|
Exhibit 4.1
===============================================================================
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY
WITH
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
---------------
SUPPLEMENTAL INDENTURE
Relating to the
FIRST MORTGAGE BONDS
Series B 1993 due 2023
Dated as of August 1, 2004
===============================================================================
<PAGE>
SUPPLEMENTAL INDENTURE, dated as of August 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 and March 1, 2000, 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
May 1,
1993, as amended by the First Amendment to Loan Agreement dated
as of April 1,
1999 (the "Original Loan Agreement") with Warrick County,
Indiana (the "County")
pursuant to which the County issued $22,800,000 aggregate
principal amount of
its Adjustable Rate Environmental Improvement Bonds (Southern
Indiana Gas and
Electric Company Project) 1993 Series B of which $22,550,000
principal amount is
currently outstanding (the "County Bonds") pursuant to the
Indenture of Trust
dated as of May 1, 1993 (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
financing a portion of
the costs of acquiring, constructing and equipping certain solid
waste disposal
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 May 1, 1993 (the "May 1993 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 May 1993
Supplemental Indenture
created a series of bonds which were issued under the Mortgage
in an original
aggregate principal amount of $22,800,000 (of which $22,550,000
principal amount
is currently outstanding) and designated as "First Mortgage
Bonds, Series B 1993
due 2023" (hereinafter sometimes referred to as "Bonds of the
Thirty-sixth
Series"), which bear interest at the rate per annum set forth
in, 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 May 1993 Supplemental Indenture and set forth in the form of
such bonds in
the May 1993 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 May 1993 Supplemental
Indenture and the
Bonds of the Thirty-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 May 1993 Supplemental Indenture
and the Bonds
of the Thirty-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 Thirty-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 Thirty-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 Thirty-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 of the
Company located in the State of Indiana described in Schedule A
(which is
identified by the signature of an officer of each party hereto
at the end
thereof) hereto annexed and hereby made a part hereof 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.
And all other property, 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,
1933 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).
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 May 1, 1993 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 Thirty-sixth Series, shall mean the Amended and
Restated Indenture of Trust, dated as of August 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 Environmental Improvement Revenue Bonds
(Southern Indiana Gas and Electric Company Project) 1993
Series B are issued and secured.
LOAN AGREEMENT:
The term "Loan Agreement," when used in connection with the
Bonds of the Thirty-sixth Series, shall mean the Loan
Agreement dated as of May 1, 1993, as supplemented and
amended
by the First Amendment to Loan Agreement, dated as of April
1,
1999, and the Second Amendment to Loan Agreement dated as of
August 1, 2004 between Warrick County, Indiana, and the
Company, relating to the Adjustable Rate Environmental
Improvement Revenue Bonds (Southern Indiana Gas and Electric
Company Project) 1993 Series B, and any and all
modifications,
amendments and supplements thereof.
PART II
The form of the definitive registered bonds without coupons of
the
Bonds of the Thirty-sixth Series and the Trustee's certificate
of authentication
to be borne by such bonds included in the preamble to the May
1993 Supplemental
Indenture are hereby amended in their entirety such that the
form of the
definitive registered bonds without coupons of the Bonds of the
Thirty-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 THIRTY-SIXTH SERIES]
[FORM OF FACE OF BOND]
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY
FIRST MORTGAGE BOND, SERIES B 1993 DUE 2023
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 May 1, 2023, 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
Environmental
Improvement Revenue Bonds (Southern Indiana Gas and Electric
Company Project) 1993 Series B (the "Warrick County Bonds")
issued by Warrick County, Indiana (the "County") under the
Indenture of Trust, dated as of May 1, 1993, as amended and
restated by the Amended and Restated Indenture of Trust
dated
as of August 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 10% 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
May 1, 1993, as supplemented and amended by the First
Amendment to Loan Agreement dated as of April 1, 1999 and
the
Second Amendment to Loan Agreement dated as of August 1,
2004
(as so amended and as hereinafter supplemented and amended,
the "Agreement") between the Company and the County.
Pursuant
to the Granting Clause of the County Indenture, this bond is
issued to the County Trustee to secure any and all
obligations
of the Company under the Agreement with respect to payment
of
the County Bonds. Payment of principal of, or interest on,
the
County Bonds shall constitute payments on this bond as
further
provided herein and in the Supplemental Indenture dated May
1,
1993, as supplemented and amended by the Supplemental
Indenture dated as of August 1, 2004 pursuant to which this
amended bond has been iss
| 
