Exhibit
1.1
EXECUTION
COPY
UNDERWRITING
AGREEMENT
VECTREN
UTILITY HOLDINGS, INC.
(An
Indiana corporation)
AND
THE
GUARANTORS NAMED HEREIN
Debt
Securities
Dated
November 16,
2005
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Page
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SECTION
1.
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Representations
and Warranties
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3
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(a)
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Representations
and Warranties by the Company and the Guarantors
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3
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(b)
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Officers’
Certificates
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12
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SECTION
2.
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Sale
and Delivery to Underwriters; Closing
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12
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(a)
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Underwritten
Securities
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12
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(b)
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Option
Underwritten Securities
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12
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(c)
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Payment
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13
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(d)
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Denominations;
Registration
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13
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SECTION
3.
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Covenants
of the Company and the Guarantors
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14
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(a)
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Compliance
with Securities Regulations and Commission Requests
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14
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(b)
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Filing
of Amendments
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14
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(c)
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Delivery
of Registration Statements
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14
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(d)
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Delivery
of Prospectuses
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15
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(e)
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Continued
Compliance with Securities Laws
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15
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(f)
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Blue
Sky Qualifications
`
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15
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(g)
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Earnings
Statement
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16
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(h)
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Use
of Proceeds
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16
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(i)
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Listing
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16
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(j)
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Restriction
on Sale of Securities
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16
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(k)
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Reporting
Requirements
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16
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(l)
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Additional
Guarantors
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16
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SECTION
4.
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Payment
of Expenses
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16
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(a)
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Expenses
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16
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(b)
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Terminations
of Agreement
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17
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SECTION
5.
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Conditions
of Underwriters’ Obligations
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17
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(a)
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Effectiveness
of Registration Statement
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17
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(b)
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Opinion
of General Counsel of the Company
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18
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(c)
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Opinion
of Counsel for Company and the Guarantors
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18
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(d)
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Opinion
of Counsel for Underwriters
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18
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(e)
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Officers’
Certificate
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18
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(f)
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Accountant’s
Comfort Letter
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18
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(g)
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Bring-Down
Comfort Letter
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19
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(h)
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Ratings
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19
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(i)
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Approval
of Listing
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19
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(j)
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No
Objection
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19
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(k)
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Lock-up
Agreements
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19
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(l)
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Over-Allotment
Option
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19
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(m)
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Additional
Documents
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20
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(n)
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Termination
of Terms Agreement
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20
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SECTION
6.
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Indemnification
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21
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(a)
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Indemnification
of Underwriters
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21
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(b)
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Indemnification
of Company, Directors and Officers
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22
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(c)
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Actions
against Parties; Notification
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22
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(d)
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Settlement
without Consent if Failure to Reimburse
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23
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SECTION
7.
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Contribution
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23
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SECTION
8.
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Representations,
Warranties and Agreements to Survive Delivery
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24
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SECTION
9.
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Termination
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24
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(a)
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Underwriting
Agreement
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24
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(b)
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Terms
Agreement
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25
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(c)
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Liabilities
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25
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SECTION
10.
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Default
by One or More of the Underwriters
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25
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SECTION
11.
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Notices
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26
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SECTION
12.
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Parties
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26
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SECTION
13.
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GOVERNING
LAW AND TIME
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26
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SECTION
14.
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Effect
of Headings
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27
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SECTION
15.
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Counterparts
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27
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SECTION
16.
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Tax
Disclosure
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27
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SCHEDULES
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Schedule
A - List of Subsidiaries
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Sch
A-1
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EXHIBITS
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Exhibit
A - Terms Agreement
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A-1
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Exhibit
B - Form of Opinion of General Counsel of the Company
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B-1
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Exhibit
C - Form of Opinion of Company’s Counsel
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C-1
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VECTREN
UTILITY HOLDINGS, INC.
(an
Indiana corporation)
AND
THE
GUARANTORS NAMED HEREIN
Debt
Securities
UNDERWRITING
AGREEMENT
November
16, 2005
LaSalle
Financial Services, Inc.
135
South
LaSalle Street, Suite 1460
Chicago,
IL 60603
Ladies
and Gentlemen:
Vectren
Utility Holdings, Inc.,
an
Indiana
corporation (the “Company”), proposes to issue and sell an aggregate principal
amount of senior debt securities not to exceed $150,000,000 (the “Debt
Securities”), from time to time, in or pursuant to one or more offerings on
terms to be determined at the time of sale. The Debt Securities will be issued
in one or more series as senior indebtedness under an indenture, dated as of
October 19, 2001 (as modified, supplemented or amended from time to time, the
“Indenture”), among the Company, as issuer, the Initial Guarantors (as defined
below), as guarantors, and U.S. Bank Trust National Association, as trustee
(the
“Trustee”), and, subject to the terms of the Indenture, will be fully and
unconditionally guaranteed as to payment of principal, premium (if any) and
interest (the “Guarantees,” and together with the Debt Securities, the
“Securities”) by Indiana Gas Company, Inc., an Indiana and Ohio corporation,
Southern Indiana Gas and Electric Company, an Indiana corporation, and Vectren
Energy Delivery of Ohio, Inc., an Ohio corporation (collectively, the “Initial
Guarantors” and, together with each other subsidiary of the Company that
pursuant to the terms of the Indenture guarantees the Company’s obligations
under the Debt Securities, the “Guarantors”).
Each
series of Debt Securities may vary, as applicable, as to title, aggregate
principal amount, rank, interest rate or formula and timing of payments thereof,
stated maturity date, redemption and/or repayment provisions, sinking fund
requirements and any other variable terms established by or pursuant to the
Indenture.
Whenever
the Company determines to make an offering of Securities through LaSalle
Financial Services, Inc. (the “Representative”), or through an underwriting
syndicate managed by the Representative, the Company and, if applicable,
the
Guarantors will enter into an agreement (each, a “Terms Agreement”) providing
for the sale of such Securities to, and the purchase and offering thereof
by,
Representative and such other underwriters, if any, selected by the
Representative (the “Underwriters”, which term shall include the Representative,
as well as any Underwriter substituted pursuant to Section 10 hereof). The
Terms
Agreement relating to the offering of Securities shall specify the aggregate
principal amount of Debt Securities to be
initially
issued (the “Initial Underwritten Securities”), the name of each Underwriter
participating in such offering (subject to substitution as provided in Section
10 hereof) and the name of any Underwriter other than the Representative
acting
as co-manager in connection with such offering, the aggregate principal amount
of Initial Underwritten Securities which each such Underwriter severally
agrees
to purchase, whether such offering is on a fixed or variable price basis
and, if
on a fixed price basis, the initial offering price, the price at which the
Initial Underwritten Securities are to be purchased by the Underwriters,
the
form, time, date and place of delivery and payment of the Initial Underwritten
Securities and any other material variable terms of the Initial Underwritten
Securities. In addition, if applicable, such Terms Agreement shall specify
whether the Company has agreed to grant to the Underwriters an option to
purchase additional Securities to cover over-allotments, if any, and the
aggregate principal amount of Debt Securities subject to such option (the
“Option Underwritten Securities”). As used herein, the term “Underwritten
Securities” shall include the Initial Underwritten Securities and all or any
portion of any Option Underwritten Securities. The Terms Agreement, which
shall
be substantially in the form of
Exhibit
A
hereto,
may take the form of an exchange of any standard form of written
telecommunication between the Company and the Representative acting for itself
and, if applicable, for any other Underwriters. Each offering of Underwritten
Securities through the Representative will be governed by this Underwriting
Agreement, as supplemented by the applicable Terms Agreement.
The
Company and the Initial Guarantors have filed with the Securities and Exchange
Commission (the “Commission”) a registration statement on Form S-3 (No.
333-128286) for the registration of the Securities under the Securities Act
of
1933, as amended (the “1933 Act”), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the “1933 Act Regulations”). Such registration statement has been
declared effective by the Commission and the Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the “1939 Act”), and the
Company and the Initial Guarantors have or will have filed such post-effective
amendments thereto as may be required prior to the execution of the applicable
Terms Agreement and each such post-effective amendment has been declared
effective by the Commission. Such registration statement (as so amended, if
applicable), including the information, if any, deemed to be a part thereof
pursuant to Rule 430A(b) of the 1933 Act Regulations (the “Rule 430A
Information”) or Rule 434(d) of the 1933 Act Regulations (the “Rule 434
Information”), is referred to herein as the “Registration Statement”; and the
final prospectus and the final prospectus supplement relating to the offering
of
the Underwritten Securities, in the respective forms first furnished to the
Underwriters by the Company for use in connection with the offering of the
Underwritten Securities, are collectively referred to herein as the
“Prospectus”;
provided
,
however
,
that
all references to the “Registration Statement” and the “Prospectus” shall also
be deemed to include the information in all documents incorporated therein
by
reference pursuant to the Securities Exchange Act of 1934, as amended (the
“1934
Act”), prior to the execution of the applicable Terms Agreement;
provided
,
further
,
that if
the Company and the Guarantors file a registration statement with the Commission
pursuant to Rule 462(b) of the 1933 Act Regulations (the “Rule 462(b)
Registration Statement”), then, after such filing, all references to
“Registration Statement” shall also be deemed to include the Rule 462(b)
Registration Statement; and
provided
,
further
,
that if
the Company elects to rely upon Rule 434 of the 1933 Act Regulations, then
all
references to “Prospectus” shall also be deemed to include the final or
preliminary prospectus and the applicable term sheet or abbreviated term sheet
(the “Term Sheet”), as the case may be, in the
respective
forms first furnished to the Underwriters by the Company in reliance upon Rule
434 of the 1933 Act Regulations, and all references to the date of the
Prospectus shall mean the date of the Term Sheet. A “preliminary prospectus”
shall be deemed to refer to (i) any prospectus used before the Registration
Statement became effective and (ii) any prospectus that omitted, as applicable,
the Rule 430A Information, the Rule 434 Information or other information to
be
included upon pricing in a form of prospectus filed with the Commission pursuant
to Rule 424(b) of the 1933 Act Regulations and was used after such effectiveness
and prior to the initial delivery of the Prospectus to the Underwriters by
the
Company. For purposes of this Underwriting Agreement, all references to the
Registration Statement, Prospectus, Term Sheet or preliminary prospectus or
to
any amendment or supplement to any of the foregoing shall be deemed to include
any copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system (“EDGAR”).
All
references in this Underwriting Agreement to financial statements and schedules
and other information which is “contained,” “included,” “disclosed” or “stated”
(or other references of like import) in the Registration Statement, Prospectus
or preliminary prospectus shall be deemed to include all such financial
statements and notes and schedules thereto and other information which is
incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be, prior to the execution of the
applicable Terms Agreement; and all references in this Underwriting Agreement
to
amendments or supplements to the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to include the information which is
incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be, at or after the execution of the
applicable Terms Agreement.
SECTION
1.
Representations
and Warranties
.
(a)
Representations
and Warranties by the Company and the Guarantors
.
Each of
the Company and the Guarantors, jointly and severally, represents and warrants
to the Representative, as of the date hereof, and to each Underwriter named
in
the applicable Terms Agreement, as of the date thereof, as of the Closing Time
(as defined below) and, if applicable, as of each Date of Delivery (as defined
below) (in each case, a “Representation Date”), as follows:
(1)
Compliance
with Registration Requirements
.
Each of
the Company and the Guarantors meets the requirements for use of Form S-3
under the 1933 Act. The Registration Statement (including any Rule 462(b)
Registration Statement) has become effective under the 1933 Act and no stop
order suspending the effectiveness of the Registration Statement (or such Rule
462(b) Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company and the Guarantors, are contemplated by the Commission,
and any request on the part of the Commission for additional information has
been complied with. In addition, the Indenture has been duly qualified under
the
1939 Act.
At
the
respective times the Registration Statement (including any Rule 462(b)
Registration Statement) and any post-effective amendments thereto (including
the
filing
of
the
Company’s most recent Annual Report on Form 10-K with the Commission (the
“Annual Report on Form 10-K”)) became effective and at each Representation Date,
the Registration Statement (including any Rule 462(b) Registration Statement)
and any amendments thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and the
1939
Act and the rules and regulations of the Commission under the 1939 Act (the
“1939 Act Regulations”) and did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. At the date of
the
Prospectus, at the Closing Time and at each Date of Delivery, if any, neither
the Prospectus nor any amendment or supplement thereto included or will include
an untrue statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading. If the Company
elects to rely upon Rule 434 of the 1933 Act Regulations, the Company will
comply with the requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to the
Statement of Eligibility of the Trustee on Form T-1 or statements in or
omissions from the Registration Statement or the Prospectus made in reliance
upon and in conformity with information furnished to the Company or a Guarantor
in writing by any Underwriter through the Representative expressly for use
in
the Registration Statement or the Prospectus.
Each
preliminary prospectus and prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the 1933 Act, complied when so filed in all material
respects with the 1933 Act Regulations and each preliminary prospectus and
the
Prospectus delivered to the Underwriters for use in connection with the offering
of Underwritten Securities will, at the time of such delivery, be identical
to
any electronically transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(2)
Incorporated
Documents
.
The
documents incorporated or deemed to be incorporated by reference in the
Registration Statement and the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all material respects
with the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the “1934 Act Regulations”) and, when read together with
the other information in the Prospectus, at the date of the Prospectus, at
the
Closing Time and at each Date of Delivery, if any, did not and will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(3)
Independent
Accountants
.
The
accountants that audited the Company’s financial statements and supporting
schedules thereto included in the Registration Statement and the Prospectus,
as
specified therein, are an independent registered public accounting firm within
the meaning of the 1933 Act and the 1933 Act Regulations.
(4)
Financial
Statements
.
The
consolidated financial statements included in the Registration Statement and
the
Prospectus, together with the related schedules and
notes,
present fairly the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statement of operations,
stockholders’ equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified. Such financial statements have been
prepared in conformity with generally accepted accounting principles (“GAAP”)
applied on a consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement and the Prospectus
present fairly in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial information,
if
any, included in the Prospectus present fairly the information shown therein
and
have been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement and the Prospectus. The
Company is not required to include any pro forma financial statements in the
Registration Statement or the Prospectus under the 1933 Act or the 1933 Act
Regulations or any document required to be filed with the Commission under
the
1934 Act or the 1934 Act Regulations. The financial statement presentation
of
the Company and the Guarantors in the Prospectus satisfies the conditions of
Rule 3-10(f) of Regulation S-X promulgated under the 1933 Act.
(5)
No
Material Adverse Change in Business
.
Since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A) there
has
been no material adverse change in the condition, financial or otherwise, or
in
the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a “Material Adverse Effect”), (B) there have been
no transactions entered into by the Company or any of its subsidiaries, other
than those arising in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one enterprise and
(C)
there has been no dividend or distribution of any kind declared, paid or made
by
the Company on any class of its capital stock.
(6)
Good
Standing of the Company
.
The
Company has been duly incorporated and is validly existing as a corporation
under the laws of the State of Indiana and has power and authority (corporate
and other) to own, lease and operate its properties and to conduct its business
as described in the Prospectus and to enter into and perform its obligations
under, or as contemplated under, this Underwriting Agreement, the applicable
Terms Agreement, the Indenture and the Underwritten Securities. The Company
is
duly qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing could
not reasonably be expected to result in a Material Adverse Effect.
(7)
Good
Standing of Guarantors
.
Each
Guarantor has been duly organized, is validly existing and is in good standing
under the laws of the jurisdiction of its incorporation or organization (to
the
extent applicable), has power and authority (corporate and other) to own, lease
and operate its properties, to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, this Underwriting Agreement, the applicable Terms Agreement
and
its
Guarantee and is duly qualified as a foreign corporation or limited liability
company, as applicable, to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing could not reasonably be expected
to
result in a Material Adverse Effect. All of the issued and outstanding capital
stock or other equity interests of each Guarantor have been duly authorized
and
are validly issued, are fully paid and non-assessable and are owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity. None of the
outstanding shares of capital stock or other equity interests of any Guarantor
were issued in violation of preemptive or other similar rights of any
securityholder of such Guarantor. The only subsidiaries of the Company are
(a)
the Guarantors and (b) certain other subsidiaries which, individually or in
the
aggregate, are “minor” within the meaning of Rule 3-10 of Regulation S-X
promulgated under the 1933 Act.
(8)
Capitalization
.
If the
Prospectus contains a “Capitalization” section, the authorized, issued and
outstanding shares of capital stock of the Company are as set forth in the
column entitled “Actual” under such section (except for subsequent issuances
thereof, if any, contemplated under this Underwriting Agreement). All of the
issued and outstanding shares of capital stock of the Company have been duly
authorized and validly issued by the Company and are fully paid and
non-assessable, and none of such shares of capital stock were issued in
violation of preemptive or other similar rights of any securityholder of the
Company.
(9)
Authorization
of this Underwriting Agreement and Terms Agreement
.
This
Underwriting Agreement has been, and the applicable Terms Agreement as of the
date thereof will have been, duly authorized, executed and delivered by each
of
the Company and the Guarantors.
(10)
Authorization
of the Underwritten Securities
.
The
Underwritten Securities have been, or as of the date of the applicable Terms
Agreement will have been, duly authorized by the Company for issuance and sale
pursuant to this Underwriting Agreement and such Terms Agreement. Such
Underwritten Securities, when issued and authenticated in the manner provided
for in the Indenture and delivered against payment of the consideration therefor
specified in such Terms Agreement, will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of
creditors’ rights generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at law), and
except further as enforcement thereof may be limited by requirements that a
claim with respect to any Underwritten Securities payable in a foreign currency
(or a foreign currency judgment in respect of such claim) be converted into
U.S.
dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law or by governmental authority to limit, delay or prohibit the
making of payments outside the United States. Such Underwritten Securities
will
be in
the
form
contemplated by, and each registered holder thereof is entitled to the benefits
of, the Indenture and the Guarantees.
(11)
Authorization
of Guarantees
.
The
Guarantees have been, or as of the date of the applicable Terms Agreement will
have been, duly authorized by the respective Guarantors; the Guarantees, when
the Underwritten Securities are issued and authenticated in the manner provided
for in the Indenture and delivered against payment of the consideration therefor
specified in such Terms Agreement, will constitute valid and binding obligations
of the respective Guarantors, enforceable against the related Guarantor in
accordance with their terms, except as the enforcement thereof may be limited
by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors’ rights generally or by general equitable
principles (regardless of whether enforcement is considered in a proceeding
in
equity or at law), and except further as enforcement thereof may be limited
by
requirements that a claim with respect to any Guarantee payable in a foreign
currency (or a foreign currency judgment in respect of such claim) be converted
into U.S. dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or by governmental authority to limit, delay or prohibit
the
making of payments outside the United States.
(12)
Authorization
of the Indenture
.
The
Indenture has been duly authorized, executed and delivered by the Company and
each Guarantor and constitutes a valid and binding agreement of the Company
and
each Guarantor, enforceable against the Company and each Guarantor in accordance
with its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at
law), and except further as enforcement thereof may be limited by requirements
that a claim with respect to any Debt Securities payable in a foreign currency
(or a foreign currency judgment in respect of such claim) be converted into
U.S.
dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law or by governmental authority to limit, delay or prohibit the
making of payments outside the United States. The Indenture has been duly
qualified under the 1939 Act.
(13)
Description
of the Underwritten Securities and Guarantees
.
The
Underwritten Securities and the Guarantees, when issued and delivered in
accordance with their terms, will conform in all material respects to the
statements relating thereto contained in the Prospectus and will be in
substantially the form filed or incorporated by reference, as the case may
be,
as an exhibit to the Registration Statement.
(14)
Description
of the Indenture
.
The
Indenture, as of the Representation Date, will conform in all material respects
to the statements relating thereto contained in the Prospectus and will be
in
substantially the form filed or incorporated by reference, as the case may
be,
as an exhibit to the Registration Statement.
(15)
Absence
of Defaults and Conflicts
.
Neither
the Company nor any of its subsidiaries is in violation of its charter or
by-laws (or other organizational documents) or in default in the performance
or
observance of any obligation, agreement, covenant or condition contained in
any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or
to which any of the assets, properties or operations of the Company or any
of its subsidiaries is subject (collectively, “Agreements and Instruments”),
except for such violations or defaults that could not reasonably be expected
to
result in a Material Adverse Effect. The execution, delivery and performance
of
this Underwriting Agreement, the applicable Terms Agreement and the Indenture
and any other agreement or instrument entered into or issued or to be entered
into or issued by the Company and each Guarantor in connection with the
transactions contemplated hereby or thereby or in the Registration Statement
and
the Prospectus and the consummation of the transactions contemplated herein
and
in the Registration Statement and the Prospectus (including the issuance and
sale of the Underwritten Securities and the use of the proceeds from the sale
of
the Underwritten Securities as described under the caption “Use of Proceeds” in
the Prospectus relating to such Underwritten Securities) and compliance by
the
Company and each Guarantor with their respective obligations hereunder and
thereunder have been duly authorized by all necessary corporate action and
do
not and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition of
any
lien, charge or encumbrance upon any assets, properties or operations of the
Company or any of its subsidiaries pursuant to, any Agreements and Instruments,
nor will such action result in any violation of the provisions of the charter
or
by-laws (or other organizational documents) of the Company or any of its
subsidiaries or any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court, domestic
or foreign, having jurisdiction over the Company or any of its subsidiaries
or
any of their respective assets, properties or operations. As used herein, a
“Repayment Event” means any event or condition which gives the holder of any
note, debenture or other evidence of indebtedness (or any person acting on
such
holder’s behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any of its
subsidiaries.
(16)
Absence
of Labor Dispute
.
No
labor dispute with the employees of the Company or any of its subsidiaries
exists or, to the knowledge of the Company, is imminent, and the Company is
not
aware of any existing or imminent labor disturbance by the employees of any
of
its or any of its subsidiaries’ principal suppliers, manufacturers, customers or
contractors, which, in either case, could reasonably be expected to result
in a
Material Adverse Effect.
(17)
Absence
of Proceedings
.
Except
as otherwise disclosed in the Registration Statement or the Prospectus, there
is
no action, suit, proceeding, inquiry or investigation before or brought by
any
court or governmental agency or body, domestic or foreign, now pending, or
to
the knowledge of the Company threatened, against or affecting the Company or
any
of its subsidiaries which (A) is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein), (B) could
reasonably
be expected to result in a Material Adverse Effect, or (C) could reasonably
be
expected to materially and adversely affect the consummation of the transactions
contemplated under the Prospectus, this Underwriting Agreement, the applicable
Terms Agreement or the Indenture or the performance by the Company and the
Guarantors of their respective obligations hereunder and thereunder. The
aggregate of all pending legal or governmental proceedings to which the Company
or any of its subsidiaries is a party or of which any of their respective
assets, properties or operations is the subject which are not described in
the
Registration Statement and the Prospectus, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result in a
Material Adverse Effect.
(18)
Accuracy
of Exhibits
.
There
are no franchises, contracts or other documents which are required to be
described in the Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto which
have
not been so described and filed as required.
(19)
Absence
of Further Requirements
.
No
filing with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency,
domestic or foreign, is necessary or required for the due authorization,
execution and delivery by the Company or the Guarantors of this Underwriting
Agreement, the applicable Terms Agreement, the Indenture, the Underwritten
Securities or the Guarantees or for the performance by the Company or the
Guarantors of their obligations under this Underwriting Agreement, such Terms
Agreement, the Indenture, the Underwritten Securities or the Guarantees, except
such as have been already made, obtained or rendered, as applicable or as may
be
required under state securities or blue sky laws.
(20)
Possession
of Intellectual Property
.
The
Company and its subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary
or
confidential information, systems or procedures), trademarks, service marks,
trade names or other intellectual property (collectively, “Intellectual
Property”) necessary to carry on the business now operated by them, except where
the failure to own, possess or acquire, singly or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. Neither the
Company nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision, ruling
or
finding) or invalidity or inadequacy, singly or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
(21)
Possession
of Licenses and Permits
.
Except
as otherwise disclosed in the Registration Statement or the Prospectus, (i)
the
Company and its subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, “Governmental Licenses”) issued by the
appropriate regulatory agencies or bodies,
domestic
or foreign, necessary to conduct the business now operated by them, except
where
the non-possession of any such Governmental Licenses could not reasonably be
expected to result in a Material Adverse Effect, (ii) the Company and its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply could not, singly
or in the aggregate, reasonably be expected to result in a Material Adverse
Effect, (iii) all of the Governmental Licenses are valid and in full force
and
effect, except where the invalidity of such Governmental Licenses or the failure
of such Governmental Licenses to be in full force and effect could not
reasonably be expected to result in a Material Adverse Effect and (iv) neither
the Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, could reasonably be expected to result in a Material Adverse
Effect.
(22)
Title
to Property
.
The
Company and its subsidiaries have good and marketable title to all material
real
property owned by the Company and its subsidiaries and good title to all other
material properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind, except (A) as otherwise stated in the Registration
Statement and the Prospectus or (B) those which do not, singly or in the
aggregate, materially affect the value of such property and do not interfere
with the use made or proposed to be made of such property by the Company or
any
of its subsidiaries. All of the leases and subleases material to the business
of
the Company and its subsidiaries considered as one enterprise, and under which
the Company or any of its subsidiaries holds properties described in the
Prospectus, are in full force and effect, and neither the Company nor any of
its
subsidiaries has received any notice of any material claim of any sort that
has
been asserted by anyone adverse to the rights of the Company or any of its
subsidiaries under any of the leases or subleases mentioned above, or affecting
or questioning the rights of the Company or such subsidiary to the continued
possession of the leased or subleased premises under any such lease or
sublease.
(23)
Investment
Company Act
.
Neither
the Company nor any Guarantor is, or upon the issuance and sale of the
Underwritten Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will be, an “investment
company” within the meaning of the Investment Company Act of 1940, as amended
(the “1940 Act”).
(24)
Public
Utility Holding Company Act of 1935
.
The
Company is a “holding company” (within the meaning of the Public Utility Holding
Company Act of 1935, as amended (the “PUHC Act”)) which is exempt under the PUHC
Act and the rules and regulations promulgated thereunder from being required
to
seek approval to enter into or perform its obligations under this Underwriting
Agreement, the applicable Terms Agreement, the Indenture and the Underwritten
Securities.
(25)
Environmental
Laws
.
Except
as otherwise disclosed in the Registration Statement and the Prospectus and
except as could not, singly or in the aggregate, reasonably be expected to
result in a Material Adverse Effect, (A) neither the Company
nor
any
of its subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common law
or
any judicial or administrative interpretation thereof, including any judicial
or
administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata)
or
wildlife, including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products
(collectively, “Hazardous Materials”) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, “Environmental Laws”), (B) the Company and
its subsidiaries possess all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or, to the Company’s knowledge,
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries and (D) to the Company’s knowledge, there are
no events or circumstances that might reasonably be expected to form the basis
of an order for clean-up or remediation, or an action, suit or proceeding by
any
private party or governmental body or agency, against or affecting the Company
or any of its subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(26)
Maintenance
of Controls and Procedures
.
The
Company has established and maintains “disclosure controls and procedures” (as
such term is defined in Rules 13a-15 and 15d-15 under the 1934 Act) that (A)
are
designed to ensure that material information relating to the Company, including
its consolidated subsidiaries, is made known to the Company’s Chief Executive
Officer and its Chief Financial Officer by others within those entities,
particularly during the periods in which the filings made by the Company with
the Commission which it may make under Section 13(a), 13(c), 14 or 15(d) of
the
1934 Act are being prepared, (B) have been evaluated for effectiveness as of
a
date within 90 days prior to the filing of the Company’s most recent annual
report filed with the Commission and (C) are effective to perform the functions
for which they were established. The Company’s accountants and the audit
committee of the board of directors of the Company have been advised of (x)
any
significant deficiencies in the design or operation of internal controls which
could adversely affect the Company’s ability to record, process, summarize, and
report financial data and (y) any fraud, whether or not material, that involves
management or other employees who have a role in the Company’s internal
controls. Any material weaknesses in internal controls have been identified
for
the Company’s accountants. Since the date of the most recent evaluation of such
disclosure controls and procedures, there have been no significant changes
in
internal controls or in other factors that could significantly affect internal
controls, including any corrective actions with regard to significant
deficiencies and material weaknesses.
(27)
Other
Controls
.
The
Company and its consolidated subsidiaries maintain a system of internal
accounting and other controls sufficient to provide reasonable assurances that
(A) transactions are executed in accordance with management’s general
or
specific authorizations, (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets, (C)
acquisition, disposition or other use of assets is permitted only in accordance
with management’s general or specific authorization, (D) the recorded accounting
for assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences, and (E) the
principal executive officer and principal financial officer of the Company
have
made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley
Act of 2002 (the “Sarbanes-Oxley Act”) and any related rules and regulations
promulgated by the Commission.
(28)
No
Fiduciary Duty
.
The
Company acknowledges and agrees that the Underwriters are acting solely in
the
capacity of an arm’s length contractual counterparty to the Company with respect
to the offering of the Underwritten Securities contemplated hereby (including
in
connection with determining the terms of the offering) and not as a financial
advisor or a fiduciary to, or an agent of, the Company or any other person.
Additionally, neither the Representative nor any other Underwriter is advising
the Company or any other person as to any legal, tax, investment, accounting
or
regulatory matters in any jurisdiction with respect to the offering of the
Underwritten Securities contemplated hereby (including in connection with
determining the terms of the offering). The Company shall consult with its
own
advisors concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions contemplated hereby,
and the Underwriters shall have no obligation or liability to the Company with
respect thereto. Any review by the Underwriters of the Company, the transactions
contemplated hereby or other matters relating to such transactions will be
performed solely for the benefit of the Underwriters and shall not be on behalf
of the Company.
(b)
Officers’
Certificates
.
Any
certificate signed by any officer of the Company, any Guarantor or any of their
respective subsidiaries and delivered to any Underwriter or to counsel for
the
Underwriters in connection with the offering of the Underwritten Securities
shall be deemed a representation and warranty by the Company or such Guarantor
to each Underwriter as to the matters covered thereby on the date of such
certificate.
SECTION
2.
Sale
and Delivery to Underwriters; Closing
.
(a)
Underwritten
Securities
.
The
several commitments of the Underwriters to purchase the Underwritten Securities
pursuant to the applicable Terms Agreement shall be deemed to have been made
on
the basis of the representations, warranties and agreements herein contained
and
shall be subject to the terms and conditions herein set forth.
(b)
Option
Underwritten Securities
.
Subject
to the terms and conditions herein set forth, the Company may grant, if so
provided in the applicable Terms Agreement, an option to the Underwriters,
severally and not jointly, to purchase up to the aggregate principal amount
of
the Option Underwritten Securities set forth therein at a price equal to the
percentage of the aggregate principal amount of the Initial Underwritten
Securities representing the purchase price, plus accrued interest or amortized
original issue discount, as the case may be, from the original
issue
date of the Initial Underwritten Securities. Such option, if granted, will
expire 30 days after the date of such Terms Agreement, and may be exercised
in
whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Underwritten Securities upon notice by the
Representative to the Company setting forth the number or aggregate principal
amount, as the case may be, of Option Underwritten Securities as to which the
several Underwriters are then exercising the option and the time, date and
place
of payment and delivery for such Option Underwritten Securities. Any such time
and date of payment and delivery (each, a “Date of Delivery”) shall be
determined by the Representative, but shall not be later than seven full
business days after the exercise of said option, nor in any event prior to
the
Closing Time, unless otherwise agreed upon by the Representative and the
Company. If the option is exercised as to all or any portion of the Option
Underwritten Securities, each of the Underwriters, severally and not jointly,
will purchase that proportion of the total aggregate principal amount of Option
Underwritten Securities then being purchased which the number or aggregate
principal amount, as the case may be, of Initial Underwritten Securities each
such Underwriter has severally agreed to purchase as set forth in such Terms
Agreement bears to the total aggregate principal amount of Initial Underwritten
Securities, subject to such adjustments as the Representative in its discretion
shall make to eliminate any sales or purchases of Option Underwritten Securities
in an amount other than whole dollars.
(c)
Payment
.
Payment
of the purchase price for, and delivery of, the Initial Underwritten Securities
shall be made at the offices of Sidley Austin Brown & Wood
LLP
,
787
Seventh Avenue, New York, New York 10019, or at such other place as shall be
agreed upon by the Representative and the Company, at 9:00 A.M. (Eastern
time) on the third business day after the date of the applicable Terms Agreement
(unless postponed in accordance with the provisions of Section 10 hereof),
or such other time not later than ten business days after such date as shall
be
agreed upon by the Representative and the Company (such time and date of payment
and delivery being herein called the “Closing Time”). In addition, in the event
that the Underwriters have exercised their option, if any, to purchase any
or
all of the Option Underwritten Securities, payment of the purchase price for,
and delivery of such Option Underwritten Securities, shall be made at the
above-mentioned offices of Sidley Austin Brown & Wood
LLP
,
or at
such other place as shall be agreed upon by the Representative and the Company,
on the relevant Date of Delivery as specified in the notice from the
Representative to the Company.
Payment
shall be made to the Company by wire transfer of immediately available funds
to
a bank account designated by the Company, against delivery to the Representative
for the respective accounts of the Underwriters of the Underwritten Securities
to be purchased by them. It is understood that each Underwriter has authorized
the Representative, for its account, to accept delivery of, receipt for, and
make payment of the purchase price for, the Underwritten Securities which it
has
severally agreed to purchase. The Representative may for itself and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Underwritten Securities to be purchased
by
any Underwriter whose funds have not been received by the Closing Time or the
relevant Date of Delivery, as the case may be, but such payment shall not
relieve such Underwriter from its obligations hereunder.
(d)
Denominations;
Registration
.
The
Underwritten Securities or certificates for the Underwritten Securities, as
applicable, shall be in such denominations and registered in such
names
as
the Representative may request in writing at least two full business days prior
to the Closing Time or the relevant Date of Delivery, as the case may be. The
Underwritten Securities or certificates for the Underwritten Securities, as
applicable, will be made available for examination and packaging by the
Representative in The City of New York, or at such other place as shall be
agreed upon by the Representative and the Company, not later than
10:00 A.M. (Eastern time) on the business day prior to the Closing Time or
the relevant Date of Delivery, as the case may be.
SECTION
3.
Covenants
of the Company and the Guarantors
.
Each of
the Company and the Guarantors covenants with the Representative and with each
Underwriter named in the applicable Terms Agreement, as follows:
(a)
Compliance
with Securities Regulations and Commission Requests
.
The
Company, subject to Section 3(b), will comply with the requirements of Rule
430A
of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if
and
as applicable, and will notify the Representative(s) promptly, and confirm
the
notice in writing, of (i) the effectiveness of any post-effective amendment
to the Registration Statement or the filing of any supplement or amendment
to
the Prospectus, (ii) the receipt of any comments from the Commission,
(iii) any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, and (iv) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Underwritten Securities for offering
or
sale in any jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424 and will take such steps as it deems necessary to ascertain
promptly whether any Prospectus transmitted for filing under Rule 424 was
received for filing by the Commission and, in the event that it was not, it
will
promptly file the Prospectus. The Company and the Guarantors will use their
best
efforts to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof as soon as practicable.
(b)
Filing
of Amendments
.
The
Company will give the Representative notice of its intention to file or prepare
any amendment to the Registration Statement (including any filing under Rule
462(b) of the 1933 Act Regulations) or any amendment, supplement or revision
to
either the prospectus included in the Registration Statement at the time it
became effective or to the Prospectus, whether pursuant to the 1933 Act, the
1934 Act or otherwise, will furnish the Representative with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as
the case may be, and will not file or use any such document to which the
Representative or counsel for the Underwriters shall reasonably
object.
(c)
Delivery
of Registration Statements
.
The
Company has furnished or will deliver to the Representative and counsel for
the
Underwriters, without charge, signed or conformed copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents incorporated
or deemed to be incorporated by reference therein) and signed or conformed
copies of all consents and certificates of experts, and will also deliver to
the
Representative, without charge, a conformed copy of the Registration Statement
as originally filed and of each amendment thereto
(without
exhibits) for each of the Underwriters. Copies of the Registration Statement
and
each amendment thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant
to
EDGAR, except to the extent permitted by Regulation S-T.
(d)
Delivery
of Prospectuses
.
The
Company will deliver to each Underwriter, without charge, as many copies of
each
preliminary prospectus as such Underwriter may reasonably request, and the
Company hereby consents to the use of such copies for purposes permitted by
the
1933 Act. The Company will furnish to each Underwriter, without charge, during
the period when the Prospectus is required under the 1933 Act or the 1934 Act
to
be delivered to investors in connection with sales of the Securities, such
number of copies of the Prospectus as such Underwriter may reasonably request.
The Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted
by
Regulation S-T.
(e)
Continued
Compliance with Securities Laws
.
Each of
the Company and the Guarantors will comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Underwritten Securities as contemplated
in
this Underwriting Agreement and the applicable Terms Agreement and in the
Registration Statement and the Prospectus. If at any time when the Prospectus
is
required under the 1933 Act or the 1934 Act to be delivered to investors in
connection with sales of the Securities any event shall occur or condition
shall
exist as a result of which it is necessary, in the reasonable opinion of counsel
for the Underwriters or for the Company and the Guarantors, to amend the
Registration Statement in order that the Registration Statement will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or to amend or supplement the Prospectus in order that the Prospectus will
not
include an untrue statement of a material fact or omit to state a material
fact
necessary in order to make the statements therein not misleading in the light
of
the circumstances existing at the time it is delivered to a purchaser, or if
it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company and the Guarantors will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or
the
Prospectus comply with such requirements, and the Company and the Guarantors
will furnish to the Underwriters, without charge, such number of copies of
such
amendment or supplement as the Underwriters may reasonably request.
(f)
Blue
Sky Qualifications
.
Each of
the Company and the Guarantors will use its best efforts, in cooperation with
the Underwriters, to qualify the Underwritten Securities for offering and sale
under the applicable securities laws of such states and other jurisdictions
(domestic or foreign) as the Representative may designate and to maintain such
qualifications in effect as long as may be necessary to complete the
distribution of the Underwritten Securities;
provided
,
however
,
that
neither the Company nor any Guarantor shall be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as
a
dealer in securities in any jurisdiction in which it is not so qualified or
to
subject itself to taxation in
respect
of doing business in any jurisdiction in which it is not otherwise so subject.
In each jurisdiction in which the Underwritten Securities have been so
qualified, each of the Company and the Guarantors will file such statements
and
reports as may be required by the laws of such jurisdiction.
(g)
Earnings
Statement
.
The
Company will timely file such reports pursuant to the 1934 Act as are necessary
in order to make generally available to its securityholders as soon as
practicable an earnings statement for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a) of the 1933
Act.
(h)
Use
of Proceeds
.
The
Company will use the net proceeds received by it from the sale of the
Underwritten Securities in the manner specified in the Prospectus under “Use of
Proceeds.”
(i)
Listing
.
The
Company will use commercially reasonable efforts to effect the listing of the
Underwritten Securities, prior to the Closing Time, on any national securities
exchange or quotation system if and as specified in the applicable Terms
Agreement.
(j)
Restriction
on Sale of Securities
.
Between
the date of the applicable Terms Agreement and the Closing Time or such other
date specified in such Terms Agreement, the Company will not, without the prior
written consent of the Representative, directly or indirectly, issue, sell,
offer or contract to sell, grant any option for the sale of, or otherwise
dispose of, any debt securities with a maturity in excess of nine months other
than borrowings under the Company’s revolving credit facility.
(k)
Reporting
Requirements
.
The
Company and the Guarantors, during the period when the Prospectus is required
to
be delivered under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to the 1934 Act within the
time periods required by the 1934 Act and the 1934 Act Regulations.
(l)
Additional
Guarantors
.
In the
event that a subsidiary of the Company becomes a Guarantor under the Indenture
after the date of this Underwriting Agreement, the Company will cause such
subsidiary to execute each subsequent Terms Agreement acknowledging the
representations, warranties and agreements of such subsidiary as Guarantor
under
this Underwriting Agreement.
SECTION
4.
Payment
of Expenses
.
(a)
Expenses
.
The
Company and the Guarantors will pay all expenses incident to the performance
of
their obligations under this Underwriting Agreement or the applicable Terms
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation,
printing and delivery to the Underwriters of this Underwriting Agreement, any
Terms Agreement, any Agreement among Underwriters, the Indenture and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Underwritten Securities, (iii) the preparation,
issuance and delivery of the Underwritten Securities, any certificates for
the
Underwritten Securities, as applicable, to the Underwriters, including any
transfer taxes and any stamp or other duties payable upon the sale,
issuance
or delivery of the Underwritten Securities to the Underwriters, (iv) the fees
and disbursements of the Company’s counsel, accountants and other advisors or
agents (including transfer agents and registrars), as well as the fees and
disbursements of the Trustee and its counsel, (v) the qualification of the
Underwritten Securities under state securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable
fees
and disbursements of counsel for the Underwriters in connection therewith and
in
connection with the preparation, printing and delivery of the Blue Sky and
Legal
Investment Surveys, and any amendment thereto, (vi) the printing and delivery
to
the Underwriters of copies of each preliminary prospectus, any Term Sheet,
and
the Prospectus and any amendments or supplements thereto, (vii) the fees charged
by nationally recognized statistical rating organizations for the rating of
the
Underwritten Securities, (viii) the fees and expenses incurred with respect
to
the listing of the Underwritten Securities, if applicable, (ix) the filing
fees incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review, if any, by the National Association
of Securities Dealers, Inc. (the “NASD”) of the terms of the sale of the
Underwritten Securities, and (x) the fees and expenses of any Underwriter acting
in the capacity of a “qualified independent underwriter” (as defined in Rule
2720 of the Conduct Rules of the NASD), if applicable. It is understood,
however, that except as provided in this Section 4, and in
Sections 5(n), 6 or 7 hereof, the Underwriters will be responsible for all
of their own costs and expenses, including the fees of their counsel, any
transfer taxes on the Underwritten Securities upon resale by them and all other
expenses incurred by them in connection with any offering of the Underwritten
Securities made by the Underwriters.
(b)
Termination
of Agreement
.
If the
applicable Terms Agreement is terminated by the Representative in accordance
with the provisions of Section 5 or Section 9(b)(i) hereof, the Company shall
reimburse the Underwriters for all of their out-of-pocket expenses reasonably
incurred by the Underwriters in connection with preparations for the purchase,
sale and delivery of the Underwritten Securities pursuant to the applicable
Terms Agreement, including the reasonable fees and disbursements of counsel
for
the Underwriters.
SECTION
5.
Conditions
of Underwriters’ Obligations
.
The
obligations of the Underwriters to purchase and pay for the Underwritten
Securities pursuant to the applicable Terms Agreement are subject to the
accuracy of the representations and warranties of the Company and the Guarantors
contained in Section 1 hereof and in certificates of any officer of the Company,
any of the Guarantors or any of their respective subsidiaries delivered pursuant
to the provisions hereof, to the performance by the Company and the Guarantors
of its covenants and other obligations hereunder, and to the following further
conditions:
(a)
Effectiveness
of Registration Statement
.
The
Registration Statement, including any Rule 462(b) Registration Statement, has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been instituted or
be
pending or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus containing
information relating to the description of the Underwritten Securities, the
specific method of distribution and similar matters shall have been filed with
the Commission in accordance with Rule 424(b)(1), (2), (3), (4) or (5), as
applicable
(or
any
required post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of Rule 430A),
or, if the Company has elected to rely upon Rule 434 of the 1933 Act
Regulations, a Term Sheet including the Rule 434 Information shall have been
filed with the Commission in accordance with Rule 424(b)(7).
(b)
Opinion
of General Counsel of the Company
.
At the
Closing Time, the Underwriters shall have received the favorable opinion, dated
as of the Closing Time, of, Robert E. Heidorn, General Counsel of the
Company, in form and substance satisfactory to the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters,
substantially to the effect set forth in
Exhibit
B
hereto
and to such further effect as counsel to the Underwriters may reasonably
request.
(c)
Opinion
of Counsel for Company and the Guarantors
.
At the
Closing Time, the Underwriters shall have received the favorable opinion, dated
as of the Closing Time, of Barnes & Thornburg LLP, counsel for the Company
and the Guarantors, in form and substance satisfactory to the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters, substantially to the effect set forth in
Exhibit
C
hereto
and to such further effect as counsel to the Underwriters may reasonably request
(including opinions of local counsel with respect to Vectren Energy Delivery
of
Ohio, Inc. and Indiana Gas Company, Inc., Baker & Botts LLP, federal
regulatory counsel with respect to the exemption of the Company and VUHI from
the 1935 Act and McNees Wallace & Nurick LLC with respect to Ohio regulatory
matters).
(d)
Opinion
of Counsel for Underwriters
.
At the
Closing Time, the Underwriters shall have received an opinion, dated as of
the
Closing Time, of Sidley Austin Brown & Wood LLP, counsel for the
Underwriters, together with signed or reproduced copies of such letter for
each
of the other Underwriters, in form and substance satisfactory to the
Underwriters.
(e)
Officers’
Certificate
.
At the
Closing Time, there shall not have been, since the date of the applicable Terms
Agreement or since the respective dates as of which information is given in
the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Underwriters shall have
received a certificate of the Chief Executive Officer, President or Executive
Vice President of the Company and of each Guarantor and of the Chief Financial
Officer, Chief Accounting Officer or Treasurer of the Company and of each
Guarantor, dated as of the Closing Time, to the effect that (i) there has been
no such material adverse change, (ii) the representations and warranties in
Section 1(a) are true and correct with the same force and effect as though
expressly made at and as of the Closing Time, (iii) the Company or such
Guarantor, as the case may be, has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the
Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have
been instituted, are pending or, to the best of such officer’s knowledge, are
threatened by the Commission.
(f)
Accountant’s
Comfort Letter
.
At the
time of the execution of the applicable Terms Agreement, the Underwriters shall
have received from Deloitte & Touche LLP a letter
dated
such date, in form and substance satisfactory to the Underwriters, together
with
signed or reproduced copies of such letter for each of the other Underwriters,
containing statements and information of the type ordinarily included in
accountants’ “comfort letters” to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
(g)
Bring-down
Comfort Letter
.
At the
Closing Time, the Underwriters shall have received from Deloitte & Touche
LLP a letter, dated as of the Closing Time, to the effect that they reaffirm
the
statements made in the letter furnished pursuant to subsection (f) of this
Section 5, except that the specified date referred to shall be a date not more
than three business days prior to the Closing Time.
(h)
Ratings
.
At the
Closing Time and at any relevant Date of Delivery, the Underwritten Securities
shall have the ratings accorded by any “nationally recognized statistical rating
organization”, as defined by the Commission for purposes of Rule 436(g)(2) of
the 1933 Act Regulations, if and as specified in the applicable Terms Agreement,
and the Company shall have delivered to the Underwriters a letter, dated as
of
such date, from each such rating organization, or other evidence satisfactory
to
the Underwriters, confirming that the Underwritten Securities have such ratings.
Since the time of execution of such Terms Agreement, there shall not have
occurred a downgrading in, or withdrawal of, the rating assigned to the
Underwritten Securities or any of the Company’s other securities by any
nationally recognized statistical rating organization, and no such rating
organization shall have publicly announced that it has under surveillance or
review its rating of the Underwritten Securities or any of the Company’s other
securities.
(i)
Approval
of Listing
.
At the
Closing Time, the Underwritten Securities shall have been approved for listing,
subject only to official notice of issuance, if and as specified in the
applicable Terms Agreement.
(j)
No
Objection
.
If the
Registration Statement or an offering of Underwritten Securities has been filed
with the NASD for review, the NASD shall not have raised any objection with
respect to the fairness and reasonableness of the underwriting terms and
arrangements.
(k)
Lock-up
Agreements
.
On the
date of the applicable Terms Agreement, the Underwriters shall have received,
in
form and substance satisfactory to it, each lock-up agreement, if any, specified
in such Terms Agreement as being required to be delivered by the persons listed
therein.
(l)
Over-Allotment
Option
.
In the
event that the Underwriters are granted an over-allotment option by the Company
in the applicable Terms Agreement and the Underwriters exercise their option
to
purchase all or any portion of the Option Underwritten Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any of its
subsidiaries hereunder shall be true and correct as of each Date of Delivery,
and, at the relevant Date of Delivery, the Underwriters shall have
received:
(1)
A
certificate, dated such Date of Delivery, of the Chief Executive Officer,
President or Executive Vice President of the Company and the Chief Financial
Officer or Chief Accounting Officer of the Company, confirming that the
certificate delivered at the Closing Time pursuant to Section 5(e) hereof
remains true and correct as of such Date of Delivery.
(2)
The
favorable opinions of Robert E. Heidorn, General Counsel of the Company and
Barnes & Thornburg LLP, counsel for the Company and the Guarantors, each in
form and substance satisfactory to the Underwriters, dated such Date of
Delivery, relating to the Option Underwritten Securities and otherwise to the
same effect as the opinions required by Sections 5(b) and 5(c)
hereof.
(3)
The
favorable opinion of Sidley Austin Brown & Wood LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option Underwritten
Securities and otherwise to the same effect as the opinion required by Section
5(d) hereof.
(4)
A
letter
from Deloitte & Touche LLP, in form and substance satisfactory to the
Underwriters and dated such Date of Delivery, substantially in the same form
and
substance as the letter furnished to the Underwriters pursuant to Section 5(f)
hereof, except that the “specified date” on the letter furnished pursuant to
this paragraph shall be a date not more than three business days prior to such
Date of Delivery.
(5)
Since
the
time of execution of such Terms Agreement, there shall not have occurred a
downgrading in, or withdrawal of, the rating assigned to the Underwritten
Securities or any of the Company’s other securities by any nationally recognized
statistical rating organization, and no such rating organization shall have
publicly announced that it has under surveillance or review its rating of the
Underwritten Securities or any of the Company’s other securities.
(m)
Additional
Documents
.
At the
Closing Time and at each Date of Delivery, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and sale
of
the Underwritten Securities as herein contemplated, or in order to evidence
the
accuracy of any of the representations or warranties, or the fulfillment of
any
of the conditions, herein contained; and all proceedings taken by the Company
or
the Guarantors in connection with the issuance and sale of the Underwritten
Securities as herein contemplated shall be satisfactory in form and substance
to
the Underwriters and counsel for the Underwriters.
(n)
Termination
of Terms Agreement
.
If any
condition specified in this Section 5 shall not have been fulfilled when and
as
required to be fulfilled, the applicable Terms Agreement or, with respect to
the
Underwriters’ exercise of any applicable over-allotment option for the purchase
of Option Underwritten Securities on a Date of Delivery after the Closing Time,
the obligations of the Underwriters to purchase the Option Underwritten
Securities on such Date of Delivery may be terminated by the Representative
by
notice to the Company at any time at or prior to the Closing Time or such Date
of Delivery, as applicable, and such termination shall be
without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
SECTION
6.
Indemnification
.
(a)
Indemnification
of Underwriters
.
Each of
the Company and the Guarantors, jointly and severally, agrees to indemnify
and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act as follows:
(1)
against
any and all losses, liabilities, claims, damages and expenses whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of
a
material fact contained in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434 Information
deemed to be a part thereof, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make
the statements therein not misleading or arising out of any untrue statement
or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in order
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading;
(2)
against
any and all losses, liabilities, claims, damages and expenses whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission;
provided that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(3)
against
any and all expenses whatsoever, as incurred (including the fees and
disbursements of outside counsel chosen by the Representative), reasonably
incurred in investigating, preparing or defending against any litigation, or
any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (1) or (2) above;
provided
,
however
,
that
this indemnity agreement shall not apply to any loss, liability, claim, damage
or expense to the extent arising out of any untrue statement or omission or
alleged untrue statement or omission, made in reliance upon and in conformity
with written information furnished to the Company or a Guarantor by any
Underwriter through the Representative expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto); and,
provided
,
further
,
that
this indemnity agreement, insofar as it relates to any preliminary prospectus,
shall not inure to the benefit of any Underwriter (or to the benefit of any
person who
controls
such Underwriter) on account of any loss, liability, claim, damage or expense
arising out of the sale of any of the Underwritten Securities by such
Underwriter to any person if it shall be established that a copy of the
Prospectus (excluding any documents incorporated by reference), as supplemented
or amended, if the Company shall have made any supplements or amendments which
have been furnished to the Representative, shall not have been sent or given
by
or on behalf of such Underwriter to such person at or prior to the written
confirmation of the sale of Underwritten Securities to such person in any case
where such delivery is required by the 1933 Act and the Company satisfied its
obligations pursuant to Section 3(b) hereof, if the misstatement or
omission leading to such loss, claim, damage or liability was corrected in
the
Prospectus (excluding any documents incorporated by reference) as amended or
supplemented, such correction would have cured the defect giving rise to such
loss, liability, claim, damage, or expense and the Prospectus (excluding any
documents incorporated by reference) was delivered to such Underwriter a
reasonable amount of time in advance of such Underwriter’s delivery of the
written confirmation to such person.
(b)
Indemnification
of Company, Directors and Officers
.
Each
Underwriter severally agrees to indemnify and hold harmless the Company, each
Guarantor, their respective directors, each of their officers who signed the
Registration Statement, and each person, if any, who controls the Company or
any
Guarantor within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all losses, liabilities, claims, damages and
expenses described in the indemnity contained in Section 6(a), as incurred,
but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434 Information
deemed to be a part thereof, if applicable, or any preliminary prospectus or
the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representative expressly for use in the Registration Statement
(or
any amendment thereto) or such preliminary prospectus or the Prospectus (or
any
amendment or supplement thereto).
(c)
Actions
against Parties; Notification
.
Each
indemnified party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder
to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 6(a) above, counsel to the indemnified parties shall be selected
by
the Representative, and, in the case of parties indemnified pursuant to Section
6(b) above, counsel to the indemnified parties shall be selected by the Company.
An indemnifying party may participate at its own expense in the defense of
any
such action; provided, however, that counsel to the indemnifying party shall
not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for
fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental
agency
or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising
out
of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure
to
act by or on behalf of any indemnified party.
(d)
Settlement
without Consent if Failure to Reimburse
.
If at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(2) effected without its written consent
if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior
to
such settlement being entered into and (iii) such indemnifying party shall
not
have reimbursed such indemnified party in accordance with such request prior
to
the date of such settlement.
SECTION
7.
Contribution
.
If the
indemnification provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Guarantors, on the one hand,
and the Underwriters, on the other hand, from the offering of the Underwritten
Securities pursuant to the applicable Terms Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion
as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the Guarantors, on
the
one hand, and the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable
considerations.
The
relative benefits received by the Company and the Guarantors, on the one hand,
and the Underwriters, on the other hand, in connection with the offering of
the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses)
received by the Company and the Guarantors and the total underwriting discount
received by the Underwriters, in each case as set forth on the cover of the
Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet, bear to the aggregate initial public offering price of such Underwritten
Securities as set forth on such cover.
The
relative fault of the Company and the Guarantors, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company, the Guarantors or the Underwriters and
the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The
Company, the Guarantors and the Underwriters agree that it would not be just
and
equitable if contribution pursuant to this Section 7 were determined by pro
rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding
the provisions of this Section 7, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Underwritten Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission.
No
person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
For
purposes of this Section 7, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act
shall have the same rights to contribution as such Underwriter, and each
director of the Company or any Guarantor, each officer of the Company or any
Guarantor who signed the Registration Statement, and each person, if any, who
controls the Company or any Guarantor within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company.
The
Underwriters’ respective obligations to contribute pursuant to this Section 7
are several in proportion to the aggregate principal amount of Initial
Underwritten Securities set forth opposite their respective names in the
applicable Terms Agreement, and not joint.
SECTION
8.
Representations,
Warranties and Agreements to Survive Delivery
.
All
representations, warranties and agreements contained in this Underwriting
Agreement or the applicable Terms Agreement or in certificates of officers
of
the Company, any Guarantor or any of their respective subsidiaries submitted
pursuant hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company or any Guarantor, and
shall survive delivery of and payment for the Underwritten
Securities.
SECTION
9.
Termination
.
(a)
Underwriting
Agreement
.
This
Underwriting Agreement (excluding the applicable Terms Agreement) may be
terminated for any reason at any time by the Company or by the Representative
upon the giving of prior written notice of such termination to the other party
hereto.
(b)
Terms
Agreement
.
The
Representative may terminate the applicable Terms Agreement, by notice to the
Company, at any time at or prior to the Closing Time or any relevant Date of
Delivery, if (i) there has been, since the time of execution of such Terms
Agreement or since the respective dates as of which information is given in
the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) there has occurred any
material adverse change in the financial markets in the United States or in
the
international financial markets, or any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving
a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Representative, impracticable or inadvisable to market the
Underwritten Securities or to enforce contracts for the sale of the Underwritten
Securities, or (iii) trading in any securities of Vectren Corporation, the
Company or any Guarantor has been suspended or materially limited by the
Commission, the New York Stock Exchange or the American Stock Exchange, or
if
trading generally on the New York Stock Exchange or the American Stock Exchange
or in the Nasdaq National Market has been suspended or materially limited,
or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by either of said exchanges or by such system or
by
order of the Commission, the NASD or any other governmental authority, or (iv)
there has occurred a material disruption in securities settlement or clearance
services in the United States, or (v) a banking moratorium has been declared
by
either Federal or New York authorities.
(c)
Liabilities
.
If this
Underwriting Agreement or the applicable Terms Agreement is terminated pursuant
to this Section 9, such termination shall be without liability of any party
to
any other party except as provided in Section 4 hereof, and provided further
that Sections 1, 6, 7 and 8 shall survive such termination and remain in full
force and effect.
SECTION
10.
Default
by One or More of the Underwriters
.
If one
or more of the Underwriters shall fail at the Closing Time or the relevant
Date
of Delivery, as the case may be, to purchase the Underwritten Securities which
it or they are obligated to purchase under the applicable Terms Agreement (the
“Defaulted Securities”), then the Representative shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than
all,
of the Defaulted Securities in such amounts as may be agreed upon and upon
the
terms herein set forth; if, however, the Representative shall not have completed
such arrangements within such 24-hour period, then:
(a)
if
the
number or aggregate principal amount, as the case may be, of Defaulted
Securities does not exceed 10% of the number or aggregate principal amount,
as
the case may be, of Underwritten Securities to be purchased on such date
pursuant to such Terms Agreement, the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in
the
proportions that their respective underwriting obligations under such Terms
Agreement bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b)
if
the
number or aggregate principal amount, as the case may be, of Defaulted
Securities exceeds 10% of the number or aggregate principal amount, as the
case
may be, of
Underwritten
Securities to be purchased on such date pursuant to such Terms Agreement, such
Terms Agreement (or, with respect to the Underwriters’ exercise of any
applicable over-allotment
option
for the
purchase of Option Underwritten Securities on a Date of Delivery after the
Closing Time, the obligations of the Underwriters to purchase, and the Company
to sell, such Option Underwritten Securities on such Date of Delivery) shall
terminate without liability on the part of any non-defaulting
Underwriter.
No
action
taken pursuant to this Section 10 shall relieve any defaulting Underwriter
from
liability in respect of its default.
In
the
event of any such default which does not result in (i) a termination of the
applicable Terms Agreement or (ii) in the case of a Date of Delivery after
the
Closing Time, a termination of the obligations of the Underwriters and the
Company with respect to the related Option Underwritten Securities, as the
case
may be, either the Representative or the Company shall have the right to
postpone the Closing Time or the relevant Date of Delivery, as the case may
be,
for a period not exceeding seven days in order to effect any required changes
in
the Registration Statement or the Prospectus or in any other documents or
arrangements.
SECTION
11.
Notices
.
All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form
of
telecommunication. Notices to the Underwriters shall be directed to LaSalle
Financial Services, Inc. 135 South LaSalle Street, Suite, 1460, Chicago,
Illinois 60603 and notices to the Company shall be directed to it at One Vectren
Square, Evansville, Indiana 47708, attention of Ronald E.
Christian.
SECTION
12.
Parties
.
This
Underwriting Agreement and the applicable Terms Agreement shall each inure
to
the benefit of and be binding upon the Company, the Guarantors, the
Representative and, upon execution of such Terms Agreement, any other
Underwriters and their respective successors. Nothing expressed or mentioned
in
this Underwriting Agreement or such Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the parties hereto
and their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
Representative, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or such Terms Agreement or any provision
herein or therein contained. This Underwriting Agreement and such Terms
Agreement and all conditions and provisions hereof and thereof are intended
to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representative, and for the benefit of
no
other person, firm or corporation. No purchaser of Underwritten Securities
from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION
13.
GOVERNING
LAW AND TIME
.
THIS
UNDERWRITING AGREEMENT AND ANY APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED
BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION
14.
Effect
of Headings
.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION
15.
Counterparts
.
This
Agreement may be executed in one or more counterparts and, if executed in more
than one counterpart, the executed counterparts hereof shall constitute a single
instrument.
SECTION
16.
Tax
Disclosure
.
The
Company is authorized, subject to applicable law, to disclose any and all
aspects of this potential transaction that are necessary to support any U.S.
federal income tax benefits expected to be claimed with respect to such
transaction, and all materials of any kind (including tax opinions and other
tax
analyses) related to those benefits, without the Underwriters imposing any
limitation of any kind.
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to the Company a counterpart hereof, whereupon this Underwriting
Agreement, along with all counterparts, will become a binding agreement among
the Representative, the Company and the Initial Guarantors in accordance with
its terms.
|
Very
truly yours,
|
|
|
|
|
VECTREN
UTILITY HOLDINGS, INC.,
|
|
|
as
Issuer
|
|
|
|
|
By:
|
/s/
Robert L. Goocher
|
|
Name:
|
Robert
L. Goocher
|
|
Title:
|
Vice
President and Treasurer
|
|
|
|
|
INDIANA
GAS COMPANY, INC.,
|
|
|
as
Guarantor
|
|
|
|
|
By:
|
/s/
Robert L. Goocher
|
|
Name:
|
Robert
L. Goocher
|
|
Title:
|
Vice
President and Treasurer
|
|
|
|
|
SOUTHERN
INDIANA GAS AND ELECTRIC COMPANY,
|
|
|
as
Guarantor
|
|
|
|
|
By:
|
/s/
Robert L. Goocher
|
|
Name:
|
Robert
L. Goocher
|
|
Title:
|
Vice
President and Treasurer
|
|
|
|
|
VECTREN
ENERGY DELIVERY OF OHIO, INC.,
|
|
|
as
Guarantor
|
|
|
|
|
By:
|
/s/
Robert L. Goocher
|
|
Name:
|
Robert
L. Goocher
|
|
Title:
|
Vice
President and Treasurer
|
CONFIRMED
AND ACCEPTED,
|
|
as
of the date first above written:
|
|
|
|
LASALLE
FINANCIAL SERVICES, INC.
|
|
|
|
By:
|
/s/
David Wood
|
|
|
Authorized
Signatory
|
|
For
itself and as Representative of the other named Underwriters.
EXHIBIT
A
VECTREN
UTILITY HOLDINGS, INC.
(an
Indiana corporation)
AND
THE
GUARANTORS NAMED HEREIN
Senior
Debt Securities
TERMS
AGREEMENT
November
16,
2005
To:
Vectren
Utility Holdings, Inc.
One
Vectren Square
Evansville,
Indiana 47708
Ladies
and Gentlemen:
We
understand that
Vectren
Utility Holdings, Inc.
,
an
Indiana
corporation (the “Company”), proposes to issue and sell $75,000,000 aggregate
principal amount of its 5.45% Senior Notes due December 1, 2015 (the “5.45%
Senior Notes”) and $75,000,000 aggregate principal amount of its 6.10% Senior
Notes due December 1, 2035 (the “6.10% Senior Notes”, and together with the
5.45% Senior Notes, the “Initial Underwritten Securities”). Subject to the terms
of the Indenture, the Initial Underwritten Securities will be fully and
unconditionally guaranteed as to payment of principal, premium (if any) and
interest (the “Guarantees”) by Indiana Gas Company, Inc., Southern Indiana Gas
and Electric Company and Vectren Energy Delivery of Ohio, Inc. (the “Initial
Guarantors”). Subject to the terms and conditions set forth or incorporated by
reference herein, we, the underwriters named below (the “Underwriters”), offer
to purchase from the Company, and the Company agrees to sell to the
Underwriters, severally and not jointly, the principal amount of Initial
Underwritten Securities opposite the names of the Underwriters set forth below
at the purchase price set forth below.
|
Principal
Amount
Of
2015 Notes
|
Principal
Amount
Of
2035 Notes
|
Underwriter
LaSalle
Financial Services, Inc
Wachovia
Capital Markets, LLC
Fifth
Third Securities, Inc.
Wedbush
Morgan Securities Inc
Banc
of America Securities LLC
BNY
Capital Markets, Inc.
Morgan
Keegan & Company, Inc.
NatCity
Investments, Inc.
Piper
Jaffray & Co.
|
$
39,750,000
11,250,000
4,500,000
4,500,000
3,000,000
3,000,000
3,000,000
3,000,000
3,000,000
|
$
39,750,000
11,250,000
4,500,000
4,500,000
3,000,000
3,000,000
3,000,000
3,000,000
3,000,000
|
|
________________
|
________________
|
Total
|
$75,000,000
|
$75,000,000
|
The
Initial Underwritten Securities shall have the following
terms:
|
|
Titles:
|
5.45%
Senior Notes due December 1, 2015
6.10%
Senior Notes due December 1, 2035
|
|
|
Rank:
|
Unsecured
senior indebtedness
|
|
|
Guarantees:
|
Guaranteed
by the Initial Guarantors
|
|
|
Ratings:
|
“Baa1”
by Moody’s Investors Service, Inc.
“A-”
by Standard & Poor’s Ratings Services
|
|
|
Aggregate
principal amount:
|
$75,000,000
of 5.45% Senior Notes
$75,000,000
of 6.10% Senior Notes
|
|
|
Denominations:
|
$1,000
and integral multiples thereof
|
|
|
Currency
of payment:
|
U.S.
Dollars
|
|
|
Interest
rate or formula:
|
5.45%
Senior Notes: 5.45% per annum
6.10%
Senior Notes: 6.10% per annum
|
|
|
Interest
payment dates:
|
June
1 and December 1 of each year, commencing June 1, 2006
|
|
|
Regular
record dates:
|
The
15
th
calendar day of the month immediately preceding the month in which
each
Interest Payment Date falls
|
Stated
maturity date:
|
5.45%
Senior Notes: December 1, 2015
6.10%
Senior Notes: December 1, 2035
|
|
|
Redemption
provisions:
|
The
Notes
are
redeemable at any time at the option of the Company in whole or in
part,
upon not less than 30 calendar days and not more than 60 calendar
days
prior written notice at a price equal to the greater of (1) 100%
of the
principal amount to be redeemed and (2) the sum of the present values
of
the remaining scheduled payments of principal and interest on the
Notes,
discounted to the redemption date on a
semi-annual
basis
at the Treasury Rate plus 20 basis points, in the case of the 5.45%
Senior
Notes, and 25 basis points, in the case of the 6.10% Senior Notes,
plus in
each case unpaid interest accrued to the redemption
date.
|
|
|
Sinking
fund requirements:
|
The
Notes will not have the benefit of, or be subject to, any sinking
fund.
|
|
|
Defeasance
provisions:
|
The
Notes are subject to defeasance and covenant defeasance as provided
in
Article 8 of the Indenture.
|
|
|
Fixed
or Variable Price Offering:
|
5.45%
Senior Notes: 99.799% of the principal amount, plus accrued interest,
if
any, from November 21, 2005.
6.10%
Senior Notes: 99.779% of the principal amount, plus accrued interest,
if
any, from November 21, 2005.
|
|
Over-allotment
option:
|
None
|
|
|
Form:
|
Book-entry
|
|
|
Listing:
|
None
|
|
|
Lock-Up
Agreements:
|
The
Company has agreed, during the period of 90 days from the Settlement
Date,
not to sell, offer to sell, grant any option for the sale of, or
otherwise
dispose of any additional Initial Underwritten Securities, any security
convertible into or exchangeable into or exercisable for Initial
Underwritten Securities or any debt securities substantially similar
to
the Initial Underwritten Securities or any security convertible into,
exchangeable into to exercisable for any such debt securities, without
the
prior written consent of the Underwriters.
|
|
|
Other
terms and conditions:
|
None.
|
|
|
Closing
date and location:
|
November
21, 2005
at
Sidley Austin Brown & Wood
LLP
,
787 Seventh Avenue, New York, New York 10019.
|
All
of
the provisions contained in the document attached as Annex I hereto entitled
“
Vectren
Utility Holdings, Inc.
--
Debt
Securities
.
--
Underwriting Agreement” are hereby incorporated by reference in their entirety
herein and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined
in
such document are used herein as therein defined.
Please
accept this offer on
November
16, 2005
by
signing a copy of this Terms Agreement in the space set forth below and
returning the signed copy to us.
|
Very
truly yours,
|
|
|
|
|
LASALLE
FINANCIAL SERVICES, INC.
|
|
|
|
|
By:
|
|
|
|
Authorized
Signatory
|
For
itself and as Representative of the other named Underwriters.
Accepted:
|
|
|
|
|
VECTREN
UTILITY HOLDINGS, INC.
|
|
|
as
Issuer
|
|
|
|
|
By:
|
|
|
Name:
|
Robert
L. Goocher
|
|
Title:
|
Vice
President and Treasurer
|
|
|
|
|
INDIANA
GAS COMPANY, INC.,
|
|
|
as
Guarantor
|
|
|
|
|
By:
|
|
|
Name:
|
Robert
L. Goocher
|
|
Title:
|
Vice
President and Treasurer
|
|
|
|
|
SOUTHERN
INDIANA GAS AND ELECTRIC COMPANY
|
|
as
Guarantor
|
|
|
|
|
By:
|
|
|
Name:
|
Robert
L. Goocher
|
|
Title:
|
Vice
President and Treasurer
|
|
|
|
|
VECTREN
ENERGY DELIVERY OF OHIO, INC.
|
|
as
Guarantor
|
|
|
|
|
By:
|
|
|
Name:
|
Robert
L. Goocher
|
|
Title:
|
Vice
President and Treasurer
|
|
EXHIBIT
B
FORM
OF
OPINION OF GENERAL COUNSEL
OF
THE
COMPANY
TO
BE
DELIVERED PURSUANT TO
SECTION
5(b)
1.
The
information in the Company’s [list all relevant 1934 Act reports and text in the
prospectus supplement] under the caption “Legal Proceedings”, to the extent that
it constitutes matters of law, summaries of legal matters or the Company’s
charter, bylaws or legal proceedings, or legal conclusions, has been reviewed
by
me and is correct in all material respects.
2.
To
the
best of my knowledge, neither the Company nor any of its subsidiaries is in
violation of its charter or by-laws and no default by the Company or any of
its
subsidiaries exists in the due performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument that is described
or referred to in the Registration Statement or the Prospectus or filed or
incorporated by reference as an exhibit to the Registration Statement, except
for defaults which individually or in the aggregate would not have a Material
Adverse Effect.
3.
To
the
best of my knowledge, there are no franchises, contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments required to be described
or
referred to in the Registration Statement or the Prospectus or to be filed
as
exhibits thereto other than those described or referred to therein or filed
or
incorporated by reference as exhibits thereto, and the descriptions thereof
or
references thereto are correct in all material respects.
4.
To
the
best of my knowledge, there are no statutes or regulations that are required
to
be described in the Prospectus that are not described as required.
EXHIBIT
C
FORM
OF
OPINION OF COMPANY’S COUNSEL
TO
BE
DELIVERED PURSUANT TO
SECTION
5(c)
1.
The
Company has been duly incorporated and is validly existing as a corporation
under the laws of the State of Indiana.
2.
The
Company has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under, or as contemplated under, the
Underwriting Agreement, the applicable Terms Agreement, the Indenture and the
Underwritten Securities.
3.
The
Company is duly qualified as a foreign corporation to transact business and
is
in good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing would
not result in a Material Adverse Effect.
4.
The
authorized, issued and outstanding shares of capital stock of the Company are
as
set forth in the column entitled “Actual” under the caption “Capitalization” in
the Prospectus (except for subsequent issuances thereof, if any, contemplated
under the Underwriting Agreement). All of the issued and outstanding shares
of
capital stock of the Company have been duly authorized and validly issued by
the
Company and are fully paid and non-assessable, and none of such shares were
issued in violation of preemptive or other similar rights of any securityholder
of the Company.
5.
Each
Guarantor has been duly incorporated and is validly existing as a corporation,
and where applicable, in good standing under the laws of the jurisdiction of
its
incorporation, has corporate power and authority to own, lease and operate
its
properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under, or as contemplated under, this
Underwriting Agreement, the applicable Terms Agreement and its Guarantee and
is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not result
in a Material Adverse Effect. All of the issued and outstanding capital stock
of
each Guarantor has been duly authorized and is validly issued, fully paid and
non-assessable and, to the best of our knowledge, is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity. None of the outstanding
shares of capital stock of any Guarantor was issued in violation of preemptive
or other similar rights of any securityholder of such Guarantor.
6.
The
Underwritten Securities have been duly authorized by the Company for issuance
and sale pursuant to the Underwriting Agreement and the applicable Terms
Agreement. The Underwritten Securities, when issued and authenticated in the
manner provided for in the
Indenture
and delivered against payment of the consideration therefor specified in such
Terms Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws affecting the enforcement of creditors’ rights
generally or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law), and except further as
enforcement thereof may be limited by requirements that a claim with respect
to
any Underwritten Securities payable in a foreign currency (or a foreign currency
judgment in respect of such claim) be converted into U.S. dollars at a rate
of
exchange prevailing on a date determined pursuant to applicable law or by
governmental authority to limit, delay or prohibit the making of payments
outside the United States. The Underwritten Securities are in the form
contemplated by, and each registered holder thereof is entitled to the benefits
of, the Indenture and the Guarantees.
7.
The
Guarantees have been duly authorized by the Guarantors and, when the
Underwritten Securities are issued and authenticated in accordance with the
terms of the Indenture and delivered against payment of the consideration
therefor specified in the applicable Terms Agreement, will constitute valid
and
binding obligations of the respective Guarantors, enforceable against the
related Guarantor in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or other
similar laws affecting the enforcement of creditors’ rights generally or by
general equitable principles (regardless of whether enforcement is considered
in
a proceeding in equity or at law), and except further as enforcement thereof
may
be limited by requirements that a claim with respect to any Guarantee payable
in
a foreign currency (or a foreign currency judgment in respect of such claim)
be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to limit,
delay or prohibit the making of payments outside the United States.
8.
The
Indenture has been duly authorized, executed and delivered by the Company and
each Guarantor and (assuming due authorization, execution and delivery thereof
by the Trustee) constitutes a valid and binding agreement of the Company and
each Guarantor, enforceable against the Company and each Guarantor in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at
law), and except further as enforcement thereof may be limited by requirements
that a claim with respect to any Debt Securities payable in a foreign currency
(or a foreign currency judgment in respect of such claim) be converted into
U.S.
dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law or by governmental authority to limit, delay or prohibit the
making of payments outside the United States. The Indenture has been duly
qualified under the 1939 Act.
9.
The
Underwriting Agreement and the applicable Terms Agreement have been duly
authorized, executed and delivered by each of the Company and the
Guarantors.
10.
The
Underwritten Securities and the Guarantees, when issued and delivered in
accordance with their terms, will conform in all material respects to the
statements relating thereto contained in the Prospectus and are in substantially
the form filed or incorporated by reference, as the case may be, as an exhibit
to the Registration Statement.
11.
The
Indenture conforms in all material respects to the statements relating thereto
contained in the Prospectus and is in substantially the form filed or
incorporated by reference, as the case may be, as an exhibit to the Registration
Statement.
12.
The
Registration Statement (including any Rule 462(b) Registration Statement) has
been declared effective under the 1933 Act. Any required filing of the
Prospectus pursuant to Rule 424(b) has been made in the manner and within the
time period required by Rule 424(b). To the best of our knowledge, no stop
order
suspending the effectiveness of the Registration Statement (including any Rule
462(b) Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been initiated or are pending or threatened
by
the Commission.
13.
The
Registration Statement (including any Rule 462(b) Registration Statement) and
the Prospectus, excluding the documents incorporated by reference therein,
and
each amendment or supplement to the Registration Statement (including any Rule
462(b) Registration Statement) and Prospectus, excluding the documents
incorporated by reference therein, as of their respective effective or issue
dates (other than the financial statements, notes and supporting schedules
included therein or omitted therefrom and the Trustee’s Statement of Eligibility
on Form T-1 (the “Form T-1”), as to which we express no opinion), complied as to
form in all material respects with the requirements of the 1933 Act, the 1933
Act Regulations and the 1939 Act.
14.
The
documents incorporated by reference in the Prospectus (other than the financial
statements, notes and supporting schedules therein or omitted therefrom, as
to
which we express no opinion), when they were filed with the Commission, complied
as to form in all material respects with the requirements of the 1934 Act and
the 1934 Act Regulations.
15.
To
the
best of our knowledge, except as otherwise disclosed in the Registration
Statement and Prospectus, there is not pending or threatened any action, suit,
proceeding, inquiry or investigation to which the Company or any of its
subsidiaries thereof is a party or to which the assets, properties or operations
of the Company or any of its subsidiaries thereof is subject, before or by
any
court or governmental agency or body, domestic or foreign, which could
reasonably be expected to result in a Material Adverse Effect or which could
reasonably be expected to materially and adversely affect the assets, properties
or operations thereof or the consummation of the transactions contemplated
under
the Underwriting Agreement, the applicable Terms Agreement or the Indenture
or
the performance by the Company of its obligations thereunder.
16.
The
information in the Prospectus under “Description of Debt Securities” and
“Description of Notes,” and in the Registration Statement under Item 15, to the
extent that it constitutes matters of law, summaries of legal matters or the
Company’s charter, bylaws or legal proceedings, or legal conclusions, has been
reviewed by us and is correct in all material respects.
17.
All
descriptions in the Registration Statement and the Prospectus of contracts
and
other documents to which the Company or any of its subsidiaries are a party
are
accurate in all material respects.
18.
To
the
best of our knowledge, neither the Company nor any of its subsidiaries is in
violation of its charter or by-laws. Based solely on inquiries we have made
of
the Company’s Executive Vice President/Chief Financial Officer, Executive Vice
President/Secretary, General Counsel/Assistant Secretary, Vice
President/Treasurer and Vice President/Controller, and on an officer’s
certificate no default by the Company or any of its subsidiaries exists in
the
due performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument that is described or referred to in
the
Registration Statement or the Prospectus or filed or incorporated by reference
as an exhibit to the Registration Statement, except for defaults which
individually or in the aggregate would not have a Material Adverse
Effect.
19.
The
execution, delivery and performance of the Underwriting Agreement, the
applicable Terms Agreement and the Indenture and any other agreement or
instrument entered into or issued or to be entered into or issued by the Company
and the Guarantors in connection with the transactions contemplated in the
Registration Statement and the Prospectus and the consummation of the
transactions contemplated in the Underwriting Agreement and such Terms Agreement
and in the Registration Statement and the Prospectus (including the issuance
and
sale of the Underwritten Securities and the use of the proceeds from the sale
of
the Underwritten Securities as described under the caption “Use of Proceeds”)
and compliance by the Company and the Guarantors with their respective
obligations thereunder do not and will not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute a breach
of,
or default or Repayment Event under, or result in the creation or imposition
of
any lien, charge or encumbrance upon any assets, properties or operations of
the
Company or any of its subsidiaries pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, known to us, to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to which
any of the assets, properties or operations of the Company or any of its
subsidiaries is subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any of its subsidiaries
or any applicable law, statute, rule, regulation, judgment, order, writ or
decree, known to us, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their assets, properties or operations.
20.
No
filing
with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency,
domestic or foreign, is necessary or required for the due authorization,
execution or delivery by the Company or the Guarantors of the Underwriting
Agreement, the applicable Terms Agreement, the Indenture, the Underwritten
Securities or the Guarantees or for the performance by the Company or the
Guarantors of their obligations under the Underwriting Agreement, such Terms
Agreement, the Indenture, the Underwritten Securities or the Guarantees, other
than under the 1933 Act, the 1933 Act Regulations, the 1939 Act and the 1939
Act
Regulations, which have already been made, obtained or rendered, as
applicable.
21.
The
Indenture has been duly qualified under the 1939 Act.
22.
Neither
the Company nor any Guarantor is, or upon the issuance and sale of the
Underwritten Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will be, an “investment
company” within the meaning of the 1940 Act.
23.
The
Company is a “holding company” (within the meaning of the Public Utility Holding
Company Act of 1935, as amended (the “PUHC Act”)) which is exempt from being
required to seek approval to perform its obligations under the Underwriting
Agreement, the applicable Terms Agreement, the Indenture or the Underwritten
Securities pursuant to Rule 2 of the rules and regulations promulgated pursuant
to the PUHC Act.
Further,
although we are not passing upon and do not assume any responsibility for,
the
accuracy and completeness of the statements (except as covered by (4), (10),
(11), (16) and (17)) contained in the Registration Statement, Prospectus, or
any
amendment or supplement thereto, including the Rule 430A Information and Rule
434 Information (if applicable), we advise you, on the basis of the discussions
and inquiries concerning various legal and related subjects and reviews of
and
reports on certain corporate records, documents and proceedings and conferences
with representatives of the Company at which certain portions of the
Registration Statement and the Prospectus were discussed (relying as to certain
factual matters upon representations of the Company), nothing has come to our
attention that would lead us to believe that the Registration Statement
(including any Rule 462(b) Registration Statement) or any post-effective
amendment thereto (except for financial statements (including statistical
information included in such financial statements), notes and supporting
schedules thereto and other financial data included therein or omitted therefrom
and for the Form T-1, as to which we make no statement), at the time the
Registration Statement (including any Rule 462(b) Registration Statement) or
any
post-effective amendment thereto (including the filing of the Company’s Annual
Report on Form 10-K with the Commission) became effective or at the date of
the
applicable Terms Agreement, contained an untrue statement of a material fact
or
omitted to state a material fact required to be stated therein or necessary
to
make the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto (except for financial statements (including
statistical information included in such financial statements), notes and
supporting schedules thereto and other financial data included therein or
omitted therefrom, as to which we make no statement), at the time the Prospectus
was issued, at the time any such amended or supplemented prospectus was issued
or at the Closing Time, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In
rendering such opinion, such counsel may rely, as to matters of fact (but not
as
to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company, the Guarantors and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that
it is
otherwise subject to, any treatise, written policy or other document relating
to
legal opinions, including, without limitation, the Legal Opinion Accord of
the
ABA Section of Business Law (1991).
C-5
Exhibit
4.1
FOURTH
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
November 21, 2005
TABLE
OF CONTENTS
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Page
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ARTICLE
1
|
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
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3
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SECTION
2.2
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Maturity
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3
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|
SECTION
2.3
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Form
and Payment
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3
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|
SECTION
2.4
|
Global
Note
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4
|
|
SECTION
2.5
|
Payment
of Principal and Interest
|
5
|
ARTICLE
III
|
REDEMPTION
OF THE NOTES
|
6
|
|
SECTION
3.1
|
Redemption
at the Company’s Option; Defeasance
|
6
|
|
SECTION
3.2
|
No
Sinking Fund
|
7
|
|
SECTION
3.3
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Defeasance
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7
|
ARTICLE
IV
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MISCELLANEOUS
|
7
|
|
SECTION
4.1
|
Ratification
of Indenture
|
8
|
|
SECTION
4.2
|
Trustee
Not Responsible for Recitals
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8
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|
SECTION
4.3
|
Governing
Law
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8
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|
SECTION
4.4
|
Separability
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8
|
|
SECTION
4.5
|
Counterparts
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8
|
|
SECTION
4.6
|
Amendments
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8
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|
|
|
|
EXHIBITS
A-1 thru A-2
|
Forms
of Note
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FOURTH
SUPPLEMENTAL INDENTURE, dated as of November 21, 2005 (the “Fourth 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 5.45%
Senior Notes due December 1, 2015 (the “2015 Notes”) and its 6.10% Senior Notes
due December 1, 2035 (the “2035 Notes”, and together, 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
Fourth
Supplemental Indenture (together, the “Indenture”);
WHEREAS,
the Company and the Initial Guarantors requested that the Trustee execute
and
deliver this Fourth Supplemental Indenture and all requirements necessary
to
make this Fourth 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 Fourth
Supplemental Indenture;
(b)
a
term
defined anywhere in this Fourth 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,
2006.
“Maturity
Date” shall have the meaning specified in Section 2.2.
“Original
Issue Date” means November 21, 2005.
“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 Fourth Supplemental Indenture:
“Base
Indenture”
“Company”
“Guarantees”
“Indenture”
“Indiana
Gas”
“Initial
Guarantors”
“Fourth
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 two series of Securities designated the 5.45% Senior Notes
due
December 1, 2015 limited (except as otherwise provided in Article 2 of the
Base
Indenture) in aggregate principal amount to $75,000,000, and the 6.10% Senior
Notes due December 1, 2035 limited (except as otherwise provided in Article
2 of
the Base Indenture) in aggregate principal amount to $75,000,000. 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 2015 Notes shall become due and payable at
final
maturity is December 1, 2015 (the “2015 Maturity Date”) if not redeemed in full
previously in accordance with Article III of this Fourth Supplemental Indenture.
The date upon which the principal on the 2035 Notes shall become due and
payable
at final maturity is December 1, 2035 (the “2035 Maturity Date”, and the 2015
Maturity Date and the 2035 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 Fourth Supplemental
Indenture.
SECTION
2.3.
Form
and Payment.
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 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
Company hereby designates the Borough of Manhattan, The City of New York
as a
place of payment (“Place of Payment”) for the Notes, and the office or agency
maintained by the Company in such Place of Payment for the purposes contemplated
by this Section 2.3 shall initially be the Corporate Trust Office of the
Trustee
at 100 Wall Street, Suite 2000, New York, New York 10005, Attention: Richard
Prokosch.
The
Notes
shall be issuable in denominations of $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
.
(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 2015 Notes and a global Note in principal amount
equal
to the aggregate principal amount of the 2035 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.
SECTION
2.5.
Payment
of Principal and Interest.
The
2015
Notes shall bear interest at the per annum rate of 5.45%. The 2035 Notes
shall
bear interest at the per annum rate of
6.10%
.
The
following terms apply to the Notes:
Interest
shall be paid semi-annually in arrears on each Interest Payment Date commencing
on June 1, 2006. 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. Notwithstanding the foregoing, 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
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.
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 (excluding interest
accrued to the date of redemption) 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 2015 Notes and 25 basis points for the 2035 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.
“Comparable
Treasury Price” means, with respect to any redemption date applicable to a Note,
(1) if the Trustee obtains at least 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 LaSalle Financial Services, Inc., Wachovia
Capital Markets, LLC, Fifth Third Securities, Inc. Wedbush Morgan Securities
Inc., Banc of America Securities LLC, BNY Capital Markets, Inc., Morgan Keegan
& Company, Inc., NatCity Investments, Inc., Piper Jaffray & 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
.
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 Fourth Supplemental Indenture, is in all
respects ratified and confirmed, and this Fourth 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 Fourth
Supplemental Indenture.
SECTION
4.3.
Governing
Law
.
This
Fourth 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 Fourth 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 Fourth Supplemental Indenture or of the Notes, but this Fourth
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
Fourth 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]
IN
WITNESS WHEREOF, the parties hereto have caused this Fourth 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.
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VECTREN
UTILITY HOLDINGS, INC.
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as
Issuer
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By:
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Name:
|
Jerome
A. Benkert, Jr.
|
|
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Title:
|
Executive
Vice President and Chief Financial Officer
|
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|
|
Attest:
|
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|
|
|
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By:
|
|
|
|
Name:
|
Ronald
E. Christian
|
|
|
Title:
|
Executive
Vice President and Secretary
|
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|
|
|
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INDIANA
GAS COMPANY, INC.
|
|
|
as
Initial Guarantor
|
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|
|
|
|
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By:
|
|
|
|
Name:
|
Jerome
A. Benkert, Jr.
|
|
|
Title:
|
Executive
Vice President and Chief Financial Officer
|
Attest:
|
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
Ronald
E. Christian
|
|
|
Title:
|
Executive
Vice President and Secretary
|
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|
|
|
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|
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SOUTHERN
INDIANA GAS AND ELECTRIC COMPANY
|
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as
Initial Guarantor
|
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|
|
|
|
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By:
|
|
|
|
Name:
|
Jerome
A. Benkert, Jr.
|
|
|
Title:
|
Executive
Vice President and Chief Financial Officer
|
|
|
|
|
Attest:
|
|
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
Ronald
E. Christian
|
|
|
Title:
|
Executive
Vice President and Secretary
|
|
|
|
|
VECTREN
ENERGY DELIVERY OF OHIO, INC.,
|
|
|
as
Initial Guarantor
|
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
Jerome
A. Benkert, Jr.
|
|
|
Title:
|
Executive
Vice President and Chief Financial Officer
|
Attest:
|
|
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
Ronald
E. Christian
|
|
|
Title:
|
Executive
Vice President and Secretary
|
|
|
|
|
|
|
|
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U.S.
BANK NATIONAL ASSOCIATION,
|
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as
Trustee
|
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By:
|
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Name:
|
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|
|
Title:
|
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Attest:
|
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By:
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Name:
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Title:
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Exhibit
A-1
[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.
5.45%
SENIOR NOTE DUE DECEMBER 1, 2015
RATE
OF INTEREST
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STATED
MATURITY DATE
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ORIGINAL
ISSUE DATE
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5.45%
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December
1, 2015
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November
21, 2005
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Registered
No. 1…………………………………………………...
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CUSIP
No. 92239M AF 8
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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 $75,000,000 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
June 1 and December 1 of each year, commencing on June 1, 2006 (an “Interest
Payment Date”), and on any earlier date of redemption, as the case may
be.
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 any earlier date
of
redemption, 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, a
Sunday, or other day on which commercial banks are authorized or required
by
law, regulation or executive order to close in The City of New
York.
Payment
of the principal of, and any premium or 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. Notwithstanding the foregoing, payment
of interest due on this Note 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 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.
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.
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VECTREN
UTILITY HOLDINGS, INC.
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By:
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Title:
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Executive
Vice President and Chief Financial Officer
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By:
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Title:
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Executive
Vice President and Secretary
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DATED:
November 21, 2005
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TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
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This
is one of the Notes referred to in the within-mentioned
Indenture.
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U.S.
BANK NATIONAL ASSOCIATION,
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As
Trustee
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By:
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Authorized
Signatory
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[Form
of
Reverse of Note]
VECTREN
UTILITY HOLDINGS, INC.
5.45%
SENIOR NOTE DUE DECEMBER 1, 2015
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 “
5.45%
Senior
Notes due December 1
,
2015
”
(the
“Notes”), issued or to be issued pursuant to an Indenture, dated as of October
19, 2001, as amended by the Fourth Supplemental Indenture dated November
21,
2005 (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 $75,000,000, 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 such 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 (excluding interest accrued to the date of redemption) 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 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 at least 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 LaSalle Financial Services, Inc., Wachovia
Capital Markets, LLC, Fifth Third Securities, Inc. Wedbush Morgan Securities
Inc., Banc of America Securities LLC, BNY Capital Markets, Inc., Morgan Keegan
& Company, Inc., NatCity Investments, Inc., Piper Jaffray & 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 sue for
enforcement of any overdue payment on this Note.
No
reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and 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 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)
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And
irrevocably appoint, _____________ agent to transfer this Note
on the
books of the Company. The agent may substitute another to act for
him.
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Dated:
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Signed:
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(SIGN
EXACTLY AS NAME APPEARS ON THE OTHER SIDE OF THIS NOTE)
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SIGNATURE
GUARANTEE:
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Notice:
Signature(s) must be guaranteed by a member firm of the New York
Stock
Exchange of a commercial bank or trust company
.
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[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 (as
defined below) 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, each Guarantor
hereby agrees 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, 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.
IN
WITNESS WHEREOF, Indiana Gas Company, Inc. has caused this Guarantee to be
executed by two of its duly authorized officers.
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By:
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Name:
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Jerome
A. Benkert, Jr.
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Title:
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Executive
Vice President and Chief Financial Officer
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By:
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Name:
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Ronald
E. Christian
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Title:
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Executive
Vice President and Secretary
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DATED:
November 21, 2005
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IN
WITNESS WHEREOF, Southern Indiana Gas and Electric Company has caused this
Guarantee to be executed by two of its duly authorized officers.
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By:
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Name:
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Jerome
A. Benkert, Jr.
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Title:
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Executive
Vice President and Chief Financial Officer
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By:
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Name:
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Ronald
E. Christian
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Title:
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Executive
Vice President and Secretary
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DATED:
November 21, 2005
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IN
WITNESS WHEREOF, Vectren Energy Delivery of Ohio, Inc. has caused this Guarantee
to be executed by two of its duly authorized officers.
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By:
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Name:
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Jerome
A. Benkert, Jr.
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Title:
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Executive
Vice President and Chief Financial Officer
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By:
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Name:
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Ronald
E. Christian
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Title:
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Executive
Vice President and Secretary
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DATED:
November 21, 2005
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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.
6.10%
SENIOR NOTE DUE DECEMBER 1, 2035
RATE
OF INTEREST
|
STATED
MATURITY DATE
|
ORIGINAL
ISSUE DATE
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6.10%
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December
1, 2035
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November
21, 2005
|
Registered
No. 1
|
CUSIP
No. 92239M AG 6
|
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 $
75,000,000
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
June 1 and December 1 of each year, commencing on June 1, 2006 (an “Interest
Payment Date”), and on any earlier date of redemption, as the case may
be.
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 any earlier date
of
redemption, 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, a
Sunday, or other day on which commercial banks are authorized or required
by
law, regulation or executive order to close in The City of New
York.
Payment
of the principal of, and any premium or 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. Notwithstanding the foregoing, 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.
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.
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VECTREN
UTILITY HOLDINGS, INC.
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By:
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Title:
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Executive
Vice President and Chief Financial Officer
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By:
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Title:
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Executive
Vice President and Secretary
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DATED:
November 21, 2005
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TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
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This
is one of the Notes referred to in the within-mentioned
Indenture.
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U.S.
BANK NATIONAL ASSOCIATION,
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As
Trustee
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By:
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Authorized
Signatory
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[Form
of
Reverse of Note]
VECTREN
UTILITY HOLDINGS, INC.
6.10%
SENIOR NOTE DUE DECEMBER 1, 2035
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 “6.10
%
Senior
Notes due December 1,
2035
”
(the
“Notes”), issued or to be issued pursuant to an Indenture, dated as of October
19, 2001, as amended by the Fourth Supplemental Indenture dated November
21,
2005 (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 $
75,000,000
,
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 such 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 (excluding interest accrued to the date of redemption) 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 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 at least 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 LaSalle Financial Services, Inc., Wachovia
Capital Markets, LLC, Fifth Third Securities, Inc. Wedbush Morgan Securities
Inc., Banc of America Securities LLC, BNY Capital Markets, Inc., Morgan Keegan
& Company, Inc., NatCity Investments, Inc., Piper Jaffray & 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 sue for
enforcement of any overdue payment on this Note.
No
reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and 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 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
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)
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And
irrevocably appoint, _____________ agent to transfer this Note
on the
books of the Company. The agent may substitute another to act for
him.
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Dated:
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Signed:
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(SIGN
EXACTLY AS NAME APPEARS ON THE OTHER SIDE OF THIS NOTE)
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SIGNATURE
GUARANTEE:
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Notice:
Signature(s) must be guaranteed by a member firm of the New York
Stock
Exchange of a commercial bank or trust company
.
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[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 (as
defined below) 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, each Guarantor
hereby agrees 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, 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.
IN
WITNESS WHEREOF, Indiana Gas Company, Inc. has caused this Guarantee to be
executed by two of its duly authorized officers.
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By:
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Name:
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Jerome
A. Benkert, Jr.
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Title:
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Executive
Vice President and Chief Financial Officer
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By:
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Name:
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Ronald
E. Christian
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Title:
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Executive
Vice President and Secretary
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DATED:
November 21, 2005
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IN
WITNESS WHEREOF, Southern Indiana Gas and Electric Company has caused this
Guarantee to be executed by two of its duly authorized officers.
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By:
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Name:
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Jerome
A. Benkert, Jr.
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Title:
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Executive
Vice President and Chief Financial Officer
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By:
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Name:
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Ronald
E. Christian
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Title:
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Executive
Vice President and Secretary
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DATED:
November 21, 2005
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IN
WITNESS WHEREOF, Vectren Energy Delivery of Ohio, Inc. has caused this Guarantee
to be executed by two of its duly authorized officers.
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By:
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Name:
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Jerome
A. Benkert, Jr.
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Title:
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Executive
Vice President and Chief Financial Officer
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By:
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Name:
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Ronald
E. Christian
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Title:
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Executive
Vice President and Secretary
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DATED:
November 21, 2005
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36