Exhibit 4.1
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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
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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 be
