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Exhibit 4.2
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SIXTH SUPPLEMENTAL
INDENTURE
FROM
WISCONSIN PUBLIC
SERVICE CORPORATION
TO
U.S. BANK NATIONAL
ASSOCIATION
(SUCCESSOR TO FIRSTAR
BANK, NATIONAL ASSOCIATION AND
FIRSTAR BANK,
MILWAUKEE, N.A., NATIONAL ASSOCIATION)
TRUSTEE
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Dated as of December 1,
2006
SUPPLEMENTAL TO
INDENTURE
Dated as of December
1, 1998
Senior Debt
Securities
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This SIXTH SUPPLEMENTAL INDENTURE is made as
of the 1st day of December, 2006, by and between WISCONSIN
PUBLIC SERVICE CORPORATION, a corporation duly organized and
existing under the laws of the State of Wisconsin (the "Company"),
and U.S. BANK NATIONAL ASSOCIATION (successor to Firstar Bank,
National Association and Firstar Bank Milwaukee, National
Association), a national banking association duly organized and
existing under the laws of the United States, as trustee (the
"Trustee").
RECITALS OF THE
COMPANY:
WITNESSETH: that
The Company has heretofore executed and
delivered to the Trustee the Indenture (hereinafter referred to as
the "Indenture"), made as of December 1, 1998; and
Section 3.01 of the Indenture provides that
Securities may be issued from time to time in series pursuant to a
supplemental indenture specifying the terms of each series of
Securities; and
The Company desires to establish a series of
Securities to be designated "Senior Notes, Series Due
February 1, 2013" (the "Securities of the Series due
February 1, 2013"); and
Section 10.01 of the Indenture provides that
the Company and the Trustee may enter into indentures supplemental
thereto for the purposes, among others, of establishing the form or
terms of Securities of any series and adding to the covenants of
the Company; and
The Company and the Village of Weston,
Wisconsin (the "Village") have entered into a Third Amendment to
Loan Agreement (as hereinafter defined) pursuant to which the
Company has agreed to issue the Securities of the Series due
February 1, 2013 subject to certain terms and conditions;
and
The execution and delivery of this Sixth
Supplemental Indenture (herein, this "Supplemental Indenture") has
been duly authorized by a Board Resolution.
NOW, THEREFORE, this Supplemental
Indenture
WITNESSETH, that, in order to set forth the
terms and conditions upon which Securities of the Series due
February 1, 2013 are, and are to be, authenticated, issued and
delivered, and in consideration of the sum of one dollar duly paid
to it by the Trustee at the execution of this Supplemental
Indenture, the receipt whereof is hereby acknowledged, the Company
covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective Holders from time to time
of such Securities as follows:
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ARTICLE
I
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.1
This Supplemental Indenture constitutes an
integral part of the Indenture.
SECTION 1.2
For all purposes of this Supplemental
Indenture:
(a) The following terms shall, for all purposes of this
Supplemental Indenture, have the following meanings unless the
context otherwise requires:
The term "1954 Code" means the Internal
Revenue Code of 1954 as in effect immediately prior to the
effective date of the Tax Reform Act of 1986.
The term "Projects" means those of the
facilities described in Exhibit A to the Third Amendment to Loan
Agreement which are refinanced with the Series 2006 Village
Bonds.
The term "Series 2006 Village Bonds" means
the Village of Weston, Wisconsin Pollution Control Refunding
Revenue Bonds, Series 2006 (Wisconsin Public Service Corporation
Projects), to be authenticated and delivered under and pursuant to
the 2006 Village Indenture in the principal amount of
$22,000,000.
The term "Third Amendment to Loan Agreement"
means the Third Amendment to Loan Agreement, dated as of
December 1, 2006, between the Village and the
Company.
The term "Village" means the Village of
Weston, a municipal corporation and political subdivision duly
organized and existing under the laws of the State of Wisconsin
(and which is successor to the Town of Weston), located within the
County of Marathon of the State of Wisconsin.
The term "2006 Village Indenture" means the
Indenture of Trust, dated as of December 1, 2006, between the
Village and U.S. Bank National Association, as 2006 Village
Indenture Trustee.
The term "2006 Village Indenture Trustee"
means the person, corporation or banking association acting as
trustee from time to time under the 2006 Village
Indenture.
The term "2006 Village Revenue Agreement"
means the Loan Agreement, dated as of April 1, 1981, between the
Village and the Company, as previously amended and as amended by
the Third Amendment to Loan Agreement.
(b) Capitalized terms used but not otherwise defined herein
shall have the respective meanings assigned to such terms in the
Indenture;
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(c) All references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and
Sections of this Supplemental Indenture; and
(d) The terms "hereof," "herein," "hereby," "hereto,"
"hereunder," and "herewith" refer to this Supplemental
Indenture.
ARTICLE
II
THE
SECURITIES
There is hereby established a series of
Securities pursuant to Section 3.01 of the Indenture as
follows:
(a) The title of the Securities of the series hereby
established is "Senior Notes, Series due February 1,
2013."
(b) The aggregate principal amount of the Securities of the
Series due February 1, 2013 which may be authenticated and
delivered under the 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 Sections
2.05, 3.04, 3.05, 3.06, 10.06 or 12.07 of the Indenture) shall be
limited to Twenty-Two Million
Dollars ($22,000,000).
(c) The Securities of the Series due February 1, 2013 are
to be issued in registered form without coupons, in denominations
of $5,000 and integral multiples thereof, and shall be
substantially in the form of Appendix I attached
hereto, which is incorporated herein by reference.
(d) The Stated Maturity of the Securities of the Series due
February 1, 2013 is February 1, 2013.
(e) The Securities of the Series due February 1, 2013
shall bear interest at the rate of 3.95% per annum
and such interest shall accrue from
December 14, 2006 (or from the most recent Interest Payment Date to
which interest on the Securities of the Series due February 1,
2013 has been paid or provided for). The Interest Payment Dates for
the Securities of the Series due February 1, 2013 shall be
February 1 and August 1 in each year commencing
February 1, 2007, and the Regular Record Date for the interest
payable on any Interest Payment Date shall be the fifteenth day
(whether or not a Business Day) preceding such Interest Payment
Date.
(f) Principal of and interest on the Securities of the Series
due February 1, 2013 shall be payable in Dollars to the 2006
Village Indenture Trustee at its address appearing on the books for
registration and registration of transfer at the Corporate Trust
Office of the Trustee. The Securities of the Series due February 1,
2013 shall be non-transferable except as may be required to effect
a transfer to any successor 2006 Village Indenture
Trustee.
(g) The Securities of the Series due February 1, 2013 shall be
subject to redemption at any time at the option and direction of
the Company, as a whole and not in part, at a Redemption Price
equal to 100% of the principal amount thereof, together with
accrued interest to the Redemption Date, if any one or more of the
following events shall have occurred:
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(i)
Unit 3 ("Unit 3") at the
Company’s coal-fired power plant located in Marathon County,
Wisconsin and known as the Weston Power Plant shall have been
damaged or destroyed to such an extent that, in the opinion of the
Board of Directors of the Company, it cannot reasonably be restored
within six months to the condition thereof immediately preceding
such damage or destruction;
(ii)
Unit 3 shall have been damaged or
destroyed to such an extent that normal operation of Unit 3 is
thereby prevented for a period of at least six months;
(iii)
title to, or temporary use of, all
or substantially all of Unit 3 shall have been taken under the
power of eminent domain or sold under the threat of such taking, or
there shall be a taking of any part of the Projects or other
property interest of the Company in connection with which Unit 3 is
used as results or is likely to result in the inability to carry on
normal operation of Unit 3 for a period of at least six
months;
(iv)
the 2006 Village Revenue Agreement
shall become void or unenforceable or impossible of performance in
accordance with the intent and purpose of the parties as expressed
therein, or unreasonable burdens or excessive liabilities related
to the 2006 Village Revenue Agreement or the Projects shall be
imposed on the Village or the Company as a result of any change in
the Constitution of the State of Wisconsin or the Constitution of
the United States of America or as a result of any legislative,
administrative or judicial action;
(v)
a final order or decree of any
court or administrative body shall require that a substantial part
of the operations at Unit 3 cease or be terminated to such extent
that normal operation of Unit 3 will be, or is likely to be,
prevented for a period of at least six months;
(vi)
changes, which the Company cannot
reasonably control, in the economic availability of materials,
fuel, supplies, labor, equipment or other properties or things
necessary for the efficient operation of Unit 3 shall have occurred
which, in the judgment of the Board of Directors of the Company,
render the continued operation of Unit 3 uneconomic; or
(vii)
changes in circumstances,
including, but not limited to, changes in pollution control
requirements, shall have occurred such that the Board of Directors
of the Company shall determine that use of the Projects is no
longer required or desirable.
Any such redemption shall be on a date which
is within one year following the occurrence of one of the events
listed above permitting the exercise of the option.
(h) The Company shall call for redemption all of the Securities
of the Series due February 1, 2013 then Outstanding, and shall on
the Redemption Date therefor redeem the same at a price equal to
100% of the principal amount thereof, together with accrued
interest to the Redemption Date, in the event that the Company is
notified by the 2006 Village Indenture Trustee that (i) an
event of default has occurred and is continuing under Section
9.01(e) of the 2006 Village Indenture, and (ii) the 2006
Village Indenture Trustee has declared the principal of all 2006
Village Bonds then outstanding immediately due and payable pursuant
to Section 9.02
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of the 2006 Village Indenture. The Redemption
Date shall be the accelerated maturity date of the 2006 Village
Bonds; provided, however, that such requirement of redemption shall
be deemed to be waived if prior to the date fixed for such
redemption of the Securities of the Series due February 1, 2013,
the acceleration of the 2006 Village Bonds is waived or
annulled.
(i) The Company shall call for redemption all (or part if, in
the opinion of nationally recognized bond counsel, a corresponding
partial redemption of the 2006 Village Bonds will preserve the
exclusion from gross income for Federal income tax purposes of
interest on the remaining 2006 Village Bonds) of the Securities of
the Series due February 1, 2013 then Outstanding, and shall on the
Redemption Date therefor redeem the same at a price equal to 100%
of the principal amount thereof, together with accrued interest
thereon to the Redemption Date, in the event that it is finally
determined by the Internal Revenue Service or a court of competent
jurisdiction that, as a result of a failure by the Company to
observe any covenant, agreement or representation in the 2006
Village Revenue Agreement, the interest payable on the 2006 Village
Bonds is includable for Federal income tax purposes in the gross
income of any owner of a 2006 Village Bond (other than an owner who
is a "substantial user" or a "related person" within the meaning of
Section 103(b)(13) of the 1954 Code and the applicable regulations
thereunder). Any such determination shall not be considered final
for this purpose unless the Company has been given notice thereof,
and if it so desires, has been afforded the opportunity, at its
expense, to contest the same, either directly or in the name of any
owner of 2006 Village Bonds, and until the conclusion of any
appellate review, if sought. The Redemption Date shall be the
120 th
day after the date such determination becomes
final or on such earlier date as the Company may
designate.
(j) In
the event that the Company shall desire to exercise its right, or
is required by the provisions of this Article II, to redeem and pay
all or any part of the Securities of the Series due February 1,
2013, it shall, except as modified herein, comply with the terms
and conditions of Article XII of the Indenture with regard to the
redemption of Securities of any series issued hereunder, and such
redemption shall be made under and subject to the terms and
provisions of said Article XII and in the manner and with the
effect stated therein; provided, however, (i) payments in
redemption of Securities of the Series due February 1, 2013 shall
be made directly by the Company to the Holder of the Securities
entitled thereto; and (ii) the Company may avail itself of the
credits described in Article III hereof. The Company shall not
exercise any option to redeem on any date all or any part of the
Securities of the Series due February 1, 2013 unless it shall give
a valid direction under the 2006 Village Indenture for the
redemption on such date of an equal amount of 2006 Village Bonds.
Notice of each such optional redemption shall be hand delivered or
mailed, by certified mail, with return receipt requested, at least
thirty (30) days prior to the Redemption Date, to the Holder of the
Securities which are to be redeemed at its address appearing on the
books for registration and registration of transfer at the
Corporate Trust Office of the Trustee. Such delivery or mailing
(but not the receipt thereof or the return of the receipt so
requested) shall be a condition to the redemption of the
Securities. All Securities so redeemed shall forthwith be delivered
to the Trustee and canceled, but only when the principal, premium,
if any, and accrued interest thereon is paid in full.
(k) Securities of the Series due February 1, 2013 may be
redeemed in part, but the portion of any such Security so redeemed
in part shall be Five Thousand Dollars ($5,000) or
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an integral multiple thereof. In case any
Security shall be redeemed in part only, payment of the redemption
price of such portion of the Security of the Series due February 1,
2013 shall be made by the Company (or Trustee, as the case may be)
to the Holder thereof, at its address appearing on the books for
registration and registration of transfer of Securities of the
Series due February 1, 2013 at the Corporate Trust Office of the
Trustee, without presentation or surrender thereof, provided there
is on file with the Company and Trustee (and not theretofore
rescinded by written notice from such Holder to the Company and
Trustee) a written commitment from such Holder to the effect that
(i) payments will be so made, and (ii) such Holder will make
notations on such Security or a paper attached thereto of the
portion thereof so redeemed. Prior to any transfer by the Holder of
any Security of the Series due February 1, 2013, the same shall be
surrendered to the Company or Trustee for appropriate notation
thereon of, or in exchange for a new Security or Securities for,
the unredeemed balance of the principal amount thereof. The Trustee
shall not be under any duty to determine that any of the notations
mentioned herein have been made or be liable in any manner with
respect thereto.
(l) In
the event that an interest payment or maturity date or a date fixed
for redemption of any Security of the Series due February 1, 2013
shall be a Saturday, Sunday or a legal holiday or a day on which
banking institutions in the city of location of the registered
address of the Holder are authorized by law to close, then payment
of interest or principal (and premium, if any) need not be made on
such date, but may be made on the next succeeding Business Day not
a Saturday, Sunday or a legal holiday or a day upon which banking
institutions in the city of location of the registered address of
the Holder are authorized by law to close, with the same force and
effect as if made on the date of maturity, interest payment date,
or the date fixed for redemption, and no interest shall accrue for
the period after such date.
(m) The Securities of the Series due February 1, 2013
shall not be subject to any sinking fund and shall not be
redeemable at the option of the Holder thereof.
(n) The Related Series of Collateral Bonds being delivered to
the Trustee in connection with the issuance of the Securities of
the Series due February 1, 2013 is the Company’s First
Mortgage Bonds, Collateral Series F.
Such Securities of the Series due February 1,
2013 shall be initially authenticated and delivered upon delivery
to the Trustee of the documents required by Section 3.01 of the
Indenture.
ARTICLE
III
PAYMENTS AND CREDITS
The Company hereby covenants that it will
duly and punctually pay to the Holder of Securities of the Series
due February 1, 2013, issued under and secured by the Indenture and
this Supplemental Indenture the principal of and interest on said
Securities at the dates and place and in the manner mentioned in
such Securities. Provided, however:
Payments of the principal of, premium, if
any, and interest on the Securities of the Series due February 1,
2013 may be made with moneys in the Bond Fund created under the
2006 Village Indenture, as provided in the 2006 Village Revenue
Agreement and the 2006 Village Indenture. Money in said Bond Fund
or
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earnings on investments which have been set
aside by the 2006 Village Indenture Trustee at the request of the
Company for payment of the principal of (whether at maturity or
upon redemption), premium, if any, or interest on any Series 2006
Village Bonds shall be credited against the obligation of the
Company to pay the principal of, premium, if any, or interest on
Securities of the Series due February 1, 2013. The principal
amount of any Series 2006 Village Bond or Bonds acquired by the
Company and delivered to the Series 2006 Village Indenture Trustee
for cancellation, or acquired by the 2006 Village Indenture Trustee
and canceled, shall be credited against the obligation of the
Company to pay the principal of the Securities of the Series due
February 1, 2013.
As the principal of, premium, if any, and
interest on the Securities of the Series due February 1, 2013 are
thereby paid or deemed paid in full, and upon their receipt by the
Company, such Securities shall be delivered to the Trustee for
cancellation. The Company shall promptly inform the Trustee of all
payments made and credits availed of with respect to its
obligations on Securities of the Series due February 1, 2013. The
Trustee shall not be required to recognize any payment made or
credit availed of with respect to any Security of the Series due
February 1, 2013 unless it has received (a) the Security for
cancellation by it, or (b) a certificate of the 2006 Village
Indenture Trustee specifying the amount of such payment or credit
and the number of the Securities of the Series due February 1, 2013
with respect to which the payment or credit was applied. In the
absence of receipt by the Trustee of the Security, any such
certificate shall be controlling and conclusive.
ARTICLE
IV
TRANSFER OF COLLATERAL
BONDS
The Company hereby issues, delivers and
transfers to the Trustee in connection with the issuance of the
Securities of the Series due February 1, 2013, Twenty-Two Million
Dollars ($22,000,000) aggregate principal amount of a related
issue of Collateral Bonds of the Company designated "First Mortgage
Bonds, Collateral Series F" (the "Collateral Bonds"), which
has been fully registered in the name of the Trustee in such
capacity, to be held in trust for the benefit of the Holders from
time to time of the Securities of the Series due February 1, 2013
and, if such transfer does not constitute a sale of the Collateral
Bonds to the Trustee, the Company hereby grants a security interest
in the Collateral Bonds for the benefit of such Holders, in each
case as security for any and all obligations of the Company under
the Indenture, this Supplemental Indenture and the Securities of
the Series due February 1, 2013, including but not limited to (1)
the full and prompt payment of the interest on, principal of, and
premium, if any, on such Securities of the Series due February 1,
2013 when and as the same shall become due and payable in
accordance with the terms and provisions of the Indenture and this
Supplemental Indenture and such Securities of the Series due
February 1, 2013, either at the Stated Maturity thereof, upon
acceleration of the maturity thereof or upon redemption, and (2)
the full and prompt payment of any interest on such Securities of
the Series due February 1, 2013 when and as the same shall become
due and payable in accordance with the terms and provisions of the
Indenture and this Supplemental Indenture and such Securities of
the Series due February 1, 2013. The Trustee shall enforce all of
its rights under the First Mortgage Indenture as a holder of the
Collateral Bonds transferred to it as provided in this
Article IV for the benefit of the Holders of the Securities of
the Series due February 1, 2013 and the proceeds of the
enforcement
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of such rights shall be applied by the
Trustee to satisfy the Company’s obligations under the
Indenture, this Supplemental Indenture, and such Securities of the
Series due February 1, 2013.
The Company shall make payments of the
principal of, and premium, if any, or interest on the Collateral
Bonds to the Trustee, which payments shall be applied by the
Trustee to satisfaction of all obligations then due on the
Securities of the Series due February 1, 2013.
The Collateral Bonds shall not be sold or
transferred by the Trustee until the earlier of the Release Date or
the prior retirement of the Securities of the Series due February
1, 2013 through redemption, repurchase or otherwise. Without
limiting the generality of the foregoing, in no event shall the
Collateral Bonds be sold or become the absolute property of any
person in violation of the applicable provisions of Section
201.04(2) of the Wisconsin Statutes or any successor statutory
provision. The "Release Date" shall be the date that all First
Mortgage Bonds of the Company issued and outstanding under the
First Mortgage Indenture, other than the Collateral Bonds, have
been retired (at, before or after the maturity thereof) through
payment, redemption or otherwise, provided that no Default or Event
of Default has occurred and, at such time, is continuing under the
Indenture.
A copy of the form of Collateral Bond is
attached hereto as Appendix II and its terms are hereby
incorporated by reference herein.
ARTICLE
V
MISCELLANEOUS
SECTION 5.1
The Trustee has accepted the amendment of the
Indenture effected by this Supplemental Indenture and agrees to
execute the trust created by the Indenture as hereby amended, but
only upon the terms and conditions set forth in the Indenture,
including the terms and provisions defining and limiting the
liabilities and responsibilities of the Trustee, and without
limiting the generality of the foregoing, the Trustee shall not be
responsible in any manner whatsoever for or with respect of any of
the recitals or statements contained herein, all of which recitals
or statements are made solely by the Company, or for or with
respect to (a) the validity or sufficiency of this Supplemental
Indenture or any of the terms or provisions hereof, (b) the proper
authorization hereof by the Company by corporate action or
otherwise, and (c) the due execution hereof by the
Company.
SECTION 5.2
This Supplemental Indenture shall be
construed in connection with and as a part of the Ind
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