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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
4.50%
Series B 1998 due 2020
and
5.00%
Series B 1998 due 2030
Dated as of April 1, 2005
___________________________________________________________________________________________________________
Prepared by and
upon
recordation return
to:
William M.
Libit
Chpman and Cutler LLP
111 West Monroe Street
Chicago, Illinois 60603
Supplemental Indenture Series 2005
2128593 * WML * 2/14/08
Supplemental
Indenture, dated as of April 1, 2005, 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, August 1, 2004 and October 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; and
Whereas,
the Company entered into a Loan Agreement dated as of March 1,
1998, as supplemented and amended by the First Amendment to
Loan Agreement dated as of April 1, 2005 (the “Loan
Agreement” ), with the Indiana Development Finance
Authority (the “Authority” ) pursuant to
which the Authority issued $26,640,000 aggregate principal
amount of its Pollution Control Refunding Revenue Bonds, 1998
Series B (Southern Indiana Gas and Electric Company Project)
of which $26,640,000 principal amount is currently outstanding
(the “Authority Bonds” ), pursuant to a
resolution of the governing body of the Authority adopted on
February 17, 1998 (the “Resolution” ) and
in accordance with the terms of an Indenture of Trust, dated
as of March 1, 1998, as supplemented and amended by the
First Supplemental Indenture of Trust, dated as of January 1,
1999, the Second Supplemental Indenture of Trust, dated as of
April 1, 2003, and the Third Supplemental Indenture of
Trust, dated as of April 1, 2005 (the “Authority
Indenture” ), between the Authority and The Bank of
New York Trust Company, N.A., as successor to Citizens Trust
Company of Indiana, National Association, as trustee (the
“Authority Trustee” ), in order to
provide funds to loan to the Company for the purpose of
refunding (i) the City of Boonville, Indiana Pollution Control
Revenue Bonds, 1973 Series (Southern Indiana Gas and Electric
Company Project) originally issued in the aggregate principal
amount of $5,640,000, of which $4,640,000 principal amount was
outstanding at the time of issuance of the Authority Bonds,
which were issued for the purpose of financing the costs of
acquiring, constructing and equipping certain air and water
pollution control
facilities
located at the Company’s Culley Steam Electric
Generating Station and (ii) the City of Mount Vernon, Indiana
Pollution Control Revenue Bonds, 1978 Series A (Southern
Indiana Gas and Electric Company Project) in the aggregate
principal amount of $22,000,000, all of which was outstanding
at the time of issuance of the Authority Bonds, which were
issued for the purpose of financing the costs of acquiring,
constructing, equipping and installing certain air and water
pollution control, sewage and solid waste facilities located
at the Company’s A.B. Brown Facility; and
Whereas,
in order for the Company to obtain a bond insurance policy for
the Authority Bonds, it was necessary for the Company to enter
into an agreement with Ambac Assurance Corporation pursuant to
which the Company agreed to use its best efforts to obtain all
required approvals and deliver its bonds to the Authority
Trustee to secure the Company’s obligations relating to
the Authority Bonds under the Loan Agreement; and
Whereas,
in connection with the foregoing, it is necessary for the
Authority to amend the Authority Indenture and the Loan
Agreement to allow for the Company to issue its bonds;
and
Whereas,
the Company by appropriate company action in conformity with
the terms of the Indenture has duly determined to create two
new series of bonds which shall be issued under the Indenture
in an aggregate principal amount of $26,640,000 and be
designated as (i) “First Mortgage Bonds, 4.50%
Series B 1998 due 2020” in an aggregate principal amount
of $4,640,000 (hereinafter sometimes referred to as
“Bonds of the Fortieth Series” ), the
bonds of which series are to bear interest at the rate per
annum set forth in the title thereof and are subject to
certain optional and mandatory redemption rights and
obligations set forth herein and (ii) “First
Mortgage Bonds, 5.00% Series B 1998 due 2030” in an
aggregate principal amount of $22,000,000 (hereinafter
sometimes referred to as “Bonds of the Forty-first
Series” ), the bonds of which series are to bear
interest at the rate per annum set forth in the title thereof
and are subject to certain optional and mandatory redemption
rights and obligations set forth herein; and
Whereas,
all things necessary to make the Bonds of the Fortieth Series
and the Bonds of the Forty-first Series, when authenticated by
the Trustee and issued as in the Indenture provided, the
valid, binding and legal obligations of the Company, entitled
in all respects to the security of the Indenture, have been
done and performed, and the creation, execution and delivery
of this Supplemental Indenture has in all respects been duly
authorized; and
Whereas,
the Company and the Trustee deem it advisable to enter into
this Supplemental Indenture for the purposes above stated and
for the purpose of describing the Bonds of the Fortieth Series
and the Bonds of the Forty-first Series, and of providing the
terms and conditions of redemption thereof;
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
The
forms of the definitive registered bonds without coupons of
the Bonds of the Fortieth 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 Fortieth Series]
[form
of face of bond]
Southern Indiana Gas and Electric Company
First Mortgage Bond, 4.50% Series B 1998 Due
2020
No. _____
$4,640,000
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 Four Million Six Hundred Forty Thousand
dollars, on March 1, 2020 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 rate of four and one-half
per centum (4.50%) per annum, same as the rate of interest on
the Pollution Control Refunding Revenue Bonds, 1998 Series B
(Southern Indiana Gas and Electric Company Project) (the
“Authority Bonds” ) due March 1, 2020 and
issued by the Indiana Development Finance Authority (the
“Authority” ) under the Indenture of
Trust, dated as of March 1, 1998, as supplemented and amended
by the First Supplemental Indenture of Trust dated as of
January 1, 1999, as supplemented and amended by the Second
Supplemental Indenture of Trust dated as of April 1,
2003, as
supplemented
and amended by the Third Supplemental Indenture of Trust dated
as of April 1, 2005, and any indenture supplemental thereto or
amendatory thereof (the “Authority
Indenture” ), between the Authority and The Bank of
New York Trust Company, N.A., as successor to Citizens Trust
Company of Indiana, National Association, as trustee (the
“Authority Trustee” ) (as determined in
accordance with the Authority Indenture). Such
interest, in like coin or currency, payable at said office or
agency on the same dates as interest on the Authority 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 hereinafter defined Mortgage, is paid until the principal
sum is paid in full discharge under the Mortgage.
The
Company has agreed to pay the principal of, premium, if any,
and interest on the Authority Bonds pursuant to a Loan
Agreement dated as March 1, 1998, as supplemented and amended
by the First Amendment to Loan Agreement dated as of April 1,
2005 (as so amended and as hereinafter supplemented and
amended, the “Agreement” ) between the
Company and the Authority. Pursuant to the Granting
Clause of the Authority Indenture, this bond is issued to the
Authority Trustee to secure any and all obligations of the
Company under the Agreement with respect to payment of the
Authority Bonds. Payment of principal of, premium,
if any, or interest on, the Authority Bonds shall constitute
payments on this bond as further provided herein and in the
Supplemental Indenture dated April 1, 2005, pursuant to which
this bond has been authorized (the “Supplemental
Indenture” ).
Upon
any payment of the principal of, premium, if any, and interest
on, all or any portion of the Authority Bonds, whether at
maturity or otherwise or upon provision for the payment
thereof having been made in accordance with Section 5.01
of the Authority Indenture, a principal amount of this bond
equal to the principal amount of such Authority Bonds shall,
to the extent of such payment of principal, premium, if any,
and interest, be deemed paid and the obligation of the Company
thereunder to make such payment shall be discharged to such
extent and, in the case of the payment of principal, such
bonds shall be surrendered to the Company for cancellation as
provided in Section 7.13 of the Authority
Indenture. The Trustee (as hereinafter defined) may
at any time and all times conclusively assume that the
obligation of the Company to make payments under the Agreement
with respect to the principal of, and interest on, the
Authority Bonds, so far as such payments at the time
have
become
due, has been fully satisfied and discharged pursuant to the
foregoing sentence unless and until the Trustee shall have
received a written notice from the Authority Trustee signed by
one of its officers stating (i) that timely payment of
principal of, or interest on, the Authority Bonds has not been
made, (ii) that the Company is in arrears as to the
payments required to be made by it to the Authority Trustee
pursuant to the Agreement, and (iii) the amount of the
arrearage.
The
provisions of this bond are continued on the reverse hereof
and such continued provisions shall for all purposes have the
same effect as though fully set forth at this
place.
This
bond shall not become obligatory until Deutsche Bank Trust
Company Americas, the Trustee under the Mortgage, or its
successor thereunder, shall have signed the form of
certificate endorsed hereon.
In
Witness Whereof, Southern Indiana Gas and Electric Company has
caused this bond to be signed in its name by its President or
a Vice President, by his signature or a facsimile thereof, and
a facsimile of its corporate seal to be imprinted hereon,
attested by its Secretary or an Assistant Secretary, by his
signature or a facsimile thereof.
Dated: ______________
SOUTHERN
INDIANA GAS AND
ELECTRIC
COMPANY
By:___________________________
___________________________
Attest:
_____________________________
Secretary
[Form
of Trustee’s Certificate]
This
bond is one of the bonds of the series designated therein,
described in the within-mentioned Mortgage.
Deutsche Bank Trust
Company Americas,
as
Trustee
By:
____________________________________
Authorized
Officer
[form
of reverse of bond]
Southern Indiana Gas and Electric Company
First Mortgage Bond, 4.50% Series B 1998 Due
2020
This
bond is one of an issue of First Mortgage Bonds of the
Company, issuable in series, and is one of the series
designated in the title hereof, all issued and to be issued
under and equally secured (except as to any sinking fund
established in accordance with the provisions of the Mortgage
hereinafter mentioned for the bonds of any particular series)
by an Indenture of Mortgage and Deed of Trust, dated as of
April 1, 1932, executed by the Company to Deutsche Bank
Trust Company Americas, formerly known as Bankers Trust
Company, as Trustee (the “Trustee” ), as
amended and supplemented by indentures supplemental thereto
(herein referred to as the “Mortgage” ),
reference is made for a description of the property mortgaged
and pledged, the nature and extent of the security, the rights
of the holders of the bonds in respect thereof and the terms
and conditions upon which the bonds are secured.
The
bonds of this series are issued and to be issued in order to
evidence and secure a loan made by the Authority to the
Company pursuant to a Loan Agreement dated as of March 1,
1998, as supplemented and amended. In order to
provide moneys to fund such loan, the Authority has issued the
Authority Bonds under and pursuant to the Authority
Indenture. Payments made by the Company of
principal, premium, if any, and interest on the bonds of this
series are intended to be sufficient to permit payments of
principal, premium, if any, and interest to be made on the
Authority Bonds. Upon certain terms and conditions,
moneys held under and pursuant to the Authority Indenture,
including moneys so held from the proceeds of the sale of the
Authority Bonds or earnings on the investment of such
proceeds, or redemption of the Authority Bonds shall be
credited to or used for the payment of the bonds of this
series and to the extent so credited or used shall satisfy a
like amount otherwise due hereunder.
The
bonds of this series are subject to optional and mandatory
redemption, in whole or in part, as the case may be, on each
date that Authority
Bonds
are to be redeemed. The principal amount of the
bonds of this series to be redeemed on any such date shall be
equal to the principal amount of Authority Bonds called for
redemption on that date. All redemptions of bonds
of this series shall be at the redemption prices that
correspond to the redemption prices for the Authority
Bonds.
If
and whenever the Trustee or the Company is notified that an
event of default has occurred and is continuing under
Section 6.01(v) of the Authority Indenture, and
provided that the principal of all Authority Bonds
then outstanding and the interest thereon shall have been
declared immediately due and payable, then not later than two
business days following the occurrence of the foregoing
events, the Company shall, upon not less than 30 days’
and not more than 45 days’ prior written notice given in
the manner provided in the Mortgage, call for redemption on a
redemption date selected by it not later than 45 days
following the date of such notice, all of the bonds of this
series then outstanding, and shall on such redemption date
redeem the same at a price equal to 100% of the principal
amount thereof together with accrued interest thereon to the
redemption date, except that such requirement or redemption
shall be deemed to be waived if, prior to the date fixed for
such redemption of the bonds of this series, such event of
default is waived or cured.
In
case a completed default, as defined in the Mortgage, shall
occur, the principal of this bond and all other bonds of the
Company at any such time outstanding under the Mortgage may be
declared or may become due and payable, upon the conditions
and in the manner and with the effect p
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