Exhibit 4.1
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THIRD 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 NATIONAL ASSOCIATION, AS TRUSTEE
Dated July 29, 2003
TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS.......................................................1
SECTION 1.1. Definition of Terms..........................................1
ARTICLE II GENERAL TERMS AND CONDITIONS OF THE NOTES.........................3
SECTION 2.1. Designation and Principal Amount; Guarantees.................3
SECTION 2.2. Maturity.....................................................3
SECTION 2.3. Form and Payment.............................................3
SECTION 2.4. Global Note..................................................4
SECTION 2.5. Payment of Principal and Interest............................5
ARTICLE III REDEMPTION OF THE NOTES; DEFEASANCE...............................6
SECTION 3.1. Redemption at the Company's Option...........................6
SECTION 3.2. No Sinking Fund..............................................7
SECTION 3.3. Defeasance...................................................7
ARTICLE IV MISCELLANEOUS.....................................................7
SECTION 4.1. Ratification of Indenture....................................7
SECTION 4.2. Trustee Not Responsible for Recitals.........................7
SECTION 4.3. Governing Law................................................8
SECTION 4.4. Separability.................................................8
SECTION 4.5. Counterparts.................................................8
SECTION 4.6. Amendments...................................................8
EXHIBITS A-1 and A-2. Forms of Note
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THIRD SUPPLEMENTAL INDENTURE, dated as of July 29, 2003 (the "Third
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", and together with Indiana Gas and SIGECO, the
"Initial Guarantors") and U.S. Bank National Association (the "Trustee").
WHEREAS, the Company and the Initial Guarantors 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
(as hereinafter defined), to be issued from time to time in one or more series,
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 two new series of Securities to be known as
its 5.25% Senior Notes due August 1, 2013 and its 5.75% Senior Notes due August
1, 2018 and the unconditional guarantees by the Guarantors (as defined herein)
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 Third Supplemental Indenture (together, the "Indenture");
WHEREAS, the Company and the Initial Guarantors requested that the Trustee
execute and deliver this Third Supplemental Indenture and all requirements
necessary to make this Third 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 Guarantors, as applicable, have
been made:
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 Initial Guarantors, as applicable, covenants and agrees with the Trustee as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
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Unless the context otherwise requires:
(a) a term defined in the Base Indenture has the same meaning when used in
this Third Supplemental Indenture;
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(b) a term defined anywhere in this Third 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.
"Guarantors" shall have the meaning specified in Section 2.1.
"Interest Payment Date" means February 1 and August 1 of each year,
beginning February 1, 2004.
"Maturity Date" shall have the meaning specified in Section 2.2.
"Original Issue Date" means July 29, 2003.
"Redemption Price" shall have the meaning specified in Section 3.1.
"Regular Record Date" means, with respect to any Interest Payment Date
for the Notes, the close of business on the fifteenth day of the month
immediately preceding the month in which such Interest Payment Date falls.
The following terms shall have the respective meanings set forth in
the recitals to this Third Supplemental Indenture:
"Base Indenture"
"Company"
"Guarantees"
"Indenture"
"Indiana Gas"
"Initial Guarantors"
"Third Supplemental Indenture"
"Securities"
"SIGECO"
"Trustee"
"VEDO"
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ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.1. Designation and Principal Amount; Guarantees.
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There is hereby authorized two series of Securities designated the 5.25%
Senior Notes due August 1, 2013 (the "2013 Notes") limited (except as otherwise
provided in Article 2 of the Base Indenture) in aggregate principal amount to
$100,000,000, and the 5.75% Senior Notes due August 1, 2018 (the "2018 Notes",
and together with the 2013 Notes, the "Notes") limited (except as otherwise
provided in Article 2 of the Base 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 the Initial Guarantors (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 Guarantees are 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.
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The date upon which the principal on the 2013 Notes shall become due and
payable at final maturity is August 1, 2013 (the "2013 Maturity Date") if not
redeemed in full previously in accordance with Article III of this Third
Supplemental Indenture. The date upon which the principal on the 2018 Notes
shall become due and payable at final maturity is August 1, 2018 (the "2018
Maturity Date", and the 2013 Maturity Date and the 2018 Maturity Date may
sometimes hereinafter be referred to in the alternative as the "Maturity Date")
if not redeemed in full previously in accordance with Article III of this Third
Supplemental Indenture.
SECTION 2.3. Form and Payment.
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The Notes shall be issued in fully registered certificated form without
interest coupons, bearing identical terms (except as otherwise provided in
Article 2 of the Base Indenture). Principal of, and interest on, and any
redemption price with respect to, the Notes will be payable, the transfer of
such Notes will be registrable and such Notes will be exchangeable for Notes
bearing identical terms 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
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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 $1,000 and integral
multiples of $1,000 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 Exhibits A-1 and
A-2 hereto.
SECTION 2.4. Global Note.
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(a) Unless and until it is exchanged for Notes of the same series in
registered certificated form, a global Note in principal amount equal to the
aggregate principal amount of the 2013 Notes and a global Note in principal
amount equal to the aggregate principal amount of the 2018 Notes (each a "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 time (i) 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 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 2 of the Base Indenture, the Trustee, upon written notice from the
Company, will authenticate and deliver Notes of the same series, 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.
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SECTION 2.5. Payment of Principal and Interest.
---------------------------------
The 2013 Notes shall bear interest at the per annum rate of 5.25%. The 2018
Notes shall bear interest at the per annum rate of 5.75%. The following terms
apply to the Notes:
Interest shall be paid semi-annually in arrears on each Interest Payment
Date commencing on February 1, 2004 and, if applicable, upon any 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 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 particular series of
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 premium or interest on the Notes due
on the applicable Maturity Date or date of earlier redemption, as the case may
be, shall be made in immediately available funds, 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 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.
Any payments on the Notes will be made 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.
In the event that any Interest Payment Date or the applicable Maturity Date
or date of earlier redemption falls on a day that is not a Business Day, the
required payment of principal, premium and/or interest payable on such date
shall be made on the next succeeding Business Day with the
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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 applicable 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.
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Each series of Notes shall be subject to redemption at the option of the
Company, in whole or in part, without premium or penalty, at any time, at a
redemption price (the "Redemption Price") equal to the greater of (1) 100% of
the principal amount of the Notes to be redeemed and (2) the sum of the present
values of the remaining scheduled payments of principal and interest on the
Notes to be redeemed discounted to the redemption date semi-annually (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate (as
defined below) plus 20 basis points for the 2013 Notes and 25 basis points for
the 2018 Notes, plus, in either case, any unpaid interest accrued on such Notes
to the date of redemption.
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.
For purposes of this Section:
"Treasury Rate" means, with respect to any redemption date applicable to a
Note, the rate per annum equal to the semi-annual equivalent yield to maturity
of the Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes to be redeemed that would be used, at the time
of selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the Notes to be redeemed.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Trustee after consultation with the Company and the Guarantors.
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"Comparable Treasury Price" means, with respect to any redemption date
applicable to a Note, (1) if the Trustee obtains five Reference Treasury Dealer
Quotations, the average of the three remaining Reference Treasury Dealer
Quotations after excluding the highest and lowest Reference Treasury Dealer
Quotations obtained, or (2) if the Trustee obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all Reference Treasury
Dealer Quotations obtained.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date applicable to a Note, the
average, as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such Reference Treasury
Dealer at 5:00 p.m., New York City time, on the third Business Day preceding
such redemption date.
"Reference Treasury Dealer" means each of ABN AMRO Incorporated, Banc One
Capital Markets, Inc., Wachovia Capital Markets, LLC, BNY Capital Markets, Inc.,
Fifth Third Securities, Inc., NatCity Investments, Inc., U.S. Bancorp Piper
Jaffray Inc., and their respective successors; provided, however, that if any of
the foregoing shall cease to be a primary U.S. Government securities dealer in
New York City (a "Primary Treasury Dealer"), such former dealer shall be
replaced with another Primary Treasury Dealer.
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.
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Article 8 of the Base Indenture describing 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 Third Supplemental Indenture,
is in all respects ratified and confirmed, and this Third 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
Third Supplemental Indenture.
7
SECTION 4.3. Governing Law.
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This Third Supplemental Indenture and each Note issued hereunder shall be
deemed to be contracts 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 Third
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 Third Supplemental Indenture or of the Notes, but this
Third 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 Third 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 prior to or
subsequent to the date hereof.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Third 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:
---------------------------------
Name:
-------------------------------
Title:
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Attest:
By:
------------------------------------
Name:
----------------------------------
Title:
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INDIANA GAS COMPANY, INC.
as Initial Guarantor
By:
---------------------------------
Name:
-------------------------------
Title:
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Attest:
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SOUTHERN INDIANA GAS AND ELECTRIC
COMPANY
as Initial Guarantor
By:
---------------------------------
Name:
-------------------------------
Title:
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Attest:
By:
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Name:
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Title:
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VECTREN ENERGY DELIVERY OF OHIO, INC.,
as Initial Guarantor
By:
---------------------------------
Name:
-------------------------------
Title:
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Attest:
By:
-----------------------------------
Name:
---------------------------------
Title:
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U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
Name:
-------------------------------
Title:
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Attest:
By:
------------------------------------
Name:
----------------------------------
Title:
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10
Exhibit A-1
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[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.
5.25% SENIOR NOTE DUE AUGUST 1, 2013
RATE OF INTEREST STATED MATURITY DATE ORIGINAL ISSUE DATE
- ---------------- --------------------- -------------------
5.25% August 1, 2013 July 29, 2003
Registered No. 1 CUSIP No. 92239M AD 3
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 semi-annually in
arrears on February 1 and August 1 of each year, commencing on February 1, 2004
(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
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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) computed on the basis of a
360-day year of twelve 30-day months.
An "Interest Period" is each period 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 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, premium and/or 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 The City of New York are
not authorized or required to be closed.
Payment of the principal of, and any interest on, this Note due on the
Maturity Date shall be made in immediately available funds, 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.
Any payments on this Note will be made 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.
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.
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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:
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Title:
---------------------------------
By:
------------------------------------
Title:
---------------------------------
DATED: July 29, 2003
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
As Trustee
By:
------------------------------------
Authorized Signatory
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[Form of Reverse of Note]
VECTREN UTILITY HOLDINGS, INC.
5.25% SENIOR NOTE DUE AUGUST 1, 2013
This Note is one of a duly authorized series of Securities (as defined
below) of the Company (which term includes any successor corporation under the
Indenture ) designated as its "5.25% Senior Notes due August 1, 2013" (the
"Notes"), issued or to be issued pursuant to an Indenture, dated as of October
19, 2001, as amended by the Third Supplemental Indenture dated July 29, 2003
(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 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, premium, if any, 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 that 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 (the "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 subject to redemption upon not less than 30 nor more than 60
days' prior written notice to the Holder hereof, at any time, in whole or in
part, at the election of the Company at a redemption price (the "Redemption
Price") equal to the greater of (1) 100% of the principal amount hereof to be
redeemed, and (2) the sum of the present values of the remaining scheduled
payments of principal and interest on this Note discounted to the redemption
date semi-annually (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Rate (as defined below) plus 20 basis
14
points, plus any unpaid interest accrued to the date of redemption.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of this Note that would be used, at the time of selection and
in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of this
Note.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Trustee after consultation with the Company and the Guarantors.
"Comparable Treasury Price" means, with respect to any redemption date
applicable to a Note, (1) if the Trustee obtains five Reference Treasury Dealer
Quotations, the average of the three remaining Reference Treasury Dealer
Quotations after excluding the highest and lowest Reference Treasury Dealer
Quotations obtained, or (2) if the Trustee obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all Reference Treasury
Dealer Quotations obtained.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such redemption date.
"Reference Treasury Dealer" means each of ABN AMRO Incorporated, Banc One
Capital Markets, Inc., Wachovia Capital Markets, LLC, BNY Capital Markets, Inc.,
Fifth Third Securities, Inc., NatCity Investments, Inc., U.S. Bancorp Piper
Jaffray Inc. and their respective successors; provided, however, that if any of
the foregoing, shall cease to be a primary U.S. Government securities dealer in
New York City (a "Primary Treasury Dealer"), such former dealer shall be
replaced with another Primary Treasury Dealer.
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
15
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, premium, if any, 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 $1,000 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
16
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.
17
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:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(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:
------------------------------- ---------------------------------
------------------------------- ---------------------------------
(SIGN EXACTLY AS NAME APPEARS ON
THE OTHER SIDE OF THIS NOTE.)
SIGNATURE GUARANTEE:
- --------------------------------------------------------
Notice: Signature(s) must be guaranteed by a member firm of the New York Stock
Exchange or a commercial bank or trust company.
18
[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, 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, and 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
19
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, the related Guarantees 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 Notes 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.
20
IN WITNESS WHEREOF, Indiana Gas Company, Inc. has caused this Guarantee to
be executed by two of its duly authorized officers.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
DATED: July 29, 2003
21
IN WITNESS WHEREOF, Southern Indiana Gas and Electric Company has caused this
Guarantee to be executed by two of its duly authorized officers.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
DATED: July 29, 2003
22
IN WITNESS WHEREOF, Vectren Energy Delivery of Ohio, Inc. has caused this
Guarantee to be executed by two of its duly authorized officers.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
DATED: July 29, 2003
23
Exhibit A-2
-----------
[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.
5.75% SENIOR NOTE DUE AUGUST 1, 2018
RATE OF INTEREST STATED MATURITY DATE ORIGINAL ISSUE DATE
- ---------------- -------------------- -------------------
5.75% August 1, 2018 July 29, 2003
Registered No. 1 CUSIP No. 92239M AE 1
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 semi-annually in
arrears on February 1 and August 1 of each year, commencing on February 1, 2004
(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
24
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) computed on the basis of a
360-day year of twelve 30-day months.
An "Interest Period" is each period 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 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, premium and/or 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 The City of New York are
not authorized or required to be closed.
Payment of the principal of, and any interest on, this Note due on the
Maturity Date shall be made in immediately available funds, 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.
Any payments on this Note will be made 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.
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.
25
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.
26
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: July 29, 2003
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
As Trustee
By:
--------------------------------
Authorized Signatory
27
[Form of Reverse of Note]
VECTREN UTILITY HOLDINGS, INC.
5.75% SENIOR NOTE DUE AUGUST 1, 2018
This Note is one of a duly authorized series of Securities (as defined
below) of the Company (which term includes any successor corporation under the
Indenture ) designated as its "5.75% Senior Notes due August 1, 2018" (the
"Notes"), issued or to be issued pursuant to an Indenture, dated as of October
19, 2001, as amended by the Third Supplemental Indenture dated July 29, 2003
(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 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, premium, if any, 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 that 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 (the "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 subject to redemption upon not less than 30 nor more than 60
days' prior written notice to the Holder hereof, at any time, in whole or in
part, at the election of the Company at a redemption price (the "Redemption
Price") equal to the greater of (1) 100% of the principal amount hereof to be
redeemed, and (2) the sum of the present values of the remaining scheduled
payments of principal and interest on this Note discounted to the redemption
date semi-annually (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Rate (as defined below) plus 25 basis
28
points, plus any unpaid interest accrued to the date of redemption.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of this Note that would be used, at the time of selection and
in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of this
Note.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Trustee after consultation with the Company and the Guarantors.
"Comparable Treasury Price" means, with respect to any redemption date
applicable to a Note, (1) if the Trustee obtains five Reference Treasury Dealer
Quotations, the average of the three remaining Reference Treasury Dealer
Quotations after excluding the highest and lowest Reference Treasury Dealer
Quotations obtained, or (2) if the Trustee obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all Reference Treasury
Dealer Quotations obtained.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such redemption date.
"Reference Treasury Dealer" means each of ABN AMRO Incorporated, Banc One
Capital Markets, Inc., Wachovia Capital Markets, LLC, BNY Capital Markets, Inc.,
Fifth Third Securities, Inc., NatCity Investments, Inc., U.S. Bancorp Piper
Jaffray Inc. and their respective successors; provided, however, that if any of
the foregoing, shall cease to be a primary U.S. Government securities dealer in
New York City (a "Primary Treasury Dealer"), such former dealer shall be
replaced with another Primary Treasury Dealer.
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
29
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, premium, if any, 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 $1,000 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
30
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.
31
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:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(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:
------------------- -------------------------------
------------------- -------------------------------
(SIGN EXACTLY AS NAME APPEARS ON
THE OTHER SIDE OF THIS NOTE.)
SIGNATURE GUARANTEE:
- -----------------------------------------------
Notice: Signature(s) must be guaranteed by a member firm of the New York Stock
Exchange or a commercial bank or trust company.
32
[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, 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, and 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
33
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, the related Guarantees 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 Notes 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.
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IN WITNESS WHEREOF, Indiana Gas Company, Inc. has caused this Guarantee to
be executed by two of its duly authorized officers.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
DATED: July 29, 2003
35
IN WITNESS WHEREOF, Southern Indiana Gas and Electric Company has caused this
Guarantee to be executed by two of its duly authorized officers.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
DATED: July 29, 2003
36
IN WITNESS WHEREOF, Vectren Energy Delivery of Ohio, Inc. has caused this
Guarantee to be executed by two of its duly authorized officers.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
DATED: July 29, 2003
37