Southern Indiana Gas and Electric Company with Deutsche Bank Trust Company Americas,
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
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:
Xxxxxxx
X.
Xxxxx
Chpman
and Xxxxxx LLP
000
Xxxx Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
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 Xxxxxx Steam Electric Generating Station and (ii) the
City of Mount Xxxxxx, 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
X.X. Xxxxx 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
-2-
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.
-3-
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
-4-
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
-5-
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
-6-
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
-7-
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 provided in the Mortgage. The
Mortgage provides that such declaration may in certain events be waived by
the
holders of a majority in principal amount of the bonds entitled to vote then
outstanding.
This
bond, subject to the limitations with regard thereto contained in the Authority
Indenture and Section 5.05 of the Agreement, is transferable as prescribed
in the Mortgage by the registered owner hereof in person, or by his duly
authorized attorney, at the office or agency of the Company in the Borough
of
Manhattan, The City of New York, N.Y., upon surrender and cancellation of this
bond, and thereupon, a new fully registered bond of the same series for a like
principal amount will be issued to the transferee in exchange thereof as
provided in
the
Mortgage, and upon payment, if the Company shall require it, of the charges
therein prescribed. The Company and the Trustee may deem and treat
the person in whose name this bond is registered as the absolute owner for
the
purpose of receiving payment of or on account of the principal and interest
due
hereon and for all other purposes.
-8-
As
provided in Section 7.13 of the Authority Indenture, from and after the
Release Date (as defined in the Authority Indenture), the obligations of the
Company with respect to this bond shall be deemed to be satisfied and
discharged, this bond shall cease to secure in any manner the Company’s
obligations under the Agreement with respect to the payment of any Authority
Bonds outstanding under the Authority Indenture, and, pursuant to
Section 7.13 of the Authority Indenture, the Authority Trustee shall
forthwith deliver this Bond to the Company for cancellation.
The
Bonds
of this series are issuable as registered bonds without coupons in denominations
of $1,000 and authorized multiples thereof. In the manner and upon
payment of the charges prescribed in the Mortgage, registered bonds without
coupons of this series may be exchanged for a like aggregate principal amount
of
fully registered bonds without coupons of other authorized denominations of
the
same series, upon presentation and surrender thereof, for cancellation, to
the
Trustee at its principal corporate trust office in the Borough of Manhattan,
The
City of New York, N.Y.
No
recourse shall be had for the payment of the principal of or interest on this
bond against any incorporator or any past, present or future subscriber to
the
capital stock, stockholder, officer or director of the Company or of any
predecessor or successor corporation, either directly or through the Company
or
any predecessor or successor corporation, under any rule of law, statute or
constitution or by the enforcement of any assessment or otherwise, all such
liability of incorporators, subscribers, stockholders, officers and directors
being released by the holder or owner hereof by the acceptance of this bond
and
being likewise waived and released by the terms of the Mortgage.
[end
of
form of bond]”
-9-
The
forms
of the definitive registered bonds without coupons of the Bonds of the
Forty-first 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 Forty-first Series]
[form
of
face of bond]
Southern
Indiana Gas and Electric Company
First
Mortgage Bond, 5.00% Series B 1998 Due 2030
No. ____ $22,000,000
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
Twenty Two Million dollars, on March 1, 2030 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 five per centum (5.00%) 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, 2030 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
-10-
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.
-11-
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
-12-
[form
of
reverse of bond]
Southern
Indiana Gas and Electric Company
First
Mortgage Bond, 5.00% Series B 1998 Due 2030
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
-13-
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 provided in the Mortgage. The
Mortgage provides that such declaration may in certain events be waived by
the
holders of a majority in principal amount of the bonds entitled to vote then
outstanding.
This
bond, subject to the limitations with regard thereto contained in the Authority
Indenture and Section 5.05 of the Agreement, is transferable as prescribed
in the Mortgage by the registered owner hereof in person, or by his duly
authorized attorney, at the office or agency of the Company in the Borough
of
Manhattan, The City of New York, N.Y., upon surrender and cancellation of this
bond, and thereupon, a new fully registered bond of the same series for a like
principal amount will be issued to the transferee in exchange thereof as
provided in the Mortgage, and upon payment, if the Company shall require it,
of
the charges therein prescribed. The Company and the Trustee may deem
and treat the person in whose name this bond is registered as the absolute
owner
for the purpose of receiving payment of or on account of the principal and
interest due hereon and for all other purposes.
-14-
As
provided in Section 7.13 of the Authority Indenture, from and after the
Release Date (as defined in the Authority Indenture), the obligations of the
Company with respect to this bond shall be deemed to be satisfied and
discharged, this bond shall cease to secure in any manner the Company’s
obligations under the Agreement with respect to the payment of any Authority
Bonds outstanding under the Authority Indenture, and, pursuant to
Section 7.13 of the Authority Indenture, the Authority Trustee shall
forthwith deliver this Bond to the Company for cancellation.
The
Bonds
of this series are issuable as registered bonds without coupons in denominations
of $1,000 and authorized multiples thereof. In the manner and upon
payment of the charges prescribed in the Mortgage, registered bonds without
coupons of this series may be exchanged for a like aggregate principal amount
of
fully registered bonds without coupons of other authorized denominations of
the
same series, upon presentation and surrender thereof, for cancellation, to
the
Trustee at its principal corporate trust office in the Borough of Manhattan,
The
City of New York, N.Y.
No
recourse shall be had for the payment of the principal of or interest on this
bond against any incorporator or any past, present or future subscriber to
the
capital stock, stockholder, officer or director of the Company or of any
predecessor or successor corporation, either directly or through the Company
or
any predecessor or successor corporation, under any rule of law, statute or
constitution or by the enforcement of any assessment or otherwise, all such
liability of incorporators, subscribers, stockholders, officers and directors
being released by the holder or owner hereof by the acceptance of this bond
and
being likewise waived and released by the terms of the Mortgage.
[end
of
form of bond]”
Part II
Section
1. Bonds of the Fortieth Series shall mature on the
date set forth in the form of bond relating hereto hereinbefore set forth,
shall
bear interest at the rate of four and one-half per centum (4.50%) per annum,
same as the rate of interest borne by the Authority Bonds. Such
interest, payable on the same dates as interest on the Authority Bonds, and
all
bonds of said series shall be designated as hereinbefore in the seventh Whereas
clause set forth. Both principal of and interest on said bonds shall
be payable, to the extent specified in the form of bond hereinabove set forth,
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, at the
office or agency of the Company in the Borough of Manhattan,
-15-
The
City
of New York, N.Y. Definitive bonds of said series may be issued,
originally or otherwise, only as registered bonds without coupons; and they
and
the Trustee’s certificate of authentication shall be substantially in the forms
hereinbefore recited, respectively. Definitive registered Bonds of
the Fortieth Series may be issued in the denomination of $1,000 and in such
other denominations (in multiples of $1,000) as the Board of Directors of the
Company shall approve, and execution and delivery to the Trustee for
authentication shall be conclusive evidence of such approval. In the
manner and upon payment of the charges prescribed in the Indenture, registered
bonds without coupons of said series may be exchanged for a like aggregate
principal amount of fully registered bonds without coupons of other authorized
denominations of the same series, upon presentation and surrender thereof for
cancellation to the Trustee at its principal corporate trust office in the
Borough of Manhattan, The City of New York, N.Y. However,
notwithstanding the provisions of Section 12 of the Indenture, no charge
shall be made upon any transfer or exchange of bonds of said series other than
for any tax or taxes or other governmental charge required to be paid by the
Company. The form of the temporary bonds of said series shall be in
substantially the form of the form of registered bond hereinbefore recited
with
such appropriate changes therein as are required on account of the temporary
nature thereof. Said temporary bonds of said series shall be in
registered form without coupons, registrable as to principal, and shall be
exchangeable for definitive bonds of said series when prepared.
The
person in whose name any registered bond without coupons of the Fortieth Series
is registered at the close of business on any record date (as hereinbelow
defined) with respect to any interest payment date shall be entitled to receive
the interest payable on such interest payment date notwithstanding the
cancellation of such registered bond upon any transfer or exchange thereof
subsequent to the record date and prior to such interest payment date, except
if
and to the extent the Company shall default in the payment of the interest
due
on such interest payment date, in which case such defaulted interest shall
be
paid to the person in whose name such bond is registered either at the close
of
business on the day preceding the date of payment of such defaulted interest
or
on a subsequent record date for such payment if one shall have been established
as hereinafter provided. A subsequent record date may be established
by or on behalf of the Company by notice mailed to the holders of bonds not
less
than ten days preceding such record date, which record date shall be not more
than thirty days prior to the subsequent interest payment date. The
term “record date” as used in this Section with respect to any regular interest
payment date shall mean the Interest Payment Date (as defined in the Authority
Indenture).
Except
as
provided in this Section, every registered bond without coupons of the Fortieth
Series shall be dated and shall bear interest as provided in Section 10 of
the Indenture; provided, however, that so long as there is no existing
default in the payment of interest on the bonds, the holder of any bond
authenticated by the Trustee between the record date for any interest payment
date and such interest payment date shall not be entitled to the payment of
the
interest due on such interest payment date and shall have no claim against
the
Company with respect thereto; and provided, further, that, if and to
the extent the Company shall default in the payment of the interest due on
such
interest payment date, then any such bond shall bear interest from the interest
payment date to which interest has been paid.
-16-
Upon
any
payment of the principal of 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, the Bonds of the Fortieth Series in a principal amount equal to
the
principal amount of such Authority Bonds shall, to the extent of such payment
of
principal 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 of the Fortieth Series shall be
surrendered to the Company for cancellation as provided in and subject to the
terms of Section 7.13 of the Authority Indenture. The Trustee
may at any time and all times conclusively assume that the obligation of the
Company under the Agreement to make payments 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.
Section
2. Bonds of the Forty-first Series shall mature on
the date set forth in the form of bond relating hereto hereinbefore set forth,
shall bear interest at the rate of five per centum (5.00%) per annum, same
as
the rate of interest borne by the Authority Bonds. Such interest,
payable on the same dates as interest on the Authority Bonds, and all bonds
of
said series shall be designated as hereinbefore in the seventh Whereas clause
set forth. Both principal of and interest on said bonds shall be
payable, to the extent specified in the form of bond hereinabove set forth,
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, at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, N.Y. Definitive bonds of said series may be issued, originally
or otherwise, only as registered bonds without coupons; and they and the
Trustee’s certificate of authentication shall be substantially in the forms
hereinbefore recited, respectively. Definitive registered Bonds of
the Forty-first Series may be issued in the denomination of $1,000 and in such
other denominations (in multiples of $1,000) as the Board of Directors of the
Company shall approve, and execution and delivery to the Trustee for
authentication shall be conclusive evidence of such approval. In the
manner and upon payment of the charges prescribed in the Indenture, registered
bonds without coupons of said series may be exchanged for a like aggregate
principal amount of fully registered bonds without coupons of other authorized
denominations of the same series, upon presentation and surrender thereof for
cancellation to the Trustee at its principal corporate trust office in the
Borough of Manhattan, The City of New York, N.Y. However,
notwithstanding the provisions of Section 12 of the Indenture, no charge
shall be made upon any transfer or exchange of bonds of said series other than
for any tax or taxes or other governmental charge required to be paid by the
Company. The form of the temporary bonds of said series shall be in
substantially the form of the form of registered bond hereinbefore recited
with
such appropriate changes therein as are required on account of the temporary
nature thereof. Said temporary bonds of said series shall be in
registered form without coupons, registrable as to principal, and shall be
exchangeable for definitive bonds of said series when prepared.
-17-
The
person in whose name any registered bond without coupons of the Forty-first
Series is registered at the close of business on any record date (as hereinbelow
defined) with respect to any interest payment date shall be entitled to receive
the interest payable on such interest payment date notwithstanding the
cancellation of such registered bond upon any transfer or exchange thereof
subsequent to the record date and prior to such interest payment date, except
if
and to the extent the Company shall default in the payment of the interest
due
on such interest payment date, in which case such defaulted interest shall
be
paid to the person in whose name such bond is registered either at the close
of
business on the day preceding the date of payment of such defaulted interest
or
on a subsequent record date for such payment if one shall have been established
as hereinafter provided. A subsequent record date may be established
by or on behalf of the Company by notice mailed to the holders of bonds not
less
than ten days preceding such record date, which record date shall be not more
than thirty days prior to the subsequent interest payment date. The
term “record date” as used in this Section with respect to any regular interest
payment date shall mean the Interest Payment Date (as defined in the Authority
Indenture).
Except
as
provided in this Section, every registered bond without coupons of the
Forty-first Series shall be dated and shall bear interest as provided in
Section 10 of the Indenture; provided, however, that so long as
there is no existing default in the payment of interest on the bonds, the holder
of any bond authenticated by the Trustee between the record date for any
interest payment date and such interest payment date shall not be entitled
to
the payment of the interest due on such interest payment date and shall have
no
claim against the Company with respect thereto; and provided, further,
that, if and to the extent the Company shall default in the payment of the
interest due on such interest payment date, then any such bond shall bear
interest from the interest payment date to which interest has been
paid.
Upon
any
payment of the principal of 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, the Bonds of the Forty-first Series in a principal amount equal
to
the principal amount of such Authority Bonds shall, to the extent of such
payment of principal 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 of the Forty-first Series
shall be surrendered to the Company for cancellation as provided in and subject
to the terms of Section 7.13 of the Authority Indenture. The
Trustee may at any time and all times conclusively assume that the obligation
of
the Company under the Agreement to make payments 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.
-18-
Part III
Miscellaneous
Section 1.
The Company covenants that the provisions of Section 36A of the
Indenture and of Section 1.02 of the Supplemental Indenture dated as of
July 1, 1948, which are to remain in effect so long as any bonds of the
series referred to in said Section shall be outstanding under the Indenture,
shall remain in full force and effect so long as any Bonds of the Fortieth
Series and Bonds of the Forty-first Series shall be outstanding under the
Indenture.
Section 2.
Except as herein otherwise expressly provided, no duties, responsibilities
or liabilities are assumed, or shall be construed to be assumed, by the Trustee
by reason of this Supplemental Indenture, other than as set forth in the
Mortgage. The Trustee shall not be responsible for the recitals
herein or in the bonds (except the Trustee’s certificate of authentication), all
of which are made by the Company solely.
Section 3.
As supplemented and amended by this Supplemental Indenture, the Mortgage
is
in all respects ratified and confirmed, and the Mortgage and this Supplemental
Indenture shall be read, taken and construed as one and the same
instrument.
Section 4.
This Supplemental Indenture may be executed in several counterparts and
all
such counterparts executed and delivered, each as an original, shall constitute
but one and the same instrument.
-19-
In
Witness Whereof, Southern Indiana Gas and Electric Company, party of the first
part hereto, and Deutsche Bank Trust Company Americas, party of the second
part
hereto, have caused these presents to be executed in their respective names
by
their respective Presidents or one of their Vice Presidents or Assistant Vice
Presidents and their respective seals to be hereunto affixed and attested by
their respective Secretaries or one of their Assistant Secretaries or
Associates, all as of the day and year first above written.
(Seal)
SOUTHERN
INDIANA GAS AND ELECTRIC
COMPANY
By
___________________________________
Xxxxxx X. Xxxxxxx
Vice President and Treasurer
Attest: _________________________________
Xxxxxx X. Xxxxxxx
Vice President, General Counsel and
Assistant Secretary
(Seal)
DEUTSCHE
BANK TRUST COMPANY AMERICAS
|
|
By:_________________________________________
|
Xxxxx
Xxxxxxx
Vice
President
Attest:
__________________________________________
Xxxxx Xxxxxxxxxxxx
Associate
-20-
State
of
Indiana )
)
SS
County
of
Vanderburgh
)
On
this
___ day of _____, 2005, before me, the undersigned, a notary public in and
for
the county and state aforesaid, personally came Xxxxxx X. Xxxxxxx, to me known,
who being by me duly sworn, did depose and say that he resides at 0000 Xxxxx
Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000; that he is Vice President and Treasurer
of
Southern Indiana Gas and Electric Company, one of the corporations described
in
and which executed the foregoing instrument; that he knows the seal of the
said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation
and that he signed his name thereto by like order; and the said Xxxxxx X.
Xxxxxxx acknowledged the execution of the foregoing instrument on behalf of
the
said corporation as the voluntary act and deed of the said corporation for
the
uses and purposes therein set forth.
In
Witness Whereof, I have hereunto set my hand and seal the day and year first
above written.
____________________________________________
Notary
Public
(Seal)
My
Commission Expires: _____ ___, 20__
My
County
of Residence is: _______________________________________
State
of
New York
)
)
SS
County
of
New
York
)
On
this
___ day of _____, 2005, before me, the undersigned, a notary public in and
for
the county and state aforesaid, personally came Xxxxx Xxxxxxx, to me known,
who
being by me duly sworn, did depose and say that she resides at 000 Xxxx 00xx
Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000; that she is Vice President of Deutsche
Bank Trust Company Americas, one of the corporations described in and which
executed the foregoing instrument; that she knows the seal of the said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation
and that she signed her name thereto by like order; and the said Xxxxx Xxxxxxx
acknowledged the execution of the foregoing instrument on behalf of the said
corporation as the voluntary act and deed of the said corporation for the uses
and purposes therein set forth.
In
Witness Whereof, I have hereunto set my hand and seal the day and year first
above written.
__________________________________________
Notary
Public
(Seal)
My
Commission Expires: _____ ___, 20__
My
County
of Residence is:
_______________________________________
