EXHIBIT 4 (e)
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THE UNION LIGHT, HEAT AND POWER COMPANY
AND
THE FIFTH THIRD BANK,
Trustee
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Fourth Supplemental Indenture
Dated as of
To
Indenture
Dated as of
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% Debentures Due
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FOURTH SUPPLEMENTAL INDENTURE, dated as of , between The Union
Light, Heat and Power Company, a corporation duly organized and existing
under the laws of the Commonwealth of Kentucky (herein called the "Company"),
having its principal office at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx
00000, and The Fifth Third Bank, an Ohio banking corporation, as Trustee
(herein called the "Trustee") under the Indenture dated as of July 1, 1995
between the Company and the Trustee (the "Indenture").
Recitals of the Company
The Company has executed and delivered the Indenture to the Trustee to
provide for the issuance from time to time of its unsecured debentures, notes or
other evidences of indebtedness (the "Securities"), to be issued in one or more
series as in the Indenture provided.
Pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a new series of its Securities to be known
as its % Debentures Due (herein called the "Debentures"), in this Fourth
Supplemental Indenture.
All things necessary to make this Fourth Supplemental Indenture a valid
agreement of the Company have been done.
Now, Therefore, This Fourth Supplemental Indenture Witnesseth:
For and in consideration of the premises and the purchase of the
Debentures by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Debentures, as follows:
ARTICLE ONE
Terms of the Debentures
Section 101. There is hereby authorized a series of Securities
designated the " % Debentures Due ", limited in aggregate principal
amount to $ ,000,000 (except as provided in Section 301(2) of the
Indenture). The Debentures shall mature and the principal shall be due and
payable together with all accrued and unpaid interest thereon on ,
and shall be issued in the form of a registered Global Security without
coupons, registered in the name of Cede & Co., as nominee of The Depository
Trust Company (the "Depositary").
Section 102. The provisions of Section 305 of the Indenture applicable
to Global Securities shall apply to the Debentures.
Section 103. Interest on each of the Debentures shall be payable
semiannually
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on and in each year (each an "Interest Payment Date"), commencing
on , at the rate per annum specified in the designation of the
Debentures from , or from the most recent Interest Payment Date to
which interest has been paid or duly provided for. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will
be paid to the Person in whose name such Debenture (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the Business Day immediately
preceding such Interest Payment Date. The amount of interest payable for any
period will be computed on the basis of a 360-day year of twelve 30-day
months. As used herein, "Business Day" means any day, other than a Saturday
or Sunday, or a day on which banking institutions in New York, New York are
authorized or obligated by law or executive order to be closed.
Section 104. Subject to agreements with or the rules of the Depositary
or any successor book-entry security system or similar system with respect to
Global Securities, payments of interest will be made by check mailed to the
Holder of each Debenture at the address shown in the Security Register, and
payments of the principal amount of each Debenture will be made at maturity by
check against presentation of the Debenture at the office or agency of the
Trustee.
Section 105. The Debentures shall be issued in denominations of $1,000
or any integral multiple of $1,000.
Section 106. Principal and interest on the Debentures shall be payable
in the coin or currency of the United States of America, which, at the time of
payment, is legal tender for public and private debts.
Section 107. The Debentures shall be subject to defeasance and covenant
defeasance, at the Company's option, as provided for in Sections 1302 and 1303
of the Indenture.
Section 108. Subject to the terms of Article Eleven of the Indenture,
the Company shall have the right to redeem the Debentures, in whole but not in
part, from time to time and at any time (such redemption, an "Optional
Redemption", and the date thereof, the "Optional Redemption Date") upon not less
than 30 days' notice to the holders, at a redemption price equal to the sum of
(A) the greater of (i) 100% of the principal amount of the Debentures to be
redeemed or (ii) the sum of the present values of the Remaining Scheduled
Payments thereon discounted to the Optional Redemption Date on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate plus 15 basis points, less the Applicable Accrued Interest Amount
plus (B) the Applicable Accrued Interest Amount.
"Applicable Accrued Interest Amount" means, at the Optional Redemption
Date, the amount of interest accrued and unpaid from the prior interest payment
date to the Optional Redemption Date on the Debentures subject to the Optional
Redemption determined at the rate per annum shown in the title thereof, computed
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on the basis of a 360-day year of twelve 30-day months.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Debentures to be redeemed pursuant to the
Optional Redemption. "Independent Investment Banker" means one of the Reference
Treasury Dealers appointed by the Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to the Optional
Redemption Date, the average of the Reference Treasury Dealer Quotations for
such Optional Redemption Date.
"Reference Treasury Dealer" means a primary U.S. Government securities
dealer in New York City. "Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any redemption date, the average,
as determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.
on the third Business Day preceding such redemption date.
"Remaining Scheduled Payments" means, with respect to any Debenture,
the remaining scheduled payments of the principal thereof to be redeemed and
interest thereon that would be due after the Optional Redemption Date but for
the Optional Redemption.
"Treasury Rate" means, with respect to the Optional Redemption Date (if
any), the rate per annum equal to the semiannual equivalent yield to maturity of
the Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Optional Redemption Date.
ARTICLE TWO
Form of the Debentures
Section 201. The Debentures are to be substantially in the following
form and shall include substantially the legend shown so long as the
Debentures are Global Securities:
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(FORM OF FACE OF DEBENTURE)
No. R-1 $ ,000,000
CUSIP No.
THE UNION LIGHT, HEAT AND POWER COMPANY
% DEBENTURE DUE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE UNION LIGHT, HEAT AND POWER COMPANY, a corporation duly
organized and existing under the laws of the Commonwealth of Kentucky (herein
called the "Company", which term includes any successor Person under the
Indenture hereafter referred to), for value received, hereby promises to pay
to CEDE & CO., or registered assigns, the principal sum of Million and
No/100 Dollars ($ ,000,000) on , and to pay interest thereon from
or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semiannually on and
in each year, commencing , , at the rate of % per annum, until
the principal hereof is paid or made available for payment. The amount of
interest payable on any Interest Payment Date shall be computed on the basis
of a 360-day year of twelve 30-day months. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the
Business Day immediately preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to
be payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than
10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements
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of any securities exchange on which the Securities of this series may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the corporate trust office of the Trustee maintained
for that purpose in the City of Cincinnati, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
Any payment on this Security due on any day which is not a Business Day
in the City of New York need not be made on such day, but may be made on the
next succeeding Business Day with the same force and effect as if made on the
due date and no interest shall accrue for the period from and after such date,
unless such payment is a payment at maturity or upon redemption, in which case
interest shall accrue thereon at the stated rate for such additional days.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, or a day on which banking institutions in New York, New York are
authorized or obligated by law or executive order to be closed.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
In Witness Whereof, the Company has caused this instrument to be duly
executed.
THE UNION LIGHT, HEAT AND POWER COMPANY
By
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CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE FIFTH THIRD BANK,
as Trustee
By
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Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Security is one of a duly authorized issue of securities of the Company
(herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of July 1, 1995 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and The Fifth Third Bank, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of
the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and
of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof,
limited in aggregate principal amount to $ ,000,000.
The Securities of this series are subject to optional redemption, in whole
but not in part, from time to time and at any time (such redemption, an
"Optional Redemption", and the date thereof, the "Optional Redemption Date")
upon not less than 30 days' notice to the holders, at a redemption price
equal to the sum of (A) the greater of (i) 100% of the principal amount of
the Securities of this series to be redeemed or (ii) the sum of the present
values of the Remaining Scheduled Payments thereon discounted to the Optional
Redemption Date on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate plus basis points, less
the Applicable Accrued Interest Amount plus (B) the Applicable Accrued
Interest Amount.
"Applicable Accrued Interest Amount" means, at the Optional Redemption Date,
the amount of interest accrued and unpaid from the prior interest payment
date to the Optional Redemption Date on the Securities of this series subject
to the Optional Redemption determined at the rate per annum shown in the
title thereof, computed on the basis of a 360-day year of twelve 30-day
months.
"Comparable Treasury Issue" means the United States Treasury security selected
by
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an Independent Investment Banker as having a maturity that would be utilized,
at the time of selection and in accordance with customary financial practice,
in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of the Securities of this series to be redeemed pursuant
to the Optional Redemption. "Independent Investment Banker" means one of the
Reference Treasury Dealers appointed by the Trustee after consultation with
the Company.
"Comparable Treasury Price" means, with respect to the Optional Redemption Date,
the average of the Reference Treasury Dealer Quotations for such Optional
Redemption Date.
"Reference Treasury Dealer" means a primary U.S. Government securities dealer in
New York City. "Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.
on the third Business Day preceding such redemption date.
"Remaining Scheduled Payments" means, with respect to any Securities of this
series, the remaining scheduled payments of the principal thereof to be redeemed
and interest thereon that would be due after the Optional Redemption Date but
for the Optional Redemption.
"Treasury Rate" means, with respect to the Optional Redemption Date (if any),
the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Optional Redemption Date.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security or certain restrictive covenants and Events of
Default with respect to this Security upon compliance with certain conditions
set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of a majority in principal amount of the
Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the
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Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of
this Security shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 35% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonably satisfactory indemnity,
and the Trustee shall not have received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding a
direction inconsistent with such request, and shall have failed to institute any
such proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
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Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
ARTICLE THREE
Original Issue of Debentures
Section 301. Debentures in the aggregate principal amount of
$ ,000,000, may, upon execution of this Fourth Supplemental Indenture,
or from time to time thereafter, be executed by the Company and delivered to
the Trustee for authentication, and the Trustee shall thereupon authenticate
and deliver said Debentures upon a Company Order without any further action by
the Company.
ARTICLE FOUR
Paying Agent and Security Registrar
Section 401. The Fifth Third Bank will be the Paying Agent and Security
Registrar for the Debentures.
ARTICLE FIVE
Sundry Provisions
Section 501. Except as otherwise expressly provided in this Third
Supplemental Indenture or in the form of Debenture or otherwise clearly required
by the context hereof or thereof, all terms used herein or in said form of
Debenture that are defined in the Indenture shall have the several meanings
respectively assigned to them thereby.
Section 502. The Indenture, as supplemented by this Fourth Supplemental
Indenture, is in all respects ratified and confirmed, and this Fourth
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
In Witness Whereof, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed as of the date first above written.
THE UNION LIGHT, HEAT AND POWER COMPANY
By
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Xxxxxxx X. Xxxxxxx
Vice President and
Treasurer
THE FIFTH THIRD BANK, as Trustee
By
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Xxxxx Xxxxx
Vice President
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