Exhibit 4.3
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EXECUTION COPY
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SECOND 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 ______________, 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.........................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..............................4
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...........................8
SECTION 4.3. Governing Law..................................................8
SECTION 4.4. Separability...................................................8
SECTION 4.5. Counterparts...................................................8
SECTION 4.6. Amendments.....................................................8
EXHIBIT A - FORM OF NOTE
SECOND SUPPLEMENTAL INDENTURE, dated as of ____________, 2001 (the
"Second 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 Trust 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 a new series of its Securities to be
known as its 6 5/8% Senior Notes due December 1, 2011 (the "Notes") 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 Second
Supplemental Indenture (together, the "Indenture");
WHEREAS, the Company and the Initial Guarantors requested that the
Trustee execute and deliver this Second Supplemental Indenture and all
requirements necessary to make this Second 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.
Unless the context otherwise requires:
(a) a term defined in the Base Indenture has the same meaning when
used in this Second Supplemental Indenture;
(b) a term defined anywhere in this Second 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 June 1 and December 1 of each
year, beginning June 1, 2002.
"Maturity Date" shall have the meaning specified in Section
2.2.
"Original Issue Date" means November 30, 2001.
"Redemption Price" shall have the meaning specified in
Section 3.1.
"Regular Record Date" means, with respect to any Interest
Payment Date 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 Second Supplemental Indenture:
"Base Indenture"
"Company"
"Guarantees"
"Indenture"
"Indiana Gas"
"Initial Guarantors"
"Second Supplemental Indenture"
"Securities"
"SIGECO"
"Trustee"
"VEDO"
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 6
5/8% Senior Notes due December 1, 2011 (the "Notes") limited (except as
otherwise provided in Article 2 of the Indenture) in aggregate principal amount
to $250,000,000. 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.
The date upon which the principal on the Notes shall become due and
payable at final maturity is December 1, 2011 (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 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxxxxx.
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 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 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 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 6 5/8%. The
following terms apply to the Notes:
Interest shall be paid semi-annually 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
000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, 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 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, 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 25 basis points, plus, in either case, any unpaid interest accrued 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, 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 such Notes.
"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, (1) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) on the
third Business Day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (2) if such release (or any successor release) is not
published or dos not contain such prices on such Business Day, (a) the average
of the Reference Treasury Dealer Quotations, or (b) if the Trustee obtains fewer
than four such Reference Treasury Dealer Quotations, the average of all such
quotations.
"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. on the
third Business Day preceding such redemption date.
"Reference Treasury Dealer" means each of ABN AMRO Incorporated, Banc
One Capital Markets, Inc., BNY Capital Markets, Inc. and Xxxxxxx, Sachs & Co.
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.
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 Second Supplemental
Indenture, is in all respects ratified and confirmed, and this Second
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
Second Supplemental Indenture.
SECTION 4.3. Governing Law.
This Second 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 Second
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 Second Supplemental Indenture or of the Notes, but this
Second 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 Second 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.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Second
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/
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Name:
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Title:
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Attest:
By: /s/
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Name:
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Title:
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INDIANA GAS COMPANY, INC.
as Initial Guarantor
By: /s/
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Name:
-----------------------------------
Title:
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Attest:
By: /s/
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Name:
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Title:
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SOUTHERN INDIANA GAS AND ELECTRIC
COMPANY
as Initial Guarantor
By: /s/
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Name:
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Title:
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Attest:
By: /s/
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Name:
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Title:
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VECTREN ENERGY DELIVERY OF OHIO, INC.
as Initial Guarantor
By: /s/
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Name:
-----------------------------------
Title:
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Attest:
By: /s/
------------------------------------
Name:
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Title:
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U.S. BANK TRUST NATIONAL ASSOCIATION
as Trustee
By: /s/
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Name:
-----------------------------------
Title:
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Attest:
By: /s/
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Name:
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Title:
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Exhibit A
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[Form of Face of Note]
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY ("DTC"), 00 XXXXX XXXXXX, XXX XXXX, XXX XXXX 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.
6 5/8% Senior Note due DECEMBER 1, 2011
RATE OF INTEREST STATED MATURITY DATE ORIGINAL ISSUE DATE
---------------- -------------------- -------------------
6 5/8% December 1, 2011 November 30, 2001
Registered Xx. 0 XXXXX Xx. 00000X AC 5
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
$250,000,000 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 on June 1 and December 1 of each year, commencing on June
1, 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 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 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 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, 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 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, 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:
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Title:
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By:
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Title:
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DATED: ___________, 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:
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Authorized Signatory
[Form of Reverse of Note]
Vectren Utility Holdings, Inc.
6 5/8 % Senior Notes due DECEMBER 1, 2011
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 "6 5/8 % Senior Notes due December 1, 2011" (the "Notes"),
issued or to be issued pursuant to an Indenture, dated as of October 19, 2001,
as amended by the Second Supplemental Indenture dated November 30, 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 $250,000,000, 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, without premium
or penalty, 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, 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 points, plus, in either
case, 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, (1) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) on the
third Business Day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (2) if such release (or any successor release) is not
published or dos not contain such prices on such Business Day, (a) the average
of the Reference Treasury Dealer Quotations, or (b) if the Trustee obtains fewer
than four such Reference Treasury Dealer Quotations, the average of all such
quotations.
"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. on the
third Business Day preceding such redemption date.
"Reference Treasury Dealer" means each of ABN AMRO Incorporated, Banc
One Capital Markets, Inc., BNY Capital Markets, Inc. and Xxxxxxx, Xxxxx & Co.
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 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
xxx 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 $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 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, 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 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 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.
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:
DATED: November 30, 2001
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:
DATED: November 30, 2001
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:
DATED: November 30, 2001
