this prospectus and any prospectus supplement. ALLETE has not, and
any underwriters, agents or dealers have not, authorized anyone else to provide
you with different information. You should not assume that the information
contained in this prospectus and any prospectus supplement is accurate as of any
date other than the date on the front of those documents.
3
SAFE HARBOR STATEMENT UNDER
THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
In connection with the safe harbor provisions of the Private Securities
Litigation Reform Act of 1995, ALLETE is hereby filing cautionary statements
identifying important factors that could cause ALLETE's actual results to differ
materially from those projected in forward-looking statements (as that term is
defined in the Private Securities Litigation Reform Act of 1995) made by or on
behalf of ALLETE which are made in this prospectus or any supplement to this
prospectus, in presentations, in response to questions or otherwise. Any
statements that express, or involve discussions as to, expectations, beliefs,
plans, objectives, assumptions or future events or performance (often, but not
always, through the use of words or phrases such as "anticipates," "believes,"
"estimates," "expects," "intends," "plans," "projects," "will likely result,"
"will continue" or similar expressions) are not statements of historical facts
and may be forward-looking.
Forward-looking statements involve estimates, assumptions and uncertainties
and are qualified in their entirety by reference to, and are accompanied by, the
following important factors, which are difficult to predict, contain
uncertainties, are beyond the control of ALLETE and may cause actual results to
differ materially from those contained in forward-looking statements:
o prevailing governmental policies and regulatory actions, including
those of the United States Congress, state legislatures, the Federal
Energy Regulatory Commission, the Minnesota Public Utilities
Commission, the Florida Public Service Commission, the North Carolina
Utilities Commission, the Public Service Commission of Wisconsin and
various county regulators, about allowed rates of return, industry and
rate structure, acquisition and disposal of assets and facilities,
operation and construction of plant facilities, recovery of purchased
power and capital investments, and present or prospective wholesale
and retail competition (including but not limited to transmission
costs);
o economic and geographic factors, including political and economic
risks;
o changes in and compliance with environmental and safety laws and
policies;
o weather conditions;
o population growth rates and demographic patterns;
o competition for retail and wholesale customers;
o pricing and transportation of commodities;
o market demand, including structural market changes;
o changes in tax rates or policies or in rates of inflation;
o changes in project costs;
o unanticipated changes in operating expenses and capital expenditures;
o capital market conditions;
o competition for new energy development opportunities; and
o legal and administrative proceedings (whether civil or criminal) and
settlements that influence the business and profitability of ALLETE.
Any forward-looking statement speaks only as of the date on which that
statement is made, and ALLETE undertakes no obligation to update any
4
forward-looking statement to reflect events or circumstances after the date on
which that statement is made or to reflect the occurrence of unanticipated
events. New factors emerge from time to time and it is not possible for
management to predict all of those factors, nor can it assess the impact of each
of those factors on the businesses of ALLETE or the extent to which any factor,
or combination of factors, may cause actual results to differ materially from
those contained in any forward-looking statement.
ALLETE
ALLETE has been incorporated under the laws of the State of Minnesota since
1906. Before September 1, 2000 ALLETE did business under the name Minnesota
Power, Inc. ALLETE is a multi-services company with four business segments:
(1) Energy Services, which include electric and gas services, coal mining
and telecommunications;
(2) Automotive Services, which include a network of vehicle auctions, a
finance company and several subsidiaries that are integral parts of
the vehicle redistribution business;
(3) Water Services, which include water and wastewater services; and
(4) Investments, which include real estate operations, investments in
emerging technologies related to the electric utility industry and a
securities portfolio.
YEAR ENDED DECEMBER 31,
-----------------------
1998 1999 2000
---- ---- ----
(millions of dollars,
except per share amounts)
DILUTED EARNINGS PER SHARE OF COMMON STOCK
Before Capital Re and ACE Transactions..... $ 1.35 $ 1.49 $ 1.67
Capital Re and ACE Transactions (a)........ - (0.52) 0.44
------ ------ ------
Total.................................... $ 1.35 $ 0.97 $ 2.11
====== ====== ======
NET INCOME
Energy Services............................ $ 47.4 $ 45.0 $ 43.1
Automotive Services........................ 25.5 39.9 48.5
Water Services............................. 7.5 12.2 13.1
Investments................................ 29.6 26.8 29.3
Corporate Charges.......................... (21.5) (19.7) (15.8)
------ ------ ------
Net Income before Capital Re and ACE
Transactions........................... 88.5 104.2 118.2
Capital Re and ACE Transactions (a)........ - (36.2) 30.4
------ ------ ------
$ 88.5 $ 68.0 $148.6
====== ====== ======
- -------------------
(a) In May 2000 ALLETE sold its investment in ACE Limited ("ACE") common stock,
which resulted in an after-tax gain of $30.4 million, or $0.44 per share.
The ACE shares were received in December 1999 upon completion of ACE's
merger with Capital Re Corporation ("Capital Re"). During 1999 ALLETE
recorded an aggregate $36.2 million, or $0.52 per share, after-tax non-cash
charge in connection with the valuation and exchange of its investment in
Capital Re stock for the ACE shares.
ENERGY SERVICES
The Energy Services segment, which includes Minnesota Power, primarily
generates, transmits, distributes, markets and trades electricity. In addition,
Energy Services include coal mining and telecommunications in and near Minnesota
Power's electric utility service area. As of December 31, 2000, Minnesota Power
supplied retail electric service to 130,000 customers in northeastern Minnesota.
Superior Water, Light and Power Company, a wholly owned subsidiary, provided
electric, natural gas, and water services to 14,000 electric customers, 11,000
natural gas customers and 10,000 water customers in northwestern Wisconsin as of
December 31, 2000. Split Rock Energy LLC, formed as an alliance between
Minnesota Power and Great River Energy, combines power supply capabilities and
5
customer loads to share market and supply risks and to optimize power trading
opportunities. Split Rock contracts for exclusive services from MPEX, Minnesota
Power's power marketing division.
BNI Coal, Ltd., another wholly owned subsidiary, owns and operates a
lignite mine in North Dakota. Two electric generating cooperatives, Minnkota
Power Cooperative, Inc. and Square Butte Electric Cooperative, presently consume
virtually all of BNI Coal's production of lignite coal under cost-plus coal
supply agreements expiring in 2027. Under an agreement with Square Butte,
Minnesota Power purchases approximately 71 percent of the output from the Square
Butte unit which is capable of generating up to 455 megawatts. Minnkota Power
has an option to extend its coal supply agreement to 2042.
Other subsidiaries within the Energy Services business segment include:
o Electric Outlet, Inc., doing business as Electric Odyssey, which is a
retail, catalog and e-commerce merchandiser that sells unique products
for the home, office and travel;
o Minnesota Power Telecom, Inc., which provides high reliability fiber
optic-based communication and advanced data services to businesses and
communities in Minnesota and Wisconsin; and
o Rainy River Energy Corporation, which is engaged in wholesale power
marketing.
Minnesota Power has large power contracts to sell power to 12 industrial
customers, each requiring 10 megawatts or more of generating capacity. These
contracts require the payment of minimum monthly demand charges that cover the
fixed costs associated with having capacity available to serve each of these
customers, including a return on common equity. Each contract continues past the
contract termination date unless the required four-year advance notice of
cancellation has been given.
AUTOMOTIVE SERVICES
Automotive Services include several subsidiaries which are integral parts
of the vehicle redistribution business.
ADESA Corporation, a wholly owned subsidiary, is the second largest vehicle
auction network in North America. Headquartered in Indianapolis, Indiana, ADESA
owns, or leases, and operates 54 vehicle auction facilities in the United States
and Canada through which used cars and other vehicles are sold to franchised
automobile dealers and licensed used car dealers. Sellers at ADESA's auctions
include domestic and foreign auto manufacturers, car dealers, automobile
fleet/lease companies, banks and finance companies. ADESA also owns 19 vehicle
auctions in the United States and Canada that provide "total loss" vehicle
recovery services to insurance companies.
Automotive Finance Corporation, another wholly owned subsidiary, provides
inventory financing for wholesale and retail automobile dealers who purchase
vehicles from ADESA auctions, independent auctions, other auction chains and
other outside sources.
Other subsidiaries within the Automotive Services business segment include:
o Great Rigs Incorporated, which is one of the nation's largest
independent used automobile transport carriers with more than 140
automotive carriers, the majority of which are leased;
o PAR, Inc., doing business as PAR North America, which provides
customized vehicle remarketing services to various customers such as
banks, captive finance, commercial fleets and rental car dealers in
the United States and Canada;
o AutoVIN, Inc., 90 percent owned, which provides professional field
information service to the automotive industry and the industry's
secured lenders. Services provided include vehicle condition
reporting, inventory verification auditing, program compliance
auditing and facility inspection; and
6
o ADESA Importation Services, Inc., which is the second largest
independent commercial registered importer of vehicles in the United
States.
WATER SERVICES
Water Services include Florida Water Services Corporation, Heater
Utilities, Inc., Instrumentation Services, Inc., Americas' Water Service
Corporation and Georgia Water Services Corporation, each a wholly owned
subsidiary. Florida Water, the largest investor owned water supplier in Florida,
owns and operates water and wastewater treatment facilities within that state.
As of December 31, 2000, Florida Water served 152,000 water customers and 73,000
wastewater customers, and maintained 157 water and wastewater facilities
throughout Florida. As of December 31, 2000, Heater Utilities, which provides
water and wastewater treatment services in North Carolina, served 44,000 water
customers and 5,000 wastewater treatment customers. Georgia Water provides
wastewater treatment services near Atlanta, Georgia. Instrumentation Services
provides predictive maintenance and instrumentation consulting services to water
and wastewater utilities in the southeastern United States as well as Texas and
Minnesota. Americas' Water Services offers contract management, operations and
maintenance services for water and wastewater treatment facilities to
governments and industries.
INVESTMENTS
Investments consist of real estate operations, investments in emerging
technologies related to the electric utility industry and an actively traded
securities portfolio. Through subsidiaries, ALLETE owns Florida real estate
operations at Cape Coral and Lehigh Acres adjacent to Fort Myers, at Palm Coast
in northeast Florida and at Sugarmill Woods in Citrus County. Since 1985, ALLETE
has invested $38.6 million in start-up companies that are developing
technologies that may be used by the electric utility industry. As of December
31, 2000, ALLETE's trading and available-for-sale securities portfolio had a
fair value of approximately $103 million.
ALLETE CAPITAL II AND ALLETE CAPITAL III
ALLETE Capital II and ALLETE Capital III are Delaware business trusts, and
each will be referred to in this prospectus as ALLETE Capital. Each was created
pursuant to a separate trust agreement among ALLETE as depositor of ALLETE
Capital, The Bank of New York as the property trustee, The Bank of New York
(Delaware) as the Delaware trustee and one or more administrative trustees
appointed by ALLETE. Each trust agreement will be amended and restated
substantially in the form filed as an exhibit to the registration statement.
ALLETE Capital exists only to issue its preferred trust securities and common
trust securities and to hold the junior subordinated debentures of ALLETE as
trust assets. All of the common trust securities will be owned by ALLETE. The
common trust securities will represent at least three percent of the total
capital of ALLETE Capital. Payments on any distribution payment date or
redemption date will be made on the common trust securities pro rata with the
preferred trust securities, except that if on any such distribution payment date
or redemption date there is a default under the trust agreement, the common
trust securities' right to payment on such date will be subordinated to the
rights of the preferred trust securities. ALLETE Capital shall have a term of
approximately 40 years, but may dissolve earlier as provided in the trust
agreement. ALLETE Capital's business and affairs will be conducted by its
administrative trustees. The office of the Delaware trustee in the State of
Delaware is White Clay Center, Route 273, Newark, Delaware 19711.
USE OF PROCEEDS
Unless otherwise stated in the prospectus supplement, ALLETE will add the
net proceeds from the sale of the securities to its general funds. ALLETE uses
its general funds for general corporate purposes, including, without limitation,
acquisitions made by or on behalf of ALLETE or its subsidiaries, to repay
short-term borrowings and to redeem or repurchase outstanding long-term debt
obligations. ALLETE will temporarily invest any proceeds that it does not need
to use immediately in short-term instruments.
7
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND RATIOS OF EARNINGS TO
FIXED CHARGES AND PREFERRED DIVIDENDS
ALLETE has calculated ratios of earnings to fixed charges as follows:
YEAR ENDED DECEMBER 31,
-----------------------
1996 1997 1998 1999 2000
---- ---- ---- ---- ----
2.12 2.46 2.65 2.76 3.71
ALLETE has calculated supplemental ratios of earnings to fixed charges as
follows:
YEAR ENDED DECEMBER 31,
-----------------------
1996 1997 1998 1999 2000
---- ---- ---- ---- ----
1.93 2.26 2.39 2.45 3.31
ALLETE has calculated ratios of earnings to fixed charges and preferred
dividends as follows:
YEAR ENDED DECEMBER 31,
-----------------------
1996 1997 1998 1999 2000
---- ---- ---- ---- ----
2.03 2.36 2.55 2.62 3.65
ALLETE has calculated supplemental ratios of earnings to fixed charges and
preferred dividends as follows:
YEAR ENDED DECEMBER 31,
-----------------------
1996 1997 1998 1999 2000
---- ---- ---- ---- ----
1.86 2.18 2.31 2.35 3.26
The supplemental ratios of earnings to fixed charges and the supplemental
ratios of earnings to fixed charges and preferred dividends includes ALLETE's
obligation under a contract with Square Butte which extends through 2026, under
which ALLETE is entitled to approximately 71 percent of the output of a
455-megawatt coal-fired generating unit. ALLETE is obligated to pay its pro rata
share of Square Butte's costs based on output entitlement from the unit.
ALLETE's payment obligation is suspended if Square Butte fails to deliver any
power, whether produced or purchased, for a period of one year. Square Butte's
fixed costs consist primarily of debt service. Variable operating costs include
the price of coal purchased from BNI Coal under a long-term contract.
DESCRIPTION OF COMMON STOCK
General. The following statements describing our common stock are not
intended to be a complete description. They are qualified in their entirety by
reference to our Articles of Incorporation, Rights Plan and mortgage. See
"Description of Common Stock--Preferred Share Purchase Rights" and "Description
of First Mortgage Bonds." We also refer you to the laws of the State of
Minnesota.
We have the following capital stock authorized by our Articles of
Incorporation: 130,000,000 shares of common stock, without par value, and
3,616,000 shares of preferred stock. As of the date of this prospectus,
8
75,625,063 shares of common stock were issued and outstanding and no shares of
preferred stock were issued and outstanding.
Dividend Rights. Our common stock is entitled to dividends only after we
have provided for dividends and any sinking fund requirements on any issued and
outstanding preferred stock.
Our Articles of Incorporation contain provisions which would restrict net
income available for the payment of cash dividends on outstanding common stock
in the event that shares of ALLETE's preferred stock were outstanding and
certain common stock equity capitalization ratios were not met. Our mortgage
also contains provisions which would restrict the ability of ALLETE to declare
or pay dividends on outstanding common stock. See "Description of First Mortgage
Bonds--Dividend Covenant."
Voting Rights (Non-Cumulative Voting). Holders of our common stock are
entitled to receive notice of and to vote at any meeting of our shareholders.
Each share of our common stock, as well as each share of any of our issued and
outstanding preferred stock, is entitled to one vote. Since the holders of these
shares do not have cumulative voting rights, the holders of more than 50 percent
of the shares voting can elect all our directors. If that happens, the holders
of the remaining shares voting (less than 50 percent) cannot elect any
directors. In addition, whenever dividends on any of our preferred stock are in
default in the amount of four quarterly payments, and until all the dividends in
default are paid, the holders of our preferred stock are entitled, as one class,
to elect a majority of the directors. Our common stock, as one class, would then
elect the minority.
Our Articles of Incorporation include detailed procedures and other
provisions relating to these rights and their termination, including:
o quorums;
o terms of directors elected;
o vacancies;
o class voting;
o meetings; and
o adjournments.
Our Articles of Incorporation contain provisions that make it difficult to
obtain control of ALLETE through transactions not having the approval of our
Board of Directors. These provisions include:
o a provision requiring the affirmative vote of 75 percent of the
outstanding shares of all classes of our capital stock, present and
entitled to vote, in order to authorize certain mergers or
consolidations, or sales or leases of a significant amount of assets,
of ALLETE, and other significant transactions that may have an effect
on the control of ALLETE. Any of those transactions are required to
meet certain "fair price" and procedural requirements. Neither a 75
percent shareholder vote nor a "fair price" is required for any of
those transactions that have been approved by a majority of the
"Disinterested Directors," as that term is defined in our Articles of
Incorporation;
o a provision permitting a majority of the Disinterested Directors to
determine whether the above requirements have been satisfied; and
o a provision providing that some parts of our Articles of Incorporation
cannot be altered unless approved by 75 percent of the outstanding
shares of all classes of our capital stock, present and entitled to
vote, unless the alteration is recommended to the shareholders by a
majority of the Disinterested Directors. The parts of our Articles of
Incorporation that cannot be altered except as stated above include
some parts relating to:
9
- mergers or consolidations, or sales or leases of a significant
amount of assets, of ALLETE, and other significant transactions
that may have an effect on the control of ALLETE; and
- the number, election, terms of office and removal of directors of
ALLETE and the way in which vacancies on the Board of Directors
are filled.
Liquidation Rights. After we have satisfied creditors and the preferential
liquidation rights of any of our outstanding preferred stock, the holders of our
common stock are entitled to share ratably in the distribution of all remaining
assets.
Miscellaneous. Holders of our common stock have no preemptive or conversion
rights. Our common stock is listed on the New York Stock Exchange. The transfer
agents and registrars for our common stock are Wells Fargo Bank, N.A. and
ALLETE.
Description of Preferred Share Purchase Rights. The following statements
describing our preferred share purchase rights (each a "Right") are not intended
to be a complete description. They are qualified in their entirety by reference
to the Rights Agreement, dated as of July 24, 1996 ("Rights Plan"), between
ALLETE and ALLETE's Corporate Secretary, as Rights Agent. We also refer you to
the laws of the State of Minnesota.
In July 1996 our Board of Directors declared a dividend distribution of one
Right for each outstanding share of our common stock to shareholders of record
at the close of business on July 24, 1996 ("Record Date"). Our Board of
Directors also authorized the issuance of one Right for each share of our common
stock that becomes outstanding between the Record Date and July 23, 2006, or an
earlier date on which the Rights are redeemed. Except as described below, each
Right, when exercisable, entitles the registered holder to purchase from us one
two-hundredth of a share of Junior Serial Preferred Stock A, without par value
("Serial Preferred"), at a price of $45.00 per one two-hundredth of a share (the
"Purchase Price"). The Purchase Price is subject to adjustment.
Initially no separate Right Certificates will be distributed. Until the
Distribution Date, our common stock certificates together with a copy of the
Summary of Rights Plan are proof of the Rights. The "Distribution Date" is the
earlier to occur of:
o 10 days following a public announcement that a person or group of
affiliated or associated persons (an "Acquiring Person") has acquired,
or obtained the right to acquire, beneficial ownership of 15 percent
or more of the outstanding shares of our common stock (the "Stock
Acquisition Date"); or
o 15 business days following the commencement of (or a public
announcement of an intention to make) a tender or exchange offer where
a person or group would become the beneficial owner of 15 percent or
more of our outstanding shares of common stock. At any time before a
person becomes an Acquiring Person, our Board of Directors may extend
the 15-business day time period.
Until the Distribution Date (or the earlier redemption, expiration or
termination of the Rights), the Rights will be transferred only with our common
stock. The transfer of any certificates for our common stock, with or without a
copy of the Summary of Rights Plan, will also constitute the transfer of the
Rights associated with those common stock certificates. As soon as practicable
following the Distribution Date, we will mail separate certificates for the
Rights to holders of record of our common stock as of the close of business on
the Distribution Date. After the Distribution Date, separate certificates for
the Rights will be given as proof of the Rights.
Each whole share of our Serial Preferred will have a minimum preferential
quarterly dividend rate equal to the greater of $51 per share or, subject to
anti-dilution adjustment, 200 times the dividend declared on our common stock.
If ALLETE liquidates, no distribution will be made to the holders of our common
stock until the holders of our Serial Preferred have received a liquidation
preference of $100 per share, plus accrued and unpaid dividends. Holders of our
Serial Preferred will be entitled to receive notice of and to vote at any
meeting of our shareholders. Each whole share of our Serial Preferred is
entitled to one vote. These shares do not have cumulative voting rights.
Whenever dividends on any of our preferred stock are in default in the
amount of four quarterly payments, and until all the dividends in default are
paid, the holders of our Serial Preferred and other preferred stock will be
10
entitled, together as one class, to elect a majority of directors. Our common
stock would then elect the minority. If, in any merger or other transaction,
shares of our common stock are exchanged for or converted into other securities
and/or property, each whole share of our Serial Preferred will be entitled to
receive, subject to anti-dilution adjustment, 200 times the amount for or into
which each share of our common stock is exchanged or converted. We cannot redeem
the shares of Serial Preferred.
The Rights are not exercisable until the Distribution Date and will expire
at the earliest of:
o July 23, 2006 ("Final Expiration Date");
o the redemption of the Rights by ALLETE as described below; or
o the exchange of all Rights for our common stock as described below.
If any person (other than ALLETE, its affiliates or any person receiving
newly-issued shares of common stock directly from ALLETE) becomes the beneficial
owner of 15 percent or more of the then outstanding shares of common stock, each
holder of a Right will have a right to receive, upon exercise at the then
current exercise price of the Right, common stock (or, in the discretion of the
Board of Directors, cash, property or other securities of ALLETE) with a value
equal to two times the exercise price of the Right. The Rights Plan contains an
exemption for common stock we issue directly to any person. This exemption
applies even if the person would become the beneficial owner of 15 percent or
more of our common stock, provided that the person does not acquire any
additional shares of our common stock. Examples of situations where we might
issue common stock directly include private placements or acquisitions we make
using our common stock as consideration.
If following the Stock Acquisition Date we are acquired in a merger or
other business combination transaction, or 50 percent or more of our assets or
earning power are sold, we will make proper provision so that each holder of a
Right will, after the transaction, have the right to receive, upon exercise at
the then current exercise price of the Right, common stock of the acquiring or
surviving company with a value equal to two times the exercise price of the
Right.
If the events described in the preceding two paragraphs happen (the
"Triggering Events"), any Rights that an Acquiring Person beneficially owns or
transferred to certain persons, will immediately become null and void.
The Purchase Price payable and the number of shares of our Serial Preferred
or other securities or property issuable if the Rights are exercised, are
subject to adjustment. An adjustment would be made to prevent dilution, if there
was a stock dividend on, or a subdivision, split, combination, consolidation or
reclassification of, our Serial Preferred or our common stock, or a reverse
split of our outstanding shares of Serial Preferred or common stock.
Our Board of Directors may exchange the Rights at an exchange ratio of one
share of common stock per Right at any time that is:
o after the acquisition by a person or group of affiliated or associated
persons of beneficial ownership of 15 percent or more of the
outstanding common stock; and
o before the acquisition by that person or group of 50 percent or more
of the outstanding common stock.
This exchange ratio is subject to adjustment and does not include Rights that
have become null and void.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least one
percent in the Purchase Price. We will not be required to issue fractional
shares of Serial Preferred or common stock (other than fractions in multiples of
one one-hundredths of a share of Serial Preferred). Instead, we may make an
adjustment in cash based on the market price of the Serial Preferred or common
stock on the last trading date before the date of exercise.
Our Board of Directors may redeem the Rights in whole, but not in part, at
a price of $.005 per Right ("Redemption Price") anytime before a person becomes
an Acquiring Person. At our option, we may pay the Redemption Price in cash,
11
shares of our common stock or other consideration that our Board of Directors
deems appropriate. If we redeem the Rights, the Rights will terminate and the
only right of the holders of Rights will be to receive the Redemption Price.
If the Rights are exercised, issuance of our Serial Preferred or our common
stock will be subject to any necessary regulatory approvals. Until a Right is
exercised, the holder of the Right will have no rights as a shareholder of
ALLETE, including, without limitation, the right to vote or to receive
dividends. One million shares of our Serial Preferred were reserved for issuance
if the Rights are exercised.
We may amend the provisions of the Rights Plan. However, any amendment
adopted after the time that a person becomes an Acquiring Person may not
adversely affect the interests of holders of Rights.
The Rights have anti-takeover effects. The Rights will cause substantial
dilution to a person or group that attempts to acquire ALLETE without
conditioning the offer on the redemption of the Rights or on the acquisition of
a substantial number of Rights. The Rights beneficially owned by that person or
group may become null and void. The Rights should not interfere with any merger
or other business combination approved by our Board of Directors. This is
because, at any time before a person becomes an Acquiring Person, our Board of
Directors may redeem all of the outstanding Rights at the Redemption Price.
DESCRIPTION OF FIRST MORTGAGE BONDS
General. The following description sets forth certain general terms and
provisions of ALLETE's first mortgage bonds that ALLETE may offer by this
prospectus. ALLETE will describe the particular terms of the first mortgage
bonds, and provisions that vary from those described below, in one or more
prospectus supplements.
ALLETE may issue the first mortgage bonds from time to time in one or more
series. ALLETE will issue the first mortgage bonds under its Mortgage and Deed
of Trust, dated as of September 1, 1945, with Irving Trust Company (now The Bank
of New York) and Richard H. West (Douglas J. MacInnes, successor), as mortgage
trustees ("mortgage trustee" or "mortgage trustees"), as supplemented by
twenty-one supplemental indentures (herein collectively referred to as the
"mortgage"), all of which are exhibits to the registration statement. The
following descriptions of the first mortgage bonds offered by this prospectus
and the mortgage are qualified by references to the mortgage and you should read
the mortgage for the provisions important to you. References to certain sections
of the mortgage are included in parentheses. Whenever particular provisions or
defined terms in the mortgage are referred to under this "Description of First
Mortgage Bonds," those provisions or defined terms are incorporated by reference
in this prospectus. The mortgage is qualified under the Trust Indenture Act of
1939. You should refer to the Trust Indenture Act of 1939 for provisions that
apply to the first mortgage bonds. All first mortgage bonds issued or to be
issued under the mortgage, including the first mortgage bonds offered by this
prospectus, are referred to herein as "first mortgage bonds."
Reference is made to a prospectus supplement relating to each series of
first mortgage bonds offered by this prospectus for the following specific terms
of that series, among others:
o the designation of the series of first mortgage bonds and aggregate
principal amount of the first mortgage bonds;
o the percentage or percentages of their principal amount at which the
series will be issued;
o the date or dates on which the series will mature;
o the rate or rates at which the series will bear interest;
o the times at which such interest will be payable; and
o redemption terms or other specific terms.
12
Except as may otherwise be described in the prospectus supplement, the
covenants contained in the mortgage will not afford holders of the first
mortgage bonds protection in the event of a highly-leveraged or similar
transaction involving ALLETE or in the event of a change in control.
Form and Exchanges. The first mortgage bonds offered by this prospectus
will be issued in definitive fully registered form without coupons in
denominations of $1,000 and multiples thereof, or in other authorized
denominations, and will be transferable and exchangeable without charge (except
for stamp taxes, if any, or other governmental charges) at The Bank of New York,
in The City of New York.
Interest, Maturity and Payment. Reference is made to the prospectus
supplement for the interest rate or rates of the first mortgage bonds offered by
this prospectus and the dates on which such interest is payable. Principal and
interest are payable at The Bank of New York, in The City of New York.
Redemption and Purchase of First Mortgage Bonds. The first mortgage bonds
may be redeemable mandatorily or at the option of ALLETE upon 30 days notice at
predetermined prices. If the first mortgage bonds are redeemable, ALLETE may use
certain deposited cash and/or proceeds of released property to effect the
redemption. Reference is made to the prospectus supplement for the redemption
terms of the first mortgage bonds offered by this prospectus.
If at the time notice of redemption is given the redemption moneys are not
on deposit with The Bank of New York, as mortgage trustee, the redemption may be
made subject to their receipt before the date fixed for redemption.
Cash deposited under any provisions of the mortgage (with certain
exceptions) may generally be applied to the purchase of first mortgage bonds of
any series. (See Mortgage, Article X.)
Subject to applicable law, including United States federal securities law,
ALLETE may purchase outstanding first mortgage bonds by tender, in the open
market or by private agreement.
Sinking or Improvement Fund. Reference is made to the prospectus supplement
concerning whether or not the first mortgage bonds offered by this prospectus
are entitled to the benefit of a sinking or improvement fund or other provision
for amortization prior to maturity. None of the currently outstanding first
mortgage bonds has sinking fund or improvement fund provisions.
Replacement Fund. The first mortgage bonds offered by this prospectus are
not entitled to the benefit of any replacement fund.
Special Provisions for Retirement of First Mortgage Bonds. If, during any
12 month period, mortgaged property is disposed of by order of or to any
governmental authority resulting in the receipt of $5 million or more as
proceeds, ALLETE (subject to certain conditions) must apply such proceeds, less
certain deductions, to the retirement of first mortgage bonds. (See Mortgage,
Section 64.) Reference is made to the prospectus supplement for information
concerning whether the first mortgage bonds offered by this prospectus are
redeemable for this purpose and, if so, at what redemption prices.
Security. The first mortgage bonds offered by this prospectus and any other
first mortgage bonds now or hereafter issued under the mortgage will be secured
by the mortgage, which constitutes, in the opinion of the General Counsel for
ALLETE, a first lien on all of the electric generating plants and other
materially important physical properties of ALLETE and substantially all other
properties described in the mortgage as owned by ALLETE, other than those
expressly excepted, subject to excepted encumbrances, including defects which
ALLETE has the right to cure and which, in the opinion of such counsel, do not
impair the use of such properties by ALLETE, but such counsel has not examined
title to or passed upon title to reservoir lands, easements or rights of way,
any property not costing in excess of $25,000, or lands or rights held for
flowage, flooding or seepage purposes, or riparian rights. There are excepted
from the lien:
o cash and securities;
o merchandise, equipment, materials or supplies held for sale or other
disposition;
13
o aircraft, automobiles and other vehicles, and materials and supplies
for repairing and replacing the same;
o timber, minerals, mineral rights and royalties; and
o receivables, contracts, leases and operating agreements.
The mortgage contains provisions that impose the lien of the mortgage on
property acquired by ALLETE after the date of the mortgage, other than the
excepted property, subject to pre-existing liens. However, if ALLETE
consolidates or merges with or conveys or transfers all or substantially all of
the mortgaged property to another corporation, the lien created by the mortgage
will generally not cover the property of the successor company, other than the
property it acquires from ALLETE and improvements, replacements and additions to
that property. (See Mortgage, Section 87.)
The mortgage provides that the mortgage trustees shall have a lien upon the
mortgaged property, prior to the first mortgage bonds, for the payment of their
reasonable compensation, expenses and disbursements and for indemnity against
certain liabilities. (See Mortgage, Section 96.)
No stocks or properties of subsidiaries are subject to the mortgage.
Issuance of Additional First Mortgage Bonds. The maximum principal amount
of first mortgage bonds which may be issued under the mortgage is not limited.
First mortgage bonds of any series may be issued from time to time on the basis
of:
(1) 60 percent of property additions after adjustments to offset
retirements;
(2) retirement of first mortgage bonds or qualified lien bonds; and
(3) deposit of cash.
With certain exceptions in the case of (2) above, the issuance of first
mortgage bonds requires adjusted net earnings before income taxes for 12 out of
the preceding 15 months of at least twice the annual interest requirements on
all first mortgage bonds at the time outstanding, including the additional
issue, and on all indebtedness of prior rank. Such adjusted net earnings are
computed after provision for retirement and depreciation of property equal to
$750,000 plus, for each of the 12 calendar months selected for the net earnings
test, 1/12th of two percent of the net additions to depreciable mortgaged
property made after June 30, 1945 and prior to the beginning of the calendar
year within which that calendar month is included. It is expected that the first
mortgage bonds offered by this prospectus will be issued upon the basis of the
retirement of first mortgage bonds or property additions.
Property additions generally include electric, gas, steam or hot water
property acquired after June 30, 1945, but may not include securities, aircraft,
automobiles or other vehicles, or property used principally for the production
or gathering of natural gas. There was available, as of January 31, 2001
unfunded net property additions of approximately $30.6 million, on the basis of
which ALLETE could have issued approximately $18.4 million of first mortgage
bonds.
ALLETE has the right to amend the mortgage without any consent or other
action by holders of any series of first mortgage bonds, including the holders
of first mortgage bonds offered by this prospectus, so as to include nuclear
fuel as well as similar or analogous devices or substances as property
additions.
The mortgage contains certain restrictions upon the issuance of first
mortgage bonds against property subject to liens and upon the increase of the
amount of such liens. (See Mortgage, Sections 4-8, 20-30, and 46; Fifth
Supplemental, Section 2.)
Release and Substitution of Property. Property may be released upon the
basis of:
(1) deposit of cash or, to a limited extent, purchase money mortgages;
14
(2) property additions, after adjustments in certain cases to offset
retirement and after making adjustments for qualified lien bonds
outstanding against property additions; and/or
(3) waiver of the right to issue first mortgage bonds,
in each case without applying any earnings test. Cash may be withdrawn upon the
bases stated in (2) and (3) above.
When property released is not funded property, property additions used to
effect the release may again, in certain cases, become available as credits
under the mortgage, and the waiver of the right to issue first mortgage bonds to
effect the release may, in certain cases, cease to be effective as such a
waiver. Similar provisions are in effect as to cash proceeds of such property.
The mortgage contains special provisions with respect to qualified lien bonds
pledged, and disposition of moneys received on pledged prior lien bonds. (See
Mortgage, Sections 5, 31, 32, 37, 46-50, 59-63, 100 and 118.)
Dividend Covenant. ALLETE covenants that it will not declare or pay
dividends, other than dividends payable in common stock, on or make any other
distributions on or acquire, unless without cost to it, any of its common stock
unless:
o the provisions for depreciation and retirement of property during the
period beginning September 1, 1945 to the date of the proposed
payment, distribution or acquisition, plus
o earned surplus of ALLETE, including current net income available to be
transferred to earned surplus, remaining:
- after such payment, distribution or acquisition; and
- after deducting any remainder of the amount of earned surplus of
ALLETE as of August 31, 1945, after deducting from such amount
the charges to earned surplus subsequent to August 31, 1945,
other than charges occasioned by dividends (other than dividends
payable in common stock) on its common stock or occasioned by
other distributions on or acquisitions of its common stock and
other than charges to earned surplus with corresponding credits
to reserve for depreciation and retirement of property;
shall be at least equal to
o $1,000,000 plus, for each calendar year 1947 through 1996, $750,000
plus two percent of net additions to depreciable mortgaged property
made after June 30, 1945 through that calendar year. (See Mortgage,
Section 39.) None of ALLETE's retained earnings as of December 31,
2000 were restricted as a result of such provisions.
Modification of the Mortgage. The rights of bondholders may be modified
with the consent of the holders of 66-2/3 percent of the first mortgage bonds
and, if less than all series of first mortgage bonds are affected, the consent
also of the holders of 66-2/3 percent of the first mortgage bonds of each series
affected. In general, no modification of the terms of payment of principal and
interest, no modification of the obligations of ALLETE under Section 64 and no
modification affecting the lien or reducing the percentage required for
modification, is effective against any bondholder without his consent. (See
Mortgage, Article XIX; Twenty-first Supplemental, Section 3.)
Defaults and Notice Thereof. Defaults are defined as being:
o default in payment of principal;
o default for 60 days in payment of interest or of installments of funds
for retirement of first mortgage bonds;
o certain defaults with respect to qualified lien bonds and certain
events in bankruptcy, insolvency or reorganization; and
15
o default of 90 days after notice in other covenants. (See Mortgage,
Section 65.)
The mortgage trustees may withhold notice of default, except in payment of
principal, interest or funds for retirement of first mortgage bonds, if they
think it is in the interest of the bondholders. (See Mortgage, Section 66.)
Under the Trust Indenture Act of 1939, ALLETE is required to provide to the
mortgage trustees an annual statement by an appropriate officer as to ALLETE's
compliance with all conditions and covenants under the mortgage.
The Bank of New York, as mortgage trustee, or the holders of 25 percent of
the first mortgage bonds may declare the principal and interest due on default,
but a majority may annul such declaration if the default has been cured. (See
Mortgage, Section 67.) No holder of first mortgage bonds may enforce the lien of
the mortgage without giving the mortgage trustees written notice of a default
and unless holders of 25 percent of the first mortgage bonds have requested the
mortgage trustees to act and offered them reasonable opportunity to act and
indemnity satisfactory to the mortgage trustees and they shall have failed to
act. (See Mortgage, Section 80.) The holders of a majority of the first mortgage
bonds may direct the time, method and place of conducting any proceedings for
any remedy available to the mortgage trustees, or exercising any trust or power
conferred upon the mortgage trustees, but the mortgage trustees are not required
to follow such direction if not sufficiently indemnified for expenditures. (See
Mortgage, Section 71.)
Information about the Mortgage Trustees. The Bank of New York is the
corporate mortgage trustee and Douglas J. MacInnes is the individual mortgage
trustee. In addition to acting as mortgage trustee, The Bank of New York, as
described in this prospectus, also will act as trustee under the subordinated
indenture, property trustee under the trust agreement and the guarantee trustee
under the guarantee; The Bank of New York (Delaware) acts as the Delaware
trustee under the trust agreement. The Bank of New York acts, and may act, as
trustee under various other indentures, trusts and guarantees of ALLETE and its
affiliates. ALLETE and its affiliates maintain deposit accounts and conduct
other banking transactions with the corporate mortgage trustee in the ordinary
course of their business.
DESCRIPTION OF DEBT SECURITIES
General. The following description sets forth certain general terms and
provisions of ALLETE's unsecured debt securities that ALLETE may offer by this
prospectus. ALLETE will describe the particular terms of the debt securities,
and provisions that vary from those described below, in one or more prospectus
supplements.
The debt securities will be ALLETE's direct unsecured general obligations.
The debt securities will be senior debt securities. ALLETE may issue the debt
securities from time to time in one or more series. ALLETE will issue the debt
securities under its Indenture (for Unsecured Debt Securities) dated as of
February 1, 2001 ("indenture"), with LaSalle Bank National Association, as
trustee ("indenture trustee").
The following descriptions of the debt securities and the indenture are
summaries and are qualified by reference to the indenture. The indenture is
being filed as an exhibit to the registration statement, and you should read the
indenture for provisions that may be important to you. References to certain
sections of the indenture are included in parentheses. Whenever particular
provisions or defined terms in the indenture are referred to under this
"Description of Debt Securities," those provisions or defined terms are
incorporated by reference in this prospectus. The indenture was qualified under
the Trust Indenture Act of 1939. You should refer to the Trust Indenture Act of
1939 for provisions that apply to the debt securities.
The debt securities will rank equally with all of ALLETE's other senior,
unsecured and unsubordinated debt.
The prospectus supplement and an officer's certificate relating to any
series of debt securities being offered will include specific terms relating to
that offering. These terms will include any of the following terms that apply to
that series:
o the title of the debt securities;
o any limit upon the total principal amount of the debt securities;
16
o the date or dates on which the principal of the debt securities will
be payable and how it will be paid;
o the rate or rates at which the debt securities will bear interest, or
how such rate or rates will be determined;
o the date or dates from which interest on the debt securities will
accrue, the interest payment dates on which interest will be paid, and
the record dates for interest payments;
o the percentage, if less than 100 percent, of the principal amount of
the debt securities that will be payable if the maturity of the debt
securities is accelerated;
o any date or dates on which, and the price or prices at which, the debt
securities may be redeemed at the option of ALLETE and any
restrictions on such redemptions;
o any sinking fund or other provisions or options held by holders of
debt securities that would obligate ALLETE to repurchase or otherwise
redeem the debt securities;
o any changes or additions to the events of default under the indenture
or changes or additions to the covenants of ALLETE under the
indenture;
o if the debt securities will be issued in denominations other than
$1,000 or a multiple thereof;
o if payments on the debt securities may be made in a currency or
currencies other than United States dollars;
o any convertible feature or options regarding the debt securities;
o any rights or duties of another person to assume the obligations of
ALLETE with respect to the debt securities;
o any collateral, security, assurance or guarantee for the debt
securities;
o any rights to change or eliminate any provision of the indenture or to
add any new provision to the indenture without the consent of the
holders of the debt securities of such series; and
o any other terms of the debt securities not inconsistent with the terms
of the indenture.
(See Indenture, Section 301.)
The indenture does not limit the principal amount of debt securities that
may be issued. The indenture allows debt securities to be issued up to the
principal amount that may be authorized by ALLETE.
The debt securities may be sold at a discount below their principal amount.
United States federal income tax considerations applicable to debt securities
sold at an original issue discount may be described in the prospectus
supplement. In addition, certain United States federal income tax or other
considerations applicable to any debt securities which are denominated or
payable in a currency or currency unit other than United States dollars may be
described in the prospectus supplement.
Except as may otherwise be described in the prospectus supplement, the
covenants contained in the indenture will not afford holders of the debt
securities protection in the event of a highly-leveraged or similar transaction
involving ALLETE or in the event of a change in control.
Subject to applicable law, including United States federal securities law,
ALLETE may purchase outstanding debt securities by tender, in the open market or
by private agreement.
Payment and Paying Agents. Except as may be provided in the prospectus
supplement, interest, if any, on each debt security payable on each interest
payment date will be paid to the person in whose name such debt security is
17
registered as of the close of business on the regular record date for the
interest payment date. However, interest payable at maturity will be paid to the
person to whom the principal is paid. If there has been a default in the payment
of interest on any debt security, the defaulted interest may be paid to the
holder of such debt security as of the close of business on a date to be fixed
by the indenture trustee, which will be between 10 and 15 days prior to the date
proposed by ALLETE for payment of such defaulted interest or in any other manner
permitted by any securities exchange on which such debt security may be listed,
if the indenture trustee finds it practicable. (See Indenture, Section 307.)
Unless otherwise specified in the prospectus supplement, principal of, and
premium, if any, and interest, if any, on the debt securities at maturity will
be payable upon presentation of the debt securities at the corporate trust
office of the indenture trustee as Paying Agent for ALLETE. ALLETE may change
the place of payment on the debt securities, may appoint one or more additional
Paying Agents, including ALLETE, and may remove any Paying Agent, all at the
discretion of ALLETE. (See Indenture, Section 602.)
Registration and Transfer. Unless otherwise specified in the prospectus
supplement, the transfer of debt securities may be registered, and debt
securities may be exchanged for other debt securities of the same series of
authorized denominations and with the same terms and principal amount, at the
corporate trust office of the indenture trustee. ALLETE may change the place for
registration of transfer and exchange of the debt securities and may designate
additional places for such registration and exchange. Unless otherwise provided
in the prospectus supplement, no service charge will be made for any transfer or
exchange of the debt securities. However, ALLETE may require payment to cover
any tax or other governmental charge that may be imposed. ALLETE will not be
required to execute or to provide for the registration of transfer of, or the
exchange of,
o any debt security during a period of 15 days prior to giving any
notice of redemption or
o any debt security selected for redemption except the unredeemed
portion of any debt security being redeemed in part.
(See Indenture, Section 305.)
Satisfaction and Discharge. ALLETE will be discharged from its obligations
on the debt securities of a particular series, or any portion of the principal
amount of the debt securities of such series, if it irrevocably deposits with
the indenture trustee sufficient cash or government securities to pay the
principal, or portion of principal, interest, any premium and any other sums
when due on the debt securities of such series at their stated maturity date or
a redemption date. (See Indenture, Section 701.)
The indenture will be deemed satisfied and discharged when no debt
securities remain outstanding and when ALLETE has paid all other sums payable by
ALLETE under the indenture. (See Indenture, Section 702.)
All moneys ALLETE pays to the indenture trustee or any Paying Agent on the
debt securities which remain unclaimed at the end of two years after payments
have become due will be paid to or upon the order of ALLETE. Thereafter, the
holder of such debt security may look only to ALLETE for payment thereof. (See
Indenture, Section 603.)
Limitation on Liens. ALLETE will not create or allow any liens, other than
permitted liens, to be created or to exist upon shares of capital stock of
majority owned subsidiaries of ALLETE now or hereafter directly owned by ALLETE
or any of its electric utility assets or other property of ALLETE, other than
excepted property, without making effective provision whereby:
o the outstanding debt securities shall be equally and ratably secured;
or
o secured obligations shall be delivered to the indenture trustee in an
amount equal to the outstanding debt securities.
The term permitted liens includes, among others:
18
o non-delinquent or contested tax or construction liens;
o judgment liens in an aggregate amount less than $10 million or subject
to appeal;
o easements, leases, title defects that do not impair ALLETE's intended
use of property;
o governmental rights, mineral, timber or production rights, joint
ownership rights;
o liens fully secured by deposited money or investment securities,
purchase money liens and liens on property at the time of acquisition;
o liens securing tax-exempt financing, non-recourse liens related to the
acquisition or construction of additional property;
o the lien of the mortgage or any successor indenture secured by first
mortgage bonds;
o any lien on the capital stock of directly-held majority owned
subsidiaries of ALLETE created at the time ALLETE acquires that
capital stock, or within 270 days after that time, to secure all or a
portion of the purchase price for that capital stock;
o any lien on the capital stock of directly-held majority owned
subsidiaries of ALLETE existing at the time ALLETE acquires that
capital stock (whether or not ALLETE assumes the obligations secured
by the lien and whether or not the lien was created in contemplation
of the acquisition);
o any extensions, renewals or replacements of the liens described in the
two preceding bullet points, or of any indebtedness secured by those
liens; provided, that
- the principal amount of indebtedness secured by those liens
immediately after the extension, renewal or replacement may not
exceed the principal amount of indebtedness secured by those
liens immediately before the extension, renewal or replacement,
and
- the extension, renewal or replacement lien is limited to no more
than the same proportion of all shares of capital stock as were
covered by the lien that was extended, renewed or replaced; and
o any other liens in an aggregate amount not exceeding 2.5 percent of
ALLETE's consolidated assets.
The term excepted property includes, among others:
o cash, shares of stock other than shares of capital stock of
directly-held majority owned subsidiaries, interests in partnerships,
bonds, notes, evidence of indebtedness and other securities;
o contracts, leases, accounts receivable, patents, trademarks,
intangibles, vehicles, rolling stock, aircraft, inventory;
o fuel and other consumables, minerals, timber, natural gas production
and gathering assets, hydroelectric assets; and
o leaseholds.
The foregoing limitation does not limit in any manner the ability of:
o ALLETE to place liens on the excepted property;
19
o ALLETE to cause the transfer of its assets or those of its
subsidiaries, including the electric utility assets or capital stock
covered by the foregoing restrictions; or
o any of the direct or indirect subsidiaries of ALLETE to place liens on
any of their assets.
Consolidation, Merger, and Sale of Assets. Under the terms of the
indenture, ALLETE may not consolidate with or merge into any other entity or
convey, transfer or lease its properties and assets substantially as an entirety
to any entity, unless:
o the surviving or successor entity is organized and validly existing
under the laws of any domestic jurisdiction and it expressly assumes
ALLETE's obligations on all debt securities and under the indenture;
o immediately after giving effect to the transaction, no event of
default under the indenture and no event which, after notice or lapse
of time or both, would become an event of default under the indenture,
shall have occurred and be continuing; and
o ALLETE shall have delivered to the indenture trustee an officer's
certificate and an opinion of counsel as provided in the indenture.
The terms of the indenture do not restrict ALLETE in a merger in which ALLETE is
the surviving entity. (See Indenture, Section 1101.)
Events of Default. The term "event of default," when used in the indenture
with respect to any series of debt securities, means any of the following:
o failure to pay interest, if any, on any debt security of the
applicable series for 30 days after it is due;
o failure to pay the principal of or premium, if any, on any debt
security of the applicable series when due, whether at maturity or
upon earlier redemption;
o failure to perform any other covenant in the indenture, other than a
covenant that does not relate to that series of debt securities, that
continues for 90 days after ALLETE receives written notice from the
indenture trustee, or ALLETE and the indenture trustee receive a
written notice from 33 percent of the holders of the debt securities
of such series; however, the indenture trustee or the indenture
trustee and the holders of such principal amount of debt securities of
this series can agree to an extension of the 90 day period and such an
agreement to extend will be automatically deemed to occur if ALLETE is
diligently pursuing action to correct the default;
o certain events in bankruptcy, insolvency or reorganization of ALLETE;
or
o any other event of default included in any supplemental indenture or
officer's certificate for that series of debt securities.
(See Indenture, Section 801.)
The indenture trustee may withhold notice to the holders of debt securities
of any default, except default in the payment of principal, premium or interest,
if it considers such withholding of notice to be in the interests of the
holders. An event of default under the indenture for a particular series of debt
securities does not necessarily constitute an event of default under the
indenture for any other series of debt securities issued under the indenture.
Remedies
Acceleration of Maturity. If an event of default under the indenture
with respect to fewer than all the series of debt securities occurs and
continues, either the indenture trustee or the holders of at least 33 percent in
principal amount of the debt securities of any such series may declare the
20
entire principal amount of all the debt securities of such series, together with
accrued interest, to be due and payable immediately. However, if the event of
default under the indenture is applicable to all outstanding debt securities
under the indenture, only the indenture trustee or holders of at least 33
percent in principal amount of all outstanding debt securities of all series,
voting as one class, and not the holders of any one series, may make such a
declaration of acceleration.
At any time after a declaration of acceleration with respect to the debt
securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained, the event of default under the
indenture giving rise to such declaration of acceleration will be considered
waived, and such declaration and its consequences will be considered rescinded
and annulled, if:
o ALLETE has paid or deposited with the indenture trustee a sum
sufficient to pay:
- all overdue interest, if any, on all debt securities of the
series;
- the principal of and premium, if any, on any debt securities of
the series which have otherwise become due and interest, if any,
that is currently due;
- interest, if any, on overdue interest; and
- all amounts due to the indenture trustee under the indenture; or
o any other event of default under the indenture with respect to the
debt securities of that series has been cured or waived as provided in
the indenture.
There is no automatic acceleration, even in the event of bankruptcy, insolvency
or reorganization of ALLETE. (See Indenture, Section 802.)
Right to Direct Proceedings. Other than its duties in case of an event
of default under the indenture, the indenture trustee is not obligated to
exercise any of its rights or powers under the indenture at the request, order
or direction of any of the holders, unless the holders offer the indenture
trustee a reasonable indemnity. (See Indenture, Section 903.) If they provide a
reasonable indemnity, the holders of a majority in principal amount of any
series of debt securities will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the indenture
trustee, or exercising any power conferred upon the indenture trustee . However,
if the event of default under the indenture relates to more than one series,
only the holders of a majority in aggregate principal amount of all affected
series will have the right to give this direction. The indenture trustee is not
obligated to comply with directions that conflict with law or other provisions
of the indenture. (See Indenture, Section 812).
Limitation on Right to Institute Proceedings. No holder of debt
securities of any series will have any right to institute any proceeding under
the indenture, or to exercise any remedy under the indenture, unless:
o the holder has previously given to the indenture trustee written
notice of a continuing event of default under the indenture;
o the holders of a majority in aggregate principal amount of the
outstanding debt securities of all series in respect of which an event
of default under the indenture shall have occurred and be continuing
have made a written request to the indenture trustee, and have offered
reasonable indemnity to the indenture trustee to institute
proceedings; and
o the indenture trustee has failed to institute any proceeding for 60
days after notice and has not received any direction inconsistent with
the written request of holders during such period.
(See Indenture, Section 807.)
21
No Impairment of Right to Receive Payment. However, the limitations
described in the preceding paragraph do not apply to a suit by a holder of a
debt security for payment of the principal of or premium, if any, or interest,
if any, on a debt security on or after the applicable due date. (See Indenture,
Section 808.)
Annual Notice to Indenture Trustee. ALLETE will provide to the indenture
trustee an annual statement by an appropriate officer as to ALLETE's compliance
with all conditions and covenants under the indenture. (See Indenture, Section
606.)
Modification and Waiver. ALLETE and the indenture trustee may enter into
one or more supplemental indentures without the consent of any holder of debt
securities for any of the following purposes:
o to evidence the assumption by any permitted successor of the covenants
of ALLETE in the indenture and in the debt securities;
o to add additional covenants of ALLETE or to surrender any right or
power of ALLETE under the indenture;
o to add additional event of default under the indenture;
o to change, eliminate, or add any provision to the indenture; provided,
however, if the change, elimination, or addition will adversely affect
in any material respect the interests of the holders of debt
securities of any series, other than any series the terms of which
permit such change, elimination or addition, such change, elimination,
or addition will become effective only as to such series:
- when the consent of the holders of debt securities of such series
has been obtained in accordance with the indenture; or
- when no debt securities of such series remain outstanding under
the indenture;
o to provide collateral security for all or part of the debt securities;
o to establish the form or terms of debt securities of any other series
as permitted by the indenture;
o to provide for the authentication and delivery of bearer securities
and coupons attached thereto;
o to evidence and provide for the acceptance of appointment of a
successor indenture trustee ;
o to provide for the procedures required for use of a noncertificated
system of registration for the debt securities of all or any series;
o to change any place where principal, premium, if any, and interest
shall be payable, debt securities may be surrendered for registration
of transfer or exchange and notices to ALLETE may be served; or
o to cure any ambiguity or inconsistency or to make any other changes to
the provisions of the indenture or to add other provisions with
respect to matters and questions arising under the indenture; provided
that such other changes or additions shall not adversely affect the
interests of the holders of debt securities of any series in any
material respect.
(See Indenture, Section 1201.)
The holders of at least a majority in aggregate principal amount of the
debt securities of all series then outstanding may waive compliance by ALLETE
with certain restrictive provisions of the indenture. (See Indenture, Section
607.) The holders of not less than a majority in principal amount of the
outstanding debt securities of any series may waive any past default under the
indenture with respect to that series, except a default in the payment of
principal, premium, if any, or interest and certain covenants and provisions of
the indenture that cannot be modified or be amended without the consent of the
22
holder of each outstanding debt security of the series affected. (See Indenture,
Section 813.)
If the Trust Indenture Act of 1939 is amended after the date of the
indenture in such a way as to require changes to the indenture, the indenture
will be deemed to be amended so as to conform to such amendment of the Trust
Indenture Act of 1939. ALLETE and the indenture trustee may, without the consent
of any holders, enter into one or more supplemental indentures to evidence such
an amendment. (See Indenture, Section 1201.)
The consent of the holders of a majority in aggregate principal amount of
the debt securities of all series then outstanding is required for all other
modifications to the indenture. However, if less than all of the series of debt
securities outstanding are directly affected by a proposed supplemental
indenture, then the consent only of the holders of a majority in aggregate
principal amount of all series that are directly affected will be required. No
such amendment or modification may:
o change the stated maturity of the principal of, or any installment of
principal of or interest on, any debt security, or reduce the
principal amount of any debt security or its rate of interest or
change the method of calculating such interest rate or reduce any
premium payable upon redemption, or change the currency in which
payments are made, or impair the right to institute suit for the
enforcement of any payment on or after the stated maturity of any debt
security, without the consent of the holder;
o reduce the percentage in principal amount of the outstanding debt
securities of any series whose consent is required for any
supplemental indenture or any waiver of compliance with a provision of
the indenture or any default thereunder and its consequences, or
reduce the requirements for quorum or voting, without the consent of
all the holders of the series; or
o modify certain of the provisions of the indenture relating to
supplemental indentures, waivers of certain covenants and waivers of
past defaults with respect to the debt securities of any series,
without the consent of the holder of each outstanding debt security
affected by them.
(See Indenture, Section 1202.)
A supplemental indenture that changes the indenture solely for the benefit
of one or more particular series of debt securities, or modifies the rights of
the holders of debt securities of one or more series, will not affect the rights
under the indenture of the holders of the debt securities of any other series.
(See Indenture, Section 1202.)
The indenture provides that debt securities owned by ALLETE or anyone else
required to make payment on the debt securities shall be disregarded and
considered not to be outstanding in determining whether the required holders
have given a request or consent. (See Indenture, Section 101.)
ALLETE may fix in advance a record date to determine the required number of
holders entitled to give any request, demand, authorization, direction, notice,
consent, waiver or other such act of the holders, but ALLETE 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 of the holders
may be given before or after such record date, but only the holders of record at
the close of business on that record date will be considered holders for the
purposes of determining whether holders of the required percentage of the
outstanding debt securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other act
of the holders. For that purpose, the outstanding debt securities shall be
computed as of the record date. Any request, demand, authorization, direction,
notice, consent, election, waiver or other act of a holder shall bind every
future holder of the same debt security and the holder of every debt security
issued upon the registration of transfer of or in exchange of such debt
securities. A transferee will be bound by acts of the indenture trustee or
ALLETE taken in reliance thereon, whether or not notation of such action is made
upon such debt security. (See Indenture, Section 104.)
Resignation of the Indenture Trustee. The indenture trustee may resign at
any time by giving written notice to ALLETE or may be removed at any time by act
of the holders of a majority in principal amount of all series of debt
securities then outstanding delivered to the indenture trustee and ALLETE. No
resignation or removal of the indenture trustee and no appointment of a
successor indenture trustee will be effective until the acceptance of
23
appointment by a successor indenture trustee. So long as no event of default
under the indenture or event which, after notice or lapse of time, or both,
would become an event of default under the indenture has occurred and is
continuing and except with respect to the indenture trustee appointed by act of
the holders, if ALLETE has delivered to the indenture trustee a resolution of
its Board of Directors appointing a successor indenture trustee and such
successor has accepted such appointment in accordance with the terms of the
indenture, the indenture trustee will be deemed to have resigned and the
successor will be deemed to have been appointed as indenture trustee in
accordance with the indenture. (See Indenture, Section 910.)
Notices. Notices to holders of debt securities will be given by mail to the
addresses of such holders as they may appear in the security register therefor.
(See Indenture, Section 106.)
Title. ALLETE, the indenture trustee, and any agent of ALLETE or the
indenture trustee, may treat the person in whose name debt securities are
registered as the absolute owner thereof, whether or not such debt securities
may be overdue, for the purpose of making payments and for all other purposes
irrespective of notice to the contrary. (See Indenture, Section 308.)
Governing Law. The indenture and the debt securities will be governed by,
and construed in accordance with, the laws of the State of New York. (See
Indenture, Section 112.)
Information about the Indenture Trustee. The indenture trustee under the
indenture is LaSalle Bank National Association. LaSalle Bank National
Association acts, and may act, as trustee under various other indentures of
ALLETE and its affiliates. ALLETE and its affiliates maintain deposit accounts
and credit and liquidity facilities and conduct other banking transactions with
the indenture trustee and its affiliates in the ordinary course of their
business.
DESCRIPTION OF PREFERRED TRUST SECURITIES AND COMMON TRUST SECURITIES
General. ALLETE Capital will issue preferred trust securities and common
trust securities under a trust agreement among ALLETE, as depositor, The Bank of
New York, as property trustee, The Bank of New York (Delaware), as Delaware
trustee, several administrative trustees and the holders of preferred trust
securities and common trust securities. The preferred trust securities will
represent preferred undivided beneficial interests in the assets of ALLETE
Capital and will entitle their holders to a preference over the common trust
securities with respect to distributions and amounts payable on redemption or
liquidation. Material terms of the trust agreement are summarized below. The
following descriptions of the preferred trust securities and the trust agreement
are summaries and are qualified by reference to the trust agreement. The form of
the trust agreement is being filed as an exhibit to the registration statement,
and you should read the trust agreement for provisions that may be important to
you. References to certain sections of the trust agreement are included in
parentheses. Whenever particular provisions or defined terms in the trust
agreement are referred to under this "Description of Preferred Trust Securities
and Common Trust Securities," those provisions or defined terms are incorporated
by reference in this prospectus. The trust agreement will be qualified under the
Trust Indenture Act of 1939. You should refer to the Trust Indenture Act of 1939
for provisions that apply to the preferred trust securities.
The preferred trust securities and the common trust securities issued by
ALLETE Capital will be substantially the same except that, if ALLETE Capital
fails to make required payments, the rights of ALLETE as the holder of the
common trust securities to payment of distributions and upon liquidation or
redemption will be subordinated to the rights of the holders of the preferred
trust securities. If there is a continuing event of default under the
subordinated indenture described below, holders of the preferred trust
securities may vote to appoint, remove or replace any of trustees of ALLETE
Capital except for the administrative trustees. All of the common trust
securities of ALLETE Capital will be owned by ALLETE.
ALLETE will fully and unconditionally guarantee payments due on the
preferred trust securities through a combination of the following:
o ALLETE's obligations under the junior subordinated debentures;
24
o the rights of holders of preferred trust securities to enforce
ALLETE's obligations under the junior subordinated debentures;
o ALLETE's agreement to pay the expenses of ALLETE Capital; and
o ALLETE's guarantee of payments due on the preferred trust securities
to the extent of ALLETE Capital's assets.
No single one of the documents listed above standing alone or operating in
conjunction with fewer than all of the other documents constitutes the guarantee
by ALLETE. It is only the combined operation of these documents that has the
effect of providing a full and unconditional guarantee by ALLETE of the
preferred trust securities.
If and to the extent described in the prospectus supplement, ALLETE may
assign its rights and obligations relating to preferred trust securities. The
obligations which ALLETE could assign would include its obligations under the
junior subordinated debentures, its agreement to pay the expenses of ALLETE
Capital and its guarantee of payments due on the preferred trust securities to
the extent of ALLETE Capital's assets. The terms and conditions and any material
United States federal income tax consequences of any permitted assignment shall
be described in the prospectus supplement relating to the preferred trust
securities of ALLETE Capital.
ALLETE Capital will use the proceeds from the sale of the preferred trust
securities and common trust securities to purchase junior subordinated
debentures from ALLETE in an aggregate principal amount equal to the aggregate
liquidation preference amount of the preferred trust securities and the common
trust securities. The junior subordinated debentures will be issued under a
subordinated indenture between ALLETE and The Bank of New York, as debenture
trustee under the subordinated indenture. The property trustee will hold the
junior subordinated debentures in trust for the benefit of the holders of the
preferred trust securities and common trust securities. (See Trust Agreement,
Section 2.09.)
A prospectus supplement relating to the preferred trust securities will
include specific terms of those securities and of the junior subordinated
debentures. For a description of some specific terms that will affect both the
preferred trust securities and the junior subordinated debentures and your
rights under each, see "Description of Junior Subordinated Debentures" below.
Distributions. The only income of ALLETE Capital available for distribution
to the holders of preferred trust securities will be payments on the junior
subordinated debentures. If ALLETE does not make interest payments on the junior
subordinated debentures (or does not pay the expenses of ALLETE Capital), ALLETE
Capital will not have funds available to pay distributions on the preferred
trust securities. The payment of distributions, if and to the extent ALLETE
Capital has sufficient funds available for the payment of such distributions, is
guaranteed on a limited basis by ALLETE.
So long as there is no default in the payment of interest on the junior
subordinated debentures, ALLETE may extend the interest payment period from time
to time on the junior subordinated debentures for one or more periods. As a
consequence, distributions on the preferred trust securities would be deferred
during any such period. Interest would, however, continue to accrue. If ALLETE
extends the interest period or is in default under the guarantee or with respect
to payments on the junior subordinated debentures, ALLETE may not:
o declare or pay any dividend or distribution on its capital stock,
other than dividends paid in shares of common stock of ALLETE;
o redeem, purchase, acquire or make a liquidation payment with respect
to any of its capital stock;
o redeem any indebtedness that is equal in right of payment with the
junior subordinated debentures; and
o make any guarantee payments with respect to any of the above.
25
Any extension period with respect to payment of interest on the junior
subordinated debentures, or any extended interest payment period in respect of
other securities issued under the subordinated indenture or on any similar
securities, will apply to all securities of the same type. Those extensions will
also apply to distributions on preferred trust securities and common trust
securities and all other securities with terms substantially the same as
preferred trust securities and common trust securities. Before an extension
period ends, ALLETE may further extend the interest payment period. No extension
period as further extended may exceed 20 consecutive quarters. After any
extension period and the payment of all amounts then due, ALLETE may select a
new extended interest payment period. No interest period may be extended beyond
the maturity of the junior subordinated debentures.
Redemption of Preferred Trust Securities and Common Trust Securities.
Whenever any of the junior subordinated debentures are repaid, whether at
maturity or earlier redemption, the proceeds will be applied to redeem a like
amount of preferred trust securities and common trust securities. Holders of
preferred trust securities and common trust securities will be given not less
than 30 nor more than 60 days' notice of any redemption.
Redemption Procedures. Preferred trust securities will be redeemed at the
redemption price plus accrued and unpaid distributions with the proceeds from
the contemporaneous redemption of junior subordinated debentures. Redemptions of
the preferred trust securities shall be made on a redemption date only if ALLETE
Capital has funds available for the payment of the redemption price plus accrued
and unpaid distributions. (See Trust Agreement, Section 4.02(c).)
Notice of redemption of preferred trust securities will be irrevocable. On
or before the redemption date, ALLETE Capital will irrevocably deposit with the
paying agent for the preferred trust securities sufficient funds and will give
the paying agent irrevocable instructions and authority to pay the redemption
price plus accrued and unpaid distributions to the holders upon surrender of
their preferred trust securities. Distributions payable on or before a
redemption date will be payable to the holders on the record date for the
distribution payment. If notice is given and funds are deposited as required,
then on the redemption date all rights of holders of the preferred trust
securities called for redemption will cease, except the right of the holders to
receive the redemption price plus accrued and unpaid distributions, and the
preferred trust securities will cease to be outstanding. No interest will accrue
on amounts payable on the redemption date. In the event that any date fixed for
redemption of preferred trust securities is not a business day, then payment
will be made on the next business day. No interest will be payable because of
any such delay. If payment of the preferred trust securities called for
redemption is improperly withheld or refused and not paid either by ALLETE
Capital or by ALLETE pursuant to the guarantee, distributions on such preferred
trust securities will continue to accrue to the date of payment. That date will
be considered the date fixed for redemption for purposes of calculating the
redemption price plus accrued and unpaid distributions. (See Trust Agreement,
Section 4.02(d).)
Subject to applicable law, including United States federal securities law,
ALLETE may purchase outstanding preferred trust securities by tender, in the
open market or by private agreement.
If preferred trust securities are partially redeemed on a redemption date
other than as a result of an event of default under the trust agreement, a
corresponding percentage of the common trust securities will be redeemed. The
particular preferred trust securities to be redeemed shall be selected not more
than 60 days before the redemption date by the property trustee by such method
as the property trustee shall deem fair, taking into account the denominations
in which they were issued. The property trustee shall promptly notify the
preferred trust security registrar in writing of the preferred trust securities
selected for redemption and, where applicable, the partial amount to be
redeemed. (See Trust Agreement, Section 4.02(f).)
Subordination of Common Trust Securities. Payment of distributions on, and
the redemption price, plus accrued and unpaid distributions, of, the preferred
trust securities and common trust securities shall be made proportionally based
on the liquidation preference amount. However, if on any distribution payment
date or redemption date an event of default under the trust agreement has
occurred and is continuing, no payment on any common trust security shall be
made until all payments due on the preferred trust securities have been made. In
that case, funds available to the property trustee will first be applied to the
payment in full of all distributions on, or the redemption price plus accrued
and unpaid distributions, of preferred trust securities then due and payable.
(See Trust Agreement, Section 4.03(a).)
26
If an event of default under the trust agreement results from an event of
default under the subordinated indenture, the holders of common trust securities
cannot take action with respect to the trust agreement default until the effect
of all defaults with respect to preferred trust securities has been cured,
waived or otherwise eliminated. Until the event of default under the trust
agreement with respect to preferred trust securities has been cured, waived or
otherwise eliminated, the property trustee shall act solely on behalf of the
holders of preferred trust securities and not the holders of the common trust
securities. Only holders of preferred trust securities will have the right to
direct the property trustee to act on their behalf. (See Trust Agreement,
Section 4.03(b).)
Liquidation Distribution upon Dissolution. ALLETE Capital will be dissolved
and shall be liquidated by the property trustee on the first to occur of:
o the expiration of the term of ALLETE Capital;
o the bankruptcy, dissolution or liquidation of ALLETE;
o redemption of all of the preferred trust securities;
o the entry of an order for dissolution of ALLETE Capital by a court of
competent jurisdiction; or
o at any time, at the election of ALLETE.
(See Trust Agreement, Sections 9.01 and 9.02.)
If a dissolution of ALLETE Capital occurs because of bankruptcy,
dissolution or liquidation of ALLETE, if all the preferred trust securities are
redeemed, or if ALLETE so elects, ALLETE Capital will be liquidated by the
property trustee as expeditiously as the property trustee determines to be
appropriate. The property trustee will provide for the satisfaction of
liabilities of creditors, if any, and distribute to each holder of the preferred
trust securities and common trust securities a proportionate amount of junior
subordinated debentures. If a distribution of junior subordinated debentures is
determined by the property trustee not to be practical, holders of the preferred
trust securities will be entitled to receive, out of the assets of ALLETE
Capital after adequate provision for the satisfaction of liabilities of
creditors, if any, an amount equal to the aggregate liquidation preference of
the preferred trust securities plus accrued and unpaid distributions thereon to
the date of payment. If this liquidation distribution can be paid only in part
because ALLETE Capital has insufficient assets available to pay in full the
aggregate liquidation distribution, then the amounts payable directly by ALLETE
Capital on the preferred trust securities shall be paid to the holders
proportionally based on the total liquidation preference amount of the preferred
trust securities they hold. ALLETE, as holder of the common trust securities,
will be entitled to receive distributions upon any dissolution proportionally
with the holders of the preferred trust securities, except that if an event of
default has occurred and is continuing under the subordinated indenture or if a
default has occurred under the subordinated indenture but has not become an
event of default solely because of the requirement that time lapse or notice be
given, the preferred trust securities shall have a preference over the common
trust securities upon dissolution of ALLETE Capital. (See Trust Agreement,
Section 9.04.)
Events of Default; Notice. Any one of the following events will be an event
of default under the trust agreement whether it be voluntary or involuntary or
effected by operation of law or in accordance with any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body:
o the occurrence of an event of default under the subordinated
indenture;
o default by ALLETE Capital in the payment of any distribution when it
becomes due and payable, and continuation of that default for a period
of 30 days;
o default by ALLETE Capital in the payment of any redemption price, plus
accrued and unpaid distributions, of any preferred trust security or
common trust security when it becomes due and payable;
27
o default in the performance, or breach, in any material respect, of any
covenant or warranty of the trustees in the trust agreement which is
not dealt with above, and the continuation of that default or breach
for a period of 60 days after notice to ALLETE Capital by the holders
of preferred trust securities having at least 10 percent of the total
liquidation preference amount of the outstanding preferred trust
securities; or
o the occurrence of specified events of bankruptcy or insolvency with
respect to ALLETE Capital.
(See Trust Agreement, Section 1.01.)
Within 90 business days after the occurrence of any event of default under
the trust agreement, the property trustee will transmit to the holders of
preferred trust securities and common trust securities and ALLETE notice of any
default actually known to the property trustee, unless that default has been
cured or waived. (See Trust Agreement, Section 8.02.)
A holder of preferred trust securities may directly institute a proceeding
to enforce payment when due directly to the holder of the preferred trust
securities of the principal of or interest on junior subordinated debentures
having a principal amount equal to the aggregate liquidation preference amount
of the holder's preferred trust securities. The holders of preferred trust
securities have no other rights to exercise directly any other remedies
available to the holder of the junior subordinated debentures unless the
trustees under the trust agreement fail to do so. (See Trust Agreement, Section
6.01(a).)
Unless an event of default under the subordinated indenture has occurred
and is continuing, the holder of the common trust securities may remove the
property trustee at any time. If an event of default under the subordinated
indenture has occurred and is continuing, the holders of a majority of the total
liquidation preference amount of the outstanding preferred trust securities may
remove the property trustee. Any resignation or removal of the property trustee
will take effect only on the acceptance of appointment by the successor property
trustee. (See Trust Agreement, Section 8.10.)
Merger or Consolidation of the Property Trustee or the Delaware Trustee. If
the property trustee or the Delaware trustee merge, consolidate with another
entity, or if any entity succeeds to all or substantially all the corporate
trust business of the property trustee or the Delaware trustee, the successor or
surviving company shall be the successor to the property trustee or the Delaware
trustee under the trust agreement, so long as it is otherwise qualified and
eligible. (See Trust Agreement, Section 8.12.)
Voting Rights. Except with respect to amendments to the trust agreement and
amendments and assignment of the guarantee, the holders of preferred trust
securities will have no voting rights not otherwise required by law or the trust
agreement. (See Trust Agreement, Section 6.01(a).)
While junior subordinated debentures are held by the property trustee, the
property trustee will not:
o direct the time, method and place to conduct any proceeding for any
remedy available to the debenture trustee, or to execute any trust or
power conferred on the debenture trustee with respect to the junior
subordinated debentures,
o waive any past default under the subordinated indenture,
o exercise any right to rescind or annul a declaration that the
principal of all the junior subordinated debentures will be due and
payable, or
o consent to any amendment, modification or termination of the
subordinated indenture or the junior subordinated debentures, where
that consent will be required
without, in each case, obtaining the prior approval of the holders of preferred
trust securities having at least 66-2/3 percent of the liquidation preference
amount of the outstanding preferred trust securities. Where the consent of each
holder of junior subordinated debentures affected is required, no consent will
be given by the property trustee without the prior consent of each holder of the
preferred trust securities. The property trustee shall not revoke any action
28
previously authorized or approved by a vote of the holders of preferred trust
securities. If the property trustee fails to enforce its rights under the junior
subordinated debentures or the trust agreement, to the fullest extent permitted
by law, a holder of the preferred trust securities may institute a legal
proceeding directly against ALLETE to enforce the property trustee's rights
under the junior subordinated debentures or the trust agreement without first
instituting any legal proceeding against the property trustee or any one else.
The property trustee shall notify all holders of preferred trust securities of
any notice of default received from the debenture trustee. The property trustee
will not take any action approved by the consent of the holders of the preferred
trust securities without an opinion of counsel experienced in those matters to
the effect that ALLETE Capital will not be classified as an association taxable
as a corporation for United States federal income tax purposes on account of
that action. (See Trust Agreement, Sections 6.01(a) and 6.01(b).)
Holders of preferred trust securities may give any required approval at a
meeting convened for that purpose or by written consent without prior notice.
(See Trust Agreement, Section 6.06.) The administrative trustees will give
notice of any meeting at which holders of preferred trust securities are
entitled to vote (See Trust Agreement, Section 6.01).
No vote or consent of the holders of preferred trust securities will be
required for ALLETE Capital to redeem and cancel preferred trust securities in
accordance with the trust agreement.
Although holders of preferred trust securities are entitled to vote or
consent under any of the circumstances described above, any of the preferred
trust securities that are owned by ALLETE, any trustee under the trust agreement
or any affiliate of ALLETE, shall be treated as if they were not outstanding for
purposes of that vote or consent. (See Trust Agreement, Section 1.01.)
Holders of preferred trust securities will have no rights to appoint or
remove the administrative trustees of ALLETE Capital, who may be appointed,
removed or replaced solely by ALLETE as the holder of the common trust
securities. (See Trust Agreement, Section 8.10.)
Amendments. The trust agreement may be amended from time to time by ALLETE
and the administrative trustees, without the consent of any holders of preferred
trust securities and common trust securities or the other trustees:
o to cure any ambiguity, correct or supplement inconsistent provisions,
make any other provisions with respect to matters or questions arising
under the trust agreement that do not conflict with the other
provisions of the trust agreement or any amendments of the trust
agreement;
o to change the name of the trust; or
o to modify, eliminate or add to any provisions of the trust agreement
to the extent necessary to ensure that ALLETE Capital will not be
classified for United States federal income tax purposes as an
association taxable as a corporation at any time that any preferred
trust securities and common trust securities are outstanding or to
ensure ALLETE Capital's exemption from the status of an "investment
company" under the Investment Company Act of 1940.
No amendment described above may materially adversely affect the interests of
any holder of preferred trust securities or common trust securities. The
amendments of the trust agreement which cure ambiguity, correct inconsistencies
or supplement existing provisions will become effective when notice of the
amendment is given to the holders of preferred trust securities and common trust
securities.
Except as provided below, any provision of the trust agreement may be
amended by the trustees and ALLETE with:
o the consent of holders of preferred trust securities and common trust
securities representing not less than a majority in aggregate
liquidation preference amount of the preferred trust securities and
common trust securities then outstanding; and
29
o 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 the amendment will not cause ALLETE Capital to be
classified for United States federal income tax purposes as an
association taxable as a corporation or affect ALLETE Capital's
exemption from status of an "investment company" under the Investment
Company Act of 1940.
Each holder of preferred trust securities or common trust securities must
consent to any amendment to the trust agreement that:
o changes the amount or timing of any distribution with respect to
preferred trust securities or common trust securities or otherwise
adversely affects the amount of any distribution required to be made
in respect of preferred trust securities and common trust securities
as of a specified date; or
o restricts the right of a holder of preferred trust securities or
common trust securities to institute suit for the enforcement of any
such payment on or after that date.
(See Trust Agreement, Section 10.03.)
Co-trustees and Separate Trustee. If no event of default under the trust
agreement has occurred and is continuing, for the purpose of meeting the legal
requirements of the Trust Indenture Act of 1939 or of any jurisdiction in which
any part of the trust property of ALLETE Capital may at the time be located,
ALLETE, as depositor, and the property trustee may 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 the trust property, or to act as
separate trustee of any trust property. Upon the written request of the property
trustee, ALLETE, as depositor, will for that purpose join with the property
trustee in the execution, delivery and performance of all instruments necessary
or proper to make that appointment. The appointment will vest in that person or
persons in that capacity, any property, title, right or power deemed necessary
or desirable, subject to the provisions of the trust agreement. If ALLETE, as
depositor, does not join in that 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 that appointment. (See Trust Agreement, Section 8.09.)
Form, Exchange, and Transfer. Preferred trust securities of ALLETE Capital
may be exchanged for other preferred trust securities of that trust in any
authorized denomination and with the same terms and total liquidation
preference.
Subject to the terms of the trust agreement, preferred trust securities may
be presented for exchange as provided above or for registration of transfer,
duly endorsed or accompanied by a duly executed instrument of transfer, at the
office of the preferred trust security registrar or at the office of any
transfer agent designated by ALLETE for such purpose. ALLETE may designate
itself the preferred trust security registrar. Unless otherwise provided in the
prospectus supplement, no service charge will be made for any transfer or
exchange of the preferred trust securities. However, ALLETE may require payment
to cover any tax or other governmental charge that may be imposed. In that case,
the holder requesting transfer must pay the tax or charges and give any
indemnity that ALLETE Capital or ALLETE may require. (See Trust Agreement,
Section 5.04.) A transfer or exchange will be made when the transfer agent is
satisfied with the documents of title and identity of the person making the
request. ALLETE may at any time designate additional transfer agents or rescind
the designation of any transfer agent or approve a change in the office through
which any transfer agent acts, except that ALLETE will be required to maintain a
transfer agent in each place of payment for preferred trust securities.
ALLETE Capital will not be required to
o issue, register the transfer of, or exchange any preferred trust
securities during the period beginning 15 calendar days before the
mailing of a notice of redemption of any preferred trust securities
called for redemption and ending at the close of business on the day
the notice is mailed or
o register the transfer of or exchange any preferred trust securities so
selected for redemption, in whole or in part, except the unredeemed
portion of any preferred trust securities being redeemed in part.
30
(See Trust Agreement, Section 5.04)
Registrar and Transfer Agent. Unless otherwise specified in the prospectus
supplement, The Bank of New York will act as registrar and transfer agent for
the preferred trust securities.
Registration of transfers of the preferred trust securities will be made
without charge by ALLETE Capital, unless tax or other governmental charges are
imposed. In that case, the holder requesting transfer must pay the tax or
charges and give such indemnity as ALLETE Capital or ALLETE may require.
Information about the Property Trustee and the Delaware Trustee. The
property trustee and the Delaware trustee under the trust agreement will be The
Bank of New York and The Bank of New York (Delaware), respectively. In addition
to acting as property trustee, The Bank of New York, as described in this
prospectus, also acts as trustee under the mortgage, the guarantee trustee under
the guarantee and the debenture trustee under the subordinated indenture. The
Bank of New York also acts, and may act, as trustee under various other
indentures, trusts and guarantees of ALLETE and its affiliates. ALLETE and its
affiliates maintain deposit accounts and conduct other banking transactions with
the property trustee in the ordinary course of their businesses.
Duties of the Trustees. The Delaware trustee will act as the resident
trustee in the State of Delaware and will have no other significant duties. (See
Trust Agreement, Section 2.06.) The property trustee will hold the junior
subordinated debentures on behalf of ALLETE Capital and will maintain a payment
account with respect to the preferred trust securities and common trust
securities, and will also act as trustee under the trust agreement for the
purposes of the Trust Indenture Act of 1939.
The administrative trustees of ALLETE Capital are authorized and directed
to conduct the affairs of ALLETE Capital and to operate ALLETE Capital so that
ALLETE Capital will not be deemed to be an "investment company" required to be
registered under the Investment Company Act of 1940 or taxed as a corporation
for United States federal income tax purposes and so that the junior
subordinated debentures will be treated as indebtedness of ALLETE for United
States federal income tax purposes. In this regard, the administrative trustees
are authorized to take any action, not inconsistent with applicable law, the
certificate of trust or the trust agreement, that the administrative trustees
determine in their discretion to be necessary or desirable for those purposes,
as long as the action does not materially adversely affect the interests of the
holders of the preferred trust securities. (See Trust Agreement, Section
2.07(d).)
Governing Law. The trust agreement and the preferred trust securities will
be governed by, and construed in accordance with, the laws of the State of
Delaware. (See Trust Agreement, Section 10.05.)
Miscellaneous. Holders of the preferred trust securities have no preemptive
or similar rights.
DESCRIPTION OF THE GUARANTEE
General. Material terms of the guarantee that ALLETE will execute and
deliver for the benefit of the holders of the preferred trust securities are
summarized below. The following description of the guarantee is a summary and is
qualified by reference to the guarantee. The form of the guarantee is being
filed as an exhibit to the registration statement, and you should read the
guarantee for provisions that may be important to you. References to certain
sections of the guarantee are included in parentheses. Whenever particular
provisions or defined terms in the guarantee are referred to under this
"Description of the Guarantee," those provisions or defined terms are
incorporated by reference in this prospectus. The guarantee will be qualified
under the Trust Indenture Act of 1939. You should refer to the Trust Indenture
Act of 1939 for provisions that apply to the debt securities.
The Bank of New York will act as guarantee trustee under the guarantee. The
guarantee trustee will hold the guarantee for the benefit of the holders of the
preferred trust securities.
General Terms of the Guarantee. ALLETE will irrevocably and unconditionally
agree to make the guarantee payments listed below in full to the holders of the
preferred trust securities if they are not made by ALLETE Capital, as and when
due, regardless of any defense, right of set-off or counterclaim that ALLETE may
have or assert. The following payments will be subject to the guarantee (without
duplication):
31
o any accrued and unpaid distributions required to be paid on preferred
trust securities, to the extent ALLETE Capital has funds available
therefor;
o the redemption price, plus all accrued and unpaid distributions, for
any preferred trust securities called for redemption by ALLETE
Capital, to the extent ALLETE Capital has sufficient funds for
payments; and
o upon a voluntary or involuntary dissolution, winding-up or termination
of ALLETE Capital except in connection with the distribution of junior
subordinated debentures to the holders in exchange for preferred trust
securities as provided in the trust agreement or upon a redemption of
all of the preferred trust securities upon maturity or redemption of
the junior subordinated debentures as provided in the trust agreement,
the lesser of:
- the aggregate of the liquidation preference and all accrued and
unpaid distributions on preferred trust securities to the date of
payment, to the extent that ALLETE Capital has funds available
therefor; and
- the amount of assets of ALLETE Capital remaining available for
distribution to holders of preferred trust securities in
liquidation of ALLETE Capital.
ALLETE's obligation to make a guarantee payment may be satisfied by direct
payment of the required amounts by ALLETE to the holders of preferred trust
securities or by causing ALLETE Capital to pay those amounts to those holders.
(See Guarantee Agreement, Sections 1.01 and 5.01.)
The guarantee will be a guarantee with respect to the preferred trust
securities, but will not apply to any payment of distributions if and to the
extent that ALLETE Capital does not have funds available to make those payments
or to any collection of payment.
If ALLETE does not make interest payments on the junior subordinated
debentures held by ALLETE Capital, ALLETE Capital will not have funds available
to pay distributions on the preferred trust securities. The guarantee will rank
subordinate and junior in right of payment to all liabilities of ALLETE except
liabilities that are equal in right of payment by their terms. (See Guarantee
Agreement, Section 6.01.)
ALLETE will enter into an agreement as to expenses and liabilities with
ALLETE Capital, to provide funds to ALLETE Capital as needed to pay obligations
of ALLETE Capital to parties other than holders of preferred trust securities.
The junior subordinated debentures and the guarantee, together with the
obligations of ALLETE with respect to the preferred trust securities under the
subordinated indenture, the trust agreement, the guarantee and the agreement as
to expenses and liabilities, constitute a full and unconditional guarantee of
the preferred trust securities by ALLETE. No single document standing alone or
operating in conjunction with fewer than all of the other documents constitutes
that guarantee. It is only the combined operation of these documents that has
the effect of providing a full and unconditional guarantee by ALLETE of the
preferred trust securities.
Amendments and Assignment. No vote is required for changes to the guarantee
that do not materially adversely affect the rights of holders of preferred trust
securities. Other terms of the guarantee may be changed only with the prior
approval of the holders of the preferred trust securities having at least 66-2/3
percent of the total liquidation preference amount of the outstanding preferred
trust securities. (See Guarantee Agreement, Section 8.02.) All guarantees and
agreements contained in the guarantee will bind the successors, assigns,
receivers, trustees and representatives of ALLETE and will inure to the benefit
of the holders of the preferred trust securities then outstanding. (See
Guarantee Agreement, Section 8.01.)
If and to the extent described in the prospectus supplement, ALLETE may
assign its obligations under the guarantee. The terms and conditions and any
material United States federal income tax consequences of any permitted
assignment shall be described in the prospectus supplement relating to the
preferred trust securities.
Events of Default. An event of default under the guarantee will occur if
ALLETE fails to perform any of its payment obligations under the guarantee. The
holders of the preferred trust securities having a majority of the liquidation
preference of the preferred trust securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
32
guarantee trustee under the guarantee or to direct the exercise of any trust or
power conferred upon the guarantee trustee under the guarantee. (See Guarantee
Agreement, Section 5.04.)
If the guarantee trustee fails to enforce the guarantee, any holder of the
preferred trust securities may enforce the guarantee, or institute a legal
proceeding directly against ALLETE to enforce the guarantee trustee's rights
under the guarantee without first instituting a legal proceeding against ALLETE
Capital, the guarantee trustee or anyone else. (See Guarantee Agreement, Section
5.04.)
Annual Notice to Guarantee Trustee. ALLETE will be required to file
annually with the guarantee trustee an officer's certificate as to ALLETE's
compliance with all conditions under the guarantee. (See Guarantee Agreement,
Section 2.04.)
Information about the Guarantee Trustee. The guarantee trustee will
undertake to perform only those duties specifically set forth in the guarantee
until a default occurs. After a default under the guarantee, the guarantee
trustee must exercise the same degree of care in its duties as a prudent
individual would exercise in the conduct of his or her own affairs. (See
Guarantee Agreement, Section 3.01(b).) Otherwise, the guarantee trustee is under
no obligation to exercise any of the powers vested in it by the guarantee at the
request of any holder of the preferred trust securities unless it is offered
reasonable indemnity against the costs, expenses and liabilities that it might
incur. (See Guarantee Agreement, Section 3.01(c).)
The guarantee trustee under the guarantee will be The Bank of New York. In
addition to acting as guarantee trustee, The Bank of New York, as described in
this prospectus, also acts as trustee under the mortgage, property trustee under
the trust agreement, the debenture trustee under the subordinated indenture; The
Bank of New York (Delaware) acts as the Delaware trustee under the trust
agreement. The Bank of New York also acts, and may act, as trustee under various
other indentures, trusts and guarantees of ALLETE and its affiliates. ALLETE and
its affiliates maintain deposit accounts and conduct other banking transactions
with the guarantee trustee in the ordinary course of their businesses.
Termination of the Guarantee. The guarantee will terminate and be of no
further force and effect upon:
o full payment of the redemption price, plus accrued and unpaid
distributions, for all the preferred trust securities;
o the distribution of junior subordinated debentures to holders of the
preferred trust securities in exchange for all of the preferred trust
securities; or
o full payment of the amounts payable upon liquidation of ALLETE
Capital.
The guarantee will continue to be effective or will be reinstated, as the case
may be, if at any time any holder of preferred trust securities must restore
payment of any sums paid under the preferred trust securities or the guarantee.
(See Guarantee Agreement, Section 7.01.)
Status of the Guarantee. The guarantee will be an unsecured obligation of
ALLETE and will rank:
o subordinate and junior in right of payment to all liabilities of
ALLETE, except any liabilities that are equal in right of payment by
their terms;
o equal in right of payment with the most senior preferred stock that
may be issued by ALLETE and with any guarantee that may be entered
into by ALLETE in respect of any preferred stock of any affiliate of
ALLETE; and
o senior to ALLETE's common stock.
(See Guarantee Agreement, Section 6.01.)
33
The trust agreement provides that by accepting preferred trust securities,
a holder agrees to the subordination provisions and other terms of the
guarantee.
The guarantee will be a guarantee of payment and not of collection, that
is, the guaranteed party may institute a legal proceeding directly against
ALLETE to enforce its rights under the guarantee without first instituting a
legal proceeding against anyone else.
Governing Law. The guarantee will be governed by and construed in
accordance with the laws of the State of New York. (See Guarantee Agreement,
Section 8.06.)
DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
General. The junior subordinated debentures which the property trustee will
hold on behalf of ALLETE Capital as trust assets will be subordinated
obligations of ALLETE. The junior subordinated debentures will be issued in one
or more series under a subordinated indenture ("subordinated indenture") between
ALLETE and The Bank of New York, as debenture trustee ("debenture trustee") with
respect to the junior subordinated debentures.
The following description of the junior subordinated debentures and the
subordinated indenture are summaries and are qualified by reference to the
subordinated indenture. The form of the subordinated indenture is being filed as
an exhibit to the registration statement, and you should read the subordinated
indenture for provisions that may be important to you. References to certain
sections of the subordinated indenture are included in parentheses. Whenever
particular provisions or defined terms in the subordinated indenture are
referred to under this "Description of Junior Subordinated Debentures," those
provisions or defined terms are incorporated by reference in this prospectus.
The subordinated indenture will be qualified under the Trust Indenture Act of
1939. You should refer to the Trust Indenture Act of 1939 for provisions that
apply to the junior subordinated debentures.
The subordinated indenture provides for the issuance of junior subordinated
debentures and other subordinated debt in an unlimited amount from time to time.
The junior subordinated debentures issued to ALLETE Capital will constitute a
separate series of junior subordinated debentures under the subordinated
indenture.
The prospectus supplement and an officer's certificate relating to the
junior subordinated debentures being offered will include specific terms
relating to that offering. These terms will include any of the following terms
that apply to that series:
o the title of the junior subordinated debentures;
o any limit upon the total principal amount of the junior subordinated
debentures;
o the date or dates on which the principal of the junior subordinated
debentures will be payable and how it will be paid;
o the rate or rates at which the junior subordinated debentures will
bear interest, or how the rate or rates will be determined;
o the date or dates from which interest on the junior subordinated
debentures will accrue, the interest payment dates on which interest
will be paid, and the record dates for such interest payments;
o any right to extend the interest payment periods for the junior
subordinated debentures;
o the percentage, if less than 100 percent, of the principal amount of
the junior subordinated debentures which will be payable if the
maturity of the junior subordinated debentures is accelerated;
o any date or dates on which, and the price or prices at which, the
junior subordinated debentures may be redeemed at the option of ALLETE
and any restrictions on such redemptions;
34
o any sinking fund or other provisions or options held by holders of
junior subordinated debentures that would obligate ALLETE to
repurchase or otherwise redeem the junior subordinated debentures;
o any changes or additions to the events of default under the
subordinated indenture or changes or additions to the covenants of
ALLETE under the subordinated indenture;
o if the junior subordinated debentures will be issued in denominations
other than $25 or a multiple thereof;
o if payments on the junior subordinated debentures may be made in a
currency or currencies other than United States dollars;
o any rights or duties of another person to assume the obligations of
ALLETE with respect to the junior subordinated debentures;
o any collateral, security, assurance or guarantee for the junior
subordinated debentures;
o any rights to change, or eliminate any provision under the
subordinated indenture or to add any new provision to the subordinated
indenture without the consent of the holders of the junior
subordinated debentures of such series; and
o any other terms of the junior subordinated debentures not inconsistent
with the terms of the subordinated indenture.
(See Subordinated Indenture, Section 301.)
The junior subordinated debentures of each series will be limited in total
principal amount to the sum of the aggregate liquidation preference amount of
the preferred trust securities and the consideration paid by ALLETE for the
common trust securities of ALLETE Capital. The junior subordinated debentures
are unsecured, subordinated obligations of ALLETE which rank junior to all of
ALLETE's Senior Indebtedness. (Subordinated Indenture, Section 1501.) Senior
Indebtedness is defined in the subordinated indenture to include all notes and
other obligations, including guarantees of ALLETE, for borrowed money that is
not subordinate or junior in right of payment to any other indebtedness of
ALLETE unless by its terms it is equal in right of payment to the junior
subordinated debentures. The obligations of ALLETE under the guarantee and the
junior subordinated debentures will not be deemed to be Senior Indebtedness.
(See Subordinated Indenture, Section 101.) The amounts payable as principal and
interest on the junior subordinated debentures will be sufficient to provide for
payment of distributions payable on preferred trust securities and common trust
securities.
If junior subordinated debentures are distributed to holders of preferred
trust securities in a dissolution of ALLETE Capital, the junior subordinated
debentures will be issued in fully registered certificated form in the
denominations and integral multiples of the denominations in which the preferred
trust securities have been issued, and they may be transferred or exchanged at
the offices of the debenture trustee. (See Subordinated Indenture, Section 201.)
Payment and Paying Agents. Except as may be provided in the prospectus
supplement, interest, if any, on each junior subordinated debenture payable on
each interest payment date will be paid to the person in whose name such junior
subordinated debenture is registered as of the close of business on the regular
record date for the interest payment date. However, interest payable at maturity
will be paid to the person to whom the principal is paid. If there has been a
default in the payment of interest on any junior subordinated debenture, the
defaulted interest may be paid to the holder of such junior subordinated
debenture as of the close of business on a date to be fixed by the debenture
trustee, which will be between 10 and 15 days prior to the date proposed by
ALLETE for payment of such defaulted interest or in any other manner permitted
by any securities exchange on which such junior subordinated debenture may be
listed, if the debenture trustee finds it practicable. (See Subordinated
Indenture, Section 307.)
Unless otherwise specified in the prospectus supplement, principal of, and
premium, if any, and interest on the junior subordinated debentures at maturity
will be payable upon presentation of the junior subordinated debentures at the
35
corporate trust office of the debenture trustee as Paying Agent for ALLETE.
ALLETE may change the place of payment on the junior subordinated debentures,
may appoint one or more additional Paying Agents, including ALLETE, and may
remove any Paying Agent, all at the discretion of ALLETE. (See Subordinated
Indenture, Section 602.)
Registration and Transfer. Unless otherwise specified in the prospectus
supplement, the transfer of junior subordinated debentures may be registered,
and junior subordinated debentures may be exchanged for other junior
subordinated debentures of the same series of authorized denominations and with
the same terms and principal amount, at the corporate trust office of the
debenture trustee. ALLETE may change the place for registration of transfer and
exchange of the junior subordinated debentures and may designate additional
places for such registration and exchange. Unless otherwise provided in the
prospectus supplement, no service charge will be made for any transfer or
exchange of the junior subordinated debentures. However, ALLETE may require
payment to cover any tax or other governmental charge that may be imposed.
ALLETE will not be required to execute or to provide for the registration of
transfer of, or the exchange of,
o any junior subordinated debenture during a period of 15 days prior to
giving any notice of redemption or
o any junior subordinated debenture selected for redemption except the
unredeemed portion of any junior subordinated debenture being redeemed
in part.
(See Subordinated Indenture, Section 305.)
Optional Redemption. For so long as ALLETE Capital is the holder of all the
related outstanding junior subordinated debentures, the proceeds of any optional
redemption will be used by ALLETE Capital to redeem preferred trust securities
and common trust securities in accordance with their terms.
The debenture trustee will give notice to the holders of any optional
redemption of junior subordinated debentures, not less than 30 nor more than 60
days prior to that redemption. All notices of redemption will state the
redemption date and the redemption price plus accrued and unpaid interest. If
less than all the junior subordinated debentures are to be redeemed, the notice
will identify those to be redeemed and the portion of the principal amount of
any junior subordinated debentures to be redeemed in part. The notice will state
that on the redemption date, subject to the debenture trustee's receipt of the
redemption monies, the redemption price plus accrued and unpaid interest will
become due and payable on each junior subordinated debenture to be redeemed and
that interest thereon will cease to accrue on and after that date. It will name
the place or places where the junior subordinated debentures are to be
surrendered for payment of the redemption price plus accrued and unpaid
interest. (See Subordinated Indenture, Section 4.04.)
Interest. The amount of interest payable for any period will be computed on
the basis of a 360-day year 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 the
event that any date on which interest is payable on the junior subordinated
debentures is not a business day, then payment will be made on the next business
day. No interest will be paid in respect of any such delay. However, if the
delayed payment date is in the next calendar year, the payment will be made on
the last business day of the earlier year. These payments will have the same
force and effect as if made on the date the payment was originally payable. (See
Subordinated Indenture, Section 113.)
Option to Extend Interest Payment Period. So long as there is no default in
the payment of interest on the junior subordinated debentures, ALLETE may extend
the interest payment period from time to time on the junior subordinated
debentures for one or more periods. As a consequence, distributions on preferred
trust securities would be deferred during any extension period. Interest would,
however, continue to accrue. If ALLETE extends the interest period or is in
default under the guarantee or with respect to payments on the junior
subordinated debentures, ALLETE may not:
o declare or pay any dividend or distribution on its capital stock,
other than dividends paid in shares of common stock of ALLETE;
o redeem, purchase, acquire or make a liquidation payment with respect
to any of its capital stock;
36
o redeem any indebtedness that is equal in right of payment with the
junior subordinated debentures; or
o make any guarantee payments with respect to any of the above.
(See Subordinated Indenture, Section 608.)
Any extension period with respect to payment of interest on the junior
subordinated debentures, or any extended interest payment period in respect of
other securities issued under the subordinated indenture or on any similar
securities, will apply to all securities of the same type. Those extensions will
also apply to distributions on preferred trust securities and common trust
securities and all other securities with terms substantially the same as
preferred trust securities and common trust securities. Before an extension
period ends, ALLETE may further extend the interest payment period. No extension
period as further extended may exceed 20 consecutive quarters. After any
extension period and the payment of all amounts then due, ALLETE may select a
new extension period. No interest period may be extended beyond the maturity of
the junior subordinated debentures. ALLETE will give ALLETE Capital and the
debenture trustee notice of its election of an extension period prior to the
earlier of
o one business day before the record date for the distribution which
would occur if ALLETE did not make the election to extend or
o the date ALLETE is required to give notice to the New York Stock
Exchange or any other applicable self-regulatory organization of the
record date. ALLETE will cause ALLETE Capital to send notice of that
election to the holders of preferred trust securities.
Additional Interest. So long as any preferred trust securities remain
outstanding, if ALLETE Capital is required to pay any taxes, duties, assessments
or governmental charges imposed by the United States or any other taxing
authority on income derived from the interest payments on the junior
subordinated debentures, then ALLETE will pay as interest on the junior
subordinated debentures any additional interest that may be necessary in order
that the net amounts retained by ALLETE Capital after the payment of those
taxes, duties, assessments or governmental charges will be the same as ALLETE
Capital would have had in the absence of the payment of those taxes, duties,
assessments or governmental charges. (See Subordinated Indenture, Section 312.)
Assignment of Obligations. If and to the extent described in the prospectus
supplement, ALLETE may assign its obligations under the junior subordinated
debentures and the subordinated indenture. The terms and conditions and any
material United States federal income tax consequences of any permitted
assignment shall be described in the prospectus supplement relating to the
preferred trust securities.
Satisfaction and Discharge. ALLETE will be discharged from its obligations
on the junior subordinated debentures of a particular series, or any portion
thereof of the principal amount of the junior subordinated debentures of such
series, if it irrevocably deposits with the debenture trustee sufficient cash or
government securities to pay the principal, interest, any premium and any other
sums when due on the junior subordinated debentures of such series at their
stated maturity date or a redemption date. (See Subordinated Indenture, Section
701.)
The subordinated indenture will be deemed satisfied and discharged when no
junior subordinated debentures remain outstanding and when ALLETE has paid all
other sums payable by ALLETE under the subordinated indenture. (See Indenture,
Section 702.)
All moneys ALLETE pays to the debenture trustee or any Paying Agent on the
junior subordinated debentures which remain unclaimed at the end of two years
after payments have become due will be paid to or upon the order of ALLETE.
Thereafter, the holder of such junior subordinated debenture may look only to
ALLETE for payment thereof. (See Subordinated Indenture, Section 603.)
Subordination. The junior subordinated debentures will be subordinate and
junior in right of payment to all Senior Indebtedness of ALLETE. (See
Subordinated Indenture, Section 1501.) No payment of the principal of the junior
subordinated debentures (including redemption and sinking fund payments), or
interest on the junior subordinated debentures may be made until all holders of
Senior Indebtedness have been paid, if any of the following occurs:
37
o specified events of bankruptcy, insolvency or reorganization of
ALLETE;
o any Senior Indebtedness is not paid when due and that default
continues without waiver;
o any other default has occurred and continues without waiver pursuant
to which the holders of Senior Indebtedness have accelerated the
maturity of the indebtedness; or
o the maturity of any other series of junior subordinated debentures
under the subordinated indenture has been accelerated, because of an
event of default under the subordinated indenture which remains
uncured.
(See Subordinated Indenture, Section 1501.)
Upon any distribution of assets of ALLETE to creditors in connection with
any insolvency, bankruptcy or similar proceeding, all principal of, and premium,
if any, and interest due or to become due on all Senior Indebtedness must be
paid in full before the holders of the junior subordinated debentures are
entitled to receive or retain any payment. (See Subordinated Indenture, Section
1504.)
The subordinated indenture does not limit the aggregate amount of Senior
Indebtedness that may be issued. As of February 28, 2001 ALLETE had
approximately $1.3 billion principal amount of indebtedness for borrowed money
constituting Senior Indebtedness.
Consolidation, Merger, and Sale of Assets. Under the terms of the
subordinated indenture, ALLETE may not consolidate with or merge into any other
entity or convey, transfer or lease its properties and assets substantially as
an entirety to any entity, unless:
o the surviving or successor entity is organized and validly existing
under the laws of any domestic jurisdiction and it expressly assumes
ALLETE's obligations on all junior subordinated debentures and under
the subordinated indenture;
o immediately after giving effect to the transaction, no event of
default under the subordinated indenture or no event which, after
notice or lapse of time or both, would become an event of default
under the subordinated indenture, shall have occurred and be
continuing; and
o ALLETE shall have delivered to the debenture trustee an officer's
certificate and an opinion of counsel as provided in the subordinated
indenture.
The terms of the subordinated indenture do not restrict ALLETE in a merger
in which ALLETE is the surviving entity. (See Subordinated Indenture, Section
1101.)
Events of Default. The term "event of default", when used in the
subordinated indenture with respect to any series of junior subordinated
debentures, means any of the following:
o failure to pay interest, if any, on any junior subordinated debenture
for 30 days after it is due;
o failure to pay the principal of or premium, if any, on any junior
subordinated debenture when due;
o failure to perform any other covenant in the subordinated indenture,
other than a covenant that does not relate to that series of junior
subordinated debentures, that continues for 90 days after ALLETE
receives written notice from the debenture trustee or ALLETE and the
debenture trustee receives a written notice from 33 percent of the
holders of the junior subordinated debentures of that series; however,
the debenture trustee or the debenture trustee and the holders of such
principal amount of junior subordinated debentures of this series can
agree to an extension of the 90 day period and such an agreement to
extend will be automatically deemed to occur if ALLETE is diligently
pursuing action to correct the default;
o certain events in bankruptcy, insolvency or reorganization of ALLETE;
or
38
o any other event of default included in any supplemental indenture or
officer's certificate for that series of junior subordinated
debentures.
(See Subordinated Indenture, Section 801.)
The debenture trustee may withhold notice to the holders of junior
subordinated debentures of any default except, a default in the payment of
principal, premium or interest, if it considers such withholding of notice to be
in the interests of the holders. An event of default under the subordinated
indenture for a particular series of junior subordinated debentures does not
necessarily constitute an event of default for any other series of junior
subordinated debentures issued under the subordinated indenture.
Remedies.
Acceleration of Maturity. If an event of default under the
subordinated indenture with respect to fewer than all the series of junior
subordinated debentures occurs and continues, either the debenture trustee or
the holders of at least 33 percent in principal amount of the junior
subordinated debentures of any such series may declare the entire principal
amount of all the junior subordinated debentures of such series, together with
accrued interest, to be due and payable immediately. However, if the event of
default is applicable to all outstanding junior subordinated debentures under
the subordinated indenture, only the debenture trustee or holders of at least 33
percent in principal amount of all outstanding junior subordinated debentures of
all series, voting as one class, and not the holders of any one series, may make
that declaration of acceleration.
At any time after a declaration of acceleration with respect to the junior
subordinated debentures of any series has been made and before a judgment or
decree for payment of the money due has been obtained, the event of default
under the subordinated indenture giving rise to such declaration of acceleration
will be considered waived, and the declaration and its consequences will be
considered rescinded and annulled, if:
o ALLETE has paid or deposited with the debenture trustee a sum
sufficient to pay:
- all overdue interest, if any, on all junior subordinated
debentures of the series;
- the principal of and premium, if any, on any junior subordinated
debentures of the series which have otherwise become due and
interest, if any, that is currently due;
- interest, if any, on overdue interest; or
- all amounts due to the debenture trustee under the subordinated
indenture; and
o any other event of default with respect to the junior subordinated
debentures of that series has been cured or waived as provided in the
subordinated indenture.
There is no automatic acceleration, even in the event of bankruptcy, insolvency
or reorganization of ALLETE. (See Subordinated Indenture, Section 802.)
Right to Direct Proceedings. Other than its duties in case of an event
of default under the subordinated indenture, the debenture trustee is not
obligated to exercise any of its rights or powers under the subordinated
indenture at the request, order or direction of any of the holders, unless the
holders offer the debenture trustee a reasonable indemnity. (See Subordinated
Indenture, Section 903). If they provide this reasonable indemnity, the holders
of a majority in principal amount of any series of junior subordinated
debentures will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the debenture trustee, or
exercising any power conferred upon the debenture trustee. However, if the event
of default under the subordinated indenture relates to more than one series,
only the holders of a majority in aggregate principal amount of all affected
series, voting as one class, will have the right to give this direction. The
debenture trustee is not obligated to comply with directions that conflict with
law or other provisions of the subordinated indenture. (See Subordinated
Indenture, Section 812.)
39
Limitation on Right to Institute Proceedings. No holder of junior
subordinated debentures of any series will have any right to institute any
proceeding under the subordinated indenture, or to exercise any remedy under the
subordinated indenture, unless:
o the holder has previously given to the debenture trustee written
notice of a continuing event of default under the subordinated
indenture;
o the holders of a majority in aggregate principal amount of the
outstanding junior subordinated debentures of all series in respect of
which an event of default under the subordinated indenture will have
occurred and be continuing have made a written request to the
debenture trustee, and have offered reasonable indemnity to the
debenture trustee to institute proceedings; and
o the debenture trustee has failed to institute any proceeding for 60
days after notice and has not received any direction inconsistent with
the written request of holders during such period.
(See Subordinated Indenture, Section 807.)
No Impairment to Right to Receive Payment. However, the limitations
described in the preceding paragraph, do not apply to a suit by a holder of a
junior subordinated debenture for payment of the principal of or premium, if
any, or interest on a subordinated junior debenture on or after the applicable
due date. (See Subordinated Indenture, Section 808.)
Annual Notice to Debenture Trustee. ALLETE will provide to the debenture
trustee an annual statement by an appropriate officer as to ALLETE's compliance
with all conditions and covenants under the subordinated indenture. (See
Subordinated Indenture, Section 606.)
Enforcement of Certain Rights by Holders of Preferred Trust Securities. If
there is an event of default under the subordinated indenture, then the holders
of preferred trust securities will rely on the property trustee or the debenture
trustee, acting for the benefit of the property trustee, to enforce the property
trustee's rights against ALLETE as a holder of the junior subordinated
debentures. However, a holder of preferred trust securities may enforce the
subordinated indenture directly against ALLETE to the same extent as if the
holder of preferred trust securities held a principal amount of junior
subordinated debentures equal to the aggregate liquidation preference amount of
its preferred trust securities. (See Subordinated Indenture, Section 610.)
The holders of preferred trust securities would not be able to exercise
directly against ALLETE any other rights unless the property trustee or the
debenture trustee failed to do so for 60 days. Upon that failure, the holders of
a majority of the aggregate liquidation amount of the outstanding preferred
trust securities would have the right to directly institute proceedings for
enforcement of all other rights against ALLETE to the fullest extent permitted
by law. (See Subordinated Indenture, Section 807.)
Modification and Waiver. ALLETE and the debenture trustee may enter into
one or more supplemental indentures, without the consent of any holder of junior
subordinated debentures, for any of the following purposes:
o to evidence the assumption by any permitted successor of the covenants
of ALLETE in the subordinated indenture and in the junior subordinated
debentures;
o to add additional covenants of ALLETE or to surrender any right or
power of ALLETE under the subordinated indenture;
o to add additional events of default;
o to change, eliminate or add any provision to the subordinated
indenture; provided, however, if the change, elimination or addition
will adversely affect in any material respect the interests of the
holders of junior subordinated debentures of any series, other than
any series the terms of which permit such change, elimination or
addition, such change, elimination or addition will become effective
as to such series only:
40
- when the consent of the holders of junior subordinated debentures
of such series has been obtained in accordance with the
subordinated indenture; or
- when no junior subordinated debentures of such series remain
outstanding under the subordinated indenture;
o to provide collateral security for all but not part of the junior
subordinated debentures;
o to establish the form or terms of junior subordinated debentures of
any other series as permitted by the subordinated indenture;
o to provide for the authentication and delivery of bearer securities
and coupons attached thereto;
o to evidence and provide for the acceptance of appointment of a
successor debenture trustee;
o to provide for the procedures required for use of a noncertificated
system of registration for the junior subordinated debentures of all
or any series;
o to change any place where principal, premium, if any, and interest
shall be payable, junior subordinated debentures may be surrendered
for registration of transfer or exchange and notices to ALLETE may be
served; or
o to cure any ambiguity or inconsistency or to make any other changes to
the provisions of the subordinated indenture or to add other
provisions with respect to matters and questions arising under the
subordinated indenture, provided that such other changes or additions
shall not adversely affect the interests of the holders of junior
subordinated debentures of any series in any material respect.
(See Subordinated Indenture, Section 1201.)
The holders of at least a majority in aggregate principal amount of the
junior subordinated debentures of all series then outstanding may waive
compliance by ALLETE with certain restrictive provisions of the subordinated
indenture. (See Subordinated Indenture, Section 607). The holders of not less
than a majority in principal amount of the outstanding junior subordinated
debentures of any series may waive any past default under the subordinated
indenture with respect to that series, except a default in the payment of
principal, premium, if any, or interest and certain covenants and provisions of
the subordinated indenture that cannot be modified or be amended without the
consent of the holder of each outstanding junior subordinated debenture of the
series affected. (Subordinated Indenture, Section 813.)
If the Trust Indenture Act of 1939 is amended after the date of the
subordinated indenture in such a way as to require changes to the subordinated
indenture, the subordinated indenture will be deemed to be amended so as to
conform to such amendment of the Trust Indenture Act of 1939. ALLETE and the
debenture trustee may, without the consent of any holders, enter into one or
more supplemental indentures to evidence the amendment. (See Subordinated
Indenture, Section 1201.)
The consent of the holders of a majority in aggregate principal amount of
the junior subordinated debentures of all series then outstanding is required
for all other modifications to the subordinated indenture. However, if less than
all of the series of junior subordinated debentures outstanding are directly
affected by a proposed supplemental indenture, then the consent only of the
holders of a majority in aggregate principal amount of all series that are
directly affected will be required. No such amendment or modification may:
o change the stated maturity of the principal of, or any installment of
principal of or interest on, any junior subordinated debenture, or
reduce the principal amount of any junior subordinated debenture or
its rate of interest or change the method of calculating such interest
rate or reduce any premium payable upon redemption, or change the
currency in which payments are made, or impair the right to institute
41
suit for the enforcement of any payment on or after the stated
maturity of any junior subordinated debenture, without the consent of
the holder;
o reduce the percentage in principal amount of the outstanding junior
subordinated debentures of any series whose consent is required for
any supplemental indenture or any waiver of compliance with a
provision of the subordinated indenture or any default thereunder and
its consequences, or reduce the requirements for quorum or voting,
without the consent of all the holders of the series; or
o modify certain of the provisions of the subordinated indenture
relating to supplemental indentures, waivers of certain covenants and
waivers of past defaults with respect to the junior subordinated
debentures of any series, without the consent of the holder of each
outstanding junior subordinated debenture affected by them.
(See Subordinated Indenture, Section 1202.)
A supplemental indenture that changes the subordinated indenture solely for
the benefit of one or more particular series of junior subordinated debentures,
or modifies the rights of the holders of junior subordinated debentures of one
or more series, will not affect the rights under the subordinated indenture of
the holders of the junior subordinated debentures of any other series. So long
as any preferred trust securities remain outstanding, the debenture trustee may
not consent to a supplemental indenture without the prior consent of the holders
of a majority in aggregate liquidation preference of all preferred trust
securities or, in the case of changes described in the clauses immediately
above, 100 percent in aggregate liquidation preference of all such preferred
trust securities then outstanding which would be affected. (See Subordinated
Indenture, Section 1202.)
The subordinated indenture provides that junior subordinated debentures
owned by ALLETE or anyone else required to make payments on the junior
subordinated debentures shall be disregarded and considered not to be
outstanding in determining whether the required holders have given a request or
consent. (See Subordinated Indenture, Section 101.)
ALLETE may fix in advance a record date to determine the required number of
holders entitled to give any request, demand, authorization, direction, notice,
consent, waiver or other such act of holders, but ALLETE shall have no
obligation to do so. If such record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other act of the holders
may be given before or after such record date, but only the holders of record at
the close of business on record date will be considered holders for the purposes
of determining whether holders of the required percentage of the outstanding
junior subordinated debentures have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other act
of the holders. For that purpose, the outstanding junior subordinated debentures
shall be computed as of the record date. Any request, demand, authorization,
direction, notice, consent, election, waiver or other act of a holder shall bind
every future holder of the same junior subordinated debenture and the holder of
every junior subordinated debenture issued upon the registration of transfer of
or in exchange of such junior subordinated debentures. A transferee will be
bound by acts of the debenture trustee or ALLETE taken in reliance thereon,
whether or not notation of such action is made upon such junior subordinated
debenture. (See Subordinated Indenture, Section 104.)
Resignation of the Debenture Trustee. The debenture trustee may resign at
any time by giving written notice to ALLETE or may be removed at any time by act
of the holders of a majority in principal amount of all series of junior
subordinated debentures then outstanding delivered to the debenture trustee and
ALLETE. No resignation or removal of the debenture trustee and no appointment of
a successor trustee will be effective until the acceptance of appointment by a
successor debenture trustee. So long as no event of default under the
subordinated indenture or event which, after notice or lapse of time, or both,
would become an event of default under the subordinated indenture has occurred
and is continuing and except with respect to a debenture trustee appointed by
act of the holders, if ALLETE has delivered to the debenture trustee a
resolution of its Board of Directors appointing a successor debenture trustee
and the successor has accepted such appointment in accordance with the terms of
the subordinated indenture, the debenture trustee will be deemed to have
resigned and the successor will be deemed to have been appointed as trustee in
accordance with the subordinated indenture (See Subordinated Indenture, Section
910).
42
Notices. Notices to holders of junior subordinated debentures will be given
by mail to the addresses of the holders as they may appear in the security
register. (See Subordinated Indenture, Section 106.)
Title. ALLETE, the debenture trustee, and any agent of ALLETE or the
debenture trustee, may treat the person in whose name junior subordinated
debentures are registered as the absolute owner thereof, whether or not such
junior subordinated debentures may be overdue, for the purpose of making
payments and for all other purposes irrespective of notice to the contrary. (See
Subordinated Indenture, Section 308.)
Governing Law. The subordinated indenture and the junior subordinated
debentures will be governed by, and construed in accordance with, the laws of
the State of New York. (See Subordinated Indenture, Section 112.)
Information about the Debenture Trustee. The debenture trustee under the
subordinated indenture will be The Bank of New York. In addition to acting as
debenture trustee, The Bank of New York, as described in this prospectus, also
acts as trustee under the mortgage, property trustee under the trust agreement
and the guarantee trustee under the guarantee; The Bank of New York (Delaware)
acts as the Delaware trustee under the trust agreement. The Bank of New York
acts, and may act, as trustee under various other indentures, trusts and
guarantees of ALLETE and its affiliates. ALLETE and its affiliates maintain
deposit accounts and conduct other banking transactions with the debenture
trustee in the ordinary course of their business.
PLAN OF DISTRIBUTION
ALLETE and ALLETE Capital may sell the securities:
o through underwriters or dealers;
o through agents; or
o directly to one or more purchasers.
Through Underwriters or Dealers. If ALLETE and ALLETE Capital use
underwriters in the sale, the underwriters will acquire the securities for their
own account. The underwriters may resell the securities in one or more
transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. The underwriters may
sell the securities directly or through underwriting syndicates represented by
managing underwriters. Unless otherwise stated in the prospectus supplement
relating to any of the securities, the obligations of the underwriters to
purchase the securities will be subject to certain conditions, and the
underwriters will be obligated to purchase all of the securities if they
purchase any of them. If ALLETE and ALLETE Capital use a dealer in the sale,
ALLETE and ALLETE Capital will sell the securities to the dealer as principal.
The dealer may then resell those securities at varying prices determined at the
time of resale.
Any initial public offering price and any discounts or concessions allowed
or reallowed or paid to dealers may be changed from time to time.
Through Agents. ALLETE and ALLETE Capital may designate one or more agents
to sell the securities. Unless stated in a prospectus supplement, the agents
will agree to use their best efforts to solicit purchases for the period of
their appointment.
Directly. ALLETE and ALLETE Capital may sell the securities directly to one
or more purchasers. In this case, no underwriters, dealers or agents would be
involved.
General Information. A prospectus supplement will state the name of any
underwriter, dealer or agent and the amount of any compensation, underwriting
discounts or concessions paid, allowed or reallowed to them. A prospectus
supplement will also state the proceeds to ALLETE and ALLETE Capital from the
sale of the securities, any initial public offering price and other terms of the
offering of the securities.
ALLETE and ALLETE Capital may authorize agents, underwriters or dealers to
solicit offers by certain institutions to purchase the securities from ALLETE
and ALLETE Capital at the public offering price and on terms described in the
43
related prospectus supplement pursuant to delayed delivery contracts providing
for payment and delivery on a specified date in the future.
ALLETE and ALLETE Capital may have agreements to indemnify agents,
underwriters and dealers against certain civil liabilities, including
liabilities under the Securities Act of 1933.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to ALLETE's Annual Report on Form 10-K for the year ended December 31,
2000 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
Legal conclusions and opinions specifically attributed to General Counsel
herein under "Description of First Mortgage Bonds", the statements as to matters
of law and legal conclusions under "Description of Common Stock" and in the
documents incorporated in this prospectus by reference have been reviewed by
Philip R. Halverson, Esq., Duluth, Minnesota, Vice President, General Counsel
and Secretary of ALLETE, and are set forth or incorporated by reference herein
in reliance upon his opinion given upon his authority as an expert.
As of March 1, 2001, Mr. Halverson owned 23,220 shares of common stock of
ALLETE. Mr. Halverson is acquiring additional shares of ALLETE common stock at
regular intervals as a participant in the Employee Stock Ownership Plan and
Supplemental Retirement Plan. Under the Executive Long-Term Incentive
Compensation Plan, Mr. Halverson has:
o been granted options to purchase 45,432 shares of ALLETE common stock,
of which 33,684 options are fully vested, the remainder of which shall
vest over the next two years, and all of which will expire ten years
from the date of grant;
o earned approximately 461 performance shares that have not yet been
paid out under the terms of this Plan; and
o an award opportunity for up to 7,538 additional performance shares
contingent upon the attainment of certain performance goals of ALLETE
for the period January 1, 2000 through December 31, 2001.
LEGAL OPINIONS
Certain matters of Delaware law relating to the validity of the preferred
trust securities, the enforceability of the trust agreement and the creation of
ALLETE Capital are being passed upon by Richards, Layton & Finger, P.A., special
Delaware counsel for ALLETE and ALLETE Capital. The legality of the other
securities will be passed upon for ALLETE by Mr. Halverson and by Thelen Reid &
Priest LLP, New York, New York, counsel for ALLETE, and for any underwriter,
dealer or agent by Morrison Cohen Singer & Weinstein, LLP, New York, New York.
-------------------
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. ALLETE HAS NOT
AUTHORIZED ANYONE ELSE TO PROVIDE YOU WITH DIFFERENT INFORMATION. ALLETE IS NOT
MAKING AN OFFER OF THESE SECURITIES IN ANY JURISDICTION WHERE THE OFFER IS NOT
PERMITTED. YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE
FRONT OF THOSE DOCUMENTS.
44
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the
securities being registered, other than underwriting and/or agents compensation,
are:
Filing fee for registration statement........................... $125,000
Minnesota mortgage registration tax............................. 230,000*
Legal and accounting fees....................................... 250,000*
Printing (Form S-3, prospectus, prospectus supplement, etc.).... 30,000*
Fees of the trustees............................................ 100,000*
Rating agencies' fees........................................... 30,000*
Miscellaneous................................................... 40,000*
---------
Total........................................................... $805,000*
=========
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 302A.521 of the Minnesota Business Corporation Act generally
provides for the indemnification of directors, officers or employees of a
corporation made or threatened to be made a party to a proceeding by reason of
the former or present official capacity of the person against judgments,
penalties and fines (including attorneys' fees and disbursements) where such
person, among other things, has not been indemnified by another organization,
acted in good faith, received no improper personal benefit and with respect to
any criminal proceeding, had no reasonable cause to believe his conduct was
unlawful.
Article IX of the Articles of Incorporation of ALLETE contains the
following provision:
"No director of this Corporation shall be personally liable to this
Corporation or its stockholders for monetary damages for breach of
fiduciary duty by that director as a director; provided, however, that this
Article IX shall not eliminate or limit the liability of a director: (a)
for any breach of the director's duty of loyalty to this Corporation or its
stockholders; (b) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of the law; (c) under
Minnesota Statutes Section 302A.559 or 80A.23; (d) for any transaction from
which the director derived an improper personal benefit; or (e) for any act
or omission occurring prior to the date when this Article IX becomes
effective. If, after the stockholders approve this provision, the Minnesota
Business Corporation Act, Minnesota Statutes Chapter 302A, is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of this
Corporation shall be deemed eliminated or limited to the fullest extent
permitted by the Minnesota Business Corporation Act, as so amended. No
amendment to or repeal of this Article IX shall apply to or have any affect
on the liability or alleged liability of any director of this Corporation
for or with respect to any acts or omissions of such director occurring
prior to that amendment or repeal."
Section 13 of the Bylaws of ALLETE contains the following provisions
relative to indemnification of directors and officers:
"The Corporation shall reimburse or indemnify each present and future
Director and officer of the Corporation (and his or her heirs, executors
and administrators) for or against all expenses reasonably incurred by such
Director or officer in connection with or arising out of any action, suit
or proceeding in which such Director or officer may be involved by reason
of being or having been a Director or officer of the Corporation. Such
indemnification for reasonable expenses is to be to the fullest extent
permitted by the Minnesota Business Corporation Act, Minnesota Statutes
Chapter 302A. By affirmative vote of the Board of Directors or with written
approval of the Chairman and Chief Executive Officer, such indemnification
II-1
may be extended to include agents and employees who are not Directors or
officers of the Corporation, but who would otherwise be indemnified for
acts and omissions under Chapter 302A of the Minnesota Business Corporation
Act, if such agent or employee were an officer of the Corporation."
"Reasonable expenses may include reimbursement of attorneys' fees and
disbursements, including those incurred by a person in connection with an
appearance as a witness."
"Upon written request to the Corporation and approval by the Chairman and
Chief Executive Officer, an agent or employee for whom indemnification has
been extended, or an officer or Director may receive an advance for
reasonable expenses if such agent, employee, officer or Director is made or
threatened to be made a party to a proceeding involving a matter for which
indemnification is believed to be available under Minnesota Statutes
Chapter 302A."
"The foregoing rights shall not be exclusive of other rights to which any
Director or officer may otherwise be entitled and shall be available
whether or not the Director or officer continues to be a Director or
officer at the time of incurring such expenses and liabilities."
ALLETE has insurance covering its expenditures which might arise in
connection with the lawful indemnification of its directors and officers for
their liabilities and expenses, and insuring officers and directors of ALLETE
against certain other liabilities and expenses.
ITEM 16. EXHIBITS.
Exhibit
Number Description of Exhibit
- ------ ----------------------
1(a) - Form of Underwriting Agreement for common stock, debt
securities and first mortgage bonds.
1(b) - Form of Underwriting Agreement for preferred trust securities.
*4(a)(1) - Articles of Incorporation, amended and restated as of May 27,
1998 (filed as Exhibit 4(a) to the June 3, 1998 Form 8-K, File
No. 1-3548).
*4(a)(2) - Amendment to Certificate of Assumed Name, filed with the
Minnesota Secretary of State on August 29, 2000 (filed as Exhibit
4 to the October 10, 2000 Form 8-K, File No. 1-3548).
*4(b) - Bylaws, as amended effective May 27, 1998 (filed as Exhibit
4(b), to the June 3, 1998 Form 8-K, File No. 1-3548).
*4(c)1 - Mortgage and Deed of Trust, dated as of September 1, 1945,
between Minnesota Power & Light Company (now Minnesota Power,
Inc., doing business as ALLETE) and Irving Trust Company (now The
Bank of New York) and Richard H. West (Douglas J. MacInnes,
successor), as Trustees (filed as Exhibit 7(c), File No. 2-5865).
*4(c)2 - Supplemental Indentures to Minnesota Power, Inc.'s (doing
business as ALLETE) Mortgage and Deed of Trust:
Number Dated as of Reference File Exhibit
------------- ------------------ --------------------- -------
First March 1, 1949 2-7826 7(b)
Second July 1, 1951 2-9036 7(c)
Third March 1, 1957 2-13075 2(c)
Fourth January 1, 1968 2-27794 2(c)
Fifth April 1, 1971 2-39537 2(c)
Sixth August 1, 1975 2-54116 2(c)
Seventh September 1, 1976 2-57014 2(c)
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Number Dated as of Reference File Exhibit
------------- ------------------ --------------------- -------
Eighth September 1, 1977 2-59690 2(c)
Ninth April 1, 1978 2-60866 2(c)
Tenth August 1, 1978 2-62852 2(d)2
Eleventh December 1, 1982 2-56649 4(a)3
Twelfth April 1, 1987 33-30224 4(a)3
Thirteenth March 1, 1992 33-47438 4(b)
Fourteenth June 1, 1992 33-55240 4(b)
Fifteenth July 1, 1992 33-55240 4(c)
Sixteenth July 1, 1992 33-55240 4(d)
Seventeenth February 1, 1993 33-50143 4(b)
Eighteenth July 1, 1993 33-50143 4(c)
Nineteenth February 1, 1997 1-3548 (1996 Form 10-K) 4(a)3
Twentieth November 1, 1997 1-3548 (1997 Form 10-K 4(a)3
Twenty-first October 1, 2000 333-54330 4(c)3
4(c)3 - Form of Supplemental Indenture relating to the first mortgage
bonds.
4(d)1 - Indenture (for Unsecured Debt Securities), dated as of February
1, 2001, between ALLETE (legally incorporated as Minnesota Power,
Inc.) and LaSalle Bank National Association, as Trustee.
4(d)2 - Officer's Certificate, dated February 21, 2001, establishing
the terms of the 7.80% Senior Notes due February 15, 2008 of
ALLETE (legally incorporated as Minnesota Power, Inc.).
4(d)3 - Form of Officer's Certificate relating to debt securities, with
form of debt security attached.
*4(e)1 - Mortgage and Deed of Trust, dated as of March 1, 1943, between
Superior Water, Light and Power Company and Chemical Bank & Trust
Company and Howard B. Smith, as Trustees, both succeeded by U. S.
Bank Trust N.A., as Trustee (filed as Exhibit 7(c), File No.
2-8668).
*4(e)2 - Supplemental Indentures to Superior Water, Light and Power
Company's Mortgage and Deed of Trust:
Number Dated as of Reference File Exhibit
----------- ------------------ ----------------------- -------
First March 1, 1951 2-59690 2(d)(1)
Second March 1, 1962 2-27794 2(d)1
Third July 1, 1976 2-57478 2(e)1
Fourth March 1, 1985 2-78641 4(b)
Fifth December 1, 1992 1-3548 (1992 Form 10-K) 4(b)1
Sixth March 24, 1994 1-3548 (1996 Form 10-K) 4(b)1
Seventh November 1, 1994 1-3548 (1996 Form 10-K) 4(b)2
Eighth January 1, 1997 1-3548 (1996 Form 10-K) 4(b)3
*4(f)1 - Indenture, dated as of March 1, 1993, between Southern States
Utilities, Inc. (now Florida Water Services Corporation) and
Nationsbank of Georgia, National Association (now SunTrust Bank,
Central Florida, N.A.), as Trustee (filed as Exhibit 4(d) to the
1992 Form 10-K, File No. 1-3548).
*4(f)2 - Supplemental Indentures to Florida Water Services Corporation's
Indenture:
Number Dated as of Reference File Exhibit
------ ----------- -------------- -------
First March 1, 1993 1-3548 (1996 Form 10-K) 4(c)1
Second March 31, 1997 1-3548 (March 31, 1997 Form 10-Q) 4
Third May 28, 1997 1-3548 (June 30, 1997 Form 10-Q) 4
II-3
*4(g) - Amended and Restated Trust Agreement, dated as of March 1,
1996, relating to MP&L Capital I's (now ALLETE Capital I) 8.05%
Cumulative Quarterly Income Preferred Securities, between
Minnesota Power & Light Company (now Minnesota Power, Inc., doing
business as ALLETE), 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 (filed as Exhibit 4(a)
to the March 31, 1996 Form 10-Q, File No. 1-3548), as modified by
Amendment No. 1, dated April 11, 1996 (filed as Exhibit 4(b) to
the March 31, 1996 Form 10-Q, File No. 1-3548) and First
Amendment [2000], dated August 23, 2000 (filed as Exhibit 4(f)2,
File No. 333-54330).
*4(h) - Indenture, dated as of March 1, 1996, relating to ALLETE's
8.05% Junior Subordinated Debentures, Series A, Due 2015, between
Minnesota Power & Light Company (now Minnesota Power, Inc., doing
business as ALLETE) and The Bank of New York, as Trustee (filed
as Exhibit 4(c) to the March 31, 1996 Form 10-Q, File No.
1-3548).
*4(i) - Officer's Certificate, dated March 20, 1996, establishing the
terms of the 8.05% Junior Subordinated Debentures, Series A, Due
2015 issued in connection with the 8.05% Cumulative Quarterly
Income Preferred Securities of MP&L Capital I (now ALLETE Capital
I) (filed as Exhibit 4(i) to the 1996 Form 10-K, File No.
1-3548).
*4(j) - Guarantee Agreement, dated as of March 1, 1996, relating to
MP&L Capital I's (now ALLETE Capital I) 8.05% Cumulative
Quarterly Income Preferred Securities, between Minnesota Power &
Light Company (now Minnesota Power, Inc., doing business as
ALLETE), as Guarantor, and The Bank of New York, as Trustee
(filed as Exhibit 4(d) to the March 31, 1996 Form 10-Q, File No.
1-3548).
*4(k) - Agreement as to Expenses and Liabilities, dated as of March 20,
1996, relating to MP&L Capital I's (now ALLETE Capital I) 8.05%
Cumulative Quarterly Income Preferred Securities, between
Minnesota Power & Light Company (now Minnesota Power, Inc., doing
business as ALLETE) and MP&L Capital I (now ALLETE Capital I)
(filed as Exhibit 4(e) to the March 31, 1996 Form 10-Q, File No.
1-3548).
*4(l) - Rights Agreement dated as of July 24, 1996, between Minnesota
Power & Light Company (now Minnesota Power, Inc., doing business
as ALLETE) and the Corporate Secretary of Minnesota Power & Light
Company (now Minnesota Power, Inc., doing business as ALLETE), as
Rights Agent (filed as Exhibit 4 to the August 2, 1996 Form 8-K,
File No. 1-3548).
*4(m) - Indenture (for Unsecured Debt Securities), dated as of May 15,
1996, between ADESA Corporation and The Bank of New York, as
Trustee relating to the ADESA Corporation's 7.70% Senior Notes,
Series A, Due 2006, and its 8.10% Senior Notes, Series B, Due
2010 (filed as Exhibit 4(k) to the 1996 Form 10-K, File No.
1-3548).
*4(n) - ADESA Corporation Officer's Certificate 1-D-1, dated May 30,
1996, relating to the ADESA Corporation's 7.70% Senior Notes,
Series A, Due 2006 (filed as Exhibit 4(m) to the 1996 Form 10-K,
File No. 1-3548).
*4(o) - ADESA Corporation Officer's Certificate 2-D-2, dated as of
March 30, 2000, relating to ADESA Corporation's 8.10% Senior
Notes, Series B, Due 2010 (filed as Exhibit 4(b) to the March 31,
2000 Form 10-Q, File No. 1-3548).
*4(p) - Guarantee of Minnesota Power & Light Company (now Minnesota
Power, Inc., doing business as ALLETE), dated as of May 30, 1996,
relating to the ADESA Corporation's 7.70% Senior Notes, Series A,
Due 2006 (filed as Exhibit 4(l) to the 1996 Form 10-K, File No.
1-3548).
II-4
*4(q) - Guarantee of Minnesota Power, Inc. (doing business as ALLETE),
dated as of March 30, 2000, relating to ADESA Corporation's 8.10%
Senior Notes, Series B, Due 2010 (filed as Exhibit 4(a) to the
March 31, 2000 Form 10-Q, File No. 1-3548).
4(r) - Trust Agreement and Certificate of Trust of ALLETE Capital II.
4(s) - Trust Agreement and Certificate of Trust of ALLETE Capital III.
4(t) - Form of Amended and Restated Trust Agreement.
4(u) - Form of Indenture (For Unsecured Subordinated Debt Securities
relating to Trust Securities) relating to preferred trust
securities of ALLETE (legally incorporated as Minnesota Power,
Inc.).
4(v) - Form of Officer's Certificate establishing the junior
subordinated debentures, with form of junior subordinated
debenture attached.
4(w) - Form of Guarantee of ALLETE (legally incorporated as Minnesota
Power, Inc.) relating to preferred trust securities.
4(x) - Form of Agreement as to Expenses and Liabilities relating to
the preferred trust securities is contained in Exhibit C of
Exhibit 4(t) hereto.
4(y) - Form of preferred trust securities is contained in Exhibit D of
Exhibit 4(t) hereto.
5(a) - Opinion and Consent of Philip R. Halverson, Esq., Vice
President, General Counsel and Secretary of ALLETE (legally
incorporated as Minnesota Power, Inc.).
5(b) - Opinion and Consent of Thelen Reid & Priest LLP.
5(c) - Opinion and Consent of Richards, Layton & Finger, P.A., Special
Delaware Counsel to ALLETE Capital II and ALLETE.
5(d) - Opinion and Consent of Richards, Layton & Finger, P.A., Special
Delaware Counsel to ALLETE Capital III and ALLETE.
*12(a) - Computation of Ratios of Earnings to Fixed Charges and
Supplemental Ratios of Earnings to Fixed Charges (filed as
Exhibit 12 to the 2000 Form 10-K, File No. 1-3548).
12(b) - Computation of Ratios of Earnings to Fixed Charges and
Preferred Dividends and Supplemental Ratios of Earnings to Fixed
Charges and Preferred Dividends.
23(a) - Independent Auditors' Consent of PricewaterhouseCoopers LLP.
23(b) - Consent of Philip R. Halverson, Esq. (included in opinion,
attached hereto as Exhibit 5(a)).
23(c) - Consent of Thelen Reid & Priest LLP (included in opinion,
attached hereto as Exhibit 5(b)).
23(d) - Consent of Richards, Layton & Finger, P.A. (included in
opinions, attached hereto as Exhibits 5(c) and 5(d)).
24 - Powers of Attorney (included on the signature page of this
registration statement).
25(a) - Statement of Eligibility on Form T-1 of The Bank of New York
with respect to the Mortgage of Minnesota Power, Inc. (doing
business as ALLETE).
II-5
25(b) - Statement of Eligibility on Form T-2 of Douglas J. MacInnes
with respect to the Mortgage of Minnesota Power, Inc. (doing
business as ALLETE).
25(c) - Statement of Eligibility on Form T-1 of LaSalle Bank National
Association with respect to the Indenture (For Unsecured Debt
Securities) of ALLETE (legally incorporated as Minnesota Power,
Inc.).
25(d) - Statement of Eligibility on Form T-1 of The Bank of New York
with respect to the Indenture (For Unsecured Junior Subordinated
Debentures relating to Preferred Trust Securities) of ALLETE
(legally incorporated as Minnesota Power, Inc.).
25(e) - Statement of Eligibility on Form T-1 of The Bank of New York
with respect to the Trust Agreement of ALLETE Capital II.
25(f) - Statement of Eligibility on Form T-1 of The Bank of New York
with respect to the Guarantee Agreement relating to the Preferred
Trust Securities of ALLETE Capital II.
25(g) - Statement of Eligibility on Form T-1 of The Bank of New York
with respect to the Trust Agreement of ALLETE Capital III.
25(h) - Statement of Eligibility on Form T-1 of The Bank of New York
with respect to the Guarantee Agreement relating to the Preferred
Trust Securities of ALLETE Capital III.
* Incorporated herein by reference as indicated.
ITEM 17. UNDERTAKINGS.
a. The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the SEC pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement,
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the SEC by the registrants pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II-6
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of ALLETE's Annual Report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
b. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrants pursuant to the provisions described
under Item 15 above, or otherwise, the registrants have been advised that
in the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the registrants of expenses incurred or paid by
a director, officer or controlling person of any registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the registrants will, unless in the opinion of their
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification
by them is against public policy as expressed in the Securities Act of 1933
and will be governed by the final adjudication of such issue.
II-7
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes any agent for
service named in this registration statement to execute in the name of each such
person, and to file with the SEC, any and all amendments, including
post-effective amendments, to this registration statement, and appoints any such
agent for service as attorney-in-fact to sign in each such person's behalf
individually and in each capacity stated below and file any such amendments to
this registration statement and ALLETE hereby also appoints each such agent for
service as its attorney-in-fact with like authority to sign and file any such
amendments in its name and behalf.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, ALLETE
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Duluth, State of Minnesota, on March 14, 2001.
ALLETE
(LEGALLY INCORPORATED AS MINNESOTA POWER, INC.)
By /s/ Edwin L. Russell
---------------------------------------
Edwin L. Russell
Chairman, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Edwin L. Russell Chairman, President, Chief March 14, 2001
----------------------- Executive Officer and Director
Edwin L. Russell (Principal Executive Officer)
/s/ David G. Gartzke Senior Vice President--Finance March 14, 2001
----------------------- and Chief Financial Officer
David G. Gartzke (Principal Financial Officer)
/s/ Mark A. Schober Controller March 14, 2001
----------------------- (Principal Accounting Officer)
Mark A. Schober
/s/ Kathleen A. Brekken Director March 14, 2001
-----------------------
Kathleen A. Brekken
/s/ Merrill K. Cragun Director March 14, 2001
-----------------------
Merrill K. Cragun
/s/ Dennis E. Evans Director March 14, 2001
-----------------------
Dennis E. Evans
/s/ Glenda E. Hood Director March 14, 2001
-----------------------
Glenda E. Hood
/s/ Peter J. Johnson Director March 14, 2001
-----------------------
Peter J. Johnson
/s/ George L. Mayer Director March 14, 2001
-----------------------
George L. Mayer
/s/ Jack I. Rajala Director March 14, 2001
-----------------------
Jack I. Rajala
/s/ Arend J. Sandbulte Director March 14, 2001
-----------------------
Arend J. Sandbulte
/s/ Nick Smith Director March 14, 2001
-----------------------
Nick Smith
/s/ Bruce W. Stender Director March 14, 2001
-----------------------
Bruce W. Stender
/s/ Donald C. Wegmiller Director March 14, 2001
-----------------------
Donald C. Wegmiller
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, ALLETE Capital
II certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on March 14, 2001
ALLETE CAPITAL II
By /s/ Robert J. Reger, Jr.
--------------------------------
Robert J. Reger, Jr.
Authorized Representative
Pursuant to the requirements of the Securities Act of 1933, ALLETE Capital
III certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on March 14, 2001.
ALLETE CAPITAL III
By /s/ Robert J. Reger, Jr.
--------------------------------
Robert J. Reger, Jr.
Authorized Representative
EXHIBIT INDEX
1(a) Form of Underwriting Agreement for common stock, debt securities and
first mortgage bonds.
1(b) Form of Underwriting Agreement for preferred trust securities.
4(c)3 Form of Supplemental Indenture relating to the first mortgage bonds.
4(d)1 Indenture (for Unsecured Debt Securities), dated as of February 1,
2001, between ALLETE (legally incorporated as Minnesota Power, Inc.)
and LaSalle Bank National Association, as Trustee.
4(d)2 Officer's Certificate, dated February 21, 2001, establishing the terms
of the 7.80% Senior Notes due February 15, 2008 of ALLETE (legally
incorporated as Minnesota Power, Inc.).
4(d)3 Form of Officer's Certificate relating to debt securities, with form
of debt security attached.
4(r) Trust Agreement and Certificate of Trust of ALLETE Capital II.
4(s) Trust Agreement and Certificate of Trust of ALLETE Capital III.
4(t) Form of Amended and Restated Trust Agreement.
4(u) Form of Indenture (For Unsecured Subordinated Debt Securities relating
to Trust Securities) relating to preferred trust securities of ALLETE
(legally incorporated as Minnesota Power, Inc.).
4(v) Form of Officer's Certificate establishing the junior subordinated
debentures, with form of junior subordinated debenture attached.
4(w) Form of Guarantee of ALLETE (legally incorporated as Minnesota Power,
Inc.) relating to preferred trust securities.
4(x) Form of Agreement as to Expenses and Liabilities relating to the
preferred trust securities is contained in Exhibit C of Exhibit 4(t)
hereto.
4(y) Form of preferred trust securities is contained in Exhibit D of
Exhibit 4(t) hereto.
5(a) Opinion and Consent of Philip R. Halverson, Esq., Vice President,
General Counsel and Secretary of ALLETE (legally incorporated as
Minnesota Power, Inc.).
5(b) Opinion and Consent of Thelen Reid & Priest LLP.
5(c) Opinion and Consent of Richards, Layton & Finger, P.A., Special
Delaware Counsel to ALLETE Capital II and ALLETE.
5(d) Opinion and Consent of Richards, Layton & Finger, P.A., Special
Delaware Counsel to ALLETE Capital III and ALLETE.
12(b) Computation of Ratios of Earnings to Fixed Charges and Preferred
Dividends and Supplemental Ratios of Earnings to Fixed Charges and
Preferred Dividends.
23(a) Independent Auditors' Consent of PricewaterhouseCoopers LLP.
23(b) Consent of Philip R. Halverson, Esq. (included in opinion, attached
hereto as Exhibit 5(a)).
23(c) Consent of Thelen Reid & Priest LLP (included in opinion, attached
hereto as Exhibit 5(b)).
23(d) Consent of Richards, Layton & Finger, P.A. (included in opinions,
attached hereto as Exhibits 5(c) and 5(d)).
24 Powers of Attorney (included on the signature page of this
registration statement).
25(a) Statement of Eligibility on Form T-1 of The Bank of New York with
respect to the Mortgage of Minnesota Power, Inc. (doing business as
ALLETE).
25(b) Statement of Eligibility on Form T-2 of Douglas J. MacInnes with
respect to the Mortgage of Minnesota Power, Inc. (doing business as
ALLETE).
25(c) Statement of Eligibility on Form T-1 of LaSalle Bank National
Association with respect to the Indenture (For Unsecured Debt
Securities) of ALLETE (legally incorporated as Minnesota Power, Inc.).
25(d) Statement of Eligibility on Form T-1 of The Bank of New York with
respect to the Indenture (For Unsecured Subordinated Debt Securities
relating to Trust Securities) of ALLETE (legally incorporated as
Minnesota Power, Inc.).
25(e) Statement of Eligibility on Form T-1 of The Bank of New York with
respect to the Trust Agreement of ALLETE Capital II.
25(f) Statement of Eligibility on Form T-1 of The Bank of New York with
respect to the Guarantee Agreement relating to the preferred trust
securities of ALLETE Capital II.
25(g) Statement of Eligibility on Form T-1 of The Bank of New York with
respect to the Trust Agreement of ALLETE Capital III.
25(h) Statement of Eligibility on Form T-1 of The Bank of New York with
respect to the Guarantee Agreement relating to the preferred trust
securities of ALLETE Capital III.
EXHIBIT 1(A)
ALLETE
(LEGALLY INCORPORATED AS MINNESOTA POWER, INC.)
UNDERWRITING AGREEMENT
[ , 200 ]
---------- -
New York, New York
[Insert Name(s)
and Address(es)
of Underwriters]
Dear Sirs:
ALLETE (legally incorporated as Minnesota Power, Inc.), a corporation
incorporated under the laws of Minnesota (the "Company"), proposes to issue and
sell to you (the "Underwriters"), [1 its First Mortgage Bonds of the series
designation, with the term and in the principal amount specified in Schedule I
hereto (the "Bonds" or the "Securities")] [2 its debt securities of the series
designation, with the term and in the principal amount specified in Schedule I
hereto (the "Debt Securities" or the "Securities")] [3 an aggregate of
-------
shares of the Company's Common Stock, without par value (the "Common Stock"),
and the preferred shares purchase rights attached thereto (the "Rights")
(collectively referred to as the "Shares" or "Securities")]. [1 The Bonds will
be issued under the Company's Mortgage and Deed of Trust, dated as of September
1, 1945, to Irving Trust Company (now The Bank of New York) and Richard D. West
(Douglas J. MacInnes, successor), as Trustees, as supplemented and as it will be
further supplemented by a [ ] Supplemental Indenture, to be dated as of
--------
[ , 200 ], in substantially the form heretofore delivered to the
------------ -
Underwriter (the "[ ] Supplemental Indenture"). The Mortgage and Deed
----------
of Trust, as to be supplemented, are hereinafter referred to as the "Mortgage."]
[2 The Debt Securities are to be issued pursuant to the provisions of an
Indenture (For Unsecured Debt Securities), dated as of February 1, 2001, between
the Company and LaSalle Bank National Association, as trustee (the "Indenture
Trustee"). The Indenture (For Unsecured Debt Securities), together with any
amendments or supplements thereto, are hereinafter referred to as the
"Indenture." The Debt Securities shall have the rights, privileges, powers,
restrictions, limitations and qualifications set forth in the Company's
officer's certificate to the Indenture Trustee dated , 200 and the
------- -- -
form of the Securities annexed thereto.]
1. Sale and Purchase. The Company agrees to issue and sell to each of
-----------------
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, the aggregate principal amount of
Securities set forth opposite the name of such Underwriter in Schedule I at the
purchase price or prices set forth in Schedule II hereto (the "Purchase Price")
[1,2 plus accrued interest, if any, from , 200 to the date of payment
---------- -
and delivery of the Securities]. The obligations of the Company and the
- ------------------------
1 For use in connection with First Mortgage Bond.
2 For use in connection with Debt Securities.
3 For use in connection with Common Stock.
Underwriters under this Agreement are undertaken on the basis of the
representations and are subject to the conditions in this Agreement.
2. Payment and Delivery. Delivery of the Securities to the several
--------------------
Underwriters, against payment of the Purchase Price to the Company by wire
transfer in Federal funds shall be made at the offices of Thelen Reid & Priest
LLP, 40 West 57th Street, New York, New York, at 10:00 a.m., New York City time,
on [ , 200 ], or at such time, date and place as may be agreed upon
------------ -
by the Company and the Underwriters (the "Closing Date"). [1,2 The Securities
shall be delivered to The Depository Trust Company or to [1 The Bank of New
York] [2 LaSalle Bank National Association], as custodian for The Depository
Trust Company, in definitive fully-registered global form without coupons
registered in the name of Cede & Co. for the account specified by the
Underwriters not later than the close of business on the business day preceding
the Closing Date] [to the Underwriters in definitive fully-registered form
without coupons, registered in such names and in such denominations as the
Underwriters request at least three full business days before the Closing Date.
If no such request is received by said time, the Company shall have the right to
deliver the Securities registered in the name of the Underwriters in such
denominations as the Company may determine.] Certificates for the Securities
shall be made available to the Underwriters at the offices of Thelen Reid &
Priest LLP for checking purposes not later than 2:00 p.m., New York City time,
on the business day immediately preceding the Closing Date.
3. Registration Statement and Prospectus; Public Offering. The
------------------------------------------------------
Company, ALLETE Capital II and ALLETE Capital III have filed with the Securities
and Exchange Commission (the "Commission") a registration statement on Form S-3
on March , 2001 (Registration Nos. 333- and 333- -01) for the
-- ------ ------
registration under the Securities Act of 1933, as amended (the "Securities
Act"), and the published rules and regulations adopted by the Commission under
the Securities Act (the "Rules and Regulations"), of $500,000,000 aggregate
amount of (i) the Company's Common Stock, without par value, and related
preferred shares purchase rights, (ii) one or more series of the Company's first
mortgage bonds, (iii) the Company's unsecured debt securities, (iv) the
preferred trust securities (the "Trust Securities") of ALLETE Capital II and
ALLETE Capital III and (v) an equal principal amount of the Company's junior
subordinated debentures and guarantees and other obligations of the Company in
respect of such Trust Securities. Such registration statement ("Registration
Statement No. 333- ") was declared effective by the Commission on ,
----- ------ --
2001. No stop order suspending the effectiveness of such registration statement
is in effect and no proceedings for such purpose are pending or threatened
before or threatened by the Commission. The Company has also filed with the
Commission a registration statement on Form S-3 on May 8, 1998 (Registration No.
333-52161) for the registration under the Securities Act and the Rules and
Regulations of 3,000,000 shares of the Company's Common Stock, without par
value, and related preferred shares purchase rights, of which all but 1,814,000
shares (as adjusted for the Company Common Stock split on ) of Common
-----------
Stock and related rights have been previously issued. Such registration
statement ("Registration Statement No. 333-52161") was declared effective by the
Commission on May 18, 1998. In addition, the Company has filed with the
Commission a registration statement on Form S-3 on July 21, 2000 (Registration
No. 333-41882) for the registration under the Securities Act and the Rules and
Regulations of $400,000,000 aggregate principal amount of the Company's first
mortgage bonds and unsecured debt securities, of which all but $25,000,000
2
aggregate principal amount of first mortgage bonds and unsecured debt securities
have been previously issued. Such registration statement ("Registration
Statement No. 333-41882") was declared effective by the Commission on August 7,
2000. References herein to the term "Registration Statement" as of any date
shall be deemed to refer to each of Registration Statement No. 333-41882,
Registration Statement No. 333-52161 and Registration No. 333- , each as
-------
amended and supplemented to such date, including financial statements and all
exhibits, and all documents incorporated by reference therein as of such date
pursuant to Item 12 of Form S-3 ("Incorporated Documents") and filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); provided that
if the Company files a registration statement with respect to securities
registered under Registration Statement No. 333-41882, Registration Statement
No. 333-52161 and Registration Statement No. 333- with the Commission
-----
pursuant to Rule 462(b) of the Securities Act (the "Rule 462(b) Registration
Statement"), then after such filing, all references to "Registration Statement"
shall be deemed to included the Rule 462(b) Registration Statement. References
herein to the term "Prospectus" as of any given date shall be deemed to refer to
the combined prospectus, including any preliminary prospectus, relating to the
securities registered under Registration Statement No. 333- and the
------
securities registered and remaining unissued under Registration Statement No.
333-41882 and Registration Statement No. 333-52161 that forms a part of
Registration Statement No. 333- , as amended or supplemented as of such date
-----
(other than by amendments or supplements relating to securities other than the
Securities), including all Incorporated Documents as of such date and including
any prospectus supplement relating to the Securities. The term "preliminary
prospectus" means any preliminary prospectus (as referred to in Rule 430 of the
Rules and Regulations) included at any time as a part of such registration
statement. Copies of such registration statement and any amendments thereto and
of each preliminary prospectus included as part of such registration statement
have been delivered to the Underwriters. References to "Effective Date" shall be
deemed to refer to the later of the time and date Registration Statement No.
333- , any post-effective amendment to Registration Statement No. 333-
------ ----
or any Rule 462(b) Registration Statement was declared effective or the time and
date of the filing thereafter of the Company's most recent Annual Report on Form
10-K if such filing is made prior to the Closing Date, as hereinafter defined.
For purposes of this Agreement, any Incorporated Document filed with the
Commission on or after the date of this Agreement and prior to the Closing Date
shall be deemed an amendment or supplement to the Registration Statement and the
Prospectus and any reference herein to "amend," "amendment" or "supplement" with
respect to the Registration Statement, any preliminary prospectus or the
Prospectus includes the filing of any document under the Exchange Act after the
Effective Date or the date of any preliminary prospectus or the Prospectus, as
the case may be, and incorporated in such document by reference if such filing
is made prior to the Closing Date.
The Company understands that the Underwriters propose to make a public
offering of the Securities, as described in the Prospectus, as soon after the
date of this Agreement as the Underwriters deem advisable. [1,2 The Company is
further advised by the Underwriters that the Securities are to be offered to the
public initially at % of their principal amount (the "Public Offering
----
Price") plus accrued interest, if any, from - , 200 to the date of
---------- -- -
payment and delivery and to certain dealers selected by the Underwriters at a
price that represents a concession not in excess of % of their principal
----
amount under the Public Offering Price, and that any Underwriter may allow, and
such dealers may reallow, a concession, not in excess of % of their
----
principal amount, to any Underwriter or to certain other dealers.] The Company
3
confirms that the Underwriters and dealers have been authorized to distribute
each preliminary prospectus, if any, and are authorized to distribute the
Prospectus and any amendments or supplements to it.
4. Representations of the Company. The Company represents to the
------------------------------
Underwriters as follows:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act.
(b) On the Effective Date, and at the Closing Date, the Registration
Statement and, at the date of the filing of the Prospectus pursuant to Rule 424
under the Rules and Regulations, and at the Closing Date, the Prospectus, as
each may be amended or supplemented, [1 and the Mortgage] [2 and the Indenture]
fully complied and will fully comply in all material respects with the
applicable provisions of the Securities Act, the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the Rules and Regulations, or pursuant
to the Rules and Regulations will be deemed to comply therewith. On the
Effective Date and the Closing Date the Registration Statement, as it may be
amended or supplemented, did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. On the date of filing
of the Prospectus and the Closing Date, the Prospectus, as it may be amended or
supplemented, will not contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. On the
date of filing of the Prospectus and the Closing Date, the Incorporated
Documents will fully comply in all material respects with the applicable
provisions of the Exchange Act and the rules and regulations of the Commission
under the Exchange Act (the "Exchange Act Rules and Regulations"), and, when
read together with the Prospectus, as it may be amended or supplemented, will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. The foregoing representations do not apply to (1) statements or
omissions made in reliance on and in conformity with information relating to the
Underwriters furnished in writing to the Company by the Underwriters expressly
for use in the Registration Statement or the Prospectus, as they may be amended
or supplemented, or (2) the portion of the Registration Statement constituting
the respective Statements of Eligibility, or amendments thereto, under the Trust
Indenture Act except statements or omissions made in reliance on and in
conformity with information furnished in writing to the trustees by or on behalf
of the Company for use in such Statements of Eligibility or any amendments
thereto. For purposes of this Agreement, [indicate topics addressed and location
in Prospectus] constitute the only information relating to the Underwriters
furnished in writing to the Company expressly for inclusion in any preliminary
prospectus, any preliminary prospectus supplement, the Registration Statement or
the Prospectus. Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act and the Rules and Regulations or
pursuant to the Rules and Regulations will be deemed to comply therewith.
(c) The Company and its Material Subsidiaries (as defined below) have
good and sufficient title to all material real property and good and sufficient
title to all material personal property owned by them, in each case free and
clear of all liens, encumbrances and defects except such as are described in the
4
Prospectus or such as do not materially interfere with the use made and proposed
to be made of such property by the Company and its Material Subsidiaries; and
any material real property and buildings held under lease by the Company and its
Material Subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not materially interfere
with the use made and proposed to be made of such property and buildings by the
Company or its Material Subsidiaries, as the case may be. As used in this
Agreement, the term "Material Subsidiary" means a significant subsidiary under
Rule 1-02(w) of Regulation S-X of the Commission).
(d) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of Minnesota, with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Prospectus, and there is no jurisdiction wherein the
character of the properties owned or held under lease by the Company or the
nature of the business transacted by the Company would expose the Company to any
material liability or disability by reason of the failure to qualify the Company
as a foreign corporation in any such jurisdiction; and each Material Subsidiary
of the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, and there is no jurisdiction wherein the character of the
properties owned or held under lease by any Material Subsidiary or the nature of
the business transacted by such Material Subsidiary would expose such Material
Subsidiary to any material liability or disability by reason of the failure to
qualify such Material Subsidiary as a foreign corporation in any such
jurisdiction. The Company and each Material Subsidiary hold all material
licenses, certificates and permits from governmental authorities necessary for
the conduct of their respective businesses.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, as they may be amended or
supplemented, there has not been any material adverse change, or any development
involving, so far as the Company can now reasonably foresee, a prospective
material adverse change in the business, properties, financial condition or
results of operations of the Company and its subsidiaries taken as a whole,
whether or not in the ordinary course of business, and since such dates there
has not been any transaction entered into by the Company or its Material
Subsidiaries, other than transactions in the ordinary course of business and
transactions set forth in or contemplated by the Registration Statement and the
Prospectus, as they may be amended or supplemented, which is material to the
Company and its subsidiaries, taken as a whole. The Company and its Material
Subsidiaries have no contingent obligation which is not disclosed in the
Registration Statement and the Prospectus, as they may be amended or
supplemented, which is material to the Company and its subsidiaries, taken as a
whole.
(f) Any Incorporated Documents filed and incorporated by reference
prior to the Closing Date will, when they are filed with the Commission, conform
in all material respects with the requirements of the Exchange Act and the
Exchange Act Rules and Regulations.
(g) The Company has full corporate power and authority to enter into
this Agreement. This Agreement has been duly authorized, executed and delivered
by the Company.
(h) The execution, delivery and performance by the Company of this
Agreement, [1 the Mortgage] [2 the Indenture], and the issue and sale of the
Securities and the compliance by the Company with all of the provisions of this
5
Agreement, [1 the Mortgage] [2 the Indenture], the Securities and the
consummation of the transactions contemplated hereby and thereby will not
conflict with, result in the creation or imposition of any lien, charge or
encumbrance upon any assets of the Company or its Material Subsidiaries pursuant
to the terms or provisions of, or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, or give any other party a
right to terminate any of its obligations under, or result in the acceleration
of any obligation under, the articles of incorporation or bylaws of the Company
or any of its Material Subsidiaries, any material contract or other agreement to
which the Company or any of its Material Subsidiaries is a party or by which the
Company or any of its Material Subsidiaries or any of its or their properties
are bound or affected, or violate or conflict with any material judgment,
ruling, decree, order, statute, rule or regulation of any court or other
governmental agency or body applicable to the business or properties of the
Company or any of its Material Subsidiaries which creation, imposition, breach,
violation, default, right of termination, acceleration, violation or conflict is
material to the Company and its subsidiaries, taken as a whole.
(i) The statements set forth in the Prospectus under the captions
[1 "Description of First Mortgage Bonds" and "Certain Terms of the Offered
Bonds."] [2 "Description of Debt Securities" and "Certain Terms of the Offered
Debt Securities"] [3 "Description of Common Stock"] constitute a summary of the
securities, documents and instruments therein described, are accurate and fairly
present the information contained therein in all material respects.
(j) Neither the Company nor any of its Material Subsidiaries is in
violation of its respective articles of incorporation or bylaws or is in default
in the performance or observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party, which
default is material to the Company and its subsidiaries taken as a whole.
(k) [1,2 The [1 Mortgage] [2 Indenture] has been duly qualified under
the Trust Indenture Act and has been duly authorized by the Company and when
executed and delivered by the Company and the [1 Trustees] [2 Indenture Trustee]
will be enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or other laws
affecting creditors' rights generally and by general principles of equity
(whether such enforceability is considered in a proceeding in equity or in law)
and (ii) rights of acceleration, if any, and the availability of equitable
remedies may be limited by equitable principles of general applicability.]
(l) [1,2 The Securities have been duly authorized and, when executed
and authenticated in accordance with the provisions of the [1 Mortgage]
[2 Indenture] and delivered to and paid for by the Underwriters in accordance
with the terms of this Agreement, will be entitled to the benefits of the
[1 Mortgage] [2 Indenture] and will be valid and binding obligations of the
Company, enforceable in accordance with their terms except as (i) the
enforceability thereof may be limited bankruptcy, insolvency, or other laws
affecting creditors' rights generally and by general principles of equity
(whether such enforceability is considered in a proceeding in equity or in law)
and (ii) rights of acceleration, if any, and the availability of equitable
remedies may be limited by equitable principles of general applicability.]
6
(m) The description of the Securities in the Registration Statement
and the Prospectus, as they may be amended or supplemented, is, and at the
Closing Date will be, complete and accurate in all respects. [3 Except for
shares issuable under the Company's Automatic Dividend Reinvestment and Stock
Purchase Plan, the Minnesota Power and Affiliated Companies Employee Stock
Purchase Plan or any compensation plan disclosed in the Company's Proxy
Statement with respect to the Company's Annual Meeting of Shareholders
---
(collectively referred to as the "Stock Purchase and Compensation Plans"), the
Company does not have outstanding, and at the Closing Date will not have
outstanding, any options to purchase, or any rights or warrants to subscribe
for, or any securities or obligations convertible into, or any contracts or
commitments to issue or sell, any shares of Common Stock, any shares of capital
stock of any subsidiary or any such warrants, convertible securities or
obligations.]
(n) [3 The outstanding shares of Common Stock have been, and the
Shares to be issued and sold by the Company upon such issuance will be, duly
authorized, validly issued, fully paid and nonassessable and will not be subject
to any preemptive or similar right; and the Rights will be validly issued.]
(o) The Company has filed a Petition for Certification of Capital
Structure with the Minnesota Public Utilities Commission ("Minnesota
Commission") pursuant to the Minnesota Public Utilities Act with respect to the
issuance and sale by the Company of the Securities. The Minnesota Commission has
entered an authorizing order approving the capital structure including the
issuance and sale of the Securities and such authorizing order is still in full
force and effect. Apart from such authorizing order of the Minnesota Commission,
no consent, approval, authorization or order of, or any filing or declaration
with, any court or governmental agency or body is required for the consummation
by the Company of the transactions on its part herein contemplated, except such
as have been obtained under the Securities Act or the Rules and Regulations.
(p) The Company is not, and after giving effect to the offering and
sale of the Securities will not be, an "investment company," as such term is
defined in the Investment Company Act of 1940, as amended.
(q) Except as set forth in the Registration Statement and the
Prospectus, there are no legal or governmental proceedings pending to which the
Company or any of its Material Subsidiaries is a party or to which any property
of the Company or any of its Material Subsidiaries is subject, which, if
determined adversely to the Company or any of its Material Subsidiaries would in
the Company's reasonable judgment individually or in the aggregate have a
material adverse effect on the business, properties, financial condition or
results of operations of the Company and its subsidiaries taken as a whole; and,
to the best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
5. Agreements of the Company. (a) The Company will not file any
-------------------------
amendment or supplement to the Registration Statement or the Prospectus unless a
copy has first been submitted to the Underwriters a reasonable time before its
filing and the Underwriters have not reasonably objected to it in writing within
a reasonable time after receiving the copy.
7
(b) The Company will promptly advise the Underwriters (i) of the
initiation or threatening of any proceedings for, or receipt by the Company of
any notice with respect to, the suspension of the qualification of the
Securities for sale in any jurisdiction or the issuance of any order by the
Commission suspending the effectiveness of the Registration Statement and (ii)
of receipt by the Company or any representative or attorney of the Company of
any other communication from the Commission relating to the Company, the
Registration Statement, any preliminary prospectus or the Prospectus or to the
transactions contemplated by this Agreement. The Company will make every
reasonable effort to prevent the issuance of an order suspending the
effectiveness of the Registration Statement and, if any such order is issued, to
obtain its lifting as soon as possible.
(c) The Company will furnish to [name of lead Underwriter] without
charge one signed copy, and to each of the other Underwriters one copy of the
signed copy certified by an officer of the Company, of the Registration
Statement and any amendment thereto (including all exhibits filed with any such
document) and as many conformed copies of the Registration Statement as the
Underwriters may reasonably request.
(d) During such period as a prospectus is required by law to be
delivered by the Underwriters or a dealer, the Company will promptly deliver,
without charge, to the Underwriters and to dealers, at such office or offices as
the Underwriters may designate, as many copies of the Prospectus as the
Underwriters may reasonably request, and, during such period after the Effective
Date if any event occurs as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements in it, in the light of
the circumstances existing when the Prospectus is delivered to a purchaser, not
misleading in any material respect, or if during such period it is necessary to
amend or supplement the Prospectus to comply with the Securities Act or the
Rules and Regulations, the Company will promptly prepare, submit to the
Underwriters, file, subject to Section 5(a) hereof, with the Commission and
deliver, without charge, to the Underwriters and to dealers (whose names and
addresses the Underwriters will furnish to the Company) to whom Securities may
have been sold by the Underwriters, and to other dealers on request, amendments
or supplements to the Prospectus so that the statements in the Prospectus, as so
amended or supplemented, will not, in the light of the circumstances existing
when the Prospectus is delivered to a purchaser, be misleading in any material
respect and will comply with the Securities Act and the Rules and Regulations.
Delivery by the Underwriters of any such amendments or supplements to the
Prospectus will not constitute a waiver of any of the conditions in Section 6
hereof.
(e) The Company will make generally available to the Company's
security holders, as soon as practicable but in no event later than the last day
of the 15th full calendar month following the calendar quarter in which the
Effective Date falls, an earnings statement satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
(f) The Company will take such actions as the Underwriters reasonably
designate in order to qualify the Securities for offer and sale under the
securities or "blue sky" laws of such jurisdictions as the Underwriters
reasonably designate; provided that the Company shall not be required to
register or qualify as a foreign corporation or dealer in securities, to file
any consents to service of process under the laws of any jurisdiction or to meet
any other requirement deemed by the Company to be unduly burdensome.
8
(g) The Company will pay, or reimburse if paid by the Underwriters,
whether or not the transactions contemplated by this Agreement are consummated
or this Agreement is terminated, all costs and expenses incident to the
performance of the obligations of the Company under this Agreement, including
costs and expenses relating to (i) the preparation, printing and filing of the
Registration Statement and exhibits thereto, each preliminary prospectus, the
Prospectus, all amendments and supplements to the Registration Statement and the
Prospectus, [1 the printing or other reproduction of the [ ] Supplemental
--------
Indenture, which [ ] Supplemental Indenture is to be promptly filed and
---------
recorded after execution and delivery of it to the Trustees, in the counties
where the mortgaged property of the Company is located,] (ii) the authorization
and issuance of the Securities and the preparation and delivery of the forms of
the Securities sold by the Company to the Underwriters, (iii) the registration
or qualification of the Securities for offer and sale under the securities or
"blue sky" laws of the jurisdictions referred to in Section 5(f) and the
determination of the legality of the Securities for investment, including the
reasonable fees and disbursements of counsel for the Underwriters (not to exceed
$ ) in that connection, and the preparation and printing of preliminary and
-----
supplemental "blue sky" memoranda and legal investment memoranda, (iv) the
furnishing (including costs of shipping and mailing) to the Underwriters and to
dealers of copies of the Registration Statement, each preliminary prospectus,
the Prospectus, and all amendments or supplements to the Prospectus, and of the
other documents required by this Section to be so furnished, (v) any fees
charged by securities rating services for rating the Securities, (vi) all
transfer taxes, if any, with respect to the sale and delivery of the Securities
by the Company to the Underwriters, (vii) the fees and expenses of the Trustees,
and Paying Agent or Registrar under the [1 ] Supplemental Indenture]
---------
[2 ] and the reasonable fees and disbursements of counsel for any
-------------
Trustee in connection with the [1[ ] Supplemental Indenture]
---------
[2 ] or the Securities, (viii) the filing fees and expenses, if any
-------------
incurred with respect to any filing with the National Association of Securities
Dealers, Inc., made in connection with the offering of the Securities, and (ix)
any expenses incurred by the Company in connection with a "road show"
presentation to potential investors.
(h) [1,2 During the period beginning on the date hereof and continuing
to and including the Closing Date, the Company will not offer, sell, or
otherwise dispose of any debt securities of the Company or warrants to purchase
debt securities of the Company substantially similar to the Securities (other
than (i) the Securities and (ii) commercial paper issued in the ordinary course
of business), without the prior written consent of [name of lead Underwriter].]
(i) [3 The Company will not at any time, directly or indirectly, take
any action intended, or which might reasonably be expected, to cause or result
in, or which will constitute, stabilization of the price of the shares of Common
Shares to facilitate the sale or resale of any of the Shares.]
(j) [3 Unless otherwise agreed to in writing by the Company and the
Underwriters, the Company will not for a period of 30 days after the
commencement of the public offering of the Shares sell or otherwise dispose of
any shares of Common Stock, rights to acquire shares of Common Stock or
securities convertible into shares of Common Stock other than to the
Underwriters pursuant to this Agreement and other than in connection with the
Stock Purchase and Compensation Plans.]
9
6. Conditions of the Underwriters' Obligation. The obligation of the
------------------------------------------
Underwriters to purchase the Securities is subject to the accuracy, on the date
of this Agreement and on the Closing Date, of the representations of the Company
in this Agreement, to the accuracy and completeness of all statements made by
the Company or any of its officers in any certificate delivered to the
Underwriters or their counsel pursuant to this Agreement, to performance by the
Company of its obligations under this Agreement and to each of the following
additional conditions:
(a) All filings required by Rule 424 of the Rules and Regulations must
have been made.
(b) No stop order suspending the effectiveness of the Registration
Statement may be in effect and no proceedings for such purpose may be pending
before or threatened by the Commission, and any requests for additional
information on the part of the Commission (to be included in the Registration
Statement or the Prospectus or otherwise) must have been complied with.
(c) Since the respective dates as of which such information is given
in the Registration Statement and the Prospectus, as they may be amended or
supplemented, (i) there must not have been any material change in the capital
stock or long-term debt of the Company and its subsidiaries, taken as a whole,
(ii) there must not have been any material adverse change, or any development
involving, so far as the Company can now reasonably foresee, a prospective
material adverse change in the business, properties, financial condition, or
results of operations of the Company and its subsidiaries, taken as a whole,
whether or not in the ordinary course of business and, since such dates there
shall not have been any material transaction entered into by the Company other
than transactions set forth in or contemplated by the Prospectus, and (iii)
there must not have occurred any event that makes untrue or incorrect in any
material respect any statement or information contained in the Prospectus or
that is not reflected in the Prospectus but should be reflected in it in order
to make the statements or information in it not misleading in any material
respect; and in the judgment of the Underwriters, any such development referred
to in clause (i), (ii) or (iii) makes it impracticable to consummate the sale
and delivery of the Securities by the Underwriters at the initial public
offering price.
(d) The Underwriters must receive on the Closing Date a certificate,
dated such date, of the chief executive officer, the chief operating officer or
the chief financial officer of the Company certifying that (i) the signer has
carefully examined the Registration Statement and the Prospectus (including any
Incorporated Documents) and this Agreement, (ii) the representations of the
Company in this Agreement are accurate on and as of the date of the certificate,
(iii) since the most recent dates as of which information is given in the
Registration Statement or the Prospectus, as amended or supplemented, there has
not been any material adverse change, or any development involving, so far as
the Company can now reasonably foresee, a prospective material adverse change in
the business, properties, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole, whether or not in the ordinary
course of business, and since such dates there has not been any transaction
entered into by the Company or its Material Subsidiaries, other than
transactions in the ordinary course of business and transactions set forth in or
contemplated in the Prospectus, as amended or supplemented, which is material to
the Company and its subsidiaries, taken as a whole, (iv) to the knowledge of
such officer, no order suspending the effectiveness of the Registration
10
Statement or prohibiting the sale of the Securities has been issued and no
proceedings for such purpose are pending before or threatened by the Commission,
(v) there has been no document required to be filed under the Exchange Act and
the Exchange Act Rules and Regulations that upon such filing would be deemed to
be an Incorporated Document that has not been so filed, and (vi) the Company has
performed all agreements that this Agreement requires it to perform by the
Closing Date.
(e) Since the date of this Agreement, there must not have been any
lowering of the ratings of the Company's Securities by Moody's Investors
Service, Inc. ("Moody's") or Standard & Poor's Rating Services ("S&P") or any
notice from Moody's or S&P of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change in the ratings accorded the Company's Securities.
(f) The Underwriters must receive on the Closing Date opinions dated
the Closing Date substantially in the form of Annexes A and B to this Agreement
from Thelen Reid & Priest LLP, counsel to the Company, and Philip R. Halverson,
Esq., general counsel of the Company, respectively.
(g) The Underwriters must receive on the Closing Date from Morrison
Cohen Singer & Weinstein, LLP, their counsel, an opinion dated the Closing Date
with respect to the Company, the Securities, the Registration Statement, the
Prospectus, [1 the [ ] Supplemental Indenture] [2 the ],
-------- ---------------
this Agreement and the form and sufficiency of all proceedings taken in
connection with the sale and delivery of the Securities. Such opinion and
proceedings shall be satisfactory in all respects to the Underwriters. The
Company must have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to render such opinion.
(h) The Underwriters must receive on the Closing Date a signed letter,
dated the Closing Date, from PricewaterhouseCoopers LLP to the effect that (i)
they are independent public accountants with respect to the Company within the
meaning of the Securities Act and the applicable published rules and regulations
thereunder adopted by the Commission, (ii) in their opinion, the consolidated
financial statements and financial statement schedule audited by them and
incorporated by reference in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Securities Act and
the Exchange Act and the published rules and regulations thereunder adopted by
the Commission with respect to registration statements on Form S-3, (iii) on the
basis of a reading of the unaudited consolidated financial statements of the
Company incorporated by reference in the Prospectus, if any, the latest
available unaudited consolidated financial data of the Company and its
subsidiaries since the close of the Company's most recent audited fiscal year,
the minutes and consents of the Board of Directors since the end of the most
recent audited fiscal year, and inquiries of officials of the Company who have
responsibility for financial and accounting matters (it being understood that
the foregoing procedures do not constitute an audit made in accordance with
generally accepted auditing standards and would not necessarily reveal matters
of significance with respect to the comments made in such letter, and,
accordingly, that PricewaterhouseCoopers LLP makes no representations as to the
sufficiency of such procedures for the Underwriters' purposes), nothing has come
to their attention which caused them to believe that (1) the unaudited
consolidated financial statements of the Company incorporated by reference in
the Prospectus, if any, (a) do not comply as to form in all material respects
with the applicable accounting requirements of the Exchange Act as it applies to
Form 10-Q and the published rules and regulations thereunder or (b) are not
11
stated on a basis substantially consistent with that of the audited consolidated
financial statements of the Company incorporated by reference in the Prospectus,
(2) at the date of the latest available unaudited financial data read by them
and at a specified date not more than five days prior to the Closing Date there
was any change in the capital stock, increase in long-term debt or decreases in
consolidated net current assets (working capital) or stockholders' equity of the
Company and its subsidiaries, in each case as compared with amounts shown in the
most recent consolidated financial information incorporated by reference in the
Prospectus, except in all instances for changes, increases or decreases which
the Prospectus, as amended or supplemented, discloses have occurred or may
occur, or which are disclosed in such letter, or (3) for the period from the
date of the most recent audited consolidated financial statements to the date of
the latest available unaudited financial data read by them and for the period
from the date of the latest available unaudited financial data read by them to a
specified date not more than five days prior to the Closing Date, there were any
decreases, as compared with the corresponding period in the preceding year, in
consolidated operating revenues or in the total or per-share amounts of net
income, except in all instances for changes, increases or decreases which the
Prospectus, as amended or supplemented, discloses have occurred or may occur, or
which are disclosed in such letter, and they have carried out certain procedures
and made certain findings, as specified in such letter, with respect to certain
amounts included or incorporated by reference in the Registration Statement and
the Prospectus and such other items as the Underwriters may reasonably request.
(i) [3 Prior to the Closing Date, the Shares must be duly authorized
for listing by the New York Stock Exchange upon official notice of issuance.]
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement will comply with this Agreement only if they are in
form and scope satisfactory to counsel for the Underwriters.
7. Indemnification. (a) The Company shall indemnify and hold harmless
---------------
each Underwriter, the directors, officers, employees and agents of each
Underwriter, and each person, if any, who controls any Underwriter, within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
against any and all losses, claims, damages and liabilities, joint or several
(including, without limitation, as and when incurred, any investigative, legal
or other expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted), to which
they, or any of them, may become subject under the Securities Act, the Exchange
Act or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities arise out of
or are based on any untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus, the Registration Statement or the
Prospectus or any amendment or supplement to the Registration Statement or the
Prospectus (including any Incorporated Document), or the omission or alleged
omission to state in it a material fact required to be stated in it or necessary
to make the statements in it not misleading; provided, however, that the Company
will not be liable to the extent that such loss, claim, damage, or liability
arises from the sale of the Securities in the public offering to any person by
the Underwriters and (i) is based on an untrue statement or omission or alleged
untrue statement or omission made in reliance on and in conformity with
information furnished in writing to the Company by the Underwriters expressly
for use in the Registration Statement or the Prospectus, as set forth in the
penultimate sentence of Section 4(b) hereof, or (ii) results solely from one or
12
more untrue statements of material facts contained in, or the omission of one or
more material facts from, any preliminary prospectus or preliminary prospectus
supplement or the Prospectus, which untrue statement or omission was corrected
in the Prospectus (as then amended or supplemented) if the Underwriters sold the
Securities to the person alleging such loss, claim, liability, expense or damage
without sending or giving, at or prior to the written confirmation of such sale,
a copy of the corrected Prospectus (as then amended or supplemented), if the
Company had previously furnished copies thereof to the Underwriters within a
reasonable amount of time prior to such sale or confirmation, and the
Underwriters failed to send or give the corrected Prospectus (as then amended or
supplemented), if required by law to have so sent or given it and if sent or
given would have been a defense with respect to such untrue statement or
omission against the person asserting such loss, claim, liability, expense or
damage. This indemnity agreement will be in addition to any liability that the
Company might otherwise have.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers and directors, and each person, if any,
who controls any thereof within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from the Company to the Underwriters, but only insofar as losses, claims,
damages or liabilities arise out of or are based on any untrue statement or
omission or alleged untrue statement or omission made in or in reliance on and
in conformity with information furnished in writing to the Company by the
Underwriters expressly for use in the Registration Statement or the Prospectus ,
as set forth in the penultimate sentence of Section 4(b). This indemnity
agreement will be in addition to any liability that the Underwriters might
otherwise have.
(c) Any party that proposes to assert the right to be indemnified
under this Section 7 will, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim is to be made against
an indemnifying party or parties under this Section 7, notify in writing each
such indemnifying party of the commencement of such action, enclosing a copy of
all papers served, but the omission so to notify such indemnifying party will
not relieve it from any liability that it may have to any indemnified party
otherwise than under this Section 7. If any such action is brought against any
indemnified party and it notifies the indemnifying party of its commencement,
the indemnifying party will be entitled to participate in, and, to the extent
that it elects by delivering written notice to the indemnified party promptly
after receiving notice of the commencement of the action from the indemnified
party, jointly with any other indemnifying party similarly notified, to assume
the defense of the action, with counsel satisfactory to the indemnified party,
and, after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified party will
have the right to employ its counsel in any such action, but the fees and
expenses of such counsel will be at the expense of such indemnified party unless
(i) the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (ii) the indemnified party has reasonably
concluded (based on advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party,
(iii) a conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
13
which case the indemnifying party shall not have the right to direct the defense
of such action on behalf of the indemnified party), or (iv) the indemnifying
party has not in fact employed counsel to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the fees and expenses of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate counsel admitted to
practice in such jurisdiction at any one time for all such indemnified party or
parties. Such counsel shall be designated by [Name of Lead Underwriter] in the
case of parties indemnified pursuant to Section 7(a) hereof and by the Company
in the case of parties indemnified pursuant to Section 7(b) hereof. All such
fees, disbursements and other charges will be reimbursed by the indemnifying
party promptly as they are incurred. An indemnifying party will not be liable
for any settlement of any action or claim effected without its written consent
(which consent will not be unreasonably withheld). No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any indemnified party.
8. Contribution. In order to provide for just and equitable
------------
contribution in the circumstances in which the indemnification provided for
under the foregoing provisions of Section 7 is applicable in accordance with its
terms but for any reason is held to be unavailable from the Company or the
Underwriters, the Company and the Underwriters shall contribute to the amount
paid or payable as a result of losses, claims, liabilities, expenses and damages
(including any investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted) to which the Company and the Underwriters may
be subject in such proportion as shall be appropriate to reflect (i) the
relative benefits received by the Company on the one hand and the Underwriters
on the other, (ii) the relative fault of the Company, on the one hand, and the
Underwriters, on the other, with respect to the statements or omissions which
resulted in such loss, claim, liability, expense or damage, or action in respect
thereof, as well as (iii) any other relevant equitable considerations with
respect to such offering. Such relative benefits shall be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters as set forth in the Prospectus. Such relative fault shall be
determined by reference, among other things, to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section 8 were to be determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, liability, expense or
damage, or action in respect thereof, referred to above in this Section 8 shall
14
be deemed to include, for purpose of this Section 8, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8, the Underwriters shall not be required to contribute any amount in
excess of the underwriting discounts and commissions received by them, except
that insofar as losses, claims, damages and liabilities arise from the sale of
the Securities in the public offering to any person by the Underwriters and are
based on any untrue statement or omission or alleged untrue statement or
omission made in or in reliance on and in conformity with information furnished
in writing to the Company by the Underwriters expressly for use in the
Registration Statement, any preliminary prospectus or preliminary prospectus
supplement or the Prospectus, as set forth in the penultimate sentence of
Section 4(b), the Underwriters shall not be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by them and distributed to the public were offered to the public
exceeds the amount of any damages which the Underwriters have otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, any person who controls a
party to this Agreement within the meaning of the Act will have the same rights
to contribution as that party, and each officer of the Company who signed the
Registration Statement will have the same rights to contribution as the Company,
subject in each case to the provisions hereof. Any party entitled to
contribution, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made
under this Section 8, will notify any such party or parties from whom
contribution may be sought, but the omission so to notify will not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have under this Section 8. No party will be liable for
contribution with respect to any action or claim settled without its written
consent (which consent will not be unreasonably withheld).
9. Termination. The obligations of the several Underwriters under this
-----------
Agreement may be terminated by [Name of Lead Underwriter] [with the consent of
the Underwriters which have agreed to purchase in the aggregate 50% or more of
aggregate principal amount of the Securities] at any time on or before the
Closing Date by notice to the Company, without liability on the part of the
Underwriters to the Company, if subsequent to the date of this Agreement and
prior to the delivery and payment for the Securities (a) trading in the equity
securities of the Company is suspended by the Commission or by the New York
Stock Exchange ("NYSE"), (b) trading in securities generally on the NYSE shall
have been suspended or limited or minimum or maximum prices shall have been
generally established on such exchange, or additional material governmental
restrictions, not in force on the date of this Agreement, shall have been
imposed upon trading in securities generally by the NYSE or by order of the
Commission or any other governmental authority, (c) a general banking moratorium
has been established by Federal or New York authorities, (d) any outbreak or
material escalation of hostilities or other calamity or crisis shall have
occurred, the effect of any of which is such as to make it, in the reasonable
judgment of the Underwriters impracticable or inadvisable to proceed with the
public offering of the Securities on the terms and in the manner contemplated by
the Prospectus, or (e) if any of the conditions specified in Section 6 have not
been fulfilled when and as required by this Agreement.
15
If this Agreement is terminated pursuant to any of its provisions,
except as otherwise provided, the Company will not be under any liability to the
Underwriters except that if this Agreement is terminated by the Underwriters
because of any failure or refusal on the part of the Company to comply with the
terms of this Agreement or because any of the conditions in Section 6 are not
satisfied, the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by them in connection with the proposed purchase and sale of
the Securities.
The Company shall not in any event be liable to the Underwriters for
damages on account of loss of anticipated profits.
10. Substitution of Underwriters. If one or more of the Underwriters
----------------------------
shall, for any reason permitted hereunder, cancel its obligation to purchase
hereunder and to take up and pay for the Securities to be purchased by such one
or more Underwriters, the Company shall immediately notify the remaining
Underwriters, and the remaining Underwriters shall have the right, within 24
hours of receipt of such notice, either to take up and pay for (in such
proportion as may be agreed upon among them) or to substitute another
underwriter or underwriters, satisfactory to the Company, to take up and pay for
the [1,2 principal amount] [3 number] of Securities that such one or more
Underwriters did not purchase. If one or more Underwriters shall, for any reason
other than a reason permitted hereunder, fail to take up and pay for the
Securities to be purchased by such one or more Underwriters, the Company shall
immediately notify the remaining Underwriters, and the remaining Underwriters
shall be obligated to take up and pay for (in addition to the respective
[1,2 principal amount] [3 number] of Securities set forth opposite their
respective names in Schedule II) the [principal amount] [number] of Securities
that such defaulting Underwriter or Underwriters failed to take up and pay for,
up to a number thereof equal to, in the case of each such remaining Underwriter,
percent ( %) of the [1,2 principal amount] [3 number] of Securities
- -------- ---
set forth opposite the name of such remaining Underwriter in Schedule II, and
such remaining Underwriters shall have the right, within 24 hours of receipt of
such notice, either to take up and pay for (in such proportion as may be agreed
upon among them), or to substitute another underwriter or underwriters,
satisfactory to the Company, to take up and pay for, the remaining [1,2
principal amount] [3 number] of the Securities that the defaulting Underwriter
or Underwriters agreed but failed to purchase. If any unpurchased Securities
still remain, then the Company or the Underwriters shall be entitled to an
additional period of 24 hours within which to procure another party or parties,
who are members of the NASD (or if not members of the NASD, who are not eligible
for membership in the NASD and who agree (i) to make no sales within the United
States, its territories or its possessions or to persons who are citizens
thereof or residents therein and (ii) in making sales to comply with the NASD's
Conduct Rules) and satisfactory to the Company, to purchase or agree to purchase
such unpurchased Securities on the terms herein set forth. In any such case,
either the remaining Underwriters or the Company shall have the right to
postpone the Closing Date for a period not to exceed seven full business days
from the date agreed upon in accordance with this Section 10, in order that the
necessary changes in the Registration Statement and Prospectus and any other
documents and arrangements may be effected. If the Underwriters and the Company
shall fail to procure a satisfactory party or parties as above provided to
purchase or agree to purchase such unpurchased Securities, then the Company may
either (i) require the remaining Underwriters to purchase the [1,2 principal
amount] [3 number] of Securities that they are obligated to purchase hereunder
(but no more than such [1,2 principal amount] [3 number] of Securities) or (ii)
16
terminate this Agreement by giving prompt notice to the Underwriters. In the
event that neither the remaining Underwriters nor the Company has arranged for
the purchase of such unpurchased Securities by another party or parties as above
provided and the Company has not elected to require the remaining Underwriters
to purchase the [1,2 principal amount] [3 number] of Securities that they are
obligated to purchase hereunder, then this Agreement shall terminate without any
liability on the part of any such Underwriter or the Company for the purchase or
sale of any Securities under this Agreement. Any action taken pursuant to this
Section 10 shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriters under this Agreement.
11. Effectiveness. This Agreement shall become effective upon the
-------------
execution and delivery hereof by the parties hereto.
12. Miscellaneous. The reimbursement, indemnification and contribution
-------------
agreements in Sections 5, 7, 8 and 9 and the representations and agreements of
the Company and the Underwriters in this Agreement will remain in full force and
effect regardless of any termination of this Agreement, any investigation made
by or on behalf of the Underwriters, the Company, or any controlling person and
delivery and acceptance of and payment for the Securities.
This Agreement is for the benefit of the Underwriters, the Company,
and their successors and assigns, and, to the extent expressed in this
Agreement, for the benefit of persons controlling the Underwriters or the
Company, directors and officers of the Company and directors, officers,
employees and agents of the Underwriters, and their respective successors and
assigns, and no other persons, partnership, association or corporation will
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" does not include any purchaser of Securities from the
Underwriters merely because of such purchase.
All notices and communications under this Agreement will be in writing
and mailed or delivered, by messenger, facsimile transmission or otherwise, to
the Underwriters at [ ]
---------------------------------------------------------
Attention: [ ] and to the Company, at 30 West Superior
--------------------
Street, Duluth, Minnesota 55802, Attention: Chief Financial Officer. Any such
notice or communication shall take effect upon receipt thereof.
This Agreement may be signed in multiple counterparts that taken as a
whole constitute one agreement.
If any section, paragraph or provision of this Agreement is for any
reason determined to be invalid or unenforceable, such determination shall not
affect the validity or enforceability of any other section, paragraph or
provision hereof.
17
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
Please confirm that the foregoing correctly sets forth the agreement
between us.
Very truly yours,
ALLETE
(legally incorporated as MINNESOTA POWER, INC.)
By:
--------------------------------------
Title:
Confirmed:
[Name(s) of Underwriter(s)]
By:
--------------------------------------
Title:
18
SCHEDULE I
Securities:
Designation:
Principal Amount:
Indenture dated as of:
Date of Maturity:
Interest Rate:
Purchase Price:
Public Offering Price:
19
ANNEX A
FORM OF OPINION OF THELEN REID & PRIEST LLP
[ , 200 ]
---------- -
[Insert Name(s)
and Address(es)
of Underwriter(s)]
Dear Sirs:
Reference is made to the sale by ALLETE (legally incorporated as
Minnesota Power, Inc.) ("Company") of [1[$ ] principal amount of its
--------
First Mortgage Bonds, % Series Due [ , 20 ] (the "Bonds" or the
-- ------------ --
"Securities")] [2[$ ] principal amount of its % Debt Securities,
--------- ---
Series Due [ , 20 ] (the "Debt Securities" or the "Securities")]
------------ --
[6an aggregate of share of Common Stock, without par value (the
---------
"Common Stock") and the preferred share purchase rights attached thereto (the
"Rights") (the Common Stock and the Rights being collectively referred to as the
"Shares" or the "Securities")]. [1 The Bonds will be issued under the Company's
Mortgage and Deed of Trust, dated as of September 1, 1945, to Irving Trust
Company (now The Bank of New York) and Richard H. West (Douglas J. MacInnes,
successor), as Trustees, as amended and supplemented by all indentures
supplemental thereto, including a [ ] Supplemental Indenture thereto
------------
dated as of [ , 200 ] (said Mortgage and Deed of Trust, as so
------------ -
supplemented, being hereinafter called the "Mortgage")]. [2 The Debt Securities
will be issued under the Company's Indenture (For Unsecured Debt Securities,
dated as of February 1, 2001 to LaSalle Bank National Association, as Trustee,
as supplemented by an Officer's Certificate, dated , 200 , creating
-------- -- -
the series in which the Debt Securities are to be issued]. We advise you that we
have acted as counsel to the Company in connection with such issuance and sale
and have participated in the preparation of (a) [1 the Mortgage] [2 the
Indenture]; (b) Registration Statement No. 333-[ ], as filed by the Company
------
with the Securities and Exchange Commission for the registration of the
Company's First Mortgage Bonds and Debt Securities under the Securities Act of
1933, as amended (the "Securities Act"), and for the qualification under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") of the
Mortgage and of the Indenture (such registration statement, as amended at the
Effective Date (as such term is defined in the Agreement referred to below),
being hereinafter referred to as the "Registration Statement"); (c) the
prospectus constituting part of the Registration Statement, as amended and
supplemented by a prospectus supplement relating to the Securities
("Prospectus"); and (d) the Underwriting Agreement dated [ , 200 ]
------------- -
between the Company and you ("Agreement"). In addition, we have reviewed the
- ------------------------
1 For use in connection with First Mortgage Bond.
2 For use in connection with Debt Securities.
3 For use in connection with Common Stock.
petition filed by the Company with the Minnesota Public Utilities Commission
seeking authorization to issue the Securities, and the order issued by said
Commission in response to said petition.
We have reviewed all corporate proceedings taken by the Company in
respect of [1,2 the authorization of the [1 Mortgage] [2 Indenture] and] the
issuance and sale of the Securities thereunder. [1,2 We have examined the
Securities and have relied upon a certificate of [1 The Bank of New York]
[2 LaSalle Bank National Association] as [1 Corporate Trustee] [2 Trustee] under
the [1 Mortgage] [2 Indenture], as to the authentication of the Securities.]
Upon the basis of our familiarity with these transactions, we are of
the opinion that:
1. [1,2 The [1 Mortgage] [2 Indenture] has been duly and validly
authorized by all necessary corporate action, has been duly and validly executed
and delivered, and is a valid and binding obligation of the Company enforceable
in accordance with its terms, except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or other laws affecting enforcement of
[1 mortgagees' and other] creditors' rights generally and by general principles
of equity (whether such enforceability is considered in a proceeding in equity
or in law) and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.]
2. [1,2 The Securities have been duly and validly authorized by all
necessary corporate action and, when executed and authenticated in accordance
with the provisions of the [1 Mortgage] [2 Indenture] and delivered and paid for
by the Underwriters in accordance with the terms of the Agreement, will be
entitled to the benefits of the [1 Mortgage] [2 Indenture] and will be valid and
binding obligations of the Company enforceable in accordance with their terms,
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or other laws affecting enforcement of [1 mortgagees' and other]
creditors' rights generally and by general principles of equity (whether such
enforceability is considered in a proceeding in equity or in law) and (ii)
rights of acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability.]
3. [3 The Shares when paid for by the Underwriters in accordance with
the terms of the Agreement will be, duly authorized, validly issued, fully paid
and non-assessable and will not be subject to any preemptive or similar right;
and the Rights will be validly issued.]
4. An authorizing order has been issued by the Minnesota Public
Utilities Commission certifying the Company's capital structure and authorizing
the issuance and sale of the Securities, and to the best of our knowledge, said
order is still in full force and effect; and no further approval, authorization,
consent or order of any public board or body (other than in connection or in
compliance with the provisions of the securities or "blue sky" laws of any
jurisdiction) is legally required for the authorization of the issuance and sale
of the Securities.
5. The Registration Statement and the Prospectus (except as to the
financial statements and other financial or statistical data contained therein,
upon which we do not pass) comply as to form in all material respects with the
requirements of the Securities Act and the applicable instructions, rules and
regulations of the Securities and Exchange Commission thereunder; the
A-2
Registration Statement has become, and at the date hereof the Registration
Statement is, effective under the Securities Act, and to the best of our
knowledge no proceedings for a stop order with respect thereto are pending or
threatened under Section 8 of the Securities Act.
6. [1,2 The [1 Mortgage] [2 Indenture] is duly qualified under the
Trust Indenture Act.]
7. The statements set forth in the Prospectus under the captions
[1 "Description of New Bonds" and "Certain Terms of the Offered Bonds."]
[2 "Description of the Debt Securities" and "Certain Terms of the Offered Debt
Securities"] [3 "Description of Common Stock"]constitute a summary of the
securities, documents and instruments therein described, are accurate and fairly
present the information contained therein in all material respects.
8. The Agreement has been duly executed and delivered by the Company.
9. The Company is not an "investment company," as such term is defined
in the Investment Company Act of 1940, as amended.
In passing upon the forms of the Registration Statement and the
Prospectus, we necessarily assume the correctness and completeness of the
statements made or included therein by the Company and take no responsibility
therefor, except insofar as such statements relate to us and as set forth in the
Prospectus under the heading "Legal Opinions" and in paragraph 7 above. In the
course of the preparation by the Company of the Registration Statement and the
Prospectus, we have had conferences with certain of its officers and
representatives, with other counsel for the Company and with
PricewaterhouseCoopers LLP, the independent certified public accountants who
examined certain of the Company's financial statements incorporated by reference
in the Registration Statement. Our examination of the Registration Statement and
the Prospectus, and our discussions in the above-mentioned conferences did not
disclose to us any information which gives us reason to believe that, at the
Effective Date, the Registration Statement contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus at the time it was filed electronically with the Commission pursuant
to Rule 424, and the Prospectus, as amended or supplemented at the date hereof,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading. We do
not express any opinion or belief as to the financial statements or other
financial or statistical data contained in the Registration Statement or in the
Prospectus.
A-3
We are members of the New York Bar and do not hold ourselves out as
experts on the laws of Minnesota. As to all matters of Minnesota law (and as to
the incorporation of the Company, titles to property [,] [and] franchises [1and
the lien of the Mortgage], upon which we do not pass), we have relied with your
consent upon the opinion of even date herewith addressed to you by Philip R.
Halverson, Esq., Vice President, General Counsel and Secretary of the Company.
Very truly yours,
THELEN REID & PRIEST LLP
A-4
ANNEX B
FORM OF OPINION OF
PHILIP R. HALVERSON, ESQ.
VICE PRESIDENT, GENERAL COUNSEL
AND SECRETARY OF
ALLETE.
[ , 200 ]
-------- -
[Insert Name(s)
and Address(es)
of Underwriter(s)]
Dear Sirs:
Reference is made to the sale by ALLETE (legally incorporated as
Minnesota Power, Inc.) ("Company") of [1[$ ] principal amount of its
-----------
First Mortgage Bonds, [ %] Series Due [ , 20 ] (the "Bonds" or the
-- ----------- --
"Securities")] [2[$ ] principal amount of its % Debt Securities,
----------- --
Series Due [ , 20 ] (the "Debt Securities" or the "Securities")]
------------ --
[3 an aggregate of shares of its Common Stock, without par value (the
---------
"Common Stock'), and the preferred share purchase rights attached thereto (the
"Rights") (the Common Stock and the Rights being collectively referred to as the
"Shares" or the "Securities")]. [1 The Bonds will be issued under the Company's
Mortgage and Deed of Trust, dated as of September 1, 1945, to Irving Trust
Company (now The Bank of New York) and Richard H. West (Douglas J. MacInnes,
successor), as Trustees, as amended and supplemented by all indentures
supplemental thereto, including a [ ] Supplemental Indenture thereto
------------
dated as of [ , 200 ] (said Mortgage and Deed of Trust, as so
----------- -
supplemented, being hereinafter called the "Mortgage")]. [2 The Debt Securities
will be issued under the Company's Indenture (For Unsecured Debt Securities,
dated as of February 1, 2001 to LaSalle Bank National Association, as Trustee,
as supplemented by an Officer's Certificate, dated , 200 , creating
-------- -- -
the series in which the Debt Securities are to be issued]. I advise you that I
am General Counsel to the Company and have acted in that capacity in connection
with such issuance and sale and have participated in the preparation of (a) the
[1 Mortgage] [2 Indenture]; (b) Registration Statement No. 333-[ ], as
-------
filed by the Company with the Securities and Exchange Commission for the
registration of the Company's First Mortgage Bonds and Debt Securities under the
Securities Act of 1933, as amended (the "Securities Act"), and for the
qualification under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), of the Mortgage and of the Indenture (such registration
statement, as amended at the Effective Date (as such term is defined in the
- ------------------------
1 For use in connection with First Mortgage Bonds.
2 For use in connection with Debt Securities.
3 For use in connection with Common Stock.
Agreement referred to below), being hereinafter collectively referred to as the
"Registration Statement"); (c) the prospectus constituting part of the
Registration Statement, as amended and supplemented by a prospectus supplement
relating to the Securities ("Prospectus"); (d) the Underwriting Agreement dated
[ , 200 ] between the Company and you ("Agreement"); and (e) the
--------- -
petition filed by the Company with the Minnesota Public Utilities Commission
seeking authorization to issue the Securities. In addition, I have reviewed the
order issued by said Commission in response to said petition.
I have reviewed all corporate proceedings taken by the Company in
respect of [1,2 the authorization of the [1 Mortgage] [2 Indenture] and] the
issuance and sale of the Securities thereunder. [1,2 I have examined the
Securities and have relied upon a certificate of [1 The Bank of New York]
[2 LaSalle Bank National Association] as [1 Corporate Trustee] [2 Trustee] under
the [1 Mortgage] [2 Indenture], as to the authentication of the Securities.]
Upon the basis of my familiarity with these transactions and with the
Company's properties and affairs generally, I am of the opinion that:
1. [1,2 The [1 Mortgage] [2 Indenture] has been duly and validly
authorized by all necessary corporate action, has been duly and validly executed
and delivered, and is a valid and binding obligation of the Company enforceable
in accordance with its terms, except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or other laws affecting enforcement of
[1 mortgagees' and] other creditors' rights generally and by general principles
of equity (whether such enforceability is considered in a proceeding in equity
or in law) and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.]
2. [1,2 The Securities have been duly and validly authorized by all
necessary corporate action and, when executed and authenticated in accordance
with the provisions of the [1 Mortgage] [2 Indenture] and delivered to and paid
for by the Underwriters in accordance with the terms of the Agreement, will be
entitled to the benefits of the [1 Mortgage] [2 Indenture] and will be valid and
binding obligations of the Company enforceable in accordance with their terms,
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or other laws affecting enforcement of [1 mortgagees' and] other
creditors' rights generally and by general principles of equity (whether such
enforceability is considered in a proceeding in equity or in law) and (ii)
rights of acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability.]
3. [3 The Shares, when paid for by the Underwriters in accordance with
the terms of the Agreement, will be duly authorized, validly issued, fully paid
and non-assessable and will not be subject to any preemptive or similar right;
and the Rights will be validly issued. Except for shares issuable under the
Company's Automatic Dividend Reinvestment and Stock Purchase Plan, the Minnesota
Power and Affiliated Companies Employee Stock Purchase Plan or any compensation
plan disclosed in the Company's Proxy Statement with respect to the Company's
Annual Meeting of Shareholders, to the best of my knowledge, there is no
- ---
commitment or arrangement to issue, and there are no outstanding options,
warrants or other rights calling for the issuance of, any share of capital stock
of the Company or any subsidiary to any person or any security or other
B-2
instrument that by its terms is convertible into, exercisable for or
exchangeable for capital stock of the Company.]
4. An authorizing order has been issued by the Minnesota Public
Utilities Commission certifying the Company's capital structure and authorizing
the issuance and sale of the Securities, and to the best of my knowledge, said
order is still in full force and effect; and no further approval, authorization,
consent or order of any public board or body (other than in connection or in
compliance with the provisions of the securities or "blue sky" laws of any
jurisdiction) is legally required for the authorization of the issuance and sale
of the Securities.
5. The Registration Statement and the Prospectus (except as to the
financial statements and other financial or statistical data contained therein,
upon which I do not pass) comply as to form in all material respects with the
requirements of the Securities Act and the applicable instructions, rules and
regulations of the Securities and Exchange Commission thereunder; the
Registration Statement has become, and at the date hereof the Registration
Statement is, effective under the Securities Act and to the best of my knowledge
no proceedings for a stop order with respect thereto are pending or threatened
under Section 8 of the Securities Act.
6. [1,2 The [1 Mortgage] [2 Indenture] is duly qualified under the
Trust Indenture Act.]
7. The statements set forth in the Prospectus under the captions
[1 "Description of New Bonds" and "Certain Terms of the Offered Bonds."]
[2 "Description of the Debt Securities" and "Certain Terms of the Offered Debt
Securities"] [3 "Description of Common Stock"] constitute a summary of the
securities, documents and instruments therein described, are accurate and fairly
present the information contained therein in all material respects.
8. [1,2 To the best of my knowledge, except as disclosed in the
Registration Statement or Prospectus, no person or entity has the right to
require the registration under the Act of shares of Common Stock or other
securities of the Company by reason of the filing or effectiveness of the
Registration Statement.]
9. The Company has full power and authority to enter into the
Agreement. The Agreement has been duly executed and delivered by the Company.
10. The Company is a validly organized and existing corporation under
the laws of the State of Minnesota and is duly qualified to do business, and is
doing business, in that State.
11. The Company is a public utility corporation duly authorized by its
Articles of Incorporation to conduct the business which it is now conducting as
set forth in the Prospectus and the Company holds valid and subsisting
franchises, licenses and permits authorizing it to carry on the utility business
in which it is engaged.
12. Each Material Subsidiary (as defined in the Agreement) of the
Company is a validly organized and existing corporation under the laws of the
State of its incorporation and is duly qualified to do business, and is doing
business, in such State and in each other State in which the failure to qualify
B-3
as a foreign corporation would be material to the Company and its subsidiaries,
taken as a whole.
13. [1 The Company has good and sufficient title to all the properties
specifically described in the granting clauses of the Mortgage as owned by it,
subject only to excepted encumbrances as defined in the Mortgage and other
defects which the Company has the right to cure by condemnation proceedings if
the property is necessary for utility purposes, and which, in my opinion, do not
impair the use of such properties by the Company, except properties retired and
properties previously released from the lien of the Mortgage, and except that
the Company's practice is not to require examination of title, and I have not
examined title, to land upon which the Company has merely a transmission or
distribution line right of way or easement, reservoir lands, lands or rights
held for flowage, flooding or seepage purposes, riparian rights, or other
properties certified by the Company as costing $25,000 or less, titles to which
lands, rights or properties could, if necessary for utility purposes, be
perfected or obtained by condemnation proceedings. The description of all the
properties so specifically described in the Mortgage is adequate to constitute a
lien thereon, and said properties constitute all of the electric generating
plants and other materially important physical properties and substantially all
the other properties of the Company (other than those expressly excepted). The
Mortgage constitutes a valid, direct and first mortgage lien upon the properties
of the Company specifically described in the granting clauses of the Mortgage or
upon the interest of the Company therein and upon the interest of the Company in
all other properties described in the Mortgage and intended to be subject to the
lien thereof, subject only to excepted encumbrances and defects as above stated,
and will constitute a valid mortgage lien upon all permanent physical properties
and franchises (other than those expressly excepted) acquired by the Company
after the date of the [ ] Supplemental Indenture upon such acquisition,
---------
subject, however, to encumbrances and liens, if any, existing or placed thereon
at the date of acquisition thereof by the Company, except that in the case of
real estate or interests in real estate the title to which is registered, the
Mortgage becomes a lien thereon upon the registration of said Mortgage against
the appropriate certificates of title.]1
14. Other than as stated in the Registration Statement and the
Prospectus there are no pending legal proceedings to which the Company or any
subsidiary is a party or of which property of the Company or any subsidiary is
the subject, which depart from the ordinary routine litigation incident to the
kind of business conducted by the Company or any such subsidiary, and which is
material to the Company and its subsidiaries, taken as a whole, and, to the best
of my knowledge, no such proceedings are known to be contemplated by
governmental authorities.
15. After due inquiry, I do not know of any legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or any
of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or of any
statutes, regulations, contract or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
16. The portions of the answers to the items of the Registration
Statement and the portions of the information contained in the Prospectus, which
are stated therein to have been made on my authority as General Counsel of the
B-4
Company, have been reviewed by me and, as to matters of law and legal
conclusions, are correct.
17. Neither [1,2 the execution by the Company of the [1[ ]
----------
Supplemental Indenture nor the issue and sale by the Company of the Bonds]
[2 nor the issue and sale by the Company of the
---------------------------------
Debt Securities]] [3 the issue and sale by the Company of the Shares] as
contemplated by the Agreement nor the consummation by the Company of the other
transactions contemplated by the Agreement conflicts with, or results in a
breach of, the charter or by-laws of the Company or any Material Subsidiary or
any agreement or instrument known to me to which the Company or any Material
Subsidiary is a party or by which the Company or any Material Subsidiary is
bound, any law or regulation or, so far as is known to me, any order or
regulation of any court, governmental instrumentality or arbitrator, and which
conflict or breach is material to the Company and its subsidiaries, taken as a
whole.
18. To the best of my knowledge, the Company is not currently in
breach of, or in default under, any material written agreement or instrument to
which it is a party or by which it or its property is bound or affected, and
which breach or default is material to the Company and its subsidiaries, taken
as a whole.
In passing upon the forms of the Registration Statement and the
Prospectus, I necessarily assume the correctness and completeness of the
statements made or included therein by the Company and take no responsibility
therefor, except insofar as such statements relate to me and as set forth in the
Prospectus under the headings "Experts" and "Legal Opinions" and in paragraphs 7
and 15 above. In the course of the preparation by the Company of the
Registration Statement and the Prospectus, I had conferences with certain of its
officers and representatives, with other counsel for the Company and with
PricewaterhouseCoopers LLP, the independent certified public accountants who
examined certain of the Company's financial statements incorporated by reference
in the Registration Statement. My examination of the Registration Statement and
the Prospectus, and my discussions in the above-mentioned conferences did not
disclose to me any information which gives me reason to believe that, at the
Effective Date, the Registration Statement contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus at the time it was filed electronically with the Commission pursuant
to Rule 424, and the Prospectus, as amended or supplemented at the date hereof,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading. I do
not express any opinion or belief as to the financial statements or other
financial or statistical data contained in the Registration Statement or in the
Prospectus.
B-5
As to all matters of Minnesota law, Thelen Reid & Priest LLP and
Morrison Cohen Singer & Weinstein, LLP are hereby authorized to rely upon this
opinion as though it was rendered to each of them.
Very truly yours,
PHILIP R. HALVERSON
B-6
EXHIBIT 1(B)
[NAME OF TRUST]
PREFERRED TRUST SECURITIES
UNDERWRITING AGREEMENT
[ , 200 ]
---------- -
New York, New York
[Insert Name(s)
and Address(es)
of Underwriters]
Dear Sirs:
ALLETE (legally incorporated as Minnesota Power, Inc.), a corporation
incorporated under the laws of Minnesota (the "Company"), and its financing
subsidiary, [Name of Trust], a Delaware business trust (the "Trust," and
hereinafter, together with the Company, the "Offerors"), propose for the Trust
to issue and sell severally to the underwriters named in Schedule I hereto (the
"Underwriters") the Trust's preferred trust securities of the series
designation, with the terms and in the liquidated preference amount specified in
Schedule II hereto (the "Preferred Trust Securities"). The Offerors propose for
the Trust to issue the Preferred Trust Securities pursuant to an Amended and
Restated Trust Agreement, to be dated as of , 200 , among The Bank
---------- -- -
of New York, as Property Trustee, The Bank of New York (Delaware), as Delaware
Trustee, certain employees of the Company, as Administrative Trustees, and the
several Holders as defined therein in substantially the form heretofore
delivered to you [as the Representatives] (the "Trust Agreement"). In connection
with the issuance of the Preferred Trust Securities, the Company proposes (i) to
issue its Junior Subordinated Debentures, Series (the
"Debentures") pursuant to an Indenture, dated as of , , between
-------- -- ----
the Company and The Bank of New York, as trustee (the "Indenture") and (ii) to
issue a guarantee relating to the Preferred Trust Securities to the extent
described in the Prospectus (as defined below) (the "Guarantee").
1. Sale and Purchase. The Trust agrees to issue and sell to each of
-----------------
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Trust, the respective number of Preferred Trust
Securities set forth opposite the name of such Underwriter in Schedule I hereto
at the purchase price or prices set forth in Schedule II hereto (the "Purchase
Price"). The obligations of the Trust and the Underwriters under this Agreement
are undertaken on the basis of the representations and are subject to the
conditions in this Agreement.
2. Payment and Delivery. Delivery of the Preferred Trust Securities to
--------------------
the several Underwriters against payment of the aggregate Purchase Price
therefor by wire transfer in Federal funds shall be made at the offices of
Thelen Reid & Priest LLP, 40 West 57th Street, New York, New York, at 10:00
a.m., New York City time, on [ , 200 ], or at such time, date and
------------ -
place as may be agreed upon by the Company and the Underwriters (the "Closing
Date"). The Preferred Trust Securities shall be delivered to The Depository
Trust Company or to The Bank of New York, as custodian for The Depository Trust
Company, in definitive fully-registered global form without coupons registered
in the name of Cede & Co. for the respective accounts specified by the
Underwriters not later than the close of business on the business day preceding
the Closing Date. [If no such request is received by said time, the Trust shall
have the right to deliver the Preferred Trust Securities registered in the name
of the Underwriters in such denominations as the Trust may determine.] The
Preferred Trust Securities shall be made available to the Underwriters at the
offices of Thelen Reid & Priest LLP for checking purposes not later than 2:00
p.m., New York City time, on the business day immediately preceding the Closing
Date.
3. Registration Statement and Prospectus; Public Offering. The
------------------------------------------------------
Company, ALLETE Capital II and ALLETE Capital III have filed with the Securities
and Exchange Commission (the "Commission") a registration statement on Form S-3
on March , 2001 (Registration Nos. 333- and 333- -01) for the
-- ------ ------
registration under the Securities Act of 1933, as amended (the "Securities
Act"), and the published rules and regulations adopted by the Commission under
the Securities Act (the "Rules and Regulations"), of $500,000,000 aggregate
amount of (i) the Company's Common Stock, without par value, and related
preferred shares purchase rights, (ii) one or more series of the Company's first
mortgage bonds, (iii) the Company's unsecured debt securities, (iv) the
preferred trust securities (the "Trust Securities") of ALLETE Capital II and
ALLETE Capital III and (v) an equal principal amount of the Company's junior
subordinated debentures and guarantees and other obligations of the Company in
respect of such Trust Securities. Such registration statement ("Registration
Statement No. 333- ") was declared effective by the Commission on ,
----- ------ --
2001. No stop order suspending the effectiveness of such registration statement
is in effect and no proceedings for such purpose are pending or threatened
before or threatened by the Commission. The Company has also filed with the
Commission a registration statement on Form S-3 on May 8, 1998 (Registration No.
333-52161) for the registration under the Securities Act and the Rules and
Regulations of 3,000,000 shares of the Company's Common Stock, without par
value, and related preferred shares purchase rights, of which all but 1,814,000
shares (as adjusted for the Company Common Stock split on ) of Common
-----------
Stock and related rights have been previously issued. Such registration
statement ("Registration Statement No. 333-52161") was declared effective by the
Commission on May 18, 1998. In addition, the Company has filed with the
Commission a registration statement on Form S-3 on July 21, 2000 (Registration
No. 333-41882) for the registration under the Securities Act and the Rules and
Regulations of $400,000,000 aggregate principal amount of the Company's first
mortgage bonds and unsecured debt securities, of which all but $25,000,000
aggregate principal amount of first mortgage bonds and unsecured debt securities
have been previously issued. Such registration statement ("Registration
Statement No. 333-41882") was declared effective by the Commission on August 7,
2000. References herein to the term "Registration Statement" as of any date
shall be deemed to refer to each of Registration Statement No. 333-41882,
Registration Statement No. 333-52161 and Registration No. 333- , each as
-------
amended and supplemented to such date, including financial statements and all
exhibits, and all documents incorporated by reference therein as of such date
pursuant to Item 12 of Form S-3 ("Incorporated Documents") and filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); provided that
if the Company files a registration statement with respect to securities
registered under Registration Statement No. 333-41882, Registration Statement
No. 333-52161 and Registration Statement No. 333- with the Commission
-----
pursuant to Rule 462(b) of the Securities Act (the "Rule 462(b) Registration
Statement"), then after such filing, all references to "Registration Statement"
shall be deemed to included the Rule 462(b) Registration Statement. References
2
herein to the term "Prospectus" as of any given date shall be deemed to refer to
the combined prospectus, including any preliminary prospectus, relating to the
securities registered under Registration Statement No. 333- and the
------
securities registered and remaining unissued under Registration Statement No.
333-41882 and Registration Statement No. 333-52161 that forms a part of
Registration Statement No. 333- , as amended or supplemented as of such date
-----
(other than by amendments or supplements relating to securities other than the
Securities), including all Incorporated Documents as of such date and including
any prospectus supplement relating to the Securities. The term "preliminary
prospectus" means any preliminary prospectus (as referred to in Rule 430 of the
Rules and Regulations) included at any time as a part of such registration
statement. Copies of such registration statement and any amendments thereto and
of each preliminary prospectus included as part of such registration statement
have been delivered to the Underwriters. References to "Effective Date" shall be
deemed to refer to the later of the time and date Registration Statement No.
333- , any post-effective amendment to Registration Statement No. 333-
------ -----
or any Rule 462(b) Registration Statement was declared effective or the time and
date of the filing thereafter of the Company's most recent Annual Report on Form
10-K if such filing is made prior to the Closing Date, as hereinafter defined.
For purposes of this Agreement, any Incorporated Document filed with the
Commission on or after the date of this Agreement and prior to the Closing Date
shall be deemed an amendment or supplement to the Registration Statement and the
Prospectus and any reference herein to "amend," "amendment" or "supplement" with
respect to the Registration Statement, any preliminary prospectus or the
Prospectus includes the filing of any document under the Exchange Act after the
Effective Date or the date of any preliminary prospectus or the Prospectus, as
the case may be, and incorporated in such document by reference if such filing
is made prior to the Closing Date.
The Offerors understand that the Underwriters propose to make a public
offering of the Preferred Trust Securities, as described in the Prospectus, as
soon after the date of this Agreement as the Underwriters deem advisable. The
Offerors are further advised by the Underwriters that the Preferred Trust
Securities are to be offered to the public initially at % of their
----
liquidation preference amount (the "Public Offering Price") plus accrued
distributions, if any, from , 200 to the date of payment and
---------- -- -
delivery and to certain dealers selected by the Underwriters at a price that
represents a concession not in excess of % of their liquidation preference
----
amount under the Public Offering Price, and that any Underwriter may allow, and
such dealers may reallow, a concession, not in excess of % of their
----
liquidation preference amount, to any Underwriter or to certain other dealers.
The Offerors confirm that the Underwriters and dealers have been authorized to
distribute each preliminary prospectus, if any, and are authorized to distribute
the Prospectus and any amendments or supplements to it.
4. Representations of the Offerors. The Offerors represent to the
-------------------------------
Underwriters as follows:
(a) The Offerors meet the requirements for use of Form S-3 under the
Securities Act.
(b) On the Effective Date, and at the Closing Date, the Registration
Statement and, at the date of the filing of the Prospectus pursuant to Rule 424
under the Rules and Regulations, and at the Closing Date, the Prospectus, as
each may be amended or supplemented, and the Trust Agreement, Indenture and the
3
Guarantee fully complied or will fully comply in all material respects with the
applicable provisions of the Securities Act, the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the Rules and Regulations, or pursuant
to the Rules and Regulations will be deemed to comply therewith. On the
Effective Date and the Closing Date the Registration Statement, as it may be
amended or supplemented, did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. On the date of filing
of the Prospectus and the Closing Date, the Prospectus, as it may be amended or
supplemented, will not contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and on
said date of filing of the Prospectus and the Closing Date, the Incorporated
Documents will fully comply in all material respects with the applicable
provisions of the Exchange Act and the rules and regulations of the Commission
under the Exchange Act (the "Exchange Act Rules and Regulations"), and, when
read together with the Prospectus, as it may be amended or supplemented, will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. The foregoing representations do not apply to (1) statements or
omissions made in reliance on and in conformity with information relating to the
Underwriters furnished in writing to the Company or the Trust by any Underwriter
expressly for use in the Registration Statement or the Prospectus, as they may
be amended or supplemented, or (2) the portion of the Registration Statement
constituting the respective Statements of Eligibility, or amendments thereto,
under the Trust Indenture Act except statements or omissions made in reliance on
and in conformity with information furnished in writing to the trustees by or on
behalf of the Company or the Trust for use in such Statements of Eligibility or
any amendments thereto. For purposes of this Agreement, [indicate topics
addressed and location in Prospectus] constitute the only information relating
to the Underwriters furnished in writing to the Offerors expressly for inclusion
in any preliminary prospectus, any preliminary prospectus supplement, the
Registration Statement or the Prospectus. Each preliminary prospectus filed as
part of the registration statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act and the
Rules and Regulations or pursuant to the Rules and Regulations will be deemed to
comply therewith.
(c) The Company and its Material Subsidiaries (as defined below) have
good and sufficient title to all material real property and good and sufficient
title to all material personal property owned by them, in each case free and
clear of all liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially interfere with the use made and proposed
to be made of such property by the Company and its Material Subsidiaries; and
any material real property and buildings held under lease by the Company and its
Material Subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not materially interfere
with the use made and proposed to be made of such property and buildings by the
Company or its Material Subsidiaries, as the case may be. As used in this
Agreement, the term "Material Subsidiary" means a significant subsidiary under
Rule 1-02(w) of Regulation S-X of the Commission).
(d) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of Minnesota, with power and
authority (corporate and other) to own its properties and conduct its business
4
as described in the Prospectus, and there is no jurisdiction wherein the
character of the properties owned or held under lease by the Company or the
nature of the business transacted by the Company would expose the Company to any
material liability or disability by reason of the failure to qualify the Company
as a foreign corporation in any such jurisdiction; and each Material Subsidiary
of the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, and there is no jurisdiction wherein the character of the
properties owned or held under lease by any Material Subsidiary or the nature of
the business transacted by such Material Subsidiary would expose such Material
Subsidiary to any material liability or disability by reason of the failure to
qualify such Material Subsidiary as a foreign corporation in any such
jurisdiction. The Trust has been duly formed and is validly existing as a
business trust under the laws of Delaware, with power and authority to own its
properties and conduct its affairs as described in the Prospectus. The Company
and each Material Subsidiary hold all material licenses, certificates and
permits from governmental authorities necessary for the conduct of their
respective businesses.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, as they may be amended or
supplemented, there has not been any material adverse change, or any development
involving, so far as the Company can now reasonably foresee, a prospective
material adverse change in the business, properties, financial condition or
results of operations of the Company and its subsidiaries taken as a whole,
whether or not in the ordinary course of business, and since such dates there
has not been any transaction entered into by the Company or its Material
Subsidiaries, other than transactions in the ordinary course of business and
transactions set forth in or contemplated by the Registration Statement and the
Prospectus, as they may be amended or supplemented, which is material to the
Company and its subsidiaries, taken as a whole. The Company and its Material
Subsidiaries have no contingent obligation which is not disclosed in the
Registration Statement and the Prospectus, as they may be amended or
supplemented, which is material to the Company and its subsidiaries, taken as a
whole.
(f) Any Incorporated Documents filed and incorporated by reference
prior to the Closing Date will, when they are filed with the Commission, conform
in all material respects with the requirements of the Exchange Act and the
Exchange Act Rules and Regulations.
(g) The Company has full corporate power and authority to enter into
this Agreement and the Trust has full power and authority to enter into the
Agreement. This Agreement has been duly authorized, executed and delivered by
each of the Company and the Trust.
(h) The execution, delivery and performance by the Company of this
Agreement, the Indenture and the Guarantee, and the issue and sale of the
Preferred Trust Securities by the Trust and the compliance by the Company with
all of the provisions of this Agreement, the Indenture, the Guarantee and the
Debentures and the consummation of the transactions contemplated hereby and
thereby will not conflict with, result in the creation or imposition of any
lien, charge or encumbrance upon any assets of the Company or its Material
Subsidiaries pursuant to the terms or provisions of, or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
or give any other party a right to terminate any of its obligations under, or
result in the acceleration of any obligation under, the articles of
5
incorporation or bylaws of the Company or any of its Material Subsidiaries, any
material contract or other agreement to which the Company or any of its Material
Subsidiaries is a party or by which the Company or any of its Material
Subsidiaries or any of its or their properties are bound or affected, or violate
or conflict with any material judgment, ruling, decree, order, statute, rule or
regulation of any court or other governmental agency or body applicable to the
business or properties of the Company or any of its Material Subsidiaries which
creation, imposition, breach, violation, default, right of termination,
acceleration, violation or conflict is material to the Company and its
subsidiaries, taken as a whole.
(i) The statements set forth in the Prospectus under the captions
["Description of Preferred Trust Securities and Common Trust Securities" and
"Certain Terms of the Preferred Trust Securities"] constitute a summary of the
securities, documents and instruments therein described, are accurate and fairly
present the information contained therein in all material respects.
(j) Neither the Company nor any of its Material Subsidiaries is in
violation of its respective articles of incorporation or bylaws or is in default
in the performance or observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party, which
default is material to the Company and its subsidiaries taken as a whole.
(k) Each of the Indenture and the Guarantee has been duly qualified
under the Trust Indenture Act and has been duly authorized by the Company and
when executed and delivered by the Company and the Indenture Trustee or the
Trustees, respectively, will be enforceable in accordance with its terms except
as (i) the enforceability thereof may be limited by bankruptcy, insolvency or
other laws affecting creditors' rights generally and by general principles of
equity (whether such enforceability is considered in a proceeding in equity or
in law) and (ii) rights of acceleration, if any, and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(l) The Debentures have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the Trust as described in the Prospectus, will be entitled to
the benefits of the Indenture and will be valid and binding obligations of the
Company, enforceable in accordance with their terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or other laws
affecting creditors' rights generally and by general principles of equity
(whether such enforceability is considered in a proceeding in equity or in law)
and (ii) rights of acceleration, if any, and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(m) The Trust Agreement has been duly qualified under the Trust
Indenture Act and has been duly authorized by the Company and when executed and
delivered by the Company and the Trustees will be enforceable in accordance with
its terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or other laws affecting creditors' rights generally and by general
principles of equity (whether such enforceability is considered in a proceeding
in equity or in law) and (ii) rights of acceleration, if any, and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
6
(n) The Preferred Trust Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Trust
Agreement and delivered to and paid for by the Underwriters in accordance with
the terms of this Agreement, will be entitled to the benefits of the Trust
Agreement and will be valid and binding obligations of the Trust, enforceable in
accordance with their terms except as (i) the enforceability thereof may be
limited bankruptcy, insolvency, or other laws affecting creditors' rights
generally and by general principles of equity (whether such enforceability is
considered in a proceeding in equity or in law) and (ii) rights of acceleration,
if any, and the availability of equitable remedies may be limited by equitable
principles of general applicability.
(o) The description of the Preferred Trust Securities in the
Registration Statement and the Prospectus, as they may be amended or
supplemented, is, and at the Closing Date will be, complete and accurate in all
respects.
(p) The Company has filed a Petition for Certification of Capital
Structure with the Minnesota Public Utilities Commission ("Minnesota
Commission") pursuant to the Minnesota Public Utilities Act with respect to the
issuance and sale by the Company of the Debentures and the Guarantee. The
Minnesota Commission has entered an authorizing order approving the capital
structure including the issuance and sale of the Debentures and the Guarantee
and such authorizing order is still in full force and effect. Apart from such
authorizing order of the Minnesota Commission, no consent, approval,
authorization or order of, or any filing or declaration with, any court or
governmental agency or body is required for the consummation by the Company of
the transactions on its part herein contemplated, except such as have been
obtained under the Securities Act or the Rules and Regulations.
(q) Neither the Company nor the Trust is, or after giving effect to
the offering and sale of the Securities will be, an "investment company," as
such term is defined in the Investment Company Act of 1940, as amended.
(r) Except as set forth in the Registration Statement and the
Prospectus, there are no legal or governmental proceedings pending to which the
Company or any of its Material Subsidiaries is a party or to which any property
of the Company or any of its Material Subsidiaries is subject, which, if
determined adversely to the Company or any of its Material Subsidiaries would in
the Company's reasonable judgment individually or in the aggregate have a
material adverse effect on the business, properties, financial condition or
results of operations of the Company and its subsidiaries taken as a whole; and,
to the best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
5. Agreements of the Company. (a) The Company will not file any
-------------------------
amendment or supplement to the Registration Statement or the Prospectus unless a
copy has first been submitted to the Underwriters a reasonable time before its
filing and the Underwriters have not reasonably objected to it in writing within
a reasonable time after receiving the copy.
(b) The Company will promptly advise the Underwriters (i) of the
initiation or threatening of any proceedings for, or receipt by the Company of
any notice with respect to, the suspension of the qualification of the Preferred
Trust Securities for sale in any jurisdiction or the issuance of any order by
the Commission suspending the effectiveness of the Registration Statement and
7
(ii) of receipt by the Company or any representative or attorney of the Offerors
of any other communication from the Commission relating to the Company, the
Registration Statement, any preliminary prospectus or the Prospectus or to the
transactions contemplated by this Agreement. The Company will make every
reasonable effort to prevent the issuance of an order suspending the
effectiveness of the Registration Statement and, if any such order is issued, to
obtain its lifting as soon as possible.
(c) The Company will furnish to [name of lead Underwriter] without
charge one signed copy, and to each of the other Underwriters one copy of the
signed copy certified by an officer of the Company, of the Registration
Statement and any amendment thereto (including all exhibits filed with any such
document) and as many conformed copies of the Registration Statement as the
Underwriters may reasonably request.
(d) During such period as a prospectus is required by law to be
delivered by the Underwriters or a dealer, the Company will promptly deliver,
without charge, to the Underwriters and to dealers, at such office or offices as
the Underwriters may designate, as many copies of the Prospectus as the
Underwriters may reasonably request, and, during such period after the Effective
Date if any event occurs as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements in it, in the light of
the circumstances existing when the Prospectus is delivered to a purchaser, not
misleading in any material respect, or if during such period it is necessary to
amend or supplement the Prospectus to comply with the Securities Act or the
Rules and Regulations, the Company will promptly prepare, submit to the
Underwriters, file, subject to Section 5(a) hereof, with the Commission and
deliver, without charge, to the Underwriters and to dealers (whose names and
addresses the Underwriters will furnish to the Company) to whom Preferred Trust
Securities may have been sold by the Underwriters, and to other dealers on
request, amendments or supplements to the Prospectus so that the statements in
the Prospectus, as so amended or supplemented, will not, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, be
misleading in any material respect and will comply with the Securities Act and
the Rules and Regulations. Delivery by the Underwriters of any such amendments
or supplements to the Prospectus will not constitute a waiver of any of the
conditions in Section 6 hereof.
(e) The Company will make generally available to the Company's
security holders and the security holders of the Trust, as soon as practicable
but in no event later than the last day of the 15th full calendar month
following the calendar quarter in which the Effective Date falls, an earnings
statement satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 of the Rules and Regulations.
(f) The Company will take such actions as the Underwriters reasonably
designate in order to qualify the Preferred Trust Securities for offer and sale
under the securities or "blue sky" laws of such jurisdictions as the
Underwriters reasonably designate; provided that the Company shall not be
required to register or qualify as a foreign corporation or dealer in
securities, to file any consents to service of process under the laws of any
jurisdiction or to meet any other requirement deemed by the Company to be unduly
burdensome.
(g) The Company will pay, or reimburse if paid by the Underwriters,
whether or not the transactions contemplated by this Agreement are consummated
or this Agreement is terminated, all costs and expenses incident to the
performance of the obligations of the Company under this Agreement, including
8
costs and expenses relating to (i) the preparation, printing and filing of the
Registration Statement and exhibits thereto, each preliminary prospectus, the
Prospectus, all amendments and supplements to the Registration Statement and the
Prospectus, (ii) the authorization and issuance of the Preferred Trust
Securities and the preparation and delivery of the forms of the Preferred Trust
Securities sold by the Trust to the Underwriters, (iii) the registration or
qualification of the Preferred Trust Securities for offer and sale under the
securities or "blue sky" laws of the jurisdictions referred to in Section 5(f)
and the determination of the legality of the Preferred Trust Securities for
investment, including the reasonable fees and disbursements of counsel for the
Underwriters (not to exceed $ ) in that connection, and the preparation and
-----
printing of preliminary and supplemental "blue sky" memoranda and legal
investment memoranda, (iv) the furnishing (including costs of shipping and
mailing) to the Underwriters and to dealers of copies of the Registration
Statement, each preliminary prospectus, the Prospectus, and all amendments or
supplements to the Prospectus, and of the other documents required by this
Section to be so furnished, (v) any fees charged by securities rating services
for rating the Securities, (vi) all transfer taxes, if any, with respect to the
sale and delivery of the Preferred Trust Securities by the Trust to the
Underwriters, (vii) the fees and expenses of the Trustees, and Paying Agent or
Registrar under Trust Agreement and the reasonable fees and disbursements of
counsel for any Trustee in connection with the Preferred Trust Securities,
(viii) the filing fees and expenses, if any incurred with respect to any filing
with the National Association of Securities Dealers, Inc., made in connection
with the offering of the Preferred Trust Securities, and (ix) any expenses
incurred by the Company in connection with a "road show" presentation to
potential investors.
(h) During the period beginning on the date hereof and continuing to
and including the Closing Date, the Company will not offer, sell, or otherwise
dispose of any debt securities of the Company or warrants to purchase debt
securities of the Company substantially similar to the Preferred Trust
Securities (other than (i) the Preferred Trust Securities, (ii) commercial paper
issued in the ordinary course of business, and (iii) the Company's common stock,
preferred stock, secured indebtedness and unsecured indebtedness which is not
subordinated), without the prior written consent of [name of lead Underwriter].
6. Conditions of the Underwriters' Obligations. The obligations of the
-------------------------------------------
Underwriters to purchase the Preferred Trust Securities are subject to the
accuracy, on the date of this Agreement and on the Closing Date, of the
representations of the Offerors in this Agreement, to the accuracy and
completeness of all statements made by the Offerors or any of their officers in
any certificate delivered to the Underwriters or their counsel pursuant to this
Agreement, to performance by the Offerors of their obligations under this
Agreement and to each of the following additional conditions:
(a) All filings required by Rule 424 of the Rules and Regulations must
have been made.
(b) No stop order suspending the effectiveness of the Registration
Statement may be in effect and no proceedings for such purpose may be pending
before or threatened by the Commission, and any requests for additional
information on the part of the Commission (to be included in the Registration
Statement or the Prospectus or otherwise) must have been complied with.
9
(c) Since the respective dates as of which such information is given
in the Registration Statement and the Prospectus, as they may be amended or
supplemented, (i) there must not have been any material change in the capital
stock or long-term debt of the Company and its subsidiaries, taken as a whole,
(ii) there must not have been any material adverse change, or any development
involving, so far as the Company can now reasonably foresee, a prospective
material adverse change in the business, properties, financial condition, or
results of operations of the Company and its subsidiaries, taken as a whole,
whether or not in the ordinary course of business and, since such dates there
shall not have been any material transaction entered into by the Company other
than transactions set forth in or contemplated by the Prospectus, and (iii)
there must not have occurred any event that makes untrue or incorrect in any
material respect any statement or information contained in the Prospectus or
that is not reflected in the Prospectus but should be reflected in it in order
to make the statements or information in it not misleading in any material
respect; and in the judgment of the Underwriters, any such development referred
to in clause (i), (ii) or (iii) makes it impracticable to consummate the sale
and delivery of the Securities by the Underwriters at the initial public
offering price.
(d) The Underwriters must receive on the Closing Date a certificate,
dated such date, of the chief executive officer, the chief operating officer or
the chief financial officer of the Company certifying that (i) the signer has
carefully examined the Registration Statement and the Prospectus (including any
Incorporated Documents) and this Agreement, (ii) the representations of the
Company in this Agreement are accurate on and as of the date of the certificate,
(iii) since the most recent dates as of which information is given in the
Registration Statement or the Prospectus, as amended or supplemented, there has
not been any material adverse change, or any development involving, so far as
the Company can now reasonably foresee, a prospective material adverse change in
the business, properties, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole, whether or not in the ordinary
course of business, and since such dates there has not been any transaction
entered into by the Company or its Material Subsidiaries, other than
transactions in the ordinary course of business and transactions set forth in or
contemplated in the Prospectus, as amended or supplemented, which is material to
the Company and its subsidiaries, taken as a whole, (iv) to the knowledge of
such officer, no order suspending the effectiveness of the Registration
Statement or prohibiting the sale of the Preferred Trust Securities has been
issued and no proceedings for such purpose are pending before or threatened by
the Commission, (v) there has been no document required to be filed under the
Exchange Act and the Exchange Act Rules and Regulations that upon such filing
would be deemed to be an Incorporated Document that has not been so filed, and
(vi) the Company has performed all agreements that this Agreement requires it to
perform by the Closing Date.
(e) Since the date of this Agreement, there must not have been any
lowering of the ratings of the Company's Preferred Trust Securities or any other
securities of the Company (or a special purpose subsidiary of the Company) which
are the same class as the Preferred Trust Securities by Moody's Investors
Service, Inc. ("Moody's") or Standard & Poor's Rating Services ("S&P") or any
notice from Moody's or S&P of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change in the ratings accorded the Company's Securities.
(f) The Underwriters must receive on the Closing Date opinions dated
the Closing Date substantially in the form of Annexes A, B and C to this
Agreement from Richards, Layton & Finger, P.A., Delaware counsel to the Company
10
and the Trust, Thelen Reid & Priest LLP, counsel to the Company, and Philip R.
Halverson, Esq., general counsel of the Company, respectively.
(g) The Underwriters must receive on the Closing Date from Morrison
Cohen Singer & Weinstein, LLP, their counsel, an opinion dated the Closing Date
with respect to the Company, the Trust, the Preferred Trust Securities, the
Registration Statement, the Prospectus, the Debentures, the Trust Agreement, the
Indenture, the Guarantee, this Agreement and the form and sufficiency of all
proceedings taken in connection with the sale and delivery of the Preferred
Trust Securities. Such opinion and proceedings shall be satisfactory in all
respects to the Underwriters. The Company must have furnished to such counsel
such documents as they may reasonably request for the purpose of enabling them
to render such opinion.
(h) The Underwriters must receive on the Closing Date a signed letter,
dated the Closing Date, from PricewaterhouseCoopers LLP to the effect that (i)
they are independent public accountants with respect to the Company within the
meaning of the Securities Act and the applicable published rules and regulations
thereunder adopted by the Commission, (ii) in their opinion, the consolidated
financial statements and financial statement schedule audited by them and
incorporated by reference in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Securities Act and
the Exchange Act and the published rules and regulations thereunder adopted by
the Commission with respect to registration statements on Form S-3, (iii) on the
basis of a reading of the unaudited consolidated financial statements of the
Company incorporated by reference in the Prospectus, if any, the latest
available unaudited consolidated financial data of the Company and its
subsidiaries since the close of the Company's most recent audited fiscal year,
the minutes and consents of the Board of Directors since the end of the most
recent audited fiscal year, and inquiries of officials of the Company who have
responsibility for financial and accounting matters (it being understood that
the foregoing procedures do not constitute an audit made in accordance with
generally accepted auditing standards and would not necessarily reveal matters
of significance with respect to the comments made in such letter, and,
accordingly, that PricewaterhouseCoopers LLP makes no representations as to the
sufficiency of such procedures for the Underwriters' purposes), nothing has come
to their attention which caused them to believe that (1) the unaudited
consolidated financial statements of the Company incorporated by reference in
the Prospectus, if any, (a) do not comply as to form in all material respects
with the applicable accounting requirements of the Exchange Act as it applies to
Form 10-Q and the published rules and regulations thereunder or (b) are not
stated on a basis substantially consistent with that of the audited consolidated
financial statements of the Company incorporated by reference in the Prospectus,
(2) at the date of the latest available unaudited financial data read by them
and at a specified date not more than five days prior to the Closing Date there
was any change in the capital stock, increase in long-term debt or decreases in
consolidated net current assets (working capital) or stockholders' equity of the
Company and its subsidiaries, in each case as compared with amounts shown in the
most recent consolidated financial information incorporated by reference in the
Prospectus, except in all instances for changes, increases or decreases which
the Prospectus, as amended or supplemented, discloses have occurred or may
occur, or which are disclosed in such letter, or (3) for the period from the
date of the most recent audited consolidated financial statements to the date of
the latest available unaudited financial data read by them and for the period
11
from the date of the latest available unaudited financial data read by them to a
specified date not more than five days prior to the Closing Date, there were any
decreases, as compared with the corresponding period in the preceding year, in
consolidated operating revenues or in the total or per-share amounts of net
income, except in all instances for changes, increases or decreases which the
Prospectus, as amended or supplemented, discloses have occurred or may occur, or
which are disclosed in such letter, and they have carried out certain procedures
and made certain findings, as specified in such letter, with respect to certain
amounts included or incorporated by reference in the Registration Statement and
the Prospectus and such other items as the Underwriters may reasonably request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement will comply with this Agreement only if they are in
form and scope satisfactory to counsel for the Underwriters.
7. Indemnification. (a) The Offerors shall jointly and severally
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indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter, and each person, if any, who controls any
Underwriter, within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, against any and all losses, claims, damages and
liabilities, joint or several (including, without limitation, as and when
incurred, any investigative, legal or other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted), to which they, or any of them, may become
subject under the Securities Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities arise out of or are based on any untrue statement
or alleged untrue statement of a material fact contained in any preliminary
prospectus, the Registration Statement or the Prospectus or any amendment or
supplement to the Registration Statement or the Prospectus (including any
Incorporated Document), or the omission or alleged omission to state in it a
material fact required to be stated in it or necessary to make the statements in
it not misleading; provided, however, that the Offerors will not be liable to
the extent that such loss, claim, damage, or liability arises from the sale of
the Preferred Trust Securities in the public offering to any person by the
Underwriters and (i) is based on an untrue statement or omission or alleged
untrue statement or omission made in reliance on and in conformity with
information furnished in writing to the Company or the Trust by the Underwriters
expressly for use in the Registration Statement or the Prospectus, as set forth
in the penultimate sentence of Section 4(b) hereof, or (ii) results solely from
one or more untrue statements of material facts contained in, or the omission of
one or more material facts from, any preliminary prospectus or preliminary
prospectus supplement or the Prospectus, which untrue statement or omission was
corrected in the Prospectus (as then amended or supplemented) if the
Underwriters sold the Preferred Trust Securities to the person alleging such
loss, claim, liability, expense or damage without sending or giving, at or prior
to the written confirmation of such sale, a copy of the corrected Prospectus (as
then amended or supplemented), if the Company had previously furnished copies
thereof to the Underwriters within a reasonable amount of time prior to such
sale or confirmation, and the Underwriters failed to send or give the corrected
Prospectus (as then amended or supplemented), if required by law to have so sent
or given it and if sent or given would have been a defense with respect to such
untrue statement or omission against the person asserting such loss, claim,
liability, expense or damage. This indemnity agreement will be in addition to
any liability that the Company might otherwise have.
12
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Offerors, its officers and directors, and each person, if any,
who controls any thereof within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from the Offerors to the Underwriters, but only insofar as losses, claims,
damages or liabilities arise out of or are based on any untrue statement or
omission or alleged untrue statement or omission made in or in reliance on and
in conformity with information furnished in writing to the Company or the Trust
by the Underwriters expressly for use in the Registration Statement or the
Prospectus, as set forth in the penultimate sentence of Section 4(b). This
indemnity agreement will be in addition to any liability that the Underwriters
might otherwise have.
(c) Any party that proposes to assert the right to be indemnified
under this Section 7 will, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim is to be made against
an indemnifying party or parties under this Section 7, notify in writing each
such indemnifying party of the commencement of such action, enclosing a copy of
all papers served, but the omission so to notify such indemnifying party will
not relieve it from any liability that it may have to any indemnified party
otherwise than under this Section 7. If any such action is brought against any
indemnified party and it notifies the indemnifying party of its commencement,
the indemnifying party will be entitled to participate in, and, to the extent
that it elects by delivering written notice to the indemnified party promptly
after receiving notice of the commencement of the action from the indemnified
party, jointly with any other indemnifying party similarly notified, to assume
the defense of the action, with counsel satisfactory to the indemnified party,
and, after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified party will
have the right to employ its counsel in any such action, but the fees and
expenses of such counsel will be at the expense of such indemnified party unless
(i) the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (ii) the indemnified party has reasonably
concluded (based on advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party,
(iii) a conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party shall not have the right to direct the defense
of such action on behalf of the indemnified party), or (iv) the indemnifying
party has not in fact employed counsel to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the fees and expenses of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate counsel admitted to
practice in such jurisdiction at any one time for all such indemnified party or
parties. Such counsel shall be designated by [Name of Lead Underwriter] in the
case of parties indemnified pursuant to Section 7(a) hereof and by the Company
in the case of parties indemnified pursuant to Section 7(b) hereof. All such
fees, disbursements and other charges will be reimbursed by the indemnifying
party promptly as they are incurred. An indemnifying party will not be liable
for any settlement of any action or claim effected without its written consent
13
(which consent will not be unreasonably withheld). No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any indemnified party.
8. Contribution. In order to provide for just and equitable
------------
contribution in the circumstances in which the indemnification provided for
under the foregoing provisions of Section 7 is applicable in accordance with its
terms but for any reason is held to be unavailable from the Offerors or the
Underwriters, the Offerors and the Underwriters shall contribute to the amount
paid or payable as a result of losses, claims, liabilities, expenses and damages
(including any investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted) to which the Offerors and the Underwriters may
be subject in such proportion as shall be appropriate to reflect (i) the
relative benefits received by the Offerors, on the one hand, and the
Underwriters, on the other, (ii) the relative fault of the Offerors, on the one
hand, and the Underwriters, on the other, with respect to the statements or
omissions which resulted in such loss, claim, liability, expense or damage, or
action in respect thereof, as well as (iii) any other relevant equitable
considerations with respect to such offering. Such relative benefits shall be in
the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Trust bear to the total underwriting
discounts and commissions received by the Underwriters as set forth in the
Prospectus. Such relative fault shall be determined by reference, among other
things, to whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Offerors or by the Underwriters, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Offerors and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this Section 8
were to be determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, liability, expense or damage, or action in respect
thereof, referred to above in this Section 8 shall be deemed to include, for
purpose of this Section 8, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, the
Underwriters shall not be required to contribute any amount in excess of the
underwriting discounts and commissions received by them, except that insofar as
losses, claims, damages and liabilities arise from the sale of the Securities in
the public offering to any person by the Underwriters and are based on any
untrue statement or omission or alleged untrue statement or omission made in or
in reliance on and in conformity with information furnished in writing to the
Company or the Trust by the Underwriters expressly for use in the Registration
Statement, any preliminary prospectus or preliminary prospectus supplement or
the Prospectus, as set forth in the penultimate sentence of Section 4(b), the
Underwriters shall not be required to contribute any amount in excess of the
amount by which the total price at which the Preferred Trust Securities
underwritten by them and distributed to the public were offered to the public
exceeds the amount of any damages which the Underwriters have otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
14
or alleged omission. No person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, any person who controls a
party to this Agreement within the meaning of the Act will have the same rights
to contribution as that party, and each officer of the Offerors who signed the
Registration Statement will have the same rights to contribution as the
Offerors, subject in each case to the provisions hereof. Any party entitled to
contribution, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made
under this Section 8, will notify any such party or parties from whom
contribution may be sought, but the omission so to notify will not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have under this Section 8. No party will be liable for
contribution with respect to any action or claim settled without its written
consent (which consent will not be unreasonably withheld).
9. Termination. The obligations of the several Underwriters under this
-----------
Agreement may be terminated by [Name of Lead Underwriter] [with the consent of
the Underwriters which have agreed to purchase in the aggregate 50% or more of
aggregate principal amount of the Securities] at any time on or before the
Closing Date by notice to the Company, without liability on the part of the
Underwriters to the Offerors, if subsequent to the date of this Agreement and
prior to the delivery and payment for the Preferred Trust Securities (a) trading
in the equity securities of the Company is suspended by the Commission or by the
New York Stock Exchange ("NYSE"), (b) trading in securities generally on the
NYSE shall have been suspended or limited or minimum or maximum prices shall
have been generally established on such exchange, or additional material
governmental restrictions, not in force on the date of this Agreement, shall
have been imposed upon trading in securities generally by the NYSE or by order
of the Commission or any other governmental authority, (c) a general banking
moratorium has been established by Federal or New York authorities, (d) any
outbreak or material escalation of hostilities or other calamity or crisis shall
have occurred, the effect of any of which is such as to make it, in the
reasonable judgment of the Underwriters impracticable or inadvisable to proceed
with the public offering of the Securities on the terms and in the manner
contemplated by the Prospectus, or (e) if any of the conditions specified in
Section 6 have not been fulfilled when and as required by this Agreement.
If this Agreement is terminated pursuant to any of its provisions,
except as otherwise provided, the Offerors will not be under any liability to
the Underwriters except that if this Agreement is terminated by the Underwriters
because of any failure or refusal on the part of the Offerors to comply with the
terms of this Agreement or because any of the conditions in Section 6 are not
satisfied, the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by them in connection with the proposed purchase and sale of
the Preferred Trust Securities.
The Offerors shall not in any event be liable to the Underwriters for
damages on account of loss of anticipated profits.
10. Substitution of Underwriters. If one or more of the Underwriters
----------------------------
shall, for any reason permitted hereunder, cancel its obligation to purchase
hereunder and to take up and pay for the Preferred Trust Securities to be
purchased by such one or more Underwriters, the Company shall immediately notify
15
the remaining Underwriters, and the remaining Underwriters shall have the right,
within 24 hours of receipt of such notice, either to take up and pay for (in
such proportion as may be agreed upon among them) or to substitute another
underwriter or underwriters, satisfactory to the Company, to take up and pay for
the principal amount of Preferred Trust Securities that such one or more
Underwriters did not purchase. If one or more Underwriters shall, for any reason
other than a reason permitted hereunder, fail to take up and pay for the
Preferred Trust Securities to be purchased by such one or more Underwriters, the
Company shall immediately notify the remaining Underwriters, and the remaining
Underwriters shall be obligated to take up and pay for (in addition to the
respective principal amount of Preferred Trust Securities set forth opposite
their respective names in Schedule II) the principal amount of Preferred Trust
Securities that such defaulting Underwriter or Underwriters failed to take up
and pay for, up to a number thereof equal to, in the case of each such remaining
Underwriter, percent ( %) of the principal amount of Preferred Trust
------ ----
Securities set forth opposite the name of such remaining Underwriter in Schedule
II, and such remaining Underwriters shall have the right, within 24 hours of
receipt of such notice, either to take up and pay for (in such proportion as may
be agreed upon among them), or to substitute another underwriter or
underwriters, satisfactory to the Company, to take up and pay for, the remaining
principal amount of the Preferred Trust Securities that the defaulting
Underwriter or Underwriters agreed but failed to purchase. If any unpurchased
Preferred Trust Securities still remain, then the Company or the Underwriters
shall be entitled to an additional period of 24 hours within which to procure
another party or parties, who are members of the NASD (or if not members of the
NASD, who are not eligible for membership in the NASD and who agree (i) to make
no sales within the United States, its territories or its possessions or to
persons who are citizens thereof or residents therein and (ii) in making sales
to comply with the NASD's Conduct Rules) and satisfactory to the Company, to
purchase or agree to purchase such unpurchased Preferred Trust Securities on the
terms herein set forth. In any such case, either the remaining Underwriters or
the Company shall have the right to postpone the Closing Date for a period not
to exceed seven full business days from the date agreed upon in accordance with
this Section 10, in order that the necessary changes in the Registration
Statement and Prospectus and any other documents and arrangements may be
effected. If the Underwriters and the Company shall fail to procure a
satisfactory party or parties as above provided to purchase or agree to purchase
such unpurchased Preferred Trust Securities, then the Company may either (i)
require the remaining Underwriters to purchase the principal amount of Preferred
Trust Securities that they are obligated to purchase hereunder (but no more than
such principal amount of Preferred Trust Securities) or (ii) terminate this
Agreement by giving prompt notice to the Underwriters. In the event that neither
the remaining Underwriters nor the Company has arranged for the purchase of such
unpurchased Preferred Trust Securities by another party or parties as above
provided and the Company has not elected to require the remaining Underwriters
to purchase the principal amount of Preferred Trust Securities that they are
obligated to purchase hereunder, then this Agreement shall terminate without any
liability on the part of any such Underwriter or the Company for the purchase or
sale of any Preferred Trust Securities under this Agreement. Any action taken
pursuant to this Section 10 shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriters under this Agreement.
11. Effectiveness. This Agreement shall become effective upon the
-------------
execution and delivery hereof by the parties hereto.
16
12. Miscellaneous. The reimbursement, indemnification and contribution
-------------
agreements in Sections 5, 7, 8 and 9 and the representations and agreements of
the Company, the Trust and the Underwriters in this Agreement will remain in
full force and effect regardless of any termination of this Agreement, any
investigation made by or on behalf of the Underwriters, the Company, the Trust
or any controlling person and delivery and acceptance of and payment for the
Preferred Trust Securities.
This Agreement is for the benefit of the Underwriters, the Offerors,
and their successors and assigns, and, to the extent expressed in this
Agreement, for the benefit of persons controlling the Underwriters or the
Offerors, directors and officers of the Offerors and directors, officers,
employees and agents of the Underwriters, and their respective successors and
assigns, and no other persons, partnership, association or corporation will
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" does not include any purchaser of Preferred Trust
Securities from the Underwriters merely because of such purchase.
All notices and communications under this Agreement will be in writing
and mailed or delivered, by messenger, facsimile transmission or otherwise, to
the Underwriters at[ ]
---------------------------------------------------------
Attention: [ ] and to the Offerors, at 30 West Superior
--------------------
Street, Duluth, Minnesota 55802, Attention: Chief Financial Officer. Any such
notice or communication shall take effect upon receipt thereof.
This Agreement may be signed in multiple counterparts that taken as a
whole constitute one agreement.
If any section, paragraph or provision of this Agreement is for any
reason determined to be invalid or unenforceable, such determination shall not
affect the validity or enforceability of any other section, paragraph or
provision hereof.
17
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
Please confirm that the foregoing correctly sets forth the agreement
between us.
Very truly yours,
ALLETE
(legally incorporated as MINNESOTA POWER, INC.)
By:
-------------------------------------------
Title:
[Name of Trust]
By:
-------------------------------------------
(Authorized Representative)
Confirmed:
[Name(s) of Underwriter(s)]
By:
-------------------------------
Title:
18
SCHEDULE I
Securities:
Designation:
Liquidation Preference Amount:
Date of Maturity:
Distribution Rate:
Purchase Price:
Underwriting Commissions (payable by the Company):
Public Offering Price:
19
SCHEDULE II
-----------
[Name of Trust]
Preferred Trust Securities
Number of Preferred
Name Trust Securities
- ---- ----------------
Total ==========
$
20
ANNEX A
[LETTERHEAD OF RICHARDS, LAYTON & FINGER, P.A.]
[Date]
[Insert Name(s)
and address(es)
of Underwriters]
Re: [Name of Trust]
---------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for ALLETE (legally incorporated
as Minnesota Power, Inc., a Minnesota corporation (the "Company"), and [Name of
Trust], a Delaware business trust (the "Trust"), in connection with the matters
set forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our examination
of documents has been limited to the examination of originals or copies of the
following:
(a) The Certificate of Trust of the Trust, dated as of , 2001
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on , 2001;
(b) The Trust Agreement of the Trust, dated as of , 2001,
among the Company and the trustees of the Trust named therein;
(c) The Prospectus, dated , 2001, and the Prospectus
Supplement, dated , (jointly, the "Prospectus"), relating to the
Preferred Trust Securities of the Trust representing preferred undivided
beneficial interests in the assets of the Trust (each, a "Preferred Trust
Security" and collectively, the "Preferred Trust Securities");
(d) The Amended and Restated Trust Agreement of the Trust, dated as of
, (including Exhibits A, B and D thereto) (the "Trust
Agreement"), among the Company, the trustees of the Trust named therein (the
"Trustees") and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust;
(e) The Underwriting Agreement, dated , (the "Underwriting
Agreement"), among the Company, the Trust and the Underwriters named in Schedule
II thereto; and
(f) A Certificate of Good Standing for the Trust, dated ,
, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are used
as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other than
the documents listed in paragraphs (a) through (f) above, which we believe are
all the documents necessary or appropriate for us to have considered for the
purposes of rendering the opinions stated herein. In particular, we have not
reviewed any document (other than the documents listed in paragraphs (a) through
(f) above) that is referred to in or incorporated by reference into the
documents reviewed by us. We have assumed that there exists no provision in any
document that we have not reviewed that is inconsistent with the opinions stated
herein. We have conducted no independent factual investigation of our own but
rather have relied solely upon the foregoing documents, the statements and
information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust Agreement
constitutes the entire agreement among the parties thereto with respect to the
subject matter thereof, including with respect to the creation, operation and
termination of the Trust, and that the Trust Agreement and the Certificate are
in full force and effect and have not been amended, (ii) except to the extent
provided in paragraph 1 below, the due creation, due formation or due
organization, as the case may be, and the valid existence in good standing of
each party to the documents examined by us under the laws of the jurisdiction
governing its creation, formation or organization, (iii) the legal capacity of
natural persons who are parties to the documents examined by us, (iv) except to
the extent set forth in paragraph 2 below, that each of the parties to the
documents examined by us has the power and authority to execute and deliver, and
to perform its obligations under, such documents, (v) except to the extent
provided in paragraph 4 below, that each of the parties to the documents
examined by us has duly authorized, executed and delivered such documents, (vi)
the receipt by each Person to whom a Preferred Trust Security is to be issued by
the Trust (the "Preferred Trust Security Holders") of a Preferred Trust
Securities Certificate for the Preferred Trust Security and the payment for the
Preferred Trust Security acquired by it, in accordance with the Trust Agreement,
and as described in the Prospectus, (vii) that the Preferred Trust Securities
are issued and sold to the Preferred Trust Security Holders in accordance with
the Trust Agreement, and as described in the Prospectus, (viii) the receipt by
the Person (the "Common Trust Security Holder") to whom a Common Trust Security
A-2
of the Trust representing common undivided beneficial interests in the assets of
the Trust (each, a "Common Trust Security" and collectively, the "Common Trust
Securities") (the Preferred Trust Securities and the Common Trust Securities
being hereinafter collectively referred to as "Trust Securities") is to be
issued by the Trust of a Common Trust Securities Certificate for the Common
Trust Security and the payment for the Common Trust Security acquired by it, in
accordance with the Trust Agreement, and as described in the Prospectus, (ix)
that the Common Trust Securities are issued and sold to the Common Trust
Security Holder in accordance with the Trust Agreement, and as described in the
Prospectus, (x) that the Trust derives no income from or connected with sources
within the State of Delaware and has no assets, activities (other than having a
Delaware trustee as required by the Delaware Business Trust Act and filing
documents with the Secretary of State) or employees in the State of Delaware,
and (xi) that the Trust is treated as a grantor trust for federal income tax
purposes. We have not participated in the preparation of the Prospectus and
assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding the
securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto. Our opinions are rendered only with
respect to Delaware laws and rules, regulations and orders thereunder that are
currently in effect.
Based upon the foregoing, and upon our examination of such questions of law
and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, and all
filings required under the laws of the State of Delaware with respect to the
creation and valid existence of the Trust as a business trust have been made.
2. Under the Delaware Business Trust Act and the Trust Agreement, the
Trust has the trust power and authority to (i) own property and conduct its
business, all as described in the Prospectus, (ii) execute and deliver, and
perform its obligations under, the Underwriting Agreement, and (iii) issue, and
perform its obligations under, the Trust Securities.
3. The Trust Agreement is a legal, valid and binding agreement of the
Company and the Trustees, and is enforceable against the Company and the
Trustees, in accordance with its terms.
4. Under the Delaware Business Trust Act and the Trust Agreement, the
execution and delivery of the Underwriting Agreement by the Trust, and the
performance by the Trust of its obligations thereunder, have been duly
authorized by all requisite trust action on the part of the Trust.
A-3
5. No authorization, approval, consent or order of any Delaware court
or Delaware governmental authority or Delaware agency is required to be obtained
by the Trust solely in connection with the issuance and sale of the Preferred
Trust Securities.
6. The Preferred Trust Securities have been duly authorized by the
Trust Agreement and, when issued and sold in accordance with the Trust
Agreement, the Preferred Trust Securities will be, subject to the qualifications
set forth in paragraph 7 below, fully paid and non-assessable undivided
beneficial interests in the assets of the Trust.
7. The Preferred Trust Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Trust
Security Holders may be obligated, pursuant to the Trust Agreement, to (i)
provide indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of Preferred Trust
Securities Certificates and the issuance of replacement Preferred Trust
Securities Certificates, and (ii) provide security or indemnity in connection
with requests of or directions to the Property Trustee to exercise its rights
and powers under the Trust Agreement.
8. Under the Delaware Business Trust Act and the Trust Agreement, the
issuance of the Preferred Trust Securities is not subject to preemptive rights.
9. The issuance and sale by the Trust of the Trust Securities, the
execution, delivery and performance by the Trust of the Underwriting Agreement,
the consummation by the Trust of the transactions contemplated thereby and the
compliance by the Trust with its obligations thereunder do not violate (i) any
of the provisions of the Certificate or the Trust Agreement, or (ii) any
applicable Delaware law or Delaware administrative regulation.
10. The Preferred Trust Security Holders (other than those Preferred
Trust Security Holders who reside or are domiciled in the State of Delaware)
will have no liability for income taxes imposed by the State of Delaware solely
as a result of their participation in the Trust, and the Trust will not be
liable for any income tax imposed by the State of Delaware.
The opinion expressed in paragraph 3 above is subject, as to enforcement,
to the effect upon the Trust Agreement of (i) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation, fraudulent conveyance or
transfer and other similar laws relating to or affecting the rights and remedies
of creditors generally, (ii) principles of equity, including applicable law
relating to fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law), and (iii) the effect of applicable public
policy on the enforceability of provisions relating to indemnification or
contribution.
We consent to your relying as to matters of Delaware law upon this opinion
in connection with the Underwriting Agreement. We also consent to Morrison Cohen
Singer & Weinstein, LLP's, Phillip R. Halverson's and Thelen Reid & Priest LLP's
relying as to matters of Delaware law upon this opinion in connection with
opinions to be rendered by them on the date hereof pursuant to the Underwriting
Agreement. Further, we consent to the reliance by The Bank of New York (in its
capacity as Debenture Trustee under the Subordinated Indenture, as trustee under
A-4
the Guarantee, and as Property Trustee under the Trust Agreement) and The Bank
of New York (Delaware) (in its capacity as Delaware Trustee under the Trust
Agreement) as to matters of Delaware law upon this opinion in connection with
the matters set forth herein. Except as stated above, without our prior written
consent, this opinion may not be furnished or quoted to, or relied upon by, any
other Person for any purpose.
Very truly yours,
A-5
ANNEX B
[LETTERHEAD OF THELEN REID & PRIEST LLP]
New York, New York
[Date]
[Insert Name(s)
and address(es)
of Underwriters]
Ladies and Gentlemen:
We have acted as counsel to ALLETE (legally incorporated as Minnesota
Power, Inc.), a Minnesota corporation (the "Company"), in connection with the
transactions contemplated by the Underwriting Agreement dated , 2001
among the Company, [Name of Trust] (the "Trust") and the Underwriters named
therein (the "Underwriting Agreement"), including, among others, (i) the
issuance by the Trust, a statutory business trust organized under the Delaware
Business Trust Act (the "Delaware Act") of Preferred Trust Securities (the
"Preferred Trust Securities") having an aggregate liquidation amount of
$ ,000,000, (ii) the issuance by the Company of $ principal amount of
its Junior Subordinated Debentures, Series (the "Debentures") and (iii) the
guarantee by the Company of the Preferred Trust Securities pursuant to a
Guarantee Agreement, dated the date hereof, between the Company and The Bank of
New York, as trustee (the "Guarantee").
Terms not otherwise defined herein are used with the meanings ascribed to
them in the Underwriting Agreement.
In so acting we have participated in or reviewed the corporate proceedings
in connection with the authorization, execution and delivery of the Underwriting
Agreement, the Trust Agreement, the Indenture, the Debentures and the Guarantee.
In addition, we have reviewed the petition filed by the Company with the
Minnesota Public Utilities Commission seeking authorization for the issuance of
the Preferred Trust Securities, and the order issued by said Commission in
response to said petition. We have also examined such other documents and
satisfied ourselves as to such other matters as we have deemed necessary as a
basis for the conclusions of law contained in the opinions expressed below. We
have relied as to various questions of fact upon the representations and
warranties of the Company contained in the Underwriting Agreement and, where we
deemed appropriate, on certificates of public officials. We have relied upon a
certificate of the Trustee under the Indenture as to the due authentication of
the Debentures. In our examination we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity to original documents of all documents submitted to us as
photostatic or certified copies.
Based on the foregoing and subject to the qualifications and limitations
set forth herein, we are of the opinion that:
1. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
2. The Indenture, the Trust Agreement and the Guarantee have been duly
qualified under the Trust Indenture Act.
3. The Debentures and the Indenture have been duly authorized, executed and
delivered by the Company; the Debentures, when issued against payment therefor
as contemplated by the Trust Agreement, will be entitled to the benefits of the
Indenture; and the Debentures (when so issued) and the Indenture are legal,
valid and binding obligations of the Company enforceable against the Company in
accordance with their respective terms, except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency or other laws affecting enforcement of
other creditors' rights generally and by general principles of equity (whether
such enforceability is considered in a proceeding in equity or in law) and (ii)
rights of acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability.
4. The Guarantee has been duly authorized, executed and delivered by the
Company, and is enforceable against the Company in accordance with its terms,
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or other laws affecting enforcement of other creditors' rights
generally and by general principles of equity (whether such enforceability is
considered in a proceeding in equity or in law) and (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
5. The statements made in the Prospectus under the captions ["Description
of Preferred Trust Securities and Common Trust Securities," "Description of the
Junior Subordinated Debentures," "Description of the Guarantee", "Certain Terms
of the Preferred Trust Securities" and "Certain Terms of the Junior Subordinated
Debentures"] insofar as they purport to constitute summaries of the terms of the
documents referred to therein, constitute accurate summaries of the terms of
such documents in all material respects.
6. Neither the Company nor the Trust is an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended.
B-2
7. The Registration Statement as of the Effective Date, and the Prospectus
at the time it was filed with the Commission pursuant to Rule 424 (except for
the financial statements and schedules and other financial and statistical data
contained or incorporated by reference therein and except for that part of the
Registration Statement that constitutes the Statements of Eligibility on Form
T-1, as to which we do not express any opinion) complied as to form in all
material respects with the Securities Act and the applicable instructions, rules
and regulations of the Commission thereunder; the Incorporated Documents (except
as to the financial statements and schedules and other financial and statistical
data contained therein, as to which we do not express any opinion), at the time
they were filed with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder; and the
Registration Statement has become and is effective under the Securities Act and,
to our knowledge, no proceedings for a stop order with respect thereto are
pending or threatened under Section 8 of the Securities Act.
8. An authorizing order has been issued by the Minnesota Public Utilities
Commission certifying the Company's capital structure and authorizing the
issuance and sale of the Debentures and the Guarantee, and to the best of our
knowledge, said order is still in full force and effect; and no other approval,
authorization, consent or order of any public board or body (other than in
connection or in compliance with the provisions of the blue-sky laws of any
jurisdiction, as to which we do not express any opinion) is legally required for
the authorization of the issue and sale by the Company of the Debentures and the
issuance by the Company of the Guarantee.
We herewith confirm as our opinion the statements under the caption
["Material United States Federal Income Tax Matters with Respect to the
Preferred Trust Securities"] in the Prospectus.
In the course of the preparation of the information relating to the Company
contained in the Prospectus (including the Incorporated Documents) we had
discussions with certain of its officers and representatives, with other counsel
for the Company, with PricewaterhouseCoopers LLP, the Company's independent
certified public accountants who audited certain of the financial statements
contained in the Incorporated Documents, and with certain of your officers and
employees and your counsel, but we made no independent verification of the
accuracy or completeness of the representations and statements made to us by the
Company or the information included by the Company in the Prospectus (including
the Incorporated Documents) and take no responsibility therefor except as set
forth in the immediately preceding paragraph and in paragraph 5 above. However,
our examination of the information relating to the Company contained in the
Registration Statement and the Prospectus and our discussions did not disclose
to us anything which gives us reason to believe that (except as to financial
statements and schedules and other financial and statistical data and except as
to that part of the Registration Statement that constitutes the Statements of
Eligibility on Form T-1, as to which we do not express any belief) (i) the
Registration Statement, as of the Effective Date, included an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or (ii) the
Prospectus at the time it was filed with the Commission pursuant to Rule 424,
included or on the date hereof includes an untrue statement of a material fact
or on such dates omitted or omits to state a material fact necessary in order to
B-3
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
We are members of the New York Bar and do not hold ourselves out as experts
in the laws of the State of Minnesota. As to all matters of Minnesota law, we
have, with your consent, relied upon the opinion of Philip R. Halverson, Esq.,
Vice President, General Counsel and Secretary for the Company; and as to all
matters of Delaware law, we have, with your consent, relied upon the opinion of
Richards, Layton & Finger, P.A., Wilmington, Delaware, special counsel for the
Company and the Trust. We believe that you and we are justified in relying on
such opinions.
Very truly yours,
THELEN REID & PRIEST LLP
B-4
ANNEX C
[LETTERHEAD OF PHILIP R. HALVERSON, ESQ., VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY OF ALLETE]
[Date]
[Insert Name(s)
and address(es)
of Underwriters]
Ladies and Gentlemen:
I am General Counsel to ALLETE (legally incorporated as Minnesota Power,
Inc.), a Minnesota corporation (the "Company") and have acted in that capacity
in connection with the transactions contemplated by the Underwriting Agreement
dated , 2001 among the Company, [Name of Trust] (the "Trust") and the
Underwriters named therein (the "Underwriting Agreement"), including, among
others, (i) the issuance by the Trust, a statutory business trust organized
under the Delaware Business Trust Act (the "Delaware Act"), of Preferred Trust
Securities (the "Preferred Trust Securities") having an aggregate liquidation
amount of $ ,000,000, (ii) the issuance by the Company of $
principal amount of its Junior Subordinated Debentures, Series (the
"Debentures"), (iii) the guarantee by the Company of the Preferred Trust
Securities pursuant to a Guarantee Agreement, dated the date hereof, between the
Company and The Bank of New York, as trustee (the "Guarantee") and (iv) the
petition filed by the Company with Minnesota Power Utilities Commission seeking
authorization to issue the Preferred Trust Securities.
Terms not otherwise defined herein are used with the meanings ascribed to
them in the Underwriting Agreement.
In so acting I have participated in or reviewed the corporate proceedings
in connection with the authorization, execution and delivery of the Underwriting
Agreement, the Trust Agreement, the Indenture, the Debentures and the Guarantee.
I have also examined such other documents and satisfied myself as to such other
matters as I have deemed necessary as a basis for the conclusions of law
contained in the opinions expressed below. I have relied as to various questions
of fact upon the representations and warranties of the Company contained in the
Underwriting Agreement and, where I deemed appropriate, on certificates of
public officials. I have relied upon a certificate of the trustee under the
Indenture as to the due authentication of the Debentures. In my examination I
have assumed the genuineness of all signatures and the authenticity of all
documents submitted to me as originals and the conformity to original documents
of all documents submitted to me as photostatic or certified copies.
Upon the basis of my familiarity with these transactions and with the
affairs and properties of the Company generally, I am of the opinion that:
1. The Company is a corporation duly authorized, validly existing and
in good standing under the laws of the State of Minnesota, and has the corporate
power and authority: (a) to execute, deliver and perform its obligations under
the Underwriting Agreement and the Indenture, (b) to issue the Debentures and
the Guarantee and to incur the indebtedness to be evidenced thereby, and (c) to
own its property and assets and to conduct the business which it is now
conducting.
2. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
3. The Indenture, the Trust Agreement and the Guarantee have been duly
qualified under the Trust Indenture Act.
4. The Debentures and the Indenture have been duly authorized,
executed and delivered by the Company; the Debentures, when issued against
payment therefor as contemplated by the Trust Agreement, will be entitled to the
benefits of the Indenture; and the Debentures (when so issued) and the Indenture
are legal, valid and binding obligations of the Company enforceable against the
Company in accordance with their respective terms, except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or other laws
affecting enforcement of other creditors' rights generally and by general
principles of equity (whether such enforceability is considered in a proceeding
in equity or in law) and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
5. The Guarantee has been duly authorized, executed and delivered by
the Company, and is enforceable against the Company in accordance with its
terms, except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or other laws affecting enforcement of other creditors' rights
generally and by general principles of equity (whether such enforceability is
considered in a proceeding in equity or in law) and (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
6. The statements made in the Prospectus under the captions
["Description of Preferred Trust Securities and Common Trust Securities,"
"Description of the Junior Subordinated Debentures," "Description of the
Guarantee", "Certain Terms of the Preferred Trust Securities" and "Certain Terms
of the Junior Subordinated Debentures"], insofar as they purport to constitute
C-2
summaries of the terms of the documents referred to therein, constitute accurate
summaries of the terms of such documents in all material respects.
7. Neither the Company nor the Trust is an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended.
8. The Company is a public utility corporation duly authorized by its
Articles of Incorporation to conduct the business which it is now conducting as
set forth in the Prospectus and the Company holds valid and subsisting
franchises, licenses and permits authorizing it to carry on the utility business
in which it is engaged.
9. Each Material Subsidiary (as defined in the Agreement) of the Company
is a validly organized and existing corporation under the laws of the State of
its incorporation and is duly qualified to do business, and is doing business,
in such State and in each other State in which the failure to qualify as a
foreign corporation would be material to the Company and its subsidiaries, taken
as a whole.
10. Other than as stated in the Registration Statement and the
Prospectus (or described in the Incorporated Documents), there are no material
pending legal proceedings to which the Company or any of its subsidiaries is a
party or of which property of the Company or any of its subsidiaries is the
subject which if determined adversely would have a material effect on the
Company and its subsidiaries taken as a whole, and to my knowledge, no such
proceedings are contemplated.
11. After due inquiry, I do not know of any legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or any
of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or of any
statutes, regulations, contract or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
12. Neither the execution by the Company of the Indenture nor the
issue and sale by the Company of the Debentures nor the issue of the Guarantor
nor the consummation by the Company of the transactions contemplated by the
Agreement conflicts with, or results in a breach of, the charter or by-laws of
the Company or any Material Subsidiary or any agreement or instrument known to
me to which the Company or any Material Subsidiary is a party or by which the
Company or any Material Subsidiary is bound, any law or regulation or, so far as
is known to me, any order or regulation of any court, governmental
instrumentality or arbitrator, and which conflict or breach is material to the
Company and its subsidiaries, taken as a whole.
13. To the best of my knowledge, the Company is not currently in
breach of, or in default under, any material written agreement or instrument to
which it is a party or by which it or its property is bound or affected, and
which breach or default is material to the Company and its subsidiaries, taken
as a whole.
14. The Registration Statement, as of the Effective Date, and the
Prospectus at the time it was filed with the Commission pursuant to Rule 424
(except for the financial statements and schedules and other financial and
C-3
statistical data contained or incorporated by reference therein and except for
that part of the Registration Statement that constitutes the Statements of
Eligibility of Form T-1, as to which we do not express any opinion) complied as
to form in all material respects with the Securities Act and the applicable
instructions, rules and regulations of the Commission thereunder; the
Incorporated Documents (except as to the financial statements and schedules and
other financial and statistical data contained therein, as to which we do not
express any opinion), at the time they were filed with the Commission, complied
as to form in all material respects with the requirements of the Exchange Act
and the applicable instructions, rules and regulations of the Commission
thereunder; and the Registration Statement has become and is effective under the
Securities Act and, to our knowledge, no proceedings for a stop order with
respect thereto are pending or threatened under Section 8 of the Securities Act.
15. An authorizing order has been issued by the Minnesota Public
Utilities Commission certifying the Company's capital structure and authorizing
the issuance and sale of the Debentures and the Guarantee and, to the best of
our knowledge, said order is still in full force and effect; and no other
approval, authorization, consent or order of any public board or body (other
than in connection or in compliance with the provisions of the blue-sky laws of
any jurisdiction, as to which we do not express any opinion) is legally required
for the authorization of the issue and sale by the Company of the Debentures and
the issuance by the Company of the Guarantee.
In passing upon the forms of the Registration Statement and the
Prospectus, I necessarily assume the correctness and completeness of the
statements made or included therein by the Company and take no responsibility
therefor, except insofar as such statements relate to me and as set forth in the
Prospectus under the headings "Experts" and "Legal Opinions" and in paragraphs 6
and 15 above. In the course of the preparation by the Company of the
Registration Statement and the Prospectus, I had conferences with certain of its
officers and representatives, with other counsel for the Company and with
PricewaterhouseCoopers LLP, the independent certified public accountants who
examined certain of the Company's financial statements incorporated by reference
in the Registration Statement. My examination of the Registration Statement and
the Prospectus, and my discussions in the above-mentioned conferences did not
disclose to me any information which gives me reason to believe that, at the
Effective Date, the Registration Statement contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus at the time it was filed electronically with the Commission pursuant
to Rule 424, and the Prospectus, as amended or supplemented at the date hereof,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading. I do
not express any opinion or belief as to the financial statements or other
financial or statistical data contained in the Registration Statement or in the
Prospectus.
As to all matters of Minnesota law, Thelen Reid & Priest LLP and
Morrison Cohen Singer & Weinstein, LLP are hereby authorized to rely upon this
opinion as though it was rendered to each of them.
Very truly yours,
PHILIP R. HALVERSON
C-4
EXHIBIT 4(C)3
================================================================================
MINNESOTA POWER, INC.
(DOING BUSINESS AS ALLETE)
TO
THE BANK OF NEW YORK
(FORMERLY IRVING TRUST COMPANY)
AND
DOUGLAS J. MACINNES
(SUCCESSOR TO RICHARD H. WEST, J. A. AUSTIN,
E. J. MCCABE, D. W. MAY, J. A. VAUGHAN AND W. T. CUNNINGHAM)
AS TRUSTEES UNDER MINNESOTA POWER,
INC.'S MORTGAGE AND DEED OF TRUST DATED
AS OF SEPTEMBER 1, 1945
------------------------
SUPPLEMENTAL INDENTURE
------------
PROVIDING AMONG OTHER THINGS FOR
FIRST MORTGAGE BONDS, % SERIES DUE
--- -------------
( SERIES)
------------
DATED AS OF
-----------
================================================================================
SUPPLEMENTAL INDENTURE
---------------
THIS INDENTURE, dated as of , by and between MINNESOTA POWER,
--------------
INC. (DOING BUSINESS AS ALLETE), a corporation of the State of Minnesota, whose
post office address is 30 West Superior Street, Duluth, Minnesota 55802
(hereinafter sometimes called the "Company"), and THE BANK OF NEW YORK (formerly
Irving Trust Company), a corporation of the State of New York, whose post office
address is 101 Barclay Street, New York, New York 10286 (hereinafter sometimes
called the "Corporate Trustee"), and DOUGLAS J. MACINNES (successor to Richard
H. West, J. A. Austin, E. J. McCabe, D. W. May, J. A. Vaughan and W. T.
Cunningham), whose post office address is 1784 W. McGalliard Avenue, Hamilton,
New Jersey 08610 (said Douglas J. MacInnes being hereinafter sometimes called
the "Co-Trustee" and the Corporate Trustee and the Co-Trustee being hereinafter
together sometimes called the "Trustees"), as Trustees under the Mortgage and
Deed of Trust, dated as of September 1, 1945, between the Company (formerly
Minnesota Power & Light Company) and Irving Trust Company and Richard H. West,
as Trustees, securing bonds issued and to be issued as provided therein
(hereinafter sometimes called the "Mortgage"), reference to which mortgage is
hereby made, this indenture (hereinafter sometimes called the "
----------
Supplemental Indenture") being supplemental thereto:
WHEREAS, the Mortgage was filed and recorded in various official records in
the State of Minnesota; and
WHEREAS, an instrument, dated as of October 16, 1957, was executed and
delivered under which J. A. Austin succeeded Richard H. West as Co-Trustee under
the Mortgage, and such instrument was filed and recorded in various official
records in the State of Minnesota; and
WHEREAS, an instrument, dated as of April 4, 1967, was executed and
delivered under which E. J. McCabe in turn succeeded J. A. Austin as Co-Trustee
under the Mortgage, and such instrument was filed and recorded in various
official records in the State of Minnesota; and
WHEREAS, under the Sixth Supplemental Indenture, dated as of August 1,
1975, to which reference is hereinafter made, D. W. May in turn succeeded E. J.
McCabe as Co-Trustee under the Mortgage; and
WHEREAS, an instrument, dated as of June 25, 1984, was executed and
delivered under which J. A. Vaughan in turn succeeded D. W. May as Co-Trustee
under the Mortgage, and such instrument was filed and recorded in various
official records in the State of Minnesota; and
WHEREAS, an instrument, dated as of July 27, 1988, was executed and
delivered under which W. T. Cunningham in turn succeeded J. A. Vaughan as
Co-Trustee under the Mortgage, and such instrument was filed and recorded in
various official records in the State of Minnesota; and
WHEREAS, an instrument, dated as of April 15, 1999, was executed and
delivered under which Douglas J. MacInnes in turn succeeded W. T. Cunningham as
Co-Trustee under the Mortgage, and such instrument was filed and recorded in
various official records in the State of Minnesota; and
2
WHEREAS, by the Mortgage the Company covenanted, among other things, that
it would execute and deliver such supplemental indenture or indentures and such
further instruments and do such further acts as might be necessary or proper to
carry out more effectually the purposes of the Mortgage and to make subject to
the lien of the Mortgage any property thereafter acquired and intended to be
subject to the lien thereof; and
WHEREAS, for said purposes, among others, the Company executed and
delivered the following indentures supplemental to the Mortgage:
DESIGNATION DATED AS OF
----------- -----------
First Supplemental Indenture.................. March 1, 1949
Second Supplemental Indenture................. July 1, 1951
Third Supplemental Indenture.................. March 1, 1957
Fourth Supplemental Indenture................. January 1, 1968
Fifth Supplemental Indenture.................. April 1, 1971
Sixth Supplemental Indenture.................. August 1, 1975
Seventh Supplemental Indenture................ September 1, 1976
Eighth Supplemental Indenture................. September 1, 1977
Ninth Supplemental Indenture.................. April 1, 1978
Tenth Supplemental Indenture.................. August 1, 1978
Eleventh Supplemental Indenture............... December 1, 1982
Twelfth Supplemental Indenture................ April 1, 1987
Thirteenth Supplemental Indenture............. March 1, 1992
Fourteenth Supplemental Indenture............. June 1, 1992
Fifteenth Supplemental Indenture.............. July 1, 1992
Sixteenth Supplemental Indenture.............. July 1, 1992
Seventeenth Supplemental Indenture............ February 1, 1993
Eighteenth Supplemental Indenture............. July 1, 1993
Nineteenth Supplemental Indenture............. February 1, 1997
Twentieth Supplemental Indenture.............. November 1, 1997
*
which supplemental indentures were filed and recorded in various official
records in the State of Minnesota; and
WHEREAS, for said purposes, among others, the Company also executed and
delivered a ** Supplemental Indenture, dated as of ,
------------- --------------
which was filed and recorded in various official records in the State of
Minnesota as follows:
- ------------------------
* Here will be inserted additional executed Supplemental Indentures.
** Here will be inserted the most recent executed Supplemental Indenture(s).
3
REGISTRAR
COUNTY IN RECORDER OF TITLES
MINNESOTA DATE DOC. NO. DATE DOC. NO.
- --------- ---- -------- ---- --------
Aitkin...............................
Benton...............................
Carlton..............................
Cass.................................
Crow Wing............................
Hubbard..............................
Itasca...............................
Koochiching..........................
Lake.................................
Morrison.............................
Otter Tail...........................
Pine.................................
Roseau...............................
St. Louis............................
Stearns..............................
Todd.................................
Wadena...............................
Office of Secretary of State of Minnesota; recorded as Document No.
------------
; and
- ---------
WHEREAS, the Company has heretofore issued, in accordance with the
provisions of the Mortgage, as heretofore supplemented, the following series of
First Mortgage Bonds:
PRINCIPAL PRINCIPAL
AMOUNT AMOUNT
SERIES ISSUED OUTSTANDING
- ------ ---------- -----------
3-1/8% Series due 1975....................... $26,000,000 None
3-1/8% Series due 1979....................... 4,000,000 None
3-5/8% Series due 1981....................... 10,000,000 None
4-3/4% Series due 1987....................... 12,000,000 None
6-1/2% Series due 1998....................... 18,000,000 None
8-1/8% Series due 2001....................... 23,000,000 None
10-1/2% Series due 2005...................... 35,000,000 None
8.70% Series due 2006........................ 35,000,000 None
8.35% Series due 2007........................ 50,000,000 None
9-1/4% Series due 2008....................... 50,000,000 None
Pollution Control Series A................... 111,000,000 None
Industrial Development Series A.............. 2,500,000 None
Industrial Development Series B.............. 1,800,000 None
Industrial Development Series C.............. 1,150,000 None
Pollution Control Series B................... 13,500,000 None
4
PRINCIPAL PRINCIPAL
AMOUNT AMOUNT
SERIES ISSUED OUTSTANDING
- ------ ---------- -----------
Pollution Control Series C................... 2,000,000 None
Pollution Control Series D................... 3,600,000 None
7-3/4% Series due 1994....................... 55,000,000 None
7-3/8% Series due March 1, 1997.............. 60,000,000 None
7-3/4% Series due June 1, 2007............... 55,000,000 50,000,000
7-1/2% Series due August 1, 2007............. 35,000,000 35,000,000
Pollution Control Series E................... 111,000,000 111,000,000
7% Series due March 1, 2008.................. 50,000,000 50,000,000
6-1/4% Series due July 1, 2003............... 25,000,000 25,000,000
7% Series due February 15, 2007.............. 60,000,000 60,000,000
6.68% Series due November 15, 2007........... 20,000,000 20,000,000
Floating Rate Series due October 20, 2003.... 250,000,000 250,000,000
*
which bonds are also hereinafter sometimes called bonds of the First through
** Series, respectively; and
- -----------
WHEREAS, Section 8 of the Mortgage provides that the form of each series of
bonds (other than the First Series) issued thereunder and of coupons to be
attached to coupon bonds of such series shall be established by Resolution of
the Board of Directors of the Company and that the form of such series, as
established by said Board of Directors, shall specify the descriptive title of
the bonds and various other terms thereof, and may also contain such provisions
not inconsistent with the provisions of the Mortgage as the Board of Directors
may, in its discretion, cause to be inserted therein expressing or referring to
the terms and conditions upon which such bonds are to be issued and/or secured
under the Mortgage; and
WHEREAS, Section 120 of the Mortgage provides, among other things, that any
power, privilege or right expressly or impliedly reserved to or in any way
conferred upon the Company by any provision of the Mortgage, whether such power,
privilege or right is in any way restricted or is unrestricted, may (to the
extent permitted by law) be in whole or in part waived or surrendered or
subjected to any restriction if at the time unrestricted or to additional
restriction if already restricted, and the Company may enter into any further
covenants, limitations or restrictions for the benefit of any one or more series
of bonds issued thereunder, or the Company may cure any ambiguity contained
therein, or in any supplemental indenture, or may establish the terms and
provisions of any series of bonds (other than said First Series) by an
instrument in writing executed and acknowledged by the Company in such manner as
would be necessary to entitle a conveyance of real estate to record in all of
- ------------------------
* Here will be inserted additional outstanding series.
** Here will be inserted the most recent outstanding series.
5
the states in which any property at the time subject to the lien of the Mortgage
shall be situated; and
WHEREAS, the Company now desires to create new series of bonds and
----
(pursuant to the provisions of Section 120 of the Mortgage) to add to its
covenants and agreements contained in the Mortgage, as heretofore supplemented,
certain other covenants and agreements to be observed by it and to alter and
amend in certain respects the covenants and provisions contained in the
Mortgage, as heretofore supplemented; and
WHEREAS, the execution and delivery by the Company of this
-----------
Supplemental Indenture, and the terms of the bonds of the Series,
-----------
hereinafter referred to, have been duly authorized by the Board of Directors of
the Company by appropriate resolutions of said Board of Directors;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That the Company, in consideration of the premises and of One Dollar to it
duly paid by the Trustees at or before the ensealing and delivery of these
presents, the receipt whereof is hereby acknowledged, and in further evidence of
assurance of the estate, title and rights of the Trustees and in order further
to secure the payment of both the principal of and interest and premium, if any,
on the bonds from time to time issued under the Mortgage, as heretofore
supplemented, according to their tenor and effect and the performance of all the
provisions of the Mortgage (including any instruments supplemental thereto and
any modification made as in the Mortgage provided) and of said bonds, hereby
grants, bargains, sells, releases, conveys, assigns, transfers, mortgages,
pledges, sets over and confirms (subject, however, to Excepted Encumbrances)
unto THE BANK OF NEW YORK and DOUGLAS J. MACINNES, as Trustees under the
Mortgage, and to their successor or successors in said trust, and to said
Trustees and their successors and assigns forever, all property, real, personal
and mixed, of the kind or nature specifically mentioned in the Mortgage, as
heretofore supplemented, or of any other kind or nature acquired by the Company
after the date of the execution and delivery of the Mortgage, as heretofore
supplemented (except any herein or in the Mortgage, as heretofore supplemented,
expressly excepted), now owned or, subject to the provisions of subsection (I)
of Section 87 of the Mortgage, hereafter acquired by the Company (by purchase,
consolidation, merger, donation, construction, erection or in any other way) and
wheresoever situated, including (without in anywise limiting or impairing by the
enumeration of the same the scope and intent of the foregoing or of any general
description contained in this Supplemental Indenture) all lands,
-------------
power sites, flowage rights, water rights, water locations, water
appropriations, ditches, flumes, reservoirs, reservoir sites, canals, raceways,
dams, dam sites, aqueducts, and all other rights or means for appropriating,
conveying, storing and supplying water; all rights of way and roads; all plants
for the generation of electricity by steam, water and/or other power; all power
houses, gas plants, street lighting systems, standards and other equipment
incidental thereto, telephone, radio and television systems, air-conditioning
systems and equipment incidental thereto, water works, water systems, steam heat
and hot water plants, substations, lines, service and supply systems, bridges,
culverts, tracks, ice or refrigeration plants and equipment, offices, buildings
and other structures and the equipment thereof; all machinery, engines, boilers,
dynamos, electric, gas and other machines, regulators, meters, transformers,
generators, motors, electrical, gas and mechanical appliances, conduits, cables,
6
water, steam heat, gas or other pipes, gas mains and pipes, service pipes,
fittings, valves and connections, pole and transmission lines, wires, cables,
tools, implements, apparatus, furniture and chattels; all municipal and other
franchises, consents or permits; all lines for the transmission and distribution
of electric current, gas, steam heat or water for any purpose including towers,
poles, wires, cables, pipes, conduits, ducts and all apparatus for use in
connection therewith; all real estate, lands, easements, servitudes, licenses,
permits, franchises, privileges, rights of way and other rights in or relating
to real estate or the occupancy of the same and (except as herein or in the
Mortgage, as heretofore supplemented, expressly excepted) all the right, title
and interest of the Company in and to all other property of any kind or nature
appertaining to and/or used and/or occupied and/or enjoyed in connection with
any property hereinbefore or in the Mortgage, as heretofore supplemented,
described.
TOGETHER WITH all and singular the tenements, hereditaments, prescriptions,
servitudes and appurtenances belonging or in anywise appertaining to the
aforesaid property or any part thereof, with the reversion and reversions,
remainder and remainders and (subject to the provisions of Section 57 of the
Mortgage) the tolls, rents, revenues, issues, earnings, income, product and
profits thereof, and all the estate, right, title and interest and claim
whatsoever, at law as well as in equity, which the Company now has or may
hereafter acquire in and to the aforesaid property and franchises and every part
and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the provisions of
subsection (I) of Section 87 of the Mortgage, all the property, rights, and
franchises acquired by the Company (by purchase, consolidation, merger,
donation, construction, erection or in any other way) after the date hereof,
except any herein or in the Mortgage, as heretofore supplemented, expressly
excepted, shall be and are as fully granted and conveyed hereby and by the
Mortgage and as fully embraced within the lien hereof and the lien of the
Mortgage as if such property, rights and franchises were now owned by the
Company and were specifically described herein or in the Mortgage and conveyed
hereby or thereby.
PROVIDED that the following are not and are not intended to be now or
hereafter granted, bargained, sold, released, conveyed, assigned, transferred,
mortgaged, hypothecated, affected, pledged, set over or confirmed hereunder and
are hereby expressly excepted from the lien and operation of this
-------------
Supplemental Indenture and from the lien and operation of the Mortgage, namely:
(1) cash, shares of stock, bonds, notes and other obligations and other
securities not hereafter specifically pledged, paid, deposited, delivered or
held under the Mortgage or covenanted so to be; (2) merchandise, equipment,
apparatus, materials or supplies held for the purpose of sale or other
disposition in the usual course of business; fuel, oil and similar materials and
supplies consumable in the operation of any of the properties of the Company;
all aircraft, rolling stock, trolley coaches, buses, motor coaches, automobiles
and other vehicles and materials and supplies held for the purpose of repairing
or replacing (in whole or part) any of the same; all timber, minerals, mineral
rights and royalties; (3) bills, notes and accounts receivable, judgments,
demands and choses in action, and all contracts, leases and operating agreements
not specifically pledged under the Mortgage or covenanted so to be; the
Company's contractual rights or other interest in or with respect to tires not
owned by the Company; (4) the last day of the term of any lease or leasehold
which may hereafter become subject to the lien of the Mortgage; (5) electric
7
energy, gas, steam, ice, and other materials or products generated,
manufactured, produced or purchased by the Company for sale, distribution or use
in the ordinary course of its business; and (6) the Company's franchise to be a
corporation; provided, however, that the property and rights expressly excepted
from the lien and operation of this Supplemental Indenture and
-------------
from the lien and operation of the Mortgage in the above subdivisions (2) and
(3) shall (to the extent permitted by law) cease to be so excepted in the event
and as of the date that either or both of the Trustees or a receiver or trustee
shall enter upon and take possession of the Mortgaged and Pledged Property in
the manner provided in Article XIII of the Mortgage by reason of the occurrence
of a Default as defined in Section 65 thereof.
TO HAVE AND TO HOLD all such properties, real, personal and mixed, granted,
bargained, sold, released, conveyed, assigned, transferred, mortgaged, pledged,
set over or confirmed by the Company as aforesaid, or intended so to be, unto
the Trustees and their successors and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the same terms,
trusts and conditions and subject to and with the same provisos and covenants as
are set forth in the Mortgage, as supplemented, this Supplemental
-----------
Indenture being supplemental thereto.
AND IT IS HEREBY COVENANTED by the Company that all the terms, conditions,
provisos, covenants and provisions contained in the Mortgage, as heretofore
supplemented, shall affect and apply to the property hereinbefore described and
conveyed and to the estate, rights, obligations and duties of the Company and
Trustees and the beneficiaries of the trust with respect to said property, and
to the Trustees and their successors in the trust in the same manner and with
the same effect as if said property had been owned by the Company at the time of
the execution of the Mortgage, and had been specifically and at length described
in and conveyed to said Trustees by the Mortgage as a part of the property
therein stated to be conveyed.
The Company further covenants and agrees to and with the Trustees and their
successors in said trust under the Mortgage as follows:
ARTICLE I
SERIES OF BONDS
------------
SECTION 1. There shall be a series of bonds designated " % Series due
-----
" (herein sometimes referred to as the " Series"), each
- -------------- ----------
of which shall also bear the descriptive title "First Mortgage Bond", and the
form thereof, which shall be established by Resolution of the Board of Directors
of the Company, shall contain suitable provisions with respect to the matters
hereinafter in this Section specified. Bonds of the Series shall be
----------
dated as in Section 10 of the Mortgage provided, mature on , be
-------------
issued as fully registered bonds in denominations of One Thousand Dollars and,
at the option of the Company, in any multiple or multiples of One Thousand
Dollars (the exercise of such option to be evidenced by the execution and
delivery thereof) and bear interest [at the rate of % per annum, payable
-----
8
semi-annually on and of each year]*, commencing
-------- -----------
, the principal of and interest on each said bond to be payable
- ---------------
at the office or agency of the Company in the Borough of Manhattan, The City of
New York, in such coin or currency of the United States of America as at the
time of payment is legal tender for public and private debts.
**(I) Bonds of the Series shall not be redeemable prior to
-----------
.
- ---------
**(II) Bonds of the Series shall be redeemable on and after
-----------
, in whole at any time, or in part from time to time, prior to
- --------------
maturity, upon notice as provided in Section 52 of the Mortgage mailed at least
30 days prior to the date fixed for redemption, at 100% of the principal amount
of the bonds to be redeemed together, in each case, with accrued interest to the
date fixed for redemption.
(III) At the option of the registered owner, any bonds of the
----------
Series, upon surrender thereof for cancellation at the office or agency of the
Company in the Borough of Manhattan, The City of New York, together with a
written instrument of transfer wherever required by the Company duly executed by
the registered owner or by his duly authorized attorney, shall (subject to the
provisions of Section 12 of the Mortgage) be exchangeable for a like aggregate
principal amount of bonds of the same series of other authorized denominations.
Bonds of the Series shall be transferable (subject to the
----------
provisions of Section 12 of the Mortgage) at the office or agency of the Company
in the Borough of Manhattan, The City of New York.
Upon any exchange or transfer of bonds of the Series, the
-----------
Company may make a charge therefor sufficient to reimburse it for any tax or
taxes or other governmental charge, as provided in Section 12 of the Mortgage,
but the Company hereby waives any right to make a charge in addition thereto for
any exchange or transfer of bonds of the Series.
----------
Upon the delivery of this Supplemental Indenture and upon
------------
compliance with the applicable provisions of the Mortgage, there shall be an
initial issue of bonds of the Series for the aggregate principal
----------
amount of $ .
----------
- ------------------------
* Bracketed material to be changed if bonds of the Series to which this
Supplemental Indenture shall relate shall bear interest at a rate which may
be changed during the life of such bonds or if such bonds shall bear
interest payable other than semi-annually.
** These paragraphs will be omitted or changed if the bonds of the series to
which this Supplemental Indenture shall relate shall not be subject to
redemption or shall be subject to redemption on terms different from those
described above.
9
ARTICLE II
DIVIDEND COVENANT
SECTION 2. The Company covenants and agrees that the provisions of
subdivision (III) of Section 39 of the Mortgage, which are to remain in effect
so long as any of the bonds of the First Series shall remain Outstanding, shall
remain in full force and effect so long as any bonds of the First through
Series shall remain Outstanding.
- ----------
[ARTICLE III
AMENDMENT TO THE MORTGAGE
NUCLEAR FUEL
SECTION 3. Pursuant to the reservation of right in Section 2 of the Fifth
Supplemental Indenture dated as of April 1, 1971 and there being no Outstanding
bonds of any series created prior to the Sixth Series, the Company hereby amends
the Mortgage, as supplemented, as set forth in paragraphs (A), (B) and (C) of
Section 2 of such Fifth Supplemental Indenture (relating to Nuclear Fuel).]*
ARTICLE [IV]
MISCELLANEOUS PROVISIONS
SECTION [4]. Section 126 of the Mortgage, as heretofore amended, is hereby
further amended by adding the words "and ,"** after the words "and
-----------
."***
- ---------
SECTION [5]. Subject to the amendments provided for in this
-------------
Supplemental Indenture, the terms defined in the Mortgage, as heretofore
supplemented, shall, for all purposes of this Supplemental
-------------
Indenture, have the meanings specified in the Mortgage, as heretofore
supplemented.
SECTION [6]. The holders of bonds of the Series consent that
-------------
the Company may, but shall not be obligated to, fix a record date for the
purpose of determining the holders of bonds of the Series entitled
-------------
to consent to any amendment, supplement or waiver. If a record date is fixed,
those persons who were holders at such record date (or their duly designated
- ------------------------
* The Company may insert the bracketed language in any one Supplemental
Indenture executed after all bonds of the Fifth Series have been retired.
** Here will be inserted the maturity date of the most recent series of bonds.
*** Here will be inserted the maturity date of the series of bonds issued
immediately before the most recent series of bonds.
10
proxies), and only those persons, shall be entitled to consent to such
amendment, supplement or waiver or to revoke any consent previously given,
whether or not such persons continue to be holders after such record date. No
such consent shall be valid or effective for more than 90 days after such record
date.
SECTION [7]. The Trustees hereby accept the trusts herein declared,
provided, created or supplemented and agree to perform the same upon the terms
and conditions herein and in the Mortgage set forth and upon the following terms
and conditions:
The Trustees shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental
-------------
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made by the Company solely. In general, each and every term and
condition contained in Article XVII of the Mortgage shall apply to and form part
of this Supplemental Indenture with the same force and effect as
-------------
if the same were herein set forth in full with such omissions, variations and
insertions, if any, as may be appropriate to make the same conform to the
provisions of this Supplemental Indenture.
-------------
SECTION [8]. Whenever in this Supplemental Indenture any
-------------
party hereto is named or referred to, this shall, subject to the provisions of
Articles XVI and XVII of the Mortgage, as heretofore supplemented, be deemed to
include the successors or assigns of such party, and all the covenants and
agreements in this Supplemental Indenture contained by or on
-------------
behalf of the Company, or by or on behalf of the Trustees shall, subject as
aforesaid, bind and inure to the benefit of the respective successors and
assigns of such party whether so expressed or not.
SECTION [9]. Nothing in this Supplemental Indenture,
-------------
expressed or implied, is intended, or shall be construed, to confer upon, or
give to, any person, firm or corporation, other than the parties hereto and the
holders of the bonds and coupons Outstanding under the Mortgage, any right,
remedy, or claim under or by reason of this Supplemental Indenture
-------------
or any covenant, condition, stipulation, promise or agreement hereof, and all
the covenants, conditions, stipulations, promises and agreements in this
Supplemental Indenture contained by and on behalf of the Company
- -------------
shall be for the sole and exclusive benefit of the parties hereto, and of the
holders of the bonds and of the coupons Outstanding under the Mortgage.
SECTION [10]. This Supplemental Indenture shall be executed
-------------
in several counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
SECTION [11]. The Company, the mortgagor named herein, by its execution
hereof acknowledges receipt of a full, true and complete copy of this
Supplemental Indenture.
- -------------
11
IN WITNESS WHEREOF, Minnesota Power, Inc. (doing business as ALLETE) has
caused its corporate name to be hereunto affixed, and this instrument to be
signed and sealed by its President or one of its Vice Presidents, and its
corporate seal to be attested by its Secretary or one of its Assistant
Secretaries for and in its behalf, and The Bank of New York has caused its
corporate name to be hereunto affixed, and this instrument to be signed and
sealed by one of its Vice Presidents or one of its Assistant Vice Presidents and
its corporate seal to be attested by one of its Assistant Treasurers or one of
its Assistant Vice Presidents, and Douglas J. MacInnes has hereunto set his hand
and affixed his seal, all in The City of New York, as of the day and year first
above written.
MINNESOTA POWER, INC.
(DOING BUSINESS AS ALLETE)
By
-------------------------------------
[Name]
[Title]
Attest:
- -----------------------------
[Name]
[Title]
Executed, sealed and delivered by MINNESOTA POWER, INC.
(DOING BUSINESS AS ALLETE) in the presence of:
- -----------------------------
- -----------------------------
12
THE BANK OF NEW YORK
as Trustee
By
-------------------------------------
[Name]
[Title]
Attest:
- -----------------------------
[Name]
[Title]
---------------------------------------
DOUGLAS J. MACINNES
Executed, sealed and delivered by THE BANK OF NEW
YORK and DOUGLAS J. MACINNES in the presence of:
- -----------------------------
- -----------------------------
13
STATE OF MINNESOTA )
) SS.:
COUNTY OF ST. LOUIS )
On this day of , before me, a Notary Public within
----- ----------------
and for said County, personally appeared and
--------------------
, to me personally known, who, being each by me duly sworn,
- -------------------
did say that they are respectively the and the
----------------------
of MINNESOTA POWER, INC. (DOING BUSINESS AS
- -----------------------------
ALLETE) of the State of Minnesota, the corporation named in the foregoing
instrument; that the seal affixed to the foregoing instrument is the corporate
seal of said corporation; that said instrument was signed and sealed in behalf
of said corporation by authority of its Board of Directors; and said
and acknowledged said instrument to be
- -------------------- -------------------
the free act and deed of said corporation.
Personally came before me on this day of ,
----- ---------------
, to me known to be the , and
- -------------------- ------------------------
, to me known to be the , of the
- -------------------- -----------------------
above named MINNESOTA POWER, INC. (DOING BUSINESS AS ALLETE), the corporation
described in and which executed the foregoing instrument, and to me personally
known to be the persons who as such officers executed the foregoing instrument
in the name and behalf of said corporation, who, being by me duly sworn did
depose and say and acknowledge that they are respectively the
and the of said corporation; that the
- --------------------- -------------------
seal affixed to said instrument is the corporate seal of said corporation; and
that they signed, sealed and delivered said instrument in the name and on behalf
of said corporation by authority of its Board of Directors and stockholders, and
said and then and there acknowledged
-------------------- -------------------
said instrument to be the free act and deed of said corporation and that such
corporation executed the same.
On the day of , before me personally came
----- ---------------
and , to me known, who, being by me duly
- -------------------- -------------------
sworn, did depose and say that they respectively reside at
, and
- ---------------------------------------
; that they are respectively the
- ----------------------------------------
and the of MINNESOTA POWER, INC.
- -------------------- -----------------------
(DOING BUSINESS AS ALLETE), one of the corporations described in and which
executed the above instrument; that they know the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation, and that they
signed their names thereto by like order.
GIVEN under my hand and notarial seal this day of .
----- --------------
----------------------------------
Notary Public
14
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this day of , before me, a Notary Public within and
----- --------------
for said County, personally appeared and
--------------------
, to me personally known, who, being each by me duly sworn,
- -------------------
did say that they are respectively a and an of
--------------- ----------------
THE BANK OF NEW YORK of the State of New York, the corporation named in the
foregoing instrument; that the seal affixed to the foregoing instrument is the
corporate seal of said corporation; that said instrument was signed and sealed
in behalf of said corporation by authority of its Board of Directors; and said
and acknowledged said instrument to be
- -------------------- -------------------
the free act and deed of said corporation.
Personally came before me on this day of ,
----- --------------
, to me known to be a , and
- -------------------- ------------------
, known to me to be an , of the above
- -------------------- ------------------
named THE BANK OF NEW YORK, the corporation described in and which executed the
foregoing instrument, and to me personally known to be the persons who as such
officers executed the foregoing instrument in the name and behalf of said
corporation, who, being by me duly sworn did depose and say and acknowledge that
they are respectively a and an of said
----------------- ----------------
corporation; that the seal affixed to said instrument is the corporate seal of
said corporation; and that they signed, sealed and delivered said instrument in
the name and on behalf of said corporation by authority of its Board of
Directors, and said and then and there
-------------------- -------------------
acknowledged said instrument to be the free act and deed of said corporation and
that such corporation executed the same.
On the day of , before me personally came
----- ---------------
and , to me known, who, being by me duly
- -------------------- -------------------
sworn, did depose and say that they respectively reside at
, and ;
- -------------------------------- ---------------------------------------
that they are respectively a and an of
----------------- --------------------
THE BANK OF NEW YORK, one of the corporations described in and which executed
the above instrument; that they know the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation, and that they signed their
names thereto by like order.
GIVEN under my hand and notarial seal this day of .
----- ----------------
----------------------------------
Notary Public, State of New York
15
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this day of , before me personally appeared
----- -------------------
DOUGLAS J. MACINNES, to me known to be the person described in and who executed
the foregoing instrument, and acknowledged that he executed the same as his free
act and deed.
Personally came before me this day of , the above named
----- --------------
DOUGLAS J. MACINNES, to me known to be the person who executed the foregoing
instrument, and acknowledged the same.
On the day of , before me personally came DOUGLAS J.
----- --------------
MACINNES, to me known to be the person described in and who executed the
foregoing instrument, and acknowledged that he executed the same.
GIVEN under my hand and notarial seal this day of .
----- ----------------
----------------------------------
Notary Public, State of New York
EXHIBIT 4(D)1
------------------------------------------
ALLETE
(LEGALLY INCORPORATED AS MINNESOTA POWER, INC.)
TO
LASALLE BANK NATIONAL ASSOCIATION,
TRUSTEE
--------
INDENTURE
(FOR UNSECURED DEBT SECURITIES)
DATED AS OF FEBRUARY 1, 2001
------------------------------------------
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
AFFILIATE...........................................................2
AUTHENTICATING AGENT................................................2
AUTHORIZED OFFICER..................................................2
BOARD OF DIRECTORS..................................................2
BOARD RESOLUTION....................................................2
BUSINESS DAY........................................................2
COMMISSION..........................................................3
COMPANY.............................................................3
COMPANY REQUEST.....................................................3
COMPANY ORDER.......................................................3
CORPORATE TRUST OFFICE..............................................3
CORPORATION.........................................................3
DEFAULTED INTEREST..................................................3
DISCOUNT SECURITY...................................................3
DOLLAR..............................................................3
$...................................................................3
EVENT OF DEFAULT....................................................3
GOVERNMENTAL AUTHORITY..............................................3
GOVERNMENT OBLIGATIONS..............................................3
HOLDER..............................................................4
INDENTURE...........................................................4
INTEREST PAYMENT DATE...............................................4
MATURITY............................................................4
OFFICER'S CERTIFICATE...............................................4
OPINION OF COUNSEL..................................................4
OUTSTANDING.........................................................4
PAYING AGENT........................................................5
PERIODIC OFFERING...................................................5
PERSON..............................................................5
PLACE OF PAYMENT....................................................5
PREDECESSOR SECURITY................................................6
REDEMPTION DATE.....................................................6
REDEMPTION PRICE....................................................6
REGULAR RECORD DATE.................................................6
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE PART
OF THE INDENTURE.
ii
RESPONSIBLE OFFICER.................................................6
SECURITIES..........................................................6
SECURITY REGISTER...................................................6
SECURITY REGISTRAR..................................................6
SPECIAL RECORD DATE.................................................6
STATED INTEREST RATE................................................6
STATED MATURITY.....................................................6
TRUST INDENTURE ACT.................................................6
TRUSTEE.............................................................6
UNITED STATES.......................................................7
SECTION 102. Compliance Certificates and Opinions.......................7
SECTION 103. Form of Documents Delivered to Trustee.....................7
SECTION 104. Acts of Holders............................................8
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.........................11
SECTION 108. Effect of Headings and Table of Contents..................11
SECTION 109. Successors and Assigns....................................11
SECTION 110. Separability Clause.......................................11
SECTION 111. Benefits of Indenture.....................................12
SECTION 112. Governing Law.............................................12
SECTION 113. Legal Holidays............................................12
ARTICLE TWO..................................................................12
SECURITY FORMS...............................................................12
SECTION 201. Forms Generally...........................................12
SECTION 202. Form of Trustee's Certificate of Authentication...........13
ARTICLE THREE................................................................14
THE SECURITIES...............................................................14
SECTION 301. Amount Unlimited; Issuable in Series......................14
SECTION 302. Denominations.............................................17
SECTION 303. Execution, Authentication, Delivery and Dating............17
SECTION 304. Temporary Securities......................................20
SECTION 305. Registration, Registration of Transfer and Exchange.......20
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..........22
SECTION 307. Payment of Interest; Interest Rights Preserved............22
SECTION 308. Persons Deemed Owners.....................................23
SECTION 309. Cancellation by Security Registrar........................24
SECTION 310. Computation of Interest...................................24
SECTION 311. Payment to Be in Proper Currency..........................24
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE PART
OF THE INDENTURE.
iii
ARTICLE FOUR.................................................................25
REDEMPTION OF SECURITIES.....................................................25
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.............31
SECTION 607. Waiver of Certain Covenants...............................32
SECTION 608. Limitation on Liens.......................................32
ARTICLE SEVEN................................................................41
SATISFACTION AND DISCHARGE...................................................41
SECTION 701. Defeasance................................................41
SECTION 702. Satisfaction and Discharge of Indenture...................44
SECTION 703. Application of Trust Money................................44
ARTICLE EIGHT................................................................45
EVENTS OF DEFAULT; REMEDIES..................................................45
SECTION 801. Events of Default.........................................45
SECTION 802. Acceleration of Maturity; Rescission and Annulment........46
SECTION 803. Collection of Indebtedness and Suits for Enforcement by
Trustee.................................................47
SECTION 804. Trustee May File Proofs of Claim..........................48
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE PART
OF THE INDENTURE.
iv
SECTION 805. Trustee May Enforce Claims Without Possession of
Securities..............................................48
SECTION 806. Application of Money Collected............................49
SECTION 807. Limitation on Suits.......................................49
SECTION 808. Unconditional Right of Holders to Receive Principal,
Premium and Interest....................................50
SECTION 809. Restoration of Rights and Remedies........................50
SECTION 810. Rights and Remedies Cumulative............................50
SECTION 811. Delay or Omission Not Waiver..............................50
SECTION 812. Control by Holders of Securities..........................50
SECTION 813. Waiver of Past Defaults...................................51
SECTION 814. Undertaking for Costs.....................................51
SECTION 815. Waiver of Stay or Extension Laws..........................52
ARTICLE NINE.................................................................52
THE TRUSTEE..................................................................52
SECTION 901. Certain Duties and Responsibilities.......................52
SECTION 902. Notice of Defaults........................................53
SECTION 903. Certain Rights of Trustee.................................53
SECTION 904. Not Responsible for Recitals or Issuance of Securities....54
SECTION 905. May Hold Securities.......................................54
SECTION 906. Money Held in Trust.......................................54
SECTION 907. Compensation and Reimbursement............................55
SECTION 908. Disqualification; Conflicting Interests...................55
SECTION 909. Corporate Trustee Required; Eligibility...................56
SECTION 910. Resignation and Removal; Appointment of Successor.........56
SECTION 911. Acceptance of Appointment by Successor....................58
SECTION 912. Merger, Conversion, Consolidation or Succession to
Business................................................59
SECTION 913. Preferential Collection of Claims Against Company.........59
SECTION 914. Co-trustees and Separate Trustees.........................60
SECTION 915. Appointment of Authenticating Agent.......................61
ARTICLE TEN..................................................................63
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY............................63
SECTION 1001. Lists of Holders..........................................63
SECTION 1002. Reports by Trustee and Company............................63
ARTICLE ELEVEN...............................................................63
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER..........................63
SECTION 1101. Company May Consolidate, etc., Only on Certain Terms......63
SECTION 1102. Successor Person Substituted..............................64
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE PART
OF THE INDENTURE.
v
ARTICLE TWELVE...............................................................64
SUPPLEMENTAL INDENTURES......................................................64
SECTION 1201. Supplemental Indentures Without Consent of Holders........64
SECTION 1202. Supplemental Indentures With Consent of Holders...........66
SECTION 1203. Execution of Supplemental Indentures......................67
SECTION 1204. Effect of Supplemental Indentures.........................67
SECTION 1205. Conformity With Trust Indenture Act.......................67
SECTION 1206. Reference in Securities to Supplemental Indentures........68
SECTION 1207. Modification Without Supplemental Indenture...............68
ARTICLE THIRTEEN.............................................................68
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING..................................68
SECTION 1301. Purposes for Which Meetings May Be Called.................68
SECTION 1302. Call, Notice and Place of Meetings........................68
SECTION 1303. Persons Entitled to Vote at Meetings......................69
SECTION 1304. Quorum; Action............................................69
SECTION 1305. Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings.....................70
SECTION 1306. Counting Votes and Recording Action of Meetings...........71
SECTION 1307. Action Without Meeting....................................71
ARTICLE FOURTEEN.............................................................72
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS..............72
SECTION 1401. Liability Solely Corporate................................72
TESTIMONIUM..................................................................72
SIGNATURES AND SEALS.........................................................73
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE PART
OF THE INDENTURE.
vi
ALLETE
(LEGALLY INCORPORATED AS MINNESOTA POWER, INC.)
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF FEBRUARY 1, 2001
TRUST INDENTURE ACT SECTION INDENTURE SECTION
ss.310 (a)(1)..............................................................909
(a)(2)..............................................................909
(a)(3)..............................................................914
(a)(4)...................................................Not Applicable
(b).................................................................908
910
ss.311 (a).................................................................913
(b).................................................................913
(c).................................................................913
ss.312 (a)................................................................1001
(b)................................................................1001
(c)................................................................1001
ss.313 (a)................................................................1002
(b)................................................................1002
(c)................................................................1002
ss.314 (a)................................................................1002
(a)(4)..............................................................606
(b)......................................................Not Applicable
(c)(1)..............................................................102
(c)(2)..............................................................102
(c)(3)...................................................Not Applicable
(d)......................................................Not Applicable
(e).................................................................102
ss.315 (a).................................................................901
903
(b).................................................................902
(c).................................................................901
(d).................................................................901
(e).................................................................814
ss.316 (a).................................................................812
813
(a)(1)(A)...........................................................802
812
(a)(1)(B)...........................................................813
(a)(2)...................................................Not Applicable
(b).................................................................808
ss.317 (a)(1)..............................................................803
(a)(2)..............................................................804
(b).................................................................603
ss.318 (a).................................................................107
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE PART
OF THE INDENTURE.
INDENTURE, dated as of February 1, 2001, between ALLETE (legally
incorporated as MINNESOTA POWER, INC.), 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 LASALLE BANK NATIONAL ASSOCIATION, a corporation duly organized and existing
under the laws of the United States of America, having its principal corporate
trust office at 135 South LaSalle Street, Suite 1960, Chicago, Illinois 60603,
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
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
-2-
date of such 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 Six and Article Nine, are
defined in those Articles.
"ACT", when used with respect to any Holder of a Security, has the
meaning specified in Section 104.
"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, the Secretary, any
Assistant Secretary, 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 executive order to remain
closed, except as may be otherwise specified as contemplated by Section 301.
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"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 in Suite 1960 at 135 South LaSalle Street, Chicago,
Illinois 60603.
"CORPORATION" means a corporation, association, company, limited
liability company, joint stock company or business trust.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DISCOUNT SECURITY" means any Security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 802. "Interest" with
respect to a Discount Security means interest, if any, borne by such Security at
a Stated Interest Rate.
"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
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in respect thereof; provided, however, that the 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.
"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 or delivered to the Security
Registrar 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 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;
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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,
(x) 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
(y) the principal amount of a Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant to Section
802;
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.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time any or all of the specific terms of which Securities, including
without limitation the rate or rates of interest, if any, thereon, the Stated
Maturity or Maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents from time to
time subsequent to the initial request for the authentication and delivery of
such Securities by the Trustee, all as contemplated in Section 301 and clause
(b) of Section 303.
"PERSON" means any individual, corporation, partnership, limited
liability 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.
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"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.
"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 Vice President, Assistant Vice President, Trust Officer or other officer of
the Trustee assigned by the Trustee to the Corporate Trust Administration
Division of the Trustee (or any successor division or department of the
Trustee).
"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.
"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 INTEREST RATE" means a rate (whether fixed or variable) at
which an obligation by its terms is stated to bear simple interest. Any
calculation or other determination to be made under this Indenture by reference
to the Stated Interest Rate on a Security shall be made without regard to the
effective interest cost to the Company of such Security and without regard to
the Stated Interest Rate on, or the effective cost to the Company of, any other
indebtedness in respect of which the Company's obligations are evidenced or
secured in whole or in part by such Security.
"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).
"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
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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 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;
(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.
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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 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
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"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 or her individual capacity, such certificate
or affidavit shall also constitute sufficient proof of his or her
authority.
(c) The principal amount (except as otherwise contemplated in clause
(y) of the first proviso to the definition of Outstanding) 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.
(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,
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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 address set below 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:
LaSalle Bank National Association
Corporate Trust Department
135 South LaSalle Street, Suite 1960
Chicago, Illinois 60603
Attention: Wayne Evans
Telephone: (312) 904-2442
Telecopy: (312) 904-2236
If to the Company, to:
ALLETE
30 West Superior Street
Duluth, Minnesota 55802
Attention: Treasurer
Telephone: (218) 723-3992
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.
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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.
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.
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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,
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed
in accordance with the internal 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, 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 Sections 301 or 1201(g),
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.
LaSalle Bank National Association
as Trustee
By:
------------------------------------
Authorized Signatory
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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.
The Securities may be issued in one or more series. Subject to the
last paragraph of this Section, 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 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 to an index or other
fact or event ascertainable outside of this Indenture 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 to an index or other fact or
event ascertainable outside of this Indenture 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;
and the basis of computation of interest, if other than as provided in
Section 310;
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(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 and any Paying Agent or Agents 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;
(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 One Thousand Dollars ($1,000) 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) and the formulary or other method or other means by which the
equivalent of any such amount in Dollars is to be determined for any
purpose, including for the purpose of determining the principal amount of
such Securities deemed to be Outstanding at any time;
(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;
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(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;
(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) any collateral security, assurance or guarantee for the Securities
of such series;
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(w) the non-applicability of Section 608 to the Securities of such
Series or any exceptions or modifications of Section 608 with respect to
the Securities of such Series; any rights or duties of another Person to
assume the obligations of the Company with respect to the Securities of
such series (whether as joint obligor, primary obligor, secondary obligor
or substitute obligor) and any rights or duties to discharge and release
any obligor with respect to the Securities of such series or the Indenture
to the extent related to such series;
(x) any rights to change or eliminate any provision of this Indenture
or to add any new provision to this Indenture (by supplemental indenture or
otherwise) without the consent of the Holders of the Securities of such
series; and
(y) any other terms of the Securities of such series not inconsistent
with the provisions of this Indenture.
With respect to Securities of a series subject to a Periodic Offering,
the indenture supplemental hereto or the Board Resolution which establishes such
series, or the Officer's Certificate pursuant to such supplemental indenture or
Board Resolution, as the case may be, may provide general terms or parameters
for Securities of such series and provide either that the specific terms of
Securities of such series shall be specified in a Company Order or that such
terms shall be determined by the Company or its agents in accordance with
procedures specified in a Company Order as contemplated by clause (b) of Section
303.
Unless otherwise specified with respect to a series of Securities
pursuant to Section 301(b), any limit upon the aggregate principal amount of a
series of Securities may be increased without the consent of any Holders and
additional Securities of such series may be authenticated and delivered up to
the limit upon the aggregate principal amount authorized with respect to such
series as so increased.
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 One Thousand Dollars ($1,000) 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.
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 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.
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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,
either (i) establishing such terms or (ii) in the case of Securities of a
series subject to a Periodic Offering, specifying procedures, acceptable to
the Trustee, by which such terms are to be established (which procedures
may provide, to the extent acceptable to the Trustee, for authentication
and delivery pursuant to oral or electronic instructions from the Company
or any agent or agents thereof, which oral instructions are to be promptly
confirmed electronically or in writing), in either case in accordance with
the instrument or instruments delivered pursuant to clause (a) above;
(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;
(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, except as the same may be limited by 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);
provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to
receive such Opinion of Counsel only once at or prior to the time of
the first authentication and delivery of such Securities (provided
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that such Opinion of Counsel addresses the authentication and delivery
of all Securities of such series) and that, in lieu of the opinions
described in clauses (ii) and (iii) above, Counsel may opine that:
(x) when the terms of such Securities shall have
been established pursuant to a Company Order or Orders or
pursuant to such procedures acceptable to the Trustee as may
be specified from time to time by a Company Order or Orders,
all as contemplated by and in accordance with the instrument
or instruments delivered pursuant to clause (a) above, such
terms will have been duly authorized by the Company and will
have been established in conformity with the provisions of
this Indenture; and
(y) such Securities, when authenticated and
delivered by the Trustee in accordance with this Indenture
and the Company Order or Orders or specified procedures
referred to in paragraph (x) above 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 the Indenture, and enforceable in
accordance with their terms, except as the same may be
limited by 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).
With respect to Securities of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the Company of any
of such Securities, the form and terms thereof and the legality, validity,
binding effect and enforceability thereof, and compliance of the authentication
and delivery thereof with the terms and conditions of this Indenture, upon the
Opinion of Counsel and other documents delivered pursuant to Sections 201 and
301 and this Section, as applicable, at or prior to the time of the first
authentication of Securities of such series unless and until such opinion or
other documents have been superseded or revoked or expire by their terms. In
connection with the authentication and delivery of Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to assume that the
Company's instructions to authenticate and deliver such Securities do not
violate any applicable law or any applicable rule, regulation or order of any
Governmental Authority having jurisdiction over the Company.
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
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for herein executed by the Trustee or an Authenticating Agent by manual
signature of an authorized signatory thereof, 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 Security Registrar 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 Officer's
Certificate or 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 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
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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.
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.
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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 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.
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
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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 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 interest which may 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,
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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 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. PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Securities of any series denominated in any
currency other than Dollars or in a composite currency (the "Required
Currency"), except as otherwise specified with respect to such Securities as
contemplated by Section 301, the obligation of the Company to make any payment
of the principal thereof, or the premium, if any, or interest, if any, thereon,
shall not be discharged or satisfied by any tender by the Company, or recovery
by the Trustee, in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the Trustee timely holding
the full amount of the Required Currency then due and payable. If any such
tender or recovery is in a currency other than the Required Currency, the
Trustee may take such actions as it considers appropriate to exchange such
currency for the Required Currency. The costs and risks of any such exchange,
including without limitation the risks of delay and exchange rate fluctuation,
shall be borne by the Company, the Company shall remain fully liable for any
shortfall or delinquency in the full amount of Required Currency then due and
payable, and in no circumstances shall the Trustee be liable therefor except in
the case of its negligence or willful misconduct.
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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 (or, if the principal of the Securities of any series is payable in
installments, the Stated Maturity of the final installment of the principal
thereof) 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 redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
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SECTION 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, or the formula pursuant to which the
Redemption Price is to be determined if the Redemption Price cannot be
determined at the time the notice is given,
(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 and,
in the case of any such Security of such series to be redeemed in part,
that, on and after the Redemption Date, upon surrender of such Security, a
new Security or Securities of such series in principal amount equal to the
remaining unpaid principal amount thereof will be issued as provided in
Section 406,
(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,
(g) the CUSIP numbers, if any, assigned to such Securities; provided
however, that such notice may state that no representation is made as to
the correctness of CUSIP numbers, and the redemption of such Securities
shall not be affected by any defect in or omission of such number, and
(h) 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
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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 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;
(c) the aggregate sinking fund payment;
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(d) the portion, if any, of such aggregate sinking fund payment which
is to be satisfied by the payment of cash; and
(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, 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.
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.
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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;
(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.
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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 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,
2001, 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
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Company, as to (i) 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 and (ii) any other statements as may be required by the provisions of
Section 314(a) of the Trust Indenture Act.
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.
SECTION 608. LIMITATION ON LIENS.
(a) Except as otherwise specified as contemplated by Section 301 for
Securities of any series, so long as any Securities of any series are
Outstanding, the Company shall not suffer any Lien (other than Permitted
Liens) to be created or to exist upon
(i) shares of capital stock of majority owned subsidiaries of the
Company to the extent that such capital stock is directly owned by the
Company or
(ii) any of the electric utility property of the Company,
including without limitation, any electric utility plants, lines,
pipes, mains, cables, machinery, boilers, transmission lines, pipe
lines, stations, buildings, generators, power houses, transformers,
towers, poles, insulators, distribution systems or supply systems or
other property, real or personal, or improvements, extensions,
additions, renewals or replacements of the foregoing used or useful or
to be used in or in connection with the business of generating,
manufacturing, producing, transmitting, transporting, distributing or
supplying electricity or hot water for light, heat, power,
refrigeration or other purposes, or steam or hot water for power, heat
or other purposes, or any other property of the Company, real,
personal or mixed, of whatever kind or nature, whether owned at the
date of the execution and delivery of this Indenture or hereafter
acquired (other than Excepted Property with respect to all of the
property described in this subsection (a)(ii) of this Section),
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all except as expressly contemplated in subsection (b) of this Section.
(b) The provisions of subsection (a) shall not prohibit the creation
or existence of any Lien on property of the Company which secures
indebtedness for borrowed money if either:
(1) the Company shall make effective provision whereby the
Outstanding Securities shall be secured equally and ratably with the
indebtedness secured by such Lien; or
(2) the Company shall deliver to the Trustee bonds, notes or
other evidences of indebtedness secured by such Lien (hereinafter
called "Secured Obligations") (i) in an aggregate principal amount
equal to the aggregate principal amount of each series then
Outstanding, (ii) maturing (or being subject to mandatory redemption)
on the Stated Maturities of such series and (iii) containing, in
addition to any mandatory redemption provisions applicable to all
Secured Obligations outstanding under such Lien and any mandatory
redemption provisions contained therein pursuant to clause (ii) above,
mandatory redemption provisions correlative to the provisions, if any,
for the mandatory redemption (pursuant to a sinking fund or otherwise)
of the Securities of such series or for the redemption thereof at the
option of the Holder, as well as a provision for mandatory redemption
upon an acceleration of the maturity of all Outstanding Securities of
such series following an Event of Default (such mandatory redemption
to be rescinded upon the rescission of such acceleration); it being
expressly understood that such Secured Obligations (x) may, but need
not, bear interest, (y) may, but need not, contain provisions for the
redemption thereof at the option of the issuer, any such redemption to
be made at a redemption price or prices not less than the principal
amount thereof and (z) shall be held by the Trustee for the benefit of
the Holders of all Securities of such series from time to time
Outstanding subject to such terms and conditions relating to surrender
to the Company, transfer restrictions, voting, application of payments
of principal and interest and other matters as shall be set forth in
an indenture supplemental hereto specifically providing for the
delivery to the Trustee of such Secured Obligations.
(c) If the Company shall elect either of the alternatives described in
subsection (b), the Company shall deliver to the Trustee:
(1) an amendment to this Indenture (i) together with evidence of
appropriate inter-creditor arrangements, whereby this Indenture shall
be secured by the Lien referred to in subsection (b) equally and
ratably with all other indebtedness secured by such Lien or (ii)
providing for the delivery to the Trustee of Secured Obligations;
(2) an Officer's Certificate (i) stating that, to the knowledge
of the signer, (x) no Event of Default has occurred and is continuing
and (y) no event has occurred and is continuing which entitles the
secured party under such Lien to accelerate the maturity of the
indebtedness outstanding thereunder and (y) stating the aggregate
principal amount of indebtedness issuable, and then proposed to be
issued, under and secured by such Lien;
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(3) an Opinion of Counsel (i) if this Indenture is to be secured
by such Lien, to the effect that all Securities then Outstanding are
entitled to the benefit of such Lien equally and ratably with all
other indebtedness outstanding under such Lien or (ii) if Secured
Obligations are to be delivered to the Trustee, to the effect that
such Secured Obligations have been duly issued under such Lien and
constitute valid obligations, entitled to the benefit of such Lien
equally and ratably with all other indebtedness then outstanding under
such Lien.
(d) For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
"EXCEPTED PROPERTY" means
(1) all cash on hand or in banks or other financial institutions,
deposit accounts, shares of stock, interests in general or limited
partnerships, bonds, notes, evidences of indebtedness and other
securities not hereafter paid or delivered to, deposited with or held
by the Trustee hereunder or required so to be, other than shares of
capital stock of majority owned subsidiaries of the Company to the
extent such capital stock is directly owned by the Company;
(2) all contracts, leases, operating agreements, and other
agreements of whatsoever kind and nature; all contract rights, bills,
notes and other instruments and chattel paper (except to the extent
that any of the same constitute securities, in which case they are
separately excepted from this Indenture under clause (1) above); all
revenues, income and earnings, all accounts, accounts receivable and
unbilled revenues, and all rents, tolls, issues, product and profits,
claims, credits, demands and judgments; all governmental and other
licenses, permits, franchises, consents and allowances; all patents,
patent licenses and other patent rights, patent applications, trade
names, trademarks, copyrights, claims, credits, choses in action and
other intangible property and general intangibles including, but not
limited to, computer software;
(3) all automobiles, buses, trucks, truck cranes, tractors,
trailers and similar vehicles and movable equipment; all rolling
stock, rail cars and other railroad equipment; all vessels, boats,
barges and other marine equipment; all airplanes, helicopters,
aircraft engines and other flight equipment; all parts, accessories
and supplies used in connection with any of the foregoing; and all
personal property of such character that the perfection of a security
interest therein or other Lien thereon is not governed by the Uniform
Commercial Code as in effect in the jurisdiction in which such
property is located;
(4) all goods, stock in trade, wares, merchandise and inventory
held for the purpose of sale or lease in the ordinary course of
business; all materials, supplies, inventory and other items of
personal property which are consumable (otherwise than by ordinary
wear and tear) in their use in the operation of any property of the
Company; all fuel, including nuclear fuel, whether or not any such
fuel is in a form consumable in the operation of any property of the
Company, including separate components of any fuel in the forms in
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which such components exist at any time before, during or after the
period of the use thereof as fuel; all hand and other portable tools
and equipment; all furniture and furnishings; and computers and data
processing, data storage, data transmission, telecommunications and
other facilities, equipment and apparatus, which, in any case, are
used primarily for administrative or clerical purposes or are
otherwise not necessary for the operation or maintenance of the
facilities, machinery, equipment or fixtures of the Company for (i)
the generation, transmission or distribution of electric energy, (ii)
the transmission, storage or distribution of gas or (iii) the
appropriation, storage, transmission or distribution of water;
(5) all coal, ore, gas, oil and other minerals and all timber,
and all rights and interests in any of the foregoing, whether or not
such minerals or timber shall have been mined or extracted or
otherwise separated from the land; and all electric energy, gas
(natural or artificial), steam, water and other products generated,
produced, manufactured, purchased or otherwise acquired by the
Company;
(6) all real property, leaseholds, gas rights, wells, gathering,
tap or other pipe lines, or facilities, equipment or apparatus, in any
case used or to be used primarily for the production or gathering of
natural gas;
(7) all hydroelectric plants and all lands, power sites, flowage
rights, water rights, riparian rights, permits, licenses, franchises,
privileges, leaseholds, water locations, water appropriations,
ditches, flumes, reservoirs, reservoir sites, canals, raceways, dams,
dam sites, aqueducts, structures, facilities, equipment, or apparatus,
in any case used or to be used primarily in connection with the
Company's hydroelectric plants; and
(8) all leasehold interests held by the Company as lessee.
"LIEN" means any mortgage, deed of trust, pledge, security interest,
encumbrance, easement, lease, reservation, restriction, servitude, charge or
similar right and any other lien of any kind, including, without limitation, any
conditional sale or other title retention agreement, any lease in the nature
thereof, and any defect, irregularity, exception or limitation in record title.
"PERMITTED LIENS" means, as of any particular time, any of the
following:
(1) Liens for taxes, assessments and other governmental charges
or requirements which are not delinquent or which are being contested
in good faith by appropriate proceedings;
(2) mechanics', workmen's, repairmen's, materialmen's,
warehousemen's and carriers' Liens, other Liens incident to
construction, Liens or privileges of any employees of the Company for
salary or wages earned, but not yet payable, and other Liens,
including without limitation Liens for worker's compensation awards,
arising in the ordinary course of business for charges or requirements
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which are not delinquent or which are being contested in good faith
and by appropriate proceedings;
(3) Liens in respect of attachments, judgments or awards arising
out of judicial or administrative proceedings (i) in an aggregate
amount not exceeding Ten Million Dollars ($10,000,000) or (ii) with
respect to which the Company shall (x) in good faith be prosecuting an
appeal or other proceeding for review and with respect to which the
Company shall have secured a stay of execution pending such appeal or
other proceeding or (y) have the right to prosecute an appeal or other
proceeding for review;
(4) easements, leases, reservations or other rights of others in,
on, over, and/or across, and laws, regulations and restrictions
affecting, and defects, irregularities, exceptions and limitations in
title to, the property of the Company or any part thereof; provided,
however, that such easements, leases, reservations, rights, laws,
regulations, restrictions, defects, irregularities, exceptions and
limitations do not in the aggregate materially impair the use by the
Company of its property considered as a whole for the purposes for
which it is held by the Company;
(5) defects, irregularities, exceptions and limitations in title
to real property subject to rights-of-way in favor of the Company or
otherwise or used or to be used by the Company primarily for
right-of-way purposes or real property held under lease, easement,
license or similar right; provided, however, that (i) the Company
shall have obtained from the apparent owner or owners of such real
property a sufficient right, by the terms of the instrument granting
such right-of-way, lease, easement, license or similar right, to the
use thereof for the purposes for which the Company acquired the same,
(ii) the Company has power under eminent domain or similar statutes to
remove such defects, irregularities, exceptions or limitations or
(iii) such defects, irregularities, exceptions and limitations may be
otherwise remedied without undue effort or expense; and defects,
irregularities, exceptions and limitations in title to flood lands,
flooding rights and/or water rights;
(6) Liens securing indebtedness or other obligations neither
created, assumed nor guaranteed by the Company nor on account of which
it customarily pays interest upon real property or rights in or
relating to real property acquired by the Company for the purpose of
the transmission or distribution of electric energy, gas or water, for
the purpose of telephonic, telegraphic, radio, wireless or other
electronic communication or otherwise for the purpose of obtaining
rights-of-way;
(7) leases existing at the date of the execution and delivery of
this Indenture affecting properties owned by the Company at said date
and renewals and extensions thereof; and leases affecting such
properties entered into after such date or affecting properties
acquired by the Company after such date which, in either case, (i)
have respective terms of not more than ten (10) years (including
extensions or renewals at the option of the tenant) or (ii) do not
materially impair the use by the Company of such properties for the
respective purposes for which they are held by the Company;
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(8) Liens vested in lessors, licensors, franchisors or permitters
for rent or other amounts to become due or for other obligations or
acts to be performed, the payment of which rent or the performance of
which other obligations or acts is required under leases, subleases,
licenses, franchises or permits, so long as the payment of such rent
or other amounts or the performance of such other obligations or acts
is not delinquent or is being contested in good faith and by
appropriate proceedings;
(9) controls, restrictions, obligations, duties and/or other
burdens imposed by federal, state, municipal or other law, or by
rules, regulations or orders of Governmental Authorities, upon any
property of the Company or the operation or use thereof or upon the
Company with respect to any of its property or the operation or use
thereof or with respect to any franchise, grant, license, permit or
public purpose requirement, or any rights reserved to or otherwise
vested in Governmental Authorities to impose any such controls,
restrictions, obligations, duties and/or other burdens;
(10) rights which Governmental Authorities may have by virtue of
franchises, grants, licenses, permits or contracts, or by virtue of
law, to purchase, recapture or designate a purchaser of or order the
sale of, any property of the Company, to terminate franchises, grants,
licenses, permits, contracts or other rights or to regulate the
property and business of the Company; and any and all obligations of
the Company correlative to any such rights;
(11) Liens required by law or governmental regulations (i) as a
condition to the transaction of any business or the exercise of any
privilege or license, (ii) to enable the Company to maintain
self-insurance or to participate in any funds established to cover any
insurance risks, (iii) in connection with workmen's compensation,
unemployment insurance, social security, any pension or welfare
benefit plan or (iv) to share in the privileges or benefits required
for companies participating in one or more of the arrangements
described in clauses (ii) and (iii) above;
(12) Liens on property of the Company which are granted by the
Company to secure duties or public or statutory obligations or to
secure, or serve in lieu of, surety, stay or appeal bonds;
(13) rights reserved to or vested in others to take or receive
any part of any coal, ore, gas, oil and other minerals, any timber
and/or any electric capacity or energy, gas, water, steam and any
other products, developed, produced, manufactured, generated,
purchased or otherwise acquired by the Company or by others on
property of the Company;
(14) (i) rights and interests of Persons other than the Company
arising out of contracts, agreements and other instruments to which
the Company is a party and which relate to the common ownership or
joint use of property; and (ii) all Liens on the interests of Persons
other than the Company in property owned in common by such Persons and
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the Company if and to the extent that the enforcement of such Liens
would not adversely affect the interests of the Company in such
property in any material respect;
(15) any restrictions on assignment and/or requirements of any
assignee to qualify as a permitted assignee and/or public utility or
public service corporation;
(16) any Liens which have been bonded for the full amount in
dispute or for the payment of which other adequate security
arrangements have been made;
(17) grants, by the Company of easements, ground leases or
rights-of-way in, upon, over and/or across the property or
rights-of-way of the Company for the purpose of roads, pipe lines,
transmission lines, distribution lines, communication lines, railways,
removal of coal or other minerals or timber, and other like purposes,
or for the joint or common use of real property, rights-of-way,
facilities and/or equipment; provided, however, that no such grant
shall materially impair the use of the property or rights-of-way for
the purposes for which such property or rights-of-way are held by the
Company;
(18) Prepaid Liens;
(19) Purchase Money Liens and any other Liens existing or placed
upon property at the time of, or within one hundred eighty (180) days
after, the acquisition thereof by the Company, and any extensions,
renewals and/or replacements of any such Liens to secure any
refundings, refinancings and/or replacements of the indebtedness
secured thereby; provided, however, that no such Purchase Money Lien
or other Lien shall extend to or cover any property of the Company
other than (i) the property so acquired and improvements, extensions
and additions to such property and renewals, replacements and
substitutions of or for such property or any part or parts thereof and
(ii) with respect to Purchase Money Liens, other property subsequently
acquired by the Company;
(20) Liens on property of the Company which secure indebtedness
for borrowed money which matures less than one year from the date of
the issuance or incurrence thereof and is not extendible at the option
of the issuer, and any extensions, renewals and/or replacements of any
such Liens to secure any refundings, refinancings and/or replacements
of such indebtedness by or with similar indebtedness;
(21) Liens created or assumed by the Company in connection with
the issuance of debt securities the interest on which is not included
in gross income for purposes of federal income taxation pursuant to
Section 103 of the Internal Revenue Code of 1986, as amended (or any
successor provision of law), for the purpose of financing, in whole or
in part, the acquisition or construction of property to be used by the
Company, to the extent that such Lien is required in connection with
the issuance of such debt securities either by applicable law or by
the issuer of such debt securities or is otherwise necessary in order
to establish or maintain such exclusion from gross income; and any
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extensions, renewals and/or replacements of any such Liens to secure
any refundings, refinancings and/or replacement of such debt
securities by or with similar securities;
(22) Liens securing indebtedness or lease obligations (i) which
are related to the construction or acquisition of property not
previously owned by the Company or (ii) which are related to the
financing of a project involving the development or expansion of
property of the Company and (iii) the obligee in respect of which has
no recourse to the Company or any property of the Company other than
the property constructed or acquired with the proceeds of such
transaction or the project financed with the proceeds of such
transaction (or the proceeds thereof);
(23) Liens created by the Mortgage and Deed of Trust dated
September 1, 1945 between the Company and Irving Trust Company (now
The Bank of New York) and Richard H. West (Douglas I. MacInnes,
successor), as Trustees, as heretofore and hereafter supplemented and
amended (the "Mortgage"); and Liens created by any other indenture
hereafter executed by the Company pursuant to which bonds issued under
the Mortgage are or are to be delivered to the trustee(s) under such
indenture in a principal amount at least equal to the principal amount
of debt securities to be secured by such indenture;
(24) any mortgage, pledge, security interest, Lien or encumbrance
upon any shares of capital stock of majority owned subsidiaries of the
Company to the extent such capital stock is directly owned by the
Company, created at the time of the acquisition of such capital stock
by the Company, or within 270 days after such time, to secure all or a
portion of the purchase price for such capital stock;
(25) any mortgage, pledge, security interest, Lien or encumbrance
upon any such capital stock existing thereon at the time of the
acquisition thereof by the Company (whether or not the obligations
secured thereby are assumed by the Company and whether or not such
mortgage, pledge, security interest, Lien or encumbrance was created
in contemplation of such acquisition);
(26) any extension, renewal or replacement of any mortgage,
pledge, security interest, Lien or encumbrance permitted by Subsection
(24) or (25) above, or of any indebtedness for borrowed money secured
thereby; provided that the principal amount of indebtedness so secured
immediately following the time of such extension, renewal or
replacement shall not exceed the principal amount of indebtedness so
secured immediately preceding the time of such extension, renewal or
replacement, and that such extension, renewal or replacement mortgage,
pledge, security interest, Lien or encumbrance shall be limited to no
more than the same proportion of all shares of capital stock as were
covered by the mortgage, pledge, security interest, Lien or
encumbrance that was extended, renewed or replaced; or
(27) in addition to the Permitted Liens defined in clauses (1)
through (26) above, Liens on any property of the Company (other than
Excepted Property) to secure indebtedness for borrowed money (under
circumstances not otherwise excepted from the operation of this
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Section) in an aggregate principal amount not exceeding 2.5% of the
total assets of the Company and its consolidated subsidiaries, as
shown on the latest balance sheet of the Company and its consolidated
subsidiaries, audited by independent certified public accountants,
dated prior to the date of the issuance or incurrence of such
indebtedness.
"PREPAID LIEN" means any Lien securing indebtedness for the payment,
prepayment or redemption of which there shall have been irrevocably deposited in
trust with the trustee or other holder of such Lien moneys and/or Investment
Securities which (together with the interest reasonably expected to be earned
from the investment and reinvestment in Investment Securities of the moneys
and/or the principal of and interest on the Investment Securities so deposited)
shall be sufficient for such purpose; provided, however, that if such
indebtedness is to be redeemed or otherwise prepaid prior to the stated maturity
thereof, any notice requisite to such redemption or prepayment shall have been
given in accordance with the instrument creating such Lien or irrevocable
instructions to give such notice shall have been given to such trustee or other
holder. As used herein, the term "Investment Securities" means any of the
following obligations or securities on which neither the Company, any other
obligor on the Outstanding Securities nor any Affiliate of either is the
obligor: (a) Government Obligations; (b) interest bearing deposit accounts
(which may be represented by certificates of deposit) in any national or state
bank (which may include the Trustee or any Paying Agent) or savings and loan
association which has outstanding securities rated by a nationally recognized
rating organization in either of the two (2) highest rating categories (without
regard to modifiers) for short term securities or in any of the three (3)
highest rating categories (without regard to modifiers) for long term
securities; (c) bankers' acceptances drawn on and accepted by any commercial
bank (which may include the Trustee or any Paying Agent) which has outstanding
securities rated by a nationally recognized rating organization in either of the
two (2) highest rating categories (without regard to modifiers) for short term
securities or in any of the three (3) highest rating categories (without regard
to modifiers) for long term securities; (d) direct obligations of, or
obligations the principal of and interest on which are unconditionally
guaranteed by, any State or Territory of the United States or the District of
Columbia, or any political subdivision of any of the foregoing, which are rated
by a nationally recognized rating organization in either of the two (2) highest
rating categories (without regard to modifiers) for short term securities or in
any of the three (3) highest rating categories (without regard to modifiers) for
long term securities; (e) bonds or other obligations of any agency or
instrumentality of the United States; (f) corporate debt securities which are
rated by a nationally recognized rating organization in either of the two (2)
highest rating categories (without regard to modifiers) for short term
securities or in any of the three (3) highest rating categories (without regard
to modifiers) for long term securities; (g) repurchase agreements with respect
to any of the foregoing obligations or securities with any banking or financial
institution (which may include the Trustee or any Paying Agent) which has
outstanding securities rated by a nationally recognized rating organization in
either of the two (2) highest rating categories (without regard to modifiers)
for short term securities or in any of the three (3) highest rating categories
(without regard to modifiers) for long term securities; (h) securities issued by
any regulated investment company (including any investment company for which the
Trustee or any Paying Agent is the advisor), as defined in Section 851 of the
Internal Revenue Code of 1986, as amended, or any successor section of such Code
or successor federal statute, provided that the portfolio of such investment
company is limited to obligations or securities of the character and investment
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quality contemplated in clauses (a) through (f) above and repurchase agreements
which are fully collateralized by any of such obligations or securities; and (i)
any other obligations or securities which may lawfully be purchased by the
Trustee in its capacity as such.
"PURCHASE MONEY LIEN" means, with respect to any property being
acquired by the Company, a Lien on such property which
(1) is taken or retained by the transferor of such property to
secure all or part of the purchase price thereof;
(2) is granted to one or more Persons other than the transferor
which, by making advances or incurring an obligation, give value to
enable the grantor of such Lien to acquire rights in or the use of
such property;
(3) is held by a trustee or agent for the benefit of one or more
Persons described in clause (a) or (b) above, provided that such Lien
may be held, in addition, for the benefit of one or more other Persons
which shall have theretofore given, or may thereafter give, value to
or for the benefit or account of the grantor of such Lien for one or
more other purposes; or
(4) otherwise constitutes a purchase money mortgage or a purchase
money security interest under applicable law;
and, without limiting the generality of the foregoing, for purposes of this
Indenture, the term Purchase Money Lien shall be deemed to include any Lien
described above whether or not such Lien (i) shall permit the issuance or other
incurrence of additional indebtedness secured by such Lien on such property,
(ii) shall permit the subjection to such Lien of additional property and the
issuance or other incurrence of additional indebtedness on the basis thereof
and/or (iii) shall have been granted prior to the acquisition of such property,
shall attach to or otherwise cover property other than the property being
acquired and/or shall secure obligations issued prior and/or subsequent to the
issuance of the obligations delivered in connection with such acquisition.
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
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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
(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
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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.
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.
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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.
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 and shall execute and deliver to the Company such
instruments as, in the judgment of the Company, shall be necessary, desirable or
appropriate to effect or evidence the satisfaction and discharge of this
Indenture.
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
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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, on any Security of such series
within 30 days after the same becomes due and payable; or
(b) failure to pay the principal of or premium, if any, on any
Security of such series when due and payable whether at Maturity, upon
redemption or otherwise; 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 90 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
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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 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 ANNULMENTIf 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
amount (or, if any of the Securities of such series are Discount Securities,
such portion of the principal amount as may be specified in the terms thereof as
contemplated by Section 301) of all Securities of such series and interest
accrued thereon to be due and payable immediately. 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 amount (or, if any of the
Securities are Discount Securities, such portion of the principal amount as may
be specified in the terms thereof as contemplated by Section 301) of all
Outstanding Securities and interest accrued thereon to be due and payable
immediately. As a consequence of each such declaration (herein referred to as a
declaration of acceleration) with respect to Securities of any series, the
principal amount (or specified portion thereof in the case of Discount
Securities) of such Securities and interest accrued thereon shall become due and
payable immediately.
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
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(a) the Company shall have paid or deposited with the Trustee a sum
sufficient to pay
(1) all overdue interest, if any, 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 acceleration and interest, if any, 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; and
(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. Unless otherwise specified pursuant to Section 301 with respect to
any series of Securities, the rate or rates at which Securities shall bear
interest on overdue principal, premium, if any, and interest, if any, shall be,
to the extent permitted by law, the same rate or rates at which such Securities
shall bear interest prior to Maturity.
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
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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.
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.
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 such series in respect of which an
Event of Default shall have occurred and be continuing 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 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
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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) 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.
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.
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 aggregate
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
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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.
The Trustee may take any other action, deemed proper by the Trustee, which is
not inconsistent with any such direction. 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 aggregate 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.
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; all in the
manner, to the extent and except as otherwise provided in the Trust Indenture
Act; 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
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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. For purposes of Sections 315(a)
and 315(c) of the Trust Indenture Act, the term "default" is hereby defined
as an Event of Default which has occurred and is continuing.
(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 an indenture trustee under the provisions of the
Trust Indenture Act. For the purposes of Sections 315(b)(2) and 315(d)(2)
of the Trust Indenture Act, the term "responsible officer" is hereby
defined as a Responsible Officer and the chairman or vice chairman of the
board of directors, the chairman or vice chairman of the executive
committee of the board of directors, the president, any vice president, any
assistant vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller and any assistant
controller of the Trustee, or any other officer of the Trustee customarily
performing functions similar to those performed by a Responsible Officer or
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the
particular subject.
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(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 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,
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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;
(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; and
(i) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder.
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.
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.
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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, bad
faith or breach of its obligations under this Indenture.
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 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.
The provisions of this Section 907 shall survive the termination of
this Indenture.
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
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interest arising from its capacity as trustee in respect of the Securities of
any other series.
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, 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.
(d) If at any time:
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(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 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
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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 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
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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.
(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 Person into which the Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any Person
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,
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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 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
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Trustee shall have power to accept the 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.
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
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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 Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
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.
LaSalle Bank National Association
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 office in a Place of Payment designated by the Company with respect to
such series of Securities.
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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, 2001, 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, 2001,
the Trustee shall transmit to the Holders, the Commission and each securities
exchange upon which any Securities are listed, a report, dated as of the next
preceding September 1, 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,
the Commission and each securities exchange upon which any Securities are
listed, 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.
The Company shall notify the Trustee of the listing of any Securities on any
securities exchange or of the delisting thereof.
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 Person,
or convey or otherwise transfer or lease its properties and assets substantially
as an entirety to any Person, unless
(a) the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer, or which
leases, 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
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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 PERSON SUBSTITUTED.
Upon any consolidation by the Company with or merger by the Company
into any other Person 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 Person 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
(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
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(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 (other than any series the terms of
which permit such change, elimination or addition) 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 or 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
(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
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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 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, 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 reduce
the amount of the principal of a Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 802, 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, 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
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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).
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 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.
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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.
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,
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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, 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
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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.
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
-71-
shall be elected by vote of the 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.
(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.
-------------------------
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
ALLETE
(legally incorporated as Minnesota Power, Inc.)
By: /s/ David G. Gartzke
-------------------------------------------
LaSalle Bank National Association, Trustee
By: /s/ Wayne M. Evans
-------------------------------------------
EXHIBIT 4(D)2
ALLETE
(LEGALLY INCORPORATED AS MINNESOTA POWER, INC.)
OFFICER'S CERTIFICATE
David G. Gartzke, the Senior Vice President - Finance and Chief Financial
Officer of ALLETE (legally incorporated as Minnesota Power, Inc.) (the
"Company"), pursuant to the authority granted in the Board Resolutions of the
Company dated July 19, 2000 and January 18, 2001, and Sections 102, 201 and 301
of the Indenture defined herein, does hereby certify to LaSalle Bank National
Association (the "Trustee"), as Trustee under the Indenture of the Company (For
Unsecured Debt Securities) dated as of February 1, 2001 (the "Indenture") that:
1. The Securities of the first series to be issued under the Indenture
shall be designated "7.80% Senior Notes due February 15, 2008" (the
"Senior Notes of the First Series"). All capitalized terms used in
this certificate which are not defined herein but are defined in the
form of Senior Notes of the First Series attached hereto as Exhibit A
shall have the meanings set forth in such Exhibit A; all other
capitalized terms used in this certificate which are not defined
herein but are defined in the Indenture shall have the meanings set
forth in the Indenture;
2. The Senior Notes of the First Series shall mature and the principal
shall be due and payable together with all accrued and unpaid interest
thereon on February 15, 2008;
3. The Senior Notes of the First Series shall bear interest as provided
in the form of the Senior Notes of the First Series set forth in
Exhibit A hereto;
4. The Corporate Trust Office of the Trustee in Chicago, Illinois will be
the place at which (i) the principal (and premium, if any) and each
installment of interest on the Senior Notes of the First Series shall
be payable, (ii) registration and registration of transfers and
exchanges in respect of the Senior Notes of the First Series may be
effected, and (iii) notices and demands to or upon the Company in
respect of the Senior Notes of the First Series may be served; and the
Trustee will be the Security Registrar and the Paying Agent for the
Senior Notes of the First Series; provided, however, that the Company
reserves the right to change, by one or more Officer's Certificates
supplemental to this Officer's Certificate, any such place or the
Security Registrar or such Paying Agent;
5. The Senior Notes of the First Series shall be redeemable as provided
in the form of the Senior Notes of the First Series set forth in
Exhibit A hereto;
6. The Senior Notes of the First Series will be originally issued in
global form payable to Cede & Co. and will, unless and until the
Senior Notes of the First Series are exchanged in whole or in part for
certificated Senior Notes of the First Series registered in the names
of various beneficial holders thereof (in accordance with the
conditions set forth in the legend appearing in the form of the Senior
Notes of the First Series, set forth in Exhibit A hereto), contain
restrictions on transfer, substantially as described in such form;
7. No service charge shall be made for the registration of transfer or
exchange of the Senior Notes of the First Series; provided, however,
that the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection
with the exchange or transfer;
8. If the Company shall make any deposit of money and/or Government
Obligations with respect to any Senior Notes of the First Series, or
any portion of the principal amount thereof, as contemplated by
Section 701 of the Indenture, the Company shall not deliver an
Officer's Certificate described in clause (z) in the first paragraph
of said Section 701 unless the Company shall also deliver to the
Trustee, together with such Officer's Certificate, either:
(A) an instrument wherein the Company, notwithstanding the
satisfaction and discharge of its indebtedness in respect of the
Senior Notes of the First Series, shall assume the obligation (which
shall be absolute and unconditional) to irrevocably deposit with the
Trustee or Paying Agent such additional sums of money, if any, or
additional Government Obligations (meeting the requirements of Section
701), if any, or any combination thereof, at such time or times, as
shall be necessary, together with the money and/or Government
Obligations theretofore so deposited, to pay when due the principal of
and premium, if any, and interest due and to become due on such Senior
Notes of the First Series or portions thereof, all in accordance with
and subject to the provisions of said Section 701; provided, however,
that such instrument may state that the obligation of the Company to
make additional deposits as aforesaid shall be subject to the delivery
to the Company by the Trustee of a notice asserting the deficiency
accompanied by an opinion of an independent public accountant of
nationally recognized standing, selected by the Trustee, showing the
calculation thereof; or
(B) an Opinion of Counsel to the effect that, as a result of a
change in law occurring after the date of this certificate, the
Holders of such Senior Notes of the First Series, or portions of the
principal amount thereof, will not recognize income, gain or loss for
United States federal income tax purposes as a result of the
satisfaction and discharge of the Company's indebtedness in respect
thereof and will be subject to United States federal income tax on the
same amounts, at the same times and in the same manner as if such
satisfaction and discharge had not been effected;
9. The Senior Notes of the First Series shall have such other terms and
provisions as are provided in the form set forth in Exhibit A hereto,
and shall be issued in substantially such form;
10. The following clauses of Section 301 of the Indenture are not
applicable to the Senior Notes of the First Series: (b), (h) through
(q), (s) and (u) through (x).
11. The undersigned has read all of the covenants and conditions contained
in the Indenture relating to the issuance of the Senior Notes of the
First Series and the definitions in the Indenture relating thereto and
in respect of which this certificate is made;
12. The statements contained in this certificate are based upon the
familiarity of the undersigned with the Indenture, the documents
accompanying this certificate, and upon discussions by the undersigned
with officers and employees of the Company familiar with the matters
set forth herein;
2
13. In the opinion of the undersigned, he has made such examination or
investigation as is necessary to express an informed opinion whether
or not such covenants and conditions have been complied with; and
14. In the opinion of the undersigned, such conditions and covenants and
conditions precedent, if any (including any covenants compliance with
which constitutes a condition precedent) to the authentication and
delivery of the Senior Notes of the First Series requested in the
accompanying Company Order have been complied with.
3
IN WITNESS WHEREOF, I have executed this Officer's Certificate this 21st
day of February, 2001.
/s/ David G. Gartzke
---------------------------------------
David G. Gartzke
Senior Vice President - Finance
and Chief Financial Officer
4
NO. R-
--
CUSIP NO. 018522AC6
[FORM OF FACE OF SENIOR NOTE]
[(SEE LEGEND AT THE END OF THIS SECURITY FOR
RESTRICTIONS ON TRANSFERABILITY AND CHANGE OF FORM)]
ALLETE
(LEGALLY INCORPORATED AS MINNESOTA POWER, INC.)
7.80% SENIOR NOTES DUE FEBRUARY 15, 2008
ALLETE (legally incorporated as MINNESOTA POWER, INC.), a corporation duly
organized and existing under the laws of the State of Minnesota (herein referred
to as the "Company", which term includes any successor Person under the
Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to Cede & Co. or registered assigns, the principal sum of
($ ) on February 15, 2008 (the "Maturity
- ------------------------------ ----------
Date"), and to pay interest on said principal sum, semi-annually on February 15
and August 15 of each year (each an "Interest Payment Date"), commencing August
15, 2001, at the rate of 7.80% per annum, plus the Applicable Adjustment Amount,
if any, as provided on the reverse hereof, until the principal hereof is paid or
made available for payment. Interest on the Securities of this series will
accrue from February 21, 2001, to the first Interest Payment Date, and
thereafter will accrue from the last Interest Payment Date to which interest has
been paid or duly provided for. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the Business Day preceding the
corresponding Interest Payment Date; provided, however, that if the Securities
of this series are not held by a securities depository in a book-entry only
form, the Regular Record Date will be the close of business on the 15th calendar
day next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture referred to on the reverse hereof.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the corporate trust office of LaSalle Bank National
Association, Chicago, Illinois or at such other office or agency as may be
designated for such purpose by the Company, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that, at the option of the
Company, interest on this Security may be paid by check mailed to the address of
the person entitled thereto, as such address shall appear on the Security
Register.
A-1
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
ALLETE
(legally incorporated as MINNESOTA POWER, INC.)
By:
--------------------------------------------
ATTEST:
- ----------------------------------
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
LaSalle Bank National Association, as Trustee
By:
--------------------------------------------
Authorized Signatory
A-3
[FORM OF REVERSE OF SENIOR NOTE]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture (For Unsecured Debt Securities), dated as of February
1, 2001 (herein, together with any amendments thereto, called the "Indenture",
which term shall have the meaning assigned to it in such instrument), between
the Company and LaSalle Bank National Association, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), and
reference is hereby made to the Indenture, including the Board Resolutions and
Officer's Certificate filed with the Trustee on February 21, 2001 creating the
series designated on the face hereof, for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
This Security will bear interest for each Interest Period (as defined
below) at a rate of 7.80% per annum, except as described below. In the event of
any downgrade of the Company's senior unsecured long-term debt ratings that
would result in an increase in the interest rate payable on this Security, as
described below, the Company will notify LaSalle Bank National Association, or
its successor appointed by the Company acting as Calculation Agent (the
"Calculation Agent").
The period commencing on an Interest Payment Date and ending on the
day preceding the next succeeding Interest Payment Date shall be an "Interest
Period," provided, however, that the first Interest Period shall begin on
February 21, 2001 and extend through August 14, 2001, the day preceding the
first Interest Payment Date.
Interest payments for this Security will be computed and paid on the
basis of a 360-day year of twelve 30-day months, and for any period, within an
Interest Period, that is shorter than a full month, on the basis of the actual
number of days elapsed in such period. The period from the 15th day of one
calendar month to the 15th day of the next calendar month shall be deemed to be
one month for the purposes of this calculation. If an Interest Payment Date
falls on a day that is not a Business Day, such Interest Payment Date will be
the following day that is a Business Day. All dollar amounts resulting from such
calculation will be rounded, if necessary, to the nearest cent with one-half
cent rounded upward.
In the event Moody's Investors Service, Inc. ("Moody's), on the one
hand, or Standard & Poor's Rating Service ("S&P"), on the other hand, have
assigned to the Company's long-term senior unsecured debt a rating (a "Rating")
listed under their respective names in the table immediately below as of any
date within an Interest Period, the Calculation Agent shall use the Adjustment
Amount opposite such Rating (an "Adjustment Amount") to determine the Applicable
Adjustment Amount. The "Applicable Adjustment Amount" shall be the higher of (i)
the applicable Moody's Adjustment Amount (as defined in the table below), if
any, or (ii) the applicable S&P Adjustment Amount (as defined in the table
below), if any. Adjustment Amounts, if any, shall be determined by the
Calculation Agent based on the table immediately below and the respective
Ratings of Moody's and S&P.
A-4
ADJUSTMENT ADJUSTMENT
MOODY'S RATING AMOUNT S&P RATING AMOUNT
-------------- ------ ---------- ------
Ba1 0.50% BB+ 0.50%
Ba2 0.75% BB 0.75%
Ba3 or lower 1.00% BB- or lower 1.00%
The interest rate in effect on each day following any such downgrade
shall be 7.80% plus the Applicable Adjustment Amount.
The interest payable with respect to the Interest Period during which
any such downgrade occurs, shall be calculated at a rate per annum equal to the
weighted average of the interest rate in effect immediately before such
downgrade and the interest in effect immediately after such downgrade (the
"Weighted Average Interest Rate"). The Calculation Agent shall calculate such
Weighted Average Interest Rate by multiplying each interest rate by the number
of days such interest rate is in effect during such Interest Period, determining
the sum of such products, and dividing such sum by the number of days in such
Interest Period.
Promptly upon a determination that the interest rate will be changed,
the Calculation Agent shall notify the Trustee of the applicable interest rate
adjustments, the days to which each applicable interest rate applies within the
Interest Period, the Weighted Average Interest Rate expected for the period if
there is no further change in the Applicable Adjustment Amount during such
Interest Period, and the interest rate expected for subsequent Interest Periods
if there is no further change to the Applicable Adjustment Amount. Upon the
request of a holder of this Security, the Calculation Agent shall provide to
such holder information to date for the then-current Interest Period regarding
the calculation of the interest rate for such Interest Period.
The securities of this series shall be redeemable, at the option of
the Company, in whole at any time or in part from time to time, on any date
prior to maturity (each a "Redemption Date"). The Company shall give notice of
its intent to redeem the Securities of this series upon at least 30 days but no
more than 60 days prior to a Redemption Date. If the Company redeems all or any
part of the Securities of this series, it will pay a redemption price
("Redemption Price") equal to the sum of (1) 100% of the principal amount of the
Securities of this series being redeemed plus (2) accrued and unpaid interest
thereon, if any, to the Redemption Date plus (3) any applicable "make-whole
premium." The Redemption Price for Securities of this series shall never be less
than 100% of the principal amount of such Securities plus accrued and unpaid
interest thereon to the Redemption Date.
The amount of the make-whole premium with respect to any Securities of
this series to be redeemed shall be equal to the excess, if any, of:
(1) the sum of the present values, calculated as of the Redemption Date,
of:
(a) each interest payment that, but for such redemption, would have
been payable on the Securities of this series being redeemed on
each interest payment date occurring after the Redemption Date
(excluding any accrued interest for the period prior to the
Redemption Date); and
A-5
(b) the principal amount that, but for such redemption, would have
been payable at the final maturity of the Securities of this
series being redeemed; over
(2) the principal amount of the Securities of this series being redeemed.
The present values of interest and principal payments referred to in
clause (1) above shall be determined in accordance with generally accepted
principles of financial analysis. Such present values shall be calculated by
discounting the amount of each payment of interest or principal from the date
that each such payment would have been payable, but for the redemption, to the
Redemption Date at a discount rate equal to the Treasury Yield (as defined
below) plus 30 basis points.
The Company shall appoint an independent investment banking
institution of national standing to calculate the make-whole premium; provided
that UBS Warburg LLC will make such calculation if (1) the Company fails to make
such appointment at least 30 calendar days prior to the Redemption Date, or (2)
the institution so appointed is unwilling or unable to make such calculation. If
UBS Warburg LLC is to make such calculation but is unwilling or unable to do so,
then the Trustee shall appoint an independent investment banking institution of
national standing to make such calculation. In any case, the institution making
such calculation is referred to herein as an "Independent Investment Banker."
For purposes of determining the make-whole premium, "Treasury Yield"
shall mean a rate of interest per annum equal to the weekly average yield to
maturity of United States Treasury Notes that have a constant maturity that
corresponds to the remaining term to maturity of the Securities of this series
to be redeemed, calculated to the nearest 1/12th of a year (the "Remaining
Term"). The Independent Investment Banker shall determine the Treasury Yield as
of the third business day immediately preceding the applicable Redemption Date.
The Independent Investment Banker shall determine the weekly average
yields of United States Treasury Notes by reference to the most recent
statistical release published by the Federal Reserve Bank of New York and
designated "H.15(519) Selected Interest Rates" or any successor release (the
"H.15 Statistical Release"). If the H.15 Statistical Release sets forth a weekly
average yield for United States Treasury Notes having a constant maturity that
is the same as the Remaining Term, then the Treasury Yield shall be equal to
such weekly average yield. In all other cases, the Independent Investment Banker
shall calculate the Treasury Yield by interpolation, on a straight-line basis,
between the weekly average yields on the United States Treasury Notes that have
a constant maturity closest to and greater than the Remaining Term and the
United States Treasury Notes that have a constant maturity closest to and less
than the Remaining Term (in each case as set forth in the H.15 Statistical
Release). The Independent Investment Banker shall round any weekly average
yields so calculated to the nearest 1/100th of 1%, and shall round upward for
any figure of 1/200th of 1% or above. If weekly average yields for United States
Treasury Notes are not available in the H.15 Statistical Release or otherwise,
then the Independent Investment Banker shall select comparable rates and
calculate the Treasury Yield by reference to those rates.
Upon the occurrence of a Change of Control, the Company will be
required to offer to redeem the Securities of this series on the next business
day after such Change of Control at a redemption price equal to 101% of the
principal amount of the Securities of this series being redeemed plus accrued
and unpaid interest thereon, if any, to the redemption date. The holders of the
Securities of this series will be permitted twenty (20) business days after the
offer in which to accept the offer by written notice to the Company. The Company
will tender the redemption price to the accepting holders in exchange for their
Securities within twenty (20) business days after receipt of timely written
A-6
notice of acceptance from those holders. A "Change of Control" shall be deemed
to have occurred if at any time that any of the Securities of this series are
outstanding the following events shall occur:
1. Any "person" (as defined in Section 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")),
excluding for this purpose the Company or any subsidiary of the
Company or any Intermediate Holding Company, or any employee benefit
plan of the Company or any subsidiary of the Company, or any person or
entity organized, appointed or established by the Company for or
pursuant to the terms of such plan which acquires beneficial ownership
of voting securities of the Company, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act) directly or
indirectly of securities of the Company representing fifty percent
(50%) or more of the combined voting power (not depending on the
happening of a contingency) for the election of a majority of the
members of the board of directors or any other governing body of the
Company; provided, however, that no Change in Control shall be deemed
to have occurred as the result of an acquisition of securities of the
Company by the Company which, by reducing the number of voting
securities outstanding, increases the direct or indirect beneficial
ownership interest of any person to fifty percent (50%) or more of the
combined voting power of the Company's then outstanding securities,
but any subsequent increase in the direct or indirect beneficial
ownership interest of such a person in the Company shall be deemed a
Change in Control; and provided further that if the Board of Directors
of the Company determines in good faith that a person who has become
the beneficial owner directly or indirectly of securities of the
Company representing fifty percent (50%) or more of the combined
voting power of the Company's then outstanding securities has
inadvertently reached that level of ownership interest, and if such
person divests within forty-five (45) days after notice to the Company
a sufficient amount of securities of the Company so that the person no
longer has a direct or indirect beneficial ownership interest in fifty
percent (50%) or more of the combined voting power of the Company's
then outstanding securities, then no Change in Control shall be deemed
to have occurred; or
2. Consummation of (a) an agreement for the sale or disposition of the
Company or all or substantially all of the Company's assets, (b) a
plan of merger or consolidation of the Company with any other company,
or (c) a similar transaction or series of transactions involving the
Company (any transaction described in parts (a) through (c) of this
subparagraph being referred to as a "Business Combination"), in each
case unless after such a Business Combination the shareholders of the
Company immediately prior to the Business Combination continue to own,
directly or indirectly, more than fifty (50%) of the combined voting
power of the then outstanding voting securities entitled to vote
generally in the election of directors of the new (or continued)
entity.
"Intermediate Holding Company" means any entity organized or
established by or with the consent of the Company which acquires, directly or
indirectly, voting securities of the Company in exchange for voting securities
of such entity.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security upon compliance with certain conditions set
forth in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
A-7
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of a majority in aggregate principal
amount of the Securities of all series at the time Outstanding in respect of
which an Event of Default shall have occurred and be continuing shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in aggregate
principal amount of Securities of all series at the time Outstanding in respect
of which an Event of Default shall have occurred and be continuing a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor and of authorized denominations,
as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the absolute
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
A-8
[LEGEND
Unless and until this Security is exchanged in whole or in part for
certificated Securities registered in the names of the various beneficial
holders hereof as then certified to the Trustee by The Depository Trust Company
(55 Water Street, New York, New York) or its successor (the "Depositary"), this
Security may not be transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
Unless this certificate is presented by an authorized representative
of the Depositary to the Company or its agent for registration of transfer,
exchange or payment, and any certificate to be issued is registered in the name
of Cede & Co., or such other name as requested by an authorized representative
of the Depositary and any amount payable thereunder is made payable to Cede &
Co., or such other name, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof,
Cede & Co., has an interest herein.
This Security may be exchanged for certificated Securities registered
in the names of the various beneficial owners hereof if (a) the Depositary is at
any time unwilling or unable to continue as depositary and a successor
depositary is not appointed by the Company within 90 days, or (b) the Company
elects to issue certificated Securities to beneficial owners. Any such exchange
shall be made upon receipt by the Trustee of a Company Order therefor and
certificated Securities of this series shall be registered in such names and in
such denominations as shall be certified to the Company and the Trustee by the
Depositary.]
A-9
EXHIBIT 4(D)3
ALLETE
(LEGALLY INCORPORATED AS MINNESOTA POWER, INC.)
OFFICER'S CERTIFICATE
, the of ALLETE (legally incorporated as Minnesota
------------- ---------
Power, Inc.) (the "Company"), pursuant to the authority granted in the Board
Resolutions of the Company dated , 200 , and Sections 102, 201 and 301
-------- --
of the Indenture defined herein, does hereby certify to LaSalle Bank National
Association (the "Trustee"), as Trustee under the Indenture of the Company (For
Unsecured Debt Securities) dated as of February 1, 2001 (the "Indenture") that:
1. The Securities of the series to be issued under the Indenture
------
shall be designated "[ % Series Senior Notes due ]
---- -- ----------
[Floating Rate Senior Notes due ]" (the "Senior Notes of the
---- ------
Series"). All capitalized terms used in this certificate which are not
defined herein but are defined in the form of Senior Notes of the
Series attached hereto as Exhibit A shall have the meanings set
------
forth in such Exhibit A; all other capitalized terms used in this
certificate which are not defined herein but are defined in the
Indenture shall have the meanings set forth in the Indenture;
2. [The Senior Notes of the Series shall be limited in aggregate
------
principal amount to $ at any time Outstanding, except as
-----------
contemplated in Section 301(b) of the Indenture;]
3. The Senior Notes of the Series shall mature and the principal
------
shall be due and payable together with all accrued and unpaid interest
thereon on , ;
--------- ----
4. The Senior Notes of the Series shall bear interest as provided
------
in the form of the Senior Notes of the Series set forth in
------
Exhibit A hereto;
5. The Corporate Trust Office of the Trustee in Chicago, Illinois will be
the place at which (i) the principal (and premium, if any) and each
installment of interest on the Senior Notes of the First Series shall
be payable, (ii) registration and registration of transfers and
exchanges in respect of the Senior Notes of the Series may be
------
effected, and (iii) notices and demands to or upon the Company in
respect of the Senior Notes of the Series may be served; and
------
the Trustee will be the Security Registrar and the Paying Agent for
the Senior Notes of the Series; provided, however, that the
------
Company reserves the right to change, by one or more Officer's
Certificates supplemental to this Officer's Certificate, any such
place or the Security Registrar or such Paying Agent;
6. [Redemption provisions, if any, should be inserted];
7. [The Senior Notes of the Series will be originally issued in
------
global form payable to Cede & Co. and will, unless and until the
Senior Notes of the Series are exchanged in whole or in part
------
for certificated Senior Notes of the Series registered in the
------
names of various beneficial holders thereof (in accordance with the
conditions set forth in the legend appearing in the form of the Senior
Notes of the Series, set forth in Exhibit A hereto), contain
------
restrictions on transfer, substantially as described in such form;]
8. No service charge shall be made for the registration of transfer or
exchange of the Senior Notes of the Series; provided,
--------
however, that the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection with the exchange or transfer;
9. If the Company shall make any deposit of money and/or Government
Obligations with respect to any Senior Notes of the Series,
--------
or any portion of the principal amount thereof, as contemplated by
Section 701 of the Indenture, the Company shall not deliver an
Officer's Certificate described in clause (z) in the first paragraph
of said Section 701 unless the Company shall also deliver to the
Trustee, together with such Officer's Certificate, either:
(A) an instrument wherein the Company, notwithstanding the
satisfaction and discharge of its indebtedness in respect of the
Senior Notes of the Series, shall assume the obligation
--------
(which shall be absolute and unconditional) to irrevocably deposit
with the Trustee or Paying Agent such additional sums of money, if
any, or additional Government Obligations (meeting the requirements of
Section 701), if any, or any combination thereof, at such time or
times, as shall be necessary, together with the money and/or
Government Obligations theretofore so deposited, to pay when due the
principal of and premium, if any, and interest due and to become due
on such Senior Notes of the Series or portions thereof, all
--------
in accordance with and subject to the provisions of said Section 701;
provided, however, that such instrument may state that the obligation
of the Company to make additional deposits as aforesaid shall be
subject to the delivery to the Company by the Trustee of a notice
asserting the deficiency accompanied by an opinion of an independent
public accountant of nationally recognized standing, selected by the
Trustee, showing the calculation thereof; or
(B) an Opinion of Counsel to the effect that, as a result of a
change in law occurring after the date of this certificate, the
Holders of such Senior Notes of the Series, or portions of
--------
the principal amount thereof, will not recognize income, gain or loss
for United States federal income tax purposes as a result of the
satisfaction and discharge of the Company's indebtedness in respect
thereof and will be subject to United States federal income tax on the
same amounts, at the same times and in the same manner as if such
satisfaction and discharge had not been effected;
10. The Senior Notes of the Series shall have such other terms
--------
and provisions as are provided in the form thereof set forth in
Exhibit A hereto, and shall be issued in substantially such form;
11. The following clauses of Section 301 of the Indenture are not
applicable to the Senior Notes of the Series: [insert clauses
--------
not applicable].
12. The undersigned has read all of the covenants and conditions contained
in the Indenture relating to the issuance of the Senior Notes of the
Series and the definitions in the Indenture relating thereto
--------
and in respect of which this certificate is made;
13. The statements contained in this certificate are based upon the
familiarity of the undersigned with the Indenture, the documents
accompanying this certificate, and upon discussions by the undersigned
with officers and employees of the Company familiar with the matters
set forth herein;
2
14. In the opinion of the undersigned, he has made such examination or
investigation as is necessary to express an informed opinion whether
or not such covenants and conditions have been complied with; and
15. In the opinion of the undersigned, such conditions and covenants and
conditions precedent, if any (including any covenants compliance with
which constitutes a condition precedent) to the authentication and
delivery of the Senior Notes of the Series requested in the
--------
accompanying Company Order have been complied with.
3
IN WITNESS WHEREOF, I have executed this Officer's Certificate this
------
day of , 200 .
--------- --
----------------------------------
4
NO.
---------------
CUSIP NO.
----------
[FORM OF FACE OF SENIOR NOTE]
[(SEE LEGEND AT THE END OF THIS SECURITY FOR
RESTRICTIONS ON TRANSFERABILITY AND CHANGE OF FORM)]
ALLETE
(LEGALLY INCORPORATED AS MINNESOTA POWER, INC.)
[ % SENIOR NOTES, DUE , ] [FLOATING RATE SENIOR NOTES DUE ]
--- --------- ---- ---
ALLETE (legally incorporated as MINNESOTA POWER, INC.), a corporation duly
organized and existing under the laws of the State of Minnesota (herein referred
to as the "Company", which term includes any successor Person under the
Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to [Cede & Co.] or registered assigns, the principal sum of
Dollars on , and to pay interest on said
- ------------------ ------------
principal sum, from , 200 , or from the most recent Interest Payment
----------- --
Date to which interest has been paid or duly provided for, [semi-annually on
and of each year, commencing , 200 , at the rate of %
- ---- ---- ----------- -- ----
per annum] [quarterly on , , and of each year,
------ ------- ------- -------
commencing , at the per annum interest rate determined by ]
-------- ---------
until the principal hereof is paid or made available for payment. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day year of twelve 30-day months. Interest on the Securities of this
series will accrue from , 200 , to the first Interest Payment Date,
----------- --
and thereafter will accrue from the last Interest Payment Date to which interest
has been paid or duly provided for. In the event that any Interest Payment Date
is not a Business Day, then payment of interest payable on such date will be
made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of such delay) with the same force and
effect as if made on the Interest Payment Date. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be [the Business Day
preceding the corresponding Interest Payment Date; provided, however, that if
the Securities of this series are not held by a securities depository in a book
entry only form, the Regular Record Date will be the close of business on the
15th calendar day next preceding] such Interest Payment Date. Any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture referred to on the
reverse hereof.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the corporate trust office of LaSalle Bank National
Association, Chicago, Illinois or at such other office or agency as may be
designated for such purpose by the Company, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that, at the option of the
Company, interest on this Security may be paid by check mailed to the address of
the person entitled thereto, as such address shall appear on the Security
Register.
A-1
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
ALLETE
(legally incorporated as MINNESOTA POWER, INC.)
By:
--------------------------------------
ATTEST:
- ----------------------------
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
LASALLE BANK NATIONAL ASSOCIATION, as Trustee
By:
--------------------------------------
Authorized Signatory
A-2
[FORM OF REVERSE OF SENIOR NOTE]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture (For Unsecured Debt Securities), dated as of February
1, 2001 (herein, together with any amendments thereto, called the "Indenture",
which term shall have the meaning assigned to it in such instrument), between
the Company and LaSalle Bank National Association, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), and
reference is hereby made to the Indenture, including the Board Resolutions and
Officer's Certificate filed with the Trustee on , 200 (the
----------- --
"Officer's Certificate") creating the series designated on the face hereof, for
a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $ .
-----------
[Formula for calculation of interest, if applicable, should be
inserted]
[Redemption provisions, if any, should be inserted]
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security upon compliance with certain conditions set
forth in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than a majority in aggregate
principal amount of the Securities of all series at the time Outstanding in
respect of which an Event of Default shall have occurred and be continuing shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee reasonable indemnity,
and the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of Securities of all series at the time Outstanding
in respect of which an Event of Default shall have occurred and be continuing a
direction inconsistent with such request, and shall have failed to institute any
such proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
A-3
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor and of authorized denominations,
as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the absolute
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture and in the Officer's
Certificate establishing the terms of the Securities of this series.
A-4
[LEGEND
Unless and until this Security is exchanged in whole or in part for
certificated Securities registered in the names of the various beneficial
holders hereof as then certified to the Trustee by The Depository Trust Company
(55 Water Street, New York, New York) or its successor (the "Depositary"), this
Security may not be transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
Unless this certificate is presented by an authorized representative of the
Depositary to the Company or its agent for registration of transfer, exchange or
payment, and any certificate to be issued is registered in the name of Cede &
Co., or such other name as requested by an authorized representative of the
Depositary and any amount payable thereunder is made payable to Cede & Co., or
such other name, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co.,
has an interest herein.
This Security may be exchanged for certificated Securities registered in
the names of the various beneficial owners hereof if (a) the Depositary is at
any time unwilling or unable to continue as depositary and a successor
depositary is not appointed by the Company within 90 days, or (b) the Company
elects to issue certificated Securities to beneficial owners. Any such exchange
shall be made upon receipt by the Trustee of a Company Order therefor and
certificated Securities of this series shall be registered in such names and in
such denominations as shall be certified to the Company and the Trustee by the
Depositary.]
A-5
EXHIBIT 4(R)
TRUST AGREEMENT
OF ALLETE CAPITAL II
This TRUST AGREEMENT of ALLETE Capital II (the "Trust"), dated as of
March 13, 2001, among (i) ALLETE (legally incorporated as Minnesota Power,
Inc.), a Minnesota corporation (the "Depositor"), (ii) The Bank of New York, a
New York banking corporation (the "Property Trustee"), not in its individual
capacity but solely as trustee of the Trust, (iii) The Bank of New York
(Delaware), a Delaware banking corporation (the "Delaware Trustee"), not in its
individual capacity but solely as trustee of the Trust, and (iv) Philip R.
Halverson, an individual employed by the Depositor or one of its affiliates, not
in his individual capacity but solely as trustee of the Trust (the
"Administrative Trustee") (the Administrative Trustee, together with any
administrative trustees appointed by the Depositor after the date hereof, the
"Administrative Trustees") (each of such trustees in (ii), (iii) and (iv) a
"Trustee" and collectively, the "Trustees"). The Depositor and the Trustees
hereby agree as follows:
1. The trust created hereby shall be known as "ALLETE Capital
II", in which name the Trustees, or the Depositor to the extent provided herein,
may conduct the business of the Trust, make and execute contracts, and sue and
be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over
to the Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. ss.3801 et seq. (the "Business Trust Act"), and
that this document constitutes the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Secretary of State of the State of Delaware in accordance with
the provisions of the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement, satisfactory to each such party and substantially in
the form to be included as an exhibit to the 1933 Act Registration Statement
referred to below, to provide for the contemplated operation of the Trust
created hereby and the issuance of the preferred trust securities and common
trust securities referred to therein. Prior to the execution and delivery of
such amended and restated Trust Agreement, the Trustees shall not have any duty
or obligation hereunder or with respect of the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct
each of the Administrative Trustees, and the Depositor, acting singly or
together, (and, in the case of (iv) below, Robert J. Reger, Jr., as authorized
representative of the Trust) (i) to prepare and file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) a Registration Statement on Form S-3 (the "1933 Act Registration
Statement") (including any pre-effective or post-effective amendments thereto),
relating to the registration under the Securities Act of 1933, as amended, of
the preferred trust securities of the Trust and certain other securities and (b)
a Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating to
the registration of the preferred trust securities of the Trust under Section
12(b) or 12(g) of the Securities Exchange Act of 1934, as amended, (ii) to
prepare and file with The New York Stock Exchange, Inc. (the "Exchange") and
execute on behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the preferred trust securities to be listed on the
Exchange, (iii) to prepare and file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the preferred trust securities under the
securities or blue sky laws of such jurisdictions as the Depositor or the
Administrative Trustee, on behalf of the Trust, may deem necessary or desirable
and (iv) to execute and deliver, on behalf of the Trust, an underwriting
agreement in respect of the sale of the preferred trust securities in such form
as the Depositor shall approve. In the event that any filing referred to above
is required by the rules and regulations of the Commission, the Exchange or
state securities or blue sky laws, to be executed on behalf of the Trust by one
or more of the Trustees, each of the Trustees, in its or his capacity as Trustee
of the Trust, is hereby authorized and, to the extent so required, directed to
join in any such filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that the Property Trustee and the Delaware
Trustee, in their capacities as Trustees of the Trust, respectively, shall not
be required to join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the Commission,
the Exchange or state securities or blue sky laws. In connection with the
filings referred to above, the Depositor and each Trustee, solely in its or his
capacity as trustee of the Trust, hereby constitutes and appoints David G.
Gartzke, Philip R. Halverson, James K. Vizanko and Robert J. Reger, Jr., and
each of them, as its or his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for the Depositor or such Trustee
or in the Depositor's or such Trustee's name, place and stead, in any and all
capacities, to sign any and all filings and amendments (including post-effective
amendments) to any of such filings (including the 1933 Act Registration
Statement and the 1934 Act Registration Statement) and to file the same, with
all exhibits thereto and other documents in connection therewith, with the
Commission, the Exchange and securities or blue sky administrators, granting
unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as the Depositor or
such Trustee might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or their respective
substitute or substitutes, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as set forth in the
amended and restated Trust Agreement or as shall be fixed from time to time by a
written instrument signed by the Depositor which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall be either a natural person who is a
resident of the State of Delaware, or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any Trustee at any
2
time. Any one or more of the Trustees may resign upon thirty (30) days prior
written notice to Depositor.
7. The Depositor shall have the right to dissolve the Trust at
any time prior to the issuance of any preferred trust security. Upon dissolution
of the Trust pursuant to this Section 7, each of the Administrative Trustees,
acting singly, is hereby authorized to prepare, execute and file a Certificate
of Cancellation in respect of the Trust with the Secretary of State of the State
of Delaware.
8. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
3
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
ALLETE
(legally incorporated as Minnesota Power, Inc.),
as Depositor
By: /s/ Philip R. Halverson
------------------------------------------
Name: Philip R. Halverson
Title: Vice President, General Counsel
& Secretary
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By: /s/ Thomas B. Zakrzewski
------------------------------------------
Name: Thomas B. Zakrzewski
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but
solely as Trustee
By: /s/ Patrick Burns
------------------------------------------
Name: Patrick Burns
Title: SVP
PHILIP R. HALVERSON,
not in his individual capacity
but solely as Trustee
By: /s/ Philip R. Halverson
------------------------------------------
4
CERTIFICATE OF TRUST
OF
ALLETE CAPITAL II
THIS CERTIFICATE OF TRUST of ALLETE Capital II (the "Trust"), dated as
of March 13, 2001, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. ss. 3801, et seq.).
1. Name. The name of the business trust being created hereby is ALLETE
Capital II.
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, New Castle
County, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be effective as of
its filing with the Secretary of State of the State of Delaware.
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 PHILIP R. HALVERSON
not in its individual capacity Not in his individual capacity
but solely as Trustee but solely as Trustee
By: /s/ Thomas B. Zakrzewski By: /s/ Philip R. Halverson
------------------------------- -------------------------------
Name: Thomas B. Zakrzewski
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity
but solely as Trustee
By: /s/ Patrick Burns
- -------------------------------
Name: Patrick Burns
Title: SVP
2
EXHIBIT 4(S)
TRUST AGREEMENT
OF ALLETE CAPITAL III
This TRUST AGREEMENT of ALLETE Capital III (the "Trust"), dated as of
March 13, 2001, among (i) ALLETE (legally incorporated as Minnesota Power,
Inc.), a Minnesota corporation (the "Depositor"), (ii) The Bank of New York, a
New York banking corporation (the "Property Trustee"), not in its individual
capacity but solely as trustee of the Trust, (iii) The Bank of New York
(Delaware), a Delaware banking corporation (the "Delaware Trustee"), not in its
individual capacity but solely as trustee of the Trust, and (iv) Philip R.
Halverson, an individual employed by the Depositor or one of its affiliates, not
in his individual capacity but solely as trustee of the Trust (the
"Administrative Trustee") (the Administrative Trustee, together with any
administrative trustees appointed by the Depositor after the date hereof, the
"Administrative Trustees") (each of such trustees in (ii), (iii) and (iv) a
"Trustee" and collectively, the "Trustees"). The Depositor and the Trustees
hereby agree as follows:
1. The trust created hereby shall be known as "ALLETE Capital
III", in which name the Trustees, or the Depositor to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over
to the Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. ss.3801 et seq. (the "Business Trust Act"), and
that this document constitutes the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Secretary of State of the State of Delaware in accordance with
the provisions of the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement, satisfactory to each such party and substantially in
the form to be included as an exhibit to the 1933 Act Registration Statement
referred to below, to provide for the contemplated operation of the Trust
created hereby and the issuance of the preferred trust securities and common
trust securities referred to therein. Prior to the execution and delivery of
such amended and restated Trust Agreement, the Trustees shall not have any duty
or obligation hereunder or with respect of the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct
each of the Administrative Trustees, and the Depositor, acting singly or
together, (and, in the case of (iv) below, Robert J. Reger, Jr., as authorized
representative of the Trust) (i) to prepare and file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) a Registration Statement on Form S-3 (the "1933 Act Registration
Statement") (including any pre-effective or post-effective amendments thereto),
relating to the registration under the Securities Act of 1933, as amended, of
the preferred trust securities of the Trust and certain other securities and (b)
a Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating to
the registration of the preferred trust securities of the Trust under Section
12(b) or 12(g) of the Securities Exchange Act of 1934, as amended, (ii) to
prepare and file with The New York Stock Exchange, Inc. (the "Exchange") and
execute on behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the preferred trust securities to be listed on the
Exchange, (iii) to prepare and file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the preferred trust securities under the
securities or blue sky laws of such jurisdictions as the Depositor or the
Administrative Trustee, on behalf of the Trust, may deem necessary or desirable
and (iv) to execute and deliver, on behalf of the Trust, an underwriting
agreement in respect of the sale of the preferred trust securities in such form
as the Depositor shall approve. In the event that any filing referred to above
is required by the rules and regulations of the Commission, the Exchange or
state securities or blue sky laws, to be executed on behalf of the Trust by one
or more of the Trustees, each of the Trustees, in its or his capacity as Trustee
of the Trust, is hereby authorized and, to the extent so required, directed to
join in any such filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that the Property Trustee and the Delaware
Trustee, in their capacities as Trustees of the Trust, respectively, shall not
be required to join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the Commission,
the Exchange or state securities or blue sky laws. In connection with the
filings referred to above, the Depositor and each Trustee, solely in its or his
capacity as trustee of the Trust, hereby constitutes and appoints David G.
Gartzke, Philip R. Halverson, James K. Vizanko and Robert J. Reger, Jr., and
each of them, as its or his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for the Depositor or such Trustee
or in the Depositor's or such Trustee's name, place and stead, in any and all
capacities, to sign any and all filings and amendments (including post-effective
amendments) to any of such filings (including the 1933 Act Registration
Statement and the 1934 Act Registration Statement) and to file the same, with
all exhibits thereto and other documents in connection therewith, with the
Commission, the Exchange and securities or blue sky administrators, granting
unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as the Depositor or
such Trustee might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or their respective
substitute or substitutes, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as set forth in the
amended and restated Trust Agreement or as shall be fixed from time to time by a
written instrument signed by the Depositor which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall be either a natural person who is a
resident of the State of Delaware, or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any Trustee at any
2
time. Any one or more of the Trustees may resign upon thirty (30) days prior
written notice to Depositor.
7. The Depositor shall have the right to dissolve the Trust at
any time prior to the issuance of any preferred trust security. Upon dissolution
of the Trust pursuant to this Section 7, each of the Administrative Trustees,
acting singly, is hereby authorized to prepare, execute and file a Certificate
of Cancellation in respect of the Trust with the Secretary of State of the State
of Delaware.
8. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
3
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
ALLETE
(legally incorporated as Minnesota Power, Inc.),
as Depositor
By: /s/ Philip R. Halverson
------------------------------------------
Name: Philip R. Halverson
Title: Vice President, General Counsel
& Secretary
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By: /s/ Thomas B. Zakrzewski
------------------------------------------
Name: Thomas B. Zakrzewski
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but
solely as Trustee
By: /s/ Patrick Burns
------------------------------------------
Name: Patrick Burns
Title: SVP
PHILIP R. HALVERSON,
not in his individual capacity
but solely as Trustee
By: /s/ Philip R. Halverson
------------------------------------------
4
CERTIFICATE OF TRUST
OF
ALLETE CAPITAL III
THIS CERTIFICATE OF TRUST of ALLETE Capital III (the "Trust"), dated
as of March 13, 2001, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. ss. 3801, et seq.).
1. Name. The name of the business trust being created hereby is ALLETE
Capital III.
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, New Castle
County, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be effective as of
its filing with the Secretary of State of the State of Delaware.
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 PHILIP R. HALVERSON
not in its individual capacity Not in his individual capacity
but solely as Trustee but solely as Trustee
By: /s/ Thomas B. Zakrzewski By: /s/ Philip R. Halverson
------------------------------- -------------------------------
Name: Thomas B. Zakrzewski
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity
but solely as Trustee
By: /s/ Patrick Burns
- -------------------------------
Name: Patrick Burns
Title: SVP
2
EXHIBIT 4(T)
================================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
BETWEEN
ALLETE (LEGALLY INCORPORATED AS MINNESOTA POWER, INC.), AS DEPOSITOR
AND
THE BANK OF NEW YORK,
THE BANK OF NEW YORK (DELAWARE),
,
--------------
,
--------------
,
--------------
AND
, AS TRUSTEES
------------------
AND
THE SEVERAL HOLDERS
DATED AS OF
-----------------
ALLETE CAPITAL
--
================================================================================
ALLETE Capital
--
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.
i
TABLE OF CONTENTS
ARTICLE I. Defined Terms......................................................2
Section 1.01. Definitions....................................................2
ARTICLE II. Establishment of the Trust.......................................10
Section 2.01. Name..........................................................10
Section 2.02. Office of the Delaware Trustee; Principal Place of
Business......................................................10
Section 2.03. Initial Contribution of Trust Property;
Organizational Expenses.......................................11
Section 2.04. Issuance of the Preferred Trust Securities....................11
Section 2.05. Subscription and Purchase of Debentures; Issuance of
the Common Trust 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...............................................15
Section 2.09. Title to Trust Property.......................................15
ARTICLE III. Payment Account.................................................15
Section 3.01. Payment Account...............................................15
ARTICLE IV. Distributions; Redemption........................................16
Section 4.01. Distributions.................................................16
Section 4.02. Redemption....................................................17
Section 4.03. Subordination of Common Trust Securities......................19
Section 4.04. Payment Procedures............................................19
Section 4.05. Tax Returns and Reports.......................................19
Section 4.06. Payments under Indenture......................................20
ARTICLE V. Trust Securities Certificates.....................................20
Section 5.01. Initial Ownership.............................................20
Section 5.02. The Trust Securities Certificates.............................20
Section 5.03. Execution and Delivery of Trust Securities
Certificates..................................................21
Section 5.04. Registration of Transfer and Exchange of Trust
Securities Certificates.......................................21
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates..................................................22
Section 5.06. Persons Deemed Securityholders................................22
Section 5.07. Access to List of Securityholders' Names and Addresses........22
Section 5.08. Maintenance of Office or Agency...............................23
Section 5.09. Appointment of Paying Agent...................................23
Section 5.10. Ownership of Common Trust Securities by Depositor.............24
Section 5.11. Definitive Preferred Trust Securities Certificates............24
Section 5.12. Book-Entry System.............................................24
Section 5.13. Rights of Securityholders.....................................25
Section 5.14. Cancellation by Transfer Agent and Registrar..................25
ARTICLE VI. Acts of Securityholders; Meetings; Voting........................25
ii
Section 6.01. Limitations on Voting Rights..................................25
Section 6.02. Notice of Meetings............................................26
Section 6.03. Meetings of Holders of Preferred Trust Securities.............27
Section 6.04. Voting Rights.................................................27
Section 6.05. Proxies, etc..................................................27
Section 6.06. Securityholder Action by Written Consent......................27
Section 6.07. Record Date for Voting and Other Purposes.....................28
Section 6.08. Acts of Securityholders.......................................28
Section 6.09. Inspection of Records.........................................29
ARTICLE VII. Representations and Warranties of the Property Trustee and the
Delaware Trustee.............................................................29
Section 7.01. Property Trustee..............................................29
Section 7.02. Delaware Trustee..............................................29
ARTICLE VIII. The Trustees...................................................30
Section 8.01. Certain Duties and Responsibilities...........................30
Section 8.02. Notice of Defaults............................................31
Section 8.03. Certain Rights of Property Trustee............................32
Section 8.04. Not Responsible for Recitals or Issuance of Securities........34
Section 8.05. May Hold Securities...........................................34
Section 8.06. Compensation; Fees; Indemnity.................................34
Section 8.07. Certain Trustees Required; Eligibility........................35
Section 8.08. Conflicting Interests.........................................36
Section 8.09. Co-Trustees and Separate Trustee..............................36
Section 8.10. Resignation and Removal; Appointment of Successor.............37
Section 8.11. Acceptance of Appointment by Successor........................39
Section 8.12. Merger, Conversion, Consolidation or Succession to
Business......................................................39
Section 8.13. Preferential Collection of Claims Against Depositor
or Trust......................................................39
Section 8.14. Reports by Property Trustee...................................40
Section 8.15. Reports to the Property Trustee...............................40
Section 8.16. Evidence of Compliance With Conditions Precedent..............40
Section 8.17. Number of Trustees............................................40
Section 8.18. Delegation of Power...........................................41
Section 8.19. Fiduciary Duty................................................41
ARTICLE IX. Termination and Liquidation......................................42
Section 9.01. Dissolution Upon Expiration Date..............................42
Section 9.02. Early Termination.............................................42
Section 9.03. Termination...................................................43
Section 9.04. Liquidation...................................................43
ARTICLE X. Miscellaneous Provisions..........................................44
Section 10.01. Guarantee by the Depositor and Assumption of
Obligations...................................................44
Section 10.02. Limitation of Rights of Securityholders.......................45
Section 10.03. Amendment.....................................................45
Section 10.04. Separability..................................................46
Section 10.05. Governing Law.................................................46
iii
Section 10.06. Successors....................................................46
Section 10.07. Headings......................................................46
Section 10.08. Notice and Demand.............................................47
Section 10.09. Agreement Not to Petition.....................................47
Section 10.10. Conflict with Trust Indenture Act.............................47
iv
AMENDED AND RESTATED TRUST AGREEMENT, dated as of , between
---------
(i) ALLETE (legally incorporated as Minnesota Power, Inc.), a Minnesota
corporation (the "Depositor"), (ii) THE BANK OF NEW YORK, a New York banking
corporation, 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 Delaware banking corporation, as Delaware trustee (the
"Delaware Trustee"), (iv) Philip R. Halverson, , ,
-------------- --------------
and , as trustees, each an individual, and
- --------------- -------------------
each of whose address is c/o ALLETE, 30 West Superior Street, Duluth, Minnesota
55802-2093 (each, an "Administrative Trustee" and collectively the
"Administrative Trustees") (the Property Trustee, the Delaware Trustee and the
Administrative Trustees are referred to herein each as a "Trustee" and
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 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 March , 2001
--
(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 March , 2001, a copy of which is attached as Exhibit A; and
--
WHEREAS, the Trust and the Depositor entered into an Underwriting
Agreement dated with and
---------------- -----------------------
.
- ------------------------
WHEREAS, the parties hereto 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, as hereinafter defined, (ii) the issuance
of the Common Trust Securities, as hereinafter defined, by the Trust to the
Depositor, and (iii) the issuance of the Preferred Trust Securities, as
hereinafter defined, by 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 for a given period, the amount of
Additional Interest (as defined in the Subordinated Indenture) paid by
the Debenture Issuer 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 and not in their individual capacities, or such trustee's
successor in interest in such capacity, or any successor trustee
appointed as herein provided.
"Adverse Tax Consequence" means any of the circumstances
described in clauses (i), (ii) and (iii) of the definition of "Tax
Event" herein.
"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.
"Bankruptcy Event" means, with respect to any Person:
2
(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 execution and delivery of
this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"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
3
Trust Indenture Act, then the body performing such duties at such
time.
"Common Trust Security" means a security representing 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,
Debentures and a Liquidation Distribution as provided herein.
"Common Trust Securities Certificate" means a certificate
evidencing ownership of Common Trust 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 which at
the date of execution of this Trust Agreement is located at 101
Barclay Street, New York, New York 10286, Attention: Corporate Trust
Administration.
"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 ALLETE, a Minnesota corporation, in
its capacity as issuer of the Debentures and its successors.
"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, and its permitted successors and
assigns as such trustee.
"Debentures" means up to $ aggregate principal
-----------
amount of the Debenture Issuer's % Junior Subordinated Debentures,
----
Series , issued pursuant to the Subordinated Indenture which will
--
mature on .
-----------------
"Definitive Preferred Trust Securities Certificates" means
Preferred Trust 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 of the Trust and not in its
individual capacity, or its successor in interest in such capacity, or
any successor trustee appointed as herein provided.
4
"Depositor" has the meaning specified in the preamble to
this Trust Agreement and includes ALLETE, in its capacity as Holder of
the Common Trust Securities and its successors.
"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 Trust 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" means the Securities Exchange Act of 1934, as
amended.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities, dated the date hereof, 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
5
banking corporation, as trustee, contemporaneously with the execution
and delivery of this Trust Agreement, for the benefit of the Holders
of the Preferred Trust Securities, as amended from time to time.
"Indemnified Person" means any Trustee, any Affiliate of any
Trustee, or any officer, director, shareholder, member, partners,
employee, representative or agent of any Trustee, or any employee or
agent of the Trust or its Affiliates.
"Investment Company Act" means the Investment Company Act of
1940, as amended.
"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 Holders to which such Debentures are distributed.
"Liquidation Amount" means the stated amount of $__ per
Trust Security.
"Liquidation Date" means the date on which Debentures are to
be distributed to Holders of Trust Securities in connection with a
dissolution and liquidation of the Trust pursuant to Section 9.04.
"Liquidation Distribution" has the meaning specified in
Section 9.04(e).
"Offer" has the meaning specified in Section 2.07(c).
"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;
6
(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. Any Opinion of
Counsel delivered with respect to compliance with a condition or
covenant provided for in this Trust Agreement shall include statements
comparable to the statements referred to in the definition of
"Officers' Certificate" herein.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding," when used with respect to Preferred Trust
Securities, means, as of the date of determination, all Preferred
Trust Securities theretofore delivered under this Trust Agreement,
except:
(i) Preferred Trust Securities theretofore canceled by the
Transfer Agent and Registrar or delivered to the Transfer Agent
and Registrar for cancellation;
(ii) Preferred Trust 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 Trust Securities; provided that, if
such Preferred Trust Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Trust
Agreement; and
(iii) Preferred Trust Securities in exchange for or in lieu
of which other Preferred Trust 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 Trust Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Trust 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 Trust 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 Trust Securities are
owned by the Depositor, one or more of the Trustees and/or any such Affiliate.
Preferred Trust Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
7
Administrative Trustee the pledgee's right so to act with respect to such
Preferred Trust 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
Trust 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 with
, or such other banking institution as the Depositor
--------------
shall select 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 Trust Security" means a security representing an
undivided beneficial interest in the assets of the Trust having a
Liquidation Amount of $ and having rights provided therefor in this
--
Trust Agreement, including the right to receive Distributions,
Debentures and a Liquidation Distribution as provided herein and, in
certain circumstances, a preference over the Common Trust Securities.
"Preferred Trust Securities Certificate" means a certificate
evidencing ownership of Preferred Trust 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 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.
"Relevant Trustee" shall have the meaning specified in
Section 8.10.
8
"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 matters.
"Securities Depository" shall have the meaning specified in
Section 5.12. The Depository Trust Company will be the initial
Securities Depository.
"Securities Register" shall mean the Securities Register as
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 a beneficial owner of such security within
the meaning of the Delaware Business Trust Act.
"Subordinated Indenture" means the Indenture, dated as of
, 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 or the Depositor
of an opinion of counsel experienced in such matters to the effect
that, as a result of (a) any amendment to, clarification of, or change
(including any announced prospective change) in, the laws or treaties
(or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein affecting taxation,
(b) any judicial decision or any official administrative
pronouncement, ruling, regulatory procedure, notice or announcement
(including any notice or announcement of intent to issue or adopt any
such administrative pronouncement, ruling, regulatory procedure or
regulation) (each, an "Administrative Action"), or (c) any amendment
to, clarification of, or change in the official position or the
interpretation of any such Administrative Action or judicial decision
or any interpretation or pronouncement that provides for a position
with respect to such Administrative Action or judicial decision that
differs from the theretofore generally accepted position, in each case
by any legislative body, court, governmental authority or regulatory
body, irrespective of the time or manner in which such amendment,
clarification or change is introduced or made known, which amendment,
clarification, or change is effective, which Administrative Action is
taken or which judicial decision is issued, in each case on or after
the date of issuance of the Preferred Trust Securities, there is more
than an insubstantial risk that (i) the Trust is, or will be, subject
to United States federal income tax with respect to interest received
on the Debentures, (ii) interest payable by the Depositor on the
Debentures is not, or will not be, fully deductible by the Depositor
for United States federal income tax purposes, or (iii) the Trust is,
or will be, subject to more than a de minimis amount of other taxes,
duties or other governmental charges.
"Transfer Agent and Registrar" shall mean the transfer agent
and registrar for the Preferred Trust Securities appointed by the
Trust and shall be initially The Bank of New York.
9
"Trust" means the Delaware business trust created by the
Original Trust Agreement and the Certificate of Trust 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 amended and 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.
"Trust Securities Certificate" means any one of the Common
Trust Securities Certificates or the Preferred Trust Securities
Certificates.
"Trust Security" means any one of the Common Trust
Securities or the Preferred Trust Securities.
"Underwriting Agreement" means the Underwriting Agreement,
dated as of , among the Trust, the Depositor and [the
----------------
representatives of] the underwriters named therein.
ARTICLE II.
ESTABLISHMENT OF THE TRUST
SECTION 2.01. NAME. The Trust continued hereby shall be known as
"ALLETE Capital " 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 ALLETE, 30 West Superior Street, Duluth, Minnesota 55802-2093.
10
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 TRUST SECURITIES. On
, an authorized representative of the Depositor and 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 and
delivered Preferred Trust Securities Certificates, registered in the name of the
nominee of The Depository Trust Company, having an aggregate Liquidation Amount
of $ . [In the event and to the extent the over-allotment option
-----------
granted by the Trust and the Depositor pursuant to the Underwriting Agreement is
exercised by the underwriters named therein, on each option closing date, one of
the Administrative Trustees, on behalf of the Trust, shall execute in accordance
with Section 5.02 and deliver to the underwriters named in the Underwriting
Agreement, Preferred Trust Securities Certificates, registered in the name of
the nominee of The Depository Trust Company, having an aggregate Liquidation
Amount of up to $ .]
----------
SECTION 2.05. SUBSCRIPTION AND PURCHASE OF DEBENTURES; ISSUANCE OF THE
COMMON TRUST SECURITIES. Contemporaneously with the execution and delivery of
this Trust Agreement, (a) the Administrative Trustees, on behalf of the Trust,
subscribed to and purchased from the Debenture Issuer Debentures, registered in
the name of the Property Trustee and having an aggregate principal amount equal
to $ , in satisfaction of the purchase price for such Debentures, (b)
-----------
one of the Administrative Trustees, on behalf of the Trust, executed and
delivered to the Depositor Common Trust Securities Certificates, registered in
the name of the Depositor, representing Common Trust Securities having
-------
an aggregate Liquidation Amount of $ , and (c) the Property Trustee, on
---------
behalf of the Trust, delivered to the Debenture Issuer the sum of $
-----------
representing the proceeds from the sale of the Preferred Trust Securities
pursuant to the Underwriting Agreement. [In the event and to the extent the
over-allotment option granted by the Trust and the Depositor pursuant to the
Underwriting Agreement is exercised by the underwriters named therein, on each
option closing date, one of the Administrative Trustees, on behalf of the Trust,
shall execute in accordance with Section 5.02 and deliver to the Depositor
Common Trust Securities Certificates, registered in the name of the Depositor,
and the Property Trustee, on behalf of the Trust, shall deliver to the Debenture
Issuer the proceeds from each sale of additional Preferred Trust Securities
pursuant to the Underwriting Agreement; provided, however, that the aggregate
Liquidation Amount of Common Trust Securities issued in connection with the
exercise of the over-allotment option shall not exceed $ and the
-------
aggregate proceeds to the Debenture Issuer from the sale of additional Preferred
Trust Securities in connection with the exercise of the over-allotment option
shall not exceed $ . In connection with the over-allotment option, the
----------
Trust may purchase additional Debentures in the amount equal to the Liquidation
Amount of the Common Securities plus the Liquidation Amount of the Preferred
Securities.]
11
SECTION 2.06. DECLARATION OF TRUST; APPOINTMENT OF ADDITIONAL
ADMINISTRATIVE TRUSTEES. 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 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, acting singly
or together, 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 other agreements as may be necessary
or desirable in connection with the consummation of the Underwriting
Agreement;
(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;
(v) the registration of the Preferred Trust 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;
12
(vi) the appointment of a Paying Agent and a Transfer Agent and
Registrar in accordance with this Trust Agreement;
(vii) registering transfers of the Trust Securities in accordance
with this Trust Agreement;
(viii) the establishment of a record date for any of the purposes
contemplated by Section 6.07 hereof;
(ix) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of Delaware; and
(x) 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;
(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) to the extent 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
13
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 Trustees set forth in Sections 2.07(a)(A) and 2.07(c)
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
Holders 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 Trust Securities,
the Depositor and the Administrative Trustees, acting singly or together, (and,
in the case of (v) and (vii) below, Robert J. Reger, Jr., as authorized
representative of the Trust) shall have the right and responsibility to assist
the Trust with respect to, or effect on behalf of the 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 Trust Securities, including any amendments thereto;
(ii) to prepare for filing by the Trust with the Commission and
to execute a registration statement on Form 8-A including all
amendments thereto;
(iii) to prepare and file with The New York Stock Exchange, Inc.
and execute on behalf of the Trust a listing application and all other
applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the Preferred
Trust Securities to be listed on such exchange;
(iv) to determine the states in which to take appropriate action
to qualify or register for sale all or part of the Preferred Trust
14
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;
(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 the
Preferred Trust Securities ("Offer") and negotiate the terms of the
Underwriting 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
or classified other than as a "grantor trust" for United States federal income
tax purposes and not as an association taxable as a corporation and so that the
Debentures will be treated as indebtedness of the Debenture Issuer for United
States federal income tax purposes. In this connection, 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 Trust
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) (a) On or prior to the Closing
Date, the Property Trustee shall establish the Payment Account. The Property
Trustee and the Paying Agent appointed by the Administrative Trustees shall have
exclusive control and sole right of withdrawal with respect to the Payment
15
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. The Property Trustee
shall have no liability in any respect whatsoever in regards to any moneys or
other property deposited in the Payment Account at an institution other than the
Property Trustee.
(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.
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.01. DISTRIBUTIONS. (a) (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 , , , and of each
-------- ------- ------------ -----------
year, commencing on ______________. 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) 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 % per annum of the Liquidation Amount of the Trust Securities. The
----
amount of Distributions payable for any quarterly period shall be computed on
the same basis as interest is calculated on the Debentures. If the interest
payment period for the Debentures is extended pursuant to Section 311 of the
Subordinated Indenture, then Distributions on the Trust 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.
16
(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 Securities on the relevant record date, which
shall be one Business Day prior to the relevant Distribution Date, if Trust
Securities are in book-entry only form, and 15 days prior to the relevant
Distribution Date if Trust Securities are not in book-entry only form.
SECTION 4.02. REDEMPTION. (a) On each Debenture Redemption Date and at
the maturity date ("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 Redemption Date or Maturity Date, as the case may be.
(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 Distributions 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 Redemption Date will
become due and payable upon each such Trust Security to be redeemed
and that Distributions 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 Redemption Date 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
Redemption Date 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 Trust Securities, then, by 12:00 noon, New York City time, on
17
the Redemption Date, subject to Section 4.02(c), the Property Trustee shall
irrevocably deposit with the Paying Agent funds sufficient to pay the
applicable Redemption Price plus accumulated and unpaid Distributions to
the Redemption Date and will give the Paying Agent irrevocable instructions
and authority to pay the Redemption Price plus accumulated and unpaid
Distributions to the Redemption Date to the Holders thereof upon surrender
of their Preferred Trust Securities Certificates and Common Trust
Securities Certificates. Notwithstanding the foregoing, Distributions on
the Trust Securities with respect to Distribution Dates occurring 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
Redemption Date thereof, 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 Redemption 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) with
the same force and effect as if made on such date. 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 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 to the Common Trust
Securities and to the Preferred Trust Securities in the proportion that the
aggregate Liquidation Amount of each is to the aggregate Liquidation Amount
of all outstanding Trust Securities. The particular Preferred Trust
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
Trust 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 redemption of portions (equal to $ or integral
--
multiples thereof) of the Liquidation Amount of Preferred Trust Securities
of a denomination larger than $ . The Property Trustee shall promptly
--
notify the Transfer Agent and Registrar in writing of the Preferred Trust
18
Securities selected for redemption and, in the case of any Preferred Trust
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 Trust Securities shall relate, in the case of any Preferred Trust
Securities redeemed or to be redeemed only in part, to the portion of the
Liquidation Amount of Preferred Trust Securities which has been or is to be
redeemed.
SECTION 4.03. SUBORDINATION OF COMMON TRUST 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 an Event of Default shall have occurred and be
continuing, no payment of any Distribution (including Additional Amounts, if
applicable) on, or Redemption Price plus accumulated and unpaid Distributions
of, any Common Trust Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Trust 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 Trust 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 Trust 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 Trust 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 Trust 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 Trust Securities have been cured, waived or otherwise
eliminated. Until all such Events of Default under this Trust Agreement
with respect to the Preferred Trust Securities have been so cured, waived
or otherwise eliminated, the Property Trustee shall act solely on behalf of
the Holders of the Preferred Trust Securities and not the Holder of the
Common Trust Securities, and only the Holders of the Preferred Trust
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
Trust 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 Trust 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 Trust Securities shall be
made in such manner as shall be mutually agreed between the Administrative
Trustees and the Holder of the Common Trust Securities.
SECTION 4.05. TAX RETURNS AND REPORTS. The Administrative Trustees
shall prepare (or cause to be prepared), at the Depositor's expense and
19
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) 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 Trust 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 Trust
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 $__ Liquidation Amount and
integral multiples thereof. 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, the Preferred Trust Securities shall be countersigned by the Transfer
Agent and Registrar 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 the
Transfer Agent and Registrar 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 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 5.12.
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SECTION 5.03. EXECUTION AND DELIVERY OF TRUST SECURITIES CERTIFICATES.
On the Closing Date, [and in the event and to the extent the over-allotment
option granted by the Trust and the Depositor pursuant to the Underwriting
Agreement is exercised by the underwriters named therein, on each option closing
date,] the Administrative Trustees, or any one of them, 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 Trust Securities executed by facsimile signature, countersigned by
the Transfer Agent and Registrar, 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 The Bank of New York 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 TRUST
SECURITIES CERTIFICATES. The Transfer Agent and Registrar shall keep or cause to
be kept, at the office or agency maintained pursuant to Section 5.08, a
Securities Register in which, subject to such reasonable regulations as it may
prescribe, the Transfer Agent and Registrar shall provide for the registration
of Preferred Trust Securities Certificates and the Common Trust Securities
Certificates (subject to Section 5.10 in the case of the Common Trust Securities
Certificates) and registration of transfers and exchanges of Preferred Trust
Securities Certificates as herein provided. ALLETE shall be the initial Transfer
Agent and Registrar.
Upon surrender for registration of transfer of any Preferred Trust
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 the Transfer Agent and Registrar or its
agent to countersign and deliver, in the name of the designated transferee or
transferees, one or more new Preferred Trust Securities Certificates in
authorized denominations of a like aggregate Liquidation Amount. At the option
of a Holder, Preferred Trust Securities Certificates may be exchanged for other
Preferred Trust Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Amount upon surrender of the Preferred
Trust Securities Certificates to be exchanged at the office or agency maintained
pursuant to Section 5.08.
Every Preferred Trust 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
the Transfer Agent and Registrar duly executed by the Holder or such Holder's
attorney duly authorized in writing. Each Preferred Trust 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 Trust 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 Trust Securities called for
redemption and ending at the close of business on the day of such mailing or
(ii) register the transfer of or exchange any Preferred Trust Securities so
selected for redemption, in whole or in part, except the unredeemed portion of
any such Preferred Trust Securities being redeemed in part.
21
No service charge shall be made for any registration of transfer or
exchange of Preferred Trust Securities Certificates, but the Transfer Agent and
Registrar 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 Trust Securities Certificates.
SECTION 5.05. MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES
CERTIFICATES. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Transfer Agent and Registrar, or if the Transfer Agent and
Registrar 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 Registrar 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 Registrar or its agent; and the
Administrative Trustees, or any one of them, and, if executed on behalf of the
Trust by facsimile signature, countersigned by the Transfer Agent and Registrar
or its agent 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 and Registrar 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 Transfer Agent and Registrar, and any agent of the Trustee and
the Transfer Agent and 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 Transfer Agent and 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 a recent date. If Holders of Trust
Securities Certificates evidencing ownership at such time and for the previous
six months not 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
22
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
any 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 Depositor shall or
shall cause the Transfer Agent and Registrar to maintain in the Borough of
Manhattan, The City of New York, an office or offices or agency or agencies
where Preferred Trust Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Depositor, the Trust or the Transfer Agent and Registrar in respect of the
Trust Securities and the Trust Agreement may be served. The Depositor initially
designates The Bank of New York, 101 Barclay Street, New York, New York 10286 as
its principal office for such purposes. The Depositor shall or shall cause the
Transfer Agent and Registrar to give prompt written notice to the Depositor, the
Property Trustee and to the Securityholders of any change in the location of the
Securities Register or any such office or agency. If at any time the Depositor
shall fail to maintain such office or agency or shall fail to furnish the
Property Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Property Trustee, and the Depositor hereby appoints the Property Trustee its
agent and the agent of the Trust to receive all such presentations, surrenders,
notices and demands.
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
Bank of New York is hereby appointed as the initial Paying Agent, and it 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 Bank of New York as 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 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
23
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 TRUST SECURITIES BY DEPOSITOR. On
the Closing Date, the Depositor shall acquire, and thereafter retain, beneficial
and record ownership of the Common Trust Securities. Except in connection with a
transaction involving the Depositor that would be permitted under Article Eleven
of the Subordinated Indenture, any attempted transfer of the Common Trust
Securities shall be void. The Administrative Trustees shall cause each Common
Trust Securities Certificate issued to the Depositor to contain a legend stating
"THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN THE TRUST
AGREEMENT". Common Trust Securities Certificates representing the Common Trust
Securities shall be issued to the Depositor in the form of a typewritten or
definitive Common Trust Securities Certificate.
SECTION 5.11. DEFINITIVE PREFERRED TRUST SECURITIES CERTIFICATES. Upon
initial issuance of the Preferred Trust Securities, the Definitive Preferred
Trust 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 and Registrar or its agent, the Definitive Preferred Trust
Securities Certificates initially in accordance with the instructions of the
Depositor. Neither the Transfer Agent and Registrar 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 Trust
Securities may be registered in the name of a securities depository ("Securities
Depository") or a nominee therefor, and held in the custody of the Securities
Depository or a custodian thereof. In such event, a single certificate will be
issued and delivered to the Securities Depository for such Preferred Trust
Securities, in which case the Owners of such Preferred Trust Securities will not
receive physical delivery of certificates for Preferred Trust Securities. Except
as provided herein, all transfers of beneficial ownership interests in such
Preferred Trust Securities will be made by book-entry only, and no investor or
other party purchasing, selling or otherwise transferring beneficial ownership
of the Preferred Trust Securities will receive, hold or deliver any certificate
for Preferred Trust Securities. The Depositor, the Trustees and the Paying Agent
will recognize the Securities Depository or its nominee as the Holder of
Preferred Trust 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 letter of representations or other agreement with such
Securities Depository to establish procedures with respect to the Preferred
Trust Securities. Any Securities Depository shall be a Clearing Agency.
24
The Depositor and the Trustees covenant and agree to meet the
requirements of a Securities Depository for the Preferred Trust Securities with
respect to required notices and other provisions of the letter of
representations or agreement executed with respect to such Preferred Trust
Securities.
Whenever the beneficial ownership of any Preferred Trust Securities is
determined through the books of a Securities Depository, the requirements in
this Trust Agreement of holding, delivering or transferring such Preferred Trust
Securities shall be deemed modified with respect to such Preferred Trust
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 Trust Securities
shall, while such Preferred Trust 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 Trust 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 undivided
beneficial interests in the assets of the Trust.
SECTION 5.14. CANCELLATION BY TRANSFER AGENT AND REGISTRAR. All Trust
Securities Certificates surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Transfer
Agent and Registrar, be delivered to the Transfer Agent and Registrar and, if
not theretofore cancelled, shall be promptly cancelled by the Transfer Agent and
Registrar. No Trust Securities Certificates shall be issued in lieu of or in
exchange for any Trust Securities Certificates cancelled as provided in this
Section, except as expressly permitted by this Trust Agreement. All cancelled
Trust Securities Certificates held by the Transfer Agent and Registrar shall be
disposed of in accordance with customary practices.
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 Trust 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 Trust Securities may
25
institute a legal proceeding directly against the Depositor to enforce the
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 Trust Securities may directly institute a proceeding for
enforcement of payment to such Holder of principal of or interest on the
Debentures having a principal amount equal to the aggregate liquidation
preference amount of the Preferred Trust 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 Trust 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
Trust Securities. The Trustees shall not revoke any action previously
authorized or approved by a vote of the Preferred Trust Securities, except
pursuant to a subsequent vote of the Preferred Trust Securities. The
Property Trustee shall notify all Holders of the Preferred Trust 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 Trust 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 Trust 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 Trust 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 aggregate Liquidation Amount of the Outstanding
Preferred Trust Securities.
SECTION 6.02. NOTICE OF MEETINGS. Notice of all meetings of the
Holders of Preferred Trust 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 Trust 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
26
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 TRUST 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
Trust Securities (based upon their aggregate Liquidation Amount) and may, at any
time in their discretion, call a meeting of Holders of Preferred Trust
Securities to vote on any matters as to which the Holders of Preferred Trust
Securities are entitled to vote.
Holders of 50% of the then Outstanding Preferred Trust 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 Trust Securities present, in person or by proxy, holding
more than the lesser of (x) 66-2/3% of the then Outstanding Preferred Trust
Securities (based upon their aggregate Liquidation Amount) held by the Holders
of then Outstanding Preferred Trust Securities present, either in person or by
proxy, at such meeting and (y) 50% of the Outstanding Preferred Trust 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 $ 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 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 and without notice if Securityholders holding 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).
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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 to vote 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 including action to be taken by written consent,
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 Trust Securities shall be proved by the
Securities Register.
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.
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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;
(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) the execution, delivery and performance by the Property Trustee of
this Trust Agreement does not require the consent or approval of, the giving of
notice to, or the registration with any Federal or New York banking authority.
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;
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(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) the execution, delivery and performance by the Delaware Trustee of
this Trust Agreement does not require the consent or approval of, the giving of
notice to, or the registration with any Federal or Delaware banking authority.
ARTICLE VIII.
THE TRUSTEES
SECTION 8.01. CERTAIN DUTIES AND RESPONSIBILITIES. (a) (a) The duties
and responsibilities of the Trustees shall be restricted to those set forth in
the express provisions of this Trust Agreement and, in the case of the Property
Trustee, as provided in the Trust Indenture Act in respect of an indenture
trustee under that Act, and no implied covenants or obligations shall be read
into this Trust Agreement against any of the Trustees. For purposes of Sections
315(a) and 315(c) of the Trust Indenture act, the term "default" is hereby
defined as an Event of Default which has occurred and is continuing.
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 this Trust Agreement, the Delaware Business Trust
Act, to the extent applicable, Rule 3a-7 under the Investment Company Act or any
successor rule thereunder, and to an indenture trustee under the Trust Indenture
Act. For the purposes of Section 315(d)(2) of the Trust Indenture Act, the term
"responsible officer" is hereby defined as a Responsible Officer and the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, any assistant vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
and any assistant controller of the Property Trustee, or any other officer of
the Property Trustee customarily performing functions similar to those performed
by a Responsible Officer or any of the above designated officers and also means,
with respect to a particular corporate trust matter, any other officer to whom
30
such matter is referred because of his or her knowledge of and familiarity with
the particular subject. 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 8.01.
(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, exculpations and limitations on liability afforded to the
Property Trustee under this Trust Agreement, the Trust Indenture Act,
the Delaware Business Trust Act and, to the extent applicable, Rule
3a-7 under the Investment Company Act or any successor rule
thereunder;
(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. (a) Within ninety (90) days after
the occurrence of any default known to the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
10.08, notice of such default to the Securityholders and the Depositor, unless
31
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.
(b) Within five Business Days after receipt of notice of the Debenture
Issuer's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Subordinated Indenture, an Administrative
Trustee shall transmit, in the manner and to the extent provided in Section
10.08, notice of such exercise to the Securityholders and the Property
Trustee.
SECTION 8.03. CERTAIN RIGHTS OF PROPERTY TRUSTEE. Subject to the
provisions of Section 8.01 and except as provided by law:
(a) 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;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of action or
(ii) in construing any of the provisions in this Trust Agreement the Property
Trustee finds the same ambiguous or inconsistent with any other provisions
contained herein or (iii) 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 Trust 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;
(c) 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;
(d) 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
32
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 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 Securityholder pursuant to this Trust Agreement, unless such
Securityholder 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;
(f) 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, but the Property Trustee, in 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;
(g) 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;
(h) 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;
(i) the Property Trustee shall not be charged with knowledge of any
default or Event of Default with respect to the Trust Securities unless either
(A) a Responsible Officer of the Property Trustee shall have actual knowledge of
the default or Event of Default or (B) written notice of such default or Event
of Default shall have been given to the Property Trustee at the Corporate Trust
Office of the Property Trustee by the Depositor, the Administrative Trustees or
by any Holder of the Trust Securities;
(j) 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;
(k) 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
33
assured to it under the terms of this Trust Agreement or adequate indemnity
against such risk or liability is not reasonably assured to it;
(l) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any tax or securities form) (or any rerecording,
refiling or registration thereof);
(m) 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
(n) 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 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 title to, or value or condition of, the property of the Trust or any part
thereof, nor as to the validity or sufficiency of this Trust Agreement, the
Debentures 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.
SECTION 8.05. MAY HOLD SECURITIES. Any Trustee or any agent of any
Trustee or the Trust, in its individual or any other capacity, may become the
owner or pledgee of Trust Securities and, except as provided in the definition
of the term "Outstanding" in Article I, may otherwise deal with the Trust with
the same rights it would have if it were not a Trustee or such agent.
SECTION 8.06. COMPENSATION; FEES; INDEMNITY. The Depositor agrees:
(a) 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);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
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
34
(c) 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 the trust or trusts under 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. "Trustee" for purposes of this Section shall include any predecessor
Trustee; provided, however, that the negligence, willful 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 each Trustee pursuant to the
provisions of the immediately preceding paragraph of this Section 8.06, when a
Trustee incurs expenses or renders services in connection with an Event of
Default resulting from a Bankruptcy Event with respect to the Trust, 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.
The provisions of this Section 8.06 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 requirements of applicable Delaware law
and that shall act through one or more persons authorized to bind such
entity.
35
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. For purposes of Section 310(b)(1)
of the Trust Indenture Act and to the extent permitted thereby, the Property
Trustee shall not be deemed to have a conflicting interest arising from its
capacity as trustee in respect of (i) the Subordinated Indenture, (ii) the
Guarantee, (iii) the Indenture (For Unsecured Subordinated Debt Securities
relating to Trust Securities), dated as of March 1, 1996 of the Depositor to The
Bank of New York, as trustee, (iv) the Guarantee Agreement, dated as of March 1,
1996 between the Depositor, and The Bank of New York, as trustee, or (v) the
Amended and Restated Trust Agreement, dated as of March 1, 1996 between the
Depositor, as depositor, The Bank of New York and several administrative
trustees, as trustees and the several Holders defined therein.
SECTION 8.09. CO-TRUSTEES AND SEPARATE TRUSTEE.
Unless an 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 a Debenture Event of Default 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.
36
(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 a Debenture Event of
Default 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 any 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 hereunder.
(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
resigning Relevant Trustee within 30 days after the giving of such notice of
37
resignation, the resigning Relevant Trustee may petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
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
Trust Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee and the Delaware Trustee may be removed at such
time by Act of the Securityholders of a majority of the aggregate Liquidation
Amount of the Outstanding Preferred Trust Securities, delivered to the Property
Trustee and the Delaware Trustee (in their individual capacity and on behalf of
the Trust); provided, however, that any Administrative Trustee may be removed
solely by the Act of the Common Trust Securityholder.
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 Trust Securityholder,
by Act of the Common Trust 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
Trust Securityholders, by Act of the Preferred Trust Securityholders of a
majority in aggregate Liquidation Amount of the Outstanding Preferred Trust
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; provided, however, that any
Administrative Trustee may be appointed solely by the Act of the Common Trust
Securityholder. If no successor Relevant Trustee shall have been so appointed by
the Common Trust Securityholders or the Preferred Trust Securityholders and
accepted appointment in the manner required by Section 8.11, any Securityholder
who has been a Securityholder of Trust Securities 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 Depositor 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
38
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).
No Property Trustee or Delaware Trustee shall be liable for the acts
or omissions to act of any successor Property Trustee or Delaware Trustee.
SECTION 8.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. In case of the
appointment hereunder of a successor Relevant Trustee, the retiring Relevant
Trustee (if requested by the Depositor) 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 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, the giving of any notice 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
39
Depositor or the Trust (or any other obligor upon the Debentures or the Trust
Securities), the Property 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 dated as of the
next preceding , and shall be transmitted no later than
------------ ----------
of each year, commencing .
----------------
(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 or of any delisting thereof.
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, if any, and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
Delivery of such reports, information and documents by the Depositor to the
Property Trustee is for informational purposes only and the Property Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Depositor's compliance with any of its covenants hereunder (as to which the
Property Trustee is entitled to rely exclusively on Officers' Certificates).
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 six, 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.
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(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul, dissolve or terminate 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
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 Sections
2.07(a) and 2.07(c), 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
41
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by 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. DISSOLUTION UPON EXPIRATION DATE. The Trust shall
automatically dissolve on (the "Expiration Date") and the
-----------------
Trustees shall take such action as is required by 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/Debenture Issuer;
(ii) the redemption of all of the Preferred Trust Securities;
(iii) an order for judicial dissolution of the Trust having been
entered by a court of competent jurisdiction;
(iv) the election by the Depositor to dissolve the Trust and,
after satisfaction of liabilities to creditors of the Trust,
distribute the Debentures to the Holders of Preferred Trust Securities
in liquidation of the Trust;
the Trust shall dissolve and the Trustees shall take such action as is required
by Section 9.04.
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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) Upon the Expiration Date or if an Early
Termination Event specified in clause (i), (iii) 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) Except where Sections 9.02(ii), 9.04(d) or 9.04(e) apply, in order
to effect the 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) Except where Sections 9.02(ii), 9.04(d) or 9.04(e) apply, 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,
after satisfaction of liabilities to creditors of the Trust, if any, as provided
by applicable law, be 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
43
Securities 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, after satisfaction of liabilities to creditors of
the Trust, if any, as provided by applicable law, Debentures upon surrender of
Trust Securities Certificates.
(d) If at any time, a Tax Event shall occur and be continuing, and
either (i) in the opinion of counsel to the Depositor experienced in such
matters, there would in all cases, after effecting the dissolution of the Trust,
after satisfaction of liabilities to creditors of the Trust, if any, as provided
by applicable law, and the distribution of the Debentures to the Holders of the
Preferred Trust Securities in exchange therefor, be more than an insubstantial
risk that an Adverse Tax Consequence would continue to exist or (ii) the
Debentures are not held by the Trust, then the Depositor shall have the right to
redeem the Debentures, in whole but not in part, at any time within 90 days
following the occurrence of the Tax Event. Whether or not a Tax Event has
occurred, the Depositor has the right, at any time, to dissolve the Trust and,
after satisfaction of liabilities to creditors of the Trust, if any, as provided
by applicable law, cause the Debentures to be distributed to the Holders of the
Preferred Trust Securities and Common Trust Securities in liquidation of the
Trust on a pro rata basis.
(e) In the event that, notwithstanding the other provisions of this
Section 9.04, whether because of an order for dissolution 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
wound-up, by the Property Trustee in such manner as the Property Trustee
determines. In such event, 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 winding up, 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 on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The Holder of Common Trust Securities will be
entitled to receive Liquidation Distributions upon any such winding-up or
termination pro rata (determined as aforesaid) with Holders of Preferred Trust
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 Trust
Securities shall have a priority over the Common Trust 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
44
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 the amounts due such
Holders pursuant to the terms of the Preferred Trust Securities. 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,
incapacity, bankruptcy, dissolution or termination of any Person having an
interest, beneficial or otherwise, in a Trust Security shall not operate to
terminate this Trust Agreement, nor dissolve, terminate or annul the Trust, 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 or the other Trustees), (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, (ii) to change the name of the Trust or (iii) 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 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; provided, however, that such action
shall not adversely affect in any material respect the interests of any
Securityholder and, in the case of clause (i), any such 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 as an "investment company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder, this Trust
Agreement may not be amended to (i) adversely 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
45
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
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 an association
taxable as a corporation for United States federal income tax purposes or would
fail or cease to qualify for the exemption from status of an "investment
company" under the Investment Company Act 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 or, in the case of the Trustees, which affects any of
their respective rights, duties or immunities hereunder.
(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 and the Delaware Trustee may join in the
execution of any amendment to the Trust Agreement and are entitled to rely upon
an Opinion of Counsel as conclusive evidence that any amendment to this Trust
Agreement entered into 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 accept the additional trusts created thereby and, if so
requested, for the Property Trustee or the Delaware Trustee to join in the
execution thereof.
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.
46
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 Trust Securityholder, to such
Preferred Trust Securityholder as such Securityholder's name and address may
appear on the Securities Register and (ii) in the case of the Depositor, to
ALLETE, 30 West Superior Street, Duluth, Minnesota 55802-2093, Attention:
Treasurer, facsimile no. , with a copy to the Secretary, facsimile
-----------
no. . 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, The Bank of New York, 101 Barclay Street, Floor 21 West, New
York, New York 10286, Attention: Corporate Trust Department, with a copy to: The
Bank of New York (Delaware), White Clay Center, Route 273, Newark, Delaware
19711, Attention: Corporate Trust Department, 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 "[Name of Trust]".
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.
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 estopped 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.
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(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, 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.
48
IN WITNESS WHEREOF, the parties have caused this Amended and Restated
Trust Agreement to be duly executed, all as of the day and year first above
written.
ALLETE
(legally incorporated as Minnesota Power, Inc.)
By:
---------------------------------
Title:
THE BANK OF NEW YORK
as Property Trustee
By:
---------------------------------
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:
---------------------------------
Title:
------------------------------------
solely in capacity as
--
Administrative Trustee
------------------------------------
solely in capacity as
--
Administrative Trustee
------------------------------------
solely in capacity as
--
Administrative Trustee
------------------------------------
solely in capacity as
--
Administrative Trustee
49
EXHIBIT A
CERTIFICATE OF TRUST
OF
ALLETE CAPITAL
--
THIS CERTIFICATE OF TRUST of ALLETE Capital (the "Trust"), dated as
--
of March 13, 2001, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. ss. 3801, et seq.).
1. Name. The name of the business trust being created hereby is ALLETE
Capital .
--
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, New Castle
County, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be effective as of
its filing with the Secretary of State of the State of Delaware.
A-1
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 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 (DELAWARE),
not in its individual capacity
but solely as Trustee
By:
-----------------------------
Name:
Title:
A-2
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS
PROVIDED IN THE TRUST AGREEMENT
Certificate Number Number of Common Trust Securities
C-[ ]
Certificate Evidencing Common Trust Securities
of
ALLETE Capital
--
Common Trust Securities
(liquidation amount $ per Common Trust Security)
--
ALLETE Capital , a statutory business trust created under the laws
--
of the State of Delaware (the "Trust"), hereby certifies that ALLETE (legally
incorporated as Minnesota Power, Inc.) (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 Trust Securities
(liquidation amount $ per Common Trust Security) (the "Common Trust
--
Securities"). Except as permitted by Section 5.10 of the Trust Agreement (as
defined below), the Common Trust 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 Trust
Securities are set forth in, and this certificate and the Common Trust
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 , as the same may be amended from time to
-----------------
time (the "Trust Agreement"), including the designation of the terms of the
Common Trust Securities as set forth therein. 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
---
, .
- -------- ----
ALLETE CAPITAL
--
By:
--------------------------------
not in individual capacity,
----
but solely as Administrative Trustee
B-2
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of between ALLETE (legally
-----------------
incorporated as Minnesota Power, Inc.), a Minnesota corporation ("ALLETE"), and
ALLETE Capital , a Delaware business trust (the "Trust").
--
WHEREAS, the Trust intends to issue its Common Trust Securities (the
"Common Trust Securities") to and receive Debentures from ALLETE and to issue
its % Trust Originated Preferred Securities (the "Preferred Trust
----
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 as the same may be amended from time to time (the "Trust
-----------------
Agreement");
WHEREAS, ALLETE is the issuer of the Debentures;
NOW, THEREFORE, in consideration of the acceptance of the Preferred
Trust Securities by each holder thereof, which acceptance ALLETE hereby agrees
shall benefit ALLETE and which acceptance ALLETE acknowledges will be made in
reliance upon the execution and delivery of this Agreement, ALLETE, including in
its capacity as holder of the Common Trust Securities, and the Trust hereby
agree as follows:
ARTICLE I
Section 1.01. Assumption by ALLETE. Subject to the terms and
--------------------
conditions hereof, ALLETE 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 obligations
of the Trust to pay to holders of any Preferred Trust Securities the amounts due
such holders pursuant to the terms of the Preferred Trust Securities. 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 Trust Securities or any Beneficiary must restore payment of any sums
paid under the Preferred Trust Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof by and between ALLETE 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. ALLETE hereby waives notice of
----------------
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and ALLETE hereby waives presentment, demand for payment, protest, notice
of nonpayment, notice of dishonor, notice of redemption and all other notices
and demands.
C-1
Section 1.04. No Impairment. The obligations, covenants, agreements
-------------
and duties of ALLETE 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.
Neither the Trust nor any Beneficiary shall have any obligation to give notice
to, or obtain the consent of, ALLETE with respect to the happening of any of the
foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this Agreement
-----------
directly against ALLETE and ALLETE waives any right or remedy to require that
any action be brought against the Trust or any other person or entity before
proceeding against ALLETE.
ARTICLE II
Section 2.01. Binding Effect. All of the obligations, covenants and
--------------
agreements contained in this Agreement shall bind the successors, assigns,
receivers, trustees and representatives of ALLETE and shall inure to the benefit
of the Beneficiaries and their successors and assigns.
Section 2.02. Amendment. So long as there remains any Beneficiary or
---------
any Preferred Trust Securities of any series shall be outstanding, this
Agreement shall not be modified or amended in any manner adverse to such
Beneficiary or to the holders of the Preferred Trust 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:
ALLETE Capital
--
c/o , Administrative Trustee
--------------
30 West Superior Street
Duluth, Minnesota 55802-2093
Facsimile No.:
C-2
ALLETE
30 West Superior Street
Duluth, Minnesota 55802-2093
Facsimile No.:
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).
C-3
THIS AGREEMENT is executed as of the day and year first above written.
ALLETE
(legally incorporated as Minnesota Power, Inc.)
By:
--------------------------------
Name:
Title:
ALLETE CAPITAL
--
By:
--------------------------------
not in his (her) individual capacity, but
solely as Administrative Trustee
C-4
[Clearing Agency Legend]
EXHIBIT D
Certificate Number Number of Preferred Trust Securities
P- CUSIP No.
Certificate Evidencing Preferred Trust Securities
of
ALLETE Capital
--
% Trust Originated Preferred Securities
----
(liquidation amount $ per Preferred Trust Security)
--
ALLETE Capital , 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 Trust Securities of
----- -----
the Trust representing an undivided beneficial interest in the assets of the
Trust and designated the ALLETE Capital % Trust Originated Preferred
-- ----
Securities (liquidation amount $ per Preferred Trust Security) (the "Preferred
--
Trust Securities"). The Preferred Trust 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 5.12 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Trust Securities are set forth in, and this
certificate and the Preferred Trust 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 , 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 ALLETE
(legally incorporated as Minnesota Power, Inc.), a Minnesota corporation, and
The Bank of New York, as guarantee trustee, dated as of , as
-----------------
the same may be amended from time to time (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:
ALLETE Capital
--
----------------------------------------------
not in individual capacity, but solely
----
as Administrative Trustee
Countersigned and Registered:
ALLETE
(legally incorporated as Minnesota Power, Inc.)
Transfer Agent and Registrar
By:
-----------------------------------------
(Authorized Signature)
D-2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers
this Preferred Trust Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
of the Preferred Trust Securities represented by this Certificate and
irrevocably appoints attorney to transfer such Preferred Trust 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 Trust
Securities Certificate)
Signature:________________________
(Sign exactly as your name appears on the other side of this Preferred Trust
Securities Certificate)
EXHIBIT 4(U)
------------------------------------------
ALLETE
(LEGALLY INCORPORATED AS MINNESOTA POWER, INC.)
TO
THE BANK OF NEW YORK, TRUSTEE
---------
INDENTURE
(FOR UNSECURED SUBORDINATED DEBT SECURITIES
RELATING TO TRUST SECURITIES)
DATED AS OF
----------------
------------------------------------------
TABLE OF CONTENTS
PARTIES.......................................................................1
RECITAL OF THE COMPANY........................................................1
ARTICLE ONE 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
"ELIGIBLE OBLIGATIONS"..............................................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"..............................................5
"REDEMPTION DATE"...................................................6
"REDEMPTION PRICE"..................................................6
"REGULAR RECORD DATE"...............................................6
"REQUIRED CURRENCY".................................................6
"RESPONSIBLE OFFICER"...............................................6
-ii-
"SECURITIES"........................................................6
"SECURITY REGISTER".................................................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........................11
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............................................12
SECTION 113. Legal Holidays...........................................12
ARTICLE TWO Security Forms...................................................13
SECTION 201. Forms Generally..........................................13
SECTION 202. Form of Trustee's Certificate of Authentication..........13
ARTICLE THREE The Securities.................................................14
SECTION 301. Amount Unlimited; Issuable in Series.....................14
SECTION 302. Denominations............................................17
SECTION 303. Execution, Authentication, Delivery and Dating...........17
SECTION 304. Temporary Securities.....................................19
SECTION 305. Registration, Registration of Transfer and Exchange......19
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.........21
SECTION 307. Payment of Interest; Interest Rights Preserved...........21
SECTION 308. Persons Deemed Owners....................................22
SECTION 309. Cancellation by Security Registrar.......................23
SECTION 310. Computation of Interest..................................23
SECTION 311. Extension of Interest Payment............................23
SECTION 312. Additional Interest......................................23
SECTION 313. Payment to Be in Proper Currency.........................24
ARTICLE FOUR Redemption of Securities........................................24
SECTION 401. Applicability of Article.................................24
SECTION 402. Election to Redeem; Notice to Trustee....................24
SECTION 403. Selection of Securities to Be Redeemed...................24
SECTION 404. Notice of Redemption.....................................25
-iii-
SECTION 405. Securities Payable on Redemption Date....................26
SECTION 406. Securities Redeemed in Part..............................27
ARTICLE FIVE Sinking Funds...................................................27
SECTION 501. Applicability of Article.................................27
SECTION 502. Satisfaction of Sinking Fund Payments with Securities....27
SECTION 503. Redemption of Securities for Sinking Fund................28
ARTICLE SIX 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........29
SECTION 604. Corporate Existence......................................31
SECTION 605. Maintenance of Properties................................31
SECTION 606. Annual Officer's Certificate as to Compliance............31
SECTION 607. Waiver of Certain Covenants..............................31
SECTION 608. Restriction on Payment of Dividends......................32
SECTION 609. Maintenance of Trust Existence...........................32
SECTION 610. Rights of Holders of Preferred Securities................32
ARTICLE SEVEN Satisfaction and Discharge.....................................33
SECTION 701. Satisfaction and Discharge of Securities.................33
SECTION 702. Satisfaction and Discharge of Indenture..................35
SECTION 703. Application of Trust Money...............................36
ARTICLE EIGHT Events of Default; Remedies....................................36
SECTION 801. Events of Default........................................36
SECTION 802. Acceleration of Maturity; Rescission and Annulment.......38
SECTION 803. Collection of Indebtedness and Suits for Enforcement
by Trustee...............................................39
SECTION 804. Trustee May File Proofs of Claim.........................39
SECTION 805. Trustee May Enforce Claims Without Possession of
Securities...............................................40
SECTION 806. Application of Money Collected...........................40
SECTION 807. Limitation on Suits......................................41
SECTION 808. Unconditional Right of Holders to Receive Principal,
Premium and Interest.....................................41
SECTION 809. Restoration of Rights and Remedies.......................42
SECTION 810. Rights and Remedies Cumulative...........................42
SECTION 811. Delay or Omission Not Waiver.............................42
SECTION 812. Control by Holders of Securities.........................42
SECTION 813. Waiver of Past Defaults..................................43
SECTION 814. Undertaking for Costs....................................43
SECTION 815. Waiver of Stay or Extension Laws.........................43
ARTICLE NINE The Trustee.....................................................44
SECTION 901. Certain Duties and Responsibilities......................44
SECTION 902. Notice of Defaults.......................................44
-iv-
SECTION 903. Certain Rights of Trustee................................45
SECTION 904. Not Responsible for Recitals or Issuance of Securities...46
SECTION 905. May Hold Securities......................................46
SECTION 906. Money Held in Trust......................................46
SECTION 907. Compensation and Reimbursement...........................46
SECTION 908. Disqualification; Conflicting Interests..................47
SECTION 909. Corporate Trustee Required; Eligibility..................48
SECTION 910. Resignation and Removal; Appointment of Successor........48
SECTION 911. Acceptance of Appointment by Successor...................50
SECTION 912. Merger, Conversion, Consolidation or Succession to
Business.................................................51
SECTION 913. Preferential Collection of Claims Against Company........51
SECTION 914. Co-trustees and Separate Trustees........................52
SECTION 915. Appointment of Authenticating Agent......................53
ARTICLE TEN Holders' Lists and Reports by Trustee and Company................55
SECTION 1001. Lists of Holders.........................................55
SECTION 1002. Reports by Trustee and Company...........................55
ARTICLE ELEVEN Consolidation, Merger, Conveyance or Other Transfer...........56
SECTION 1101. Company May Consolidate, etc., Only on Certain Terms.....56
SECTION 1102. Successor Person Substituted.............................56
ARTICLE TWELVE Supplemental Indentures.......................................57
SECTION 1201. Supplemental Indentures Without Consent of Holders.......57
SECTION 1202. Supplemental Indentures With Consent of Holders..........58
SECTION 1203. Execution of Supplemental Indentures.....................60
SECTION 1204. Effect of Supplemental Indentures........................60
SECTION 1205. Conformity With Trust Indenture Act......................60
SECTION 1206. Reference in Securities to Supplemental Indentures.......60
SECTION 1207. Modification Without Supplemental Indenture..............60
ARTICLE THIRTEEN Meetings of Holders; Action Without Meeting.................61
SECTION 1301. Purposes for Which Meetings May Be Called................61
SECTION 1302. Call, Notice and Place of Meetings.......................61
SECTION 1303. Persons Entitled to Vote at Meetings.....................62
SECTION 1304. Quorum; Action...........................................62
SECTION 1305. Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings......................63
SECTION 1306. Counting Votes and Recording Action of Meetings..........64
SECTION 1307. Action Without Meeting...................................64
ARTICLE FOURTEEN Immunity of Incorporators, Shareholders Officers and
Directors...................................................64
SECTION 1401. Liability Solely Corporate...............................64
ARTICLE FIFTEEN Subordination of Securities..................................65
SECTION 1501. Securities Subordinate to Senior Indebtedness............65
SECTION 1502. Payment Over of Proceeds of Securities...................65
-v-
SECTION 1503. Disputes with Holders of Certain Senior Indebtedness.....67
SECTION 1504. Subrogation..............................................67
SECTION 1505. Obligation of the Company Unconditional..................67
SECTION 1506. Priority of Senior Indebtedness Upon Maturity............68
SECTION 1507. Trustee as Holder of Senior Indebtedness.................68
SECTION 1508. Notice to Trustee to Effectuate Subordination............68
SECTION 1509. Modification, Extension, etc. of Senior Indebtedness.....69
SECTION 1510. Trustee Has No Fiduciary Duty to Holders of Senior
Indebtedness.............................................69
SECTION 1511. Paying Agents Other Than the Trustee.....................69
SECTION 1512. Rights of Holders of Senior Indebtedness Not Impaired....69
SECTION 1513. Effect of Subordination Provisions; Termination..........70
ARTICLE SIXTEEN Junior Subordinated Debentures...............................70
SECTION 1601. Designation of Junior Subordinated Debentures............70
Testimonium...................................................................71
Signatures....................................................................72
ALLETE
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF
----------------
TRUST INDENTURE ACT SECTION INDENTURE SECTION
ss.310 (a)(1)..............................................................909
(a)(2)..............................................................909
(a)(3)..............................................................914
(a)(4)...................................................Not Applicable
(b).................................................................908
....................................................................910
ss.311 (a).................................................................913
(b).................................................................913
(c).................................................................913
ss.312 (a)................................................................1001
(b)................................................................1001
(c)................................................................1001
ss.313 (a)................................................................1002
(b)................................................................1002
(c)................................................................1002
ss.314 (a)................................................................1002
(a)(4)..............................................................606
(b)......................................................Not Applicable
(c)(1)..............................................................102
(c)(2)..............................................................102
(c)(3)...................................................Not Applicable
(d)......................................................Not Applicable
(e).................................................................102
ss.315 (a).................................................................901
....................................................................903
(b).................................................................902
(c).................................................................901
(d).................................................................901
(e).................................................................814
ss.316 (a).................................................................812
....................................................................813
(a)(1)(A)...........................................................802
....................................................................812
(a)(1)(B)...........................................................813
(a)(2)...................................................Not Applicable
(b).................................................................808
-2-
ss.317 (a)(1)..............................................................803
(a)(2)..............................................................804
(b).................................................................603
ss.318 (a).................................................................107
INDENTURE, dated as of , between ALLETE (legally
----------------
incorporated as MINNESOTA POWER, INC.), 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
55802-2093, and THE BANK OF NEW YORK, a New York banking corporation, 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 from
time to time 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 computation or, at the election of the Company from time to
-2-
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, the Secretary, any
Assistant Secretary 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 executive order to remain
closed, except as may be otherwise specified as contemplated by Section 301.
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"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 principal office of the Trustee in
New York, New York at which at any particular time its corporate trust business
is administered, which at the date of execution and delivery of this Indenture
is located at 101 Barclay Street, New York, New York 10286, Attention: Corporate
Trust Administration.
"CORPORATION" means a corporation, association, company, limited
liability 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.
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in Dollars, Government
Obligations; or
(b) with respect to Securities denominated in a currency other than
Dollars or in a composite currency, such other obligations or instruments
as shall be specified with respect to such Securities, as contemplated by
Section 301.
"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
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(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 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 or delivered to the Security
Registrar 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 to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
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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.
"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.
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"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.
"REQUIRED CURRENCY" has the meaning specified in Section 313.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means
any Vice President, Assistant Vice President, Trust Officer or other officer of
the Trustee assigned by the Trustee to the Corporate Trust Administration
Division of the Trustee (or any successor division or department of the
Trustee).
"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 Guaranty 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).
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"TRUST" means ALLETE Capital II, a statutory business trust formed
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 , relating to ALLETE Capital II, 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 such agreement or
agreements, as the case may be, 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 furnish to the Trustee an
Officer's Certificate stating that in the opinion of the Authorized Officer
executing such Officer's Certificate 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;
(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
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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 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.
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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 or her individual capacity, such certificate
or affidavit shall also constitute sufficient proof of his or her
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.
(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.
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(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 at the applicable location set forth
below or at such other location as such party may from time to time designate,
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 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
Corporate Trust Administration
101 Barclay Street - Floor 21 West
New York, New York 10286
Attention: Corporate Trust Administration
Telephone: 212-815-5758
Telecopy: 212-815-5915
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If to the Company, to:
ALLETE
30 West Superior Street
Duluth, Minnesota 55802-2093
Attention: Treasurer
Telephone: 218-723-3992
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 thereof, and if transmitted by certified or
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.
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.
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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, that
for so long as any Preferred Securities remain outstanding, the holders of such
Preferred Securities, subject to certain limitations set forth in this
Indenture, may enforce the Company's obligations hereunder directly against the
Company as third party beneficiaries of this Indenture without first proceeding
against the Trust issuing such Preferred Securities.
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
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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.
Unless otherwise specified as contemplated by Sections 301 or 1201(g),
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.
Dated:
THE BANK OF NEW YORK,
as Trustee
By:
-------------------------------
Authorized Signatory
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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 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 to an index or other
fact or event ascertainable outside of this Indenture 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 to an index or other fact or
event ascertainable outside of this Indenture 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
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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 and any Paying Agent or Agents 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;
(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) and the formulary or other method or other means by which the
equivalent of any such amount in Dollars is to be determined for any
purpose, including for the purpose of determining the principal amount of
such Securities deemed to be Outstanding at any time;
(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
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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;
(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 Eligible 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;
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(v) the designation of the Trust to which Securities of such series
are to be issued;
(w) any collateral security, assurance or guarantee for the Securities
of such series;
(x) any rights or duties of another Person to assume the obligations
of the Company with respect to the Securities of such series (whether as
joint obligor, primary obligor, secondary obligor or substitute obligor)
and any rights or duties to discharge and release any obligor with respect
to the Securities of such series or the Indenture to the extent related to
such series; and
(y) any rights to change or eliminate any provision of this Indenture
or to add any new provision to this Indenture (by supplemental indenture or
otherwise) without the consent of the Holders of the Securities of such
series; and
(z) any other terms of the Securities of such series not inconsistent
with the provisions of this Indenture.
Unless otherwise specified with respect to a series of Securities
pursuant to Section 301(b), any limit upon the aggregate principal amount of a
series of Securities may be increased without the consent of any Holders and
additional Securities of such series may be authenticated and delivered up to
the limit upon the aggregate principal amount authorized with respect to such
series as so increased.
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.
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.
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 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.
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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;
(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.
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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 of an authorized signatory thereof, 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 Security Registrar 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 Officer's
Certificate or 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 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
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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.
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 the Securities of such series (or stating that all
Outstanding Securities of such series are called for redemption) or (b) any
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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 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.
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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 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
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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 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 the customary practices of the
Security Registrar at the time in effect, and the Security Registrar shall not
be required to destroy any such certificates. 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
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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.
SECTION 313. PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Securities of any series denominated in any
currency other than Dollars or in a composite currency (the "Required
Currency"), except as otherwise specified with respect to such Securities as
contemplated by Section 301, the obligation of the Company to make any payment
of the principal thereof, or the premium or interest thereon, shall not be
discharged or satisfied by any tender by the Company, or recovery by the
Trustee, in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the Trustee timely holding the full
amount of the Required Currency then due and payable. If any such tender or
recovery is in a currency other than the Required Currency, the Trustee may take
such actions as it considers appropriate to exchange such currency for the
Required Currency. The costs and risks of any such exchange, including without
limitation the risks of delay and exchange rate fluctuation, shall be borne by
the Company, the Company shall remain fully liable for any shortfall or
delinquency in the full amount of Required Currency then due and payable, and in
no circumstances shall the Trustee be liable therefor except in the case of its
negligence or willful misconduct.
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
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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 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.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, all notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price or the formula pursuant to which the
Redemption Price is to be determined if the Redemption Price cannot be
determined at the time the notice is given,
(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, and
in the case of any such Security of such series to be redeemed in part,
that, on and after the Redemption Date, upon surrender of such Security, a
new Security or Securities of such series in principal amount equal to the
remaining unpaid principal amount thereof will be issued as provided in
Section 406,
(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,
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(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) the CUSIP or ISIN numbers, if any, assigned to such Securities (if
then generally in use); provided, however, that such notice may state that
no representation is made as to the correctness of the CUSIP or ISIN
numbers, in which case none of the Company, the Trustee or any agent of the
Company or the Trustee shall have any liability in respect of the use of
any CUSIP or ISIN number or numbers on such notices, and the redemption or
such Securities shall not be affected by any defect in or omission of such
numbers and
(h) 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 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
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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.
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
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such Securities, 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;
(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; and
(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 have delivered such Officer's Certificate
and, to the extent applicable, all such Securities, 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.
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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.
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
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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 sums 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;
(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 failure, 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,
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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 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 in each year, commencing ,
------------- -----------
, 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, and making any other statements as may be required by the provisions
of Section 314(a)(4) of the Trust Indenture Act.
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
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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 or distribution (other than
dividends or distributions paid in shares of common stock of the Company) on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
the Company's capital stock, repurchase or redeem any indebtedness that is pari
passu with or subordinated to the Securities, 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
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Company acknowledges and agrees that such holders will be entitled to enforce
this Indenture, as third party beneficiaries, directly against the Company to
the same extent as if such holders of Preferred Securities held a principal
amount of Securities equal to the stated liquidation amount of the Preferred
Securities held by such holders.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. SATISFACTION AND DISCHARGE OF SECURITIES.
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, Eligible 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 Eligible
Obligations deposited in accordance with this Section shall be held in
trust, as provided in Section 703; and
(y) if Eligible Obligations shall have been deposited, an Opinion
of Counsel that the obligations so deposited constitute Eligible
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 Eligible 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 Eligible
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.
The Company shall pay, and shall indemnify the Trustee or any Paying
Agent with which Eligible Obligations shall have been deposited as provided in
this Section against, any tax, fee or other charge imposed on or assessed
against such Eligible Obligations or the principal or interest received in
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respect of such Eligible 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
Eligible 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.
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 Eligible Obligations held by the Trustee
pursuant to Section 703 and, upon request and at the expense of the Company,
shall execute and deliver to the Company such instruments as, in the judgment of
the Company, shall be necessary, desirable or appropriate to effect or evidence
the satisfaction and discharge of this Indenture.
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SECTION 703. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money deposited pursuant to
Section 701, nor the principal or interest payments on any such Eligible
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 Eligible Obligations, if not then needed
for such purpose, shall, to the extent practicable and upon Company Request, be
invested in Eligible 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, together with any other moneys and the principal of and
interest on any other Eligible Obligations then held by the Trustee, 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 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
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(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 90 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 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.
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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), by a notice in writing to the
Company (and to the Trustee if given by the Holders). 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), by a notice in writing to the Company (and to
the Trustee if given by the Holders). As a consequence of each such declaration
(herein referred to as a declaration of acceleration) with respect to Securities
of any series, the principal amount of such Securities and interest accrued
thereon shall become due and payable immediately.
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, if any, 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 acceleration and interest thereon at the rate
or rates prescribed therefor in such Securities; and
(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; and
(4) all amounts due to the Trustee under Section 907;
and
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(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. Unless otherwise specified pursuant to Section 301 with respect to
any series of Securities, the rate or rates at which Securities shall bear
interest on overdue principal, and, if applicable, the rate or rates at which
overdue premium or interest shall bear interest, if any, shall be, to the extent
permitted by law, the same rate or rates at which such Securities shall bear
interest prior to Maturity.
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.
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,
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(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.
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
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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 a
Responsible Officer of the Trustee of a continuing Event of Default with
respect to the Securities of such series;
(b) the Holders of 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 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
Sections 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.
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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.
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. The Trustee shall have
the right to decline to follow any such direction which would subject the
Trustee to personal liability or expense. The Trustee may take any other action,
deemed proper by the Trustee, which is not inconsistent with any such direction.
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.
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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.
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; all in the
manner to the extent and except as otherwise provided in the Trust Indenture
Act; 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
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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. For purposes of Sections 315(a)
and 315(c) of the Trust Indenture Act, the term "default" is hereby defined
as an Event of Default which has occurred and is continuing.
(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. For the purpose of Section 315(d)(2) of the Trust Indenture
Act, the term "responsible officer" is hereby defined as a Responsible
Officer and the chairman or vice-chairman of the board of directors, the
chairman or vice-chairman of the executive committee of the board of
directors, the president, any vice president, any assistant vice president,
the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller and any assistant controller of the
Trustee, or any other officer of the Trustee customarily performing
functions similar to those performed by a Responsible Officer or any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular
subject.
(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 of
which it has knowledge (within the meaning of Section 903(h) hereof) 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
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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 conclusively rely and shall be fully 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 prescribed) may, in the absence of bad
faith on its part, conclusively rely upon an Officer's Certificate;
(d) the 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;
(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
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negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder; and
(i) 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
at the Corporate Trust Office of 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.
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);
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(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, willful 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, willful 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, willful 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.
The provisions of this Section 907 shall survive the termination of
this Indenture.
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 (i) the Securities
of any other series, (ii) the Trust Agreement and the Guarantee Agreement
pertaining to each Trust; (iii) any securities of any series issued under the
Indenture (For Unsecured Subordinated Debt Securities relating to Trust
Securities), dated as of March 1, 1996, of the Company to The Bank of New York,
as trustee, (iv) the Amended and Restated Trust Agreement, dated as of March 1,
1996 among the Company, as depositor The Bank of New York, as property trustee,
The Bank of New York (Delaware), as Delaware trustee, the several administrative
trustees named therein and the several holders, or (v) the Guarantee Agreement,
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dated as of March 1, 1996 between the Company and The Bank of New York, as
guarantee trustee.
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, 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
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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 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.
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(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 (or, should the Company fail so to act promptly, the
successor trustee at the expense of the Company) shall give notice of each
resignation and each removal of the Trustee with respect to the Securities
of any series and each appointment of a successor Trustee with respect to
the Securities of any series by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Securities of such
series as their names and addresses appear in the Security Register. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its corporate trust office.
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
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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.
(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 Person into which the Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any Person
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such Person
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. 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:
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(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 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
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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 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.
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Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
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.
Dated:
----------------------------------
As Trustee
By
--------------------------------
As Authenticating
Agent
By
--------------------------------
Authorized Signatory
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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 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 1 and 1 in each year,
---- --------
commencing , , 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 1 in each year, commencing , , the
-------- -------- ----
Trustee shall transmit to the Holders, the Commission and each securities
exchange upon which any Securities are listed, a report, dated as of the next
preceding 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,
the Commission and each securities exchange upon which any Securities are
listed, 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.
The Company shall notify the Trustee of the listing of any Securities on any
securities exchange or of any delisting thereof.
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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 Person,
or convey or otherwise transfer or lease its properties and assets substantially
as an entirety to any Person, unless
(a) the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer, or which
leases, 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 PERSON SUBSTITUTED.
Upon any consolidation by the Company with or merger by the Company
into any other Person 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 Person 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.
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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
(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 (other than any series the terms of
which permit such change, elimination or addition) 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 or co-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
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(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
(k) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, 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 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
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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 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), 914 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 provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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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.
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
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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, 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.
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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.
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
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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 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.
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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.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, SHAREHOLDERS 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, shareholder, 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, shareholder, 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,
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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.
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;
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(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
(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
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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.
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
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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 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. Nothing in this Article
Fifteen shall apply to the claims of, or payments to, the Trustee under and
pursuant to Section 907.
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
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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 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.
-70-
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.
ARTICLE SIXTEEN
JUNIOR SUBORDINATED DEBENTURES
SECTION 1601. DESIGNATION OF JUNIOR SUBORDINATED DEBENTURES.
There is hereby created a series of Securities designated " %
------
Junior Subordinated Debentures, Series " (herein sometimes referred to as
--
"Series Subordinated Debentures") and limited in aggregate principal amount
-
(except as contemplated in Section 301(b) hereof) to $ . The form and
------------
terms of the Series Subordinated Debentures shall be established in an
---
Officer's Certificate pursuant to Sections 201 and 301.
-------------------------
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.
-71-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
ALLETE
(legally incorporated as Minnesota Power, Inc.)
By:
---------------------------------
THE BANK OF NEW YORK, Trustee
By:
---------------------------------
EXHIBIT 4(V)
ALLETE
(LEGALLY INCORPORATED AS MINNESOTA POWER, INC.)
OFFICER'S CERTIFICATE
, the of ALLETE (legally incorporated as Minnesota
------------- ---------
Power, Inc.) (the "Company"), pursuant to the authority granted in the Board
Resolutions of the Company dated , 200 , and Sections 201, 301 and 1601
-------- --
of the Indenture defined herein, does hereby certify to The Bank of New York
(the "Trustee"), as Trustee under the Indenture of the Company (For Unsecured
Subordinated Debt Securities relating to Trust Securities) dated as of ,
--------
20 (the "Indenture") that:
--
1. The Securities of the series to be issued under the Indenture
------
shall be designated [" % Junior Subordinated Debentures, Series "
---- --
(the "Debentures of the Series"). The Debentures of the
------
Series are to be issued to The Bank of New York, as Property
--------
Trustee (the "Property Trustee") of [Name of Trust], a Delaware
statutory business trust (the "Trust"). All capitalized terms used in
this certificate which are not defined herein but are defined in the
form of Debentures of the Series attached hereto as Exhibit A
-----
shall have the meanings set forth in such Exhibit A; all other
capitalized terms used in this certificate which are not defined
herein or in Exhibit A hereto but are defined in the Indenture shall
have the meanings set forth in the Indenture;
2. The Debentures of the Series shall mature and the principal
--------
shall be due and payable together with all accrued and unpaid interest
thereon on , ;
----------- ----
3. The Debentures of the Series shall bear interest as provided
--------
in the form of the Debentures of the Series thereof set forth
--------
in Exhibit A hereto;
4. The principal (and premium, if any) and each installment of interest
on the Debentures of the Series shall be payable at the
--------
office or agency of the Company in The City of New York; provided that
payment of interest may be made at the option of the Company by check
mailed to the address of the persons entitled thereto or by wire
transfer to an account designated by the person entitled thereto.
Notices and demands to or upon the Company in respect of the
Debentures of the Series may be served at the office or
--------
agency of the Company in The City of New York. The Corporate Trust
Office of the Trustee will initially be the agency of the Company for
such payment and service of notices and demands and the Company hereby
appoints The Bank of New York as its agent for all such purposes;
provided, however, that the Company reserves the right to change, by
one or more Officer's Certificates supplemental to this Officer's
Certificate, any such place or the Security Registrar or the Paying
Agent;
5. [The Debentures of the Series will be redeemable at the
--------
option of the Company on or after , , at any time in
----------- ----
whole and from time to time in part, upon not less than 30 nor more
than 60 days' notice given as provided in the Indenture, at a
Redemption Price equal to 100% of the principal amount thereof plus
accrued and unpaid interest thereon to the Redemption Date.]
[If at any time a Tax Event (as defined below) shall occur and be
continuing and either (i) in the opinion of counsel to the Company
experienced in such matters, there would in all cases, after effecting
the termination of the Trust, after satisfaction of liabilities to
creditors of the Trust, if any, as provided by applicable law, and the
distribution of the Debentures of the Series to the holders
--------
of the Preferred Trust Securities issued by the Trust (the "Preferred
Trust Securities"), in exchange therefor, be more than an
insubstantial risk that an Adverse Tax Consequence (as defined below)
would continue to exist or (ii) the Debentures of the Series
--------
are not held by the Trust, then the Company shall have the right to
redeem the Debentures of the Series, in whole but not in
--------
part, at any time within 90 days following the occurrence of the Tax
Event, at 100% of the principal amount thereof plus accrued and unpaid
interest thereon to the Redemption Date.
"Tax Event" means the receipt by the Trust or the Company of an
opinion of counsel experienced in such matters to the effect that, as
a result of (a) any amendment to, clarification of, or change
(including any announced prospective change) in, the laws or treaties
(or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein affecting taxation,
(b) any judicial decision or any official administrative
pronouncement, ruling, regulatory procedure, notice or announcement
(including any notice or announcement of intent to issue or adopt any
such administrative pronouncement, ruling, regulatory procedure or
regulation) (each, an "Administrative Action"), or (c) any amendment
to, clarification of, or change in the official position or the
interpretation of any such Administrative Action or judicial decision
or any interpretation or pronouncement that provides for a position
with respect to such Administrative Action or judicial decision that
differs from the theretofore generally accepted position, in each case
by any legislative body, court, governmental authority or regulatory
body, irrespective of the time or manner in which such amendment,
clarification or change is introduced or made known, which amendment,
clarification, or change is effective, which Administrative Action is
taken or which judicial decision is issued, in each case on or after
the date of issuance of the Preferred Trust Securities, there is more
than an insubstantial risk that (i) the Trust is, or will be, subject
to United States federal income tax with respect to interest received
on the Debentures of the Series, (ii) interest payable by the
--------
Company on the Debentures of the Series is not, or will not
--------
be, fully deductible by the Company for United States federal income
tax purposes, or (iii) the Trust is, or will be, subject to more than
a de minimis amount of other taxes, duties or other governmental
charges (each of the circumstances described in clauses (i), (ii) or
(iii) being an "Adverse Tax Consequence"); ]
6. So long as any Debentures of the Series are Outstanding, the
--------
failure of the Company to pay interest on any Debentures of the
Series within 30 days after the same becomes due and payable
--------
(whether or not payment is prohibited by the provisions of Article
Fifteen of the Indenture) shall constitute an Event of Default;
provided, however, that a valid extension of the interest payment
period by the Company as contemplated in Section 311 of the Indenture
and paragraph (7) of this Certificate shall not constitute a failure
to pay interest for this purpose;
7. Pursuant to Section 311 of the Indenture the Company shall have the
right, at any time and from time to time during the term of the
Debentures of the Series, so long as the Company is not in
--------
default in the payment of interest on the Securities of any series
under the Indenture, to extend the interest payment period to a period
not exceeding 20 consecutive quarterly periods (an "Extension Period")
during which period interest (calculated for each Interest Period in
the manner provided for in Exhibit A hereto, as if the interest
-2-
payment period had not been so extended) will be compounded quarterly.
At the end of the Extension Period, the Company shall pay all interest
accrued and unpaid (together with interest thereon at the rate
specified for the Debentures of the Series, compounded
--------
quarterly, to the extent permitted by applicable law). However, during
any such Extension Period, the Company shall not declare or pay any
dividend or distribution (other than dividends or distributions paid
in common stock of the Company) on, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of its capital stock,
repurchase or redeem any indebtedness that is pari passu with or
subordinated to the Debentures of the Series, or make any
--------
guarantee payments with respect to the foregoing ("Restricted
Payments").
Prior to the termination of any such Extension Period, the Company may
further extend the interest payment period, provided that such
Extension Period together with all such previous and further
extensions thereof shall not exceed 20 consecutive quarterly periods
at any one time or extend beyond the Maturity of the Debentures of the
Series. Any Extension Period with respect to payment of
--------
interest on the Debentures of the Series, or any extended
--------
interest payment period in respect of similar securities will apply to
the Debentures of the Series and all such securities and will
--------
also apply to distributions with respect to the Preferred Trust
Securities and all other securities with terms substantially the same
as the Preferred Trust Securities. Upon the termination of any such
Extension Period and the payment of all amounts then due, including
interest on deferred interest payments, the Company may elect to begin
a new Extension Period, subject to the above requirements. No interest
shall be due and payable during an Extension Period, except at the end
thereof. The Company will give the Trust and the Trustee notice of its
election of an Extension Period before the Business Day prior to the
record date for the distribution which would occur but for such
election and will cause the Trust to send notice of such election to
the holders of Preferred Trust Securities;
8. At any time, the Company will have the right to dissolve the Trust
and, after satisfaction of liabilities to creditors, if any, of the
Trust as provided by applicable law, cause the Debentures of the
Series to be distributed to the holders of the Preferred
--------
Trust Securities;
9. So long as any Securities are outstanding under the Indenture, the
Company shall not make any Restricted Payments at any time the Company
is in default under the Guarantee with respect to the Trust or is in
default with respect to payments due on any Outstanding Securities;
10. In the event that, at any time subsequent to the initial
authentication and delivery of the Debentures of the Series,
--------
the Debentures of the Series are to be held in global form by
--------
a securities depositary, the Company may at such time establish the
matters contemplated in clause (r) in the second paragraph of Section
301 of the Indenture in an Officer's Certificate supplemental to this
Certificate;
11. No service charge shall be made for the registration of transfer or
exchange of the Debentures of the Series; provided, however,
--------
that the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection
with the exchange or transfer;
12. If the Company shall make any deposit of money and/or Eligible
Obligations with respect to any Debentures of the Series, or
--------
-3-
any portion of the principal amount thereof, as contemplated by
Section 701 of the Indenture, the Company shall not deliver an
Officer's Certificate described in clause (z) in the first paragraph
of said Section 701 unless the Company shall also deliver to the
Trustee, together with such Officer's Certificate, either:
(A) an instrument wherein the Company, notwithstanding the
satisfaction and discharge of its indebtedness in respect of the
Debentures of the Series, shall assume the obligation (which
--------
shall be absolute and unconditional) to irrevocably deposit with the
Trustee or Paying Agent such additional sums of money, if any, or
additional Eligible Obligations (meeting the requirements of Section
701), if any, or any combination thereof, at such time or times, as
shall be necessary, together with the money and/or Eligible
Obligations theretofore so deposited, to pay when due the principal of
and premium, if any, and interest due and to become due on such
Debentures of the Series or portions thereof, all in
--------
accordance with and subject to the provisions of said Section 701;
provided, however, that such instrument may state that the obligation
of the Company to make additional deposits as aforesaid shall be
subject to the delivery to the Company by the Trustee of a notice
asserting the deficiency accompanied by an opinion of an independent
public accountant of nationally recognized standing, selected by the
Trustee, showing the calculation thereof; or
(B) an Opinion of Counsel, to the effect that, as a result of a
change in law occurring after the date of this certificate, the
Holders of such Debentures of the Series, or portions of the
--------
principal amount thereof, will not recognize income, gain or loss for
United States federal income tax purposes as a result of the
satisfaction and discharge of the Company's indebtedness in respect
thereof and will be subject to United States federal income tax on the
same amounts, at the same times and in the same manner as if such
satisfaction and discharge had not been effected;
13. The Trustee, the Security Registrar and the Company will have no
responsibility under the Indenture for transfers of beneficial
interests in the Debentures of the Series and, if and to the
--------
extent that the Debentures of the Series are held by a depository,
---
for any depository records of beneficial interests or for any
transactions between the depository and beneficial owners;
14. The Debentures of the Series shall have such other terms and
--------
provisions as are provided in the form thereof set forth in Exhibit A
hereto, and shall be issued in substantially such form;
15. The undersigned has read all of the covenants and conditions contained
in the Indenture and the definitions in the Indenture relating
thereto, relating to the issuance of the Debentures of the
--------
Series and in respect of compliance with which this certificate is
made;
16. The statements contained in this certificate are based upon the
familiarity of the undersigned with the Indenture, the documents
accompanying this certificate, and upon discussions by the undersigned
with officers and employees of the Company familiar with the matters
set forth herein;
17. In the opinion of the undersigned, he has made such examination or
investigation as is necessary to enable the undersigned to express an
informed opinion as to whether or not such covenants and conditions
have been complied with; and
-4-
18. In the opinion of the undersigned, such conditions and covenants and
conditions precedent, if any, provided for in the Indenture (including
any covenants compliance with which constitutes a condition precedent)
relating to the authentication and delivery of $ aggregate
-----------
principal amount of the Debentures of the Series requested in
--------
the accompanying Company Order , have been complied with.
-----
-5-
IN WITNESS WHEREOF, I have executed this Officer's Certificate this
------
day of , 200 .
--------- --
----------------------------------
-6-
EXHIBIT A
NO.
---------------
CUSIP NO.
----------
[FORM OF FACE OF JUNIOR SUBORDINATED DEBENTURE]
[(SEE LEGEND AT THE END OF THIS SECURITY FOR
RESTRICTIONS ON TRANSFERABILITY AND CHANGE OF FORM)]
ALLETE
(LEGALLY INCORPORATED AS MINNESOTA POWER, INC.)
[FORM OF FACE OF JUNIOR SUBORDINATED DEBENTURE]
ALLETE (legally incorporated as MINNESOTA POWER, INC.), a corporation duly
organized and existing under the laws of the State of Minnesota (herein referred
to as the "Company", which term includes any successor Person under the
Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to The Bank of New York, as Property Trustee under [Name of
Trust], a Delaware statutory business trust, or registered assigns, the
principal sum of Dollars ($ ) on ,
-------------------- ---------- ------- ----
(except as hereinafter provided) and, except as hereinafter provided, to pay
interest on said principal sum, from and including the date of original
issuance, but if interest has been paid on this Security, then from, and
including, the most recent Interest Payment Date to which interest has been paid
or duly provided for, quarterly in arrears on , , and
-------- ------- ---------
of each year (each an "Interest Payment Date"), commencing
- -----------
, at the rate of % per annum, plus Additional Interest, if
- -------------- ----
any, until the principal hereof is paid or made available for payment. The
amount of interest payable on any Interest Payment Date shall be computed on the
basis of a 360-day year of twelve 30-day months. In the event that any Interest
Payment Date is not a Business Day, then payment of interest payable on such
date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of such delay), in each case
with the same force and effect as if made on such Interest Payment Date. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the fifteenth day (whether or not a Business Day) preceding such Interest
Payment Date; provided, however, that if the Securities of this series are held
by a securities depositary in a book-entry only form, the Regular Record Date
will be one Business Day preceding the corresponding Interest Payment Date; and
provided further that interest payable at Maturity will be paid to the Person to
whom principal is paid. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture referred to on the reverse hereof.
Payment of the principal of (and premium, if any) and interest on this
Security will be made upon presentation at the office or agency of the Company
maintained for that purpose in The City of New York, the State of New York, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts, provided, however,
that, at the option of the Company, interest on this Security may be paid by
check mailed to the address of the person entitled thereto, as such address
shall appear on the Security Register or by wire transfer to an account
designated by the Person entitled thereto.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
ALLETE
(legally incorporated as MINNESOTA POWER, INC.)
By:
--------------------------------------
ATTEST:
- ----------------------------
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:
--------------------------------------
Authorized Signatory
A-2
[FORM OF REVERSE OF JUNIOR SUBORDINATED DEBENTURE]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture (For Unsecured Subordinated Debt Securities relating
to Trust Securities), dated as of (herein, together with any amendments
--------
thereto, called the "Indenture", which term shall have the meaning assigned to
it in such instrument), between the Company and The Bank of New York, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), and reference is hereby made to the Indenture, including the
Board Resolutions and Officer's Certificate filed with the Trustee on
, 200 (the "Officer's Certificate"), creating the series designated
- ----------- --
on the face hereof, for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
[This Security will be redeemable at the option of the Company on or
after , , at any time in whole and from time to time in part,
----------- ----
upon not less than 30 nor more than 60 days' notice given as provided in the
Indenture, at a Redemption Price equal to 100% of the principal amount thereof
plus accrued and unpaid interest hereon, including Additional Interest, if any,
to the Redemption Date.
If at any time a Tax Event (as defined below) shall occur and be
continuing and either (i) in the opinion of counsel to the Company experienced
in such matters, there would in all cases, after effecting the termination of
the Trust, after satisfaction of liabilities to creditors of the Trust, if any,
as provided by applicable law, and the distribution of this Security to the
holders of the Preferred Trust Securities of the Trust (the "Preferred Trust
Securities"), in exchange therefor, be more than an insubstantial risk that an
Adverse Tax Consequence (as defined below) would continue to exist or (ii) this
Security is not held by [Name of Trust], a Delaware statutory business trust
(the "Trust"), then the Company shall have the right to redeem this Security, in
whole but not in part, at any time within 90 days following the occurrence of
the Tax Event, at 100% of the principal amount thereof plus accrued and unpaid
interest hereon, including Additional Interest, if any, to the Redemption Date.
"Tax Event" means the receipt by the Trust or the Company of an
opinion of counsel experienced in such matters to the effect that, as a result
of (a) any amendment to, clarification of, or change (including any announced
prospective change) in, the laws or treaties (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein affecting taxation, (b) any judicial decision or any official
administrative pronouncement, ruling, regulatory procedure, notice or
announcement (including any notice or announcement of intent to issue or adopt
any such administrative pronouncement, ruling, regulatory procedure or
regulation) (each, an "Administrative Action"), or (c) any amendment to,
clarification of, or change in the official position or the interpretation of
any such Administrative Action or judicial decision or any interpretation or
pronouncement that provides for a position with respect to such Administrative
Action or judicial decision that differs from the theretofore generally accepted
position, in each case by any legislative body, court, governmental authority or
regulatory body, irrespective of the time or manner in which such amendment,
clarification or change is introduced or made known, which amendment,
clarification, or change is effective, which Administrative Action is taken or
which judicial decision is issued, in each case on or after the date of issuance
of the Preferred Trust Securities, there is more than an insubstantial risk that
(i) the Trust is, or will be, subject to United States federal income tax with
respect to interest received on this Security, (ii) interest payable by the
Company on this Security is not, or will not be, fully deductible by the Company
for United States federal income tax purposes, or (iii) the Trust is, or will
be, subject to more than a de minimis amount of other taxes, duties or other
A-3
governmental charges (each of the circumstances described in clauses (i), (ii)
or (iii) being an "Adverse Tax Consequence").
Interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holder of such Security, or one or more
Predecessor Securities, of record at the close of business on the related
Regular Record Date referred to on the face hereof, all as provided in the
Indenture.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.]
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinated and subject in right of payment to the prior
payment in full of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such Holder upon
said provisions.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security upon compliance with certain conditions set
forth in the Indenture including the Officer's Certificate described above.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected. The Indenture contains
provisions permitting the Holders of a majority in aggregate principal amount of
the Securities of all series then Outstanding to waive compliance by the Company
with certain provisions of the Indenture. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than a majority in aggregate
principal amount of the Securities of all series at the time Outstanding in
A-4
respect of which an Event of Default shall have occurred and be continuing shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee reasonable indemnity,
and the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of Securities of all series at the time Outstanding
in respect of which an Event of Default shall have occurred and be continuing a
direction inconsistent with such request, and shall have failed to institute any
such proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
Pursuant to Section 311 of the Indenture so long as the Company is not
in default in the payment of interest on the Securities of any series under the
Indenture, the Company shall have the right, at any time and from time to time
during the term of the Securities of this series, to extend the interest payment
period to a period not exceeding 20 consecutive quarterly periods (an "Extension
Period") during which period interest (calculated for each Interest Period (as
defined in the Officer's Certificate) in the manner provided for on the face
hereof, as if the interest payment period had not been so extended) will be
compounded quarterly. At the end of the Extension Period, the Company shall pay
all interest accrued and unpaid hereon (together with interest thereon at the
rate specified for the Securities of this series, compounded quarterly, to the
extent permitted by applicable law) and Additional Interest, if any; provided,
however, that during any such Extension Period, the Company shall not declare or
pay any dividend or distribution (other than a dividend or distribution in
common stock of the Company) on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock, make any payment
of principal, interest or premium, if any, on or repay, repurchase or redeem any
indebtedness that is pari passu with or subordinated to the Securities of this
series, or make any guarantee payments with respect to the foregoing
("Restricted Payments"). Prior to the termination of any such Extension Period,
the Company may further extend the interest payment period, provided that such
Extension Period together with all such previous and further extensions thereof
shall not exceed 20 consecutive quarterly periods at any one time or extend
beyond the Maturity of the Securities of this series. Any Extension Period with
respect to payment of interest on the Securities of this series, or any extended
interest payment period in respect of similar securities (including all
Securities issued under the Indenture) will apply to the Securities of this
series and all such securities and will also apply to distributions with respect
to the Preferred Trust Securities and all other securities with terms
substantially the same as the Preferred Trust Securities. Upon the termination
of any such Extension Period and the payment of all amounts then due, including
interest on deferred interest payments, the Company may elect to begin a new
Extension Period, subject to the above requirements. No interest shall be due
and payable during an Extension Period, except at the end thereof. The Company
shall give the Trustee notice of its election of an Extension Period before the
Business Day prior to the record date for the distribution which would occur but
for such election.
The Securities of this series are issuable only in registered form
without coupons in denominations of $ and any integral multiple thereof. As
--
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor and of authorized denominations,
as requested by the Holder surrendering the same.
A-5
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the absolute
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture and in the Officer's
Certificate establishing the terms of the Securities of this series.
A-6
EXHIBIT 4(W)
GUARANTEE AGREEMENT
Between
ALLETE
(legally incorporated as MINNESOTA POWER, INC.)
(as Guarantor)
and
THE BANK OF NEW YORK
(as Trustee)
dated as of
----------------
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 Trust 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....................6
SECTION 3.01 Powers and Duties of the Guarantee Trustee................6
SECTION 3.02 Certain Rights of Guarantee Trustee.......................7
SECTION 3.03 Not Responsible for Recitals or Issuance of Guarantee.....9
ARTICLE IV Guarantee Trustee..................................................9
SECTION 4.01 Guarantee Trustee; Eligibility............................9
SECTION 4.02 Compensation and Reimbursement...........................10
SECTION 4.03 Appointment, Removal and Resignation of Guarantee
Trustee..................................................11
ARTICLE V Guarantee..........................................................11
SECTION 5.01 Guarantee................................................11
SECTION 5.02 Waiver of Notice and Demand..............................12
SECTION 5.03 Obligations Not Affected.................................12
SECTION 5.04 Rights of Holders........................................13
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
i
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.
ii
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of
is executed and delivered by ALLETE (legally incorporated as
- -----------------
MINNESOTA POWER, INC.), 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 Trust Securities
(as defined herein) of ALLETE Capital , a Delaware statutory business trust
--
(the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of among the Trustees named
-----------------
therein, ALLETE, as Depositor, and the several Holders (as defined therein), the
Issuer is issuing as of the date hereof $ aggregate Liquidation
-----------
Amount of its % Trust Originated Preferred Securities (the "Initial
----
Preferred Trust Securities") representing undivided beneficial interests in the
assets of the Issuer and having the terms set forth in the Trust Agreement;
[WHEREAS, in the event and to the extent the over-allotment option
granted by the Issuer and Guarantor pursuant to the Underwriting Agreement dated
is exercised by the underwriters referred to therein, the
- ----------------
Issuer will issue up to $ additional aggregate Liquidation Account of
----------
its % Trust Originated Preferred Securities (the "Option Preferred Trust
----
Securities", together with the Initial Preferred Trust Securities, the
"Preferred Trust Securities") representing undivided beneficial interests in the
assets of the Issuer and having the terms set forth in the Trust Agreement;]
WHEREAS, the Initial Preferred Trust Securities are to be issued for
sale by the Issuer and the proceeds are to be invested in $ principal
-----------
amount of Debentures (as defined in the Trust Agreement) and the Option
Preferred Trust Securities are to be issued for sale by the Issuer and the
proceeds are to be invested in up to $ in principal amount of
----------
Debentures; and
WHEREAS, in order to enhance the value of the Preferred Trust
Securities, the Guarantor desires irrevocably and unconditionally to 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.
"Event of Default" means a default by the Guarantor on any of its
payment obligations under this Guarantee Agreement.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Trust 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 Trust
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 Trust
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 the
distribution of Debentures to the Holders in exchange for Preferred Trust
Securities as provided in the Trust Agreement or upon a redemption of all of the
Preferred Trust Securities upon maturity or redemption of the Debentures as
provided in the Trust Agreement), the lesser of (a) the aggregate of the
Liquidation Amount of all Preferred Trust Securities and all accrued and unpaid
Distributions on the Preferred Trust Securities to the date of payment but only
if and to the extent that the Property Trustee has available in the Payment
Account funds sufficient to make such 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" means a Person in whose name a Preferred Trust Security or
Preferred Trust Securities is registered in the Securities Register; provided,
however, that in determining whether the holders of the requisite percentage of
Preferred Trust Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor or any Affiliate of the
Guarantor.
"Majority in Liquidation Amount of the Preferred Trust Securities"
means a vote by Holders, voting separately as a class, of more than 50% of the
aggregate Liquidation Amount of all Preferred Trust Securities.
"Officer's Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President, any Vice President, the
Treasurer, or any Assistant Treasurer of the Guarantor, and delivered to the
Guarantee Trustee. Any Officer's Certificate or Opinion of Counsel delivered
with respect to compliance with a condition or covenant provided for in this
Guarantee Agreement shall include:
2
(a) a statement that the officer or counsel signing the Officer's
Certificate or the Opinion of Counsel 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 Officer's
Certificate or the Opinion of Counsel;
(c) a statement that each such officer or counsel has made such
examination or investigation as, in such officer's or counsel's opinion, is
necessary to enable such officer or counsel 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 or
counsel, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Guarantee Trustee or the Guarantor or an Affiliate of the
Guarantor, or an employee or any thereof, who shall be acceptable to the
Guarantee Trustee.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company, unincorporated organization or
government, or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee,
any vice-president, any assistant vice-president, or any other officer of the
Guarantee Trustee assigned by the Guarantee Trustee to the Corporate Trust
Administration Division of the Guarantee Trustee (or any successor division or
department of the Guarantee Trustee).
"Subordinated Indenture" means the Indenture (for Unsecured
Subordinated Debt Securities relating to Trust Securities) dated as of
, between the Guarantor (the "Debenture Issuer") and The Bank of
- ---------------
New York, as trustee, pursuant to which the Debentures are issued, together with
any indenture supplemental thereto.
"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 Section
310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.02 LISTS OF HOLDERS OF PREFERRED TRUST SECURITIES.
(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (a) semiannually, not later than and in
----- ----------
each year commencing in the 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) of the Trust Indenture Act, and Section 312(b) of the Trust
Indenture Act.
SECTION 2.03 REPORTS BY THE GUARANTEE TRUSTEE. Not later than
in each year, commencing , , 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. Any such report shall be dated as of
the next preceding September 15. 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,
if any, as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Guarantee Trustee's receipt of such shall
not constitute constructive notice of any information contained therein or
4
determinable from information contained therein, including the Guarantor's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
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 and any opinion of
counsel required to be given by counsel, in each case pursuant to Section 314(c)
of the Trust Indenture Act, shall be given in the form of an Officer's
Certificate, and an Opinion of Counsel, respectively.
SECTION 2.06 EVENTS OF DEFAULT; WAIVER. The Holders of a Majority in
Liquidation Amount of Preferred Trust 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, a notice of such Event of Default known to the Guarantee
Trustee, unless such default shall have been cured or waived 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 a Responsible Officer of the Guarantee Trustee
charged with the administration of the Trust Agreement shall have received
written notice of such Event of Default at the Corporate Trust Office of
the Guarantee Trustee.
SECTION 2.08 CONFLICTING INTERESTS. For purposes of Section
310(b)(1) of the Trust Indenture Act and to the extent permitted thereby, the
Guarantee Trustee shall not be deemed to have a conflicting interest arising
from its capacity as trustee in respect of (i) the Subordinated Indenture, (ii)
the Trust Agreement, (iii) the Indenture (For Unsecured Subordinated Debt
Securities relating to Trust Securities), dated as of March 1, 1996 of the
Guarantor to The Bank of New York, as trustee, (iv) the Guarantee Agreement,
dated as of March 1, 1996 between the Guarantor, and The Bank of New York, as
trustee, or (v) the Amended and Restated Trust Agreement, dated as of March 1,
1996 between the Guarantor, as depositor, The Bank of New York, The Bank of New
York (Delaware) and several administrative trustees, as trustees and the several
Holders defined therein.
5
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 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 or waiving of all Events of Default that may
have occurred, shall undertake to perform such duties and 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), and is
actually known to a Responsible Officer of the Guarantee Trustee, 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 no
implied covenants or obligations shall be read into this
Guarantee Agreement against the Guarantee Trustee; 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
6
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 it shall be proved that the Guarantee Trustee 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 Trust 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
any financial liability in the performance of any of its duties
hereunder, 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 adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Guarantee Agreement relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the
provisions of Sections 3.01(b) and 3.01(c).
SECTION 3.02 CERTAIN RIGHTS OF GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.01:
(i) the Guarantee Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document 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 Officer's
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 to take
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 conclusively rely upon an Officer's Certificate
7
which, upon receipt of such request from the Guarantee Trustee, shall
be promptly delivered by the Guarantor;
(iv) the Guarantee Trustee may consult with counsel of its
choice, and the written advice or Opinion of 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 and
continuance of an Event of Default, of its obligation under the last
sentence of Section 3.01(b) 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, 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 such
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 of a Majority in Liquidation Amount of the Preferred
Trust Securities, (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 relying on or acting in accordance with such
instructions;
8
(ix) the Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any tax or securities form) (or
any rerecording, refiling or re-registration thereof); and
(x) 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 Agreement.
(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 to act in accordance with
such power or authority.
SECTION 3.03 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE.
The recitals contained in this Guarantee Agreement shall be taken as
the statements of the Guarantor, and the Guarantee Trustee does not assume any
responsibility for their correctness. The Guarantee Trustee makes no
representation as to the validity or sufficiency of this Guarantee Agreement.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 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.
9
(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
after giving effect to the provisions of Section 2.08 hereof, the Guarantee
Trustee and 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 Agreement (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 trusts created by, or 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 of 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 Trust 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. In addition to the rights provided to
the Guarantee Trustee pursuant to the provisions of the immediately preceding
paragraph of this Section 4.02, when the Guarantee Trustee incurs expenses or
renders services in connection with enforcement of this Guarantee, 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.
The provisions of this Section shall survive the termination of this
Guarantee Agreement.
10
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.
(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 or removal, the
Guarantee Trustee resigning or being removed 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.
(f) No Guarantee Trustee shall be liable for the acts or omissions to
act of any Successor Guarantee Trustee.
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 or on behalf of 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.
11
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 Guarantee Trustee, 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.
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 Trust
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 Trust Securities or
the extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Preferred Trust 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
Subordinated Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Property Trustee or the Holders to enforce, assert or exercise any
right, privilege, power or remedy conferred on the Property Trustee or the
Holders pursuant to the terms of the Preferred Trust 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 Trust
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.
12
There shall be no obligation of the Guarantee Trustee, the Property
Trustee or the Holders to give notice to, or obtain consent of, the Guarantor or
any other Person 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) if an Event of Default has
occurred and is continuing, the Guarantee Trustee has the right to enforce this
Guarantee Agreement on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Amount of the Preferred Trust 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) if the Guarantee Trustee fails to enforce this Guarantee
Agreement, any Holder may enforce this Guarantee Agreement, or institute a legal
proceeding directly against the Guarantor to enforce the Guarantee Trustee's
rights under this Guarantee Agreement without first instituting a legal
proceeding against the Issuer, the Guarantee Trustee, or any other Person.
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 Trust 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
13
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 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. Subject to Section 4.02 hereof, this
Guarantee Agreement shall terminate and be of no further force and effect upon:
(i) full payment of the Redemption Price of all Preferred Trust 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 Trust
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 Preferred Trust 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 Trust Securities then outstanding.
Except in connection with a consolidation, merger or sale involving the
Guarantor that is permitted under Article Eleven of the Subordinated 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 Trust 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 Guarantee Trustee
and the Holders of the Preferred Trust Securities:
ALLETE
30 West Superior Street
Duluth, Minnesota 55802-2093
Facsimile No:
Attention: Treasurer
(b) if given to the Issuer, in care of the Administrative Trustees, at
the Issuer's (and the Administrative Trustees') address set forth below or
such other address as the Administrative Trustees on behalf of the Issuer
may give notice of to the Guarantee Trustee and the Holders:
ALLETE Capital __
c/o ALLETE
30 West Superior Street
Duluth, Minnesota 55802-2093
Facsimile No:
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
Guarantor and the Holders of the Preferred Trust Securities:
The Bank of New York
Corporate Trust Administration
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Administration
Telephone: 212-815-5758
Facsimile: 212-815-5915
(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.
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 Trust Securities.
15
SECTION 8.05 INTERPRETATION. In this Guarantee Agreement, unless the
context otherwise requires:
(a) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(b) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or
amended from time to time;
(c) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(d) 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;
(e) a reference to the singular includes the plural and vice versa;
and
(f) 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.
ALLETE
(legally incorporated as Minnesota Power, Inc.)
By:
---------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Guarantee Trustee
By:
---------------------------------
Name:
Title:
17
EXHIBIT 5(A)
ALLETE
PHILIP R. HALVERSON
VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
March 14, 2001
ALLETE
(legally incorporated as Minnesota Power, Inc.)
30 West Superior Street
Duluth, Minnesota 55802
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-3 to be
filed by ALLETE (legally incorporated as Minnesota Power, Inc.) (the "Company"),
ALLETE Capital II and ALLETE Capital III (the "Trusts") on or about the date
hereof, with the Securities and Exchange Commission under the Securities Act of
1933, as amended (the "Registration Statement"), for the registration of (i)
securities (the "Securities") in an aggregate offering amount of $500,000,000,
including (a) shares of the Company's Common Stock, without par value ("Common
Stock") and the Preferred Share Purchase Rights attached thereto ("Rights") (the
Common Stock and the Rights being collectively referred to as the "Shares"); (b)
one or more proposed new series of the Company's first mortgage bonds ("Bonds")
to be issued under the Company's Mortgage and Deed of Trust, dated as of
September 1, 1945, with Irving Trust Company (now The Bank of New York) and
Richard H. West (Douglas J. MacInnes, successor), as mortgage trustees (the
"Mortgage"); (c) unsecured debt securities ("Debt Securities") of the Company to
be issued pursuant to the terms of an Indenture, dated February 1, 2001, from
the Company to LaSalle Bank National Association (the "Debt Security
Indenture"); and (d) preferred trust securities ("Preferred Trust Securities")
of one or more of the Trusts; (ii) the guarantee of the Company with respect to
the Preferred Trust Securities (the "Guarantee"); and (iii) the Company's Junior
Subordinated Debentures ("Subordinated Debentures") to be issued pursuant to the
terms of an indenture ("Subordinated Indenture") and purchased by one or more of
the Trusts with the sale of Preferred Trust Securities.
In connection therewith, I have reviewed such documents and records as
I have deemed necessary to enable me to express an opinion on the matters
covered hereby.
Based upon the foregoing, I am of the opinion that:
1. The Company is a corporation validly organized and existing under
the laws of the State of Minnesota.
30 WEST SUPERIOR STREET | DULUTH, MINNESOTA 55802-2093
March 14, 2001
Page 2
2. All action necessary to make the Common Stock validly issued,
fully paid and non-assessable and the Rights validly issued will have been taken
when:
(a) The Minnesota Public Utilities Commission ("MPUC") shall have
issued an order or orders authorizing the issuance and sale of
the Shares;
(b) At a meeting or meetings of the Company's Board of Directors (or
the Executive Committee of the Board of Directors) favorable
action shall have been taken to approve and authorize the
issuance and sale of the Shares and any other action necessary to
the consummation of the proposed issuance and sale of the Shares;
(c) The Common Stock shall have been issued and sold for the
consideration contemplated in the Registration Statement and any
prospectus supplement relating to the Common Stock; and
(d) The Rights shall have been issued in accordance with the terms of
the Rights Agreement dated as of July 24, 1996 between the
Company and the Corporate Secretary of the Company, as Rights
Agent.
3. With respect to those Bonds which are to be issued at any one
time ("Offered Bonds"), all action necessary to make the Offered Bonds valid,
legal and binding obligations of the Company will have been taken when:
(a) The MPUC shall have issued an order or orders authorizing the
issuance and sale of the Offered Bonds;
(b) At a meeting or meetings of the Company's Board of Directors (or
Executive Committee of the Board of Directors) favorable action
shall have been taken to approve and authorize the issuance and
sale of the Offered Bonds, the execution and delivery of an
appropriate supplemental indenture ("Supplemental Indenture") to
the Company's Mortgage, and any other action necessary to the
consummation of the proposed issuance and sale of the Offered
Bonds;
(c) The aforementioned Supplemental Indenture shall have been duly
executed and delivered to the parties thereto; and
(d) The Offered Bonds shall have been duly executed, authenticated,
issued and delivered for the consideration contemplated in the
Registration Statement and any prospectus supplement relating to
the Offered Bonds and in accordance with the provisions of the
March 14, 2001
Page 3
Company's Mortgage, as heretofore supplemented and to be further
supplemented by the aforementioned Supplemental Indenture.
4. With respect to those Debt Securities which are to be issued
at any one time ("Offered Debt Securities"), all requisite action necessary to
make the Offered Debt Securities valid, legal and binding obligations of the
Company shall have been taken when:
(a) The MPUC shall have issued an order or orders authorizing the
issuance and sale of the Offered Debt Securities;
(b) At a meeting or meetings of the Company's Board of Directors (or
the Executive Committee of the Board of Directors) favorable
action shall have been taken to approve and authorize the
issuance and sale of the Offered Debt Securities, the execution
and delivery of an appropriate Officer's Certificate
("Certificate") under the Debt Security Indenture and any other
action necessary to the consummation of the proposed issuance and
sale of the Offered Debt Securities;
(c) The Certificate shall have been duly executed and delivered by an
appropriate officer of the Company; and
(d) The Offered Debt Securities shall have been duly executed,
authenticated, issued and delivered for the consideration
contemplated in the Registration Statement and any prospectus
supplement relating to the Offered Debt Securities and in
accordance with the provisions of the Debt Security Indenture, as
heretofore supplemented and to be further supplemented by the
aforementioned Certificate.
5. All requisite action necessary to make the Guarantee a valid,
legal and binding obligation of the Company will have been taken when the Board
of Directors of the Company, or an officer duly authorized thereby, shall have
taken such action as may be necessary to establish the terms of the Guarantee
and the Guarantee shall have been duly executed and delivered by the parties
thereto.
6. All requisite action necessary to make the Subordinated
Debentures valid, legal and binding obligations of the Company will have been
taken when:
(a) The MPUC shall have issued an order or orders authorizing the
issuance and sale of the Subordinated Debentures;
(b) At a meeting or meetings of the Company's Board of Directors (or
the Executive Committee of the Board of Directors) favorable
action shall have been taken to approve and authorize the
issuance and sale of the Subordinated Debentures, the execution
March 14, 2001
Page 4
and delivery of a Subordinated Indenture and any other action
necessary to the consummation of the proposed issuance and sale
of the Subordinated Debentures;
(c) The Subordinated Indenture shall have been duly executed and
delivered by a duly authorized officer or representative of the
Company and by the trustee under the Subordinated Indenture; and
(d) The Board of Directors of the Company, or an officer duly
authorized thereby, shall have taken such action, pursuant to the
terms of the Subordinated Indenture, as may be necessary to
establish the terms of the Subordinated Debentures, and the
Subordinated Debentures shall have been duly executed,
authenticated, issued and delivered for the consideration
contemplated in the Registration Statement and any prospectus
supplement relating to the Subordinated Debentures and in
accordance with the terms and provisions of the Subordinated
Indenture.
I am a member of the Minnesota Bar and do not hold myself out as an
expert on the laws of any other jurisdiction. As to all matters of Minnesota
law, Thelen Reid & Priest LLP is hereby authorized to rely upon this opinion to
the same extent as if this opinion had been addressed to them.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. I also consent to the reference to me in the Prospectus
included in the Registration Statement under the caption "Legal Opinions."
Sincerely,
/s/ Philip R. Halverson
Philip R. Halverson
EXHIBIT 5(B)
THELEN REID & PRIEST LLP
NEW YORK ATTORNEYS AT LAW
SAN FRANCISCO 40 WEST 57TH STREET
WASHINGTON, D.C. NEW YORK, N.Y. 10019-4097
LOS ANGELES TEL (212) 603-2000 FAX (212) 603-2001
SILICON VALLEY www. thelenreid.com
MORRISTOWN, N.J.
March 14, 2001
ALLETE
(legally incorporated as Minnesota Power, Inc.)
30 West Superior Street
Duluth, Minnesota 55802
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-3 to be
filed by ALLETE (legally incorporated as Minnesota Power, Inc.) (the "Company"),
ALLETE Capital II and ALLETE Capital III (the "Trusts") on or about the date
hereof, with the Securities and Exchange Commission under the Securities Act of
1933, as amended (the "Registration Statement"), for the registration of (i)
securities (the "Securities") in an aggregate offering amount of $500,000,000,
including (a) shares of the Company's Common Stock, without par value ("Common
Stock") and the Preferred Share Purchase Rights attached thereto ("Rights") (the
Common Stock and the Rights being collectively referred to as the "Shares"); (b)
one or more proposed new series of the Company's first mortgage bonds ("Bonds")
to be issued under the Company's Mortgage and Deed of Trust, dated as of
September 1, 1945, with Irving Trust Company (now The Bank of New York) and
Richard H. West (Douglas J. MacInnes, successor), as mortgage trustees (the
"Mortgage"); (c) unsecured debt securities ("Debt Securities") of the Company to
be issued pursuant to the terms of an Indenture, dated February 1, 2001, from
the Company to LaSalle Bank National Association (the "Debt Security
Indenture"); and (d) preferred trust securities ("Preferred Trust Securities")
of one or more of the Trusts; (ii) the guarantee of the Company with respect to
the Preferred Trust Securities (the "Guarantee"); and (iii) the Company's Junior
Subordinated Debentures ("Subordinated Debentures") to be issued pursuant to the
terms of an indenture ("Subordinated Indenture") and purchased by one or more of
the Trusts with the sale of Preferred Trust Securities.
In connection therewith, we have reviewed such documents and records
as we have deemed necessary to enable us to express an opinion on the matters
covered hereby.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation validly organized and existing
under the laws of the State of Minnesota.
2. All action necessary to make the Common Stock validly issued,
fully paid and non-assessable and the Rights validly issued will have been taken
when:
(a) The Minnesota Public Utilities Commission ("MPUC") shall have
issued an order or orders authorizing the issuance and sale of
the Shares;
March 14, 2001
Page 2
(b) At a meeting or meetings of the Company's Board of Directors (or
the Executive Committee of the Board of Directors) favorable
action shall have been taken to approve and authorize the
issuance and sale of the Shares and any other action necessary to
the consummation of the proposed issuance and sale of the Shares;
(c) The Common Stock shall have been issued and sold for the
consideration contemplated in the Registration Statement and any
prospectus supplement relating to the Common Stock; and
(d) The Rights shall have been issued in accordance with the terms of
the Rights Agreement dated as of July 24, 1996 between the
Company and the Corporate Secretary of the Company, as Rights
Agent.
3. With respect to those Bonds which are to be issued at any one
time ("Offered Bonds"), all action necessary to make the Offered Bonds valid,
legal and binding obligations of the Company will have been taken when:
(a) The MPUC shall have issued an order or orders authorizing the
issuance and sale of the Offered Bonds;
(b) At a meeting or meetings of the Company's Board of Directors (or
Executive Committee of the Board of Directors) favorable action
shall have been taken to approve and authorize the issuance and
sale of the Offered Bonds, the execution and delivery of an
appropriate supplemental indenture ("Supplemental Indenture") to
the Company's Mortgage, and any other action necessary to the
consummation of the proposed issuance and sale of the Offered
Bonds;
(c) The aforementioned Supplemental Indenture shall have been duly
executed and delivered to the parties thereto; and
(d) The Offered Bonds shall have been duly executed, authenticated,
issued and delivered for the consideration contemplated in the
Registration Statement and any prospectus supplement relating to
the Offered Bonds and in accordance with the provisions of the
Company's Mortgage, as heretofore supplemented and to be further
supplemented by the aforementioned Supplemental Indenture.
4. With respect to those Debt Securities which are to be issued
at any one time ("Offered Debt Securities"), all requisite action necessary to
make the Offered Debt Securities valid, legal and binding obligations of the
Company shall have been taken when:
(a) The MPUC shall have issued an order or orders authorizing the
issuance and sale of the Offered Debt Securities;
March 14, 2001
Page 3
(b) At a meeting or meetings of the Company's Board of Directors (or
the Executive Committee of the Board of Directors) favorable
action shall have been taken to approve and authorize the
issuance and sale of the Offered Debt Securities, the execution
and delivery of an appropriate Officer's Certificate
("Certificate") under the Debt Security Indenture and any other
action necessary to the consummation of the proposed issuance and
sale of the Offered Debt Securities;
(c) The Certificate shall have been duly executed and delivered by an
appropriate officer of the Company; and
(d) The Offered Debt Securities shall have been duly executed,
authenticated, issued and delivered for the consideration
contemplated in the Registration Statement and any prospectus
supplement relating to the Offered Debt Securities and in
accordance with the provisions of the Debt Security Indenture, as
heretofore supplemented and to be further supplemented by the
aforementioned Certificate.
5. All requisite action necessary to make the Guarantee a valid,
legal and binding obligation of the Company will have been taken when the Board
of Directors of the Company, or an officer duly authorized thereby, shall have
taken such action as may be necessary to establish the terms of the Guarantee
and the Guarantee shall have been duly executed and delivered by the parties
thereto.
6. All requisite action necessary to make the Subordinated
Debentures valid, legal and binding obligations of the Company will have been
taken when:
(a) The MPUC shall have issued an order or orders authorizing the
issuance and sale of the Subordinated Debentures;
(b) At a meeting or meetings of the Company's Board of Directors (or
the Executive Committee of the Board of Directors) favorable
action shall have been taken to approve and authorize the
issuance and sale of the Subordinated Debentures, the execution
and delivery of a Subordinated Indenture and any other action
necessary to the consummation of the proposed issuance and sale
of the Subordinated Debentures;
(c) The Subordinated Indenture shall have been duly executed and
delivered by a duly authorized officer or representative of the
Company and by the trustee under the Subordinated Indenture; and
(d) The Board of Directors of the Company, or an officer duly
authorized thereby, shall have taken such action, pursuant to the
terms of the Subordinated Indenture, as may be necessary to
establish the terms of the Subordinated Debentures, and the
Subordinated Debentures shall have been duly executed,
authenticated, issued and delivered for the consideration
March 14, 2001
Page 4
contemplated in the Registration Statement and any prospectus
supplement relating to the Subordinated Debentures and in
accordance with the terms and provisions of the Subordinated
Indenture.
We are members of the New York Bar and do not hold ourselves out as
experts on the laws of the State of Minnesota. As to all matters governed by the
laws of the State of Minnesota, we have relied with your consent upon an opinion
of even date herewith addressed to you by Philip R. Halverson, Esq., Vice
President, General Counsel and Secretary of the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. We also consent to the reference to us in the Prospectus
included in the Registration Statement under the caption "Legal Opinions." In
giving the foregoing consents, we do not hereby admit that we belong to the
class of persons whose consent is required under Section 7 of the Securities
Act, or the rules and regulations promulgated thereunder.
Very truly yours,
/s/ Thelen Reid & Priest LLP
THELEN REID & PRIEST LLP
EXHIBIT 5(C)
[Letterhead of Richards, Layton & Finger, P.A.]
March 14, 2001
ALLETE Capital II
ALLETE
30 West Superior Street
Duluth, Minnesota 55802-2093
Re: ALLETE Capital II
-----------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for ALLETE, a Minnesota
corporation (the "Company"), and ALLETE Capital II, a Delaware business trust
(the "Trust"), in connection with the matters set forth herein. At your request,
this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of March 13, 2001
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on March 13, 2001;
(b) The Trust Agreement of the Trust, dated as of March 13, 2001,
among the Company and the trustees of the Trust named therein;
(c) The Registration Statement (the "Registration Statement") on Form
S-3, including a preliminary prospectus (the "Prospectus"), relating to the
preferred trust securities of the Trust, representing undivided beneficial
interests in the assets of the Trust (each, a "Preferred Security" and
collectively, the "Preferred Securities"), as proposed to be filed by the
Company and the Trust with the Securities and Exchange Commission on or about
March 14, 2001;
(d) A form of Amended and Restated Trust Agreement of the Trust
(including Exhibits A, B and D thereto) (the "Trust Agreement"), to be entered
ALLETE Capital II
March 14, 2001
Page 2
into among the Company, the trustees of the Trust named therein, and the
holders, from time to time, of undivided beneficial interests in the assets of
the Trust, filed as an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated March 13,
2001, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our own
but rather have relied solely upon the foregoing documents, the statements and
information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are signatories to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (collectively, the "Preferred
Security Holders") of a Preferred Trust Securities Certificate evidencing
ownership of such Preferred Security in the name of such Person and the payment
for the Preferred Security acquired by it, in accordance with the Trust
Agreement and the Registration Statement, and (vii) that the Preferred
Securities are issued and sold to the Preferred Security Holders in accordance
with the Trust Agreement and the Registration Statement. We have not
participated in the preparation of the Registration Statement and assume no
responsibility for its contents.
ALLETE Capital II
March 14, 2001
Page 3
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Legal Opinions" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of Persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
EXHIBIT 5(D)
[Letterhead of Richards, Layton & Finger, P.A.]
March 14, 2001
ALLETE Capital III
ALLETE
30 West Superior Street
Duluth, Minnesota 55802-2093
Re: ALLETE Capital III
------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for ALLETE, a Minnesota
corporation (the "Company"), and ALLETE Capital III, a Delaware business trust
(the "Trust"), in connection with the matters set forth herein. At your request,
this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of March 13, 2001
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on March 13, 2001;
(b) The Trust Agreement of the Trust, dated as of March 13, 2001,
among the Company and the trustees of the Trust named therein;
(c) The Registration Statement (the "Registration Statement") on Form
S-3, including a preliminary prospectus (the "Prospectus"), relating to the
preferred trust securities of the Trust, representing undivided beneficial
interests in the assets of the Trust (each, a "Preferred Security" and
collectively, the "Preferred Securities"), as proposed to be filed by the
Company and the Trust with the Securities and Exchange Commission on or about
March 14, 2001;
(d) A form of Amended and Restated Trust Agreement of the Trust
(including Exhibits A, B and D thereto) (the "Trust Agreement"), to be entered
ALLETE Capital III
March 14, 2001
Page 2
into among the Company, the trustees of the Trust named therein, and the
holders, from time to time, of undivided beneficial interests in the assets of
the Trust, filed as an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated March 13,
2001, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our own
but rather have relied solely upon the foregoing documents, the statements and
information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are signatories to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (collectively, the "Preferred
Security Holders") of a Preferred Trust Securities Certificate evidencing
ownership of such Preferred Security in the name of such Person and the payment
for the Preferred Security acquired by it, in accordance with the Trust
Agreement and the Registration Statement, and (vii) that the Preferred
Securities are issued and sold to the Preferred Security Holders in accordance
with the Trust Agreement and the Registration Statement. We have not
participated in the preparation of the Registration Statement and assume no
responsibility for its contents.
ALLETE Capital III
March 14, 2001
Page 3
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Legal Opinions" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of Persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.]
EXHIBIT 12(B)
ALLETE
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES AND PREFERRED DIVIDENDS AND
SUPPLEMENTAL RATIOS OF EARNINGS TO FIXED CHARGES AND PREFERRED DIVIDENDS
FOR THE YEAR ENDED DECEMBER 31 2000 1999 1998 1997 1996
- ----------------------------------------------------------------------------------------------
Millions Except Ratios
Income from Continuing Operations Per
Consolidated Statement of Income $148.6 $ 68.0 $ 88.5 $ 77.6 $ 69.2
Add (Deduct)
Current Income Tax Expense 91.1 70.5 52.9 44.7 31.4
Deferred Income Tax Expense (Benefit) (4.8) (11.3) 2.7 3.2 (9.8)
Deferred Investment Tax Credits (1.8) (1.5) (1.6) (1.3) (2.0)
Undistributed Income From Less Than 50%
Owned Equity Investments - (0.6) (14.1) (13.9) (11.0)
Minority Interest - 1.8 2.0 2.3 3.3
- ----------------------------------------------------------------------------------------------
233.1 126.9 130.4 112.6 81.1
- ----------------------------------------------------------------------------------------------
Fixed Charges
Interest on Long-Term Debt 54.5 48.4 48.5 50.4 52.4
Capitalized Interest 0.9 0.7 1.0 1.5 1.5
Other Interest Charges - Net 15.9 12.0 17.1 14.3 10.2
Interest Component of All Rentals 8.5 4.8 5.7 3.7 2.5
Distributions on Redeemable Preferred
Securities of Subsidiary 6.0 6.0 6.0 6.0 4.7
- ----------------------------------------------------------------------------------------------
Total Fixed Charges 85.8 71.9 78.3 75.9 71.3
- ----------------------------------------------------------------------------------------------
Earnings Before Income Taxes and
Fixed Charges (Excluding Capitalized Interest) $318.0 $198.1 $207.7 $187.0 $150.9
- ----------------------------------------------------------------------------------------------
Preferred Dividend Requirements $ 0.9 $ 2.0 $ 2.0 $ 2.0 $ 2.4
Ratio of Income from Continuing Operations Before
Income Taxes to Income from Continuing Operations 1.57 1.85 1.61 1.60 1.28
- ----------------------------------------------------------------------------------------------
Preferred Dividend Factor $ 1.4 $ 3.7 $ 3.2 $ 3.2 $ 3.1
Total Fixed Charges 85.8 71.9 78.3 75.9 71.3
- ----------------------------------------------------------------------------------------------
Total Fixed Charges and Preferred Dividends $ 87.2 $ 75.6 $ 81.5 $ 79.1 $ 74.4
- ----------------------------------------------------------------------------------------------
Ratio of Earnings to Fixed Charges and
Preferred Dividends 3.65 2.62 2.55 2.36 2.03
- ----------------------------------------------------------------------------------------------
Earnings Before Income Taxes and
Fixed Charges (Excluding Capitalized Interest) $318.0 $198.1 $207.7 $187.0 $150.9
Supplemental Charges 14.8 15.4 14.5 12.0 14.4
- ----------------------------------------------------------------------------------------------
Earnings Before Income Taxes and Fixed and
Supplemental Charges (Excluding Capitalized
Interest) $332.8 $213.5 $222.2 $199.0 $165.3
- ----------------------------------------------------------------------------------------------
Total Fixed Charges and Preferred Dividends $ 87.2 $ 75.6 $ 81.5 $ 79.1 $ 74.4
Supplemental Charges 14.8 15.4 14.5 12.0 14.4
- ----------------------------------------------------------------------------------------------
Total Fixed Charges, Preferred Dividends and
Supplemental Charges $102.0 $ 91.0 $ 96.0 $ 91.1 $ 88.8
- ----------------------------------------------------------------------------------------------
Supplemental Ratio of Earnings to
Fixed Charges and Preferred Dividends (a) 3.26 2.35 2.31 2.18 1.86
- ----------------------------------------------------------------------------------------------
(a) The supplemental ratio of earnings to fixed charges includes Minnesota
Power's obligation under a contract with Square Butte Electric Cooperative
(Square Butte) which extends through 2026, under which Minnesota Power is
entitled to approximately 71% of the output of a 455-megawatt coal-fired
generating unit (Unit). Minnesota Power is obligated to pay its pro rata
share of Square Butte's costs based on Unit output entitlement. Minnesota
Power's payment obligation is suspended if Square Butte fails to deliver
any power, whether produced or purchased, for a period of one year. Square
Butte's fixed costs consist primarily of debt service. Variable operating
costs include the price of coal purchased from BNI Coal, Ltd. under a
long-term contract. (See Note 14 to ALLETE's 2000 consolidated financial
statements in ALLETE's Annual Report on Form 10-K for the year ended
December 31, 2000.)
EXHIBIT 23(A)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated January 17, 2001 relating to the
financial statements and financial statement schedule, which appear in ALLETE's
(legally incorporated as Minnesota Power, Inc.) Annual Report on Form 10-K for
the year ended December 31, 2000. We also consent to the reference to us under
the heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Minneapolis, MN
March 14, 2001
EXHIBIT 25(A)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2)
------------
-----------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
One Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip code)
-----------------
MINNESOTA POWER, INC.
(DOING BUSINESS AS ALLETE)
(Exact name of obligor as specified in its charter)
Minnesota 41-0418150
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
30 West Superior Street
Duluth, Minnesota 55802-2093
(Address of principal executive offices) (Zip code)
-----------------
FIRST MORTGAGE BONDS*
(Title of the indenture securities)
- ------------------------
*Specific title(s) to be determined in connection with issuances(s) of
First Mortgage Bonds.
ITEM 1. GENERAL INFORMATION.*
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Superintendent of Banks of the 2 Rector Street, New York, N.Y. 10006
State of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation 550 17th Street, N.W., Washington, D.C. 20429
New York Clearing House Association New York, N.Y.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 2.)
ITEM 16. LIST OF EXHIBITS.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of the
Commission's Rules of Practice.
1. - A copy of the Organization Certificate of The Bank of New
York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration
Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to
Form T-1 filed with Registration Statement No. 33-29637.)
4. - A copy of the existing By-laws of the Trustee. (Exhibit 4
to Form T-1 filed with Registration Statement No. 33-31019.)
6. - The consent of the Trustee required by Section 321(b) of
the Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. - A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
- ------------------------
* Pursuant to General Instruction B, the Trustee has responded only to
Items 1, 2 and 16 of this form since to the best of the knowledge of the Trustee
the obligor is not in default under any indenture under which the Trustee is a
trustee.
NOTE
Inasmuch as this Form T-1 is being filed prior to the ascertainment by
the Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of March, 2001.
THE BANK OF NEW YORK
By: TERENCE T. RAWLINS
-------------------------------
Terence T. Rawlins
Assistant Vice President
-2-
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business December 31, 2000, published in accordance with
a call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
- ------ --------------
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin........................................ $ 3,083,720
Interest-bearing balances...................................... 4,949,333
Securities:
Held-to-maturity securities.................................... 740,315
Available-for-sale securities.................................. 5,328,981
Federal funds sold and Securities
purchased under agreements to resell......................... 5,695,708
Loans and lease financing
receivables:
Loans and leases, net of unearned
income............................................ 36,590,456
LESS: Allowance for loan and
lease losses...................................... 598,536
LESS: Allocated transfer risk
reserve........................................... 12,575
Loans and leases, net of unearned
income, allowance, and reserve............................... 35,979,345
Trading Assets................................................... 11,912,448
Premises and fixed assets (including
capitalized leases)............................................ 763,241
Other real estate owned.......................................... 2,925
Investments in unconsolidated subsid-
iaries and associated companies................................ 183,836
Customers' liability to this bank on
acceptances outstanding........................................ 424,303
Intangible assets................................................ 1,378,477
Other assets..................................................... 3,823,797
-----------
Total assets..................................................... $74,266,429
===========
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
- -----------
Deposits:
In domestic offices............................................ $28,328,548
Noninterest-bearing................................. 12,637,384
Interest-bearing.................................... 15,691,164
In foreign offices, Edge and
Agreement subsidiaries, and IBFs............................... 27,920,690
Noninterest-bearing................................. 470,130
Interest-bearing.................................... 27,450,560
Federal funds purchased and Securities
sold under agreements to repurchase ........................... 1,437,916
Demand notes issued to the U.S.
Treasury....................................................... 100,000
Trading liabilities.............................................. 2,049,818
Other borrowed money:
With remaining maturity of one year or less.................... 1,279,125
With remaining maturity of more than
one year through three years ................................ 0
With remaining maturity of more than
three years................................................. 31,080
Bank's liability on acceptances
executed and outstanding....................................... 427,110
Subordinated notes and debentures................................ 1,646,000
Other liabilities................................................ 4,604,478
----------
Total liabilities................................................ 67,824,765
----------
EQUITY CAPITAL
- --------------
Common stock..................................................... 1,135,285
Surplus.......................................................... 1,008,775
Undivided profits and capital
reserves....................................................... 4,308,492
Net unrealized holding gains (losses)
on available-for-sale securities............................... (27,768)
Accumulated net gains (losses) on
cash flow hedges............................................... 0
Cumulative foreign currency
translation adjustments........................................ (38,656)
-----------
Total equity capital............................................. 6,441,664
-----------
Total liabilities and equity capital............................. $74,266,429
===========
EXHIBIT 7
(Page 3 of 3)
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi )
Alan R. Griffith ) Directors
Gerald L. Hassell )
EXHIBIT 25(B)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM T-2
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF AN INDIVIDUAL
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2)
------------
-----------------
DOUGLAS J. MACINNES
(Name of Trustee)
101 Barclay Street
New York, New York 10286
(Business Address, Street, City, State) (Zip Code)
-----------------
MINNESOTA POWER, INC.
(DOING BUSINESS AS ALLETE)
(Exact name of obligor as specified in its charter)
Minnesota 41-0418150
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
30 West Superior Street
Duluth, Minnesota 55802-2093
(Address of principal executive offices) (Zip code)
-----------------
FIRST MORTGAGE BONDS*
(Title of the indenture securities)
- ------------------------
*Specific title(s) to be determined in connection with issuances(s) of
First Mortgage Bonds.
ITEM 1. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.*
ITEM 11. LIST OF EXHIBITS.
List below all exhibits filed as a part of this statement of
eligibility
None.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, I,
Douglas J. MacInnes, have signed this statement of eligibility in The City of
New York and State of New York, on the 12th day of March, 2001.
DOULGAS J. MACINNES
---------------------------------------
Douglas J. MacInnes
- ------------------------
*Pursuant to General Instruction B, the Trustee has responded only to
Items 1 and 11 of this form since to the best of the knowledge of the Trustee
the obligor is not in default under any indenture under which the Trustee is a
trustee.
-2-
EXHIBIT 25(C)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
-----------------------
Check if an application to determine eligibility of A trustee
pursuant to Section 305(b)(2) [X]
LASALLE BANK NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
36-0884183
(I.R.S. Employer
Identification No.)
135 South LaSalle Street, Chicago, Illinois 60603
(Address of principal executive offices) (Zip Code)
-----------------------
Willie J. Miller, Jr.
Group Senior Vice President
Chief Legal Officer and Secretary
Telephone: (312) 904-2018
135 South LaSalle Street, Suite 925
Chicago, Illinois 60603
(Name, address and telephone number of agent for service)
-----------------------
ALLETE (legally incorporated as Minnesota Power, Inc.)
(Exact name of obligor as specified in its charter)
Minnesota 41-0418150
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
30 West Superior Street
Duluth, Minnesota 55802-2093
(Address of principal executive offices) (Zip Code)
-----------------------
Debt Securities
(Title of the indenture securities)
ITEM 1. GENERAL INFORMATION*
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
1. Comptroller of the Currency, Washington D.C.
2. Federal Deposit Insurance Corporation, Washington, D.C.
3. The Board of Governors of the Federal Reserve Systems,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such affiliation.
Not Applicable
*Pursuant to General Instruction B, the trustee has responded only to items 1, 2
and 16 of this form since to the best knowledge of the trustee the obligor is
not in default under any indenture under which the trustee is a trustee.
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as part of this statement of eligibility and
qualification.
1. A copy of the Articles of Association of LaSalle Bank National
Association now in effect. (incorporated herein by reference to
Exhibit 1 filed with Form T-1 filed with the Current Report on
Form 8-K, dated June 29, 2000, in File No. 333-61691).
2. A copy of the certificate of authority to commence business
(incorporated herein by reference to Exhibit 2 filed with Form
T-1 filed with the Current Report on Form 8-K, dated June 29,
2000, in File No. 333-61691).
3. A copy of the authorization to exercise corporate trust powers
(incorporated herein by reference to Exhibit 3 filed with Form
T-1 filed with the Current Report on Form 8-K, dated June 29,
2000, in File No. 333-61691).
4. A copy of the existing By-Laws of LaSalle Bank National
Association (incorporated herein by reference to Exhibit 4 filed
with Form T-1 filed with the Current Report on Form 8-K, dated
June 29, 2000, in File No. 333-61691).
5. Not applicable.
6. The consent of the trustee required by Section 321(b) of the
Trust Indenture Act of 1939 (incorporated herein by reference to
Exhibit 6 filed with Form T-1 filed with the Current Report on
Form 8-K, dated June 29, 2000, in File No. 333-61691).
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
LaSalle Bank National Association, a corporation organized and existing under
the laws of the United States of America, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Chicago, State of Illinois, on the 12th day of
March, 2001.
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ John W. Porter
------------------------------------
John W. Porter
Assistant Vice President
LaSalle Bank N.A. Call Date: 12/31/00 ST-BK: 17-1520 FFIEC 031
135 South LaSalle Street Page RC-1
Chicago, IL 60603 Vendor ID: D CERT: 15407 11
Transit Number: 71000505
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND
STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31 , 2000
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC - BALANCE SHEET
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------------
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin (1) 0081 1,440,053 1.a
b. Interest-bearing balances (2) 0071 17,034 1.b
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A) 1754 694,913 2.a
b. Available-for-sale securities (from Schedule RC-B, column D) 1773 12,323,062 2.b
3. Federal funds sold and securities purchased under agreements to resell 1350 220,788 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income RCFD
----
(from Schedule RC-C) 2122 31,691,102 4.a
b. LESS: Allowance for loan and lease losses 3123 443,137 4.b
c. LESS: Allocated transfer risk reserve 3128 0 4.c
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c) 2125 31,247,965 4.d
5. Trading assets (from Schedule RC-D) 3545 262,014 5.
6. Premises and fixed assets (including capitalized leases) 2145 279,087 6.
7. Other real estate owned (from Schedule RC-M) 2150 3,780 7.
8. Investments in unconsolidated subsidiaries and associated companies (from
Schedule RC-M) 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding 2155 13,076 9.
10. Intangible assets (from Schedule RC-M) 2143 677,878 10.
11. Other assets (from Schedule RC-F) 2160 1,673,187 11.
12. Total assets (sum of items 1 through 11) 2170 48,852,837 12. 48,852,837
- -------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
LaSalle Bank N.A. Call Date: 12/31/00 ST-BK: 17-1520 FFIEC 031
135 South LaSalle Street Page RC-1
Chicago, IL 60603 Vendor ID: D CERT: 15407 11
Transit Number: 71000505
SCHEDULE RC - BALANCE SHEET
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------------
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of RCON
----
columns A and C from Schedule RC-E, part I) 2200 27,740,880 13.a
RCON
----
(1) Noninterest-bearing (1) 6631 2,038,152 13.a.1
(2) Interest-bearing 6636 25,702,728 13.a.2 27,740,880
RCFN
----
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from
Schedule RC-E, part II) 2200 4,404,467 13.b
RCFN
----
(1) Noninterest-bearing 6631 0 13.b.1
(2) Interest-bearing 6636 4,404,467 13.b.2
RCFD
----
14. Federal funds purchased and securities sold under agreements to repurchase 2800 3,943,015 14.
RCON
----
15. a. Demand notes issued to the U.S. Treasury 2840 473,742 15.a
RCFD
----
b. Trading liabilities (from Schedule RC-D) 3548 54,207 15.b
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
a. With a remaining maturity of one year or less 2332 5,306,499 16.a
b. With a remaining maturity of more than one year through three years A547 19,396 16.b
c. With a remaining maturity of more than three years A548 1,972,209 16.c
17. Not applicable.
18. Bank's liability on acceptances executed and outstanding 2920 13,076 18.
19. Subordinated notes and debentures (2) 3200 831,000 19.
20. Other liabilities (from Schedule RC-G) 2930 760,921 20.
21. Total liabilities (sum of items 13 through 20) 2948 45,519,412 21. 45,519,412
22. Not applicable.
EQUITY CAPITAL
RCFD
----
23. Perpetual preferred stock and related surplus 3838 135,410 23.
24. Common stock 3230 41,234 24.
25. Surplus (exclude all surplus related to preferred stock) 3839 1,901,992 25.
26. a. Undivided profits and capital reserves 3632 1,349,110 26.a
b. Net unrealized holding gains (losses) on available-for-sale securities 8434 (94,321) 26.b
c. Accumulated net gains (losses) on cash flow hedges 4336 0 26.c
27. Cumulative foreign currency translation adjustments 3284 0 27.
28. Total equity capital (sum of items 23 through 27) 3210 3,333,425 28. 3,333,425
29. Total liabilities and equity capital (sum of items 21 and 28) 3300 48,852,837 29.
MEMORANDUM
TO BE REPORTED ONLY WITH THE MARCH REPORT OF CONDITION.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed RCFD Number
for the bank by independent external auditors as of any date during 1999 ---- ------
6724 N/A M.1
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state charter- ing authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work) 8 = No external
audit work
- -------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
EXHIBIT 25(D)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2)
------------
-----------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
One Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip code)
-----------------
ALLETE
(LEGALLY INCORPORATED AS MINNESOTA POWER, INC.)
(Exact name of obligor as specified in its charter)
Minnesota 41-0418150
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
30 West Superior Street
Duluth, Minnesota 55802-2093
(Address of principal executive offices) (Zip code)
-----------------
ALLETE (LEGALLY INCORPORATED AS MINNESOTA POWER, INC.)
JUNIOR SUBORDINATED DEBENTURES*
(Title of the indenture securities)
- ------------------------
*Specific title(s) to be determined in connection with issuances(s) of
ALLETE (legally incorporated as Minnesota Power, Inc.) Junior Subordinated
Debentures.
ITEM 1. GENERAL INFORMATION.*
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Superintendent of Banks of the 2 Rector Street, New York, N.Y. 10006
State of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation 550 17th Street, N.W., Washington, D.C. 20429
New York Clearing House Association New York, N.Y.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 2.)
ITEM 16. LIST OF EXHIBITS.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of the
Commission's Rules of Practice.
1. - A copy of the Organization Certificate of The Bank of New
York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration
Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to
Form T-1 filed with Registration Statement No. 33-29637.)
4. - A copy of the existing By-laws of the Trustee. (Exhibit 4
to Form T-1 filed with Registration Statement No. 33-31019.)
6. - The consent of the Trustee required by Section 321(b) of
the Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. - A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
- ------------------------
* Pursuant to General Instruction B, the Trustee has responded only to
Items 1, 2 and 16 of this form since to the best of the knowledge of the Trustee
the obligor is not in default under any indenture under which the Trustee is a
trustee.
NOTE
Inasmuch as this Form T-1 is being filed prior to the ascertainment by
the Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of March, 2001.
THE BANK OF NEW YORK
By: TERENCE T. RAWLINS
-------------------------------
Terence T. Rawlins
Assistant Vice President
2
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business December 31, 2000, published in accordance with
a call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
- ------ --------------
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin........................................ $ 3,083,720
Interest-bearing balances...................................... 4,949,333
Securities:
Held-to-maturity securities.................................... 740,315
Available-for-sale securities.................................. 5,328,981
Federal funds sold and Securities
purchased under agreements to resell........................... 5,695,708
Loans and lease financing
receivables:
Loans and leases, net of unearned
income............................................ 36,590,456
LESS: Allowance for loan and
lease losses...................................... 598,536
LESS: Allocated transfer risk
reserve........................................... 12,575
Loans and leases, net of unearned
income, allowance, and reserve............................... 35,979,345
Trading Assets................................................... 11,912,448
Premises and fixed assets (including
capitalized leases)............................................ 763,241
Other real estate owned.......................................... 2,925
Investments in unconsolidated subsid-
iaries and associated companies................................ 183,836
Customers' liability to this bank on
acceptances outstanding........................................ 424,303
Intangible assets................................................ 1,378,477
Other assets..................................................... 3,823,797
-----------
Total assets..................................................... $74,266,429
===========
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
- -----------
Deposits:
In domestic offices............................................ $28,328,548
Noninterest-bearing................................. 12,637,384
Interest-bearing.................................... 15,691,164
In foreign offices, Edge and
Agreement subsidiaries, and IBFs............................... 27,920,690
Noninterest-bearing................................. 470,130
Interest-bearing.................................... 27,450,560
Federal funds purchased and Securities
sold under agreements to repurchase ........................... 1,437,916
Demand notes issued to the U.S.
Treasury....................................................... 100,000
Trading liabilities.............................................. 2,049,818
Other borrowed money:
With remaining maturity of one year or less.................... 1,279,125
With remaining maturity of more than
one year through three years ................................ 0
With remaining maturity of more than
three years................................................. 31,080
Bank's liability on acceptances
executed and outstanding....................................... 427,110
Subordinated notes and debentures................................ 1,646,000
Other liabilities................................................ 4,604,478
----------
Total liabilities................................................ 67,824,765
----------
EQUITY CAPITAL
- --------------
Common stock..................................................... 1,135,285
Surplus.......................................................... 1,008,775
Undivided profits and capital
reserves....................................................... 4,308,492
Net unrealized holding gains (losses)
on available-for-sale securities............................... (27,768)
Accumulated net gains (losses) on
cash flow hedges............................................... 0
Cumulative foreign currency
translation adjustments........................................ (38,656)
-----------
Total equity capital............................................. 6,441,664
-----------
Total liabilities and equity capital............................. $74,266,429
===========
EXHIBIT 7
(Page 3 of 3)
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi )
Alan R. Griffith ) Directors
Gerald L. Hassell )
EXHIBIT 25(E)
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2)
------------
-----------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
One Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip code)
-----------------
ALLETE CAPITAL II
(Exact name of obligor as specified in its charter)
Delaware To Be Applied For
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
30 West Superior Street
Duluth, Minnesota 55802-2093
(Address of principal executive offices) (Zip code)
-----------------
ALLETE CAPITAL II PREFERRED TRUST SECURITIES*
(Title of the indenture securities)
- ------------------------
*Specific title(s) to be determined in connection with issuance(s) of
ALLETE Capital II Preferred Trust Securities.
ITEM 1. GENERAL INFORMATION.*
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Superintendent of Banks of the 2 Rector Street, New York, N.Y. 10006
State of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation 550 17th Street, N.W., Washington, D.C. 20429
New York Clearing House Association New York, N.Y. 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 2.)
ITEM 16. LIST OF EXHIBITS.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
ss.229.10(d).
1. - A copy of the Organization Certificate of The Bank of New
York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration
Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to
Form T-1 filed with Registration Statement No. 33-29637.)
4. - A copy of the existing By-laws of the Trustee. (Exhibit 4
to Form T-1 filed with Registration Statement No. 33-31019.)
6. - The consent of the Trustee required by Section 321(b) of
the Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. - A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
- ------------------------
*Pursuant to General Instruction B, the Trustee has responded only to Items
1, 2 and 16 of this form since to the best of the knowledge of the Trustee the
obligor is not in default under any indenture under which the Trustee is a
trustee.
NOTE
Inasmuch as this Form T-1 is being filed prior to the ascertainment by
the Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of March, 2001.
THE BANK OF NEW YORK
By: TERENCE T. RAWLINS
------------------------------------
Terence T. Rawlins
Assistant Vice President
-2-
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business December 31, 2000, published in accordance with
a call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
- ------ --------------
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin........................................ $ 3,083,720
Interest-bearing balances...................................... 4,949,333
Securities:
Held-to-maturity securities.................................... 740,315
Available-for-sale securities.................................. 5,328,981
Federal funds sold and Securities
purchased under agreements to resell........................... 5,695,708
Loans and lease financing
receivables:
Loans and leases, net of unearned
income............................................ 36,590,456
LESS: Allowance for loan and
lease losses...................................... 598,536
LESS: Allocated transfer risk
reserve........................................... 12,575
Loans and leases, net of unearned
income, allowance, and reserve............................... 35,979,345
Trading Assets................................................... 11,912,448
Premises and fixed assets (including
capitalized leases)............................................ 763,241
Other real estate owned.......................................... 2,925
Investments in unconsolidated subsid-
iaries and associated companies................................ 183,836
Customers' liability to this bank on
acceptances outstanding........................................ 424,303
Intangible assets................................................ 1,378,477
Other assets..................................................... 3,823,797
-----------
Total assets..................................................... $74,266,429
===========
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
- -----------
Deposits:
In domestic offices............................................ $28,328,548
Noninterest-bearing................................. 12,637,384
Interest-bearing.................................... 15,691,164
In foreign offices, Edge and
Agreement subsidiaries, and IBFs............................... 27,920,690
Noninterest-bearing................................. 470,130
Interest-bearing.................................... 27,450,560
Federal funds purchased and Securities
sold under agreements to repurchase ........................... 1,437,916
Demand notes issued to the U.S.
Treasury....................................................... 100,000
Trading liabilities.............................................. 2,049,818
Other borrowed money:
With remaining maturity of one year or less.................... 1,279,125
With remaining maturity of more than
one year through three years ................................ 0
With remaining maturity of more than
three years.................................................. 31,080
Bank's liability on acceptances
executed and outstanding....................................... 427,110
Subordinated notes and debentures................................ 1,646,000
Other liabilities................................................ 4,604,478
----------
Total liabilities................................................ 67,824,765
----------
EQUITY CAPITAL
- --------------
Common stock..................................................... 1,135,285
Surplus.......................................................... 1,008,775
Undivided profits and capital
reserves....................................................... 4,308,492
Net unrealized holding gains (losses)
on available-for-sale securities............................... (27,768)
Accumulated net gains (losses) on
cash flow hedges............................................... 0
Cumulative foreign currency
translation adjustments........................................ (38,656)
-----------
Total equity capital............................................. 6,441,664
-----------
Total liabilities and equity capital............................. $74,266,429
===========
EXHIBIT 7
(Page 3 of 3)
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi )
Alan R. Griffith ) Directors
Gerald L. Hassell )
EXHIBIT 25(F)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2)
------------
-----------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
One Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip code)
-----------------
ALLETE
(LEGALLY INCORPORATED AS MINNESOTA POWER, INC.)
(Exact name of obligor as specified in its charter)
Minnesota 41-0418150
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
30 West Superior Street
Duluth, Minnesota 55802-2093
(Address of principal executive offices) (Zip code)
-----------------
ALLETE (LEGALLY INCORPORATED AS MINNESOTA POWER, INC.) GUARANTEE WITH
RESPECT TO ALLETE CAPITAL II PREFERRED TRUST SECURITIES*
(Title of the indenture securities)
- ------------------------
*Specific title(s) to be determined in connection with issuances(s) of
ALLETE Capital II Preferred Trust Securities.
ITEM 1. GENERAL INFORMATION.*
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Superintendent of Banks of the 2 Rector Street, New York, N.Y. 10006
State of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation 550 17th Street, N.W., Washington, D.C. 20429
New York Clearing House Association New York, N.Y.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 2.)
ITEM 16. LIST OF EXHIBITS.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of the
Commission's Rules of Practice.
1. - A copy of the Organization Certificate of The Bank of New
York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration
Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to
Form T-1 filed with Registration Statement No. 33-29637.)
4. - A copy of the existing By-laws of the Trustee. (Exhibit 4
to Form T-1 filed with Registration Statement No. 33-31019.)
6. - The consent of the Trustee required by Section 321(b) of
the Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. - A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
- ------------------------
* Pursuant to General Instruction B, the Trustee has responded only to
Items 1, 2 and 16 of this form since to the best of the knowledge of the Trustee
the obligor is not in default under any indenture under which the Trustee is a
trustee.
NOTE
Inasmuch as this Form T-1 is being filed prior to the ascertainment by
the Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of March, 2001.
THE BANK OF NEW YORK
By: TERENCE T. RAWLINS
-------------------------------
Terence T. Rawlins
Assistant Vice President
2
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business December 31, 2000, published in accordance with
a call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
- ------ --------------
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin........................................ $ 3,083,720
Interest-bearing balances...................................... 4,949,333
Securities:
Held-to-maturity securities.................................... 740,315
Available-for-sale securities.................................. 5,328,981
Federal funds sold and Securities
purchased under agreements to resell........................... 5,695,708
Loans and lease financing
receivables:
Loans and leases, net of unearned
income............................................ 36,590,456
LESS: Allowance for loan and
lease losses...................................... 598,536
LESS: Allocated transfer risk
reserve........................................... 12,575
Loans and leases, net of unearned
income, allowance, and reserve............................... 35,979,345
Trading Assets................................................... 11,912,448
Premises and fixed assets (including
capitalized leases)............................................ 763,241
Other real estate owned.......................................... 2,925
Investments in unconsolidated subsid-
iaries and associated companies................................ 183,836
Customers' liability to this bank on
acceptances outstanding........................................ 424,303
Intangible assets................................................ 1,378,477
Other assets..................................................... 3,823,797
-----------
Total assets..................................................... $74,266,429
===========
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
- -----------
Deposits:
In domestic offices............................................ $28,328,548
Noninterest-bearing................................. 12,637,384
Interest-bearing.................................... 15,691,164
In foreign offices, Edge and
Agreement subsidiaries, and IBFs............................... 27,920,690
Noninterest-bearing................................. 470,130
Interest-bearing.................................... 27,450,560
Federal funds purchased and Securities
sold under agreements to repurchase ........................... 1,437,916
Demand notes issued to the U.S.
Treasury....................................................... 100,000
Trading liabilities.............................................. 2,049,818
Other borrowed money:
With remaining maturity of one year or less.................... 1,279,125
With remaining maturity of more than
one year through three years ................................ 0
With remaining maturity of more than
three years................................................. 31,080
Bank's liability on acceptances
executed and outstanding....................................... 427,110
Subordinated notes and debentures................................ 1,646,000
Other liabilities................................................ 4,604,478
----------
Total liabilities................................................ 67,824,765
----------
EQUITY CAPITAL
- --------------
Common stock..................................................... 1,135,285
Surplus.......................................................... 1,008,775
Undivided profits and capital
reserves....................................................... 4,308,492
Net unrealized holding gains (losses)
on available-for-sale securities............................... (27,768)
Accumulated net gains (losses) on
cash flow hedges............................................... 0
Cumulative foreign currency
translation adjustments........................................ (38,656)
-----------
Total equity capital............................................. 6,441,664
-----------
Total liabilities and equity capital............................. $74,266,429
===========
EXHIBIT 7
(Page 3 of 3)
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi )
Alan R. Griffith ) Directors
Gerald L. Hassell )
EXHIBIT 25(G)
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2)
------------
-----------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
One Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip code)
-----------------
ALLETE CAPITAL III
(Exact name of obligor as specified in its charter)
Delaware To Be Applied For
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
30 West Superior Street
Duluth, Minnesota 55802-2093
(Address of principal executive offices) (Zip code)
-----------------
ALLETE CAPITAL III PREFERRED TRUST SECURITIES*
(Title of the indenture securities)
- ------------------------
*Specific title(s) to be determined in connection with issuance(s) of
ALLETE Capital III Preferred Trust Securities.
ITEM 1. GENERAL INFORMATION.*
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Superintendent of Banks of the 2 Rector Street, New York, N.Y. 10006
State of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation 550 17th Street, N.W., Washington, D.C. 20429
New York Clearing House Association New York, N.Y. 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 2.)
ITEM 16. LIST OF EXHIBITS.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
ss.229.10(d).
1. - A copy of the Organization Certificate of The Bank of New
York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration
Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to
Form T-1 filed with Registration Statement No. 33-29637.)
4. - A copy of the existing By-laws of the Trustee. (Exhibit 4
to Form T-1 filed with Registration Statement No. 33-31019.)
6. - The consent of the Trustee required by Section 321(b) of
the Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. - A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
- ------------------------
*Pursuant to General Instruction B, the Trustee has responded only to Items
1, 2 and 16 of this form since to the best of the knowledge of the Trustee the
obligor is not in default under any indenture under which the Trustee is a
trustee.
NOTE
Inasmuch as this Form T-1 is being filed prior to the ascertainment by
the Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of March, 2001.
THE BANK OF NEW YORK
By: TERENCE T. RAWLINS
-------------------------------
Terence T. Rawlins
Assistant Vice President
-2-
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business December 31, 2000, published in accordance with
a call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
- ------ --------------
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin........................................ $ 3,083,720
Interest-bearing balances...................................... 4,949,333
Securities:
Held-to-maturity securities.................................... 740,315
Available-for-sale securities.................................. 5,328,981
Federal funds sold and Securities
purchased under agreements to resell........................... 5,695,708
Loans and lease financing
receivables:
Loans and leases, net of unearned
income............................................ 36,590,456
LESS: Allowance for loan and
lease losses...................................... 598,536
LESS: Allocated transfer risk
reserve........................................... 12,575
Loans and leases, net of unearned
income, allowance, and reserve............................... 35,979,345
Trading Assets................................................... 11,912,448
Premises and fixed assets (including
capitalized leases)............................................ 763,241
Other real estate owned.......................................... 2,925
Investments in unconsolidated subsid-
iaries and associated companies................................ 183,836
Customers' liability to this bank on
acceptances outstanding........................................ 424,303
Intangible assets................................................ 1,378,477
Other assets..................................................... 3,823,797
-----------
Total assets..................................................... $74,266,429
===========
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
- -----------
Deposits:
In domestic offices............................................ $28,328,548
Noninterest-bearing................................. 12,637,384
Interest-bearing.................................... 15,691,164
In foreign offices, Edge and
Agreement subsidiaries, and IBFs............................... 27,920,690
Noninterest-bearing................................. 470,130
Interest-bearing.................................... 27,450,560
Federal funds purchased and Securities
sold under agreements to repurchase ........................... 1,437,916
Demand notes issued to the U.S.
Treasury....................................................... 100,000
Trading liabilities.............................................. 2,049,818
Other borrowed money:
With remaining maturity of one year or less.................... 1,279,125
With remaining maturity of more than
one year through three years ................................ 0
With remaining maturity of more than
three years.................................................. 31,080
Bank's liability on acceptances
executed and outstanding....................................... 427,110
Subordinated notes and debentures................................ 1,646,000
Other liabilities................................................ 4,604,478
----------
Total liabilities................................................ 67,824,765
----------
EQUITY CAPITAL
- --------------
Common stock..................................................... 1,135,285
Surplus.......................................................... 1,008,775
Undivided profits and capital
reserves....................................................... 4,308,492
Net unrealized holding gains (losses)
on available-for-sale securities............................... (27,768)
Accumulated net gains (losses) on
cash flow hedges............................................... 0
Cumulative foreign currency
translation adjustments........................................ (38,656)
-----------
Total equity capital............................................. 6,441,664
-----------
Total liabilities and equity capital............................. $74,266,429
===========
EXHIBIT 7
(Page 3 of 3)
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi )
Alan R. Griffith ) Directors
Gerald L. Hassell )
EXHIBIT 25(H)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2)
------------
-----------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
One Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip code)
-----------------
ALLETE
(LEGALLY INCORPORATED AS MINNESOTA POWER, INC.)
(Exact name of obligor as specified in its charter)
Minnesota 41-0418150
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
30 West Superior Street
Duluth, Minnesota 55802-2093
(Address of principal executive offices) (Zip code)
-----------------
ALLETE (LEGALLY INCORPORATED AS MINNESOTA POWER, INC.) GUARANTEE
WITH RESPECT TO ALLETE CAPITAL III PREFERRED TRUST SECURITIES*
(Title of the indenture securities)
- ------------------------
*Specific title(s) to be determined in connection with issuances(s) of
ALLETE Capital III Preferred Trust Securities.
ITEM 1. GENERAL INFORMATION.*
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Superintendent of Banks of the 2 Rector Street, New York, N.Y. 10006
State of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation 550 17th Street, N.W., Washington, D.C. 20429
New York Clearing House Association New York, N.Y.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 2.)
ITEM 16. LIST OF EXHIBITS.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of the
Commission's Rules of Practice.
1. - A copy of the Organization Certificate of The Bank of New
York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration
Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to
Form T-1 filed with Registration Statement No. 33-29637.)
4. - A copy of the existing By-laws of the Trustee. (Exhibit 4
to Form T-1 filed with Registration Statement No. 33-31019.)
6. - The consent of the Trustee required by Section 321(b) of
the Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. - A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
- ------------------------
* Pursuant to General Instruction B, the Trustee has responded only to
Items 1, 2 and 16 of this form since to the best of the knowledge of the Trustee
the obligor is not in default under any indenture under which the Trustee is a
trustee.
NOTE
Inasmuch as this Form T-1 is being filed prior to the ascertainment by
the Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of March, 2001.
THE BANK OF NEW YORK
By: TERENCE T. RAWLINS
-------------------------------
Terence T. Rawlins
Assistant Vice President
2
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business December 31, 2000, published in accordance with
a call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
- ------ --------------
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin........................................ $ 3,083,720
Interest-bearing balances...................................... 4,949,333
Securities:
Held-to-maturity securities.................................... 740,315
Available-for-sale securities.................................. 5,328,981
Federal funds sold and Securities
purchased under agreements to resell........................... 5,695,708
Loans and lease financing
receivables:
Loans and leases, net of unearned
income............................................ 36,590,456
LESS: Allowance for loan and
lease losses...................................... 598,536
LESS: Allocated transfer risk
reserve........................................... 12,575
Loans and leases, net of unearned
income, allowance, and reserve............................... 35,979,345
Trading Assets................................................... 11,912,448
Premises and fixed assets (including
capitalized leases)............................................ 763,241
Other real estate owned.......................................... 2,925
Investments in unconsolidated subsid-
iaries and associated companies................................ 183,836
Customers' liability to this bank on
acceptances outstanding........................................ 424,303
Intangible assets................................................ 1,378,477
Other assets..................................................... 3,823,797
-----------
Total assets..................................................... $74,266,429
===========
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
- -----------
Deposits:
In domestic offices............................................ $28,328,548
Noninterest-bearing................................. 12,637,384
Interest-bearing.................................... 15,691,164
In foreign offices, Edge and
Agreement subsidiaries, and IBFs............................... 27,920,690
Noninterest-bearing................................. 470,130
Interest-bearing.................................... 27,450,560
Federal funds purchased and Securities
sold under agreements to repurchase ........................... 1,437,916
Demand notes issued to the U.S.
Treasury....................................................... 100,000
Trading liabilities.............................................. 2,049,818
Other borrowed money:
With remaining maturity of one year or less.................... 1,279,125
With remaining maturity of more than
one year through three years ................................ 0
With remaining maturity of more than
three years................................................. 31,080
Bank's liability on acceptances
executed and outstanding....................................... 427,110
Subordinated notes and debentures................................ 1,646,000
Other liabilities................................................ 4,604,478
----------
Total liabilities................................................ 67,824,765
----------
EQUITY CAPITAL
- --------------
Common stock..................................................... 1,135,285
Surplus.......................................................... 1,008,775
Undivided profits and capital
reserves....................................................... 4,308,492
Net unrealized holding gains (losses)
on available-for-sale securities............................... (27,768)
Accumulated net gains (losses) on
cash flow hedges............................................... 0
Cumulative foreign currency
translation adjustments........................................ (38,656)
-----------
Total equity capital............................................. 6,441,664
-----------
Total liabilities and equity capital............................. $74,266,429
===========
EXHIBIT 7
(Page 3 of 3)
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi )
Alan R. Griffith ) Directors
Gerald L. Hassell )