EXHIBIT 4-A-32
THE CINCINNATI GAS & ELECTRIC COMPANY
and
THE BANK OF NEW YORK
Trustee
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Thirty-fifth Supplemental Indenture
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Dated as of January 1, 1994
THE CINCINNATI GAS & ELECTRIC COMPANY
Thirty-fifth Supplemental Indenture
Dated as of January 1, 1994
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TABLE OF CONTENTS
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Form of Bonds of Series A Due 2024. . . . . . . . . . . . . . 4
Form of Trustee's Certificate on Bonds, Series A Due 2024 . . 8
Form of Bonds of Series B Due 2024. . . . . . . . . . . . . . 9
Form of Trustee's Certificate on Bonds, Series B Due 2024 . . 13
Form of Bonds of Series C Due 2024. . . . . . . . . . . . . . 14
Form of Trustee's Certificate on Bonds, Series C Due 2024 . . 18
ARTICLE ONE
BONDS OF SERIES DUE 2024 AND ISSUE THEREOF
SECTION 1. Series and Form of Bonds of Series Due 2024 . . . . . 19
SECTION 2. Issue of Bonds of Series Due 2024 . . . . . . . . . . 19
SECTION 3. Dates, Interest, etc., of Bonds of Series 2024. . . . 20
SECTION 4. Denominations and Exchangeability of Bonds of Series
Due 2024. . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 5. Redemption of Bonds of Series Due 2024 and
Redemption Prices . . . . . . . . . . . . . . . . . . 21
SECTION 6. [This space left blank intentionally] . . . . . . . . 24
SECTION 7. Absence of Maintenance and Replacement Fund . . . . . 24
SECTION 8. Surrender of Bonds. . . . . . . . . . . . . . . . . . 24
SECTION 9. Notice of Redemption of Bonds of Series Due 2024. . . 25
ARTICLE TWO
COVENANTS OF THE COMPANY
SECTION 1. Confirmation of Covenants by Company in First
Mortgage. . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2. Covenants with Respect to Subsidiaries. . . . . . . . 26
ARTICLE THREE
AMENDMENT OF ARTICLE ONE, ARTICLE FIVE, ARTICLE ELEVEN,
AND ARTICLE EIGHTEEN OF THE FIRST MORTGAGE AS AMENDED
SECTION 1. Amendment to Section 5 of Article One . . . . . . . . 28
SECTION 2. Reservation of Right to Amend Mortgage without
consent of Certain Bondholders. . . . . . . . . . . . 28
ARTICLE FOUR
MISCELLANEOUS
SECTION 1. Thirty-fifth Supplemental Indenture to Form Part of First
Mortgage. . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2. Definitions in First Mortgage Shall Apply to Thirty-fifth
Supplemental Indenture. . . . . . . . . . . . . . . . 29
SECTION 3. Execution in Counterparts . . . . . . . . . . . . . . 30
THIRTY-FIFTH SUPPLEMENTAL INDENTURE, dated as of January 1, 1994,
between The Cincinnati Gas & Electric Company, a corporation of the State of
Ohio (the Company), and The Bank of New York, a corporation of the State of
New York (the Trustee), as 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, Article Two of the First Mortgage provides that the Bonds may
be issued in series, and 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
establishing the terms and provisions of any series of Bonds other than the
initial series;
WHEREAS, the Company and the Trustee have amended and supplemented the
First Mortgage by means of thirty-four supplemental indentures (the First
Mortgage as amended) under the Tenth, Eleventh, Twelfth, Thirteenth,
Fifteenth, Eighteenth, Nineteenth, Twenty-fourth, Twenty-fifth, Twenty-ninth,
Thirtieth, Thirty-first, Thirty-second, Thirty-third and Thirty-fourth of
which there are Bonds now outstanding;
WHEREAS, the Company, pursuant to resolutions duly adopted by the
Finance Committee of its Board of Directors at a duly called and held
meeting, has approved the form, terms, and provisions of this Thirty-fifth
Supplemental Indenture and authorized its execution for the purpose of
creating under the First Mortgage as amended and this Thirty-fifth
Supplemental Indenture three new series of First Mortgage Bonds designated as
the First Mortgage Bonds, 5.45% Series A Due 2024 (the Bonds of Series A Due
2024), the First Mortgage Bonds, 5.45% Series B Due 2024 (the Bonds of Series
B Due 2024), and the First Mortgage Bonds, 5-1/2% Series C Due 2024 (the
Bonds of Series C Due 2024);
WHEREAS, the Bonds of Series A Due 2024 are to be issued by the Company
to the Ohio Water Development Authority (the Water Authority) to evidence and
secure the obligation of the Company to repay the loan of the proceeds of the
sale of the Water Bonds (as hereinafter defined) made by the Water Authority
to the Company, pursuant to a certain Loan Agreement, dated as of January 1,
1994, between the Water Authority and the Company (the Water Agreement), to
assist in the refunding of revenue bonds originally issued by the Water
Authority to finance the Company's portion of the costs of certain waste
water and solid waste facilities, which loan by the Water Authority is to be
funded with proceeds derived from the sale by the Water Authority of State of
Ohio Collateralized Water Development Revenue Refunding Bonds, 1994 Series A
(The Cincinnati Gas & Electric Company Project) in the aggregate principal
amount of $21,400,000 (the Water Bonds);
WHEREAS, the Bonds of Series B Due 2024 are to be issued by the Company
to the Ohio Air Quality Development Authority (the Air Authority) to evidence
and secure the obligation of the Company to repay the loan of the proceeds of
the sale of the Air Bonds (as hereinafter defined) made by the Air Authority
to the Company, pursuant to a certain Loan Agreement, dated as of January 1,
1994, between the Air Authority and the Company (the Air Agreement), to
assist in the refunding of revenue bonds originally issued by the Air
Authority to finance the Company's portion of the costs of certain air
quality facilities, which loan by the Air Authority is to be funded with
proceeds derived from the sale by the Air Authority of State of Ohio
Collateralized Air Quality Development Revenue Refunding Bonds, 1994 Series B
(The Cincinnati Gas & Electric Company Project) in the aggregate principal
amount of $25,300,000 (the Air Bonds);
WHEREAS, the Bonds of Series C Due 2024 are to be issued by the Company
to the County of Boone, Kentucky (the County) to evidence and secure the
obligation of the Company to repay the loan of the proceeds of the sale of
the County Bonds (as hereinafter defined) made by the County to the Company,
pursuant to a certain Loan Agreement, dated as of January 1, 1994, between
the County and the Company (the County Agreement), to assist in the refunding
of revenue bonds originally issued by the County to finance the Company's
portion of the costs of certain pollution control facilities, which loan by
the County is to be funded with proceeds derived from the sale by the County
of its Collateralized Pollution Control Revenue Refunding Bonds, 1994 Series
A (The Cincinnati Gas & Electric Company Project) in the aggregate principal
amount of $48,000,000 (the County Bonds);
WHEREAS, in this Thirty-fifth Supplemental Indenture, the Bonds of
Series A Due 2024, the Bonds of Series B Due 2024 and the Bonds of Series C
Due 2024 are referred to collectively as "the Bonds of Series Due 2024", the
Air Authority, the Water Authority and the County are referred to
individually as an "Issuer" and collectively as "the Issuers", the Air Bonds,
the Water Bonds and the County Bonds are referred to collectively as "the
Issuers' Bonds", and the Water Agreement, the Air Agreement and the County
Agreement are referred to individually as a "Loan Agreement";
WHEREAS, the bonds of each series of the Issuers' Bonds are to be issued
under separate Trust Indentures, each dated as of January 1, 1994 (the
Indentures for the Issuers' Bonds), between the respective Issuer and, in
each case, The Bank of New York, as Trustee (the Trustee for the Issuers'
Bonds), and the bonds of each series of the Bonds of Series Due 2024 are to
be assigned and pledged by the respective Issuer as security for the payment
of principal of and premium, if any, and interest on the bonds of a series of
the Issuers' Bonds and are to be delivered by the Company on behalf of each
Issuer directly to the Trustee for the Issuers' Bonds of such series; and
WHEREAS, the Bonds of Series Due 2024 are to be substantially in the
following forms, with appropriate omissions, insertions, and variations as in
the First Mortgage as amended and in this Thirty-fifth Supplemental Indenture
provided or permitted:
[FORM OF BOND OF SERIES A DUE 2024]
No. ............................ $ ...............................
THE CINCINNATI GAS & ELECTRIC COMPANY
FIRST MORTGAGE BOND
5.45% Series A Due 2024
Due January 1, 2024
THE CINCINNATI GAS & ELECTRIC COMPANY, a corporation of the State of
Ohio (the Company), for value received hereby promises to pay to
or registered assigns, on January 1, 2024,
at the office or agency of the Company in the Borough of Manhattan, The City
of New York, Dollars in such coin or currency of
the United States of America as at the time of payment is legal tender for
the payment of public and private debts, and, subject to certain exceptions
provided in Section 3 of Article One of the Thirty-fifth Supplemental
Indenture referred to below, to pay by check to the person in whose name this
Bond is registered at the close of business on the record date for such
payment, as defined in such Section 3, interest thereon from the interest
payment date to which interest has been paid last preceding the date hereof
(unless the date hereof is an interest payment date to which interest has
been paid, in which case from the date hereof, or unless the date hereof is
June 15, 1994, or prior thereto, in which case from January 1, 1994, or
unless the date hereof is between a record date and the interest payment date
for such record date, in which case from such interest payment date), at the
rate of 5.45% per annum in like coin or currency, payable at such office or
agency semiannually on January 1 and July 1 in each year, until the
Company's obligation with respect to the payment of such principal shall have
been discharged.
This Bond is one of an issue of First Mortgage Bonds of the Company
issued and to be issued in series under and pursuant to and equally secured
by an indenture of mortgage and deed of trust dated as of August 1, 1936,
executed by the Company to The Bank of New York, as Trustee, as amended and
supplemented as hereinafter stated, and is one of a series of such First
Mortgage Bonds, which series is designated as the First Mortgage Bonds, 5.45%
Series A Due 2024, of the Company (the Bonds of Series A Due 2024), the terms
and
provisions of which have been established by a Thirty-fifth Supplemental
Indenture dated as of January 1, 1994, executed by the Company to The Bank of
New York, as Trustee. Subsequent to the execution and delivery of the
indenture of mortgage and deed of trust there have been executed and
delivered thirty-five indentures supplemental thereto, including the
Thirty-fifth Supplemental Indenture, supplementing and amending as therein
set forth certain provisions thereof. The indenture of mortgage and deed of
trust and the supplemental indentures collectively are sometimes called the
Indenture.
For a description of the property mortgaged and pledged, the nature and
extent of the security, the rights of the holders of the Bonds and of the
Trustee therein and thereto, the duties and immunities of the Trustee, and
the terms and conditions upon which the Bonds are issued and secured,
reference is hereby made to the Indenture. The rights and obligations of the
Company and of the holders and registered owners of the Bonds of this issue
may be modified or amended at the request of the Company by an indenture or
indentures supplemental to the Indenture, executed pursuant to the consent of
the holders or registered owners of at least 75% in principal amount of the
Bonds then outstanding affected by such modification or amendment, all in the
manner and subject to the limitations set forth in the Indenture, any consent
by the holder or registered owner of any Bond being conclusive and binding
upon such holder or registered owner and upon all of its future holders and
owners, irrespective of whether or not any notation of such consent is made
upon the Bond; provided that no such modification or amendment by such
supplemental indenture shall extend the maturity of, or reduce the rate of
interest on, or otherwise modify the terms of payment of the principal of, or
interest on, this Bond, which obligations are absolute and unconditional, nor
permit the creation of any lien ranking prior to or equal with the lien of
the Indenture on any of the mortgaged property.
The Bonds of Series A Due 2024 have been issued by the Company to the
Ohio Water Development Authority (the Water Authority) to evidence and secure
the obligation of the Company to repay the loan (the Water Loan) of the
proceeds of the sale of the Water Bonds (as hereinafter defined) made by the
Water Authority to the Company to assist in the refunding of revenue bonds
originally issued by the Water Authority to finance the Company's portion of
the costs of certain waste water and solid waste facilities. The Water Loan
is made pursuant to a certain Loan Agreement, dated as of January 1, 1994,
between the Water Authority and the Company (the Water Agreement). To
provide funds for the Water Loan, the Water Authority has issued $21,400,000
principal amount of State
of Ohio Collateralized Water Development Revenue Refunding Bonds, 1994 Series
A (The Cincinnati Gas & Electric Company Project) (the Water Bonds) under a
Trust Indenture dated as of January 1, 1994 (the Water Bond Indenture), from
the Water Authority to The Bank of New York, as Trustee (the Water Bond
Trustee). The Bonds of Series A Due 2024 correspond in principal amount,
interest rate, maturity, and redemption provisions with the Water Bonds and
have been pledged and assigned by, and delivered on behalf of, the Water
Authority to the Water Bond Trustee as security for the payment of the
principal of and premium, if any, and interest on the Water Bonds.
In the event any Water Bond shall be surrendered to the Water Bond
Trustee for cancellation pursuant to the Water Bond Indenture (except upon
exchange for other Water Bonds), Bonds of Series A Due 2024 equivalent in
principal amount to such Water Bonds shall be deemed to have been paid, but
only when and to the extent (a) so noted on the schedule of payments hereon
by the Company or an agency of the Company and (if such agency is not the
Trustee) written notice by the Company or such agency of such notation has
been received by the Trustee or (b) such Bond is surrendered to and cancelled
by the Trustee as provided in the next paragraph; and in the event and to the
extent the principal of or premium, if any, or interest on any Water Bond
shall be paid or deemed to be paid, an equal amount of principal, or premium,
if any, or interest, as the case may be, payable with respect to an aggregate
principal amount of Bonds of Series A Due 2024 equal to the aggregate
principal amount of such Water Bonds shall be deemed to have been paid, but,
in the case of such payment of principal, only when and to the extent (i) so
noted on the schedule of payments hereon by the Company or an agency of the
Company and (if such agency is not the Trustee) written notice by the Company
or such agency of such notation has been received by the Trustee or (ii) such
Bond is surrendered to and cancelled by the Trustee as provided in the next
paragraph. When any such payment of principal of this Bond is made, it shall
be surrendered by the registered owner hereof to the Company or an agency of
the Company for such notation and notification or to the Trustee for
cancellation.
In the event that this Bond shall be deemed to have been paid in full,
this Bond shall be surrendered to the Trustee for cancellation. In the event
that this Bond shall be deemed to have been paid in part, this Bond may, at
the option of the registered owner, be surrendered to the Trustee for
cancellation, in which event the Trustee shall cancel this Bond and the
Company shall execute and the Trustee shall authenticate and deliver Bonds of
Series A Due 2024 in authorized
denominations in aggregate principal amount equal to the unpaid balance of
the principal amount of this Bond.
Bonds of Series A Due 2024 are subject to optional redemption by the
Company prior to stated maturity as provided in Section 5A of Article One of
the Thirty-fifth Supplemental Indenture.
Bonds of Series A Due 2024 are subject to mandatory redemption by the
Company prior to stated maturity as provided in Section 5B of Article One of
the Thirty-fifth Supplemental Indenture.
Bonds of Series A Due 2024 are subject to optional redemption by the
Company prior to stated maturity as provided in Section 5C of Article One of
the Thirty-fifth Supplemental Indenture.
Any redemption of the Bonds of Series A Due 2024 shall be made after
written notice to the registered owner of such Bonds, sent by the Trustee by
mail, first class postage prepaid, or hand delivered at least 30 days and not
earlier than 60 days before the redemption date, unless a shorter notice
period is consented to in writing by the registered owner or owners of all
Bonds of Series A Due 2024 and such consent is filed with the Trustee, and
shall be made in the manner provided in Article One of the Thirty-fifth
Supplemental Indenture, subject to the provisions of the First Mortgage as
amended.
The principal hereof may be declared or may become due on the
conditions, in the manner and at the time set forth in the Indenture, upon
the happening of a completed default as in the Indenture provided.
This Bond is nontransferable except as required to effect the assignment
hereof to the Water Bond Trustee or any successor to such Trustee.
Bonds of Series A Due 2024 are issuable as registered Bonds in the
denominations of $5,000 and integral multiples thereof.
No recourse shall be had for the payment of the principal of, or
interest on, this Bond, or under or upon any obligation, covenant, or
agreement contained in the Indenture, against any incorporator or any past,
present, or future subscriber to capital stock, shareholder, officer, or
director, as such, of the Company or of any predecessor or successor
corporation, either directly or through the Company
or any predecessor or successor corporation, under any present or future rule
of law, statute, or constitution or by the enforcement of any assessment or
otherwise, all such liability of incorporators, subscribers, shareholders,
officers, and directors being released by the registered owner hereof by the
acceptance of this Bond and being likewise waived and released by the terms
of the Indenture.
This Bond shall not become valid or obligatory for any purpose until The
Bank of New York, the Trustee under the Indenture, or its successor
thereunder, shall have signed the form of certificate endorsed hereon.
IN WITNESS WHEREOF, The Cincinnati Gas & Electric Company has caused
this Bond to be signed in its name by its President or a Vice-President,
manually or in facsimile, and its corporate seal or a facsimile thereof to be
affixed hereto or reproduced hereon and attested by its Secretary or an
Assistant Secretary, manually or in facsimile.
Dated
THE CINCINNATI GAS & ELECTRIC COMPANY,
By
Vice-President
Attest:
Secretary
[FORM OF TRUSTEE'S CERTIFICATE ON ALL BONDS OF SERIES A DUE 2024]
This Bond is one of the Bonds, of the series designated therein,
described in the within-mentioned Indenture.
THE BANK OF NEW YORK,
Trustee,
By
Authorized Signatory.
[FORM OF BOND OF SERIES B DUE 2024]
No. ............................ $ ...............................
THE CINCINNATI GAS & ELECTRIC COMPANY
FIRST MORTGAGE BOND
5.45% Series B Due 2024
Due January 1, 2024
THE CINCINNATI GAS & ELECTRIC COMPANY, a corporation of the State of
Ohio (the Company), for value received hereby promises to pay to
or registered assigns, on January 1, 2024,
at the office or agency of the Company in the Borough of Manhattan, The City
of New York, Dollars in such coin or currency of
the United States of America as at the time of payment is legal tender for
the payment of public and private debts, and, subject to certain exceptions
provided in Section 3 of Article One of the Thirty-fifth Supplemental
Indenture referred to below, to pay by check to the person in whose name this
Bond is registered at the close of business on the record date for such
payment, as defined in such Section 3, interest thereon from the interest
payment date to which interest has been paid last preceding the date hereof
(unless the date hereof is an interest payment date to which interest has
been paid, in which case from the date hereof, or unless the date hereof is
June 15, 1994, or prior thereto, in which case from January 1, 1994, or
unless the date hereof is between a record date and the interest payment date
for such record date, in which case from such interest payment date), at the
rate of 5.45% per annum in like coin or currency, payable at such office or
agency semiannually on January 1 and July 1 in each year, until the
Company's obligation with respect to the payment of such principal shall have
been discharged.
This Bond is one of an issue of First Mortgage Bonds of the Company
issued and to be issued in series under and pursuant to and equally secured
by an indenture of mortgage and deed of trust dated as of August 1, 1936,
executed by the Company to The Bank of New York, as Trustee, as amended and
supplemented as hereinafter stated, and is one of a series of such First
Mortgage Bonds, which series is designated as the First Mortgage Bonds, 5.45%
Series B Due 2024, of the Company (the Bonds of Series B Due 2024), the terms
and
provisions of which have been established by a Thirty-fifth Supplemental
Indenture dated as of January 1, 1994, executed by the Company to The Bank of
New York, as Trustee. Subsequent to the execution and delivery of the
indenture of mortgage and deed of trust there have been executed and
delivered thirty-five indentures supplemental thereto, including the
Thirty-fifth Supplemental Indenture, supplementing and amending as therein
set forth certain provisions thereof. The indenture of mortgage and deed of
trust and the supplemental indentures collectively are sometimes called the
Indenture.
For a description of the property mortgaged and pledged, the nature and
extent of the security, the rights of the holders of the Bonds and of the
Trustee therein and thereto, the duties and immunities of the Trustee, and
the terms and conditions upon which the Bonds are issued and secured,
reference is hereby made to the Indenture. The rights and obligations of the
Company and of the holders and registered owners of the Bonds of this issue
may be modified or amended at the request of the Company by an indenture or
indentures supplemental to the Indenture, executed pursuant to the consent of
the holders or registered owners of at least 75% in principal amount of the
Bonds then outstanding affected by such modification or amendment, all in the
manner and subject to the limitations set forth in the Indenture, any consent
by the holder or registered owner of any Bond being conclusive and binding
upon such holder or registered owner and upon all of its future holders and
owners, irrespective of whether or not any notation of such consent is made
upon the Bond; provided that no such modification or amendment by such
supplemental indenture shall extend the maturity of, or reduce the rate of
interest on, or otherwise modify the terms of payment of the principal of, or
interest on, this Bond, which obligations are absolute and unconditional, nor
permit the creation of any lien ranking prior to or equal with the lien of
the Indenture on any of the mortgaged property.
The Bonds of Series B Due 2024 have been issued by the Company to the
Ohio Air Quality Development Authority (the Air Authority) to evidence and
secure the obligation of the Company to repay the loan (the Air Loan) of the
proceeds of the sale of the Air Bonds (as hereinafter defined) made by the
Air Authority to the Company to assist in the refunding of revenue bonds
originally issued by the Air Authority to finance the Company's portion of
the costs of certain air quality facilities. The Air Loan is made pursuant to
a certain Loan Agreement, dated as of January 1, 1994, between the Air
Authority and the Company (the Air Agreement). To provide funds for the Air
Loan, the Air Authority has issued $25,300,000 principal amount of State of
Ohio Collateralized
Air Quality Development Revenue Refunding Bonds, 1994 Series B (The
Cincinnati Gas & Electric Company Project) (the Air Bonds) under a Trust
Indenture dated as of January 1, 1994 (the Air Bond Indenture), from the Air
Authority to The Bank of New York, as Trustee (the Air Bond Trustee). The
Bonds of Series B Due 2024 correspond in principal amount, interest rate,
maturity, and redemption provisions with the Air Bonds and have been pledged
and assigned by, and delivered on behalf of, the Air Authority to the Air
Bond Trustee as security for the payment of the principal of and premium, if
any, and interest on the Air Bonds.
In the event any Air Bond shall be surrendered to the Air Bond Trustee
for cancellation pursuant to the Air Bond Indenture (except upon exchange for
other Air Bonds), Bonds of Series B Due 2024 equivalent in principal amount
to such Air Bonds shall be deemed to have been paid, but only when and to the
extent (a) so noted on the schedule of payments hereon by the Company or an
agency of the Company and (if such agency is not the Trustee) written notice
by the Company or such agency of such notation has been received by the
Trustee or (b) such Bond is surrendered to and cancelled by the Trustee as
provided in the next paragraph; and in the event and to the extent the
principal of or premium, if any, or interest on any Air Bond shall be paid or
deemed to be paid, an equal amount of principal, or premium, if any, or
interest, as the case may be, payable with respect to an aggregate principal
amount of Bonds of Series B Due 2024 equal to the aggregate principal amount
of such Air Bonds shall be deemed to have been paid, but, in the case of such
payment of principal, only when and to the extent (i) so noted on the
schedule of payments hereon by the Company or an agency of the Company and
(if such agency is not the Trustee) written notice by the Company or such
agency of such notation has been received by the Trustee or (ii) such Bond is
surrendered to and cancelled by the Trustee as provided in the next
paragraph. When any such payment of principal of this Bond is made, it shall
be surrendered by the registered owner hereof to the Company or an agency of
the Company for such notation and notification or to the Trustee for
cancellation.
In the event that this Bond shall be deemed to have been paid in full,
this Bond shall be surrendered to the Trustee for cancellation. In the event
that this Bond shall be deemed to have been paid in part, this Bond may, at
the option of the registered owner, be surrendered to the Trustee for
cancellation, in which event the Trustee shall cancel this Bond and the
Company shall execute and the Trustee shall authenticate and deliver Bonds of
Series B Due 2024 in authorized
denominations in aggregate principal amount equal to the unpaid balance of
the principal amount of this Bond.
Bonds of Series B Due 2024 are subject to optional redemption by the
Company prior to stated maturity as provided in Section 5A of Article One of
the Thirty-fifth Supplemental Indenture.
Bonds of Series B Due 2024 are subject to mandatory redemption by the
Company prior to stated maturity as provided in Section 5B of Article One of
the Thirty-fifth Supplemental Indenture.
Bonds of Series B Due 2024 are subject to optional redemption by the
Company prior to stated maturity as provided in Section 5C of Article One of
the Thirty-fifth Supplemental Indenture.
Any redemption of the Bonds of Series B Due 2024 shall be made after
written notice to the registered owner of such Bonds, sent by the Trustee by
mail, first class postage prepaid, or hand delivered at least 30 days and not
earlier than 60 days before the redemption date, unless a shorter notice
period is consented to in writing by the registered owner or owners of all
Bonds of Series B Due 2024 and such consent is filed with the Trustee, and
shall be made in the manner provided in Article One of the Thirty-fifth
Supplemental Indenture, subject to the provisions of the First Mortgage as
amended.
The principal hereof may be declared or may become due on the
conditions, in the manner and at the time set forth in the Indenture, upon
the happening of a completed default as in the Indenture provided.
This Bond is nontransferable except as required to effect the assignment
hereof to the Air Bond Trustee or any successor to such Trustee.
Bonds of Series B Due 2024 are issuable as registered Bonds in the
denominations of $5,000 and integral multiples thereof.
No recourse shall be had for the payment of the principal of, or
interest on, this Bond, or under or upon any obligation, covenant, or
agreement contained in the Indenture, against any incorporator or any past,
present, or future subscriber to capital stock, shareholder, officer, or
director, as such, of the Company or of any predecessor or successor
corporation, either directly or through the Company
or any predecessor or successor corporation, under any present or future rule
of law, statute, or constitution or by the enforcement of any assessment or
otherwise, all such liability of incorporators, subscribers, shareholders,
officers, and directors being released by the registered owner hereof by the
acceptance of this Bond and being likewise waived and released by the terms
of the Indenture.
This Bond shall not become valid or obligatory for any purpose until The
Bank of New York, the Trustee under the Indenture, or its successor
thereunder, shall have signed the form of certificate endorsed hereon.
IN WITNESS WHEREOF, The Cincinnati Gas & Electric Company has caused
this Bond to be signed in its name by its President or a Vice-President,
manually or in facsimile, and its corporate seal or a facsimile thereof to be
affixed hereto or reproduced hereon and attested by its Secretary or an
Assistant Secretary, manually or in facsimile.
Dated
THE CINCINNATI GAS & ELECTRIC COMPANY,
By
Vice-President
Attest:
Secretary
[FORM OF TRUSTEE'S CERTIFICATE ON ALL BONDS OF SERIES B DUE 2024]
This Bond is one of the Bonds, of the series designated therein,
described in the within-mentioned Indenture.
THE BANK OF NEW YORK,
Trustee,
By
Authorized Signatory.
[FORM OF BOND OF SERIES C DUE 2024]
No. ............................ $ ...............................
THE CINCINNATI GAS & ELECTRIC COMPANY
FIRST MORTGAGE BOND
5-1/2% Series C Due 2024
Due January 1, 2024
THE CINCINNATI GAS & ELECTRIC COMPANY, a corporation of the State of
Ohio (the Company), for value received hereby promises to pay to
or registered assigns, on January 1, 2024,
at the office or agency of the Company in the Borough of Manhattan, The City
of New York, Dollars in such coin or currency of
the United States of America as at the time of payment is legal tender for
the payment of public and private debts, and, subject to certain exceptions
provided in Section 3 of Article One of the Thirty-fifth Supplemental
Indenture referred to below, to pay by check to the person in whose name this
Bond is registered at the close of business on the record date for such
payment, as defined in such Section 3, interest thereon from the interest
payment date to which interest has been paid last preceding the date hereof
(unless the date hereof is an interest payment date to which interest has
been paid, in which case from the date hereof, or unless the date hereof is
June 15, 1994, or prior thereto, in which case from January 1, 1994, or
unless the date hereof is between a record date and the interest payment date
for such record date, in which case from such interest payment date), at the
rate of 5-1/2% per annum in like coin or currency, payable at such office or
agency semiannually on January 1 and July 1 in each year, until the
Company's obligation with respect to the payment of such principal shall have
been discharged.
This Bond is one of an issue of First Mortgage Bonds of the Company
issued and to be issued in series under and pursuant to and equally secured
by an indenture of mortgage and deed of trust dated as of August 1, 1936,
executed by the Company to The Bank of New York, as Trustee, as amended and
supplemented as hereinafter stated, and is one of a series of such First
Mortgage Bonds, which series is designated as the First Mortgage Bonds,
5-1/2% Series C Due 2024, of the Company (the Bonds of Series C Due 2024),
the terms and
provisions of which have been established by a Thirty-fifth Supplemental
Indenture dated as of January 1, 1994, executed by the Company to The Bank of
New York, as Trustee. Subsequent to the execution and delivery of the
indenture of mortgage and deed of trust there have been executed and
delivered thirty-five indentures supplemental thereto, including the
Thirty-fifth Supplemental Indenture, supplementing and amending as therein
set forth certain provisions thereof. The indenture of mortgage and deed of
trust and the supplemental indentures collectively are sometimes called the
Indenture.
For a description of the property mortgaged and pledged, the nature and
extent of the security, the rights of the holders of the Bonds and of the
Trustee therein and thereto, the duties and immunities of the Trustee, and
the terms and conditions upon which the Bonds are issued and secured,
reference is hereby made to the Indenture. The rights and obligations of the
Company and of the holders and registered owners of the Bonds of this issue
may be modified or amended at the request of the Company by an indenture or
indentures supplemental to the Indenture, executed pursuant to the consent of
the holders or registered owners of at least 75% in principal amount of the
Bonds then outstanding affected by such modification or amendment, all in the
manner and subject to the limitations set forth in the Indenture, any consent
by the holder or registered owner of any Bond being conclusive and binding
upon such holder or registered owner and upon all of its future holders and
owners, irrespective of whether or not any notation of such consent is made
upon the Bond; provided that no such modification or amendment by such
supplemental indenture shall extend the maturity of, or reduce the rate of
interest on, or otherwise modify the terms of payment of the principal of, or
interest on, this Bond, which obligations are absolute and unconditional, nor
permit the creation of any lien ranking prior to or equal with the lien of
the Indenture on any of the mortgaged property.
The Bonds of Series C Due 2024 have been issued by the Company to the
County of Boone, Kentucky (the County) to evidence and secure the obligation
of the Company to repay the loan (the County Loan) of the proceeds of the
sale of the County Bonds (as hereinafter defined) made by the County to the
Company to assist in the refunding of revenue bonds originally issued by the
County to finance the Company's portion of the costs of certain pollution
control facilities. The County Loan is made pursuant to a certain Loan
Agreement, dated as of January 1, 1994, between the County and the Company
(the County Agreement). To provide funds for the County Loan, the County has
issued $48,000,000 principal amount of its Collateralized Pollution Control
Revenue Refunding Bonds,
1994 Series A (The Cincinnati Gas & Electric Company Project) (the County
Bonds) under a Trust Indenture dated as of January 1, 1994 (the County Bond
Indenture), from the County to The Bank of New York, as Trustee (the County
Bond Trustee). The Bonds of Series C Due 2024 correspond in principal amount,
interest rate, maturity, and redemption provisions with the County Bonds and
have been pledged and assigned by, and delivered on behalf of, the County to
the County Bond Trustee as security for the payment of the principal of and
premium, if any, and interest on the County Bonds.
In the event any County Bond shall be surrendered to the County Bond
Trustee for cancellation pursuant to the County Bond Indenture (except upon
exchange for other County Bonds), Bonds of Series C Due 2024 equivalent in
principal amount to such County Bonds shall be deemed to have been paid, but
only when and to the extent (a) so noted on the schedule of payments hereon
by the Company or an agency of the Company and (if such agency is not the
Trustee) written notice by the Company or such agency of such notation has
been received by the Trustee or (b) such Bond is surrendered to and cancelled
by the Trustee as provided in the next paragraph; and in the event and to the
extent the principal of or premium, if any, or interest on any County Bond
shall be paid or deemed to be paid, an equal amount of principal, or premium,
if any, or interest, as the case may be, payable with respect to an aggregate
principal amount of Bonds of Series C Due 2024 equal to the aggregate
principal amount of such County Bonds shall be deemed to have been paid, but,
in the case of such payment of principal, only when and to the extent (i) so
noted on the schedule of payments hereon by the Company or an agency of the
Company and (if such agency is not the Trustee) written notice by the Company
or such agency of such notation has been received by the Trustee or (ii) such
Bond is surrendered to and cancelled by the Trustee as provided in the next
paragraph. When any such payment of principal of this Bond is made, it shall
be surrendered by the registered owner hereof to the Company or an agency of
the Company for such notation and notification or to the Trustee for
cancellation.
In the event that this Bond shall be deemed to have been paid in full,
this Bond shall be surrendered to the Trustee for cancellation. In the event
that this Bond shall be deemed to have been paid in part, this Bond may, at
the option of the registered owner, be surrendered to the Trustee for
cancellation, in which event the Trustee shall cancel this Bond and the
Company shall execute and the Trustee shall authenticate and deliver Bonds of
Series C Due 2024 in authorized
denominations in aggregate principal amount equal to the unpaid balance of
the principal amount of this Bond.
Bonds of Series C Due 2024 are subject to optional redemption by the
Company prior to stated maturity as provided in Section 5A of Article One of
the Thirty-fifth Supplemental Indenture.
Bonds of Series C Due 2024 are subject to mandatory redemption by the
Company prior to stated maturity as provided in Section 5B of Article One of
the Thirty-fifth Supplemental Indenture.
Bonds of Series C Due 2024 are subject to optional redemption by the
Company prior to stated maturity as provided in Section 5C of Article One of
the Thirty-fifth Supplemental Indenture.
Any redemption of the Bonds of Series C Due 2024 shall be made after
written notice to the registered owner of such Bonds, sent by the Trustee by
mail, first class postage prepaid, or hand delivered at least 30 days and not
earlier than 60 days before the redemption date, unless a shorter notice
period is consented to in writing by the registered owner or owners of all
Bonds of Series C Due 2024 and such consent is filed with the Trustee, and
shall be made in the manner provided in Article One of the Thirty-fifth
Supplemental Indenture, subject to the provisions of the First Mortgage as
amended.
The principal hereof may be declared or may become due on the
conditions, in the manner and at the time set forth in the Indenture, upon
the happening of a completed default as in the Indenture provided.
This Bond is nontransferable except as required to effect the assignment
hereof to the County Bond Trustee or any successor to such Trustee.
Bonds of Series C Due 2024 are issuable as registered Bonds in the
denominations of $5,000 and integral multiples thereof.
No recourse shall be had for the payment of the principal of, or
interest on, this Bond, or under or upon any obligation, covenant, or
agreement contained in the Indenture, against any incorporator or any past,
present, or future subscriber to capital stock, shareholder, officer, or
director, as such, of the Company or of any predecessor or successor
corporation, either directly or through the Company
or any predecessor or successor corporation, under any present or future rule
of law, statute, or constitution or by the enforcement of any assessment or
otherwise, all such liability of incorporators, subscribers, shareholders,
officers, and directors being released by the registered owner hereof by the
acceptance of this Bond and being likewise waived and released by the terms
of the Indenture.
This Bond shall not become valid or obligatory for any purpose until The
Bank of New York, the Trustee under the Indenture, or its successor
thereunder, shall have signed the form of certificate endorsed hereon.
In Witness Whereof, The Cincinnati Gas & Electric Company has caused
this Bond to be signed in its name by its President or a Vice-President,
manually or in facsimile, and its corporate seal or a facsimile thereof to be
affixed hereto or reproduced hereon and attested by its Secretary or an
Assistant Secretary, manually or in facsimile.
Dated
THE CINCINNATI GAS & ELECTRIC COMPANY,
By
Vice-President
Attest:
Secretary
[FORM OF TRUSTEE'S CERTIFICATE ON ALL BONDS OF SERIES C DUE 2024]
This Bond is one of the Bonds, of the series designated therein,
described in the within-mentioned Indenture.
THE BANK OF NEW YORK,
Trustee,
By
Authorized Signatory.
WHEREAS, all things necessary to make the Bonds of Series Due 2024
herein described, when duly authenticated by the Trustee and issued by the
Company, valid, binding, and legal obligations of the Company, and to make
this Thirty- fifth Supplemental Indenture a valid and binding agreement
supplemental to the First Mortgage, have been done and performed;
THIS THIRTY-FIFTH SUPPLEMENTAL INDENTURE WITNESSETH
In consideration of the premises and of the acceptance and purchase of
the Bonds of Series Due 2024, the Company agrees with the Trustee as follows:
ARTICLE ONE
BONDS OF SERIES DUE 2024 AND ISSUE THEREOF
SECTION 1. There shall be three series of Bonds designated as set forth
in the second paragraph of the respective form of Bond, each of which shall
bear the descriptive title First Mortgage Bond. The aggregate principal
amount of the Bonds of Series A Due 2024, the Bonds of Series B Due 2024 and
the Bonds of Series Due C 2024 which may be outstanding under the First
Mortgage as amended and this Thirty-fifth Supplemental Indenture shall be
limited to $21,400,000, $25,300,000 and $48,000,000, respectively, except as
provided in Section 9 of Article Two of the First Mortgage as amended.
The Bonds of Series Due 2024 and the Trustee's certificate to be
endorsed on all the Bonds of such series shall respectively be substantially
as recited above, with such appropriate omissions, insertions, and variations
as in the First Mortgage as amended and in this Thirty-fifth Supplemental
Indenture permitted.
SECTION 2. Upon the execution and delivery of this Thirty-fifth
Supplemental Indenture and upon delivery to the Trustee of $94,700,000
aggregate principal amount of Bonds of Series Due 2024, executed by the
Company, and upon compliance by the Company with the provisions of the First
Mortgage as amended, the Trustee shall, without awaiting the filing or
recording of this Thirty-fifth Supplemental Indenture, authenticate and
deliver the Bonds.
SECTION 3. Bonds of Series Due 2024 shall be dated the date of their
authentication, shall mature on the date set forth in the first paragraph of
the respective form of Bond, shall bear interest at the rate set forth in
the first paragraph of the respective form of Bond until paid or redeemed as
hereinafter provided, payable by check semi-annually on each January 1 and
July 1, and shall be payable as to both principal and interest in such coin
or currency of the United States of America as 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 City of New York. So long as there is no
existing default in the payment of interest on the Bonds of Series Due 2024,
all Bonds authenticated by the Trustee after the close of business on the
record date (as hereinafter defined) for any interest payment date and prior
to such interest payment date, shall bear interest from such interest payment
date; provided, however, that if and to the extent that the Company shall
default in the interest due on such interest payment date then any such Bond
shall bear interest from the January 1 or July 1, as the case may be, next
preceding the date of such Bond to which interest has been paid, unless such
interest payment date is July 1, 1994, in which case from January 1, 1994.
The person in whose name any Bond of Series Due 2024 is registered at the
close of business on any record date (as hereinafter 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 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 persons in whose
names outstanding Bonds of Series Due 2024 are registered on the record date
fixed by the Company for the payment of such defaulted interest. The term
"record date", as used in this Section 3 with respect to any interest payment
date, shall mean December 15 for interest payable January 1 and shall mean
June 15 for interest payable July 1.
Notwithstanding the provision of the last sentence of Section 5 of
Article Two of the First Mortgage as amended, the Company shall be required
to register transfers of or exchange Bonds of Series Due 2024 at any time,
except that the Company shall not be required to register the transfer of or
exchange any such Bonds for a period of eleven business days next preceding
any selection of Bonds of Series Due 2024 to be redeemed, or to register the
transfer of or exchange any such Bonds selected, called or being called for
redemption.
SECTION 4. Bonds of Series Due 2024 shall be issued in the
denominations of $5,000 and authorized multiples thereof. Subject to the
provisions of the First Mortgage as amended, and as provided therein, any
owner of a Bond of Series Due 2024 may, at his option, surrender the same for
cancellation in exchange for other Bonds of the same series of other
authorized denominations for a like aggregate principal amount.
SECTION 5. The Bonds of Series Due 2024 may be redeemed as provided in
this Section 5 and in the manner described in the First Mortgage as amended.
Redemption of the bonds of one series of the Bonds of Series Due 2024 may
occur without the redemption of the bonds of any other series of the Bonds of
Series Due 2024, and any such redemption is neither contingent on, nor
necessarily contemporaneous with, the redemption of the bonds of any other
series of the Bonds of series Due 2024.
A. The bonds of each series of the Bonds of Series
Due 2024 are separately subject to optional redemption at any time, in
whole, at a price of 100% of the principal amount thereof, plus accrued
interest to the redemption date, upon the occurrence of any one of the
following events relating to the series of Issuers' Bonds in respect of
which such Bonds of Series Due 2024 shall have been issued:
(1) The related Project (as defined in the
Indentures for the Issuers' Bonds) or a related Project Unit
(as defined in the Water Agreement) or a related Station Unit
(as defined in the Air Agreement or the County Agreement, as
the case may be), as the case may be, shall have been damaged
or destroyed to such an extent that (a) it cannot reasonably
be expected to be restored, within a period of six consecutive
months, to the condition thereof immediately preceding such
damage or destruction or (b) the Company is reasonably
expected to be prevented from carrying on its normal
operations in connection therewith for a period of six
consecutive months.
(2) Title to, or the temporary use of, all or a
significant part of the related Project or a related Project
Unit, or related Station Unit, as the case may be, shall have
been taken under the exercise of the power of eminent domain
(a) to such extent that it cannot reasonably be expected to be
restored within a period of six
consecutive months to a condition of usefulness comparable to
that existing prior to the taking or (b) to such an extent
that the Company is reasonably expected to be prevented from
carrying on its normal operations in connection therewith for
a period of six consecutive months.
(3) As a result of any changes in the
Constitution of the State, the Constitution of the United
States of America or any state or federal laws or as a result
of legislative or administrative action (whether state or
federal) or by final decree, judgment or order of any court or
administrative body (whether state or federal) entered after
any contest thereof by an Issuer or the Company in good faith,
the Loan Agreement applicable to such series of Issuers' Bonds
shall have become void or unenforceable or impossible of
performance in accordance with the intent and purpose of the
parties as expressed in such Loan Agreement.
(4) Unreasonable burdens or excessive
liabilities shall have been imposed upon the related Issuer or
the Company with respect to the related Project or a related
Project Unit, or related Station Unit, as the case may be, or
the operation thereof, including, without limitation, the
imposition of federal, state or other ad valorem, property,
income or other taxes other than ad valorem taxes at the rates
presently levied upon privately owned property used for the
same general purpose as the related Project or a related
Project Unit, or related Station Unit, as the case may be.
(5) Changes in the economic availability of raw
materials, operating supplies, energy sources or supplies or
facilities (including, but not limited to, facilities in
connection with the disposal of industrial wastes) necessary
for the operation of the related Project or a related Project
Unit, or related Station Unit, as the case may be, for the
related Project Purposes (as defined in the Indentures for the
Issuers' Bonds) occur or technological or other changes occur
which the Company cannot reasonably overcome or control and
which in the Company's reasonable judgment render the related
Project or a related Project Unit, or related Station Unit, as
the case may be, uneconomical or obsolete for the related
Project Purposes.
(6) Any court or administrative body shall enter a
judgment, order or decree, or shall take administrative
action, requiring the Company to cease all or any substantial
part of its operations served by the related Project or a
related Project Unit, or related Station Unit, as the case may
be, to such extent that the Company is or will be prevented
from carrying on its normal operations at the related Project
or a related Project Unit, or related Station Unit, as the
case may be, for a period of six consecutive months.
(7) The termination by the Company of
operations at a related Project Unit.
B. Upon the occurrence of a Determination of
Taxability, the bonds of each series of the Bonds of Series Due 2024 are
separately subject to mandatory redemption by the respective Issuer at a
redemption price equal to 100% of the outstanding principal amount of
such bonds to be redeemed, plus interest accrued to the redemption date,
at the earliest practicable date selected by the Trustee, after
consultation with the Company, but in no event later than 180 days
following the receipt by the Trustee of written notice of the occurrence
of a Determination of Taxability.
The bonds of each such series of the Bonds of Series Due 2024
will be redeemed either in whole or in part in such principal amount as
is necessary in order that the interest payable on the Issuers' Bonds in
respect of which such Bonds of Series Due 2024 shall have been issued
remaining outstanding after such redemption, if any, would not, in the
opinion of bond counsel, be includable in the gross income of any Holder
(as defined in the Indentures for the Issuers' Bonds) thereof, other
than a Holder of an Issuers' Bond who is a "substantial user" of the
related Project or a "related person," as those terms are used in
Section 147(a) of the Code (as defined in the Indentures for the
Issuers' Bonds).
Determination of Taxability means, with respect to the bonds of
a series of the Issuers' Bonds, a final decision, ruling or technical
advice by any federal judicial or administrative authority to the effect
that, as a result of a failure by the Company to observe or perform any
covenant, agreement or obligation on its part to be observed or
performed under the Loan Agreement applicable to such series of Issuers'
Bonds or the
inaccuracy of any representation made by the Company in such Agreement,
interest on the Issuers' Bonds of such series is or was includable in
the gross income of the owner of that Bond for federal income tax
purposes (other than an owner who is a "substantial user" of the related
Project or a "related person" as those terms are used in Section 147(a)
of the Code); provided that no decision by any court or decision, ruling
or technical advice by any administrative authority shall be considered
final (a) unless the owner involved in the proceeding or action giving
rise to such decision, ruling or technical advice (i) gives the Company
and the Trustee prompt notice of the commencement thereof, and
(ii) offers the Company the opportunity to control the contest thereof,
provided the Company shall have agreed to bear all expenses in
connection therewith and to indemnify that owner against all liabilities
in connection therewith, and (b) until the expiration of all periods for
judicial review or appeal. A Determination of Taxability will not
result from the inclusion of interest on any Issuers' Bond in the
computation of the alternative minimum tax imposed by Section 55 of the
Code, the environmental tax imposed by Section 59A of the Code, the
branch profits tax on foreign corporations imposed by Section 884 of the
Code or the tax imposed on net excess passive income on certain S
corporations under Section 1366 of the Code.
C. On or after January 1, 2004, the bonds of each
series of the Bonds of Series Due 2024 are also separately subject to
optional redemption prior to stated maturity in whole or in part at any
time at redemption prices equal to the following percentages of the
principal amount redeemed, plus in each case accrued interest to the
redemption date:
Redemption Period (Dates Inclusive) Redemption Price
----------------------------------- ----------------
January 1, 2004 through December 31, 2004 . . . . . 102%
January 1, 2005 through December 31, 2005 . . . . . 101%
January 1, 2006 and thereafter . . . . . . . . . . 100%
SECTION 6. [This space left blank intentionally]
SECTION 7. The covenant to provide a Maintenance and Replacement Fund
contained in the provisions of Section 5 of Article Eight of the First
Mortgage as amended shall not apply in respect of the Bonds of Series Due
2024.
SECTION 8. In the event any Issuers' Bonds shall be purchased by the
Company and surrendered by the Company to the Trustee for the Issuers' Bonds
for cancellation or shall be otherwise surrendered to the Trustee for the
Issuers' Bonds for cancellation pursuant to the Indentures for the Issuers'
Bonds (except upon exchange for other Issuers' Bonds), Bonds of Series Due
2024 of the series issued in respect of such Issuers' Bonds equivalent in
principal amount to the Issuers' Bonds so surrendered shall be deemed to have
been paid, but only when and to the extent that (a) such payment of the
principal amount of such Bonds of Series Due 2024 shall be noted by the
Company or an agency of the Company on the schedule of payments on such Bonds
of Series Due 2024 and (if such agency is not the Trustee) written notice by
the Company or such agency of such notation shall have been received by the
Trustee or (b) such Bonds of Series Due 2024 shall have been surrendered to
and cancelled by the Trustee as provided in the third paragraph of this
Section 8.
In the event and to the extent the principal of or premium, if any, or
interest on any Issuers' Bonds shall be paid out of funds held by the Trustee
for the Issuers' Bonds or out of any other funds or shall otherwise be deemed
to be paid, an equal amount of principal, or premium, if any, or interest, as
the case may be, payable with respect to an aggregate principal amount of
Bonds of Series Due 2024 of the series issued in respect of such Issuers'
Bonds equal to the aggregate principal amount of such Issuers' Bonds shall be
deemed to have been paid, but, in the case of such payment of principal of
such Bonds of Series Due 2024, only when and to the extent that (a) such
payment of the principal amount thereof shall be noted by the Company or an
agency of the Company on the schedule of payments on such Bonds of Series Due
2024 and (if such agency is not the Trustee) written notice by the Company or
such agency of such notation shall have been received by the Trustee or (b)
such Bonds of Series Due 2024 shall have been surrendered to and cancelled by
the Trustee as provided in the third paragraph of this Section 8.
When payment of any principal amount of a Bond of Series Due 2024 is
made as provided in the first two paragraphs of this Section 8, the
registered owner thereof shall surrender it to the Company or an agency of
the Company for notation and notification or to the Trustee for cancellation
as provided in such
Section. All Bonds of Series Due 2024 deemed to have been paid in full as
provided in the first two paragraphs of this Section 8, shall be surrendered
to the Trustee for cancellation and the Trustee shall forthwith cancel the
same. In the event that part of a Bond of Series Due 2024 shall be deemed to
have been paid as provided in the first two paragraphs of this Section 8, the
registered owner may at its option surrender such Bond to the Trustee for
cancellation, in which event the Trustee shall cancel such Bond and the
Company shall execute and the Trustee shall authenticate and deliver, without
charge to the registered owner, Bonds of Series Due 2024 of the same series
in such authorized denominations as shall be specified by the registered
owner in an aggregate principal amount equal to the unpaid balance of the
principal amount of such surrendered Bond.
SECTION 9. The optional redemption provided in Sections 5A and 5C of
Article One of this Thirty-fifth Supplemental Indenture shall be made upon
receipt by the Trustee of an Officer's certificate to the effect that (a) the
Company has given notice in respect of a series of the Issuers' Bonds to the
Trustee for the Issuers' Bonds that the Company is exercising its option to
prepay the loan in full or in part as provided in Section 6.1 or in full as
provided in Section 6.2 of the Loan Agreement applicable to such series of
Issuers' Bonds and (b) an equivalent principal amount of Bonds of Series Due
2024 of the series issued in respect of such series of Issuers' Bonds are
concurrently called for redemption. Such Officer's certificate shall specify
the principal amount of such Bonds of Series Due 2024 to be redeemed, shall
have attached to it a copy of said notice to the Trustee for the Issuers'
Bonds, and shall specify the redemption date of such Bonds of Series Due 2024
(which redemption date shall be not less than 45 days after the date of
mailing of such certificate and shall be the same date as the redemption date
specified in said attached notice for the Issuers' Bonds being concurrently
redeemed).
The mandatory redemption provided in Section 5B of Article One of this
Thirty-fifth Supplemental Indenture shall be made upon receipt by the Trustee
of an Officer's certificate to the effect that (a) the Company has given
notice to the Trustee for the Issuers' Bonds that the Company is paying the
loan in full, or in part, as provided in Section 6.3 of the Loan Agreement
applicable to such series of Issuers' Bonds and (b) an equivalent principal
amount of Bonds of Series Due 2024 of the series issued in respect of such
series of Issuers' Bonds are being concurrently called for redemption. Said
notice to the Trustee for the Issuers' Bonds shall be attached to such
Officer's certificate, which certificate shall specify the redemption date of
such Bonds of Series Due 2024 (which redemption date
shall be not less than 45 days after the date of the mailing of such
certificate and shall be the same date as the redemption date specified in
said attached notice for the Issuers' Bonds being concurrently redeemed).
ARTICLE TWO
COVENANTS OF THE COMPANY
SECTION 1. All covenants and agreements by the Company in the First
Mortgage as heretofore and hereby amended are hereby confirmed, except the
covenant contained in Section 5 of Article Eight.
SECTION 2. So long as any Bonds of Series Due 2024 shall be outstanding
the Company (a) will not sell or otherwise dispose of any equity securities
owned by it of The Union Light, Heat and Power Company, a Kentucky
corporation (the Subsidiary) otherwise than to the Subsidiary or otherwise
than as part of a merger or consolidation of the Subsidiary into or with the
Company or the liquidation of the Subsidiary, unless all the equity
securities owned by the Company of the Subsidiary shall be sold or otherwise
disposed of and the proceeds of such sale or other disposition deposited with
the Trustee hereunder to be held and disposed of as provided in Section 5 of
Article Eleven of the First Mortgage as amended, and (b) will not permit the
Subsidiary to sell, otherwise than to the Company, any equity securities
issued by the Subsidiary; provided that nothing in this clause (b) shall
prevent the Subsidiary, in connection with the sale of equity securities to
the Company, from selling equity securities to others than the Company to the
extent necessary to satisfy the preemptive rights of minority stockholders
under applicable law.
So long as any Bonds of Series Due 2024 shall be outstanding, the
Company (a) will not sell or otherwise dispose of any securities, other than
equity securities, owned by it of the Subsidiary otherwise than to the
Subsidiary or otherwise than as part of the merger or consolidation of the
Subsidiary into or with the Company; or (b) so long as any equity securities
of the Subsidiary shall be owned by the Company, will not permit the
Subsidiary to issue or sell, otherwise than to the Company, any securities,
other than equity securities, issued by the Subsidiary if, in either case,
after giving effect to such sale or other disposition, the outstanding
securities, other than equity securities, of the Subsidiary will be in excess
of 75% of the plant account of the Subsidiary as
shown by its books as of the end of the calendar month next preceding such
sale or other disposition after deducting from such plant account the amount
of the reserves for depreciation and amortization applicable thereto shown by
the books of the Subsidiary and any other reserves shown by its books which
are applicable to such plant account or any part thereof.
The term "equity securities", as used in this Section, shall mean any
securities other than bonds, notes, or other evidences of indebtedness
bearing interest at a fixed rate and payable on demand or having a fixed
maturity date.
ARTICLE THREE
AMENDMENT OF ARTICLE ONE, ARTICLE FIVE, ARTICLE ELEVEN, AND
ARTICLE EIGHTEEN OF THE FIRST MORTGAGE AS AMENDED
SECTION 1. The Bonds of Series Due 2024 are hereby excluded from
subdivision (7) of Section 5 of Article One of the First Mortgage as
heretofore and hereby amended or supplemented.
SECTION 2. The Company reserves the right, without any consent or other
action by holders of Bonds of Series Due 2024 or of any subsequently created
series, to amend at any time the First Mortgage, as heretofore and hereby
amended or supplemented, as follows:
(1) by inserting after the words "or other similar property,"
in subdivision (1) of Section 2 of Article Eleven thereof the following:
"or any nuclear fuel materials, assemblies or
components,"
(2) at any time after all Bonds of any Series created prior to
1986 are no longer outstanding under the First Mortgage
(a) by substituting for the words "in a
principal amount not exceeding sixty per centum (60%) of" in
Section 3 of Article Five thereof the following:
"in a principal amount not exceeding sixty-six
and two-thirds per centum (66 2/3%) of"
(b) by substituting for the words "with the
consent of holders of seventy-five per centum (75%) in
aggregate principal amount of the Bonds at the time
outstanding;" in Section 2 of Article Eighteen thereof the
following:
"with the consent of holders of sixty-six and
two-thirds per centum (66 2/3%) in aggregate
principal amount of the Bonds at the time
outstanding;"
(c) by substituting for the third paragraph of
Section 2 of Article Eighteen thereof the following:
"Whenever, at any time after the
completion of publication of said notice, the
Company shall deliver to the Trustee an
instrument or instruments executed by holders of
at least sixty-six and two-thirds per centum
(66 2/3%) in aggregate principal amount of the
Bonds affected, outstanding at the time of such
delivery, consenting to the substance of the
proposed modification or amendment, thereupon
the Trustee shall execute such supplemental
indenture in substantially the form of the copy
thereof on file with the Trustee, and no holder
of any Bond shall have any right or interest to
object to the execution of said supplemental
indenture or to object to any of the terms or
provisions therein contained, or the operation
thereof, or in any manner to question the
propriety of the execution thereof, or to enjoin
or restrain the Trustee or the Company from
executing the same or from taking any action
pursuant to the provisions thereof, provided
that, in lieu of an instrument or instruments
executed by holders of Bonds, the consent of the
holders of any series of Bonds to any such
proposed modification or amendment may be set
forth in and evidenced by the supplemental
indenture establishing the terms and provisions
of such series."
ARTICLE FOUR
MISCELLANEOUS
SECTION 1. The provisions of this Thirty-fifth Supplemental Indenture
shall become effective immediately upon the execution and delivery hereof,
except that the provisions hereof modifying and amending the First Mortgage
as amended shall become effective simultaneously with and upon the initial
issue of Bonds of Series Due 2024. From and after such initial issue of
Bonds of Series Due 2024, this Thirty-fifth Supplemental Indenture shall form
a part of the First Mortgage and all the terms and conditions hereof shall be
deemed to be part of the terms of the First Mortgage, 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-fifth 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 shall be applicable with respect to the Bonds of Series Due 2024,
except in so far as such covenants, conditions, terms, and provisions are
limited and applicable only to the Bonds of another or other series, 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-fifth Supplemental Indenture
in the same manner as though set out herein at length. All representations
and recitals contained in this Thirty-fifth Supplemental Indenture and in the
Bonds of Series Due 2024 (save only the Trustee's certificate upon such
Bonds) 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
heretofore and hereby amended, when used in this Thirty-fifth Supplemental
Indenture shall, respectively, have the meanings set forth in such Article.
No Bonds of Series Due 2024 shall be deemed to be outstanding within the
meaning of the phrase "so long as any Bonds of Series Due 2024 shall be
outstanding" as used in this Thirty-fifth Supplemental Indenture, if the
Company shall have exercised its option to redeem all the Bonds of Series Due
2024 then remaining outstanding and shall have deposited with the Trustee the
proper redemption price thereof, to be held by the Trustee in trust for the
holders of such Bonds, and provided that notice of such redemption shall have
been duly given or provision, satisfactory to the Trustee, for the giving of
such notice shall have
been made, and provided further that provision shall have been made
prohibiting any further issue of Bonds of Series Due 2024 after such deposit
of the redemption price of the Bonds of Series Due 2024 then outstanding.
SECTION 3. This Thirty-fifth 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 and
its corporate seal to be hereunto affixed and attested by its Secretary, and
THE BANK OF NEW YORK has caused this instrument to be signed on its behalf by
a Vice President and its corporate seal to be hereunto affixed and attested
by an Assistant Treasurer, as of the day and year first above written.
THE CINCINNATI GAS & ELECTRIC COMPANY,
By /S/ C. R. Everman
-----------------------------------
Vice-President.
(Seal)
Attest: /S/ D. R. Blum
---------------------
Secretary.
Signed and acknowledged in our presence on behalf of
The Cincinnati Gas & Electric Company
/S/ B. C. Arnett
- ---------------------------
B. C. Arnett
/S/ Mark E. Chastain
- ---------------------------
Mark E. Chastain
THE BANK OF NEW YORK,
By /S/ W. T. Cunningham
-----------------------------------
Vice President.
(Seal)
Attest: /S/ L. Firrincieli
--------------------
Assistant Treasurer.
Signed and acknowledged in our presence on behalf of
The Bank of New York
/S/ L. Mullen
- ---------------------------
L. Mullen
/S/ A. Mazur
- ---------------------------
A. Mazur
STATE OF OHIO ) ss.:
COUNTY OF HAMILTON )
On this 10th day of January 1994, C. ROBERT EVERMAN and DONALD R. BLUM,
came before me and acknowledged that they signed and sealed this instrument
as Vice-President and Secretary, respectively, of THE CINCINNATI GAS &
ELECTRIC COMPANY and that the same were free acts; and such Vice-President,
being duly sworn, said that he resides in Kenton County, Kentucky that he is
a Vice-President of the corporation, that the seal affixed hereto is its
corporate seal, that it was affixed by order of its Board of Directors, and
that he signed his name thereto by like order.
IN WITNESS WHEREOF I have signed my name and affixed my official seal.
(Seal)
/S/ Steven A. Niederbaumer
---------------------------
STEVEN A. NIEDERBAUMER
Notary Public, State of Ohio
My Commission Expires Oct. 26, 1994
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK )
On this 11th day of January 1994, W. T. CUNNINGHAM and LUCILLE
FIRRINCIELI, came before me and acknowledged that they signed and sealed this
instrument as VICE PRESIDENT and ASSISTANT TREASURER, respectively, of THE
BANK OF NEW YORK, and that the same were free acts; and such Vice President
being duly sworn, said that he resides in DENVILLE, NEW JERSEY, that he is a
VICE PRESIDENT of THE BANK OF NEW YORK, that the seal affixed hereto is its
corporate seal, that it was affixed by authority of its Board of Directors,
and that he signed his name thereto by like authority.
IN WITNESS WHEREOF I have signed my name and affixed my official seal.
(Seal)
/S/ Marion Papadogonas
---------------------------
Marion Papadogonas
Notary Public, State of New York
No. 31-4842989
Qualified in New York County
Commission Expires May 31, 1995
This instrument was prepared by /S/ James J. Mayer
--------------------------
James J. Mayer, Esq.
P.O. Box 960
Cincinnati, Ohio 45201