EXHIBIT 4.5
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FIRST SUPPLEMENTAL INDENTURE
BETWEEN
WPS RESOURCES CORPORATION
AND
STATE STREET BANK AND TRUST COMPANY
DATED AS OF __________, 1998
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.1 Definition of Terms. . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 Designation and Principal Amount.. . . . . . . . . . . . . . . 3
SECTION 2.2 Maturity.. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.3 Denominations, Form and Payment. . . . . . . . . . . . . . . . 3
SECTION 2.4 Global Debenture.. . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.5 Interest.. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1 Redemption; Conditions to Redemption.. . . . . . . . . . . . . 6
SECTION 3.2 No Sinking Fund. . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period.. . . . . . . . . . . . . 7
SECTION 4.2 Notice of Extension. . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE V
EXPENSES
SECTION 5.1 Payment of Expenses. . . . . . . . . . . . . . . . . . . . . . 8
SECTION 5.2 Payment Upon Resignation or Removal. . . . . . . . . . . . . . 9
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1 Form of Debenture. . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE VII
COVENANT TO LIST ON EXCHANGE
SECTION 7.1 Listing on Exchange. . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1 Original Issue of Debentures.. . . . . . . . . . . . . . . . . 17
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Ratification of Indenture. . . . . . . . . . . . . . . . . . . 17
SECTION 9.2 Trustee Not Responsible for Recitals.. . . . . . . . . . . . . 17
SECTION 9.3 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 9.4 Separability.. . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9.5 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . 18
FIRST SUPPLEMENTAL INDENTURE, dated as of __________, 1998 (the "First
Supplemental Indenture"), between WPS RESOURCES CORPORATION, a Wisconsin
corporation (the "Company"), and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company, not in its individual capacity but solely as
trustee (the "Trustee") under the Indenture dated as of __________, 1998
between the Company and the Trustee (the "Indenture").
W I T N E S S E T H:
WHEREAS, the Company executed and delivered the Indenture to the Trustee
to provide for the future issuance of the Company's unsecured junior
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered
as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a new series of its Debt Securities to be
known as its [_____% Junior Subordinated Deferrable Interest Debentures] due
[2028] (the "Debentures"), the form and substance of such Debentures and the
terms, provisions and conditions thereof to be set forth as provided in the
Indenture and this First Supplemental Indenture;
WHEREAS, WPSR Capital Trust I, a Delaware statutory business trust (the
"Trust"), has offered to the public $50,000,000 aggregate stated liquidation
amount of its ____% Trust Preferred Securities (the "Trust Preferred
Securities") and has offered to the Company $1,500,000 aggregate stated
liquidation amount of its __% Trust Common Securities, such Trust Preferred
Securities and Trust Common Securities representing undivided beneficial
interests in the assets of the Trust and proposes to invest the proceeds from
such offering, in $51,500,000 aggregate principal amount of the Debentures;
and
WHEREAS, the Company has requested that the Trustee execute and deliver
this First Supplemental Indenture and all requirements necessary to make this
First Supplemental Indenture a valid instrument in accordance with its terms,
and to make the Debentures, when executed by the Company and authenticated
and delivered by the Trustee, the valid obligations of the Company, have been
performed, and the execution and delivery of this First Supplemental
Indenture has been duly authorized in all respects;
NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees
with the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITION OF TERMS.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used
in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture
has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article
of this First Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Administrative Trustee; (ii) Clearing Agency; (iii) Delaware
Trustee; (iv) Distributions; (v) Investment Company Event; (vi) Pricing
Agreement; (vii) Property Trustee; (viii) Tax Event; (ix) Trust Preferred
Security Certificate; and (x) Underwriting Agreement;
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Interest" shall have the meaning set forth in Section 2.5.
"Compounded Interest" shall have the meaning set forth in Section 4.1.
"Coupon Rate" shall have the meaning set forth in Section 2.5.
"Declaration" means the Amended and Restated Declaration of Trust
of WPSR Capital Trust I, a Delaware statutory business trust, dated as of
__________, 1998, including the Terms of Securities attached thereto as Annex
I.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 4.1.
"Global Debenture" shall have the meaning set forth in Section 2.4.
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"Maturity Date" means the date on which the Debentures mature and
on which the principal shall be due and payable together with all accrued and
unpaid interest thereon including Compounded Interest and Additional
Interest, if any.
"Non Book-Entry Trust Preferred Securities" shall have the meaning
set forth in Section 2.4.
"Redemption Price" shall have the meaning set forth in Section 3.1.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 DESIGNATION AND PRINCIPAL AMOUNT.
There is hereby authorized a series of Debt Securities designated
the "____% Junior Subordinated Deferrable Interest Debentures due ____",
limited in aggregate principal amount to $51,500,000, which amount shall be
as set forth in any written order of the Company for the authentication and
delivery of Debentures pursuant to Section 2.4 of the Indenture.
SECTION 2.2 MATURITY.
The Maturity Date is __________, ____.
SECTION 2.3 DENOMINATIONS, FORM AND PAYMENT.
The Debentures shall be issuable in denominations of twenty-five
U.S. Dollars ($25) or any integral multiple thereof. Except as provided in
Section 2.4, the Debentures shall be issued in fully registered certificated
form without interest coupons. Principal and interest on the Debentures
issued in certificated form will be payable, the transfer of such Debentures
will be registrable and such Debentures will be exchangeable for Debentures
bearing identical terms and provisions at the office or agency of the
Trustee; PROVIDED, HOWEVER, that payment of interest may be made at the
option of the Company by check mailed to the holder at such address as shall
appear in the Security Register or by wire transfer to an account
appropriately designated by such holder. Notwithstanding the foregoing, so
long as the holder of any Debentures is the Property Trustee, the payment of
the principal of and interest (including Compounded Interest and Additional
Interest, if any) on such Debentures held by the Property Trustee will be
made at such place and to such account as may be designated by the Property
Trustee.
SECTION 2.4 GLOBAL DEBENTURE.
(a) In the event that the Debentures are distributed to holders of
Trust Preferred Securities in liquidation of such holders' interests in the
Trust:
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(i) the Debentures in certificated form may be presented to the
Trustee by the Property Trustee in exchange for a global Debenture in an
aggregate principal amount equal to the aggregate principal amount of all
outstanding Debentures (a "Global Debenture"), to be registered in the name
of the Depositary, or its nominee, and delivered by the Trustee to the
Depositary for crediting to the accounts of its participants pursuant to
the instructions of the Administrative Trustees. The Company, upon any
such presentation, shall execute a Global Debenture in such aggregate
principal amount and deliver the same to the Trustee for authentication and
delivery in accordance with the Indenture and this First Supplemental
Indenture. Payments on the Debentures issued as a Global Debenture will be
made to the Depositary; and
(ii) if any Trust Preferred Securities are held in non book-entry
certificated form, the Debentures in certificated form may be presented to
the Trustee by the Property Trustee and any Trust Preferred Security
Certificate which represents Trust Preferred Securities other than Trust
Preferred Securities held by the Clearing Agency or its nominee ("Non Book-
Entry Trust Preferred Securities") will be deemed to represent beneficial
interests in Debentures presented to the Trustee by the Property Trustee
having an aggregate principal amount equal to the aggregate stated
liquidation amount of the Non Book-Entry Trust Preferred Securities until
such Trust Preferred Security Certificates are presented to the Security
Registrar for transfer or reissuance, at which time such Trust Preferred
Security Certificates will be cancelled and a Debenture, registered in the
name of the holder of the Trust Preferred Security Certificate or the
transferee of the holder of such Trust Preferred Security Certificate, as
the case may be, with an aggregate principal amount equal to the aggregate
stated liquidation amount of the Trust Preferred Security Certificate
cancelled, will be executed by the Company and delivered to the Trustee for
authentication and delivery in accordance with the Indenture and this First
Supplemental Indenture. On issue of such Debentures, Debentures with an
equivalent aggregate principal amount that were presented by the Property
Trustee to the Trustee will be deemed to have been cancelled.
(b) A Global Debenture may be transferred, in whole but not in part,
only to another nominee of the Depositary, or to a successor Depositary selected
or approved by the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or if at any time the Depositary
shall no longer be registered or in good standing under the Exchange Act, or
other applicable statute or regulation, and a successor Depositary is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, the Company will
execute, and, subject to Article II of the Indenture, the Trustee, upon written
notice from the Company, will authenticate and deliver the Debentures in
definitive registered form, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Debenture in
exchange for such Global Debenture. In addition, the Company may at any time
determine, in its sole discretion, that the Debentures shall no longer be
represented by a Global
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Debenture. In such event the Company will execute, and subject to Section
2.11(c) of the Indenture, the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company, will authenticate
and deliver the Debentures in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Debenture in exchange for such Global
Debenture. Upon the exchange of the Global Debenture for such Debentures in
definitive registered form without coupons, in authorized denominations, the
Global Debenture shall be cancelled by the Trustee. Such Debentures in
definitive registered form issued in exchange for the Global Debenture shall
be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such
Debentures to the Depositary for delivery to the Persons in whose names such
Debentures are so registered.
SECTION 2.5 INTEREST.
(a) Each Debenture will bear interest at the rate of ____% per
annum (the "Coupon Rate") from the original date of issuance until the
principal thereof becomes due and payable, and on any overdue principal and
(to the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest, at the Coupon Rate, compounded
quarterly payable (subject to the provisions of Article IV) quarterly in
arrears on March 31, June 30, September 30 and December 31 of each year
(each, an "Interest Payment Date"), commencing September 30, 1998, to the
Person in whose name such Debenture or any predecessor Debenture is
registered, at the close of business on the regular record date for such
interest installment, which, in respect of any Debentures of which the
Property Trustee is the holder of a Global Debenture, shall be the close of
business on the Business Day next preceding that Interest Payment Date.
Notwithstanding the foregoing sentence, if the Trust Preferred Securities are
no longer in book-entry only form or if the Debentures are not held by the
Property Trustee and are not represented by a Global Debenture, the Company
may select a regular record date for such interest installment which shall be
any date not less than three Business Days before an Interest Payment Date.
(b) The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months. Except as provided in
the following sentence, the amount of interest payable for any period shorter
than a full calendar quarter for which interest is computed will be computed
on the basis of the actual number of days elapsed per 90-day period in a
360-day year of twelve 30-day months. In the event that any date on which
interest is payable on the Debentures is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day which
is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date.
(c) If, at any time while the Property Trustee is the holder of
any Debentures, the Trust or the Property Trustee is required to pay any
taxes, duties, assessments or
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governmental charges of whatever nature (other than withholding taxes)
imposed by the United States, or any other taxing authority, then, in any
case, the Company will pay as additional interest ("Additional Interest") on
the Debentures held by the Property Trustee, such additional amounts as shall
be required so that the net amounts received and retained by the Trust and
the Property Trustee after paying such taxes, duties, assessments or other
governmental charges will be equal to the amounts the Trust and the Property
Trustee would have received had no such taxes, duties, assessments or other
governmental charges been imposed.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1 REDEMPTION; CONDITIONS TO REDEMPTION.
(a) Subject to the provisions of Article III of the Indenture, the
Company shall have the right to redeem the Debentures, (i) on or after
__________, 2003, in whole at any time or in part from time to time, or (ii)
in the event that a Tax Event or an Investment Company Event shall occur and
be continuing, then prior to __________, 2003 in whole (but not in part)
within 90 days following the occurrence of such Tax Event or Investment
Company Event, upon not less than 30 nor more than 60 days' prior written
notice, at a redemption price (the "Redemption Price") equal to the principal
amount of the Debentures to be redeemed, plus any accrued and unpaid
interest, including Additional Interest, if any, thereon to the date of such
redemption (the "Redemption Date"); PROVIDED, HOWEVER, that the Company shall
not redeem the Debentures in part unless all accrued but unpaid interest has
been paid in full on all of the Debentures Outstanding for all quarterly
interest payment periods terminating on or prior to the Redemption Date. If
the Debentures are only partially redeemed pursuant to this Section 3.1(a),
the Debentures will be redeemed pro rata or by lot or by any other method
utilized by the Trustee; provided, that if at the time of redemption the
Debentures are registered as a Global Debenture, the Depositary shall
determine, in accordance with its procedures, the principal amount of such
Debentures held by each holder of Debentures to be redeemed.
(b) For so long as the Trust is the Holder of all Outstanding
Debentures, the proceeds of any redemption provided for in this Section 3.1
shall be used by the Trust to redeem Trust Preferred Securities in accordance
with their terms.
(c) If a partial redemption of the Debentures would result in the
delisting of the Trust Preferred Securities issued by the Trust from any
national securities exchange or other organization on which the Trust
Preferred Securities are then listed, the Company shall not be permitted to
effect such partial redemption and may only redeem the Debentures in whole.
SECTION 3.2 NO SINKING FUND.
The Subordinated Debentures are not entitled to the benefit of any
sinking fund.
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ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 EXTENSION OF INTEREST PAYMENT PERIOD.
The Company shall have the right, at any time and from time to time
during the term of the Debentures, to defer payments of interest by extending
the interest payment period of such Debentures for a period not exceeding 20
consecutive calender quarters (the "Extended Interest Payment Period"),
during which Extended Interest Payment Period no interest shall be due and
payable; provided that no Extended Interest Payment Period may extend beyond
the Maturity Date. To the extent permitted by applicable law, interest, the
payment of which has been deferred because of the extension of the interest
payment period pursuant to this Section 4.1, will bear interest thereon at
the Coupon Rate compounded quarterly for each quarterly interest payment
period of the Extended Interest Payment Period ("Compounded Interest"). At
the end of the Extended Interest Payment Period, the Company shall pay all
interest accrued and unpaid on the Debentures, including any Additional
Interest and Compounded Interest (together, "Deferred Interest") that shall
be payable to the holders of the Debentures in whose names the Debentures are
registered in the Security Register on the first record date after the end of
the Extended Interest Payment Period. Before the termination of any Extended
Interest Payment Period, the Company may further extend such period, provided
that such period together with all such further extensions thereof shall not
exceed 20 consecutive calendar quarters or extend beyond the maturity date of
the Debentures. Upon the termination of any Extended Interest Payment Period
and upon the payment of all Deferred Interest then due, the Company may
commence a new Extended Interest Payment Period, subject to the foregoing
requirements. No interest shall be due and payable during an Extended
Interest Payment Period, except at the end thereof, but the Company may
prepay at any time all or any portion of the interest accrued during an
Extended Interest Payment Period.
SECTION 4.2 NOTICE OF EXTENSION.
(a) If the Property Trustee is the only registered holder of the
Debentures at the time the Company elects an Extended Interest Payment Period,
the Company shall give written notice to the the Administrative Trustees and the
Property Trustee of its election of such Extended Interest Payment Period at
least one Business Day before the earlier of (i) the next succeeding date on
which Distributions on the Trust Securities issued by the Trust are payable, or
(ii) the date the Trust is required to give notice of the record date, or the
date such Distributions are payable, to the New York Stock Exchange or any other
applicable self-regulatory organization or to holders of the Trust Preferred
Securities, but in any event at least one Business Day before such record date.
(b) If the Property Trustee is not the only holder of the Debentures
at the time the Company elects an Extended Interest Payment Period, the Company
shall give the holders of the Debentures and the Trustee written notice of its
election of such Extended Interest Payment Period at least 10 Business Days
before the earlier of (i) the next succeeding Interest Payment
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Date, or (ii) the date the Company is required to give notice of the record
or payment date of such interest payment to any applicable self-regulatory
organization or to holders of the Debentures, but in any event at least two
Business Days before such record date.
(c) The quarterly interest payment period in which any notice is
given pursuant to paragraphs (a) or (b) of this Section 4.2 shall be counted as
one of the 20 consecutive calendar quarters permitted in the maximum Extended
Interest Payment Period permitted under Section 4.1.
ARTICLE V
EXPENSES
SECTION 5.1 PAYMENT OF EXPENSES.
(a) In connection with the offering, sale and issuance of the
Debentures to the Property Trustee and in connection with the sale of the Trust
Securities by the Trust, the Company, in its capacity as borrower with respect
to the Debentures, shall:
(1) pay all costs and expenses relating to the offering, sale
and issuance of the Debentures, including commissions to the underwriters
payable pursuant to the Underwriting Agreement and compensation of the
Trustee under the Indenture in accordance with the provisions of Section
7.6 of the Indenture;
(2) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust,
the offering, sale and issuance of the Trust Securities (including
commissions to the underwriters in connection therewith), the fees and
expenses of the Property Trustee and the Delaware Trustee, the costs and
expenses relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the acquisition, financing,
and disposition of Trust assets); and
(3) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all liabilities, costs
and expenses with respect to such taxes of the Trust.
(b) The obligations of the Company under paragraphs (a)(2) and (a)(3)
of this Section 5.1 are for the benefit of, and shall be enforceable by, any
person to whom any such liabilities, costs, expenses, and taxes are owed (a
"Creditor"), whether or not such Creditor has received notice thereof. Any such
Creditor may enforce such obligations of the Company directly against the
Company, and the Company irrevocably waives any right or remedy to require that
any such Creditor take any action against the Trust or any other person before
proceeding against
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the Company. The Company shall execute such additional agreements as may be
necessary or desirable to give full effect to the provisions of this Section
5.1(b).
SECTION 5.2 PAYMENT UPON RESIGNATION OR REMOVAL.
Upon termination of this First Supplemental Indenture or the
Indenture or the removal or resignation of the Trustee pursuant to Section
7.10 of the Indenture, the Company shall pay to the Trustee all amounts
accrued and owing to the Trustee to the date of such termination, removal or
resignation. Upon termination of the Declaration or the removal or
resignation of the Delaware Trustee or the Property Trustee, as the case may
be, pursuant to Section 5.6 of the Declaration, the Company shall pay to the
Delaware Trustee or Property Trustee, as applicable, all amounts accrued and
owing to such Trustee to the date of such termination, removal or resignation.
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1 FORM OF DEBENTURE.
The Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This Debenture
is a Global Debenture within the meaning of the Indenture hereinafter referred
to and is registered in the name of a Depositary or a nominee of a Depositary.
This Debenture is exchangeable for Debentures registered in the name of a person
other than the Depositary or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Debenture (other than a
transfer of this Debenture as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in limited circumstances.
Unless this Debenture is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to the issuer
or its agent for registration of transfer, exchange or payment, and any
Debenture issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.]
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No._________________
WPS RESOURCES CORPORATION
____% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE ____
WPS Resources Corporation, a Wisconsin corporation (the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ______________, or
registered assigns, the principal sum of $___________ on __________, ____, and
to pay interest on said principal sum from __________, 1998 or from the most
recent interest payment date (each such date, an "Interest Payment Date") to
which interest has been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on March 31, June 30, September 30 and
December 31 of each year commencing ________, 199_, at the rate of ____% per
annum until the principal hereof shall have become due and payable, plus
Additional Interest, if any, and on any overdue principal and (without
duplication and to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the same rate per
annum compounded quarterly. The amount of interest payable on any Interest
Payment Date shall be computed on the basis of a 360-day year of twelve 30-day
months. The amount of interest payable for any period shorter than a full
quarterly interest payment period for which interest is computed will be
computed on the basis of actual number of days elapsed in a 360-day year of
twelve 30-day months. In the event that any date on which interest is payable on
this Debenture is not a Business Day, then payment of interest payable on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay), except that, if
such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this Debenture
(or one or more Predecessor Securities, as defined in said Indenture) is
registered at the close of business on the regular record date for such interest
installment, which shall be the close of business on the business day next
preceding such Interest Payment Date. [IF THE TRUST PREFERRED SECURITIES ARE NO
LONGER REPRESENTED BY A GLOBAL CERTIFICATE OR IF THE DEBENTURES ARE NOT HELD BY
THE PROPERTY TRUSTEE AND ARE NOT REPRESENTED BY A GLOBAL DEBENTURE -- which
shall be the close of business on [insert regular record date selected by the
Company in accordance with Section 2.5].] Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered holders on such regular record date and may be paid to the Person in
whose name this Debenture (or one or more Predecessor Securities) is registered
at the close of business on a special record date to be fixed by the Trustee for
the payment of such defaulted interest, notice of which shall be given to the
registered holders of this series of Debentures not less than 10 days prior to
such special record date, or may be paid at any time in any other lawful manner
not inconsistent with the
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requirements of any securities exchange on which the Debentures may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture. The principal of (and premium, if any) and
the interest on this Debenture shall be payable at the office or agency of
the Trustee maintained for that purpose in any coin or currency of the United
States of America that at the time of payment is legal tender for payment of
public and private debts; PROVIDED, HOWEVER, that payment of interest may be
made at the option of the Company by check mailed to the registered holder at
such address as shall appear in the Security Register or by wire transfer to
an account appropriately designated by such holder. Notwithstanding the
foregoing, so long as the holder of this Debenture is the Property Trustee,
the payment of the principal of and interest on this Debenture will be made
at such place and to such account as may be designated by the Property
Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness of the Company, and this
Debenture is issued subject to the provisions of the Indenture with respect
thereto. Each holder of this Debenture, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided, and (c) appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Each holder
hereof, by his or her acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness of the Company, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by or on
behalf of the Trustee.
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The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated___________________________
WPS RESOURCES CORPORATION
By:______________________
Name:
Title:
Attest:
By:_____________________________
Name:
Title:
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(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures described in
the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY or___________________________
as Trustee as Authenticating Agent
By________________________________ By___________________________
Authorized Signatory Authorized Signatory
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(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debentures of
the Company (herein sometimes referred to as the "Debentures"), specified in
the Indenture, all issued or to be issued in one or more series under and
pursuant to an Indenture dated as of __________, 1998, duly executed and
delivered between the Company and State Street Bank and Trust Company, as
Trustee (the "Trustee"), as supplemented by the First Supplemented Indenture
dated as of __________, 1998, between the Company and the Trustee (the
Indenture as so supplemented, the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the holders of the Debentures. By
the terms of the Indenture, the Debentures are issuable in series that may
vary as to amount, date of maturity, rate of interest and in other respects
as provided in the Indenture. This series of Debentures is limited in
aggregate principal amount as specified in said First Supplemental Indenture.
Subject to the provisions of Article III of the Indenture, the
Company has the right to redeem this Debenture (i) on or after __________,
2003, in whole at any time or in part from time to time, or (ii) in the event
that a Tax Event or Investment Company Event (as defined in the First
Supplemental Indenture) shall occur and be continuing, then prior to
__________, 2003, in whole (but not in part) within 90 days following the
occurrence of such Tax Event or Investment Company Event upon not less than
30 nor more than 60 days' prior written notice, at a redemption price (the
"Redemption Price"), equal to the principal amount of the Debentures to be
redeemed plus any accrued and unpaid interest, including Additional Interest,
if any, thereon to the date of such redemption (the "Redemption Date");
PROVIDED, HOWEVER, that the Company shall not redeem the Debentures in part
unless all accrued but unpaid interest has been paid in full on all of the
Debentures for all quarterly interest payment periods terminating on or prior
to the Redemption Date.
If the Debentures are only partially redeemed by the Company, the
Debentures will be redeemed pro rata or by lot or by any other method
utilized by the Trustee; provided that if, at the time of redemption, the
Debentures are registered as a Global Debenture, the Depositary shall
determine the principal amount of such Debentures held by each holder to be
redeemed in accordance with its procedures.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will
be issued in the name of the holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall
have occurred and be continuing, the principal of all of the Debentures may
be declared, and upon such declaration shall become immediately due and
payable, in the manner, with the effect and subject to the conditions
provided in the Indenture.
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The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the
time Outstanding, as defined in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the
holders of the Debentures; PROVIDED, HOWEVER, that no such supplemental
indenture shall (i) extend the fixed maturity of any Debentures of any
series, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any premium payable upon
the redemption thereof, without the consent of the holder of each Debenture
so affected, or (ii) reduce the aforesaid percentage of Debentures, the
holders of which are required to consent to any such supplemental indenture,
without the consent of the holders of each Debenture then Outstanding and
affected thereby. The Indenture also contains provisions permitting the
holders of a majority in aggregate principal amount of the Debentures of any
series at the time Outstanding affected thereby, on behalf of all of the
holders of the Debentures of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture, or
established pursuant to the Indenture with respect to such series, and its
consequences, except a default in the payment of the principal of or premium,
if any, or interest on any of the Debentures of such series. Any such consent
or waiver by the registered holder of this Debenture (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such holder
and upon all future holders and owners of this Debenture and of any Debenture
issued in exchange herefor or in place hereof (whether by registration of
transfer or otherwise), irrespective of whether or not any notation of such
consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and at
the rate and in the money herein prescribed.
The Company shall have the right at any time during the term of the
Debentures and from time to time to extend the interest payment period of
such Debentures for up to 20 consecutive calendar quarters (an "Extended
Interest Payment Period"), at the end of which period the Company shall pay
all interest then accrued and unpaid (together with interest thereon at the
rate specified for the Debentures to the extent that payment of such interest
is enforceable under applicable law); provided that no Extended Interest
Payment Date may extend beyond the maturity date of the Debentures. Before
the termination of any such Extended Interest Payment Period, the Company may
further extend such Extended Interest Payment Period, provided that such
Extended Interest Payment Period together with all such further extensions
thereof shall not exceed 20 consecutive calendar quarters. At the
termination of any such Extended Interest Payment Period and upon the payment
of all accrued and unpaid interest and any additional amounts then due, the
Company may commence a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered holder
hereof on the Security Register of the
15
Company, upon surrender of this Debenture for registration of transfer at the
Corporate Trust Office of the Trustee or such other location designated by
the Company pursuant to the Indenture accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee
duly executed by the registered holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Debentures of authorized
denominations and for the same aggregate principal amount and series will be
issued to the designated transferee or transferees. No service charge will be
made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and the Security
Registrar may deem and treat the registered holder hereof as the absolute
owner hereof (whether or not this Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone
other than the Security Registrar) for the purpose of receiving payment of or
on account of the principal hereof and premium, if any, and interest due
hereon and for all other purposes, and neither the Company nor the Trustee
nor any paying agent nor any Security Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, shareholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
The Debentures of this series are issuable only in registered form
without coupons in denominations of $25 and any integral multiple thereof.
[This Global Debenture is exchangeable for Debentures in definitive form only
under certain limited circumstances set forth in the Indenture. Debentures of
this series so issued are issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof.] As provided in the
Indenture and subject to certain limitations herein and therein set forth,
Debentures of this series so issued are exchangeable for a like aggregate
principal amount of Debentures of this series of a different authorized
denomination, as requested by the holder surrendering the same.
All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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ARTICLE VII
COVENANT TO LIST ON EXCHANGE
SECTION 7.1 LISTING ON EXCHANGE.
If the Debentures are to be issued as a Global Security in
connection with the distribution of the Debentures to the Holders of the
Trust Preferred Securities issued by the Trust upon the dissolution of the
Trust, the Company will use its best efforts to list such Debentures on the
New York Stock Exchange or on such other exchange on which the Trust
Preferred Securities are then listed.
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1 ORIGINAL ISSUE OF DEBENTURES.
Debentures in the aggregate principal amount of $51,500,000 may,
upon execution of this First Supplemental Indenture, be executed by the
Company and delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver said Debentures to or upon the
written order of the Company, signed by its Chairman, President, or any Vice
President and its Treasurer or an Assistant Treasurer, without any further
action by the Company.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 RATIFICATION OF INDENTURE.
The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner
and to the extent herein and therein provided.
SECTION 9.2 TRUSTEE NOT RESPONSIBLE FOR RECITALS.
The recitals herein contained are made by the Company and not by
the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or
sufficiency of this First Supplemental Indenture.
SECTION 9.3 GOVERNING LAW.
This First Supplemental Indenture and each Debenture shall be
deemed to be a contract made under the internal laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of
said State.
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SECTION 9.4 SEPARABILITY.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Debentures shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
First Supplemental Indenture or of the Debentures, but this First
Supplemental Indenture and the Debentures shall be construed as if such
invalid or illegal or unenforceable provision had never been contained herein
or therein.
SECTION 9.5 COUNTERPARTS.
This First Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed on the date or dates indicated in
the acknowledgments and as of the day and year first above written.
WPS RESOURCES CORPORATION
By:__________________________
Name:________________________
Title:_______________________
COMPANY STATE STREET BANK AND TRUST COMPANY
not in its individual capacity
but solely as Trustee
By:__________________________
Name:
Title:
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STATE OF WISCONSIN )
) SS:
COUNTY OF BROWN )
On the _____ day of _______, 1998, before me personally came
________________ to me known, who, being by me duly sworn, did depose and say
that he is the ______________________ of WPS RESOURCES CORPORATION, one of
the corporations described in and which executed the above instrument, and
that he signed his name thereto by authority of the Board of Directors of
said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal
of office this _____ day of _______, 1998.
_____________________________
Notary Public
COMMONWEALTH OF MASSACHUSETTS )
) SS:
COUNTY OF ___________________ )
On the _____ day of _______, 1998, before me personally came
_______________________ to me known, who, being by me duly sworn, did depose
and say he is _________________________ of STATE STREET BANK AND TRUST
COMPANY, one of the corporations described in and which executed the above
instrument, and that he signed his name thereto by authority of the Board of
Directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal
of office this _____ day of _______, 1998.
_____________________________
Notary Public
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