THE UNION LIGHT, HEAT AND POWER COMPANY
AND
THE FIFTH THIRD BANK,
Trustee
----------------
Third Supplemental Indenture
Dated as of December 8, 1998
To
Indenture
Dated as of July 1, 1995
----------------
6.11% Debentures Due 2003
THIRD SUPPLEMENTAL INDENTURE, dated as of December 8, 1998, 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 6.11%
Debentures Due 2003 (herein called the "Debentures"), in this Third Supplemental
Indenture.
All things necessary to make this Third Supplemental Indenture a valid agreement
of the Company have been done.
Now, Therefore, This Third 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
"6.11% Debentures Due 2003", limited in aggregate principal amount to
$20,000,000 (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 December 8, 2003 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 on
June 8 and December 8 in each year (each an "Interest Payment Date"), commencing
on June 8, 1999, at the rate per annum specified in the designation of the
Debentures from December 8, 1998, 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
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:
(FORM OF FACE OF DEBENTURE)
No. R-1 $20,000,000
CUSIP No. 000000XX0
THE UNION LIGHT, HEAT AND POWER COMPANY
6.11% DEBENTURE DUE 2003
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 Twenty Million and No/100
Dollars ($20,000,000) on December 8, 2003, and to pay interest thereon from
December 8, 1998 or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semiannually on June 8 and December 8 in
each year, commencing June 8, 1999, at the rate of 6.11% 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 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..............................
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.............................
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 $20,000,000.
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 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 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 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 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.
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 $20,000,000, may,
upon execution of this Third 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 Third Supplemental
Indenture, is in all respects ratified and confirmed, and this Third
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
------------------
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 Third Supplemental
Indenture to be duly executed as of the date first above written.
THE UNION LIGHT, HEAT AND POWER COMPANY
By
Xxxxxxx X. Xxxxxxx
Vice President and
Treasurer
THE FIFTH THIRD BANK, as Trustee
By
Xxxxx Xxxxx
Vice President
