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Exhibit 4.2
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SOUTHERN INDIANA GAS AND ELECTRIC COMPANY
WITH
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
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SUPPLEMENTAL INDENTURE
Relating to the
FIRST MORTGAGE BONDS
Series A 1985 due 2015
Dated as of October 1, 2004
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<PAGE>
SUPPLEMENTAL INDENTURE, dated as of October 1, 2004, between
SOUTHERN
INDIANA GAS AND ELECTRIC COMPANY, a corporation organized and
existing under the
laws of the State of Indiana (hereinafter called the "Company"),
party of the
first part, and DEUTSCHE BANK TRUST COMPANY AMERICAS, a
corporation organized
and existing under the laws of the State of New York, formerly
known as BANKERS
TRUST COMPANY, as Trustee under the Mortgage hereinafter
referred to, party of
the second part.
WHEREAS, the Company heretofore executed and delivered to
Deutsche Bank
Trust Company Americas, formerly known as Bankers Trust Company,
as Trustee
(hereinafter called the "Trustee"), a certain Indenture of
Mortgage and Deed of
Trust dated as of April 1, 1932, to secure an issue of bonds of
the Company,
issued and to be issued in series, from time to time, in the
manner and subject
to the conditions set forth in the said Indenture, and the said
Indenture has
been amended and supplemented by Supplemental Indentures dated
as of August 31,
1936, October 1, 1937, March 22, 1939, July 1, 1948, June 1,
1949, October 1,
1949, January 1, 1951, April 1, 1954, March 1, 1957, October 1,
1965, September
1, 1966, August 1, 1968, May 1, 1970, August 1, 1971, April 1,
1972, October 1,
1973, April 1, 1975, January 15, 1977, April 1, 1978, June 4,
1981, January 20,
1983, November 1, 1983, March 1, 1984, June 1, 1984, November 1,
1984, July 1,
1985, November 1, 1985, June 1, 1986, November 15, 1986, January
15, 1987,
December 15, 1987, December 13, 1990, April 1, 1993, May 1,
1993, June 1, 1993,
July 1, 1999, March 1, 2000 and August 1, 2004, which Indenture
as so amended
and supplemented is hereinafter referred to as the "Mortgage"
and as further
supplemented by this Supplemental Indenture is hereinafter
referred to as the
"Indenture"; and
WHEREAS, the Mortgage provides that the Company and the Trustee
may,
from time to time, enter into such indentures supplemental to
the Mortgage as
shall be deemed by them necessary or desirable, to amend the
Mortgage or any
supplemental indenture in accordance with Section 108 of the
Mortgage; and
WHEREAS, the Company entered into a Loan Agreement dated as of
July 1,
1985 (the "Original Loan Agreement") with Warrick County,
Indiana (the "County")
pursuant to which the County issued $9,975,000 aggregate
principal amount of its
Adjustable Rate Pollution Control Revenue Bonds, 1985 Series A
(Southern Indiana
Gas and Electric Company Project) of which $9,775,000 principal
amount is
currently outstanding (the "County Bonds") pursuant to the
Indenture of Trust
dated as of July 1, 1985, as supplemented and amended by a First
Supplemental
Indenture of Trust dated as of October 1, 2004 (the "Original
County
Indenture"), between the County and The Bank of New York Trust
Company, N.A., as
successor to The Citizens National Bank of Evansville, as
trustee (the "County
Trustee"), in order to provide funds to loan to the Company for
the purpose of
refunding the Issuer's $9,730,000 principal amount Pollution
Control Revenue
Bonds, 1983 Series A (Southern Indiana Gas and Electric Company
Project) which
were issued for the purpose of financing a portion of the costs
of acquiring,
constructing and equipping of an undivided one-half interest in
certain air
pollution control facilities, and pursuant to such Original Loan
Agreement the
Company agreed to issue a series of its bonds under the Original
County
Indenture in order to evidence and secure certain of its
indebtedness under the
Original Loan Agreement; and
WHEREAS, the Company and the Trustee entered into the
Supplemental
Indenture dated as of July 1, 1985 (the "July 1985 Supplemental
Indenture") for
such purposes; and
WHEREAS, the Company by appropriate corporate action in
conformity with
the terms of the Mortgage and pursuant to the July 1985
Supplemental Indenture
created a series of bonds which were issued under the Mortgage
in an original
aggregate principal amount of $9,975,000 (of which $9,775,000
principal amount
is currently outstanding) and designated as "First Mortgage
Bonds, Series A 1985
due 2015" (hereinafter sometimes referred to as "Bonds of the
Twenty-sixth
Series"), which bear interest at the rate from time to time
borne by the County
Bonds, are subject to certain optional and mandatory redemption
rights and
obligations set forth in, and are otherwise in the form and have
the terms and
provisions provided for in the July 1985 Supplemental Indenture
and set forth in
the form of such bonds in the July 1985 Supplemental Indenture;
and
WHEREAS, the Company has determined that it would be in its
best
interests to (i) add additional methods of determining the
interest rate on the
County Bonds, (ii) secure the County Bonds with a financial
guaranty insurance
policy (the "Bond Insurance Policy") issued by Ambac Assurance
Corporation and
(iii) amend certain provisions of the July 1985 Supplemental
Indenture and the
Bonds of the Twenty-sixth Series to allow for the release of
such bonds in
certain circumstances; and
WHEREAS, in connection with the foregoing, it is necessary for
the
County to amend the Original County Indenture and the Original
Loan Agreement
and for the Company to amend the July 1985 Supplemental
Indenture and the Bonds
of the Twenty-sixth Series in order to (i) conform to the
changes made to the
interest rate provisions of the Original County Indenture and
(ii) permit the
Bonds of the Twenty-sixth Series to cease to secure the
Company's obligation
under the Loan Agreement (as hereinafter defined) when
substantially all of the
Company's first mortgage bonds are no longer outstanding, except
for the Bonds
of the Twenty-sixth Series and any other first mortgage bonds
subject to
substantially similar release provisions; and
WHEREAS, the Company and the Trustee deem it necessary or
desirable to
enter into this Supplemental Indenture for such purposes;
and
WHEREAS, the execution and delivery of this Supplemental
Indenture are
authorized by Section 108 of the Mortgage and have been
consented to by the
registered owner of all of the Bonds of the Twenty-sixth
Series;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH: That
Southern
Indiana Gas and Electric Company, in consideration of the
premises and of one
dollar to it duly paid by the Trustee at or before the ensealing
and delivery of
these presents, the receipt whereof is hereby acknowledged, and
of the purchase
and acceptance of the bonds issued or to be issued hereunder by
the holders or
registered owners thereof, and in order to secure the payment of
the principal,
premium, if any, and interest of all bonds at any time issued
and outstanding
under the Indenture, according to their tenor and effect, and
the performance of
all of the provisions hereof and of said bonds, hath granted,
bargained, sold,
released, conveyed, assigned, transferred, pledged, set over and
confirmed and
by these presents doth grant, bargain, sell, release, convey,
assign, transfer,
pledge, set over and confirm unto Deutsche Bank Trust Company
Americas, formerly
known as Bankers Trust Company, as Trustee, and to its successor
or successors
in said trust, and to its and their assigns forever, all the
properties, real,
personal and mixed, tangible and intangible of the character
described in the
granting clauses of the aforesaid Indenture of Mortgage and Deed
of Trust dated
as of April 1, 1932 or in any indenture supplemental thereto
acquired by the
Company on or after the date of the execution and delivery of
said Indenture of
Mortgage and Deed of Trust (except any in said Indenture of
Mortgage and Deed of
Trust or in any indenture supplemental thereto expressly
excepted) and does
hereby confirm that the Company will not cause or consent to a
partition, either
voluntary or through legal proceedings, of property, whether
herein described or
heretofore or hereafter acquired, in which its ownership shall
be as a tenant in
common, except as permitted by and in conformity with the
provisions of the
Indenture and particularly of Article X thereof.
TOGETHER WITH all and singular the tenements, hereditaments
and
appurtenances belonging or in any wise appertaining to the
aforesaid property or
any part thereof, with the reversion and reversions, remainder
and remainders
and (subject to the provisions of Article X of the Indenture),
the tolls, rents,
revenues, issues, earnings, income, product and profits thereof,
and all the
estate, right, title, interest and claim whatsoever, at law as
well as in
equity, which the Company now has or may hereafter acquire in
and to the
aforesaid property and franchises and every part and parcel
thereof.
TO HAVE AND TO HOLD all such properties, real, personal and
mixed,
mortgaged, pledged or conveyed by the Company as aforesaid, or
intended so to
be, unto the Trustee and its successors and assigns forever.
IN TRUST, NEVERTHELESS, upon the terms and trusts of the
Indenture, for
those who shall hold the bonds and coupons issued and to be
issued thereunder,
or any of them, without preference, priority or distinction as
to lien of any of
said bonds and coupons over any others thereof by reason of
priority in the time
of the issue or negotiation thereof, or otherwise howsoever,
subject, however,
to the provisions in reference to extended, transferred or
pledged coupons and
claims for interest set forth in the Indenture (and subject to
any sinking funds
that may be created for the benefit of any particular
series).
PROVIDED, HOWEVER, and these presents are upon the condition
that, if
the Company, its successors or assigns, shall pay or cause to be
paid, the
principal of, premium, if any, and interest on said bonds, at
the times and in
the manner stipulated therein and herein, and shall keep,
perform and observe
all and singular the covenants and promises in said bonds and in
the Indenture
expressed to be kept, performed and observed by or on the part
of the Company,
then this Supplemental Indenture and the estate and rights
hereby granted shall
cease, determine and be void, otherwise to be and remain in full
force and
effect.
IT IS HEREBY COVENANTED, DECLARED AND AGREED, by the Company,
that all
such bonds and coupons are to be issued, authenticated and
delivered, and that
all property subject or to become subject hereto is to be held,
subject to the
further covenants, conditions, uses and trusts in the Indenture
set forth, and
the Company, for itself and its successors and assigns, does
hereby covenant and
agree to and with the Trustee and its successor or successors in
such trust, for
the benefit of those who shall hold said bonds and interest
coupons, or any of
them, as follows:
PART I
DEFINITIONS
All words and terms defined in Part I of the Supplemental
Indenture
dated as of July 1, 1985 shall have the same meanings in this
Supplemental
Indenture, except that the definitions of "County Indenture" and
"Loan
Agreement" are amended in their entirety to read as follows. In
addition,
certain words and terms are defined in the preamble of this
Supplemental
Indenture.
COUNTY INDENTURE:
The term "County Indenture," when used in connection with
the
Bonds of the Twenty-sixth Series, shall mean the Amended and
Restated Indenture of Trust, dated as of October 1, 2004, by
and between Warrick County, Indiana and The Bank of New York
Trust Company, N.A., as successor to The Citizens National
Bank of Evansville, as Trustee, and any indenture
supplemental
thereto or amendatory thereof, pursuant to which the
Adjustable Rate Pollution Control Revenue Bonds, 1985 Series
A
(Southern Indiana Gas and Electric Company Project) are
issued
and secured.
LOAN AGREEMENT:
The term "Loan Agreement," when used in connection with the
Bonds of the Twenty-sixth Series, shall mean the Loan
Agreement dated as of July 1, 1985, as supplemented and
amended by the First Amendment to Loan Agreement, dated as
of
October 1, 2004 between Warrick County, Indiana, and the
Company, relating to the Adjustable Rate Pollution Control
Revenue Bonds, 1985 Series A (Southern Indiana Gas and
Electric Company Project) and any and all modifications,
amendments and supplements thereof.
PART II
The forms of the definitive registered bonds without coupons of
the
Bonds of the Twenty-sixth Series and the Trustee's certificate
of authentication
to be borne by such bonds included in the preamble to the July
1985 Supplemental
Indenture are hereby amended in their entirety such that the
form of the
definitive registered bonds without coupons of the Bonds of the
Twenty-sixth
Series and the Trustee's certificate of authentication to be
borne by such bonds
are to be substantially in the following forms,
respectively:
"[FORM OF FULLY REGISTERED BOND OF THE TWENTY-SIXTH SERIES]
[FORM OF FACE OF BOND]
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY
FIRST MORTGAGE BOND, SERIES A 1985 DUE 2015
No. _________ $____________
Southern Indiana Gas and Electric Company, a corporation of
the State of Indiana (hereinafter called the "Company"), for
value received, hereby promises to pay
to____________________
______________________________________________________ or
registered assigns ____________________________________
dollars, on July 1, 2015, subject to prior redemption, at
the
office or agency of the Company in the Borough of Manhattan,
The City of New York, N.Y., in any coin or currency of the
United States of America which at the time of payment is
legal
tender for the payment of public and private debts, and to
pay
to the registered owner hereof interest thereon at the same
rate or rates of interest as the Adjustable Rate Pollution
Control Revenue Bonds, 1985 Series A (Southern Indiana Gas
and
Electric Company Project) (the "Warrick County Bonds")
issued
by Warrick County, Indiana (the "County") under the
Indenture
of Trust, dated as of July 1, 1985, as supplemented and
amended by the First Supplemental Indenture of Trust dated
as
of October 1, 2004, as amended and restated by the Amended
and
Restated Indenture of Trust dated as of October 1, 2004, and
any indenture supplemental thereto or amendatory thereof
(the
"County Indenture"), between the County and The Bank of New
York Trust Company, N.A., as successor to The Citizens
National Bank of Evansville, as trustee (the "County
Trustee")
(as determined in accordance with the County Indenture);
provided, however, that in no event shall the rate of
interest
borne by the bonds of this series exceed 11% per annum. Such
interest, in like coin or currency, payable at said office
or
agency on the same dates as interest on the Warrick County
Bonds, or if this bond shall be duly called for redemption,
until the redemption date, or if the Company shall default
in
the payment of the principal hereof, until the Company's
obligation to pay principal shall be discharged as provided
in
the Indenture, is paid until the principal sum is paid in
full
discharge under the Indenture.
The Company has agreed to pay the principal of and interest
on
the Warrick County Bonds pursuant to a Loan Agreement dated
as
July 1, 1985, as supplemented and amended by the First
Amendment to Loan Agreement dated as of October 1, 2004 (as
so
amended and as hereinafter supplemented and amended, the
"Agreement") between th
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