THE CINCINNATI GAS & ELECTRIC COMPANY
and
THE BANK OF NEW YORK,
Trustee
Thirty-eighth Supplemental Indenture
Dated as of February 1, 2001
THIRTY-EIGHTH SUPPLEMENTAL INDENTURE, dated as of February 1, 2001, between The
Cincinnati Gas & Electric Company, a corporation of the State of Ohio (the
Company), and The Bank of New York, a New York banking corporation, as Trustee
(the Trustee). WHEREAS, the Company has executed and delivered to the Trustee a
certain Indenture, dated as of August 1, 1936 (the First Mortgage), to secure
the payment of the principal of and interest on an issue of bonds of the
Company, unlimited in aggregate principal amount (the Bonds);
WHEREAS, the Company and the Trustee have amended and supplemented the First
Mortgage by means of thirty-seven supplemental indentures (the First Mortgage as
amended);
WHEREAS, Article Eighteen of the First Mortgage as amended provides that the
Company and the Trustee may from time to time enter into one or more indentures
supplemental to the First Mortgage for the purpose of curing any ambiguity or of
curing, correcting or supplementing any defective or inconsistent provisions
contained in the First Mortgage or in any supplemental indenture; WHEREAS, the
Company has requested the Trustee, pursuant to Section 1 of Article Eighteen of
the First Mortgage as amended, to enter into this Thirty-eighth Supplemental
Indenture for the purpose of curing an ambiguity or of curing, correcting or
supplementing defective or inconsistent provisions in Section 3 of Article
Eleven of the First Mortgage as amended.
ARTICLE ONE
Amendments of Section 3 of Article Eleven
SECTION 1. Clause (a) of subdivision (3) of Section 3 of Article Eleven of the
First Mortgage as amended is hereby restated to read as follows:
(a) the principal amount of any obligations simultaneously delivered to the
Trustee consisting of obligations secured by purchase money mortgage upon the
property to be released, Bonds outstanding hereunder, or outstanding prior lien
bonds; plus the principal amount of any Bonds that the Company then waives its
right to have authenticated and delivered hereunder pursuant to Section 1 of
Article Six hereof;
SECTION 2. Section 3 of Article Eleven of the First Mortgage as amended is
hereby amended to add the following paragraph at the end of such Section 3:
In case the release of property is based upon the waiver by the Company of its
right to have Bonds authenticated and delivered pursuant to Section 1 of Article
Six hereof, the Trustee shall also be furnished with (a) a waiver signed by an
officer of the Company stating the principal amount and series of the paid,
retired, redeemed, cancelled or surrendered Bonds the use of which for the
authentication and delivery of additional Bonds under Section 1 of Article Six
the Company is then electing to waive, (b) the Treasurer's certificate required
by Section 1 of Article Six, (c) the further Treasurer's certificate required by
Section 1 of Article Six, and, (d) if any of the paid, retired, redeemed,
cancelled or surrendered Bonds identified in such waiver have not been at some
time held by the public, the net earnings certificate required by Section 1 of
Article Six. The paid, retired, redeemed, cancelled or surrendered Bonds
identified in such waiver shall thereafter be deemed to have been used as the
basis for the issuance of additional Bonds under Section 1 of Article Six, and
such additional Bonds shall be deemed to have been canceled under Section 3 of
Article Eleven to obtain the release of such property.
ARTICLE TWO
Miscellaneous
SECTION 1. The provisions of this Thirty-eighth Supplemental Indenture shall
become effective immediately upon the execution and delivery hereof. From and
after such time this Thirty-eighth Supplemental Indenture shall form a part of
the First Mortgage as amended and all the terms and conditions hereof shall be
deemed to be part of the terms of the First Mortgage as amended, as fully and
with the same effect as if they had been set forth in the First Mortgage as
originally executed. Except as modified or amended by this Thirty-eighth
Supplemental Indenture, the First Mortgage as amended shall remain and continue
in full force and effect in accordance with the terms and provisions thereof,
and all the covenants, conditions, terms and provisions of the First Mortgage as
amended with respect to the Trustee shall remain in full force and effect and be
applicable to the Trustee under this Thirty-eighth Supplemental Indenture in the
same manner as though set out herein at length. All representations and recitals
contained in this Thirty-eighth Supplemental Indenture are made by and on behalf
of the Company, and the Trustee is in no way responsible therefor or for any
statement therein contained.
SECTION 2. The terms defined in Article One of the First Mortgage as amended,
when used in this Thirty-eighth Supplemental Indenture shall, respectively, have
the meanings set forth in such Article.
SECTION 3. This Thirty-eighth Supplemental Indenture may be executed in several
counterparts and each counterpart shall be an original instrument.
IN WITNESS WHEREOF, THE CINCINNATI GAS & ELECTRIC COMPANY has caused this
instrument to be signed on its behalf by one of its Vice Presidents or its
Treasurer and its corporate seal to be hereunto affixed and attested by an
Assistant Secretary, and THE BANK OF NEW YORK has caused this instrument to be
signed on its behalf by a Vice President, its Secretary or an Assistant Vice
President or an Assistant Secretary and its corporate seal to be hereunto
affixed and attested by a Vice President, an Assistant Vice President or an
Assistant Treasurer, as of the day and year first above written.
THE CINCINNATI GAS & ELECTRIC COMPANY,
By /s/ Lisa D. Gamblin
----------------------
Vice President and Treasurer
Attest: /s/ Julia S. Janson
--------------------
Assistant Secretary
Signed and acknowledged in our presence on behalf of
THE CINCINNATI GAS & ELECTRIC COMPANY
/s/ Cecilia A. Temple
---------------------
/s/ T. M. O'Neill
-----------------
THE BANK OF NEW YORK,
By /s/ Terence Rawlings
---------------------
Assistant Vice President
Attest: /s/ Michael Pitfick
--------------------
Assistant Treasurer
Signed and acknowledged in our presence on behalf of
THE BANK OF NEW YORK
/s/ Suzanne Young
-----------------
/s/ Michael C. Daly
-------------------
STATE OF OHIO )
) ss.:
COUNTY OF HAMILTON )
On this 1st day of February, 2001, LISA D. GAMBLIN and JULIA S. JANSON came
before me and acknowledged that they signed and sealed this instrument as Vice
President and Assistant Secretary, respectively, of THE CINCINNATI GAS &
ELECTRIC COMPANY and that the same were free acts; and such Vice President and
Treasurer, being duly sworn, said that she resides in Hamilton County, Ohio,
that she is a Vice President and Treasurer of the corporation and that the seal
affixed hereto is its corporate seal.
IN WITNESS WHEREOF I have signed my name and affixed my official seal.
/s/ Cecilia A. Temple
---------------------
CECILIA A. TEMPLE
Notary Public, State of Ohio
My Commission Expires 09-28-03
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 1st day of February, 2001, TERENCE RAWLINS and MICHAEL PITFICK came
before me and acknowledged that they signed and sealed this instrument as
Assistant Vice President and Assistant Treasurer, respectively, of THE BANK OF
NEW YORK and that the same were free acts; and such Assistant Vice President and
Assistant Treasurer, being duly sworn, said that he resides in Sayreville, N.
J., that he is an Assistant Vice President and Assistant Treasurer of THE BANK
OF NEW YORK and that the seal affixed hereto is its corporate seal.
IN WITNESS WHEREOF I have signed my name and affixed my official seal.
/s/ William J. Cassels
-------------------
WILLIAM J. CASSELS
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Commission Expires May 16, 2002
