0000908834-01-500256.txt : 20011026
0000908834-01-500256.hdr.sgml : 20011026
ACCESSION NUMBER: 0000908834-01-500256
CONFORMED SUBMISSION TYPE: 8-K
PUBLIC DOCUMENT COUNT: 4
CONFORMED PERIOD OF REPORT: 20011012
ITEM INFORMATION: Other events
ITEM INFORMATION: Financial statements and exhibits
FILED AS OF DATE: 20011019
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: SOUTHERN INDIANA GAS & ELECTRIC CO
CENTRAL INDEX KEY: 0000092195
STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC & OTHER SERVICES COMBINED [4931]
IRS NUMBER: 350672570
STATE OF INCORPORATION: IN
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: 8-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-03553
FILM NUMBER: 1762717
BUSINESS ADDRESS:
STREET 1: 20 NW FOURTH ST
CITY: EVANSVILLE
STATE: IN
ZIP: 47741-0001
BUSINESS PHONE: 8124914000
MAIL ADDRESS:
STREET 1: 20 NW FOURTH ST
CITY: EVANSVILLE
STATE: IN
ZIP: 8124914000
8-K
1
sigeco_8k.txt
FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM 8-K
-----------------------
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 12, 2001
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY
(Exact Name of Registrant as Specified in Its Charter)
INDIANA
(State or Other Jurisdiction of Incorporation)
1-3553 35-0672570
(Commission File Number) (IRS Employer Identification No.)
20 N.W. Fourth Street
Evansville, Indiana 47741
(Address of Principal Executive Offices)(Zip Code)
Registrant's Telephone Number, Including Area Code: (812) 465-5300
Item 5. Other Events.
Southern Indiana Gas and Electric Company (the "Company") hereby files
an Underwriting Agreement, dated October 12, 2001, Indenture dated October 19,
2001 and First Supplemental Indenture (including the Forms of Note and
Guarantee) dated October 19, 2001, attached hereto as Exhibits 1, 4.1 and 4.2,
respectively, and incorporated herein by reference, in connection with the
guarantee by the Company of $100,000,000 aggregate principal amount of 7 1/4%
Senior Notes due October 15, 2031, issued by the Company's parent corporation,
Vectren Utility Holdings, Inc.
Item 7. Financial Statements and Exhibits.
The following exhibits are filed as part of this report:
Exhibit 1 - Underwriting Agreement, dated October 12, 2001, between
Vectren Utility Holdings, Inc., Indiana Gas Company, Inc., Southern Indiana Gas
and Electric Company, Vectren Energy Delivery of Ohio, Inc. and Merrill Lynch,
Pierce, Fenner & Smith Incorporated.
Exhibit 4.1 - Indenture, dated October 19, 2001, between Vectren
Utility Holdings, Inc., Indiana Gas Company, Inc., Southern Indiana Gas and
Electric Company, Vectren Energy Delivery of Ohio, Inc. and U.S. Bank Trust
National Association.
Exhibit 4.2 - First Supplemental Indenture, dated October 19, 2001,
between Vectren Utility Holdings, Inc., Indiana Gas Company, Inc., Southern
Indiana Gas and Electric Company, Vectren Energy Delivery of Ohio, Inc. and U.S.
Bank Trust National Association.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY
(Registrant)
Dated: October 19, 2000 By: /s/ M. Susan Hardwick
--------------------------------------
M. Susan Hardwick
Vice President and Controller
EX-1
3
ex1_8k.txt
UNDERWRITING AGREEMENT
Exhibit 1
---------
UNDERWRITING AGREEMENT
VECTREN UTILITY HOLDINGS, INC.
(An Indiana corporation)
AND THE GUARANTORS NAMED HEREIN
Debt Securities
Dated October 12, 2001
Table of Contents
Page
----
SECTION 1. Representations and Warranties.....................................3
(a) Representations and Warranties by the Company....................3
(b) Officers' Certificates..........................................11
SECTION 2. Sale and Delivery to Underwriters; Closing........................11
(a) Underwritten Securities.........................................11
(b) Option Underwritten Securities..................................11
(c) Payment.........................................................12
(d) Denominations; Registration.....................................12
SECTION 3. Covenants of the Company and the Initial Guarantors...............13
(a) Compliance with Securities Regulations and Commission Requests..13
(b) Filing of Amendments............................................13
(c) Delivery of Registration Statements.............................13
(d) Delivery of Prospectuses........................................14
(e) Continued Compliance with Securities Laws.......................14
(f) Blue Sky Qualifications.........................................14
(g) Earnings Statement..............................................14
(h) Use of Proceeds.................................................15
(i) Listing.........................................................15
(j) Restriction on Sale of Securities...............................15
(k) Reporting Requirements..........................................15
SECTION 4. Payment of Expenses...............................................15
(a) Expenses........................................................15
(b) Termination of Agreement........................................16
SECTION 5. Conditions of Underwriters' Obligations...........................16
(a) Effectiveness of Registration Statement.........................16
(b) Opinion of General Counsel of the Company.......................16
(c) Opinion of Counsel for Company..................................17
(d) Opinion of Counsel for Underwriters.............................17
(e) Officers' Certificate...........................................17
(f) Accountant's Comfort Letter.....................................17
(g) Bring-down Comfort Letter.......................................17
(h) Ratings.........................................................17
(i) Approval of Listing.............................................18
(j) No Objection....................................................18
(k) Lock-up Agreements..............................................18
(l) Over-Allotment Option...........................................18
(m) Additional Documents............................................19
(n) Termination of Terms Agreement..................................19
SECTION 6. Indemnification...................................................19
(a) Indemnification of Underwriters.................................19
(b) Indemnification of Company, Directors and Officers..............20
(c) Actions against Parties; Notification...........................21
(d) Settlement without Consent if Failure to Reimburse..............21
SECTION 7. Contribution......................................................21
SECTION 8. Representations, Warranties and Agreements to Survive Delivery....23
SECTION 9. Termination.......................................................23
(a) Underwriting Agreement..........................................23
(b) Terms Agreement.................................................23
(c) Liabilities.....................................................24
SECTION 10. Default by One or More of the Underwriters.......................24
SECTION 11. Notices..........................................................25
SECTION 12. Parties..........................................................25
SECTION 13. GOVERNING LAW AND TIME...........................................25
SECTION 14. Effect of Headings...............................................25
SECTION 15. Counterparts.....................................................25
SCHEDULES
Schedule A - List of Subsidiaries...................................Sch A-1
EXHIBITS
Exhibit A - Terms Agreement......................................... A-1
Exhibit B - Form of Opinion of General Counsel of the Company....... B-1
Exhibit C - Form of Opinion of Company's Counsel.................... C-1
VECTREN UTILITY HOLDINGS, INC.
(an Indiana corporation)
AND THE GUARANTORS NAMED HEREIN
Debt Securities
UNDERWRITING AGREEMENT
October 12, 2001
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center
New York, New York 10080
Ladies and Gentlemen:
Vectren Utility Holdings, Inc., an Indiana corporation (the
"Company"), proposes to issue and sell an aggregate principal amount of senior
debt securities not to exceed $350,000,000 (the "Debt Securities"), from time to
time, in or pursuant to one or more offerings on terms to be determined at the
time of sale. The Debt Securities will be issued in one or more series as senior
indebtedness under an indenture, dated as of October 19, 2001 (as modified,
supplemented or amended from time to time, the "Indenture"), among the Company,
as issuer, the Initial Guarantors (as defined below), as guarantors, and U.S.
Bank Trust National Association, as trustee (the "Trustee"), and, subject to the
terms of the Indenture, will be fully and unconditionally guaranteed as to
payment of principal, premium (if any) and interest (the "Guarantees," and
together with the Debt Securities, the "Securities") by Indiana Gas Company,
Inc., an Indiana and Ohio corporation, Southern Indiana Gas and Electric
Company, an Indiana corporation, and Vectren Energy Delivery of Ohio, Inc., an
Ohio corporation (collectively, the "Initial Guarantors" and, together with each
other subsidiary of the Company that pursuant to the terms of the Indenture
guarantees the Company's obligations under the Securities, the "Guarantors").
Each series of Debt Securities may vary, as applicable, as to title,
aggregate principal amount, rank, interest rate or formula and timing of
payments thereof, stated maturity date, redemption and/or repayment provisions,
sinking fund requirements and any other variable terms established by or
pursuant to the Indenture.
Whenever the Company determines to make an offering of Securities
through Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), or
through an underwriting syndicate managed by Merrill Lynch, the Company and, if
applicable, the Guarantors will enter into an agreement (each, a "Terms
Agreement") providing for the sale of such Securities to, and the purchase and
offering thereof by, Merrill Lynch and such other underwriters, if any, selected
by Merrill Lynch (the "Underwriters", which term shall include Merrill Lynch,
whether acting as sole Underwriter or as a member of an underwriting syndicate,
as well as any Underwriter substituted pursuant to Section 10 hereof). The Terms
Agreement relating to the offering of Securities shall specify the aggregate
principal amount of Debt Securities to be initially issued (the "Initial
Underwritten Securities"), the name of each Underwriter participating in such
offering (subject to substitution as provided in Section 10 hereof) and the name
of any Underwriter other than Merrill Lynch acting as co-manager in connection
with such offering, the aggregate principal amount of Initial Underwritten
Securities which each such Underwriter severally agrees to purchase, whether
such offering is on a fixed or variable price basis and, if on a fixed price
basis, the initial offering price, the price at which the Initial Underwritten
Securities are to be purchased by the Underwriters, the form, time, date and
place of delivery and payment of the Initial Underwritten Securities and any
other material variable terms of the Initial Underwritten Securities. In
addition, if applicable, such Terms Agreement shall specify whether the Company
has agreed to grant to the Underwriters an option to purchase additional
Securities to cover over-allotments, if any, and the aggregate principal amount
of Debt Securities subject to such option (the "Option Underwritten
Securities"). As used herein, the term "Underwritten Securities" shall include
the Initial Underwritten Securities and all or any portion of any Option
Underwritten Securities. The Terms Agreement, which shall be substantially in
the form of Exhibit A hereto, may take the form of an exchange of any standard
form of written telecommunication between the Company and Merrill Lynch acting
for itself and, if applicable, as representative of any other Underwriters. Each
offering of Underwritten Securities through Merrill Lynch as sole Underwriter or
through an underwriting syndicate managed by Merrill Lynch will be governed by
this Underwriting Agreement, as supplemented by the applicable Terms Agreement.
The Company and the Initial Guarantors have filed with the Securities
and Exchange Commission (the "Commission") a registration statement on Form S-3
(No. 333-69742) for the registration of the Securities under the Securities Act
of 1933, as amended (the "1933 Act"), and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"). Such registration statement has been
declared effective by the Commission and the Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act"), and the
Company and the Initial Guarantors have or will have filed such post-effective
amendments thereto as may be required prior to the execution of the applicable
Terms Agreement and each such post-effective amendment has been declared
effective by the Commission. Such registration statement (as so amended, if
applicable), including the information, if any, deemed to be a part thereof
pursuant to Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A
Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule 434
Information"), is referred to herein as the "Registration Statement"; and the
final prospectus and the final prospectus supplement relating to the offering of
the Underwritten Securities, in the forms first furnished to the Underwriters by
the Company for use in connection with the offering of the Underwritten
Securities, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the execution of the applicable Terms Agreement; provided,
further, that if the Company and the Initial Guarantors file a registration
statement with the Commission pursuant to Rule 462(b) of the 1933 Act
Regulations (the "Rule 462(b) Registration Statement"), then, after such filing,
all references to "Registration Statement" shall also be deemed to include the
Rule 462(b) Registration Statement; and provided, further, that if the Company
elects to rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall also be deemed to include the final or preliminary prospectus
and the applicable term sheet or abbreviated term sheet (the "Term Sheet"), as
the case may be, in the forms first furnished to the Underwriters by the Company
in reliance upon Rule 434 of the 1933 Act Regulations, and all references to the
date of the Prospectus shall mean the date of the Term Sheet. A "preliminary
prospectus" shall be deemed to refer to (i) the preliminary prospectus relating
to an offering of Securities, dated o, 2001, filed by the Company with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations on o, 2001, (ii)
any prospectus used before the Registration Statement became effective and (iii)
any prospectus that omitted, as applicable, the Rule 430A Information, the Rule
434 Information or other information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations and was used after such effectiveness and prior to the initial
delivery of the Prospectus to the Underwriters by the Company. For purposes of
this Underwriting Agreement, all references to the Registration Statement,
Prospectus, Term Sheet or preliminary prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR").
All references in this Underwriting Agreement to financial statements
and schedules and other information which is "contained," "included" or "stated"
(or other references of like import) in the Registration Statement, Prospectus
or preliminary prospectus shall be deemed to include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be, at or prior to the execution of the applicable Terms
Agreement; and all references in this Underwriting Agreement to amendments or
supplements to the Registration Statement, Prospectus or preliminary prospectus
shall be deemed to include the filing of any document under the 1934 Act which
is incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be, after the execution of the
applicable Terms Agreement.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. Each Initial
Guarantor and the Company and its subsidiaries, jointly and severally represent
and warrant to Merrill Lynch, as of the date hereof, and to each Underwriter
named in the applicable Terms Agreement, as of the date thereof, as of the
Closing Time (as defined below) and, if applicable, as of each Date of Delivery
(as defined below) (in each case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. Each of the
Company and the Initial Guarantors meets the requirements for use of
Form S-3 under the 1933 Act. The Registration Statement (including any
Rule 462(b) Registration Statement) has become effective under the
1933 Act and no stop order suspending the effectiveness of the
Registration Statement (or such Rule 462(b) Registration Statement)
has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the
Company and the Initial Guarantors, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with. In addition, the
Indenture has been duly qualified under the 1939 Act.
At the respective times the Registration Statement
(including any Rule 462(b) Registration Statement) and any
post-effective amendments thereto (including the filing of the
Company's most recent Annual Report on Form 10-K with the Commission
(the "Annual Report on Form 10-K")) became effective and at each
Representation Date, the Registration Statement (including any Rule
462(b) Registration Statement) and any amendments thereto complied and
will comply in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act
Regulations") and did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. At
the date of the Prospectus, at the Closing Time and at each Date of
Delivery, if any, neither the Prospectus nor any amendment or
supplement thereto included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If the
Company elects to rely upon Rule 434 of the 1933 Act Regulations, the
Company will comply with the requirements of Rule 434. Notwithstanding
the foregoing, the representations and warranties in this subsection
shall not apply to the Statement of Eligibility of the Trustee on Form
T-1 or statements in or omissions from the Registration Statement or
the Prospectus made in reliance upon and in conformity with
information furnished to the Company or an Initial Guarantor in
writing by any Underwriter through Merrill Lynch expressly for use in
the Registration Statement or the Prospectus.
Each preliminary prospectus and prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with the offering
of Underwritten Securities will, at the time of such delivery, be
identical to any electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(2) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read
together with the other information in the Prospectus, at the date of
the Prospectus, at the Closing Time and at each Date of Delivery, if
any, did not and will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(3) Independent Accountants. The accountants that examined
certain of the Company's financial statements and supporting schedules
thereto included in the Registration Statement and the Prospectus, as
specified therein, are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The consolidated financial
statements included in the Registration Statement and the Prospectus,
together with the related schedules and notes, as well as those
financial statements, schedules and notes of any other entity included
therein, present fairly the financial position of the Company and its
consolidated subsidiaries, or such other entity, as the case may be,
at the dates indicated and the statement of operations, stockholders'
equity and cash flows of the Company and its consolidated
subsidiaries, or such other entity, as the case may be, for the
periods specified. Such financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration Statement
and the Prospectus present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data
and the summary financial information, if any, included in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement and the Prospectus.
Any pro forma financial statements of the Company and its subsidiaries
and the related notes thereto included in the Registration Statement
and the Prospectus present fairly the information shown therein, have
been prepared in accordance with the Commission's rules and guidelines
with respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in
the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(5) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those arising in the ordinary course of business, which are material
with respect to the Company and its subsidiaries considered as one
enterprise and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(6) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Indiana and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under, or as contemplated under, this Underwriting
Agreement and the applicable Terms Agreement. The Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or be
in good standing could not reasonably be expected to result in a
Material Adverse Effect.
(7) Good Standing of Subsidiaries. Each Initial Guarantor
and each "significant subsidiary", as defined in Regulation S-X
promulgated under the 1933 Act, of the Company (each, a "Subsidiary"
and, collectively, the "Subsidiaries") has been duly organized, is
validly existing and is in good standing under the laws of the
jurisdiction of its incorporation or organization, has power and
authority (corporate and other) to own, lease and operate its
properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign corporation or limited liability
company, as applicable, to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good
standing could not reasonably be expected to result in a Material
Adverse Effect. Except as otherwise stated in the Registration
Statement and the Prospectus, all of the issued and outstanding
capital stock or other equity interests of each Subsidiary has been
duly authorized and is validly issued, fully paid and non-assessable
and is owned by the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. None of the outstanding shares of
capital stock or other equity interests of any Subsidiary was issued
in violation of preemptive or other similar rights of any
securityholder of such Subsidiary. The only subsidiaries of the
Company are (a) the Subsidiaries and (b) certain other subsidiaries
which, individually or in the aggregate, are "minor" within the
meaning of Rule 3-10 of Regulation S-X promulgated under the 1933 Act.
(8) Capitalization. If the Prospectus contains a
"Capitalization" section, the authorized, issued and outstanding
shares of capital stock of the Company is as set forth in the column
entitled "Actual" under such section (except for subsequent issuances
thereof, if any, contemplated under this Underwriting Agreement). Such
shares of capital stock have been duly authorized and validly issued
by the Company and are fully paid and non-assessable, and none of such
shares of capital stock was issued in violation of preemptive or other
similar rights of any securityholder of the Company.
(9) Authorization of this Underwriting Agreement and Terms
Agreement. This Underwriting Agreement has been, and the applicable
Terms Agreement as of the date thereof will have been, duly
authorized, executed and delivered by the Company.
(10) Authorization of the Debt Securities. The Debt
Securities have been, or as of the date of such Terms Agreement will
have been, duly authorized by the Company for issuance and sale
pursuant to this Underwriting Agreement and such Terms Agreement. Such
Debt Securities, when issued and authenticated in the manner provided
for in the Indenture and delivered against payment of the
consideration therefor specified in such Terms Agreement will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement
thereof may be limited by requirements that a claim with respect to
any Debt Securities payable in a foreign currency (or a foreign
currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or by governmental authority to limit, delay or
prohibit the making of payments outside the United States. Such Debt
Securities will be in the form contemplated by, and each registered
holder thereof is entitled to the benefits of, the Indenture.
(11) Authorization of Guarantees. The Guarantees have been,
or as of the date of such Terms Agreement will have been, duly
authorized by the Guarantors; the Guarantees, when the Debt Securities
are issued and delivered in the manner provided for in the Indenture,
will constitute valid and binding obligations of the Guarantors,
enforceable against the Guarantors in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law), and except further as
enforcement thereof may be limited by requirements that a claim with
respect to any Guarantee payable in a foreign currency (or a foreign
currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or by governmental authority to limit, delay or
prohibit the making of payments outside the United States.
(12) Authorization of the Indenture. The Indenture has been,
or prior to the issuance of the Underwritten Securities thereunder
will have been, duly authorized, executed and delivered by the Company
and each Initial Guarantor and, upon such authorization, execution and
delivery, will constitute a valid and binding agreement of the Company
and each such Initial Guarantor, enforceable against the Company and
each such Initial Guarantor in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(13) Description of the Underwritten Securities. The
Underwritten Securities being sold pursuant to the applicable Terms
Agreement, as of the Representation Date, when issued and delivered in
accordance with the terms of the related Underwritten Securities, will
conform in all material respects to the statements relating thereto
contained in the Prospectus and will be in substantially the form
filed or incorporated by reference, as the case may be, as an exhibit
to the Registration Statement.
(14) Description of the Indenture. The Indenture, as of the
Representation Date, will conform in all material respects to the
statements relating thereto contained in the Prospectus and will be in
substantially the form filed or incorporated by reference, as the case
may be, as an exhibit to the Registration Statement.
(15) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its charter or by-laws
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or
to which any of the assets, properties or operations of the Company or
any of its subsidiaries is subject (collectively, "Agreements and
Instruments"), except for such violations or defaults that could not
reasonably be expected to result in a Material Adverse Effect. The
execution, delivery and performance of this Underwriting Agreement,
the applicable Terms Agreement and the Indenture and any other
agreement or instrument entered into or issued or to be entered into
or issued by the Company and each Initial Guarantor in connection with
the transactions contemplated hereby or thereby or in the Registration
Statement and the Prospectus and the consummation of the transactions
contemplated herein and in the Registration Statement and the
Prospectus (including the issuance and sale of the Underwritten
Securities and the use of the proceeds from the sale of the
Underwritten Securities as described under the caption "Use of
Proceeds" in the Prospectus relating to such Underwritten Securities)
and compliance by the Company and each Initial Guarantor with its
obligations hereunder and thereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any assets, properties or operations of the
Company or any of its subsidiaries pursuant to, any Agreements and
Instruments, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any of its
subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any of its subsidiaries or any of their assets,
properties or operations. As used herein, a "Repayment Event" means
any event or condition which gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or
any of its subsidiaries.
(16) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is imminent, and the Company is not aware of
any existing or imminent labor disturbance by the employees of any of
its or any of its subsidiaries' principal suppliers, manufacturers,
customers or contractors, which, in either case, could reasonably be
expected to result in a Material Adverse Effect.
(17) Absence of Proceedings. Except as otherwise disclosed
in the Registration Statement or the Prospectus, there is no action,
suit, proceeding, inquiry or investigation before or brought by any
court or governmental agency or body, domestic or foreign, now
pending, or to the knowledge of the Company threatened, against or
affecting the Company or any of its subsidiaries which is required to
be disclosed in the Registration Statement and the Prospectus (other
than as stated therein), or which could reasonably be expected to
result in a Material Adverse Effect, or which could reasonably be
expected to materially and adversely affect the consummation of the
transactions contemplated under the Prospectus, this Underwriting
Agreement, the applicable Terms Agreement or the Indenture or the
performance by the Company and the Initial Guarantors of their
respective obligations hereunder and thereunder. The aggregate of all
pending legal or governmental proceedings to which the Company or any
of its subsidiaries is a party or of which any of their respective
assets, properties or operations is the subject which are not
described in the Registration Statement and the Prospectus, including
ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(18) Accuracy of Exhibits. There are no franchises,
contracts or other documents which are required to be described in the
Registration Statement, the Prospectus or the documents incorporated
by reference therein or to be filed as exhibits thereto which have not
been so described and filed as required.
(19) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency, domestic or foreign, is necessary or required for the due
authorization, execution and delivery by the Company and the Initial
Guarantors of this Underwriting Agreement or the applicable Terms
Agreement or for the performance by the Company and the Initial
Guarantors of the transactions contemplated under the Prospectus, this
Underwriting Agreement, such Terms Agreement or the Indenture, except
such as have been already made, obtained or rendered, as applicable or
as may be required under state securities or blue sky laws.
(20) Possession of Intellectual Property. The Company and
its subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property")
necessary to carry on the business now operated by them, except where
the failure to own, possess or acquire, singly or in the aggregate,
could not reasonably be expected to result in a Material Adverse
Effect. Neither the Company nor any of its subsidiaries has received
any notice or is otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of
the Company or any of its subsidiaries therein, and which infringement
or conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the aggregate,
could not reasonably be expected to result in a Material Adverse
Effect.
(21) Possession of Licenses and Permits. Except as otherwise
disclosed in the Registration Statement or the Prospectus, the Company
and its subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them, except where the non-possession of such Governmental
Licenses could not reasonably be expected to result in a Material
Adverse Effect. The Company and its subsidiaries are in compliance
with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply could not, singly or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect. All of the Governmental Licenses are valid and in full force
and effect, except where the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and
effect could not reasonably be expected to result in a Material
Adverse Effect. Neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, could reasonably be expected to result in a Material Adverse
Effect.
(22) Title to Property. The Company and its subsidiaries
have good and marketable title to all material real property owned by
the Company and its subsidiaries and good title to all other material
properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind, except (A) as otherwise stated in the
Registration Statement and the Prospectus or (B) those which do not,
singly or in the aggregate, materially affect the value of the
property of the Company and its subsidiaries in the aggregate and do
not interfere with the use made or proposed to be made of the property
of the Company and its subsidiaries in the aggregate by the Company or
any of its subsidiaries. All of the leases and subleases material to
the business of the Company and its subsidiaries considered as one
enterprise, and under which the Company or any of its subsidiaries
holds properties described in the Prospectus, are in full force and
effect, and neither the Company nor any of its subsidiaries has
received any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any of its
subsidiaries under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such subsidiary
of the continued possession of the leased or subleased premises under
any such lease or sublease.
(23) Investment Company Act. Neither the Company nor any of
the Initial Guarantors are, or upon the issuance and sale of the
Underwritten Securities as herein contemplated and the application of
the net proceeds therefrom as described in the Prospectus will be, an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended (the "1940 Act").
(24) Public Utility Holding Company Act of 1935. The Company
is a "holding company" (within the meaning of the Public Utility
Holding Company Act of 1935, as amended (the "PUHC Act")) which is
exempt from being required to seek approval to perform its obligations
under this Underwriting Agreement, the Indenture and the Securities
pursuant to Rule 2 of the rules and regulations promulgated pursuant
to the PUHC Act.
(25) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus and except as could not,
singly or in the aggregate, reasonably be expected to result in a
Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum or petroleum
products (collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries possess all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or, to the Company's knowledge, threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against
the Company or any of its subsidiaries and (D) to the Company's
knowledge, there are no events or circumstances that might reasonably
be expected to form the basis of an order for clean-up or remediation,
or an action, suit or proceeding by any private party or governmental
body or agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(b) Officers' Certificates. Any certificate signed by any officer of
the Company, any Initial Guarantor or any of their respective subsidiaries and
delivered to any Underwriter or to counsel for the Underwriters in connection
with the offering of the Underwritten Securities shall be deemed a
representation and warranty by the Company or such Initial Guarantor to each
Underwriter as to the matters covered thereby on the date of such certificate.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the applicable
Terms Agreement shall be deemed to have been made on the basis of the
representations, warranties and agreements herein contained and shall be subject
to the terms and conditions herein set forth.
(b) Option Underwritten Securities. Subject to the terms and
conditions herein set forth, the Company may grant, if so provided in the
applicable Terms Agreement, an option to the Underwriters, severally and not
jointly, to purchase up to the aggregate principal amount of the Option
Underwritten Securities set forth therein at a price equal to the percentage of
the aggregate principal amount of the Initial Underwritten Securities
representing the purchase price, plus accrued interest or amortized original
issue discount, as the case may be, from the original issue date of the Initial
Underwritten Securities. Such option, if granted, will expire 30 days after the
date of such Terms Agreement, and may be exercised in whole or in part from time
to time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Underwritten
Securities upon notice by Merrill Lynch to the Company setting forth the number
or aggregate principal amount, as the case may be, of Option Underwritten
Securities as to which the several Underwriters are then exercising the option
and the time, date and place of payment and delivery for such Option
Underwritten Securities. Any such time and date of payment and delivery (each, a
"Date of Delivery") shall be determined by Merrill Lynch, but shall not be later
than seven full business days after the exercise of said option, nor in any
event prior to the Closing Time, unless otherwise agreed upon by Merrill Lynch
and the Company. If the option is exercised as to all or any portion of the
Option Underwritten Securities, each of the Underwriters, severally and not
jointly, will purchase that proportion of the total aggregate principal amount
of Option Underwritten Securities then being purchased which the number or
aggregate principal amount, as the case may be, of Initial Underwritten
Securities each such Underwriter has severally agreed to purchase as set forth
in such Terms Agreement bears to the total aggregate principal amount of Initial
Underwritten Securities, subject to such adjustments as Merrill Lynch in its
discretion shall make to eliminate any sales or purchases of Option Underwritten
Securities in an amount other than whole dollars.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the offices of Sidley Austin
Brown & Wood LLP, or at such other place as shall be agreed upon by Merrill
Lynch and the Company, at 9:00 A.M. (Eastern time) on the third business day
after the date of the applicable Terms Agreement (unless postponed in accordance
with the provisions of Section 10 hereof), or such other time not later than ten
business days after such date as shall be agreed upon by Merrill Lynch and the
Company (such time and date of payment and delivery being herein called the
"Closing Time"). In addition, in the event that the Underwriters have exercised
their option, if any, to purchase any or all of the Option Underwritten
Securities, payment of the purchase price for, and delivery of such Option
Underwritten Securities, shall be made at the above-mentioned offices of Sidley
Austin Brown & Wood LLP, or at such other place as shall be agreed upon by
Merrill Lynch and the Company, on the relevant Date of Delivery as specified in
the notice from Merrill Lynch to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
Merrill Lynch for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized Merrill Lynch, for its account, to accept delivery
of, receipt for, and make payment of the purchase price for, the Underwritten
Securities which it has severally agreed to purchase. Merrill Lynch individually
and not as representative of the Underwriters, may (but shall not be obligated
to) make payment of the purchase price for the Underwritten Securities to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. The Underwritten Securities or
certificates for the Underwritten Securities, as applicable, shall be in such
denominations and registered in such names as Merrill Lynch may request in
writing at least two full business days prior to the Closing Time or the
relevant Date of Delivery, as the case may be. The Underwritten Securities or
certificates for the Underwritten Securities, as applicable, will be made
available for examination and packaging by Merrill Lynch in The City of New
York, or at such other place as shall be agreed upon by Merrill Lynch and the
Company, not later than 10:00 A.M. (Eastern time) on the business day prior to
the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company and the Initial Guarantors. Each
of the Company and the Initial Guarantors covenants with Merrill Lynch and with
each Underwriter participating in the offering of Underwritten Securities, as
follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will comply with the requirements of Rule
430A of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if
and as applicable, and will notify the Representative(s) promptly, and confirm
the notice in writing, of (i) the effectiveness of any post-effective amendment
to the Registration Statement or the filing of any supplement or amendment to
the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Underwritten Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424 and will take such steps as it deems necessary to ascertain promptly
whether any Prospectus transmitted for filing under Rule 424 was received for
filing by the Commission and, in the event that it was not, it will promptly
file the Prospectus. The Company and the Initial Guarantors will use their best
efforts to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof as soon as practicable.
(b) Filing of Amendments. The Company will give Merrill Lynch notice
of its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b) of the 1933 Act Regulations), any Term
Sheet or any amendment, supplement or revision to either the prospectus included
in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish Merrill Lynch with copies of any such documents a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not file
or use any such document to which Merrill Lynch or counsel for the Underwriters
shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to Merrill Lynch and counsel for the Underwriters, without charge,
signed or conformed copies of the Registration Statement as originally filed and
of each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed or conformed copies of all consents and
certificates of experts, and will also deliver to Merrill Lynch, without charge,
a conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. Copies of the
Registration Statement and each amendment thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(d) Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter may reasonably request, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus as such Underwriter may reasonably request.
The Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. Each of the Company and
Initial Guarantors will comply with the 1933 Act and the 1933 Act Regulations
and the 1934 Act and the 1934 Act Regulations so as to permit the completion of
the distribution of the Underwritten Securities as contemplated in this
Underwriting Agreement and the applicable Terms Agreement and in the
Registration Statement and the Prospectus. If at any time when the Prospectus is
required by the 1933 Act or the 1934 Act to be delivered in connection with
sales of the Securities any event shall occur or condition shall exist as a
result of which it is necessary, in the reasonable opinion of counsel for the
Underwriters or for the Company and the Initial Guarantors, to amend the
Registration Statement in order that the Registration Statement will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or to amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company and the Initial Guarantors will promptly prepare and file with the
Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the Company and
the Initial Guarantors will furnish to the Underwriters, without charge, such
number of copies of such amendment or supplement as the Underwriters may
reasonably request.
(f) Blue Sky Qualifications. The Company and the Initial Guarantors
will use their best efforts, in cooperation with the Underwriters, to qualify
the Underwritten Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions (domestic or foreign) as
Merrill Lynch may designate and to maintain such qualifications in effect as
long as may be necessary to complete the distribution of the Underwritten
Securities; provided, however, that neither the Company nor the Initial
Guarantors shall be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Underwritten Securities have been so
qualified, the Company and the Initial Guarantors will file such statements and
reports as may be required by the laws of such jurisdiction.
(g) Earnings Statement. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds."
(i) Listing. The Company will use commercially reasonable efforts to
effect the listing of the Underwritten Securities, prior to the Closing Time, on
any national securities exchange or quotation system if and as specified in the
applicable Terms Agreement.
(j) Restriction on Sale of Securities. Between the date of the
applicable Terms Agreement and the Closing Time or such other date specified in
such Terms Agreement, the Company will not, without the prior written consent of
Merrill Lynch, directly or indirectly, issue, sell, offer or contract to sell,
grant any option for the sale of, or otherwise dispose of, the securities
specified in such Terms Agreement.
(k) Reporting Requirements. The Company and the Initial Guarantors,
during the period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by the 1934
Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company and the Initial Guarantors will pay all
expenses incident to the performance of their obligations under this
Underwriting Agreement or the applicable Terms Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Underwriting Agreement, any Terms Agreement, any Agreement among Underwriters,
the Indenture and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Underwritten Securities,
(iii) the preparation, issuance and delivery of the Underwritten Securities, any
certificates for the Underwritten Securities, as applicable, to the
Underwriters, including any transfer taxes and any stamp or other duties payable
upon the sale, issuance or delivery of the Underwritten Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors or agents (including transfer agents and
registrars), as well as the fees and disbursements of the Trustee and its
counsel, (v) the qualification of the Underwritten Securities under state
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation,
printing and delivery of the Blue Sky and Legal Investment Surveys, and any
amendment thereto, (vi) the printing and delivery to the Underwriters of copies
of each preliminary prospectus, any Term Sheet, and the Prospectus and any
amendments or supplements thereto, (vii) the fees charged by nationally
recognized statistical rating organizations for the rating of the Underwritten
Securities, (viii) the fees and expenses incurred with respect to the listing of
the Underwritten Securities, if applicable, (ix) the filing fees incident to,
and the reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review, if any, by the National Association of Securities
Dealers, Inc. (the "NASD") of the terms of the sale of the Underwritten
Securities, and (x) the fees and expenses of any Underwriter acting in the
capacity of a "qualified independent underwriter" (as defined in Rule 2720 of
the Conduct Rules of the NASD), if applicable. It is understood, however, that
except as provided in this Section 4, and in Sections 5(n), 6 or 7 hereof, the
Underwriters will be responsible for all of their own costs and expenses,
including the fees of their counsel, any transfer taxes on the Underwritten
Securities upon resale by them and all other expenses incurred by them in
connection with any offering of the Underwritten Securities made by the
Underwriters.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by Merrill Lynch in accordance with the provisions of Section 5 or
Section 9(b)(i) hereof, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses reasonably incurred by the Underwriters in
connection with preparations for the purchase, sale and delivery of the
Underwritten Securities pursuant to the applicable Terms Agreement, including
the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for the Underwritten Securities pursuant to
the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company and the Initial Guarantors
contained in Section 1 hereof and in certificates of any officer of the Company,
any of the Initial Guarantors or any of their respective subsidiaries delivered
pursuant to the provisions hereof, to the performance by the Company and the
Initial Guarantors of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been instituted or be pending or
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus containing information
relating to the description of the Underwritten Securities, the specific method
of distribution and similar matters shall have been filed with the Commission in
accordance with Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any
required post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of Rule 430A),
or, if the Company has elected to rely upon Rule 434 of the 1933 Act
Regulations, a Term Sheet including the Rule 434 Information shall have been
filed with the Commission in accordance with Rule 424(b)(7).
(b) Opinion of General Counsel of the Company. At the Closing Time,
the Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of, Ronald E. Christian, General Counsel of the Company, in form
and substance satisfactory to the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters,
substantially to the effect set forth in Exhibit B hereto and to such further
effect as counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for Company. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Time, of Barnes & Thornburg, counsel for the Company, in form and substance
satisfactory to the Underwriters, together with signed or reproduced copies of
such letter for each of the other Underwriters, substantially to the effect set
forth in Exhibit C hereto and to such further effect as counsel to the
Underwriters may reasonably request.
(d) Opinion of Counsel for Underwriters. At the Closing Time, the
Underwriters shall have received an opinion, dated as of the Closing Time, of
Sidley Austin Brown & Wood LLP, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters,
in form and substance satisfactory to the Underwriters.
(e) Officers' Certificate. At the Closing Time, there shall not have
been, since the date of the applicable Terms Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, and
the Underwriters shall have received a certificate of the Chief Executive
Officer, President or Executive Vice President of the Company and of each
Initial Guarantor and of the Chief Financial Officer or Chief Accounting Officer
of the Company and of each Initial Guarantor, dated as of the Closing Time, to
the effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) are true and correct with the
same force and effect as though expressly made at and as of the Closing Time,
(iii) the Company or such Initial Guarantor, as the case may be, has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted, are pending or, to the best of such
officer's knowledge, are threatened by the Commission.
(f) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, the Underwriters shall have received from Arthur
Andersen LLP a letter dated such date, in form and substance satisfactory to the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(g) Bring-down Comfort Letter. At the Closing Time, the Underwriters
shall have received from Arthur Andersen LLP a letter, dated as of the Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (f) of this Section 5, except that the
specified date referred to shall be a date not more than three business days
prior to the Closing Time.
(h) Ratings. At the Closing Time and at any relevant Date of Delivery,
the Underwritten Securities shall have the ratings accorded by any "nationally
recognized statistical rating organization", as defined by the Commission for
purposes of Rule 436(g)(2) of the 1933 Act Regulations, if and as specified in
the applicable Terms Agreement, and the Company shall have delivered to the
Underwriters a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to the Underwriters, confirming
that the Underwritten Securities have such ratings. Since the time of execution
of such Terms Agreement, there shall not have occurred a downgrading in, or
withdrawal of, the rating assigned to the Underwritten Securities or any of the
Company's other securities by any nationally recognized statistical rating
organization, and no such rating organization shall have publicly announced that
it has under surveillance or review its rating of the Underwritten Securities or
any of the Company's other securities.
(i) Approval of Listing. At the Closing Time, the Underwritten
Securities shall have been approved for listing, subject only to official notice
of issuance, if and as specified in the applicable Terms Agreement.
(j) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD shall
not have raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(k) Lock-up Agreements. On the date of the applicable Terms Agreement,
the Underwriters shall have received, in form and substance satisfactory to it,
each lock-up agreement, if any, specified in such Terms Agreement as being
required to be delivered by the persons listed therein.
(l) Over-Allotment Option. In the event that the Underwriters are
granted an over-allotment option by the Company in the applicable Terms
Agreement and the Underwriters exercise their option to purchase all or any
portion of the Option Underwritten Securities, the representations and
warranties of the Company contained herein and the statements in any
certificates furnished by the Company or any of its subsidiaries hereunder shall
be true and correct as of each Date of Delivery, and, at the relevant Date of
Delivery, the Underwriters shall have received:
(1) A certificate, dated such Date of Delivery, of the Chief
Executive Officer, President or Executive Vice President of the
Company and the Chief Financial Officer or Chief Accounting Officer of
the Company, confirming that the certificate delivered at the Closing
Time pursuant to Section 5(e) hereof remains true and correct as of
such Date of Delivery.
(2) The favorable opinions of Ronald E. Christian, General
Counsel of the Company and Barnes & Thornburg, counsel for the
Company, each in form and substance satisfactory to the Underwriters,
dated such Date of Delivery, relating to the Option Underwritten
Securities and otherwise to the same effect as the opinions required
by Sections 5(b) and 5(c) hereof.
(3) The favorable opinion of Sidley Austin Brown & Wood LLP,
counsel for the Underwriters, dated such Date of Delivery, relating to
the Option Underwritten Securities and otherwise to the same effect as
the opinion required by Section 5(d) hereof.
(4) A letter from Arthur Andersen LLP, in form and substance
satisfactory to the Underwriters and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished
to the Underwriters pursuant to Section 5(f) hereof, except that the
"specified date" on the letter furnished pursuant to this paragraph
shall be a date not more than three business days prior to such Date
of Delivery.
(5) Since the time of execution of such Terms Agreement,
there shall not have occurred a downgrading in, or withdrawal of, the
rating assigned to the Underwritten Securities or any of the Company's
other securities by any nationally recognized statistical rating
organization, and no such rating organization shall have publicly
announced that it has under surveillance or review its rating of the
Underwritten Securities or any of the Company's other securities.
(m) Additional Documents. At the Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Underwritten Securities
as herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company or the Initial
Guarantors in connection with the issuance and sale of the Underwritten
Securities as herein contemplated shall be satisfactory in form and substance to
the Underwriters and counsel for the Underwriters.
(n) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement or, with respect to the Underwriters' exercise of
any applicable over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations of the
Underwriters to purchase the Option Underwritten Securities on such Date of
Delivery may be terminated by Merrill Lynch by notice to the Company at any time
at or prior to the Closing Time or such Date of Delivery, as applicable, and
such termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 1, 6, 7 and 8 shall
survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company and the Initial
Guarantors, jointly and severally, agree to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(1) against any and all losses, liabilities, claims, damages
and expenses whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), including the
Rule 430A Information and the Rule 434 Information deemed to be a part
thereof, if applicable, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(2) against any and all losses, liabilities, claims, damages
and expenses whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company; and
(3) against any and all expenses whatsoever, as incurred
(including the fees and disbursements of outside counsel chosen by
Merrill Lynch), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any
such expense is not paid under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission, made in reliance
upon and in conformity with written information furnished to the Company or an
Initial Guarantor by any Underwriter through Merrill Lynch expressly for use in
the Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); and, provided further, that this indemnity agreement,
insofar as it relates to any preliminary prospectus, shall not inure to the
benefit of any Underwriter (or to the benefit of any person who controls such
Underwriter) on account of any loss, liability, claim, damage or expense arising
out of the sale of any of the Underwritten Securities by such Underwriter to any
person if it shall be established that a copy of the Prospectus, excluding any
documents incorporated by reference (as supplemented or amended, if the Company
shall have made any supplements or amendments which have been furnished to the
Representative), shall not have been sent or given by or on behalf of such
Underwriter to such person at or prior to the written confirmation of the sale
of Underwritten Securities to such person in any case where such delivery is
required by the 1933 Act and the Company satisfied its obligations pursuant to
Section 3(b) hereof, if the misstatement or omission leading to such loss,
claim, damage or liability was corrected in the Prospectus (excluding any
documents incorporated by reference) as amended or supplemented, such correction
would have cured the defect giving rise to such loss, liability, claim, damage,
or expense and the Prospectus was delivered to such Underwriter a reasonable
amount of time in advance of such Underwriter's delivery of the written
confirmation to such person.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, each
Initial Guarantor, their respective directors, each of their officers who signed
the Registration Statement, and each person, if any, who controls the Company or
any Initial Guarantor within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all losses, liabilities, claims,
damages and expenses described in the indemnity contained in Section 6(a), as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through Merrill Lynch expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 6(a)
above, counsel to the indemnified parties shall be selected by Merrill Lynch,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(2) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Initial Guarantors, on the one hand, and the Underwriters, on
the other hand, from the offering of the Underwritten Securities pursuant to the
applicable Terms Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Initial Guarantors, on the one hand, and
the Underwriters, on the other hand, in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Initial
Guarantors, on the one hand, and the Underwriters, on the other hand, in
connection with the offering of the Underwritten Securities pursuant to the
applicable Terms Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of such Underwritten
Securities (before deducting expenses) received by the Company and the Initial
Guarantors and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, or, if Rule 434 is used,
the corresponding location on the Term Sheet, bear to the aggregate initial
public offering price of such Underwritten Securities as set forth on such
cover.
The relative fault of the Company and the Initial Guarantors, on the
one hand, and the Underwriters, on the other hand, shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company, the Initial Guarantors or
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Initial Guarantors and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company or any Initial Guarantor, each officer of the
Company or any Initial Guarantor who signed the Registration Statement, and each
person, if any, who controls the Company or any Initial Guarantor within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Company.
The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the aggregate principal amount of
Initial Underwritten Securities set forth opposite their respective names in the
applicable Terms Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Underwriting Agreement or the applicable Terms Agreement or in certificates of
officers of the Company, any Initial Guarantor or any of their respective
subsidiaries submitted pursuant hereto or thereto shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the Company or any
Initial Guarantor, and shall survive delivery of and payment for the
Underwritten Securities.
SECTION 9. Termination.
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company or by Merrill Lynch upon the giving of prior written notice of such
termination to the other party hereto.
(b) Terms Agreement. Merrill Lynch may terminate the applicable Terms
Agreement, by notice to the Company, at any time at or prior to the Closing Time
or any relevant Date of Delivery, if (i) there has been, since the time of
execution of such Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
there has occurred any material adverse change in the financial markets in the
United States or in the international financial markets, or any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of Merrill Lynch, impracticable to market
the Underwritten Securities or to enforce contracts for the sale of the
Underwritten Securities, or (iii) trading in any securities of the Company has
been suspended or materially limited by the Commission, the New York Stock
Exchange or the American Stock Exchange, or if trading generally on the New York
Stock Exchange or the American Stock Exchange or in the Nasdaq National Market
has been suspended or materially limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been required, by
either of said exchanges or by such system or by order of the Commission, the
NASD or any other governmental authority, or (iv) a banking moratorium has been
declared by either Federal or New York authorities.
(c) Liabilities. If this Underwriting Agreement or the applicable
Terms Agreement is terminated pursuant to this Section 9, such termination shall
be without liability of any party to any other party except as provided in
Section 4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive
such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Underwritten Securities which it
or they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then Merrill Lynch shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, Merrill Lynch shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities does not exceed 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be purchased on such
date pursuant to such Terms Agreement, the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations under such Terms
Agreement bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities exceeds 10% of the number or aggregate principal amount,
as the case may be, of Underwritten Securities to be purchased on such date
pursuant to such Terms Agreement, such Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable over-allotment option for the purchase
of Option Underwritten Securities on a Date of Delivery after the Closing Time,
the obligations of the Underwriters to purchase, and the Company to sell, such
Option Underwritten Securities on such Date of Delivery) shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either Merrill Lynch or the Company shall have
the right to postpone the Closing Time or the relevant Date of Delivery, as the
case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus or in any other
documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Merrill Lynch at o, attention of o, and
notices to the Company shall be directed to it at o, attention of o.
SECTION 12. Parties. This Underwriting Agreement and the applicable
Terms Agreement shall each inure to the benefit of and be binding upon the
Company, the Initial Guarantors, Merrill Lynch and, upon execution of such Terms
Agreement, any other Underwriters and their respective successors. Nothing
expressed or mentioned in this Underwriting Agreement or such Terms Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Underwriting Agreement or such Terms Agreement or
any provision herein or therein contained. This Underwriting Agreement and such
Terms Agreement and all conditions and provisions hereof and thereof are
intended to be for the sole and exclusive benefit of the parties hereto and
thereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND
ANY APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
SECTION 15. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts hereof shall constitute a single instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Underwriting Agreement, along with all counterparts, will become a binding
agreement among Merrill Lynch, the Company and the Initial Guarantors in
accordance with its terms.
Very truly yours,
VECTREN UTILITY HOLDINGS, INC.,
as Issuer
By: /s/ Niel C. Ellerbrook
--------------------------------------
Name: Niel C. Ellerbrook
Title: Chairman & Chief Executive Officer
INDIANA GAS COMPANY, INC.,
as Guarantor
By: /s/ Andrew E. Goebel
--------------------------------------
Name: Andrew E. Goebel
Title: President
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY,
as Guarantor
By: /s/ Jerome A. Benkert, Jr.
--------------------------------------
Name: Jerome A. Benkert, Jr.
Title: Executive Vice President and CFO
VECTREN ENERGY DELIVERY OF OHIO, INC.,
as Guarantor
By: /s/ William S. Doty
--------------------------------------
Name: William S. Doty
Title: Sr. Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
A.G. EDWARDS & SONS, INC.
UBS WARBURG LLC
U.S. BANCORP PIPER JAFFRAY INC.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ Karl F. Scholopy
-----------------------------------
Authorized Signatory
Acting on behalf of itself and the other named Underwriters.
EXHIBIT A
VECTREN UTILITY HOLDINGS, INC.
(an Indiana corporation)
AND THE GUARANTORS NAMED HEREIN
Senior Debt Securities
TERMS AGREEMENT
October 12, 2001
To: Vectren Utility Holdings, Inc.
20 N.W. Fourth Street
Evansville, Indiana 47741
Ladies and Gentlemen:
We understand that Vectren Utility Holdings, Inc., an Indiana
corporation (the "Company"), proposes to issue and sell $100,000,000 aggregate
principal amount of its senior debt securities (the "Debt Securities"). Subject
to the terms of the Indenture, such securities will be fully and unconditionally
guaranteed as to payment of principal, premium (if any) and interest (the
"Guarantees," and together with the Debt Securities, the "Initial Underwritten
Securities") by the Initial Guarantors. Subject to the terms and conditions set
forth or incorporated by reference herein, we, the underwriters named below (the
"Underwriters") offer to purchase, severally and not jointly, the principal
amount of Underwritten Securities opposite their names set forth below at the
purchase price set forth below.
Principal Amount
Underwriter of Initial Underwritten Securities
----------- ----------------------------------
Merrill Lynch, Pierce, Fenner & Smith $ 23,875,000
Incorporated............ 23,875,000
A.G. Edwards & Sons, Inc.................... 23,625,000
UBS Warburg LLC............................. 23,625,000
U.S. Bancorp Piper Jaffray Inc.............. 625,000
ABN AMRO Incorporated..................... 625,000
Robert W. Baird & Co. Incorporated......... 625,000
William Blair & Company, L.L.C............ 625,000
J.J.B. Hillard, W.L. Lyons, Inc............. 625,000
McDonald Investments Inc.................... 625,000
Mesirow Financial, Inc...................... 625,000
NatCity Investments, Inc.................... 625,000
Raymond James & Associates, Inc............ 625,000
----------------
Total $100,000,000
============
The Underwritten Securities shall have the
following terms:
Title: 7-1/4% Notes Due October 15, 2031
Rank: Unsecured senior indebtedness
Guaranteed: Guaranteed by Indiana Gas Company, Inc.,
Southern Indiana Gas and Electric
Company and Vectren Energy Delivery of
Ohio, Inc.
Ratings: "A2" by Moody's Investors Service, Inc.
"A-" by Standard & Poor's Ratings
Services
Aggregate principal amount: $100,000,000
Denominations: $25 and integral multiples in excess
thereof
Currency of payment: United States dollars
Interest rate or formula: 7-1/4% per annum, payable quarterly
in arrears
Interest payment dates: January 15, April 15, July 15 and
October 15 of each year, commencing
January 15, 2002
Regular record dates: The first calendar day of the month in
which the relevant Interest Payment Date
falls.
Stated maturity date: October 15, 2031
Redemption provisions: The Notes are redeemable at the option
of the Company in whole or in part
commencing October 19, 2006, upon not
less than 30 calendar days and not more
than 60 calendar days prior written
notice at a price of 100% of the
principal amount to be redeemed, plus
unpaid interest accrued to the
redemption date.
Sinking fund requirements: The Notes will not have the benefit of,
or be subject to, any sinking fund.
Defeasance provisions: The Notes are subject to defeasance and
covenant defeasance as provided in
Article 8 of the Indenture.
Listing requirements: Application will be made to list the
Notes on the New York Stock Exchange.
Fixed or Variable Price Offering:
Fixed Price Offering
If Fixed Price Offering: 100% of the principal amount, plus accrued
interest , if any, from October 19, 2001.
Purchase price: 96.85% of the principal amount, plus accrued interest, if any,
from October 19, 2001.
Form: Book-entry
Other terms and conditions: N/A
Closing date and location: October 19, 2001 at Sidley Austin Brown
& Wood LLP, 875 Third Avenue, New York,
New York 10022.
All of the provisions contained in the document attached as Annex I
hereto entitled "Vectren Utility Holdings, Inc.-- Debt Securities--Underwriting
Agreement" are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
Please accept this offer on October 12, 2001 by signing a copy of this
Terms Agreement in the space set forth below and returning the signed copy to
us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
A.G. EDWARDS & SONS, INC.
UBS WARBURG LLC
U.S. BANCORP PIPER JAFFRAY INC.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By:
-----------------------------------------
Authorized Signatory
Acting on behalf of itself and the other
named Underwriters.
Accepted:
VECTREN UTILITY HOLDINGS, INC.,
as Issuer
By:
--------------------------------------------------------
Name:
Title:
INDIANA GAS COMPANY, INC.,
as Guarantor
By:
--------------------------------------------------------
Name:
Title:
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY,
as Guarantor
By:
--------------------------------------------------------
Name:
Title:
VECTREN ENERGY DELIVERY OF OHIO, INC.,
as Guarantor
By:
--------------------------------------------------------
Name:
Title:
EXHIBIT B
FORM OF OPINION OF GENERAL COUNSEL
OF THE COMPANY
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
1. The information in the Company's most recent Annual Report on Form
10-K under the caption "Legal Proceedings", to the extent that it constitutes
matters of law, summaries of legal matters or the Company's charter, bylaws or
legal proceedings, or legal conclusions, has been reviewed by me and is correct
in all material respects.
2. To the best of my knowledge, neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws and no default by the
Company or any of its subsidiaries exists in the due performance or observance
of any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement, except for defaults which individually or in the
aggregate would not have a Material Adverse Effect.
3. To the best of my knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration Statement or the
Prospectus or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
4. To the best of my knowledge, there are no statutes or regulations
that are required to be described in the Prospectus that are not described as
required.
EXHIBIT C
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Indiana.
2. The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, the Underwriting Agreement and the applicable Terms
Agreement.
3. The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify or
be in good standing would not result in a Material Adverse Effect.
4. The authorized, issued and outstanding shares of capital stock of
the Company is as set forth in the column entitled "Actual" under the caption
"Capitalization" (except for subsequent issuances thereof, if any, contemplated
under the Underwriting Agreement). Such shares of capital stock have been duly
authorized and validly issued by the Company and are fully paid and
non-assessable, and none of such shares of capital stock was issued in violation
of preemptive or other similar rights of any securityholder of the Company.
5. The Debt Securities have been duly authorized by the Company for
issuance and sale pursuant to the Underwriting Agreement and the applicable
Terms Agreement. The Debt Securities, when issued and authenticated in the
manner provided for in the Indenture and delivered against payment of the
consideration therefor specified in such Terms Agreement, will constitute valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a proceeding in
equity or at law); and except further as enforcement thereof may be limited by
requirements that a claim with respect to any Debt Securities payable in a
foreign currency (or a foreign currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to limit,
delay or prohibit the making of payments outside the United States. The Debt
Securities are in the form contemplated by, and each registered holder thereof
is entitled to the benefits of, the Indenture.
6. The Guarantees have been duly authorized by the Guarantors and,
when the Debt Securities are issued and authenticated in accordance with the
terms of the Indenture and delivered and paid for in accordance with the terms
of the Underwriting Agreement and applicable Terms Agreement, will constitute
valid and legally binding obligations of the Guarantors, enforceable against the
Guarantors in accordance with their terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law); and except further as enforcement thereof may
be limited by requirements that a claim with respect to any Guarantee payable in
a foreign currency (or a foreign currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to limit,
delay or prohibit the making of payments outside the United States.
7. The Indenture has been duly authorized, executed and delivered by
the Company and the Initial Guarantors and (assuming due authorization,
execution and delivery thereof by the Trustee) constitutes a valid and binding
agreement of the Company and the Initial Guarantors, enforceable against the
Company and the Initial Guarantors in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law).
8. Each Subsidiary has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not result
in a Material Adverse Effect. Except as otherwise described in the Prospectus,
all of the issued and outstanding capital stock of each Subsidiary has been duly
authorized and is validly issued, fully paid and non-assessable and, to the best
of our knowledge, is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity. None of the outstanding shares of capital stock of any
Subsidiary was issued in violation of preemptive or other similar rights of any
securityholder of such Subsidiary.
9. The Underwriting Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company.
10. The Underwritten Securities being sold pursuant to the applicable
Terms Agreement, conform and, when issued and delivered in accordance with the
terms of the related Underwritten Securities, will conform, in all material
respects to the statements relating thereto contained in the Prospectus and are
in substantially the form filed or incorporated by reference, as the case may
be, as an exhibit to the Registration Statement.
11. The Indenture conforms in all material respects to the statements
relating thereto contained in the Prospectus and is in substantially the form
filed or incorporated by reference, as the case may be, as an exhibit to the
Registration Statement.
12. The Registration Statement (including any Rule 462(b) Registration
Statement) has been declared effective under the 1933 Act. Any required filing
of the Prospectus pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b). To the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement (or such Rule
462(b) Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been initiated or are pending or threatened by
the Commission.
13. The Registration Statement (including any Rule 462(b) Registration
Statement) and the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement
(including any Rule 462(b) Registration Statement) and Prospectus, excluding the
documents incorporated by reference therein, as of their respective effective or
issue dates (other than the financial statements and supporting schedules
included therein or omitted therefrom and the Trustee's Statement of Eligibility
on Form T-1 (the "Form T-1"), as to which we express no opinion), complied as to
form in all material respects with the requirements of the 1933 Act and the 1933
Act Regulations.
14. The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules therein or omitted
therefrom, as to which we express no opinion), when they were filed with the
Commission, complied as to form in all material respects with the requirements
of the 1934 Act and the rules and regulations of the Commission thereunder.
15. To the best of our knowledge, except as otherwise disclosed in the
Registration Statement and Prospectus, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation to which the Company or any
of its subsidiaries thereof is a party or to which the assets, properties or
operations of the Company or any of its subsidiaries thereof is subject, before
or by any court or governmental agency or body, domestic or foreign, which could
reasonably be expected to result in a Material Adverse Effect or which could
reasonably be expected to materially and adversely affect the assets, properties
or operations thereof or the consummation of the transactions contemplated under
the Underwriting Agreement, the applicable Terms Agreement or the Indenture or
the performance by the Company of its obligations thereunder.
16. The information in the Prospectus under "Description of Senior
Debt Securities" and "Description of Notes," and in the Registration Statement
under Item 15, to the extent that it constitutes matters of law, summaries of
legal matters or the Company's charter, bylaws or legal proceedings, or legal
conclusions, has been reviewed by us and is correct in all material respects.
17. All descriptions in the Registration Statement and the Prospectus
of contracts and other documents to which the Company or its subsidiaries are a
party are accurate in all material respects.
18. To the best of our knowledge, neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws. Based solely on
inquiries we have made of the Company's Executive Vice President/Chief Financial
Officer, Senior Vice President/General Counsel/Secretary, Vice
President/Treasurer and Vice President/Controller, and a officer's certificate
no default by the Company or any of its subsidiaries exists in the due
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument that is described or referred to in the
Registration Statement or the Prospectus or filed or incorporated by reference
as an exhibit to the Registration Statement, except for defaults which
individually or in the aggregate would not have a Material Adverse Effect.
19. The execution, delivery and performance of the Underwriting
Agreement, the applicable Terms Agreement and the Indenture and any other
agreement or instrument entered into or issued or to be entered into or issued
by the Company and the Initial Guarantors in connection with the transactions
contemplated in the Registration Statement and the Prospectus and the
consummation of the transactions contemplated in the Underwriting Agreement and
such Terms Agreement and in the Registration Statement and the Prospectus
(including the issuance and sale of the Underwritten Securities and the use of
the proceeds from the sale of the Underwritten Securities as described under the
caption "Use of Proceeds") and compliance by the Company and the Initial
Guarantors with their respective obligations thereunder do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
assets, properties or operations of the Company or any of its subsidiaries
pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument, known to me, to
which the Company or any of its subsidiaries is a party or by which it or any of
them may be bound, or to which any of the assets, properties or operations of
the Company or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the charter or by-laws of the Company or
any of its subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to us, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their assets, properties or
operations.
20. No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the due
authorization, execution or delivery by the Company or the Initial Guarantors of
the Underwriting Agreement or the applicable Terms Agreement or for the
performance by the Company or the Initial Guarantors of the transactions
contemplated under the Prospectus, the Underwriting Agreement, such Terms
Agreement or the Indenture, other than under the 1933 Act, the 1933 Act
Regulations, the 1939 Act and the 1939 Act Regulations, which have already been
made, obtained or rendered, as applicable.
21. The Indenture has been duly qualified under the 1939 Act.
22. Neither the Company nor the Initial Guarantors are, or upon the
issuance and sale of the Underwritten Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus will
be, an "investment company" within the meaning of the 1940 Act.
23. The Company is a "holding company" (within the meaning of the
Public Utility Holding Company Act of 1935, as amended (the "PUHC Act")) which
is exempt from being required to seek approval to perform its obligations under
the Underwriting Agreement, the Indenture and the Securities pursuant to Rule 2
of the rules and regulations promulgated pursuant to the PUHC Act.
Further, although we are not passing upon and do not assume any
responsibility for, the accuracy and completeness of the statements (except as
covered by (5), (6), (7), (16) and (17)) contained in the Registration
Statement, Prospectus, or any amendment or supplement thereto, including the
Rule 430A Information and Rule 434 Information (if applicable), we advise you,
on the basis of the discussions and inquiries concerning various legal and
related subjects and reviews of and reports on certain corporate records,
documents and proceedings and conferences with representatives of the Company at
which certain portions of the Registration Statement and the Prospectus were
discussed (relying as to certain factual matters upon representations of the
Company), nothing has come to our attention that would lead us to believe that
the Registration Statement (including any Rule 462(b) Registration Statement) or
any pre-effective amendment thereto (except for financial statements and
supporting schedules and other financial data included therein or omitted
therefrom and for the Form T-1, as to which we make no statement), at the time
the Registration Statement (including any Rule 462(b) Registration Statement) or
any post-effective amendment thereto (including the filing of the Company's
Annual Report on Form 10-K with the Commission) became effective or at the date
of the applicable Terms Agreement, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Prospectus
or any amendment or supplement thereto (except for financial statements and
supporting schedules and other financial data included therein or omitted
therefrom, as to which we make no statement), at the time the Prospectus was
issued, at the time any such amended or supplemented prospectus was issued or at
the Closing Time, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering such opinion, such counsel may rely, as to matters of
fact (but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company, the Initial Guarantors and
public officials. Such opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including, without limitation, the
Legal Opinion Accord of the ABA Section of Business Law (1991).
EX-4.1
4
ex4_1.txt
INDENTURE
Exhibit 4.1
-----------
EXECUTION COPY
--------------
GUARANTEED DEBT SECURITIES
INDENTURE
VECTREN UTILITY HOLDINGS, INC., AS ISSUER
INDIANA GAS COMPANY, INC., AS GUARANTOR
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY, AS GUARANTOR
VECTREN ENERGY DELIVERY OF OHIO, INC., AS GUARANTOR
AND
U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE
Dated as of October 19, 2001
CROSS-REFERENCE TABLE
INDENTURE
TIA SECTION SECTION
----------- ---------
Section 310 (a)(1) ...........................................7.10
(a)(2)..................................................7.10
(a)(3)..................................................N.A.
(a)(4)..................................................N.A.
(a)(5)..................................................7.08
(b) ...................................................7.08; 7.10
(c) ...................................................N.A.
Section 311 (a) ..............................................7.11
(b) ...................................................7.11
(c) ...................................................N.A.
Section 312 (a) ..............................................2.06
(b) ...................................................11.02
(c) ...................................................11.02; 11:03
Section 313 (a) ................................................. 7.06
(b)(1)..................................................N.A.
(b)(2)..................................................7.06
(c) ...................................................7.06; 11.02
(d) ...................................................7.06
Section 314 (a) ..............................................4.06; 11.02
(b) ...................................................N.A.
(c)(1)..................................................11.04
(c)(2)..................................................11.04
(c)(3)..................................................8.04; 8.05
(d) ...................................................N.A.
(e) ...................................................11.05
(f) ...................................................N.A.
Section 315 (a) ..............................................7.01(a); 7.01(b)
(b) ...................................................7.05; 11.02
(c) ...................................................7.01(a)
(d) ...................................................7.01(c)
(e) ...................................................6.11
Section 316 (a)(last sentence).................................2.10
(a)(1)(A)...............................................6.05
(a)(1)(B)...............................................6.04
(a)(2)..................................................N.A.
(b) ...................................................6.07
(c) ...................................................9.04
Section 317 (a)(1).............................................6.08
(a)(2)..................................................6.09
(b) ...................................................2.05
Section 318 (a) ..............................................11.01
---------------
N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
TABLE OF CONTENTS
PAGE
RECITALS OF THE COMPANY........................................................1
ARTICLE 1 Definitions and Incorporation by Reference......................1
Section 1.01. Definitions...................................................1
Section 1.02. Incorporation by Reference on Trust Indenture Act............7
Section 1.03. Rules of Construction........................................8
ARTICLE 2 The Securities..................................................9
Section 2.01. Form of Securities............................................9
Section 2.02. Title and Terms...............................................9
Section 2.03. Execution and Authentication.................................12
Section 2.04. Registrar and Paying Agent...................................14
Section 2.05. Paying Agent to Hold Money In Trust..........................14
Section 2.06. Securityholder Lists.........................................15
Section 2.07. Transfer and Exchange........................................15
Section 2.08. Replacement Securities.......................................17
Section 2.09. Outstanding Securities.......................................17
Section 2.10. Treasury Securities..........................................18
Section 2.11. Temporary Securities.........................................18
Section 2.12. Cancellation.................................................18
Section 2.13. Defaulted Interest...........................................18
Section 2.14. Persons Deemed Owners........................................19
ARTICLE 3A Redemption....................................................19
Section 3A.01. Right of Redemption.........................................19
Section 3A.02. Applicability of Article....................................19
Section 3A.03. Election to Redeem; Notice to Trustee.......................19
Section 3A.04. Selection by Trustee of Securities to be Redeemed...........20
Section 3A.05. Notice of Redemption........................................20
Section 3A.06. Deposit of Redemption Price.................................21
Section 3A.07. Securities Payable on Redemption Date.......................21
Section 3A.08. Securities Redeemed in Part.................................21
ARTICLE 3B Sinking Fund..................................................22
Section 3B.01. Sinking Fund Payments.......................................22
Section 3B.02. Satisfaction of Sinking Fund Payments with Securities.......22
Section 3B.03. Redemption of Securities for Sinking Fund...................22
ARTICLE 4 Covenants......................................................23
Section 4.01. Payment of Securities........................................23
Section 4.02. Maintenance of Office or Agency..............................23
Section 4.03. Corporate Existence..........................................24
Section 4.04. Reserved.....................................................24
Section 4.05. Compliance Certificate.......................................24
Section 4.06. SEC Reports..................................................24
Section 4.07. Waiver of Stay, Extension or Usury Laws......................25
Section 4.08. Restrictions on Liens........................................25
Section 4.09. Restrictions on Sales and Leasebacks.........................26
ARTICLE 5 Successor Corporation..........................................27
Section 5.01. When Company And The Guarantors May Merge, etc...............27
Section 5.02. Successor Corporation Substituted............................28
ARTICLE 6 Default and Remedies...........................................28
Section 6.01. Events of Default............................................28
Section 6.02. Acceleration.................................................29
Section 6.03. Other Remedies...............................................30
Section 6.04. Waiver of Past Defaults......................................31
Section 6.05. Control by Majority..........................................31
Section 6.06. Limitation on Suits..........................................31
Section 6.07. Rights of Holders to Receive Payment.........................32
Section 6.08. Collection Suit by Trustee...................................32
Section 6.09. Trustee May File Proofs of Claim.............................32
Section 6.10. Priorities...................................................32
Section 6.11. Undertaking for Costs........................................33
ARTICLE 7 Trustee........................................................33
Section 7.01. Duties of Trustee............................................33
Section 7.02. Rights of Trustee............................................34
Section 7.03. Individual Rights of Trustee.................................35
Section 7.04. Trustee's Disclaimer.........................................35
Section 7.05. Notice of Defaults...........................................35
Section 7.06. Reports by Trustee to Holders................................36
Section 7.07. Compensation and Indemnity...................................36
Section 7.08. Replacement of Trustee.......................................36
Section 7.09. Successor Trustee by Merger, etc.............................37
Section 7.10. Eligibility; Disqualification................................38
Section 7.11. Preferential Collection of Claims Against Company............38
ARTICLE 8 Defeasance, Covenant Defeasance, Satisfaction and Discharge....38
Section 8.01. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance............................38
Section 8.02. Defeasance and Discharge.....................................39
Section 8.03. Covenant Defeasance..........................................39
Section 8.04. Conditions to Defeasance or Covenant Defeasance..............40
Section 8.05. Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions................41
Section 8.06. Satisfaction and Discharge of Indenture......................42
Section 8.07. Application of Trust Money...................................43
Section 8.08. Repayment to Company.........................................44
Section 8.09. Reinstatement................................................44
ARTICLE 9 Amendments, Supplements and Waivers............................44
Section 9.01. Without Consent of Holders...................................44
Section 9.02. With Consent of Holders......................................44
Section 9.03. Compliance with Trust Indenture Act..........................46
Section 9.04. Revocation and Effect of Consents............................46
Section 9.05. Notation On or Exchange of Securities........................46
Section 9.06. Trustee to Sign Amendments, etc..............................46
ARTICLE 10 Guarantee of Securities.......................................47
Section 10.01. Unconditional Guarantee.....................................47
Section 10.02. Execution of Guarantee......................................49
Section 10.03. Execution of Guarantee......................................44
ARTICLE 11 Miscellaneous.................................................50
Section 11.01. Trust Indenture Act Controls................................50
Section 11.02. Notices.....................................................50
Section 11.03. Communications by Holders With Other Holders................51
Section 11.04. Certificate and Opinion as to Conditions Precedent..........51
Section 11.05. Statements Required in Certificate or Opinion...............51
Section 11.06. Rules by Trustee, Paying Agent, Registrar...................52
Section 11.07. Legal Holidays..............................................52
Section 11.08. Governing Law...............................................52
Section 11.09. No Adverse Interpretation of Other Agreements...............52
Section 11.10. No Recourse Against Others..................................52
Section 11.11. Successors..................................................52
Section 11.12. Duplicate Originals.........................................53
Section 11.13. Separability................................................53
Section 11.14. Action of Holders when Securities are Denominated in
Different Currencies........................................53
Section 11.15. Monies of Different Currencies to be Segregated.............53
Section 11.16. Payment to be in Proper Currency............................53
---------------
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part
of this Indenture.
INDENTURE, dated as of ______________, 2001 among Vectren Utility
Holdings, Inc., an Indiana corporation (the "Company") and Indiana Gas Company,
Inc., an Indiana corporation and an Ohio corporation ("Indiana Gas"), Southern
Indiana Gas and Electric Company, an Indiana corporation ("SIGECO") and Vectren
Energy Delivery of Ohio, Inc., an Ohio corporation ("VEDO"), (Indiana Gas,
SIGECO and VEDO are referred to herein collectively as the "Guarantors") and
U.S. Bank Trust National Association ("Trustee").
RECITALS OF THE COMPANY
The Company and the Guarantors have duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of the
Company's unsecured notes, debentures or other evidences of indebtedness of the
Company (collectively, the "Securities"), to be issued from time to time in one
or more series (a "Series") and the Guarantees (as hereinafter defined) as
provided in this Indenture and as shall be provided, in respect of any Series
and the Guarantees, in or pursuant to the Authorizing Resolutions hereinafter
referred to and/or in the indenture supplemental hereto (if any) relating to
such Series and the Guarantees.
ARTICLE 1
Definitions and Incorporation by Reference
Section 1.01. Definitions.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Attributable Debt" means, with respect to any Sale and Leaseback
Transaction as of any particular time, the present value (discounted at the rate
of interest implicit in the terms of the lease) of the obligations of the lessee
under such lease for net rental payments during the remaining term of the lease
(including any period for which such lease has been extended or may, at the
option of the Company, be extended).
"Authorizing Resolution" means a Board Resolution providing for the
issuance of a Series of Securities.
"Bankruptcy Law" shall have the meaning provided in Section 6.01.
"Board of Directors" of any corporation means the board of directors
of such corporation or any duly authorized committee of the board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or the Guarantors to have
been duly adopted by the Board of Directors of the Company or the Guarantors, as
applicable, and to be in full force and effect on the date of such
certification, and delivered to the Trustee (except as provided in Section
2.03).
"Business Day" means a day that is not a Legal Holiday.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of corporate
stock of such Person other than Mandatory Redemption Preferred Stock.
"Capitalized Lease Obligation" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with generally accepted accounting principles
and the amount of such Indebtedness shall be the capitalized amount of such
obligations determined in accordance with such principles.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by two Officers of the
Company or by an Officer and the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, and delivered to the Trustee in respect of
the Series to which the Company Request or Company Order shall relate.
"Consolidated Net Tangible Assets" means the total assets appearing on
a consolidated balance sheet of the Company and its Subsidiaries less, without
duplication: (i) current liabilities; (ii) reserves for estimated rate refunds
pending the outcome of a rate proceeding to the extent such refunds have not
been finally determined; (iii) all intangible assets; and (iv) deferred income
tax assets.
"Consolidated Subsidiary" means a Subsidiary which for financial
reporting purposes is accounted for by the Company as a consolidated subsidiary.
"Corporate Trust Office" or other similar term means the principal
office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date hereof is located at
180 East Fifth Street, Suite 200, St. Paul, Minnesota 55101, Attention: Richard
Prokosch, Fax: 651-244-0711; the Trustee will notify the Company of any change
thereof.
"Covenant Defeasance" shall have the meaning provided in Section 8.03.
"Custodian" shall have the meaning provided in Section 6.01.
"Default" means any event which is, or after notice or passage of time
or both would become, an Event of Default.
"Defeasance" shall have the meaning provided in Section 8.02.
"Depository" means, with respect to the Securities of any Series
issuable or issued in the form of one or more Global Securities, the Person
designated as Depository by the Company pursuant to Section 2.02, initially The
Depository Trust Company, until a successor Depository shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depository" shall mean or include each Person who is then a Depository
hereunder, and, if at any time there is more than one such Person, "Depository"
as used with respect to the Securities of any such Series shall mean the
Depository with respect to the Global Securities of such Series.
"Event of Default" shall have the meaning provided in Section 6.01.
"Extendible Securities" means Securities of any Series issued
hereunder the final maturity of which is extendible for a stated period of time,
as shall be provided in, or pursuant to, the Authorizing Resolutions and/or
supplemental indenture (if any) relating to such Series.
"Funded Debt" means all Indebtedness maturing one year or more from
the date of the creation thereof, all Indebtedness directly or indirectly
renewable or extendible, at the option of the debtor, by its terms or by the
terms of any instrument or agreement relating thereto, to a date one year or
more from the date of the creation thereof, and all Indebtedness under a
revolving credit or similar agreement obligating the lender or lenders to extend
credit over a period of one year or more, even though such Indebtedness may also
conform to the definition of Short-Term Borrowing.
"Global Security" means a Security evidencing all or a part of a
Series of Securities issued to and registered in the name of the Depository for
such Series, or its nominee, in accordance with Section 2.02, and bearing the
legend prescribed in Section 2.03.
"Guarantees" means the Guarantors' unconditional guarantees of the
payment of the amounts owed with respect to the Securities as more fully
described in Article 10 hereof.
"Guarantor" or "Guarantors" means the Person or Persons named as the
"Guarantors" in the first paragraph of this instrument together with any
additional Person who shall execute a supplemental indenture pursuant to which
it shall guarantee under this Indenture any Securities, in each case until a
successor corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter Guarantors shall include such
successor corporation.
"Holder" or "Securityholder" means, with respect to any Security, the
Person in whose name such Security is registered on the Security Register.
"Indebtedness" means (i) any liability of any Person (a) for borrowed
money, (b) evidenced by a note, debenture or similar instrument (including a
purchase money obligation) given in connection with the acquisition of any
property or assets (other than inventory or similar property acquired in the
ordinary course of business), including securities, (c) for the payment of money
relating to a Capitalized Lease Obligation, or (d) in respect of acceptances or
letters of credit or similar instruments issued or created for the account of
such Person; (ii) all preferred stock of any Person that is redeemable other
than at the option of such Person; (iii) any guarantee by any Person of any
liability or preferred stock of others described in the preceding clauses (i) or
(ii); and (iv) any amendment, renewal, extension or refunding of any liability
or preferred stock of the types referred to in clauses (i), (ii) or (iii) above.
"Indenture" means this Indenture as amended or supplemented from time
to time and shall include the forms and terms of particular Series of Securities
established as contemplated hereunder.
"Interest Payment Date" means, for any Series of Securities issued and
outstanding hereunder, the date or dates in each year on which any interest on
such Series is due and payable.
"Legal Holiday" shall have the meaning provided in Section 11.07.
"Lien" means any mortgage, lien, pledge, charge, or other security
interest or encumbrance of any kind.
"Mandatory Redemption Preferred Stock" means, with respect to any
Person, any and all shares of preferred stock of such Person now outstanding or
hereafter issued, subject to mandatory redemption provisions or provisions
relating to repayment at the option of the holders thereof.
"Maturity" when used with respect to any Security means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Maturity Date" means the date specified in each Security on which the
principal thereof is due and payable in full.
"Officer" means the Principal Executive Officer, Principal Financial
Officer or Principal Accounting Officer of the Company or a Guarantor, as
applicable.
"Officers' Certificate" means a certificate signed by two Officers or
by an Officer and the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company.
"Original Issue Date" means the date on which a Security is issued to
the original purchaser thereof, as specified in such Security.
"Original Issue Discount Securities" means Securities which provide
for an amount less than 100% of the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 6.02.
"Paying Agent" shall have the meaning provided in Section 2.04, except
that for the purposes of Article 8, the Paying Agent shall not be the Company or
any Subsidiary.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof.
"Principal" of a Security means the principal of such Security plus,
when appropriate, the premium, if any, on such Security.
"Principal Domestic Property" shall mean any property, plant,
equipment or facility of the Company or a Guarantor as applicable which is
located in the United States or any territory or political subdivision thereof,
except any property which the Board of Directors or management of the Company or
a Guarantor as applicable determines is not material to the business or
operations of the Company or a Guarantor and its Subsidiaries, taken as a whole.
"Redeemable Securities" means Securities of any Series which may be
redeemed, at the option of the Company, prior to their Stated Maturity, on the
terms specified in or pursuant to the Authorizing Resolutions and/or
supplemental indenture relating to such Series and in accordance with Article 3A
herein.
"Redemption Date" when used with respect to any Security of any Series
to be redeemed means the date fixed for such redemption by or pursuant to the
provisions of such Security, this Indenture and the Authorizing Resolutions
and/or supplemental indenture (if any) relating to such Security.
"Redemption Price" when used with respect to any Security of any
Series to be redeemed means the price at which it is to be redeemed pursuant to
the provisions of such Security, this Indenture and the Authorizing Resolutions
and/or supplemental indenture relating to such Security.
"Registrar" shall have the meaning provided in Section 2.04.
"Regular Record Date" means, for the interest payable on any Interest
Payment Date in respect of any Series of Securities, except as provided in, or
pursuant to, the Authorizing Resolutions and/or supplemental indenture (if any)
relating thereto, the day (whether or not a Business Day) that is fifteen days
preceding the applicable Interest Payment Date.
"Required Currency" shall have the meaning provided in Section 11.16.
"Sale and Leaseback Transaction" shall have the meaning provided in
Section 4.09.
"SEC" means the Securities and Exchange Commission.
"Securities" means the debt securities, as amended or supplemented
from time to time pursuant to the terms of this Indenture, of the Company of any
Series that are issued under this Indenture.
"Security Register" shall have the meaning provided in Section 2.04.
"Series" means, with respect to Securities issued hereunder, the
Securities issued pursuant to any particular Authorizing Resolutions and/or
supplemental indenture (if any), subject to the right of the Board of Directors
to specify in such Authorizing Resolutions and/or supplemental indenture (if
any) that such Securities shall constitute more than one Series.
"Short-Term Borrowing" means all Indebtedness in respect of borrowed
money maturing on demand or within one year from the date of the creation
thereof and not directly or indirectly renewable or extendible, at the option of
the debtor, by its terms or by the terms of any instrument or agreement relating
thereto, to a date one year or more from the date of the creation thereof;
provided, that Indebtedness in respect of borrowed money arising under a
revolving credit or similar agreement which obligates the lender or lenders to
extend credit over a period of one year or more shall constitute Funded Debt and
not Short-Term Borrowing even though the same matures on demand or within one
year from the date as of which such Short-Term Borrowing is to be determined.
"Significant Subsidiary" means a Subsidiary, including its
Subsidiaries, which meets any of the following conditions:
(a) the Company's and its other Subsidiaries' investments in and
advances to the Subsidiary exceed 10 percent of the total assets of the Company
and its Subsidiaries consolidated as of the end of any two of the three most
recently completed fiscal years; or
(b) the Company's and its other Subsidiaries' proportionate share of
the total assets of the Subsidiary exceeds 10 percent of the total assets of the
Company and its Subsidiaries consolidated as of the end of any two of the three
most recently completed fiscal years; or
(c) the Company's and its other Subsidiaries' equity in the income
from continuing operations before income taxes, extraordinary items and
cumulative effect of a change in accounting principles of the Subsidiary exceeds
10 percent of such income of the Company and its Subsidiaries consolidated as of
the end of any two of the three most recently completed fiscal years.
"Sinking Fund" means, with respect to any Sinking Fund Securities, a
sinking fund provided for in Article 3B.
"Sinking Fund Securities" means Securities of any Series which are
required to be redeemed from time to time prior to the Stated Maturity thereof
in whole or in part under a Sinking Fund, on the terms specified in the
Authorizing Resolutions and/or supplemental indenture (if any) relating to such
Series and in accordance with Article 3B herein.
"Special Record Date" shall have the meaning provided in Section 2.13.
"Stated Maturity" when used with respect to any Security or any
installment of interest thereon means the date specified in such Security as the
fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsequent Guarantor" shall have the meaning provided in Section
10.03.
"Subsidiary" means (i) a corporation a majority of whose Capital Stock
with voting power, under ordinary circumstances, to elect directors is at the
time, directly or indirectly, owned by the Company, by the Company and a
Subsidiary (or Subsidiaries) of the Company or by a Subsidiary (or Subsidiaries)
of the Company or (ii) any other Person (other than a corporation) in which the
Company, a Subsidiary (or Subsidiaries) of the Company or the Company and a
Subsidiary (or Subsidiaries) of the Company, directly or indirectly, at the date
of determination thereof has at least majority ownership interest; provided,
that no corporation shall be deemed a Subsidiary until the Company, a Subsidiary
(or Subsidiaries) of the Company or the Company and a Subsidiary (or
Subsidiaries) of the Company acquires more than 50% of the outstanding voting
stock thereof and has elected a majority of its Board of Directors.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S)
77aaa77bbbb) as in effect on the date of this Indenture except as provided in
Section 9.03.
"Transfer" shall have the meaning provided in Section 10.02.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means and includes the Person or each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, "Trustee" as
used with respect to the Securities of any Series shall mean the Trustee with
respect to Securities of that Series.
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"U.S. Government Obligations" shall have the meaning provided in
Section 8.04.
"Yield to Maturity" means, with respect to any Series of Securities,
the yield to maturity thereof, calculated at the time of issuance thereof, or,
if applicable, at the most recent redetermination of interest thereon, and
calculated in accordance with accepted financial practice.
Section 1.02. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or a Guarantor
or any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
Section 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles in effect in
the United States, and any other reference in this Indenture to "generally
accepted accounting principles" refers to generally accepted accounting
principles in effect in the United States;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof," "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision; and
(7) "include," "included," and "including" as used herein shall be
deemed in each case to be followed by the phrase "without limitation."
ARTICLE 2
The Securities
Section 2.01. Form of Securities.
The Securities of each Series shall be in substantially the forms as
shall be specified in, or pursuant to, the Authorizing Resolutions and/or in the
indenture supplemental hereto (if any) relating to such Series, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or the said Authorizing Resolutions
and/or supplemental indenture (if any).
The definitive Securities of each Series shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities and the Guarantees may
be listed, or, if they shall not be listed on any securities exchange, in any
other manner consistent herewith, all as shall be determined by the officers
executing such Securities and the Guarantees, as evidenced by their execution of
such Securities and the Guarantees. The Securities and the Guarantees may have
notations, legends or endorsements required by law, stock exchange rule or
usage. The Company shall approve the form of the Securities and the Guarantees
and the Guarantors shall approve the form of the Guarantees and, in each case,
any notation, legend or endorsement on them.
The terms and provisions contained in the Securities and the
Guarantees in such forms as specified in the Authorizing Resolutions and/or
supplemental indenture (if any) relating thereto, shall constitute, and are
hereby expressly made, a part of this Indenture.
Section 2.02. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more Series. The terms of each
Series shall be as provided in an Authorizing Resolutions and/or supplemental
indenture (if any) or shall be determined in the manner specified therein. The
terms to be specified in respect of each Series in the Authorizing Resolutions
and/or supplemental indenture (if any), or by such Person and/or procedures as
shall be provided therein, shall include the following:
(1) the title of the Securities of such Series, which shall
distinguish such Series from all other Series;
(2) any limit upon the aggregate principal amount of the Securities of
such Series which may be authenticated and delivered under this Indenture
(except for Securities of such Series authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Section 2.07, 2.08, 2.11, 3A.08 or 9.05);
(3) the date or dates on which the principal of the Securities of such
Series is payable, and, if the Series shall be Extendible Securities, the terms
on which the Company or any other Person shall have the option to extend the
Maturity of such Securities and the rights, if any, of the Holders to require
early repayment of the Securities;
(4) the rate or rates at which the Securities of such Series shall
bear interest, if any (whether floating or fixed), the provisions, if any, for
determining such interest rate or rates and adjustments thereto, the date or
dates from which such interest shall accrue or the method for determining such
date or dates, the Interest Payment Dates therefor and the Regular Record Dates
for the determination of Holders of the Securities of such Series to whom
interest is payable and the basis upon which interest, if any, shall be
calculated if other than that of a 360-day year of twelve 30-day months;
(5) the place or places where the principal of, premium, if any, and
interest on Securities of such Series shall be payable (if other than as
provided in Section 4.02), where Securities of such Series may be surrendered
for registration of transfer or exchange and where notices or demands to or upon
the Company in respect of Securities of such Series and this Indenture may be
served;
(6) the price or prices at which, the period or periods within which
and the terms and conditions upon which the Securities of such Series may be re
deemed, in whole or in part, at the option of the Company, pursuant to a Sinking
Fund or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or
repay Securities of such Series, in whole or in part, pursuant to a Sinking Fund
or otherwise or at the option of a Holder thereof, and the price or prices at
which, the period or periods within which and the terms and conditions upon
which such redemption, purchase or repayment shall be made;
(8) any deletions from, modifications of or additions to the Events of
Default provided for herein with respect to the Securities of such Series, and
any deletions from, modifications of or additions to the covenants or
obligations provided for herein of the Company to the Holders of the Securities
of such Series;
(9) if less than 100% of the principal amount of the Securities of
such Series is payable on acceleration under Section 6.02 or in bankruptcy under
Section 6.09 at any time, a schedule of or the manner of computing the amounts
which are so payable from time to time;
(10) the form of the Securities of such Series, including whether the
Securities of such Series shall be issued in whole or in part in the form of one
or more Global Securities and, in such case, the Depository with respect to such
Global Security or Securities and the circumstances under which any Global
Security may be registered for transfer or exchange, or authenticated and
delivered, in the name of a Person other than such Depository or its nominee, if
other than as set forth in Section 2.07;
(11) if other than United States dollars, the currency or currencies
in which payment of the principal of or premium, if any, or interest, if any, on
the Securities of such Series shall be payable;
(12) if the principal of or premium, if any, or interest, if any, on
the Securities of such Series is to be payable, at the election of the Company
or a Holder thereof, in a currency or currencies other than that in which the
Securities are stated to be payable, the period or periods within which, and the
terms and conditions upon which, such election may be made;
(13) if the amount of payments of principal of or premium, if any, or
interest, if any, on the Securities of such Series may be determined with
reference to an index based on a currency or currencies other than that in which
the Securities are stated to be payable, the manner in which such amounts shall
be determined;
(14) whether and under what circumstances the Company will pay any
additional amounts on the Securities of such Series in respect of any tax,
assessment or governmental charge and, if so, whether the Company will have the
option to redeem the Securities of such Series in lieu of making such payment;
(15) any provision relating to the issuing of the Securities of such
Series as Original Issue Discount Securities (including, without limitation, the
issue price thereof, the rate or rates at which such original issue discount, if
any, shall accrue and the date or dates from or to which, or period or periods
during which, such original issue discount shall accrue at such rate or rates);
(16) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of such Series shall be issued;
(17) whether either or both of Defeasance or Covenant Defeasance shall
apply to the Securities of such Series and terms, conditions or limitations
which may be imposed in connection therewith in addition to those contained in
Article 8; and
(18) any other terms of the Securities of such Series; provided, that
such other terms shall not conflict with any express terms of any other Series
of Securities which shall be issued and outstanding.
Any Series of Securities may be reopened and additional Securities of
such Series may be issued without the consent of the Holders of such Series.
All Securities of any one Series shall be substantially identical in
form except as to denomination and except as may be otherwise provided in and
pursuant to the Authorizing Resolutions and/or supplemental indenture (if any)
relating thereto. All Securities and Guarantees of any one Series need not be
issued at the same time and may be issued from time to time, consistent with
this Indenture, if so provided by or pursuant to such Authorizing Resolutions
and/or supplemental indenture (if any) relating thereto.
Any such Authorizing Resolutions with respect to the Securities of any
Series and Guarantees filed with the Trustee on or before the initial issuance
of the Securities of such Series and Guarantees shall be incorporated herein by
reference with respect to Securities of such Series and Guarantees and shall
thereafter be deemed to be a part of this Indenture for all purposes relating to
the Securities of such Series and Guarantees as if such Authorizing Resolutions
were set forth herein in full.
Section 2.03. Execution and Authentication.
The Securities shall be executed on behalf of the Company and the
Guarantees endorsed thereon shall be executed on behalf of the Guarantors,
respectively, by two Officers or an Officer and the Secretary.
If an Officer or a Secretary whose signature is on a Security or
Guarantee no longer holds that office at the time the Trustee authenticates the
Security, the Security and such Guarantee shall be valid nevertheless.
The Security and Guarantees endorsed thereon shall not be valid until
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security and Guarantees have
been properly executed and, if applicable, authenticated under this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any Series executed by the
Company to the Trustee, and with Guarantees endorsed thereon and executed by the
Guarantors, together with a Company Order for the authentication and delivery of
such Securities. The Company Order may provide that the Securities which are the
subject thereof shall be authenticated and delivered by the Trustee upon the
telephonic, written or other order of Persons designated in the Company Order,
and that such Persons are authorized to specify the terms and conditions of such
Securities, to the extent permitted by the Authorizing Resolutions and/or
supplemental indenture (if any) relating thereto. The Trustee shall execute and
deliver the supplemental indenture (if any) relating to said Securities and the
Trustee shall authenticate and deliver said Securities as specified in such
Company Order; provided that, prior to authentication and delivery of the first
Securities of any Series, the Trustee shall have received:
(1) a copy of the Authorizing Resolutions, with a copy of the form of
Security and the Guarantees approved thereby attached thereto, or a supplemental
indenture in respect of the issuance of the Securities of the Series and the
Guarantees, executed on behalf of the Company and the Guarantors, as applicable;
(2) an Officers' Certificate to the effect that the Securities of such
Series comply or will comply with the requirements of this Indenture and the
said Authorizing Resolutions and/or supplemental indenture (if any);
(3) an Opinion of Counsel: (a) to the effect that (i) the Securities
of such Series and the Guarantees, the Authorizing Resolutions and/or the
supplemental indenture (if any) relating thereto comply or will comply with the
requirements of this Indenture, and (ii) the Securities of such Series and the
Guarantees, when authenticated, if applicable, and delivered by the Trustee in
accordance with the said Company Order, will constitute valid and binding
obligations of the Company and the Guarantors, as applicable, enforceable in
accordance with their terms, subject to (A) bankruptcy and other laws affecting
creditors' rights generally as in effect from time to time, (B) limitations of
generally applicable equitable principles and (C) other exceptions acceptable to
the Trustee and its counsel; and (b) relating to such other matters as may
reasonably be requested by the Trustee or its counsel; and
(4) if the Securities to be issued are Original Issue Discount
Securities, an Officers' Certificate setting forth the Yield to Maturity for the
Securities or other information sufficient to compute amounts due on
acceleration, or specifying the manner in which such amounts are to be
determined, pro vided that such Yield to Maturity and other facts are not
specified in the form of the Securities.
Subject to Section 7.01 hereof, the Trustee shall be fully protected
in relying upon the documents delivered to it as provided above in connection
with the issuance of any Series of Securities.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section 2.03 if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the Trustee
in good faith by a committee of its Trust Officers shall determine that such
action would expose the Trustee to liability to Holders of previously issued and
outstanding Securities.
Each Security shall be dated the date of its authentication unless
otherwise specified in the Authorizing Resolutions and/or supplemental indenture
relating thereto.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Securities. An authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with the
Company or an Affiliate of the Company
The Securities of each Series shall be issuable only in registered
form without coupons and only in denominations of $1,000 and any integral
multiple thereof, or in such other currencies or denominations as may be
specified in, or pursuant to, the Authorizing Resolutions and/or supplemental
indenture (if any) relating to the Series.
If Securities of any Series are to be issued in the form of one or
more Global Securities, then the Company shall deliver such Global Security or
Securities executed by the Company to the Trustee, together with a Company Order
for the authentication and delivery of such Global Security or Securities, and
the Trustee shall, in accordance with this Section 2.03 and such Company Order,
authenticate and deliver such Global Security or Securities that (i) shall
represent and shall be denominated in an amount equal to the aggregate principal
amount of all of the Securities of such Series to be issued in the form of such
Global Security or Securities and not yet cancelled, (ii) shall be registered in
the name of the Depository for such Global Security or Securities or the nominee
of such Depository, (iii) shall be delivered by the Trustee to such Depository
or pursuant to such Depository's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless and until this Security is
exchanged in whole or in part for Securities in certificated form, this Security
may not be transferred except as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or its nominee to a successor
Depository or its nominee."
Each Depository designated must, at the time of its designation and at
all times while it serves as Depository, be a clearing agency registered under
the Securities Exchange Act of 1934, as amended, and any other applicable
statute or regulation.
Section 2.04. Registrar and Paying Agent.
The Company shall cause to be kept a register (the "Security
Register") at an office or agency where Securities may be presented for
registration of transfer or for exchange ("Registrar") and an office or agency
where Securities may be presented for payment ("Paying Agent"). The Company may
have one or more co-Registrars and one or more additional paying agents. The
term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall give
prompt written notice to the Trustee of the name and address of any such Agent
and the Trustee shall have the right to inspect the Security Register at all
reasonable times and to obtain copies thereof. If the Registrar shall not be the
Trustee in respect of any Series, the Company shall promptly notify the
Registrar as to the amounts and terms of each Security of such Series which
shall be authenticated and delivered hereunder, and as to the names in which
such Securities shall be registered. If the Company fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to Section 7.07.
The Company initially appoints the Trustee as Registrar and Paying
Agent.
Section 2.05. Paying Agent to Hold Money In Trust.
Each Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of, premium, if any, or interest on the Securities (whether
such money has been paid to it by the Company or any other obligor on the
Securities), and shall notify the Trustee of any default by the Company (or any
other obligor on the Securities) in making any such payment. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate the money and hold it as a
separate trust fund. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee and account for any funds disbursed and the
Trustee may at any time during the continuance of any payment default, upon
written request to a Paying Agent, require such Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed. Upon doing so
the Paying Agent shall have no further liability for the money.
Section 2.06. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list furnished to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee ten days before each Interest Payment Date and at such other
times as the Trustee may request in writing a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of Holders
of Securities of any Series and the Company shall otherwise comply with Section
312(a) of the TIA.
The Trustee shall be entitled to rely upon a certificate of the
Registrar, the Company or such other Paying Agent, as the case may be, as to the
names and addresses of the Holders of Securities of any Series and the principal
amounts and serial numbers of such Securities.
Section 2.07. Transfer and Exchange.
When Securities are presented to the Registrar or a co-Registrar with
a request to register the transfer or to exchange them for an equal principal
amount of Securities of the same Series and Stated Maturity of other authorized
denominations, the Registrar shall register the transfer or make the exchange as
requested if its requirements for such transactions are met. To permit
registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Securities at the Registrar's request, and the
Guarantors shall each execute the Guarantees endorsed on such Securities. No
service charge shall be made to any Holder for any registration of transfer or
exchange, but the Company or the Trustee may require payment of a sum sufficient
to cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar governmental charge
payable upon exchanges pursuant to Section 2.11, 3A.08 or 9.05 in which case
such transfer taxes or similar governmental charges shall be paid by the
Company).
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security of any Series during a period beginning at the
opening of the day which is fifteen (15) Business Days before the day of the
mailing of a notice of redemption of Securities of such Series selected for
redemption under Section 3A.04 or 3B.01 and ending at the close of business on
the day of such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except, in the case of
any Security to be redeemed in part, the portion thereof not to be redeemed.
Notwithstanding any other provision of this Section 2.07, unless and
until it is exchanged in whole or in part for Securities, a Global Security
representing all or part of the Securities of a Series may not be transferred
except as a whole by the Depository for such Series to a nominee of such
Depository or by a nominee of such Depository to such Depository or another
nominee of such Depository or by such Depository or any such nominee to a
successor Depository for such Series or a nominee of such successor Depository.
If at any time the Depository for any Securities of a Series
represented by one or more Global Securities notifies the Company that it is
unwilling or unable to continue as Depository for such Series or if at any time
the Depository for such Series shall no longer be eligible under Section 2.03,
the Company shall appoint a successor Depository with respect to such Series. If
a successor Depository for such Series is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such
ineligibility, or an Event of Default occurs and is continuing, the Company's
election that the Securities be represented by one or more Global Securities
pursuant to Section 2.02 shall no longer be effective and the Company shall
deliver to the Trustee Securities of such Series executed by the Company, and
with Guarantees endorsed thereon and executed by the Guarantors, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee shall, in accordance with Section 2.03 and such Company Order,
authenticate and deliver Securities of such Series, in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Global Security or Securities representing such Series in exchange for such
Global Security or Securities.
The Company may at any time and in its sole discretion determine that
the Securities of any Series issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Securities. In such event
the Company shall deliver to the Trustee Securities of such Series executed by
the Company, and with Guarantees endorsed thereon and executed by the
Guarantors, together with a Company Order for the authentication and delivery of
such Securities, and the Trustee shall, in accordance with Section 2.03 and such
Company Order, authenticate and deliver Securities of such Series, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such Series,
in exchange for such Global Security or Securities.
If specified by the Company in the Authorizing Resolutions and/or
supplemental indenture (if any) relating to the Securities of a Series
represented by a Global Security, the Depository for such Series may surrender
such Global Security in exchange in whole or in part for Securities of the same
Series on such terms as are acceptable to the Company and the Depository.
Thereupon, the Company shall deliver to the Trustee Securities of such Series
executed by the Company, and with Guarantees endorsed thereon and executed by
the Guarantors, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee shall, in accordance with Section
2.03 and such Company Order, authenticate and deliver, without charge,
(1) to the Person specified by such Depository, a new Security or
Securities of the same Series, in any authorized denominations as requested by
such Person, in an aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and
(2) to such Depository a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities authenticated
and delivered pursuant to clause (1) above.
Upon the exchange of a Global Security for the Securities of a Series
represented thereby, in authorized denominations, such Global Security shall be
cancelled by the Trustee or an Agent of the Company or the Trustee. Securities
of a Series issued in exchange for a Global Security pursuant to this Section
2.07 shall be registered in such names and in such authorized denominations as
the Depository for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee or an
Agent of the Company or the Trustee. The Trustee or such Agent shall deliver at
its office such Securities to or as directed by the Persons in whose names such
Securities are so registered.
Section 2.08. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Security of like tenor, Series and principal amount, bearing a number not
assigned to any Security of the same Series then outstanding, if the Trustee's
requirements are met, and the Guarantors shall execute the Guarantees endorsed
on such Security. If required by the Trustee or the Company, an indemnity bond
must be sufficient in the judgment of the Trustee to protect the Company, the
Trustee or any Agent from any loss which any of them may suffer if a Security is
replaced. The Company may charge such Holder for its expenses in replacing a
Security.
Replacement Securities and Guarantees endorsed thereon are additional
obligations of the Company and the relevant Guarantor, as the case may be.
Section 2.09. Outstanding Securities.
Securities, or Securities of any particular Series, outstanding at any
time are all such Securities that have been authenticated and delivered by the
Trustee except for those cancelled by it, those delivered to it for cancellation
and those described in this Section as not outstanding. Subject to Section 2.10,
a Security does not cease to be outstanding because the Company or one of its
Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Trustee or Paying Agent (other than the Company or a
Subsidiary) holds on the Maturity Date or Redemption Date money sufficient to
pay Securities payable on such date, then on and after that date such Securities
cease to be outstanding and interest on them ceases to accrue; provided that, if
such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made.
Section 2.10. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities of any Series have concurred in any direction, waiver or consent (a)
the principal amount of an Original Issue Discount Security, if any, of such
Series that shall be deemed to be outstanding for such purposes shall be the
amount that would be due and payable as of the date of determination upon a
declaration of acceleration thereof pursuant to Section 6.02 and (b) Securities
of such Series owned by the Company, a Guarantor or an Affiliate of the Company
or a Guarantor shall be disregarded, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities of such Series which the Trustee actually knows are
so owned shall be so disregarded. Upon the request of the Trustee, the Company
shall furnish to the Trustee an Officers' Certificate identifying all Securities
of such Series, if any, known by the Company to be owned by it, a Guarantor or
any Affiliate of the Company or of any Guarantor.
Section 2.11. Temporary Securities.
Until definitive Securities of any Series are ready for delivery, the
Company may prepare and execute and, upon compliance with the requirements of
Section 2.03, the Trustee shall authenticate temporary Securities of such
Series, with Guarantees endorsed thereon and executed by the Guarantors.
Temporary Securities of any Series shall be substantially in the form of
definitive Securities of such Series but may have variations that the Company
considers appropriate for temporary Securities. In the case of Securities of any
Series, such temporary Securities may be in global form. Except in the case of
temporary Global Securities (which shall be exchanged as otherwise provided
herein or as otherwise provided in or pursuant to Authorizing Resolutions and/or
a supplemental indenture, (if any), without unreasonable delay), the Company
shall prepare and the Trustee shall authenticate definitive Securities for such
Series in exchange for temporary Securities of such Series, with Guarantees
endorsed thereon and executed by the Guarantors, in an exchange pursuant to
Section 2.07.
Section 2.12. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee and no one else shall cancel all Securities surrendered for transfer,
exchange, payment or cancellation or for credit against any Sinking Fund Payment
in respect of such Series pursuant to Section 3B.02. The Company may not issue
new Securities to replace Securities it has paid or delivered to the Trustee for
cancellation.
Section 2.13. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities of
any Series, it shall pay the defaulted interest, plus any interest payable on
the defaulted interest, to the extent lawful, to the Persons who are Holders of
such Securities on a subsequent special record date ("Special Record Date") and
such term, as used in this Section 2.13 with respect to the payment of any
defaulted interest, shall mean the fifteenth day next preceding the date fixed
by the Company for the payment of defaulted interest, whether or not such day is
a Business Day. At least 15 days before the Special Record Date, the Company
shall mail to each holder of such Securities a notice that states the Special
Record Date, the payment date and the amount of defaulted interest to be paid.
Section 2.14. Persons Deemed Owners.
The Company, any Guarantor, the Trustee and any Agent may treat the
Person in whose name any Security is registered as the owner of such Security
for the purpose of receiving payment of principal of, premium, if any, and
(subject to Section 2.13) interest on such Security and for all other purposes
whatsoever whether or not such Security shall have matured, and none of the
Company, any Guarantor, the Trustee or any Agent shall be affected by any notice
to the contrary.
ARTICLE 3A
Redemption
Section 3A.01. Right of Redemption.
Redeemable Securities may be redeemed otherwise than through the
operation of the Sinking Fund provided for in Article 3B at the election of the
Company at the times, on the conditions and at the Redemption Prices specified
therein, in (or pursuant to) the Authorizing Resolutions relating thereto or in
the supplemental indenture (if any) executed in connection with the issuance of
such Securities to the extent provided therein, any Redemption Price to be
accompanied by accrued interest to the Redemption Date.
Section 3A.02. Applicability of Article.
Redemption of Securities at the election of the Company or otherwise,
as permitted or required by any provision referred to in Section 3A.01, shall be
made in accordance with such provision and this Article.
Section 3A.03. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities of any Series
shall be evidenced by a Board Resolution or set forth in an Officers'
Certificate which states that such election has been duly authorized by all
requisite corporate action on the part of the Company. The Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of the Series or the
several Series, as the case may be, to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
Section 3A.04. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any Series are to be redeemed, the
particular Securities of such Series to be redeemed shall be selected not more
than 90 days prior to the Redemption Date by the Trustee, from the outstanding
Securities of such Series not previously called for redemption on a pro rata
basis or by lot, as the Trustee deems appropriate in its sole discretion. The
Trustee may select for redemption portions (equal to the minimum authorized
denomination of the Series or any integral multiple thereof) of the principal
amount of such Securities of a denomination larger than such minimum
denomination. If the Company shall so specify, Securities held by the Company or
any Guarantor or any of their respective Subsidiaries or Affiliates shall not be
included in the Securities selected for redemption.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
Section 3A.05. Notice of Redemption.
Notice of redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all outstanding Securities of the Series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security, and that interest thereon shall cease to
accrue on and after said date;
(5) that the redemption is for a Sinking Fund, if such is the case;
and
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name of and at the expense of the Company.
Section 3A.06. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 2.05) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date, unless otherwise specified in or
pursuant to the Authorizing Resolutions or in the supplemental indenture
executed in connection with the particular Series) any accrued interest on, all
the Securities or portions thereof which are to be redeemed on that date.
Section 3A.07. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price thereof and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, unless otherwise specified in or
pursuant to the Authorizing Resolutions and/or in the supplemental indenture
executed in connection with the particular Series, installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities registered as such on the relevant Regular or
Special Record Date according to their terms and the provisions of such Security
and Section 2.13.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the Redemption Date at the rate borne by the
Security or, in the case of Original Issue Discount Securities, at a rate equal
to the Yield to Maturity thereof.
Section 3A.08. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at the office or agency of the Company maintained for that purpose pursuant to
Section 4.02 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Company shall execute and the Trustee shall authenticate
and deliver to the Holder of such Security, without service charge, a new
Security or Securities of the same Series, with Guarantees endorsed thereon and
executed by the Guarantors, of any authorized denomination as requested by such
Holder in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
ARTICLE 3B
Sinking Fund
Section 3B.01. Sinking Fund Payments.
As and for a Sinking Fund for the retirement of Sinking Fund
Securities, the Company will, until all such Securities are paid or payment
thereof is duly provided for, deposit in accordance with Section 3A.06, at such
times and subject to such terms and conditions as shall be specified in the
provisions of such Securities and the Authorizing Resolutions and/or
supplemental indenture (if any) relating thereto, such amounts in cash or such
other Required Currency as shall be required or permitted under such provisions
in order to redeem Securities on the specified Redemption Dates at a Redemption
Price equal to their principal amounts, less in each such case the amount of any
credit against such payment received by the Company under Section 3B.02. Each
such Sinking Fund payment shall be applied to the redemption of Securities on
the specified Redemption Date as herein provided.
Section 3B.02. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Securities of the same Series (other than
any Securities of such Series previously called for redemption pursuant to the
Sinking Fund or theretofore applied as a credit against a Sinking Fund payment)
and (2) may apply as a credit Securities of the same Series redeemed at the
election of the Company pursuant to Section 3A.01 or through the operation of
the Sinking Fund in any period in excess of the minimum amount required for such
period under Section 3B.01 and not theretofore applied as a credit against a
Sinking Fund payment, in each case in satisfaction of all or any part of any
Sinking Fund payment required to be made pursuant to Section 3B.01. Each such
Security so delivered or applied shall be credited for such purpose by the
Trustee at a Redemption Price equal to its principal amount or, in the case of
an Original Issue Discount Security, its then accreted value, and the required
amount of such Sinking Fund payment in respect of such Series shall be reduced
accordingly.
Section 3B.03. Redemption of Securities for Sinking Fund.
If in any year the Company shall elect to redeem in excess of the
minimum principal amount of Securities of any Series required to be redeemed
pursuant to Section 3B.01 or to satisfy all or any part of any Sinking Fund
payment by delivering or crediting Securities of the same Series pursuant to
Section 3B.02, then at least 45 days prior to the date on which the Sinking Fund
payment in question shall be due, the Company shall deliver to the Trustee an
Officers' Certificate specifying the amount of the Sinking Fund payment and the
portions thereof which are to be satisfied by payment of cash or such other
Required Currency, by delivery of Securities of such Series or by crediting
Securities of such Series, and, at least 45 days prior to the Sinking Fund
payment date (or such shorter period as shall be approved by the Trustee), will
also deliver to the Trustee the Securities of such Series to be so delivered.
Such Officers' Certificate shall also state that the Securities forming the
basis of any such credit do not include any Securities which have been redeemed
through the operation of the Sinking Fund in the minimum amount required under
Section 3B.01 or previously credited against any Sinking Fund payment. The
Trustee shall, upon the receipt of such Officers' Certificate (or, if it shall
not have received such an Officers' Certificate at least 45 days prior to the
Sinking Fund payment date, then following such 45th day), select the Securities
of such Series to be redeemed upon the next Sinking Fund payment date, in the
manner specified in Section 3A.04, and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner provided
in Section 3A.05. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
3A.06, 3A.07 and 3A.08.
ARTICLE 4
Covenants
Section 4.01. Payment of Securities.
The Company shall pay the principal of, premium, if any, and interest
on the Securities of each Series on the dates and in the manner provided in the
Securities and in this Indenture. An installment of principal, premium, if any,
or interest shall be considered paid on the date due if the Trustee or Paying
Agent (other than the Company or a Subsidiary) holds on that date money
designated for and sufficient to pay the installment.
The Company shall pay interest on overdue principal at the respective
rates borne by such Securities or, in the case of Original Issue Discount
Securities, at rates equal to the respective Yields to Maturity thereof; it
shall pay interest on overdue installments of interest at the respective rates
borne by such Securities to the extent lawful.
Section 4.02. Maintenance of Office or Agency.
Except as otherwise provided in the Authorizing Resolutions and/or
supplemental indenture (if any) relating to any Series, the Company will
maintain in The City of New York, an office or agency where Securities may be
surrendered for registration of transfer or exchange or for presentation for
payment and where notices and demands to or upon the Company in respect to the
Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of any Series or a particular Series
may be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in The City of New York, for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby initially designates the Trustee in The City of New
York, as an agency of the Company in accordance with Section 2.04.
Section 4.03. Corporate Existence.
Subject to Article 5, each of the Company and the Guarantors will do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and its rights (charter and statutory) and
material franchises; provided, however, that neither the Company nor any
Guarantor shall be required to preserve any such right or franchise if the Board
of Directors or management of the Company or such Guarantor shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries, taken as a whole, or such Guarantor and its
Subsidiaries taken as a whole, as the case may be, and if the loss thereof is
not, and will not be, adverse in any material respect to the Holders.
Section 4.04. Reserved.
Section 4.05. Compliance Certificate.
The Company shall deliver to the Trustee within 90 days after the end
of each fiscal quarter of the Company an Officers' Certificate stating whether
or not the signers know of the existence of any Default or Event of Default by
the Company or the Guarantors and whether all of the conditions and covenants of
the Company and the Guarantors are being complied with regardless of any period
of grace or requirement of notice provided under the Indenture. If they do know
of such a Default or Event of Default, the certificate shall describe the
Default or Event of Default, as the case may be, and its status. The first
Officers' Certificate to be delivered pursuant to this Section 4.05 shall be for
the fiscal quarter ending immediately after the Original Issue Date.
Section 4.06. SEC Reports.
(a) The Company shall file with the Trustee within 15 days after it
files them with the SEC 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 SEC may by rules and regulations prescribe) which the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended. The Company also shall comply with the other provisions
of Section 314(a) of the TIA.
(b) So long as the Securities of any Series remain outstanding, the
Company shall cause its annual report to stockholders and any quarterly or other
financial reports furnished by it to stockholders to be mailed to the Holders of
Securities outstanding at their addresses appearing in the Security Register.
Section 4.07. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law, which would prohibit or forgive the Company from paying all or any
portion of the principal of, premium, if any and/or interest on the Securities
of any Series as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of this
Indenture; and (to the extent that it may lawfully do so) the Company hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
Section 4.08. Restrictions on Liens.
Neither the Company nor any Guarantor will incur, create, assume or
otherwise become liable in respect of any Indebtedness secured by a Lien, or
guarantee any Indebtedness with a guarantee which is secured by a Lien, on any
Principal Domestic Property of the Company or a Guarantor, as the case may be,
or any shares of stock or Indebtedness of any Significant Subsidiary, without
effectively providing that the Securities of each Series (together with, if the
Company or a Guarantor, as the case may be, shall so determine, any other
Indebtedness of the Company or a Guarantor, as the case may be, then existing or
thereafter created ranking equally with the Securities of each Series) shall be
secured equally and ratably with (or, at the option of the Company or a
Guarantor, as the case may be, prior to) such secured Indebtedness, so long as
such secured Indebtedness shall be so secured; provided, however, that this
Section 4.08 shall not apply to Indebtedness secured by:
(1) Liens existing on the date of this Indenture;
(2) Liens in favor of governmental bodies to secure progress, advance
or other payments;
(3) Liens existing on property, shares of stock or Indebtedness at the
time of acquisition thereof (including acquisition through lease, merger or
consolidation) or Liens to secure the payment of all or any part of the purchase
price thereof or the cost of construction, installation, renovation, improvement
or development thereon or thereof or to secure any Indebtedness incurred prior
to, at the time of, or within 360 days after the later of the acquisition,
completion of such construction, installation, renovation, improvement or
development or the commencement of full operation of such property or within 360
days after the acquisition of such shares or Indebtedness for the purpose of
financing all or any part of the purchase price thereof;
(4) Liens securing Indebtedness in an aggregate amount which, at the
time of incurrence and together with all outstanding Attributable Debt in
respect of Sale and Leaseback Transactions permitted by clause (y) of the second
paragraph of Section 4.09, does not exceed 10 percent of the Consolidated Net
Tangible Assets of the Company;
(5) Liens to secure Indebtedness other than Funded Debt; and
(6) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any Lien referred to in the
foregoing clauses (1) to (5) inclusive; provided, that such extension, renewal
or replacement of such Lien is limited to all or any part of the same property,
shares of stock or Indebtedness that secured the Lien extended, renewed or
replaced (plus improvements on such property), and that such secured
Indebtedness at such time is not increased.
If at any time the Company or a Guarantor, as the case may be, shall
incur, create, assume or otherwise become liable in respect of any Indebtedness
secured by a Lien, or guarantee any Indebtedness with a guarantee which is
secured by a Lien, on any Principal Domestic Property of the Company or a
Guarantor, as the case may be, or any shares of stock or Indebtedness of any
Significant Subsidiary other than as permitted under clauses (1) through (6) of
this Section 4.08, the Company or a Guarantor, as the case may be, shall
promptly deliver to the Trustee (i) an Officers' Certificate stating that the
covenant of the Company or a Guarantor, as the case may be, to secure the
Securities equally and ratably with such secured Indebtedness pursuant to this
Section 4.08 has been complied with and (ii) an Opinion of Counsel that such
covenant has been complied with and that any instruments executed by the Company
or a Guarantor, as the case may be, in performance of such covenant comply with
the requirements of such covenant.
Section 4.09. Restrictions on Sales and Leasebacks.
Except as shall otherwise be permitted with respect to a Guarantor in
accordance with Section 10.02, neither the Company nor any Guarantor will sell
or transfer any Principal Domestic Property of the Company or a Guarantor, as
the case may be, with the Company or a Guarantor, as the case may be, taking
back a lease of such Principal Domestic Property of the Company or a Guarantor,
as the case may be, (a "Sale and Leaseback Transaction"), unless (i) such
Principal Domestic Property of the Company or a Guarantor, as the case may be,
is sold within 360 days from the date of acquisition of such Principal Domestic
Property of the Company or a Guarantor, as the case may be, or the date of the
completion of construction or commencement of full operations on such Principal
Domestic Property of the Company or a Guarantor, as the case may be, whichever
is later, or (ii) the Company or a Guarantor, as the case may be, within 120
days after such sale, applies or causes to be applied to the retirement of
Funded Debt of the Company or a Guarantor, as the case may be, or any Subsidiary
(other than Funded Debt of the Company or a Guarantor, as the case may be, which
by its terms or the terms of the instrument pursuant to which it was issued is
subordinate in right of payment to the Securities of each Series) an amount not
less than the greater of (A) the net proceeds of the sale of such Principal
Domestic Property of the Company or a Guarantor, as the case may be, or (B) the
fair value (as determined in any manner approved by the Board of Directors) of
such Principal Domestic Property of the Company or a Guarantor, as the case may
be.
The provisions of this Section 4.09 shall not prevent a Sale and
Leaseback Transaction (x) if the lease entered into by the Company or a
Guarantor in connection therewith is for a period, including renewals, of not
more than 36 months or (y) if the Company or a Guarantor, as the case may be,
would, at the time of entering into such Sale and Leaseback Transaction, be
entitled, without equally and ratably securing the Securities, to create or
assume a Lien on such Principal Domestic Property of the Company or a Guarantor
securing Indebtedness in an amount at least equal to the Attributable Debt in
respect of such Sale and Leaseback Transaction pursuant to clause (4) of Section
4.08.
This Section 4.09 shall not prevent or prohibit a transfer which
results in the termination of the Guarantor's liabilities and obligations
hereunder in accordance with Section 10.02.
ARTICLE 5
Successor Corporation
Section 5.01. When the Company and the Guarantors May Merge, etc.
Except as shall otherwise be permitted with respect to a Guarantor in
accordance with Section 10.02, each of the Company and the Guarantors covenants
that it shall not consolidate with or merge with or into any other Person or
transfer all or substantially all of its respective properties and assets as an
entirety to any Person, unless:
(1) either the Company or a Guarantor, as the case may be, shall be
the continuing Person, or the Person (if other than the Company or such
Guarantor) formed by such consolidation or into which the Company or such
Guarantor is merged or to which all or substantially all of the properties and
assets of the Company or the properties and assets of such Guarantor as an
entirety are transferred shall be a corporation organized and existing under the
laws of the United States or any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company or such Guarantor, as the case may be, under the
Securities of each Series or the related Guarantees, as applicable, and this
Indenture;
(2) immediately before and immediately after giving effect to such
transaction, no Event of Default and no Default shall have occurred and be
continuing; and
(3) the Company or the Guarantor shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating to
such transactions have been complied with.
This Section 5.01 shall not prevent or prohibit a Transfer which
results in the termination of the Guarantor's liabilities and obligations
hereunder in accordance with Section 10.02.
Notwithstanding the foregoing, any Guarantor or Subsidiary may
consolidate with, merge with or into or transfer all or part of its properties
and assets to the Company or any other Guarantor or Subsidiary.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the properties and assets of any of the Company or the
Guarantors in accordance with Section 5.01, the successor corporation formed by
such consolidation or into which any of the Company or the Guarantors is merged
or to which such transfer is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company or a Guarantor under this
Indenture with the same effect as if such successor corporation had been named
as the Company or a Guarantor herein.
ARTICLE 6
Default and Remedies
Section 6.01. Events of Default.
An "Event of Default" means, with respect to any Series of Securities,
unless it is either inapplicable to a particular Series or it is specifically
deleted or modified in the Authorizing Resolutions and/or supplemental indenture
(if any) in respect of such Series, and any other events which may be specified
as Events of Default in the Authorizing Resolutions and/or supplemental
indenture (if any) in respect of such Series:
(1) the default in the payment of interest on any Securities of such
Series when the same becomes due and payable and the default continues for a
period of 30 days;
(2) the default in the payment of principal (or premium, if any, on)
any Securities of such Series when the same becomes due and payable at its
Maturity or otherwise or defaults in the deposit of any Sinking Fund installment
in respect of such Series, when and as payable by the terms of Section 3B.01
hereof;
(3) the Company or any of the Guarantors fail to comply with any of
their other agreements contained in the Securities of such Series or this
Indenture (other than an agreement relating exclusively to another Series of
Securities) and the default continues for the period and after the notice
specified below;
(4) the Company or any of the Guarantors pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief against it in an
involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
or
(5) a court of competent jurisdiction enters an order or decree which
remains unstayed and in effect for 60 days under any Bankruptcy Law that:
(A) is for relief against the Company or any of the Guarantors in
an involuntary case or proceeding,
(B) appoints a Custodian of the Company or any of the Guarantors
for all or substantially all of its properties, or
(C) orders the liquidation of the Company or any of the
Guarantors,
the term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator, sequestrator or similar official under
any Bankruptcy Law; or
(6) except as permitted by this Indenture, any Guarantee shall be held
in any judicial proceeding to be unenforceable or invalid or shall cease for any
reason to be in full force and effect or any Guarantor or any Person acting on
behalf of such Guarantor shall deny or disaffirm its obligations under such
Guarantee.
A Default under clause (3) is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in principal amount
of the outstanding Securities of such Series notify the Company and the Trustee,
of the Default and the Company does not cure the Default within 60 days after
receipt of the notice. The notice must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default." When a Default is
cured, it ceases. Such notice shall be given by the Trustee if so requested by
the Holders of at least 25% in principal amount of the Securities of such Series
then outstanding.
Subject to the provisions of Sections 7.01 and 7.02, the Trustee shall
not be charged with knowledge of any Event of Default unless written notice
thereof shall have been given to a Trust Officer at the corporate trust office
of the Trustee by the Company, the Paying Agent, any Holder or an agent of any
Holder.
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
Section 6.01(4) or (5)) with respect to Securities of any Series occurs and is
continuing, the Trustee may, by notice to the Company, or if the Holders of at
least 25% in principal amount of such Securities of such Series then
outstanding, by notice to the Company and the Trustee so request, the Trustee
shall, upon the request of such Holders, declare all unpaid principal of (or, if
such Securities are Original Issue Discount Securities, such portion of the
principal amount as may then be payable on acceleration as provided in the terms
thereof), premium, if any, and accrued but unpaid interest to the date of
acceleration on all such Securities of such Series then outstanding (if not then
due and payable) to be due and payable and, upon any such declaration, the same
shall become and be immediately due and payable. If an Event of Default
specified in Section 6.01(4) or (5) occurs, all unpaid principal of (or, if any
Securities are Original Issue Discount Securities, such portion of the principal
amount as may then be payable on acceleration as provided in the terms thereof),
premium, if any, and accrued but unpaid interest on all Securities of every
Series then outstanding shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Securityholder. Upon payment of such principal amount, premium, if any, and
interest, all of the Company's obligations under such Securities of such Series
and this Indenture with respect to such Securities of such Series, other than
obligations under Section 7.07, shall terminate. The Holders of a majority in
principal amount of the outstanding Securities of such Series then outstanding
by notice to the Trustee may rescind an acceleration and its consequences if (i)
all existing Events of Default, other than the non-payment of the principal of
the Securities of such Series which has become due solely by such declaration of
acceleration, have been cured or waived, (ii) to the extent the payment of such
interest is lawful, interest on overdue installments of interest, premium, if
any, and overdue principal, which has become due otherwise than by such
declaration of acceleration, has been paid, (iii) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction and
(iv) all payments due to the Trustee and any predecessor Trustee under Section
7.07 have been made. Anything herein contained to the contrary notwithstanding,
in the event of any acceleration pursuant to this Section 6.02, the Company
shall not be obligated to pay any premium in connection with any repayment
arising from an Event of Default.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, premium, if any, or interest on the Securities of the
Series as to which the Event of Default shall have occurred or to enforce the
performance of any provision of such Securities or the Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities of the Series as to which the Event of Default shall have
occurred or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Securityholder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative to the extent permitted by
law.
Section 6.04. Waiver of Past Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority in
principal amount of the outstanding Securities of a Series by written notice to
the Trustee may waive an existing Default or Event of Default and its
consequences, except a Default in the payment of principal of or premium, if
any, or interest on any such Security as specified in clauses (1) and (2) of
Section 6.01. When a Default or Event of Default is waived, it is cured and
ceases.
Section 6.05. Control by Majority.
The Holders of a majority in principal amount of the outstanding
Securities of a Series (or, if more than one Series is affected, of all such
Series voting as a single class) may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it. However, the Trustee may refuse to follow
any direction that conflicts with any law or this Indenture that the Trustee
determines may be unduly prejudicial to the rights of another Securityholder, or
that may involve the Trustee in personal liability; provided that the Trustee
may take any other action deemed proper by the Trustee which is not inconsistent
with such direction.
Section 6.06. Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities of the applicable Series unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in principal amount of the outstanding
Securities of the Series in respect of which the Event of Default has occurred
make a written request to the Trustee to pursue a remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory
to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in principal
amount of the outstanding Securities of such Series do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request.
A Holder of Securities of any Series may not use this Indenture to
prejudice the rights of any other Holders of Securities of that Series or to
obtain a preference or priority over any other Holders of Securities of that
Series.
Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of and premium, if any, and interest
on the Security, on or after the respective due dates expressed in such
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default in payment of interest or principal specified
in Section 6.01(1) or (2) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
or any other obligor on the Securities of the Series in respect of which the
Event of Default has occurred for the whole amount of principal, premium, if
any, and accrued interest remaining unpaid, together with interest overdue on
principal or, in the case of Original Issue Discount Securities, the then
accreted value, and to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate per annum
borne by such Securities or, in the case of Original Issue Discount Securities,
at a rate equal to the Yield to Maturity thereof, and such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relative to the Company (or
any other obligor upon the Securities), its creditors or its property and shall
be entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same, and any
Custodian in any such judicial proceedings is hereby authorized by each
Securityholder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
of any Series or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Securityholder in any such proceeding.
Section 6.10. Priorities.
If the Trustee collects any money or property pursuant to this Article
6 with respect to Securities of a Series, it shall pay out the money or property
in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Securities of
such Series in respect of which monies have been collected for principal,
premium, if any, and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for principal,
premium, if any, and interest, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Securityholders pursuant to this
Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by any Holder or a group of Holders of more
than 10% in principal amount of the outstanding Securities of all Series (or, if
the matter in issue does not relate to all Series of Securities, then the
Holders of 10% in principal amount of the outstanding Securities of all Series
to which such issue relates) (treated as a single class)).
ARTICLE 7
Trustee
Section 7.01. Duties of Trustee.
(a) The Trustee, except during the continuance of an Event of Default
known to it pursuant to Section 6.01, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture. If an Event of
Default known to the Trustee pursuant to Section 6.01 has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in their exercise
as a prudent Person would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except during the continuance of an Event of Default known to the
Trustee pursuant to Section 6.01:
(1) the Trustee need perform only those duties as are
specifically set forth in this Indenture and no others and no implied covenants
or obligations shall be read into this Indenture against the Trustee;
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; however, the
Trustee shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraphs (a)
and (b) of this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received by
it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree with the Company in writing. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) the Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper Person; the Trustee need not
investigate any fact or matter stated in the document;
(b) before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, which shall conform to Section
11.05; the Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such certificate or opinion;
(c) the Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care;
(d) the Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or within
its rights or powers;
(e) the Trustee may consult with counsel and the advice or opinion of
such counsel as to matters of law shall be full and complete authorization and
protection in respect of any action taken, omitted or suffered by it hereunder
in good faith and in accordance with the advice or opinion of such counsel; and
(f) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
the Holders, including, without limitation, the duties, rights and powers
specified in Section 6.02 hereof, unless such Holders have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by the Trustee in compliance with such
request or action.
(g) Except with respect to Section 6.01(1) and Section 6.01(2), the
Trustee shall have no duty to inquire as to the performance of the Company with
respect to the covenants contained in Article 4. In addition, the Trustee shall
not be deemed to have knowledge of an Event of Default except (1) any Event of
Default occurring pursuant to Section 6.01(1) and Section 6.01(2) or (2) any
Event of Default of which the Trustee shall have received written notification
or obtained actual knowledge.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Sections
7.10 and 7.11.
Section 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities of any Series, it shall not be accountable for
the recitals contained in this Indenture or for the Company's use of the
proceeds from the Securities of any Series, and it shall not be responsible for
any statement in the Securities of any Series, or in any prospectus used to sell
the Securities of any Series, other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or an Event of Default occurs and is continuing with
respect of any Series of Securities, and if it is actually known to the Trustee
pursuant to Section 6.01 hereof, the Trustee shall mail to each Holder of the
Securities of such Series notice of the Default or Event of Default within 75
days after it occurs. Except in the case of a Default or an Event of Default in
payment of principal of, premium, if any, or interest on any Security or in the
payment of any Sinking Fund installment, the Trustee may withhold such notice if
and so long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interest of Securityholders.
Section 7.06. Reports by Trustee to Holders.
The Trustee shall transmit to the Holder such reports concerning,
among other things, the Trustee and its action under this Indenture as may be
required pursuant to the TIA at the time and in compliance with Section 313(a)
of the TIA. The Trustee also shall comply with Sections 313(b)(2) and 313(c) of
the TIA.
A copy of each such report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange, if any, on
which the Securities of any Series are listed.
The Company shall notify the Trustee if the Securities of any Series
become listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed upon in writing by the Company and the Trustee.
The Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable disbursements, expenses and advances incurred or made
by it. Such expenses shall include the reasonable compensation, disbursements
and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability incurred by it in connection with the
administration of this trust and its duties hereunder, including the reasonable
expenses of defending itself against any claim of liability arising hereunder.
The Trustee shall notify the Company promptly of any claim asserted against the
Trustee for which it may seek indemnity. The Company need not pay for any
settlement made without its written consent, which consent shall not be
unreasonably withheld. The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through negligence or bad
faith.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Securities of each Series on all money or
property held or collected by the Trustee, in its capacity as Trustee, except
money or property held in trust to pay principal of, premium, if any, or
interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company in writing. The
Holders of a majority in principal amount of the outstanding Securities of all
Series (voting as a single class) may remove the Trustee by so notifying the
Trustee in writing and may appoint a successor Trustee with the Company's
consent. Pursuant to a Company Order, the Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Securities of all Series (voting as a
single class) may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer, after payment of all sums then owing to the
Trustee pursuant to Section 7.07, all property and documentation held by it as
Trustee to the successor Trustee, subject to the lien provided in Section 7.07,
the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Securityholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the outstanding Securities of all
Series (voting as a single class) may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee. Any successor Trustee shall comply
with TIA (S) 310(a)(5).
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of Section 310(a)(1) of the TIA. The Trustee shall have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with Section
310(b) of the TIA, including the provision permitted by the second sentence of
Section 310(b) of the TIA.
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the TIA, excluding
from the operation of Section 311(a) of the TIA any creditor relationship listed
in Section 311(b) of the TIA. A Trustee who has resigned or been removed shall
be subject to Section 311(a) of the TIA to the extent indicated.
ARTICLE 8
Defeasance, Covenant Defeasance, Satisfaction and Discharge
Section 8.01. Applicability of Article; Company's Option to Effect Defeasance
or Covenant Defeasance.
If pursuant to Section 2.02 provision is made for either or both of
(a) defeasance of the Securities of any Series under Section 8.02 or (b)
covenant defeasance of the Securities of any Series under Section 8.03 to apply
to such Securities, then the provisions of such Section or Sections, as the case
may be, together with the other provisions of this Article Eight, shall be
applicable to the Securities and the Company may at its option, at any time,
with respect to the Securities, elect to have either Section 8.02 (if
applicable) or Section 8.03 (if applicable) be applied to the outstanding
Securities upon compliance with the conditions set forth below in this Article
Eight.
Section 8.02. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section, the Company and the Guarantors shall be deemed to have been discharged
from their respective obligations with respect to the outstanding Securities on
the date the conditions set forth below are satisfied (hereinafter,
"Defeasance").
For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by the
outstanding Securities and the Company and the Guarantors shall be deemed to
have satisfied all their respective obligations under the Securities and the
Guarantees and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder:
(a) the rights of Holders of outstanding Securities to receive, solely
from the trust fund described in Section 8.04 and as more fully set forth in
such Section, payments in respect of the principal of, premium, if any, and
interest on such outstanding Securities when such payments are due;
(b) the obligations of the Company and the Guarantors with respect to
such Securities under Sections 2.07, 2.08, 4.02 and 7.07;
(c) the rights, powers, trusts, duties and immunities and other
provisions in respect of the Trustee hereunder; and
(d) this Article Eight.
Subject to compliance with this Article Eight, the Company may
exercise its option under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03 with respect to the Securities of any Series.
Section 8.03. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this
Section, the Company and the Guarantors shall be released from their respective
obligations under Sections 4.03, 4.06, 4.08, 4.09 and 5.01, and Sections 4.05
and 6.01(3) (as they relate to Sections 4.03, 4.06, 4.08, 4.09 and 5.01) with
respect to the outstanding Securities of any Series on and after the date the
conditions set forth below are satisfied (hereinafter, "Covenant Defeasance").
For this purpose, such Covenant Defeasance means that, with respect to
the outstanding Securities of any Series, the Company and the Guarantors may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section, whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby. Following a Covenant Defeasance, payment of such
Securities may not be accelerated because of an Event of Default specified above
in this Section 8.03.
Section 8.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
8.02 or Section 8.03 to the outstanding Securities of any Series:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of the Securities of any Series (1) in the case
of Securities of any Series denominated in U.S. dollars, (A) an amount of cash,
or (B) direct non-callable obligations of, or non-callable obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligation the full faith and credit of the United States is pledged,
including, but not limited to, depository receipts issued by a bank as custodian
with respect to any such security held by the custodian for the benefit of the
holder of such depository receipt ("U.S. Government Obligations"), which through
the scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, within two weeks of the due date of any payment,
money in an amount, or (C) a combination thereof, sufficient, without
reinvestment, in the opinion of a nationally recognized firm of independent
public accountants approved by the trustee in the exercise of reasonable care
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee to pay and discharge,
the principal of, premium, if any, and each installment of interest on such
Securities on their respective Stated Maturities in accordance with the terms of
this Indenture and of such Securities, or (2) in the case of Securities of any
Series denominated in currency other than U.S. dollars, an amount of Required
Currency sufficient to pay and discharge, and which shall be applied by the
Trustee to pay and discharge, the principal of, premium, if any, and each
installment of interest on such Securities on their respective Stated Maturities
in accordance with the terms of this Indenture and of such Securities. Before
such a deposit, the Company may make arrangements satisfactory to the Trustee
for the redemption of any Securities of such Series at a future date in
accordance with any redemption provisions relating to such Securities, which
shall be given effect in applying the foregoing.
(b) No Event of Default or event with which notice or lapse of time or
both would become an Event of Default with respect to such Securities shall have
occurred and be continuing on the date of such deposit and, with respect to
Defeasance only, at any time during the period ending on the 123rd day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(c) Such Defeasance or Covenant Defeasance shall not cause the Trustee
for the Securities to have a conflicting interest for purposes of the TIA with
respect to any Securities of the Company.
(d) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other agreement or instrument to which the Company is a party or by which it is
bound.
(e) Such Defeasance or Covenant Defeasance shall not cause any
Securities of such Series then listed on any registered national securities
exchange under the Securities Exchange Act of 1934, as amended, to be delisted.
(f) In the case of an election under Section 8.02, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the Company
has received from, or there has been published by, the Internal Revenue Service
a ruling, or (y) since the date of this Indenture there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the outstanding
Securities of such Series will not recognize gain or loss for federal income tax
purposes as a result defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred.
(g) In the case of an election under Section 8.03, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the outstanding Securities of such Series will not recognize income,
gain or loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such covenant
defeasance had not occurred.
(h) Such Defeasance or Covenant Defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 2.02.
(i) The Company shall have delivered to the Trustee an Officers'
Certificate or an Opinion of Counsel, stating that all conditions precedent
provided for in the Indenture relating to either the Defeasance under Section
8.02 or the Covenant Defeasance under Section 8.03 (as the case may be) have
been complied with.
Section 8.05. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 8.04 in respect of the
outstanding Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (but not including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Holders of such Securities, of all sums due and to become due thereon in respect
of principal, premium, if any, and interest but such money need not be
segregated, from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 8.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the holders of the Outstanding Securities.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 8.04 which, in the opinion of a nationally recognized firm of
independent public accountants approved by the trustee in the exercise of
reasonable care expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent Defeasance or Covenant Defeasance.
Section 8.06. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to the Securities and the Guarantees specified in such
Company Request (except as to rights of registration of transfer or exchange of
Securities and Guarantees herein expressly provided for, and the Trustee on
receipt of the Company Request, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when:
(a) either
(i) all Securities theretofore authenticated and delivered (other than
Securities which have been mutilated, destroyed, lost or stolen and which have
been replaced as provided in Section 2.08 or paid) have been delivered to the
Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee for
cancellation:
(A) have become due and payable, or
(B) will become due and payable at their Stated Maturity within
one year, or
(C) if redeemable at the option of the Company are to be
called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company, and the Company, in
the case of (A), (B) or (C) above, has deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose an
amount sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation,
for principal, premium, if any, and interest to the date of such
deposit or, in the case of Securities which have become due and
payable, to the Stated Maturity or Redemption Date, as the case may
be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate
or an Opinion of Counsel, stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture with respect to
such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Securities, the obligations of the Company to the Trustee under
Section 7.07, if money shall have been deposited with the Trustee pursuant to
subclause (ii) of clause (a) of this Section, and the obligations of the Company
under Sections 2.07, 2.08, 2.11 and 4.02 shall survive such satisfaction and
discharge.
Section 8.07. Application of Trust Money.
All funds and U.S. Government Obligations deposited with the Trustee
pursuant to Article Eight shall be held in trust and applied by it, in
accordance with the provisions of the Securities for which such deposit was made
and this Indenture, to the payment, either directly or through any Paying Agent
(but not including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal, premium, if
any, and interest for whose payment such money and U.S. Government Obligations
has been deposited with the Trustee; but such money and U.S. Government
Obligations need not be segregated from other funds except to the extent
required by law.
Section 8.08. Repayment to Company.
Subject to Section 8.05, the Trustee and the Paying Agent shall
promptly pay to the Company upon request any excess money held by them at any
time. Subject to the provisions of applicable law, the Trustee and the Paying
Agent shall pay to the Company upon request any money held by them for the
payment of principal, premium, if any, or interest that remains unclaimed for
two years; provided, however, the Trustee or such Paying Agent before being
required to make any payment may at the expense of the Company cause to be
published once in a newspaper of general circulation in The City of New York or
mail to each Holder entitled to such money notice that such money remains
unclaimed and that, after a date specified therein which shall be at least 30
days from the date of such publication or mailing, any unclaimed balance of such
money then remaining will be repaid to the Company. After payment to the
Company, the Trustee shall be released from all further liability with respect
to such money and Securityholders entitled to money must look to the Company for
payment as general creditors unless an applicable abandoned property law
designates another Person.
Section 8.09. Reinstatement.
If the Trustee or Paying Agent is unable to apply any cash, U.S.
Government Obligations or the Required Currency, as the case may be, in
accordance with this Article 8 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the obligations of the
Company and the Guarantors under this Indenture (with respect to the applicable
Series) and the Securities of the applicable Series shall be revived and
reinstated as though no deposit had occurred until such time as the Trustee or
Paying Agent is permitted to apply all such cash, U.S. Government Obligations
and Required Currency, as the case may be, in accordance with this Article 8;
provided, however, that if the Company or any of the Guarantors has made any
payment of interest or premium, if any, on or principal of any Securities of any
Series because of the reinstatement of its obligations, the Company or the
Guarantors, as the case may be, shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the cash, U.S. Government
Obligations or the Required Currency, as the case may be, held by the Trustee or
Paying Agent.
ARTICLE 9
Amendments, Supplements and Waivers
Section 9.01. Without Consent of Holders.
The Company and the Guarantors, when authorized by a Board Resolution,
and the Trustee may amend or supplement this Indenture or the Securities of any
Series without notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to
certificated Securities;
(4) to secure the Securities in connection with Section 4.08;
(5) to make any change that does not adversely affect the rights of
any Securityholder of such Series;
(6) to provide for the issuance and the terms of any particular Series
of Securities and the Guarantees, the rights and obligations of the Company, the
Guarantors and the Holders of the Securities of such Series, the form or forms
of the Securities of such Series and such other matters in connection therewith
as the Board of Directors of the Company and the Guarantees shall authorize,
including, without limitation, provisions for (a) additional or different
covenants, restrictions or conditions applicable to such Series, (b) additional
or different Events of Default in respect of such Series, (c) a longer or
shorter period of grace and/or notice in respect of any provision applicable to
such Series than is provided in Section 6.01, (d) immediate enforcement of any
Event of Default in respect of such Series or (e) limitations upon the remedies
available in respect of any Events of Default in respect of such Series or upon
the rights of the holders of Securities of such Series to waive any such Event
of Default; provided, that this paragraph (6) shall not be deemed to require the
execution of a supplemental indenture to provide for the issuance of any Series
of Securities unless the same shall be provided for in the Authorizing
Resolutions relating thereto; or
(7) to provide for a separate Trustee for one or more Series.
Section 9.02. With Consent of Holders.
Subject to Section 6.07, with the written consent of the Holders of a
majority in principal amount of the outstanding Securities of all Series
affected thereby (voting as a single class), the Company and the Guarantors,
when authorized by a Board Resolution, and the Trustee may amend or supplement
this Indenture or such Securities without notice to any Securityholder. Subject
to Section 6.07, the Holders of a majority in principal amount of the
outstanding Securities of all Series affected thereby (voting as a single class)
may waive compliance by the Company and the Guarantors with any provision of
this Indenture or such Securities without notice to any Securityholder;
provided, that, only the Holders of a majority in principal amount of the
outstanding Securities of a particular Series may waive compliance with a
provision of this Indenture or the Securities of such Series having
applicability solely to such Series. However, without the consent of each
Securityholder affected, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.04, may not:
(1) reduce the amount of Securities of such Series or all Series
(voting as a single class), as the case may be, whose Holders must consent to an
amendment, supplement or waiver;
(2) reduce the rate (or change the manner of calculation of the rate)
or change the Stated Maturity for payment of interest on any Security;
(3) reduce the principal of or any premium payable at Maturity or
change the Stated Maturity for payment of the principal of any Security;
(4) waive a Default in the payment of the principal of or premium, if
any, or interest on any Security;
(5) make any changes in Section 6.04, 6.07 or the third sentence of
this Section 9.02;
(6) make any Security payable in a currency other than that stated in
the Security;
(7) impair the Holders' right to institute suit to enforce payment in
respect of the Securities on or after the due date for such payment; or
(8) release any Guarantor from its obligations under its Guarantee.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular Series of Securities, or which modifies the
rights of the Holders of Securities of such Series with respect to such covenant
or other provision, shall be deemed not to affect the rights under the Indenture
of the Holders of Securities of any other Series.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of such
Security or portion of such Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke in writing
the consent as to his Security or portion of a Security. Such revocation shall
be effective only if the Trustee receives the written notice of revocation
before the date the amendment, supplement or waiver becomes effective.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver which shall be at least 30 days prior to the first
solicitation of such consent. If a record date is fixed, then notwithstanding
the last two sentences of the immediately preceding paragraph, those Persons who
were Holders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to consent to such amendment, supplement or
waiver or to revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder of a Security of such Series, unless it makes a change
described in any of clauses (1) through (6) of Section 9.02. In that case the
amendment, supplement or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a
Security of the same Series that evidences the same debt as the consenting
Holder's Security.
Section 9.05. Notation On or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security
or Guarantee, the Trustee may require the Holder of the Security to deliver it
to the Trustee. The Trustee may place an appropriate notation on the Security
and Guarantee about the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the Company in
exchange for the Security shall issue and the Trustee shall authenticate a new
Security of the same Series that reflects the changed terms.
Section 9.06. Trustee to Sign Amendments, etc.
The Trustee shall be entitled to receive, and shall be fully protected
in relying upon, an Officers' Certificate and an Opinion of Counsel stating that
the execution of any amendment, supplement or waiver authorized pursuant to this
Article 9 is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
ARTICLE 10
Guarantee of Securities
Section 10.01. Unconditional Guarantee.
For good and valuable consideration receipt of which is hereby
acknowledged, and intending to be legally bound hereby, the Guarantors hereby
unconditionally and jointly and severally guarantee to each Holder of a Security
of any series, authenticated and delivered by the Trustee, upon which this
guarantee (the "Guarantee") is endorsed, the due and punctual payment of the
principal of, sinking fund payment, if any, premium, if any, and interest on,
and any Redemption Price with respect to such Security, when and as the same
shall become due and payable, whether at Stated Maturity, upon acceleration or
redemption or otherwise, in accordance with the terms of such Security and of
this Indenture.
The Guarantors agree to determine, at least one Business Day prior to
the date upon which a payment of principal of, sinking fund payment, if any,
premium, if any, and interest on said Security, and any Redemption Price with
respect to such Security, is due and payable, whether the Company has available
the funds to make such payment as the same shall become due and payable. In case
of the failure of the Company to punctually pay any such principal of, sinking
fund payment, if any, premium, if any, and interest on, and any Redemption Price
with respect to, such Security, the Guarantors hereby agree to cause any such
payment to be made punctually when and as the same shall become due and payable,
whether at Stated Maturity, upon acceleration or redemption, or otherwise, and
as if such payment were made by the Company.
The Guarantors hereby agree that their obligations hereunder shall be
as principal and not merely as surety, and shall be unconditional, irrevocable,
and absolute, irrespective of, and shall be unaffected by, any invalidity,
irregularity, or unenforceability of such Security or such Indenture, any
failure to enforce the provisions of such Security or such Indenture, or any
waiver, modification, consent or indulgence granted to the Company with respect
thereto (unless the same shall also be provided to the Guarantors), by the
Holder of such Security or the Trustee with respect to any provisions thereof,
the recovery of any judgment against the Company or any action to enforce the
same, or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a surety or of a guarantor. The Guarantors
hereby waive diligence, presentment, demand of payment, filing of claims with a
court in the event of merger, insolvency or bankruptcy of the Company, any right
to require a proceeding first against the Company, protest or notice with
respect to any such Security or the indebtedness evidenced thereby, and all
demands whatsoever and covenants that no Guarantee will be discharged except by
payment in full of the principal, premium, if any, and interest on, and any
Redemption Price with respect to, the Securities and the complete performance of
the obligations contained in such Security, the Guarantee and this Indenture.
The Guarantors shall be subrogated to all rights of the Holder of any
Security against the Company in respect of all amounts paid to such Holder by
the Guarantors pursuant to the provisions of the Guarantee; provided, however,
that the Guarantors shall not, without the consent of the Holders of all of the
Securities then outstanding, be entitled to enforce or to receive any payments
arising out of or based upon such right of subrogation until the principal of,
premium, if any, and interest on, and any Redemption Price with respect to all
Securities shall have been paid in full or payment thereof shall have been
provided for and all other obligations contained in the Securities and this
Indenture shall have been performed. If any amount shall be paid to any
Guarantor in violation of the preceding sentence and all amounts payable in
respect of the Securities shall not have been paid in full, such amount shall be
deemed to have been paid to such Guarantor for the benefit of, and held in trust
for the benefit of, the Holders, and shall forthwith be paid to the Trustee for
the benefit of the Holders to be credited and applied upon such amounts. Each
Guarantor acknowledges that it will receive direct and indirect benefits from
the issuance of the Securities pursuant to this Indenture.
Notwithstanding anything to the contrary contained herein, if
following any payment of principal, premium, if any, sinking fund payment,
Redemption Price or interest by the Company on the Securities to the Holders of
the Securities it is determined by a final decision of a court of competent
jurisdiction that such payment shall be avoided by a trustee in bankruptcy
(including any debtor-in-possession) as a preference under 11 U.S.C. Section 547
and such payment is returned by such Holder to such trustee in bankruptcy, then
and to the extent of such repayment, the obligations of the Guarantors hereunder
shall remain in full force and effect.
Notwithstanding anything to the contrary contained herein, each
Guarantee shall be, and hereby is, limited to the maximum amount that can be
guaranteed by the applicable Guarantor without rendering such Guarantee, as it
relates to such Guarantor, voidable under any applicable law relating to
fraudulent conveyance, fraudulent transfer or similar laws affecting the rights
of creditors generally.
The Guarantee set forth in this Article is intended for the benefit of
the Trustee and each of the Holders of Securities and shall be enforceable by
such Trustee and such Holders.
The Guarantee set forth in this Article shall be governed by the laws
of the State of Indiana without regard to principles of conflicts of law.
Section 10.02. Disposition of a Guarantor.
Anything herein to the contrary notwithstanding, if the Company
transfers, or causes the transfer of, all or substantially all of the voting
capital stock or properties and assets of any Guarantor as an entirety to any
Person other than the Company, or a Subsidiary of the Company (including a
Guarantor) whether by merger, consolidation, sale or other transfer (the
"Transfer"), all obligations and liabilities of such Guarantor under this
Indenture or the Guarantee shall terminate upon the consummation of such
Transfer and the Guarantor shall have no further liability or obligation with
respect hereto provided that:
(1) the Guarantor shall have fully repaid to the Company and the other
Guarantors prior to, or simultaneously with, the consummation of the Transfer
all of the Indebtedness owing to the Company or the other Guarantors (including
principal, sinking fund payments, if any, interest accrued to the date of
consummation of the Transfer, premium, if any, thereon and any other amounts due
and payable with respect to such Indebtedness);
(2) Standard & Poor's Ratings Service (or an equivalent rating agency)
has confirmed that the long term credit rating of the Company will not fall
below BBB- (or the equivalent) as a result of the Transfer and Moody's Investors
Service, Inc. (or an equivalent rating agency) has confirmed the long term
credit rating of the Company will not fall below Baa3 (or its equivalent) as a
result of the Transfer; and
(3) immediately before and immediately after giving effect to such
transaction no Event of Default and no Default with respect to the Securities
shall have occurred and be continuing.
Section 10.03. Execution of Guarantee
To evidence their Guarantee to the Holders specified in Section 10.01,
the Guarantors hereby agree to execute the Guarantee in substantially the form
above recited, to be endorsed on each Security authenticated and delivered by
the Trustee. Each such Guarantee shall be executed on behalf of the Guarantors
in a manner identical to that prescribed in Section 2.03 of the Indenture
relating to the execution, authentication, delivery and dating of such
Securities prior to the authentication of the Security on which it is endorsed,
and the delivery of such Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of such Guarantee on behalf of
the Guarantors.
The Guarantee set forth in this Article shall not be valid or become
obligatory for any purpose with respect to a Security until the certificate of
authentication on such Security shall have been signed by the Trustee.
The Issuer may elect in its sole discretion to cause any subsequent
Subsidiary of the Company to fully and unconditionally guarantee the due and
punctual payment of the Principal of, premium, if any, and interest on and any
other amounts payable under the Securities, when and if the same shall become
due and payable, whether at the Stated Maturity, by declaration of acceleration,
upon redemption, or otherwise, by execution of an indenture supplemental hereto
that adds such Subsidiary as a subsequent Guarantor (each a "Subsequent
Guarantor"); provided, however, that if a subsequent Subsidiary of the Company
guarantees other Indebtedness of the Company, such subsequent Subsidiary will be
required to be a Subsequent Guarantor.
Anything herein to the contrary not withstanding, by the execution of
a supplemental indenture by any Subsequent Guarantor and subject to Section
10.02 , the Guarantee of each such Guarantor in respect of such Securities shall
be set forth in Section 10.01 and shall be effective for all purposes upon
authentication of such Security by or on behalf of the Trustee, regardless of
whether such authentication occurs prior to a Subsequent Guarantor's execution
of the required supplemental indenture.
ARTICLE 11
Miscellaneous
Section 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
Section 11.02. Notices.
Any notice or communication shall be sufficiently given if in writing
and delivered in Person or mailed by first-class mail addressed as follows:
if to the Company:
Vectren Utility Holdings, Inc.
20 N.W. Fourth Street
Evansville, IN 47708
Attention: Secretary
if to the Guarantors:
Indiana Gas Company, Inc.
20 N.W. Fourth Street
Evansville, IN 47708
Attention: Secretary
Southern Indiana Gas and Electric Company
20 N.W. Fourth Street
Evansville, IN 47708
Attention: Secretary
Vectren Energy Delivery of Ohio, Inc.
20 N.W. Fourth Street
Evansville, IN 47708
Attention: Secretary
if to the Trustee:
U.S. Bank Trust National Association
180 East Fifth Street, Suite 200
St. Paul, Minnesota 55101
Attention: Richard Prokosch
The Company, any of the Guarantors or the Trustee by notice to the
others may designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Securityholder shall be mailed
to him at his address as it appears on the Security Register and shall be
sufficiently given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. Except for a notice to the Trustee, which is deemed given only
when received, if a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
Section 11.03. Communications by Holders With Other Holders.
Securityholders may communicate pursuant to TIA (S) 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities of an applicable Series. The Company, the Guarantors, the Trustee,
the Registrar and any other Person shall have the protection of Section 312(c)
of the TIA.
Section 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or the Guarantors to
the Trustee to take any action under this Indenture, the Company shall furnish
to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.05, shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with; provided, however, that with
respect to matters of fact an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public officials.
Section 11.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for its
functions.
Section 11.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in New York, New York are not required to be open. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period. The foregoing may be modified and amended in
or pursuant to the Authorizing Resolutions and/or a supplemental indenture
relating to the execution of the Securities of any Series.
Section 11.08. Governing Law.
THE LAWS OF THE STATE OF INDIANA SHALL GOVERN THIS INDENTURE AND THE
SECURITIES WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
Section 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company, the Guarantors or any of their Subsidiaries. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 11.10. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
or any of the Guarantors shall not have any liability for any obligations of the
Company or any of the Guarantors under the Securities or the Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and releases all
such liability.
Section 11.11. Successors.
All agreements of the Company and the Guarantors in this Indenture and
the Securities shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
Section 11.12. Duplicate Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 11.13. Separability.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby,
and a Holder shall have no claim therefor against any party hereto.
Section 11.14. Action of Holders when Securities are Denominated in Different
Currencies.
Whenever any action is to be taken hereunder by the Holders of two or
more Series of Securities denominated in different currencies, then, for the
purposes of determining the principal amount of Securities held by such Holders,
the aggregate principal amount of the Securities denominated in a currency other
than United States dollars shall be deemed to be that amount of United States
dollars that could be obtained for such principal amount on the basis of the
spot rate of exchange for such currency as determined by the Company or by an
authorized exchange rate agent and evidenced to the Trustee by an Officers'
Certificate as of the date the taking of such action by the Holders of the
requisite percentage in principal amount of the Securities is evidenced to the
Trustee. An exchange rate agent may be authorized in advance or from time to
time by the Company, and may be the Trustee or its Affiliate. Any such
determination by the Company or by any such exchange rate agent shall be
conclusive and binding on all Holders and the Trustee, and neither the Company
nor such exchange rate agent shall be liable therefor in the absence of bad
faith.
Section 11.15. Monies of Different Currencies to be Segregated.
The Trustee shall segregate monies, funds, and accounts held by the
Trustee hereunder in one currency from any monies, funds or accounts in any
other currencies, notwithstanding any provision herein which would otherwise
permit the Trustee to commingle such amounts.
Section 11.16. Payment to be in Proper Currency.
Each reference in any Security, or in the Authorizing Resolutions
and/or supplemental indenture, if any, relating thereto, to any currency shall
be of the essence. In the case of any Security denominated in any currency (the
"Required Currency") other than United States dollars, except as otherwise
provided therein or in the related Authorizing Resolutions and/or supplemental
indenture, if any, the obligation of the Company to make any payment of
principal of, premium, if any, or interest thereon shall not be discharged or
satisfied by any tender by the Company, or recovery by the Trustee, in any
currency other than the Required Currency, except to the extent that such tender
or recovery shall result in the Trustee timely holding the full amount of the
Required Currency. The costs and risks of any such exchange, including without
limitations, the risks of delay and exchange rate fluctuation, shall be borne by
the Company; the Company shall remain fully liable for any shortfall or
delinquency in the full amount of Required Currency then due and payable, and in
no circumstances shall the Trustee be liable therefor. The Company hereby waives
any defense of payment based upon any such tender or recovery which is not in
the Required Currency, or which, when exchanged for the Required Currency by the
Trustee, is less than the full amount of Required Currency then due and payable.
SIGNATURES
In Witness Whereof, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the date first written above.
VECTREN UTILITY HOLDINGS, INC., as Issuer
By: /s/ Jerome A. Benkert, Jr.
------------------------------------
Attest: /s/ Ronald E. Christian
--------------------------
INDIANA GAS COMPANY, INC., as Guarantor
By: /s/ M. Susan Hardwick
------------------------------------
Attest: /s/ Ronald E. Christian
--------------------------
SOUTHERN INDIANA GAS AND ELECTRIC
COMPANY, as Guarantor
By: /s/ M. Susan Hardwick
------------------------------------
Attest: /s/ Ronald E. Christian
--------------------------
VECTREN ENERGY DELIVERY OF OHIO, INC.,
as Guarantor
By: /s/ M. Susan Hardwick
------------------------------------
Attest: /s/ Ronald E. Christian
--------------------------
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By: /s/ Julie Eddington
------------------------------------
Attest:/s/ Lori-Anne Rosenberg
--------------------------
EX-4.2
5
ex4_2.txt
FIRST SUPPLEMENTAL INDENTURE
Exhibit 4.2
-----------
EXECUTION COPY
--------------
FIRST SUPPLEMENTAL INDENTURE
among
VECTREN UTILITY HOLDINGS, INC., AS ISSUER
INDIANA GAS COMPANY, INC., AS GUARANTOR
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY, AS GUARANTOR
VECTREN ENERGY DELIVERY OF OHIO, INC., AS GUARANTOR
AND
U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE
Dated October 19, 2001
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS......................................................1
SECTION 1.1. Definition of Terms............................................1
ARTICLE II GENERAL TERMS AND CONDITIONS OF THE NOTES........................2
SECTION 2.1. Designation and Principal Amount; Guarantees...................2
SECTION 2.2. Maturity.......................................................3
SECTION 2.3. Form and Payment...............................................3
SECTION 2.4. Global Note....................................................3
SECTION 2.5. Payment of Principal and Interest..............................4
ARTICLE III REDEMPTION OF THE NOTES AND DEFEASANCE...........................5
SECTION 3.1. Redemption at the Company's Option.............................5
SECTION 3.2. No Sinking Fund................................................6
SECTION 3.3. Defeasance.....................................................6
ARTICLE IV MISCELLANEOUS....................................................6
SECTION 4.1. Ratification of Indenture......................................6
SECTION 4.2. Trustee Not Responsible for Recitals...........................6
SECTION 4.3. Governing Law..................................................6
SECTION 4.4. Separability...................................................6
SECTION 4.5. Counterparts...................................................7
SECTION 4.6. Amendments.....................................................7
FIRST SUPPLEMENTAL INDENTURE, dated as of October 19, 2001 (the "First
Supplemental Indenture"), among Vectren Utility Holdings, Inc., an Indiana
corporation (the "Company"), Indiana Gas Company, Inc., an Indiana corporation
and an Ohio corporation ("Indiana Gas"), Southern Indiana Gas and Electric
Company, an Indiana corporation ("SIGECO") and Vectren Energy Delivery of Ohio,
Inc., an Ohio corporation ("VEDO"), (Indiana Gas, SIGECO and VEDO are referred
to herein collectively as the "Guarantors") and U.S. Bank Trust National
Association ("Trustee").
WHEREAS, the Company executed and delivered the Indenture dated as of
October 19, 2001 (the "Base Indenture") to the Trustee to provide for the
Company's unsecured notes, debentures or other evidence of indebtedness of the
Company (collectively, the "Securities"), and the Guarantees to be issued from
time to time in one or more series (as hereinafter defined), as might be
determined by the Company under the Base Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the Company
desires to provide for the establishment of a new series of its Securities to be
known as its 7-1/4% Senior Notes due October 15, 2031 (the "Notes") and the
unconditional guarantees by the Guarantors of the payment of the amounts owed
with respect to the Notes (the "Guarantees"), the form and terms of such Notes
and the terms, provisions and conditions of the Notes and the Guarantees to be
set forth as provided in the Base Indenture and this First Supplemental
Indenture (together, the "Indenture");
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, binding and enforceable instrument in
accordance with its terms, and to make the Notes, when executed, authenticated
and delivered by the Company and with the Guarantees endorsed thereon and
executed by the Guarantors, the valid, binding and enforceable obligations of
the Company and the Guarantor, as applicable:
NOW THEREFORE, in consideration of the purchase and acceptance of the
Notes by the Holders thereof, and for the purpose of setting forth, as provided
in the Base Indenture, the form and terms of the Notes, each of the Company and
the Guarantors, as applicable, 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 Base 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) headings are for convenience of reference only and do not affect
interpretation;
(e) the following terms have the meanings given to them in this
Section 1.1(e):
"Notes" shall have the meaning specified in Section 2.1.
"Global Note" shall have the meaning set forth in Section 2.4.
"Interest Payment Date" means January 15, April 15, July 15 and
October 15 of each year, beginning January 15, 2002.
"Maturity Date" shall have the meaning specified in Section 2.2.
"Original Issue Date" means October 19, 2001.
"Regular Record Date" means, with respect to any Interest Payment
Date for the Notes, the close of business on the first day of the month in which
such Interest Payment Date falls.
The terms "First Supplemental Indenture" and "Base Indenture"
shall have the respective meanings set forth in the recitals to this First
Supplemental Indenture.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.1. Designation and Principal Amount; Guarantees.
There is hereby authorized a series of Securities designated the
7-1/4% Senior Notes due October 15, 2031 (the "Notes") limited (except as
otherwise provided in Article 2 of the Indenture) in aggregate principal amount
to $100,000,000. The Notes may be issued from time to time upon written order of
the Company for the authentication and delivery of Notes pursuant to Section
2.03 of the Base Indenture. Each of Indiana Gas, SIGECO and VEDO (together with
each other subsidiary of the Company that pursuant to the terms of the Indenture
guarantees the Company's obligations under the Notes and the Indenture, the
"Guarantors") unconditionally and jointly and severally guarantees to the
Holders of the Notes upon which the Guarantee is endorsed, upon authentication
and delivery by the Trustee, the due and punctual payment of the principal of,
and interest on, and any Redemption Price with respect to the Notes, when and as
the same shall become due and payable, whether at Stated Maturity, upon
acceleration or redemption or otherwise, in accordance with the terms of the
Notes and of the Indenture.
SECTION 2.2. Maturity.
The date upon which the principal on the Notes shall become due and
payable at final maturity is October 15, 2031 (the "Maturity Date"), if not
redeemed in full previously in accordance with Article III of this Supplemental
Indenture.
SECTION 2.3. Form and Payment.
Except as provided in Section 2.4, the Notes shall be issued in fully
registered certificated form without interest coupons, bearing identical terms.
Principal of and interest on the Notes will be payable, the transfer of such
Notes will be registrable and such Notes will be exchangeable for Notes bearing
identical terms and provisions at the office or agency of the Company maintained
for such purpose as described below.
The Company hereby designates the Borough of Manhattan, The City of
New York as a place of payment ("Place of Payment") for the Notes, and the
office or agency maintained by the Company in such Place of Payment for the
purposes contemplated by this Section 2.3 shall initially be the Corporate Trust
Office of the Trustee at 100 Wall Street, Suite 2000, New York, New York 10005,
Attention: Richard Prokosch.
The Notes shall be issuable in denominations of $25 and integral
multiples of $25 in excess thereof.
The Notes may be issued, in whole or in part, in permanent global form
and, if issued in permanent global form, the Depository shall be The Depository
Trust Company or such other depositary as any officer of the Company may from
time to time designate.
The Registrar, the Paying Agent and the transfer agent for the Notes
shall initially be the Trustee.
The Notes shall be in substantially the form set forth in Exhibit A
hereto.
SECTION 2.4. Global Note.
(a) Unless and until it is exchanged for the Notes in registered
certificated form, a global Note in principal amount equal to the aggregate
principal amount of all outstanding Notes ("Global Note") may be transferred, in
whole but not in part, only to the Depository or a nominee of the Depository, or
to a successor Depository or to a nominee of such successor Depository.
(b) If at any (i) time the Depository notifies the Company that it is
unwilling or unable to continue as a Depository for the Global Notes and no
successor Depository shall have been appointed within 90 days after such
notification, (ii) the Depository at any time ceases to be a clearing agency
registered under the Securities Exchange Act of 1934 or any other applicable
rule or regulation and no successor Depository shall have been appointed within
90 days after the Company becoming aware of the Depository's ceasing to be so
registered, (iii) the Company, in its sole discretion, determines that the
Global Notes shall be so exchangeable or (iv) there shall have occurred and be
continuing an Event of Default, the Company will execute, and, subject to
Article II of the Base Indenture, the Trustee, upon written notice from the
Company, will authenticate and deliver the Notes, with the Guarantees endorsed
thereon and executed by the Guarantors, in registered certificated form without
coupons, in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Note in exchange for such Global Note.
Upon the exchange of the Global Note for such Notes in registered certificated
form without coupons, in authorized denominations, the Global Note shall be
cancelled by the Trustee. Such Notes in registered certificated form issued in
exchange for the Global Note shall be registered in such names and in such
authorized denominations as the Depository, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Notes to the Depository for delivery to the Persons
in whose names such Notes are so registered.
SECTION 2.5. Payment of Principal and Interest.
The Notes shall bear interest at the per annum rate of 7-1/4%. The
following terms apply to the Notes:
Interest shall be paid quarterly in arrears on each Interest Payment
Date commencing on the Interest Payment Date next succeeding the Original Issue
Date and, if applicable, on the Maturity Date or date of earlier redemption, as
the case may be. Payments of interest on the Notes will include interest accrued
from, and including, the immediately preceding Interest Payment Date to which
interest has been paid or duly provided for (or from, and including, the
Original Issue Date if no interest has been paid or duly provided for) to, but
excluding, the applicable Interest Payment Date or the Maturity Date or date of
earlier redemption, as the case may be. Interest payments for the Notes shall be
computed and paid on the basis of a 360-day year consisting of twelve 30-day
months.
The interest so payable and punctually paid or duly provided for on
any Interest Payment Date will be paid to the Holder(s) of the Notes as of the
Regular Record Date for such Interest Payment Date. Any such interest that is
not so punctually paid or duly provided for on any Interest Payment Date will
forthwith cease to be payable to the Holders of the particular series of Notes
as of the close of business on such Regular Record Date and may either be paid
to the Person or Persons in whose name such Notes are registered at the close of
business on a Special Record Date for the payment of such defaulted interest to
be fixed by the Trustee, notice whereof shall be given to Holders of the
particular series of Notes by the Trustee not less than fifteen (15) days prior
to such Special Record Date, or be paid at any time in any other lawful manner,
all as more fully provided in the Base Indenture.
Payment of the principal of and any interest on the Notes due on the
Maturity Date or date of earlier redemption, as the case may be, shall be made
in immediately available funds, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts, upon presentation and surrender of the applicable Notes at the
office or agency maintained by the Company for that purpose in the Borough of
Manhattan, The City of New York, currently the office of the Trustee located at
100 Wall Street, Suite 2000, New York, New York 10005, or at such other paying
agency in the Borough of Manhattan, The City of New York, as the Company may
determine. Payment of interest due on any Interest Payment Date other than the
Maturity Date or date of earlier redemption will be made by wire transfer of
immediately available funds at such place and to such account at a banking
institution in the United States as may be designated in wire transfer
instructions received in writing by the Trustee at least sixteen (16) days prior
to such Interest Payment Date. Any such wire transfer instructions received by
the Trustee shall remain in effect until revoked by such Holder.
In the event that any Interest Payment Date or the Maturity Date or
date of earlier redemption falls on a day that is not a Business Day, the
required payment of principal and/or interest payable on such date shall be made
on the next succeeding Business Day except that, if such Business Day is in the
next succeeding calendar year, payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the date such payment was due, and no interest shall accrue with respect to
such payment for the period from and after such Interest Payment Date or the
Maturity Date or date of earlier redemption, as the case may be, to the date of
such payment on the next succeeding Business Day.
ARTICLE III
REDEMPTION OF THE NOTES; DEFEASANCE
SECTION 3.1. Redemption at the Company's Option.
The Notes shall be subject to redemption at the option of the Company,
in whole or in part, without premium or penalty, at any time or from time to
time on or after October 19, 2006 at a Redemption Price equal to 100% of the
principal amount to be redeemed plus any unpaid interest accrued to the
Redemption Date.
In the event of redemption of a series of Notes in part only, a new
Note or Notes of such series for the unredeemed portion will be issued in the
name or names of the Holders thereof upon the presentation and surrender
thereof, as set forth in Section 3A.08 of the Base Indenture.
Notice of redemption shall be given as provided in Section 3A.05 of
the Base Indenture.
Any redemption of less than all of a series of Notes shall, with
respect to the principal thereof, be divisible by $1,000.
SECTION 3.2. No Sinking Fund.
The Notes are not subject to, or entitled to the benefit of, any
sinking fund.
SECTION 3.3. Defeasance.
Defeasance and Covenant Defeasance shall apply to the Notes.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. Ratification of Indenture.
The Base 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 4.2. 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 4.3. Governing Law.
This First Supplemental Indenture and each Note issued hereunder shall
be deemed to be a contract made under the internal laws of the State of Indiana
and for all purposes shall be governed by and construed in accordance with the
laws of said State without regard to principles of conflicts of law.
SECTION 4.4. Separability.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Notes shall for any reason be held to be
invalid, illegal or unenforceable in any respect, then, to the extent permitted
by law, such invalidity, illegality or unenforceability shall not affect any
other provisions of this First Supplemental Indenture or of the Notes, but this
First Supplemental Indenture and the Notes shall be construed as if such invalid
or illegal or unenforceable provision had never been contained herein or
therein.
SECTION 4.5. Counterparts.
This First Supplemental Indenture may be simultaneously executed in
any number of counterparts, each of which when so executed shall be an original,
and all such counterparts shall together constitute but one and the same
instrument.
SECTION 4.6. Amendments.
Notwithstanding any other provision hereof, all amendments to the Base
Indenture made hereby shall have effect only with respect to the Notes, and not
with respect to the Securities of any other series created subsequent to the
date hereof.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed by their respective officers
thereunto duly authorized, on the date or dates indicated in the acknowledgments
and as of the day and year first above written.
VECTREN UTILITY HOLDINGS, INC.
as Issuer
By: /s/ Jerome A. Benkert, Jr.
---------------------------------
Name: Jerome A. Benkert, Jr.
-------------------------------
Title: Executive Vice President
------------------------------
Attest:
By: /s/ Ronald E. Christian
---------------------------------------
Name: Ronald E. Christian
-------------------------------------
Title: Secretary
------------------------------------
INDIANA GAS COMPANY, INC.
as Guarantor
By: /s/ M. Susan Hardwick
---------------------------------
Name: M. Susan Hardwick
-------------------------------
Title: Vice President and Controller
------------------------------
Attest:
By: /s/ Ronald E. Christian
---------------------------------------
Name: Ronald E. Christian
-------------------------------------
Title: Secretary
------------------------------------
SOUTHERN INDIANA GAS AND ELECTRIC
COMPANY
as Guarantor
By: /s/ M. Susan Hardwick
---------------------------------
Name: M. Susan Hardwick
-------------------------------
Title: Vice President and Controller
------------------------------
Attest:
By: /s/ Ronald E. Christian
---------------------------------------
Name: Ronald E. Christian
-------------------------------------
Title: Secretary
------------------------------------
VECTREN ENERGY DELIVERY OF OHIO, INC.
as Guarantor
By: /s/ M. Susan Hardwick
---------------------------------
Name: M. Susan Hardwick
-------------------------------
Title: Vice President and Controller
------------------------------
Attest:
By: /s/ Ronald E. Christian
---------------------------------------
Name: Ronald E. Christian
-------------------------------------
Title: Secretary
------------------------------------
U.S. BANK TRUST NATIONAL ASSOCIATION
as Trustee
By: /s/ Julie Eddington
---------------------------------
Name: Julie Eddington
-------------------------------
Title: Assistant Vice President
------------------------------
Attest:
By: /s/ Lori-Anne Rosenberg
---------------------------------------
Name: Lori-Anne Rosenberg
-------------------------------------
Title: Assistant Vice President
------------------------------------
[Form of Face of Note]
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY ("DTC"), 55 WATER STREET, NEW YORK, NEW YORK TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH
SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE
OF SUCH SUCCESSOR.
Vectren Utility Holdings, Inc.
7 1/4 % Senior Note due October 15, 2031
RATE OF INTEREST STATED MATURITY DATE ORIGINAL ISSUE DATE
---------------- -------------------- -------------------
7 1/4% October 15, 2031 October 19, 2001
Registered No. 1 CUSIP No. 92239M 20 0
Vectren Utility Holdings, Inc., a corporation duly organized and
existing under the laws of the State of Indiana (herein called the "Company"),
for value received, hereby promises to pay, without relief from valuation or
appraisement laws, to Cede & Co. or registered assigns, the principal sum of
$100,000,000 on the Stated Maturity Date shown above or any earlier date of
redemption in accordance with the provisions on the reverse hereof (each such
date shall be referred to herein as the "Maturity Date" with respect to the
principal payable on such date), and to pay interest on the outstanding
principal of this Note , at the annual Rate of Interest shown above, from the
Original Issue Date shown above or from the most recent Interest Payment Date
(as hereinafter defined) to which interest has been paid or duly provided for,
payable quarterly on January 15, April 15, July 15 and October 15 of each year,
commencing on January 15, 2002 (an "Interest Payment Date"), and on the Maturity
Date.
The interest so payable and punctually paid or duly provided for on
any Interest Payment Date will be paid to the Holder of this Note as of the
Regular Record Date for such Interest Payment Date. Any such interest that is
not so punctually paid or duly provided for on any Interest Payment Date will
forthwith cease to be payable to the Holders of this Note as of the close of
business on such Regular Record Date and may either be paid to the Person or
Persons in whose name this Note is registered at the close of business on a
Special Record Date for the payment of such defaulted interest to be fixed by
the Trustee referred to on the reverse hereof, notice whereof shall be given to
Holders of the Notes by the Trustee not less than fifteen (15) calendar days
prior to such Special Record Date, or be paid at any time in any other lawful
manner, all as more fully provided in the Indenture referred to on the reverse
hereof.
Interest payable on this Note on any Interest Payment Date and on the
Maturity Date, as the case may be, will be the amount of interest accrued during
the applicable Interest Period (as defined below).
An "Interest Period" is each period from and including the immediately
preceding Interest Payment Date (or from and including October 19, 2001 in the
case of the initial Interest Period) to but excluding the applicable Interest
Payment Date or the Maturity Date, as the case may be. If any Interest Payment
Date or Maturity Date falls on a day that is not a Business Day, principal and
interest payable on such date will be paid on the succeeding Business Day with
the same force and effect as if it were paid on the date such payment was due,
and no interest will accrue on the amount so payable for the period from and
after such date to such succeeding Business Day. "Business Day" means any day,
other than a Saturday or a Sunday, on which banking institutions in New York,
New York are not required to be open.
Payment of the principal of, and any interest on this Note due on the
Maturity Date shall be made in immediately available funds, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts, upon presentation and surrender
of this Note at the office or agency maintained by the Company for that purpose
in the Borough of Manhattan, The City of New York, currently the office of the
Trustee located at 100 Wall Street, Suite 2000, New York, New York 10005, or at
such other paying agency in the Borough of Manhattan, The City of New York, as
the Company may determine. Payment of interest due on this Note on any Interest
Payment Date other than the Maturity Date will be made by wire transfer of
immediately available funds at such place and to such account at a banking
institution in the United States as may be designated in wire transfer
instructions received in writing by the Trustee at least sixteen (16) days prior
to such Interest Payment Date. Any such wire transfer instructions received by
the Trustee shall remain in effect until revoked by such Holder.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or the Guarantees (as defined on the reverse hereof) or be
valid or obligatory for any purpose.
In Witness Whereof, Vectren Utility Holdings, Inc. has caused this
Note to be executed by two of its duly authorized officers.
Vectren Utility Holdings, Inc.
By:
--------------------------------
Title:
------------------------------
By:
--------------------------------
Title:
------------------------------
DATED: October 19, 2001
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION,
As Trustee
By:
-------------------------------------
Authorized Signatory
[Form of Reverse of Note]
Vectren Utility Holdings, Inc.
7 1/4 % Senior Notes due OCTOBER 15, 2031
This Note is one of a duly authorized series of Securities of the
Company (which term includes any successor corporation under the Indenture )
designated as its "7 1/4 % Senior Notes due October 15, 2031" (the "Notes"),
issued or to be issued pursuant to an Indenture, dated as of October 10, 2001,
as amended by the First Supplemental Indenture dated October 19, 2001 (the
"Indenture"), delivered by the Company and Indiana Gas Company, Inc., Southern
Indiana Gas and Electric Company, and Vectren Energy Delivery of Ohio, Inc. (the
"Initial Guarantors" and, together with each other subsidiary of the Company
that pursuant to the terms of the Indenture guarantees the Company's obligations
under the Indenture, the "Guarantors"), to U.S. Bank Trust National Association,
as Trustee (the "Trustee," which term includes any successor trustee under the
Indenture). The terms of this Note include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as in effect on the date of the Indenture. Reference is hereby made to the
Indenture and all further supplemental indentures thereto for a statement of the
respective rights, limitation of rights, duties and immunities thereunder of the
Company, the Guarantors, the Trustee and the Holders and of the terms upon which
the Notes are, and are to be, authenticated and delivered. All capitalized terms
not defined herein shall have the meanings given to them in the Indenture.
Payments of principal and interest in respect of the Notes will be
fully and unconditionally and jointly and severally guaranteed by the
Guarantors, subject to the termination of any Guarantee of any Guarantor
pursuant to the terms of Article Ten of the Indenture.
The Notes are a series of debt securities issued or to be issued by
the Company under the Indenture, and this Series is limited in aggregate
principal amount to $100,000,000, subject to the reopening provisions of the
Indenture. The Indenture provides that the debt securities of the Company
issuable or issued thereunder ("Securities"), including the Notes, may be issued
in one or more series, which different series may be issued in such aggregate
principal amounts and on such terms (including, but not limited to, terms
relating to interest rate or rates, provisions for determining such interest
rate or rates and adjustments thereto, maturity, redemption (optional and
mandatory), sinking fund, covenants and Events of Default) as may be provided in
or pursuant to the Authorizing Resolutions and/or supplemental indenture (if
any) relating to the Series.
This Note is are subject to redemption upon not less than 30 nor more
than 60 days' written notice to the Holder hereof, at any time on or after
October 19, 2006, without premium or penalty, in whole or in part, at the
election of the Company at a Redemption Price equal to 100% of the principal
amount hereof, together with any unpaid interest accrued to the Redemption Date.
In the event of redemption of this Note in part only, a new Note or
Notes for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the surrender hereof.
If an Event of Default, as defined in the Indenture, shall occur and
be continuing, the principal of all the Notes may be (and, in certain cases,
shall be) declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and, if applicable, the Guarantors, and the rights of the Holders of the
Notes at any time by the Company, the Guarantors, if applicable, and the Trustee
with the consent of the Holders of a majority in aggregate principal amount of
the Securities affected thereby, voting as a single class (which may include the
Notes), at the time outstanding. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of the then
outstanding Securities affected thereby, voting as a single class (which may
include the Notes) to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
herefor in lieu hereof, whether or not notation of such consent or waiver is
made upon this Note.
The Indenture provides that no Holder may pursue any remedy under the
Indenture unless the Trustee shall have failed to act after notice of an Event
of Default and written request by Holders of at least 25% in aggregate principal
amount of the Notes and the offer to the Trustee of indemnity satisfactory to
it; provided however, such provision does not affect the right of a Holder to
sue for enforcement of any overdue payment on this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, places and rates, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations herein
and therein set forth, the transfer of this Note is registrable in the Security
Register upon surrender of this Note for registration of transfer at the agency
of the Company provided for that purpose duly endorsed by, or accompanied by a
written instrument of transfer in substantially the form accompanying this Note
duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Notes, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Notes 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, the
Notes are exchangeable for a like aggregate principal amount of Notes of a
different authorized denominations, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or similar governmental charge payable upon
exchanges pursuant to Section 2.11, 3A.08 or 9.05, in which case such transfer
taxes or similar governmental charges shall be paid by the Company).
Prior to due presentment of this Note for registration of transfer,
the Company, the Guarantors, the Trustee and any agent of the Company, the
Guarantors or the Trustee may treat the Holder of this Note as the owner hereof
for all purposes, whether or not this Note be overdue, and none of the Company,
the Guarantors, the Trustee or any such agent shall be affected by notice to the
contrary.
This Note shall be governed by the laws of the State of Indiana
without regard to principles of conflicts of law.
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form below and have your
signature guaranteed:
I or we assign and transfer this Note to:
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(PRINT OR TYPE NAME, ADDRESS AND ZIP CODE AND SOCIAL SECURITY OR TAX ID NUMBER
OF ASSIGNEES)
and irrevocably appoint, __________________ agent to transfer this Note on the
books of the Company. The agent may substitute another to act for him.
Dated: Signed:
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(SIGN EXACTLY AS NAME
APPEARS ON THE OTHER SIDE
OF THIS NOTE.)
SIGNATURE GUARANTEE:
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Notice: Signature(s) must be guaranteed by a member firm of the New York Stock
Exchange or a commercial bank or trust company.
[Form of Guarantee of Note]
For good and valuable consideration receipt of which is hereby
acknowledged, and intending to be legally bound hereby, each of Indiana Gas
Company, Inc., Southern Indiana Gas and Electric Company, and Vectren Energy
Delivery of Ohio, Inc. (together with each other subsidiary of the Company that
pursuant to the terms of the Indenture guarantees the Company's obligations
under the Notes and the Indenture, the "Guarantors") hereby unconditionally and
jointly and severally guarantees to the Holder of the note (the "Note"),
authenticated and delivered by the Trustee, upon which this guarantee (the
"Guarantee") is endorsed, the due and punctual payment of the principal of and
interest on, and any Redemption Price with respect to the Note, when and as the
same shall become due and payable, whether at Stated Maturity, upon acceleration
or redemption or otherwise, in accordance with the terms of this Note and of the
Indenture.
The Guarantors agree to determine, at least one Business Day prior to
the date upon which a payment of principal of and/or interest on the Note, and
any Redemption Price with respect to the Note, is due and payable, whether the
Company has available the funds to make such payment as the same shall become
due and payable. In case of the failure of the Company to punctually pay any
such principal of or interest on, or any Redemption Price with respect to, the
Note, the Guarantors hereby agree to cause any such payment to be made
punctually when and as the same shall become due and payable, whether at Stated
Maturity, upon acceleration or redemption, or otherwise, and as if such payment
were made by the Company.
The Guarantors hereby agree that their obligations hereunder shall be
as principal and not merely as surety, and shall be unconditional, irrevocable,
and absolute, irrespective of, and shall be unaffected by, any invalidity,
irregularity, or unenforceability of the Note or such Indenture, any failure to
enforce the provisions of the Note or the Indenture, or any waiver,
modification, consent or indulgence granted to the Company with respect thereto
(unless the same shall also be provided to the Guarantors) by the Holder of the
Note or the Trustee with respect to any provisions thereof, the recovery of any
judgment against the Company or any action to enforce the same, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a surety or of a guarantor. The Guarantors hereby waive diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger, insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to any the
Note or the indebtedness evidenced thereby, and all demands whatsoever and
covenants that this Guarantee will not be discharged except by payment in full
of the principal of and interest on, and any Redemption Price with respect to,
the Note and the complete performance of the obligations contained in the Note,
this Guarantee and the Indenture.
The Guarantors shall be subrogated to all rights of the Holder of the Note
against the Company in respect of all amounts paid to such Holder by the
Guarantors pursuant to the provisions of this Guarantee; provided, however, that
the Guarantors shall not, without the consent of the Holders of all of the
outstanding Notes (the "Notes") of the series of which the Note is a part, be
entitled to enforce or to receive any payments arising out of or based upon such
right of subrogation until the principal of and interest on, and any Redemption
Price with respect to all Notes shall have been paid in full or payment thereof
shall have been provided for and all other obligations contained in the Notes
and the Indenture shall have been performed. If any amount shall be paid to any
Guarantor in violation of the preceding sentence and all amounts payable in
respect of the Securities shall not have been paid in full, such amount shall be
deemed to have been paid to such Guarantor for the benefit of, and held in trust
for the benefit of, the Holders, and shall forthwith be paid to the Trustee for
the benefit of the Holders to be credited and applied upon such amounts. Each
Guarantor acknowledges that it will receive direct and indirect benefits from
the issuance of the Notes pursuant to this Indenture.
Notwithstanding anything to the contrary contained herein, if
following any payment of the principal Redemption Price or interest by the
Company in respect of the Notes to the Holders of the Notes it is determined by
a final decision of a court of competent jurisdiction that such payment shall be
avoided by a trustee in bankruptcy (including any debtor-in-possession) as a
preference under 11 U.S.C. Section 547 and such payment is returned by such
Holder to such trustee in bankruptcy, then the obligations of the Guarantors
hereunder shall remain in full force and effect to the extent of such repayment.
Notwithstanding anything to the contrary contained herein, this Guarantee shall
be, and hereby is, limited to the maximum amount that may be guaranteed by the
applicable Guarantor without rendering this Guarantee, as it relates to such
Guarantor, voidable under any applicable law relating to fraudulent conveyance,
fraudulent transfer or similar laws affecting the rights of creditors generally.
This Guarantee is intended for the benefit of the Trustee and each of
the Holders of the Notes and shall be enforceable by such Trustee and such
Holders.
This Guarantee is subject to termination in accordance with the
provisions of Article 10 of the Indenture.
This Guarantee shall be governed by the laws of the State of Indiana
without regard to principles of conflicts of law.
IN WITNESS WHEREOF, Indiana Gas Company, Inc. has caused this
Guarantee to be executed by two of its duly authorized officers.
By:
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Name:
Title:
By:
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Name:
Title:
IN WITNESS WHEREOF, Southern Indiana Gas and Electric Company has
caused this Guarantee to be executed by two of its duly authorized officers.
By:
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Name:
Title:
By:
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Name:
Title:
IN WITNESS WHEREOF, Vectren Energy Delivery of Ohio, Inc. has caused
this Guarantee to be executed by two of its duly authorized officers.
By:
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Name:
Title:
By:
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Name:
Title: