PEOPLES ENERGY CORPORATION AND INTEGRYS ENERGY GROUP, INC. TO THE BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee FIRST SUPPLEMENTAL INDENTURE Dated as of ______________________, 2007
PEOPLES
ENERGY CORPORATION
AND
INTEGRYS
ENERGY GROUP, INC.
TO
THE
BANK OF
NEW YORK TRUST COMPANY, N.A.,
as
Trustee
_____________________________
Dated
as of
______________________, 2007
______________________________
This
First
Supplemental Indenture, dated as of _______________, 2007 (this “First
Supplemental Indenture”),
by and among
Peoples Energy Corporation, an Illinois corporation (“PEC”),
Integrys Energy
Group, Inc., a Wisconsin corporation (“Integrys”),
and The Bank of
New York Trust Company, N.A. (successor to Bank One Trust Company National
Association) (the “Trustee”),
as trustee
under the Original Indenture (defined below).
WITNESSETH
WHEREAS,
PEC entered into
that certain Indenture, dated as of January 18, 2001 (the “Original
Indenture”),
with the
Trustee (as supplemented by this First Supplemental Indenture, the “Indenture”);
WHEREAS,
PEC currently has
issued and Outstanding Securities under the Original Indenture in the principal
amount of $325,000,000 senior unsecured 6.90% notes, due January 15, 2011 (the
“Notes”);
WHEREAS,
pursuant to that
certain Agreement and Plan of Merger dated as of July 8, 2006 (the “Merger
Agreement”),
by and among
PEC, Integrys, and Wedge Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of Integrys (“Wedge”),
PEC and Wedge
have merged, with PEC as the surviving corporation (the “Merger”),
and, as a
result of the Merger, PEC is a wholly-owned subsidiary of Integrys;
WHEREAS,
Integrys desires
to fully and unconditionally guarantee the due and punctual payment obligations
of PEC with respect to the Notes as long as the Notes remain Outstanding;
WHEREAS,
Section 902 of
the Original Indenture provides, among other things, that PEC, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time,
may
enter into an indenture supplemental to the Original Indenture with the consent
of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture;
and
WHEREAS,
the Holders of
the Notes are the only Outstanding Securities affected by the First Supplemental
Indenture, the Holders of not less than a majority in principal amount of the
Notes have consented to the execution of this First Supplemental Indenture,
the
execution of this First Supplemental Indenture is authorized and permitted
by
Section 902 of the Original Indenture, all conditions precedent provided for
in
the Original Indenture relating to the execution of the First Supplemental
Indenture have been complied with, and all things necessary to make this First
Supplemental Indenture a valid agreement of PEC, Integrys, and the Trustee
in
accordance with its terms have been done;
NOW,
THEREFORE,
in consideration
of the foregoing and for other good and valuable consideration, the receipt
of
which is hereby acknowledged, PEC, Integrys, and the Trustee mutually covenant
and agree for the equal and ratable benefit of the Holders as
follows:
ARTICLE
I
INTEGRYS
GUARANTY
Section
101. Capitalized
Terms.
Capitalized terms
used herein without definition shall have the meanings ascribed to them in
the
Original Indenture.
Section
102. Guaranty.
Integrys does
hereby fully and unconditionally guarantee for the benefit of the Holders and
the Trustee (the “Guaranty”)
(a) the due and
punctual payment of the principal of, premium, if any, and interest on, all
the
Notes, whether at Stated Maturity, by declaration of acceleration, call for
redemption or otherwise, the due and punctual payment of interest on overdue
principal of, premium, if any, and interest on all of the Notes, if any, and
the
due and punctual performance of all other obligations of PEC to the Holders
or
the Trustee in accordance with the terms of the Indenture, and (b) in case
of
any extension of time of payment or renewal of any Notes or any such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration, or otherwise.
In
case of the
failure of PEC to punctually make any such payment of principal, premium, if
any, or interest, Integrys hereby agrees to cause any such payment to be made
promptly when and as the same shall become due and payable, whether at Stated
Maturity, by declaration of acceleration, call for redemption or otherwise,
and
as if such payment were made by PEC.
Integrys
hereby
agrees that its obligations under the Guaranty shall be as if it were principal
debtor and not merely surety, and shall be absolute and unconditional,
irrespective of, and shall be unaffected by, any invalidity, irregularity or
unenforceability of any Note or the Indenture, any failure to enforce the
provisions of any Note or the Indenture, or any waiver, modification or
indulgence granted to PEC with respect thereto, by the Holder of any Note or
the
Trustee, or any other circumstance which may otherwise constitute a legal or
equitable discharge of a surety or guarantor; provided, however, that,
notwithstanding the foregoing, no such waiver, modification, or indulgence
shall, without the consent of Integrys, increase the principal amount of a
Note
or the interest rate thereon or increase any premium payable upon redemption
thereof. Integrys hereby waives diligence, presentment, demand of payment,
filing of claims with a court in the event of a merger or bankruptcy of PEC,
any
right to require a proceeding first against PEC, protest or notice with respect
to any Note or the indebtedness evidenced thereby or with respect to any sinking
fund payment required pursuant to the terms of a Note issued under the
Indenture, and all demands whatsoever, and covenants that the Guaranty will
not
be discharged with respect to any Note except by payment in full of the
principal of (and premium, if any) and interest on such Note. The Guaranty
shall
constitute a guaranty of payment and not of collection and shall not be impaired
by the failure to endorse evidence of the Guaranty on any Note.
Integrys
shall be
subrogated to all rights of the Holder of a Note against PEC in respect of
any
amounts paid to such Holder by Integrys pursuant to the provisions of the
Guaranty; provided, however, that Integrys shall not be entitled to enforce,
or
to receive any payments arising out of or based upon, such right of subrogation
until the principal of (and premium, if any) and interest on all Notes have
been
paid in full.
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Section
103. Restrictions on Liens.
After
the date of
the First Supplemental Indenture and so long as any Notes are Outstanding,
Integrys will not pledge, mortgage, hypothecate or grant a security interest
in,
or permit any mortgage, pledge, security interest or other lien upon, any
capital stock of any Integrys Subsidiary now or hereafter directly or indirectly
owned by Integrys to secure any Indebtedness (hereinafter defined), without
making effective provisions whereby the Outstanding Notes shall be (so long
as
such other Indebtedness shall be so secured) equally and ratably secured with
any and all such other Indebtedness and any other indebtedness similarly
entitled to be equally and ratably secured; provided, however, that this
restriction shall not apply to nor prevent the creation or existence of (i)
any
mortgage, pledge, security interest, lien or encumbrance upon any such capital
stock (A) created at the time of the acquisition of such capital stock by
Integrys or within one year after such time to secure all or a portion of the
purchase price for such capital stock or (B) existing thereon at the time of
the
acquisition thereof by Integrys (whether or not the obligations secured thereby
are assumed by Integrys), or (ii) any extension, renewal or refunding of any
mortgage, pledge, security interest, lien or encumbrance described in clause
(i)
above on capital stock of any Integrys Subsidiary theretofore subject thereto
(or substantially the same capital stock) or any portion thereof.
For
purposes of
this Section 103, “Indebtedness”
means
all
indebtedness, whether or not represented by bonds, debentures, notes or other
securities, created or assumed by Integrys or any Integrys Subsidiary for the
repayment of money borrowed. All indebtedness for money borrowed secured by
a
lien upon property owned by Integrys or any Integrys Subsidiary and upon which
indebtedness for money borrowed Integrys or such Integrys Subsidiary customarily
pays interest, although Integrys or such Integrys Subsidiary has not assumed
or
become liable for the payment of such indebtedness for money borrowed, shall
for
purposes of this Section 103 be deemed to be indebtedness of Integrys or such
Integrys Subsidiary. All indebtedness for money borrowed of others guaranteed
as
to payment of principal by Integrys or any Integrys Subsidiary or in effect
guaranteed by Integrys or such Integrys Subsidiary through a contingent
agreement to purchase such indebtedness for money borrowed shall be deemed
for
purposes of this Section 103 to be Indebtedness of Integrys or such
Integrys Subsidiary, but no other contingent obligation of Integrys or any
Integrys Subsidiary in respect of indebtedness for money borrowed or other
obligations incurred by others shall for purposes of this Section 103 be deemed
to be Indebtedness of Integrys or such Integrys Subsidiary.
In
case Integrys or
any Integrys Subsidiary shall propose to pledge, mortgage, hypothecate or grant
a security interest in any capital stock of any Integrys Subsidiary owned by
Integrys or such Integrys Subsidiary to secure any Indebtedness, other than
as
permitted by clauses (i) and (ii) in the second preceding paragraph, Integrys
will prior thereto give written notice thereof to the Trustee, and Integrys
will
prior to or simultaneously with such pledge, mortgage, hypothecation or grant
of
security interest, by supplemental indenture executed to the Trustee (or to
the
extent legally necessary to another trustee or an additional or separate
trustee), in form satisfactory to the Trustee, effectively secure (for so long
as other Indebtedness shall be secured) all the Notes equally and ratably with
such Indebtedness and with any other indebtedness for money borrowed similarly
entitled to be equally and ratably secured.
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For
purposes of
this Section 103, “Integrys
Subsidiary”
means
(i) any corporation of which more than 50% of the outstanding securities
having ordinary voting power shall at the time be owned or controlled, directly
or indirectly, by Integrys or by one or more other Integrys Subsidiaries or
by
Integrys and one or more other Integrys Subsidiaries, or (ii) any
partnership, association, joint venture or similar business organization of
which more than 50% of the ownership interests having ordinary voting power
shall at the time be so owned or controlled.
Section
104. Integrys
May
Consolidate.
(1) Nothing
contained
in the Original Indenture, this First Supplemental Indenture or any of the
Notes
shall prevent any consolidation or merger of Integrys with or into any other
Person or Persons (whether or not affiliated with Integrys), or successive
consolidations or mergers in which Integrys or its successor or successors
shall
be a party or parties, or shall prevent any conveyance or transfer of the
properties and assets of Integrys as an entirety or substantially as an entirety
to any other Person (whether or not affiliated with Integrys) lawfully entitled
to acquire the same; provided,
however,
and Integrys
hereby covenants and agrees, that upon any such consolidation, merger,
conveyance or transfer, (i) the obligations of Integrys as set forth in Section
102 herein shall be expressly assumed by a supplemental indenture, in form
reasonably satisfactory to the Trustee, executed and delivered to the Trustee
by
the Person (if other than Integrys) formed by such consolidation, or into which
Integrys shall have been merged, or by the Person which shall have acquired
such
properties and assets and (ii) Integrys shall deliver to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance or transfer and, if a supplemental indenture
is required in connection with such transaction, such supplemental indenture,
comply with this Section and that all conditions precedent herein provided
for
relating to such transaction have been fulfilled.
(2) Upon
any
consolidation of Integrys with, or merger of Integrys into, any other Person
or
any conveyance or transfer of the properties and assets of Integrys as an
entirety or substantially as an entirety in accordance with this Section, the
successor Person formed by such consolidation or into which Integrys is merged
or to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, Integrys under
this
First Supplemental Indenture and the Original Indenture with the same effect
as
if such successor Person had been named as Integrys herein, and thereafter
the
predecessor Person shall be relieved of all obligations and covenants under
this
First Supplemental Indenture, the Original Indenture and the Notes.
Section
105. Sole
Benefit.
This
Article I
shall be for the sole benefit of the Notes and not for the benefit of any future
series of Securities Outstanding under the Indenture unless Integrys agrees
otherwise.
ARTICLE
II
AMENDMENTS
AND OTHER TERMS
Section
201. Miscellaneous
Amendments.
4
(a) Section
101 of the
Original Indenture is hereby amended by adding the following definition:
“‘Integrys’
means Integrys
Energy Group, Inc., a Wisconsin corporation.”
(b) Each
of the
following definitions set forth in Section 101 of the Original Indenture are
hereby amended in their entirety to read as follows:
“‘Board
of
Directors’
means the board of
directors of PEC or Integrys (as applicable), or any duly authorized committee
thereof.”
“‘Board
Resolution’ means
a copy of a
resolution certified by the Corporate Secretary or an Assistant Corporate
Secretary of PEC or Integrys (as applicable), 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.”
“‘Officers’
Certificate’
means a
certificate signed by the Chairman of the Board, the President, the Chief
Financial Officer or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Corporate Secretary
or
an Assistant Corporate Secretary, of PEC or Integrys (as applicable), that
complies with the requirements of Section 314(c) of the Trust Indenture Act
and
is delivered to the Trustee.”
“‘Opinion
of
Counsel’
means a written
opinion of counsel, who may be counsel for PEC or Integrys (as applicable),
and
who shall be acceptable to the Trustee, that complies with the requirements
of
Section 314(c) of the Trust Indenture Act and Section 102 of this
Indenture.”
“‘Request’
or
‘Order’
means a written
request or order signed in the name of PEC or Integrys (as applicable), by
its
Chairman of the Board, its Vice Chairman, its President or a Vice President,
and
by its Treasurer, an Assistant Treasurer, its Controller, an Assistant
Controller, its Corporate Secretary or an Assistant Corporate Secretary, and
delivered to the Trustee.”
(c) Section
105 of the
Original Indenture is hereby amended by deleting “or” after clause (1) thereof,
by deleting the period after clause (2) thereof and inserting “, or” in its
place and by adding the following clause (3):
“Integrys
by the
Trustee or by any Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to Integrys, addressed to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇,
▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇,
Attention: Secretary, or at any other address previously furnished in writing
to
the Trustee by Integrys.”
(d) Section
108 of the
Original Indenture is hereby amended by adding the following after the word
“control”:
“Integrys
will
comply with Sections 701, 704, and 1009(a) hereof to the extent required by
the
Trust Indenture Act.”
(e) Section
501(4) of
the Original Indenture is hereby amended to read as follows:
“(4)
a default in
the performance, or breach, of any covenant of PEC or Integrys in this Indenture
(other than a covenant or warranty a default in performance of which or breach
of which is elsewhere in this Section specifically dealt with or which has
expressly been included in or pursuant to this Indenture solely for the benefit
of one or more series of Securities other than that series), and continuance
of
such default or breach for a period of 90 days after there has been given,
by
registered or certified mail, to PEC or Integrys, as applicable, by the Trustee,
or to PEC or Integrys, as applicable, and the Trustee by the Holders of at
least
33% in principal amount of the Outstanding Securities of that 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; or”
(f) Section
704 of the
Original Indenture is hereby amended to read as follows:
“(1)
PEC, pursuant
to Section 314(a) of the Trust Indenture Act, shall file with the Trustee,
within 15 days after PEC is required to file the same with the Commission,
copies of the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which PEC may be required
to
file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended; or, if PEC is not required to
file
information, documents or reports pursuant to either of said sections, then
PEC
shall file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission under the Trust
Indenture Act, such of the supplementary and periodic information, documents
and
reports which may be required pursuant to Section 13 of the Securities Exchange
Act of 1934, as amended, in respect of a security listed and registered on
a
national securities exchange as may be prescribed from time to time in such
rules and regulations.
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(2)
Integrys,
pursuant to Section 314(a) of the Trust Indenture Act, shall file with the
Trustee, within 15 days after Integrys is required to file the same with the
Commission, copies of the annual reports and of the information, documents
and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which
Integrys may be required to file with the Commission pursuant to Section 13
or
Section 15(d) of the Securities Exchange Act of 1934, as amended; or, if
Integrys is not required to file information, documents or reports pursuant
to
either of said sections, then Integrys shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended, in respect of a security listed
and
registered on a national securities exchange as may be prescribed from time
to
time in such rules and regulations.
(3)
PEC and, to the
extent required by the Trust Indenture Act, Integrys, shall file with the
Trustee and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such additional information, documents
and
reports with respect to compliance by PEC, or Integrys, as the case may be,
with
the conditions and covenants of this Indenture as may be required from time
to
time by such rules and regulations.
(4)
PEC and, to the
extent required by the Trust Indenture Act, Integrys, shall transmit, within
30
days after the filing thereof with the Trustee, to the Holders of Securities,
in
the manner and to the extent provided in Section 313(c) of the Trust Indenture
Act, such summaries of any information, documents and reports required to be
filed by PEC, or Integrys, as the case may be, pursuant to paragraphs (1),
(2)
and (3) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.”
(g) Section
901(1) of
the Original Indenture is hereby amended to read as follows:
“(1)
to evidence
the succession of another Corporation to PEC or Integrys, as the case may be,
and the assumption by any such successor of the covenants of, respectively,
PEC
or Integrys herein and in the Securities and coupons; or”
This
Section 201 shall be for the sole benefit of the Notes and not for the
benefit of any future series of Securities Outstanding under the Indenture
unless Integrys agrees otherwise.
7
Section
202. No
Recourse Against Others.
No past, present
or future director, officer, employee, incorporator, stockholder, partner or
agent of Integrys shall have any liability for any obligations of PEC or
Integrys under the Securities, the Original Indenture or this First Supplemental
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation.
Section
203. Provisions
Binding on Successors.
All the
covenants, stipulations, premises and agreements made in this First Supplemental
Indenture by PEC and Integrys shall bind their respective successors and assigns
whether so expressed or not.
Section
204. Governing
Law.
This First
Supplemental Indenture shall be deemed to be a contract made under the laws
of
the State of Illinois and for all purposes shall be construed in accordance
with
the laws of said state.
Section
205. Execution
and
Counterparts.
This First
Supplemental Indenture may be executed in any number of counterparts, each
of
which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
Section
206. Effect
of
Headings.
The Section
headings herein are for convenience only and shall not affect the construction
hereof.
Section
207. The
Trustee.
The Trustee shall
not be responsible in any manner whatsoever for or in respect of the validity
or
sufficiency of the First Supplemental Indenture or for or in respect of the
recitals contained herein, all of which recitals are made solely by PEC and
Integrys. All of the provisions contained in the Indenture in respect of the
rights, privileges, immunities, powers, and duties of the Trustee shall be
applicable in respect of this First Supplemental Indenture as fully and with
like force and effect as though fully set forth in full herein. The Trustee,
subject to the provisions of the Trust Indenture Act, enters into this First
Supplemental Indenture in reliance on an Opinion of Counsel as provided by
Section 903 of the Indenture, and makes no independent determination that this
Supplemental Indenture is authorized or permitted by the Original
Indenture.
Section
208. Full
Force and
Effect.
Except as
expressly amended hereby, the Original Indenture shall remain in full force
and
effect in accordance with the provisions thereof on the date thereof.
[signature
page
attached]
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IN
WITNESS
WHEREOF,
the parties
hereto have caused this First Supplemental Indenture to be duly executed and
delivered, all as of the date first written above.
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PEOPLES
ENERGY CORPORATION
By:
______________________________
Name:
Title:
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Attest:
_________________________________
Name:
Title:
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INTEGRYS
ENERGY GROUP, INC.
By:
______________________________
Name:
Title:
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Attest:
_________________________________
Name:
Title:
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THE
BANK OF
NEW YORK TRUST COMPANY, N.A., as
Trustee
By:
______________________________
Name:
Title:
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Attest:
_________________________________
Name:
Title:
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