EXHIBIT 10.101
LG&E CAPITAL CORP.
AND
THE BANK OF NEW YORK,
as Trustee
------------------------
SECOND SUPPLEMENTAL INDENTURE
Dated as of September 1, 1999
TO
INDENTURE
Dated as of January 15, 1998
------------------------
Floating Rate Notes, Series B, Due 2000
SECOND SUPPLEMENTAL INDENTURE, dated as of the first day of September,
1999 (the "SECOND SUPPLEMENTAL INDENTURE"), between LG&E CAPITAL CORP., a
corporation duly organized and existing under the laws of the State of Kentucky
(hereinafter sometimes referred to as the "COMPANY"), and The Bank of New York,
a New York banking corporation, as trustee (hereinafter sometimes referred to as
the "TRUSTEE") (under the Indenture dated as of January 15, 1998, as
supplemented, between the Company and the Trustee (the "INDENTURE")).
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of its notes (the "NOTES"), which
Notes are to be issued from time to time in such series as may be determined by
the Company under the Indenture, in an unlimited aggregate principal amount
which may be authenticated and delivered thereunder as in the Indenture
provided, and which Notes are subject to the terms of the Support Agreement, as
defined in the Indenture; and
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a series of its Notes to be designated as
hereinafter provided, the form and substance of the Notes and the terms,
provisions and conditions thereof to be set forth as provided in the Indenture
and this Second Supplemental Indenture; and
WHEREAS, the Company desires and has requested the Trustee to join with
it in the execution and delivery of this Second Supplemental Indenture, and all
requirements necessary to make this Second Supplemental Indenture a valid
instrument, in accordance with its terms, and to make said Notes, when executed
by the Company and authenticated and delivered by the Trustee, the valid
obligations of the Company, have been performed and fulfilled, and the execution
and delivery hereof have been in all respects duly authorized;
NOW, THEREFORE, in consideration of the purchase and acceptance of the
Notes by the holders thereof, and for the purpose of setting forth, as provided
in the Indenture, the form and substance of the Notes and the terms, provisions
and conditions thereof, the Company covenants and agrees with the Trustee as
follows:
ARTICLE I.
Definitions and Other Provisions of
General Application
SECTION 1.1. Capitalized terms used herein and not otherwise defined
herein shall have the meanings set forth in the Indenture.
SECTION 1.2. The terms defined in this Section, for all purposes of
this Second Supplemental Indenture, shall have the respective meanings
specified in this Section.
"BUSINESS DAY" means any day, other than a Saturday, Sunday, a
legal holiday or a day on which banking institutions in The City of New
York are authorized or obligated to close; which day is also a London
Business Day.
"CLOSING DATE" shall mean September 7, 1999.
"INTEREST DETERMINATION DATE" shall mean the second London
Business Day immediately preceding the applicable Interest Reset Date.
"INTEREST PAYMENT DATE" shall mean the seventh day of each
calendar month, commencing October 7, 1999.
"INTEREST PERIOD" shall mean the period between Interest
Reset Dates.
"INTEREST RESET DATE" shall mean the seventh day of each
calendar month, commencing October 7, 1999.
"LIBOR" shall mean, with respect to any Interest Determination
Date, the rate for deposits in United States dollars having a maturity
of one month that appears on the display on the Bloomberg Financial
Markets (or any successor service) on the page "British Bankers
Association LIBOR Rates" (or any other page as may replace such page on
such service) for the purpose of displaying the London interbank rates
for United States dollars as of 11:00 A.M., London time, on such
Interest Determination Date. With respect to an Interest Determination
Date on which no such rate appears on the designated page as specified
above, the Trustee will request the principal London offices of each of
four major reference banks (which may include affiliates of the Agent)
in the London interbank market, as selected by the Trustee, to provide
the Trustee with its offered quotation for deposits in United States
dollars for a period of one month, commencing on the applicable
Interest Reset Date, to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on such Interest Determination
Date and in a principal amount that is not less than $1,000,000 and is
representative for a single transaction in such market at such time. If
at least two such quotations are so provided, then LIBOR on such
Interest Determination Date will be the arithmetic mean of such
quotations. If fewer than two such quotations are so provided, then
LIBOR on such Interest Determination Date will be the arithmetic mean
of the rates quoted in The City of New York at approximately 11:00
A.M., New York City time, on such Interest Determination Date by three
major banks (which may include affiliates of the Agent) in The City of
New York selected by the Trustee for loans in United States dollars to
leading European banks, having a maturity of one month and in a
principal amount that is not less than $1,000,000 and is representative
for a single transaction in such market at such time; provided,
however, that if the banks so selected by the Trustee are not quoting
as mentioned in this sentence, LIBOR determined as of such Interest
Determination Date will be LIBOR in effect on such Interest
Determination Date.
"LONDON BUSINESS DAY" shall mean a day on which dealings in
Dollars are transacted in the London interbank market.
"RECORD DATE" shall mean the fifteenth calendar day (whether
or not a Business Day) immediately preceding the related Interest
Payment Date with respect to any Series B Note.
"SERIES B NOTES" has the meaning specified in Section 2.1
hereof.
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"SPREAD" shall mean 10 basis points.
"STATED MATURITY" shall mean September 7, 2000.
ARTICLE II.
General Terms and Conditions
of the Series B Notes
SECTION 2.1. There shall be and is hereby authorized a series of
Notes designated the "Floating Rate Notes, Series B, Due 2000", limited in
aggregate principal amount to $50,000,000 (the "SERIES B NOTES"), which shall
be sold and issued on the Closing Date in accordance with the provisions
hereof. The form of Series B Note is attached hereto as EXHIBIT A and by this
reference incorporated herein. The Series B Notes shall mature on the Stated
Maturity, unless the principal thereof becomes due and payable prior to the
Stated Maturity, whether by the declaration of acceleration of maturity or
otherwise. The Trustee, upon compliance by the Company with the requirements
of Section 2.04 of the Indenture, shall authenticate and deliver Series B
Notes in accordance with a written request for authentication of the Company.
SECTION 2.2. The Series B Notes shall be issued as Global Notes and
registered in the name of the Depositary or its nominee, subject to the
appointment of a successor Depositary as provided in the Indenture. The
Series B Notes represented by the Global Notes will not be exchangeable for,
and will not otherwise be issuable as, Notes in certificated form, except as
provided in the Indenture.
SECTION 2.3. The Series B Notes shall be issued in fully registered
form, without interest coupons, in minimum denominations of $100,000 and
integral multiples of $1,000 in excess thereof.
SECTION 2.4. Interest payments in respect of Series B Notes shall be
made in an amount equal to the interest accrued from and including the
immediately preceding Interest Payment Date in respect of which interest has
been paid or duly made available for payment (or from and including the date
of issue, if no interest has been paid or duly made available for payment) to
but excluding the applicable Interest Payment Date or the Stated Maturity, as
the case may be.
The interest installment of a Series B Note punctually paid or duly
provided for on any Interest Payment Date will be paid to the registered holder
of such Series B Note at the close of business 15 calendar days (whether or not
a Business Day) preceding such Interest Payment Date (the "Regular Record Date")
Any such interest installment not punctually paid or duly provided for on any
Interest Payment Date shall forthwith cease to be payable to the registered
holder on the relevant Regular Record Date, and may be paid to the person in
whose name the Series B Note (or one or more predecessor Notes) is registered at
the close of business on a special record date to be fixed by the Trustee for
the payment of such defaulted interest, notice whereof shall be given to the
registered holders of the Series B Notes not less than 10 days prior to such
special
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record date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Series B Note may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture.
SECTION 2.5. Interest on Series B Notes shall be payable in arrears
on each Interest Payment Date and at Stated Maturity. If any Interest Payment
Date (other than the Stated Maturity) for the Series B Notes would otherwise
be a day that is not a Business Day, such Interest Payment Date shall be
postponed to the next succeeding Business Day, except that if such Business
Day falls in the next succeeding calendar month, such Interest Payment Date
shall be the immediately preceding Business Day. If the Stated Maturity of
the Series B Notes falls on a day that is not a Business Day, the required
payment of principal and interest will be made on the next succeeding
Business Day as if made on the date such payment was due and no interest will
accrue on such payment for the period from and after the Stated Maturity to
the date of such payment on the next succeeding Business Day. The Series B
Note shall bear interest from the date of issue to the initial Interest Reset
Date, at a rate per annum equal to 5.48125%, and therafter shall bear
interest during each Interest Period at the applicable LIBOR, plus the
Spread. The interest rate applicable to each Interest Period commencing on
the related Interest Reset Date will be the rate determined by the Trustee as
of the applicable Interest Rate Determination Date. The interest rate
determined as of an Interest Determination Date will take effect on the
applicable Interest Reset Date. Commencing on the initial Interest Reset Date
for the Series B Notes, the interest rate in effect on each day shall be (i)
if such day is an Interest Reset Date, the interest rate determined as of the
Interest Determination Date immediately preceding such Interest Reset Date or
(ii) if such day is not an Interest Reset Date, the interest rate determined
as of the Interest Determination Date immediately preceding the most recent
Interest Reset Date. If any Interest Reset Date for the Series B Notes would
otherwise be a day that is not a Business Day, such Interest Reset Date shall
be postponed to the next succeeding Business Day, except that if such
Business Day falls in the next succeeding calendar month, such Interest Reset
Date shall be the immediately preceding Business Day. The interest rate on
Series B Notes will in no event be higher than the maximum rate permitted by
New York law, as the same may be modified by United States law of general
application. Interest accrued on each Series B Notes shall be calculated by
multiplying its principal amount by an accrued interest factor. Such accrued
interest factor shall be computed by adding the interest factor calculated
for each day in the applicable Interest Period. The interest factor for each
such day shall be computed by dividing the interest rate applicable to such
day by 360. All percentages resulting from any calculation on Series B Notes
will be rounded to the nearest one hundred-thousandth of a percentage point,
with five one-millionths of a percentage point rounded upwards (e.g.,
9.876545% (or .09876545) would be rounded to 9.87655% (or .0987655)), and all
dollar amounts used in or resulting from such calculation on Series B Notes
will be rounded to the nearest cent (with one-half cent being rounded
upwards). The Trustee will, at the request of any holder of Series B Notes,
provide to such holder the interest rate then in effect on the Series B Notes
and, if determined, the interest rate which will become effective as of the
next Interest Reset Date.
SECTION 2.6. All Series B Notes issued hereunder and all Series B
Notes issued upon registration of transfer of, or in exchange for, such
Series B Notes, shall be subject to the restrictions on transfer provided in
Section 2.04, 2.05 and 2.06 of the Indenture and Exhibits B, C
4
and D of this Second Supplemental Indenture and the legends set forth on the
Series B Notes, PROVIDED that in the event of a conflict between such legends
and any provision of this Second Supplemental Indenture and the Indenture,
such legends shall control. Such restrictions on transfer and legends shall
not be removed except in accordance with the Indenture.
SECTION 2.7. The Series B Notes shall be entitled to the benefits of
the Indenture and this Second Supplemental Indenture, and the holders of the
Series B Notes and the Trustee are entitled to the benefits of the Support
Agreement available to Lenders (as defined in the Support Agreement), it
being understood and agreed that the Series B Notes constitute Obligations
(as defined in the Support Agreement) for purposes of the Support Agreement.
SECTION 2.8. The covenants provided by Sections 4.06 and 4.09 of the
Indenture shall be applicable to the Series B Notes.
ARTICLE III.
Original Issue of Notes
Series B Notes in the aggregate principal amount of $50,000,000 may,
upon execution of this Second Supplemental Indenture, be executed by the Company
and delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver such Series B Notes as provided in a written request
for authentication of the Company.
ARTICLE IV.
Miscellaneous Provisions
SECTION 4.1. Except as otherwise expressly provided in this Second
Supplemental Indenture or in the form of Series B Note or otherwise clearly
required by the context hereof or thereof, all terms used herein or in the
form of Series B Note that are defined in the Indenture shall have the
several meanings respectively assigned to them thereby.
SECTION 4.2. The Indenture, as supplemented by this Second
Supplemental Indenture, is in all respects ratified and confirmed, and this
Second Supplemental Indenture shall be deemed part of the Indenture in the
manner and to the extent herein and therein provided.
SECTION 4.3. The recitals herein contained are made by the Company
and not by the Trustee, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representation as to the validity
or sufficiency of this Second Supplemental Indenture.
SECTION 4.4. THIS SECOND SUPPLEMENTAL INDENTURE AND EACH SERIES B
NOTE SHALL, PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW, BE DEEMED A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND
FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THAT
STATE, WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF (OTHER THAN
SUCH SECTION 5-1401).
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SECTION 4.5. Nothing in this Second Supplemental Indenture or in the
Series B Notes, express or implied, shall give to any person, other than the
parties hereto and their successors hereunder and the holders, any benefit or
legal or equitable right, remedy or claim under this Second Supplemental
Indenture.
SECTION 4.6. This Second Supplemental Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the day and year first above
written.
LG&E CAPITAL CORP.
By: /signed/
------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By: /signed/
------------------------------------
Name:
Title:
6
EXHIBIT A
[Form of Series B Note]
EXHIBIT B
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER OR EXCHANGE FROM RULE 144A GLOBAL NOTE
TO RESTRICTED REGULATION S GLOBAL NOTE
(Transfers or exchanges pursuant to
Section 2.06(b)(ii) of the Indenture)
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Re: LG&E CAPITAL CORP. FLOATING RATE NOTES, SERIES B, DUE 2000 (THE "NOTES")
Reference is hereby made to the Indenture dated as of January 15, 1998
(the "Indenture") between LG&E Capital Corp. and The Bank of New York, as
Trustee, as supplemented by the Second Supplemental Indenture dated as of
September 1, 1999. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This letter relates to $__________________ principal amount of the
Notes which are held in the form of the Rule 144A Global Note (CUSIP No.
[__________] with the Depositary in the name of [insert name of transferor] (the
"Transferor"). The Transferor has requested a transfer or exchange of such
beneficial interest in the Notes for an interest in the Restricted Regulation S
Global Note (CINS No. ___________) to be held with [Euroclear] [Cedel Bank]
(Common Code _____________) through the Depositary.
In connection with such request and in respect of such Notes, the
Transferor does hereby certify that such transfer or exchange has been effected
in accordance with the transfer restrictions set forth in the Indenture and the
Notes and pursuant to and in accordance with Regulation S under the Securities
Act, and accordingly the Transferor does hereby certify that:
(1) the offer of the Notes was not made to a person in the
United States;
[(2) at the time the buy order was originated, the transferee
was an institutional accredited investor outside the United States or
the Transferor and any person acting on its behalf reasonably believed
that the transferee was an institutional accredited investor outside
the United States,]*
B-1
[(2) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither the
Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States,]*
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable, and
(4) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
This certificate and the statements contained herein are
made for your benefit and the benefit of the Issuer.
[Insert Name of Transferor]
By:_____________________________________
Name:
Title:
Dated:_____________________, ____
cc: LG&E Capital Corp.
* Insert one of these two provisions, which come from the definition of
"offshore transactions" in Regulation S.
B-2
EXHIBIT C
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER OR EXCHANGE FROM RULE 144A GLOBAL NOTE
TO UNRESTRICTED REGULATION S GLOBAL NOTE
(Exchanges or transfers pursuant to
Section 2.06(b)(iii) of the Indenture)
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Re: LG&E CAPITAL CORP. FLOATING RATE NOTES, SERIES B, DUE 2000 (THE "NOTES")
Reference is hereby made to the Indenture dated as of January 15, 1998
(the "Indenture") between LG&E Capital Corp. and The Bank of New York, as
Trustee, as supplemented by the Second Supplemental Indenture dated as of
September 1, 1999. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This letter relates to $__________________ principal amount of the
Notes which are held in the form of the Rule 144A Global Note (CUSIP No.
[__________] with the Depositary in the name of [insert name of transferor] (the
"Transferor"). The Transferor has requested an exchange or transfer of such
beneficial interest in the Notes for an interest in the Unrestricted Regulation
S Global Security (CUSIP No. ___________).
In connection with such request and in respect of such Notes, the
Transferor does hereby certify that such transfer or exchange has been effected
in accordance with the transfer restrictions set forth in the Indenture and the
Notes and:
(i) with respect to transfers made in reliance on Regulation S
under the Securities Act, the Transferor does hereby certify
that:
(1) the offer of the Notes was not made to a person in the
United States;
[(2) at the time the buy order was originated, the transferee
was an institutional accredited investor outside the United States or
the Transferor and any person acting on its behalf reasonably believed
that the transferee was an institutional accredited investor outside
the United States,]*
C-1
[(2) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither the
Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States,]*
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable, and
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
(ii) with respect to transfers made in reliance on Rule 144 under
the Securities Act, certify that the Notes are being
transferred in a transaction permitted by Rule 144 under the
Securities Act,
(iii) with respect to transfers made in reliance on another
exemption from the Securities Act, the following is the basis
for the exemption: _______________, and
(iv) with respect to an exchange, either (x) the Note being
exchanged is not a "restricted security" as defined in Rule
144 under the Securities Act or (u) the exchange is being made
to facilitate a contemporaneous transfer that complies with
Section 2.06(b)(iii) of the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer.
[Insert Name of Transferor]
By:__________________________________
Name:
Title:
Dated:_____________________, ____
cc: LG&E Capital Corp.
* Insert one of these two provisions, which come from the definition of
"offshore transactions" in Regulation S.
C-2
EXHIBIT D
FORM OF TRANSFER CERTIFICATE FOR TRANSFER OR EXCHANGE FROM
RESTRICTED REGULATION S GLOBAL NOTE OR UNRESTRICTED REGULATION S
GLOBAL NOTE TO RULE 144A GLOBAL NOTE
(Exchanges or transfers pursuant to
Section 2.06(b)(iv) of the Indenture)
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Re: LG&E CAPITAL CORP. FLOATING RATE NOTES, SERIES B, DUE 2000 (THE "NOTES")
Reference is hereby made to the Indenture dated as of January 15, 1998
(the "Indenture") between LG&E Capital Corp. and The Bank of New York, as
Trustee, as supplemented by the Second Supplemental Indenture dated as of
September 1, 1999. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This letter relates to $__________________ principal amount of the
Notes which are held in the form of [the [Restricted] [Unrestricted] Regulation
S Global Note with [Euroclear] [Cedel Bank] (Common Code _____________)] [with
the Depositary (CUSIP No. _______)] in the name of [insert name of transferor]
(the "Transferor"). The Transferor has requested a transfer or exchange of such
beneficial interest for an interest in the Rule 144A Global Note.
In connection with such request, and in respect of such Notes, the
Transferor does hereby certify that such Notes are being transferred or
exchanged in accordance with (i) the transfer restrictions set forth in the
Indenture and the Notes and (ii) Rule 144A under the Securities Act to a
transferee that the Transferor reasonably believes is purchasing the Notes for
its own account or an account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any other
jurisdiction.
D-1
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer.
[Insert Name of Transferor]
By:_______________________________________
Name:
Title:
Dated:_____________________, ____
cc: LG&E Capital Corp.
D-2