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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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") betwe
