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REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE CINCINNATI GAS & ELECTRIC COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
OHIO 31-0240030
(STATE OF INCORPORATION) (I.R.S. EMPLOYER
IDENTIFICATION NO.)
139 EAST FOURTH STREET
CINCINNATI, OHIO 45202
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: 513-381-2000
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WILLIAM L. SHEAFER, TREASURER
139 EAST FOURTH STREET
CINCINNATI, OHIO 45202
(NAME AND ADDRESS OF AGENT FOR SERVICE)
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COPIES OF ALL COMMUNICATIONS TO:
CHARLES S. WHITMAN, III RONAL R. NEWBANKS
DAVIS POLK & WARDWELL TAFT, STETTINIUS & HOLLISTER
450 LEXINGTON AVENUE STAR BANK CENTER
NEW YORK, NEW YORK 10017 CINCINNATI, OHIO 45202
(COUNSEL FOR THE UNDERWRITERS) (COUNSEL FOR THE REGISTRANT)
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of the Registration Statement.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [X]
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT(1) PRICE(1) FEE
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First Mortgage Bonds...... $300,000,000 100% $300,000,000 $103,448.28
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(1) Estimated solely for the purpose of calculating the registration fee.
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS
CONSTITUTING A PART OF THIS REGISTRATION STATEMENT ALSO RELATES TO THE
REMAINING $80,000,000 AGGREGATE PRINCIPAL AMOUNT OF THE $300,000,000 AGGREGATE
PRINCIPAL AMOUNT OF THE REGISTRANT'S FIRST MORTGAGE BONDS, SUCH BONDS HAVING
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 BY REGISTRATION STATEMENT NO.
33-50443.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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PROSPECTUS
The Cincinnati Gas & Electric Company
FIRST MORTGAGE BONDS
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THE CINCINNATI GAS & ELECTRIC COMPANY INTENDS FROM TIME TO TIME TO ISSUE UP TO
$380,000,000 AGGREGATE PRINCIPAL AMOUNT OF ITS FIRST MORTGAGE BONDS (NEW
BONDS) IN ONE OR MORE SERIES ON TERMS TO BE DETERMINED AT THE TIME OR TIMES OF
SALE. FOR EACH ISSUE OF THE NEW BONDS FOR WHICH THIS PROSPECTUS IS BEING
DELIVERED (OFFERED BONDS), THERE IS AN ACCOMPANYING PROSPECTUS SUPPLEMENT
(PROSPECTUS SUPPLEMENT) THAT SETS FORTH THE AGGREGATE PRINCIPAL AMOUNT,
MATURITY, RATE AND TIME OF PAYMENT OF INTEREST, PURCHASE PRICE, ANY TERMS FOR
REDEMPTION AND ANY OTHER SPECIAL TERMS OF THE OFFERED BONDS.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
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CG&E may sell the New Bonds through underwriters, dealers or agents, or
directly to one or a limited number of purchasers. The Prospectus Supplement
will set forth the names of underwriters, dealers or agents, if any, any
applicable commissions or discounts and the net proceeds to CG&E from the sale
of the Offered Bonds.
February , 1994
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THE CINCINNATI GAS & ELECTRIC COMPANY (CG&E) IS SUBJECT TO THE INFORMATIONAL
REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934 (EXCHANGE ACT) AND
ACCORDINGLY FILES REPORTS AND OTHER INFORMATION WITH THE SECURITIES AND
EXCHANGE COMMISSION. INFORMATION CONCERNING DIRECTORS AND OFFICERS, THEIR
REMUNERATION, AND ANY MATERIAL INTEREST OF SUCH PERSONS IN TRANSACTIONS WITH
CG&E, AS OF PARTICULAR DATES, IS DISCLOSED IN PROXY STATEMENTS DISTRIBUTED TO
CG&E'S SHAREHOLDERS AND FILED WITH THE COMMISSION. SUCH REPORTS, PROXY
STATEMENTS, AND OTHER INFORMATION CAN BE INSPECTED AND COPIED AT THE PUBLIC
REFERENCE FACILITIES MAINTAINED BY THE COMMISSION AT ROOM 1024, 450 FIFTH
STREET, N.W., WASHINGTON, D.C.; SUITE 1400, CITICORP CENTER, 500 WEST MADISON
STREET, CHICAGO, ILLINOIS; AND SEVEN WORLD TRADE CENTER, 13TH FLOOR, NEW YORK,
N.Y. COPIES OF SUCH MATERIAL CAN ALSO BE OBTAINED AT PRESCRIBED RATES FROM THE
PUBLIC REFERENCE SECTION OF THE COMMISSION AT ITS PRINCIPAL OFFICE AT 450 FIFTH
STREET, N.W., WASHINGTON, D.C. 20549. SUCH MATERIAL CAN ALSO BE INSPECTED AT
THE OFFICES OF THE NEW YORK STOCK EXCHANGE, THE CHICAGO STOCK EXCHANGE, THE
PACIFIC STOCK EXCHANGE, AND THE CINCINNATI STOCK EXCHANGE.
CG&E'S PRINCIPAL EXECUTIVE AND BUSINESS OFFICE IS LOCATED AT 139 EAST FOURTH
STREET, CINCINNATI, OHIO 45202 (TELEPHONE 513-381-2000).
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NO DEALER, SALESMAN, OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS, AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY CG&E OR ANY UNDERWRITER. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE
SECURITIES OFFERED HEREBY IN ANY STATE TO ANY PERSON TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION IN SUCH STATE. THE DELIVERY OF THIS PROSPECTUS
AT ANY TIME DOES NOT IMPLY THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY
TIME SUBSEQUENT TO THE DATE HEREOF.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated in this Prospectus by reference the following
documents heretofore filed with the Securities and Exchange Commission:
1. CG&E's Annual Report on Form 10-K for the year ended December 31,
1992 filed pursuant to the Exchange Act, as amended and supplemented by a
Form 10-K/A filed on November 29, 1993.
2. CG&E's Quarterly Reports on Form 10-Q for the quarters ended March
31, 1993, June 30, 1993 and September 30, 1993 filed pursuant to the
Exchange Act.
3. CG&E's Current Reports on Form 8-K dated March 3, 1993 (the financial
information for CG&E included therein has been superseded by financial
information for CG&E included in its Forms 10-K and 10-K/A for the year
ended December 31, 1992), March 15, 1993, July 2, 1993, September 8, 1993,
October 20, 1993 and October 26, 1993.
All documents filed by CG&E pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act after the date of this Prospectus and prior to the termination
of this offering shall be deemed to be incorporated in this Prospectus by
reference and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which is deemed to be incorporated
by reference herein or in the Prospectus Supplement modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
CG&E HEREBY UNDERTAKES TO PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM A
COPY OF THIS PROSPECTUS HAS BEEN DELIVERED, ON THE WRITTEN OR ORAL REQUEST OF
ANY SUCH PERSON, A COPY OF ANY OR ALL OF THE DOCUMENTS REFERRED TO ABOVE WHICH
HAVE BEEN OR MAY BE INCORPORATED IN THIS PROSPECTUS BY REFERENCE, OTHER THAN
EXHIBITS TO SUCH DOCUMENTS. REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO MR.
WILLIAM L. SHEAFER, TREASURER, THE CINCINNATI GAS & ELECTRIC COMPANY, 139 EAST
FOURTH STREET, CINCINNATI, OHIO 45202 (TELEPHONE 513-381-2000).
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THE COMPANY
CG&E (incorporated in Ohio in 1837) and its subsidiaries are primarily
engaged in providing electric and gas service in the southwestern portion of
Ohio and adjacent areas in Kentucky and Indiana. The area served with
electricity or gas, or both, covers approximately 3,000 square miles with an
estimated population of 1.8 million and includes the cities of Cincinnati and
Middletown in Ohio, Covington and Newport in Kentucky, and Lawrenceburg in
Indiana.
USE OF PROCEEDS
The net proceeds after underwriting commissions and estimated expenses from
the sale of the New Bonds will be used for general corporate purposes,
including additional construction. Reference is made to the Prospectus
Supplement for the use of the net proceeds from the sale of the Offered Bonds.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for each of the years ended December
31, 1989 through 1993 were 3.20, 2.84, 2.45, 2.57 and 1.48, respectively.
DESCRIPTION OF NEW BONDS
The New Bonds will be issued in one or more series under the First Mortgage
dated as of August 1, 1936 between CG&E and The Bank of New York, Trustee, as
supplemented to date and as proposed to be supplemented by one or more
supplemental indentures (the Mortgage). The New Bonds may be presented for
transfer or exchange at the office of the Trustee, 101 Barclay Street, New
York, New York.
The statements herein concerning the New Bonds and the Mortgage are merely an
outline and do not purport to be complete. They are qualified in their entirety
by the provisions of the Mortgage, to which reference is hereby made.
The New Bonds will be limited to a principal amount of $380,000,000.
Reference is made to the Prospectus Supplement relating to any particular issue
of Offered Bonds for the following terms: (i) the aggregate principal amount of
the Offered Bonds; (ii) the date or dates on which such Offered Bonds mature;
(iii) the rate or rates per annum at which such Offered Bonds will bear
interest; (iv) the times at which such interest will be payable; (v) the
redemption terms of such Offered Bonds; and (vi) any other special terms.
Interest will be paid to registered holders of record on the applicable record
date as established in the supplemental indenture relating to the Offered
Bonds. Each record date for the payment of interest will be the first day of
the month for an interest payment date occurring on the fifteenth day of the
same month or the fifteenth day of the month for an interest payment date
occurring on the first day of the following month. Both principal and interest
will be payable by check in New York, N.Y. Unless otherwise specified in the
Prospectus Supplement, the New Bonds will be issued only in fully registered
form in denominations of $1,000 and integral multiples thereof.
The New Bonds may be exchanged without charge for New Bonds of other
denominations, unless otherwise specified in the Prospectus Supplement.
The New Bonds are not entitled to the benefits of an Improvement and Sinking
Fund.
MAINTENANCE AND REPLACEMENT FUND
The New Bonds are not entitled to the benefits of a Maintenance and
Replacement Fund. However, with respect to all series of Bonds issued prior to
1976, the Mortgage provides that CG&E will pay to the Trustee on or before
April 30 of each year, in cash or principal amount of Bonds of any series
issued under
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the Mortgage (Bonds), an amount equal to the minimum provision for depreciation
for the preceding calendar year, less 100% of the cost of unfunded property
additions which it may desire to deduct in satisfaction thereof. The minimum
provision for depreciation consists of (1) 15% of operating revenues derived
from the operation of CG&E's plant and properties after deducting the cost of
purchased electricity and gas and rentals paid for the use of property owned by
others and leased to or operated by CG&E and the maintenance of which and
depreciation on which are borne by the owners, less (2) expenditures for
maintenance and repairs.
CG&E has covenanted to maintain its properties in thorough repair, working
order and condition, and to provide adequate reserves for depreciation.
SECURITY
The New Bonds will be secured by the Mortgage equally and ratably with all
other Bonds now or hereafter issued under the Mortgage. The Mortgage
constitutes, in the opinion of Taft, Stettinius & Hollister, counsel for CG&E,
a first mortgage lien on all of the real estate, the personal property and
franchises of CG&E, subject to excepted encumbrances as defined therein and
except as hereinafter stated. There are also excepted from the lien (1) except
in case of a Completed Default, as defined (followed by a taking possession of
the mortgaged property), revenues, earnings, rents, issues, income and profits
of the mortgaged property, cash, bills, notes and accounts receivable,
contracts and choses in action, materials, supplies and construction equipment;
and (2) in any case, bonds, notes, evidences of indebtedness, shares of stock
and other securities, except such as may be specifically subjected to the lien
thereof. The principal properties in which CG&E has undivided interests are not
subject to partition of such interests for at least twenty-one years.
The Mortgage contains provisions which subject after-acquired property
(subject to pre-existing liens) to the lien thereof. These provisions may not
be effective as to property acquired subsequent to the filing of a case with
respect to CG&E under the federal Bankruptcy Reform Act of 1978, which became
effective October 1, 1979.
Certain covenants prohibiting the disposition by CG&E of equity securities
of, and limiting the creation of indebtedness by, subsidiaries other than
CG&E's Kentucky subsidiary, The Union Light, Heat and Power Company (Union
Light), applicable in respect of certain outstanding Bonds will not apply in
respect of the New Bonds.
ISSUANCE OF ADDITIONAL BONDS
Additional Bonds in one or more series may be issued in principal amounts
equal to (1) 60% of the cost or the then fair value to CG&E (whichever shall be
less) of unfunded property additions acquired, made or constructed subsequent
to September 30, 1945, less the excess, if any, of retirements over the minimum
provision for depreciation, (2) the principal amount of Bonds previously issued
under the Mortgage and retired (otherwise than under a sinking fund and in
certain other cases) or deposited with the Trustee for retirement, or (3)
amounts of cash deposited with the Trustee, which cash may be withdrawn as CG&E
becomes entitled to the issuance of further amounts of Bonds. The supplemental
indentures relating to the New Bonds will provide that, at any time when no
Bonds of any Series created prior to 1986 are outstanding, CG&E may amend the
Mortgage without the consent of holders of then outstanding Bonds to increase
the 60% figure of unfunded property additions referred to in clause (1) of the
preceding sentence to 66 2/3%. Bonds may be issued upon the basis of property
additions and cash deposits only if net earnings (as defined in Section 5 of
Article Five of the Mortgage) for any 12 consecutive calendar months within the
15 calendar months immediately preceding such issuance are at least twice the
annual interest charges on all outstanding indebtedness having an equal or
prior lien, including the additional issue. For the 12 months ended December
31, 1993, based on bonds outstanding on that date, such coverage was sufficient
to issue the entire amount of the New Bonds. No Bonds may be issued against
property additions if (1) prior lien bonds outstanding against such property
additions exceed 35% of the cost or fair value (whichever shall be less) of
such property additions, or (2) the aggregate principal amount of all prior
lien bonds exceeds 15% of the principal amount of all Bonds issued and
outstanding under the Mortgage plus Bonds proposed to be issued.
4
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The New Bonds will be issued on the basis of unfunded property additions or
against the retirement of Bonds.
MODIFICATIONS OF THE MORTGAGE
The rights and obligations of CG&E and of the Bondholders may be modified
only with the consent of the holders of at least 75% in principal amount of the
Bonds then outstanding and affected thereby. No such modification shall extend
the maturity of or reduce the rate of interest on or otherwise modify the terms
of payment of principal or interest on any Bond without the express consent of
the holder of such Bond or permit the creation of any lien ranking prior to or
equal with the lien of the Mortgage on any of the mortgaged property. The
supplemental indentures relating to the New Bonds will provide that, at any
time when no Bonds of any Series created prior to 1986 are outstanding, CG&E
may amend the Mortgage without the consent of holders of then outstanding Bonds
to reduce the 75% figure in principal amount of Bonds referred to in the first
sentence of this paragraph to 66 2/3%.
Notice of a proposed modification must be published in newspapers of general
circulation in New York, New York and Cincinnati, Ohio and the Mortgage
provides that the modification must be consented to in writing within twelve
months after the first publication of such notice. The Twelfth Supplemental
Indenture and all subsequent supplemental indentures provide that CG&E may,
without the consent of holders of Bonds issued under such supplemental
indentures, amend the Mortgage to remove this time limitation and to provide
that any consent of holders of a particular Series of Bonds may be evidenced by
the supplemental indenture establishing the terms and provisions of such Bonds.
The supplemental indentures relating to the New Bonds will contain similar
provisions. However, such an amendment would have to be approved by the consent
of holders of 75% of any outstanding Bonds issued under supplemental indentures
prior to the Twelfth Supplemental Indenture.
REDEMPTION
The New Bonds may be redeemable in whole or in part at the election of CG&E
on 30 days' notice. Reference is made to the Prospectus Supplement for the
redemption terms of the Offered Bonds.
In the event that CG&E elects to redeem less than all of the New Bonds, the
New Bonds to be redeemed will be drawn by lot in such manner as the Trustee may
elect.
EVENTS OF DEFAULT
A Completed Default is defined in the Mortgage as being: default in payment
of principal; default for 90 days in payment of any interest; default for 90
days in making any Improvement and Sinking Fund or Maintenance and Replacement
Fund payment; default in certain cases in payment of interest or principal of
outstanding prior lien bonds beyond the period of grace specified in the
Mortgage or other lien constituting a prior lien; default for 90 days after
notice in the performance of any other covenants in the Mortgage; and certain
events of bankruptcy, insolvency, or reorganization. The Mortgage provides that
the Trustee may withhold notice to the Bondholders of any default (except in
payment of principal of, or interest on the Bonds, or in making any Improvement
and Sinking Fund or Maintenance and Replacement Fund payment) if the Trustee
considers it in the interest of the Bondholders to do so. The Mortgage provides
that, if a Completed Default specified therein shall have occurred, either the
Trustee or the holders of 25% in principal amount of the Bonds then outstanding
may declare the principal of and accrued interest on all the Bonds to be due
and payable, but in certain cases the holders of a majority in principal amount
of the Bonds then outstanding may annul such declaration and its consequences,
and may waive past defaults if the mortgage agreements in respect to which the
default occurred have been fully performed and all arrears of interest,
principal of any Bonds then due, and Trustee's expenses have been paid.
Evidence of compliance with certain conditions and covenants of the Mortgage is
periodically furnished by CG&E.
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The holders of a majority in principal amount of the Bonds at the time
outstanding will have the right to direct the method and place of conducting
any proceeding for any sale, foreclosure, or other proceeding
under the Mortgage, and the right to direct the Trustee to exercise any trust
or power with respect to entry or sale conferred on the Trustee, provided that
such direction is in accordance with the Mortgage and applicable law and such
holders offer to the Trustee indemnity satisfactory to it against its costs,
expenses, and liabilities.
Subject to the right of any holder to enforce the payment of the principal of
and interest on his Bonds at and after the maturity thereof, no holder of any
Bond shall have any right to institute any proceeding to enforce the Mortgage
unless such holder shall have previously given the Trustee notice of a
Completed Default and unless also the holders of at least 25% in principal
amount of the Bonds then outstanding have (i) made written request to the
Trustee, (ii) offered the Trustee reasonable opportunity to exercise its powers
or institute action in its own name, and (iii) offered to the Trustee indemnity
satisfactory to it against its costs, expenses, and liabilities.
CONCERNING THE TRUSTEE
The Bank of New York is the Trustee under the Mortgage. It is also Trustee
under the mortgage indenture covering outstanding First Mortgage Bonds of Union
Light. The Bank of New York makes loans to CG&E, acts as depositary for funds
of, and performs other services for CG&E and Union Light in the normal course
of business.
PLAN OF DISTRIBUTION
CG&E may sell the New Bonds in any of three ways: (i) through underwriters or
dealers; (ii) directly to a limited number of purchasers or to a single
purchaser; or (iii) through agents. The Prospectus Supplement with respect to
the Offered Bonds sets forth the terms of the offering of the Offered Bonds,
including the name or names of any underwriters, dealers or agents, the
purchase price of such Offered Bonds and the proceeds to CG&E from such sale,
any underwriting discounts and other items constituting underwriters'
compensation, any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers. Any initial public
offering price and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time.
If underwriters are used in the sale, the New Bonds will be acquired by the
underwriters for their own account and may be resold from time to time in one
or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The
underwriters with respect to a particular Underwritten Offering of Offered
Bonds will be named in the Prospectus Supplement relating to such offering and,
if an underwriting syndicate is used, the managing underwriter or underwriters
will be set forth on the cover page of such Prospectus Supplement. In
connection with the sale of Offered Bonds, the underwriters may receive
compensation from CG&E or from purchasers in the form of discounts, concessions
or commissions. The underwriters will be, and any dealers participating in the
distribution of the Offered Bonds may be, deemed to be underwriters within the
meaning of the Securities Act of 1933. CG&E has agreed to indemnify the
underwriters against certain civil liabilities, including liabilities under the
Securities Act of 1933. The underwriting agreement pursuant to which any
Offered Bonds are to be sold will provide that the obligations of the
underwriters are subject to certain conditions precedent and that the
underwriters will be obligated to purchase all of the Offered Bonds if any are
purchased.
Offered Bonds may be sold directly by CG&E or through agents designated by
CG&E from time to time. The Prospectus Supplement sets forth the name of any
agent involved in the offer or sale of the Offered Bonds in respect of which
the Prospectus Supplement is delivered as well as any commissions payable by
CG&E to such agent. Unless otherwise indicated in the Prospectus Supplement,
any such agent will be acting on a best efforts basis for the period of its
appointment.
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If so indicated in the Prospectus Supplement, CG&E will authorize agents,
underwriters or dealers to solicit offers by certain specified institutions to
purchase Offered Bonds from CG&E at the public offering price set forth in the
Prospectus Supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. Such contracts will be
subject to those conditions set forth in the Prospectus Supplement, and the
Prospectus Supplement will set forth the commission payable for solicitation of
such contracts.
STATEMENT CONCERNING EXPERTS
The statements made in CG&E's Annual Report on Form 10-K for the year ended
December 31, 1992 under "Rate Matters", "Regulation" and "Environmental
Matters", under "OTHER INFORMATION--Environmental Matters" in Part II of CG&E's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1993 (which
documents are incorporated in this Prospectus by reference), and under
"Description of New Bonds" in this Prospectus, have been reviewed by Taft,
Stettinius & Hollister, counsel for CG&E. The statements therein as to matters
of law and legal conclusions are made on the authority of that firm as experts.
The members and associates of the firm and their immediate families own
directly or indirectly an aggregate of 6,926 shares of CG&E's Common Stock and
1,940 shares of CG&E's Preferred Stock.
The consolidated balance sheet and schedules of common shareholders' equity
and cumulative preferred shares and long-term debt of CG&E and subsidiaries as
of December 31, 1992 and 1991 and the related consolidated statements of
income, changes in common shareholders' equity, and cash flows and schedule of
taxes for each of the three years in the period ended December 31, 1992,
included in CG&E's Annual Report on Form 10-K for the year ended December 31,
1992, as amended, have been audited by Arthur Andersen & Co., independent
public accountants, as indicated in their report with respect thereto, and are
incorporated herein by reference in reliance upon the authority of said firm as
experts in accounting and auditing in giving said report.
The consolidated financial statements of PSI Resources, Inc. included in
CG&E's Current Report on Form 8-K dated March 3, 1993, have been audited by
Arthur Andersen & Co., independent public accountants, as indicated in their
report with respect thereto, and are incorporated herein by reference in
reliance upon the authority of said firm as experts in accounting and auditing
in giving said report. Reference is made to said report dated January 27, 1993,
on the consolidated financial statements which includes explanatory paragraphs
that describe the litigation and rate appeals described in Notes 3 and 4,
respectively, to the consolidated financial statements therein.
LEGAL OPINIONS
The legality of the New Bonds will be passed upon for CG&E by Taft,
Stettinius & Hollister, Star Bank Center, Cincinnati, Ohio 45202, and for the
Underwriters by Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York
10017, who may rely as to matters of Ohio law on the opinion of Taft,
Stettinius & Hollister or other Ohio counsel. In the past, Davis Polk &
Wardwell has acted as counsel in certain matters for CG&E.
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
CG&E estimates that expenses to be incurred and borne by it in connection
with the proposed sale of the First Mortgage Bonds to be registered are as
follows:
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<CAPTION>
ITEM AMOUNT
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<S> <C>
Registration Fee................................................ $103,448
Rating Agencies Fees............................................ 165,000
Printing........................................................ 30,000
Engraving....................................................... 15,000
Trustee's Fees and Expenses..................................... 100,000
Legal Fees...................................................... 50,000
Accounting Fees................................................. 45,000
Blue Sky and Legal Investment Expenses.......................... 30,000
Other........................................................... 21,552
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Total...................................................... $560,000
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 1701.13(E) of the Ohio Revised Code provides that a corporation may
indemnify or agree to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action,
suit, or proceeding whether civil, criminal, administrative, or investigative,
other than an action by or in the right of the corporation, by reason of the
fact that the person is or was a director, officer, employee, or agent of the
corporation, or is or was serving at its request as a director, trustee,
officer, employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise, against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit, or proceeding if
the person is determined under the procedure described in the Section to have
(a) acted in good faith and in a manner the person reasonably believed to be in
or not opposed to the best interests of the corporation, and (b) had no
reasonable cause to believe the conduct was unlawful in the case of any
criminal action or proceeding. However, with respect to expenses actually and
reasonably incurred in connection with the defense or settlement of any action
or suit by or in the right of the corporation to procure a judgment in its
favor, no indemnification is to be made (i) in respect of any claim, issue, or
matter as to which such person was adjudged liable for negligence or misconduct
in the performance of such person's duty to the corporation unless, and only to
the extent that, it is determined by the court upon application that, despite
the adjudication of liability, such person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper, or (ii) in respect of
any action or suit in which the only liability asserted against a director is
in connection with the alleged making of an unlawful loan, dividend or
distribution of corporate assets. The Section also provides that such person
shall be indemnified against expenses actually and reasonably incurred by the
person to the extent successful in defense of the actions referred to above, or
in defense of any claim, issue, or matter therein.
CG&E's Regulations contain substantially the same provisions except that
indemnity under the statute is made mandatory as to directors and officers by
the Regulations.
CG&E maintains an insurance policy covering its directors and officers
against certain civil liabilities, including liabilities under the Securities
Act of 1933.
The underwriters, dealers or agents, if any, will agree under certain
circumstances to indemnify the directors and certain officers of CG&E against
certain civil liabilities, principally liabilities under the Securities Act of
1933.
II-1
<PAGE>
ITEM 16. EXHIBITS.
The following exhibits are filed as part of the Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT
NO.
-------
<C> <S>
*1 --Form of Underwriting Agreement (filed as Exhibit 1 to Registration
Statement No. 33-45115)
*2-A-1 --Amended and Restated Agreement and Plan of Reorganization by and
among CG&E, PSI Resources, Inc., PSI Energy, Inc., CINergy Corp.
and CINergy Sub, Inc., dated as of December 11, 1992, as amended on
July 2, 1993 and as of September 10, 1993 (filed as Annex A to
Amendment No. 3 to Registration Statement No. 33-59964 on Form S-4)
*2-A-2 --Form of CG&E Stock Option Agreement by and between CG&E and PSI
Resources, Inc. dated December 11, 1992 (filed as Exhibit 28 to
Form 8-K dated December 11, 1992)
*2-A-3 --Form of PSI Stock Option Agreement by and among CG&E, PSI
Resources, Inc. and PSI Energy, Inc. dated December 11, 1992 (filed
as Exhibit 28 to Form 8-K dated December 11, 1992)
*2-A-4 --Letter Agreement between CG&E and PSI Resources, Inc. dated August
13, 1993 (filed as Exhibit 28 to Amendment No. 10 to Schedule 14D-9
dated August 16, 1993)
*4-A-1 --Copy of Indenture between CG&E and The Bank of New York dated as
of August 1, 1936 (filed as Exhibit B-2 to Registration Statement
No. 2-2374)
4-A-2 --(This space has been left blank intentionally)
4-A-3 --(This space has been left blank intentionally)
4-A-4 --(This space has been left blank intentionally)
4-A-5 --(This space has been left blank intentionally)
4-A-6 --(This space has been left blank intentionally)
*4-A-7 --Copy of Tenth Supplemental Indenture between CG&E and The Bank of
New York dated as of July 1, 1967 (filed as Exhibit 2-B-11 to
Registration Statement No. 2-26549)
*4-A-8 --Copy of Eleventh Supplemental Indenture between CG&E and The Bank
of New York dated as of May 1, 1969 (filed as Exhibit 2-B-12 to
Registration Statement No. 2-32063)
*4-A-9 --Copy of Twelfth Supplemental Indenture between CG&E and The Bank
of New York dated as of December 1, 1970 (filed as Exhibit 2-B-13
to Registration Statement No. 2-38551)
*4-A-10 --Copy of Thirteenth Supplemental Indenture between CG&E and The
Bank of New York dated as of November 1, 1971 (filed as Exhibit 2-
B-14 to Registration Statement No. 2-41974)
*4-A-11 --Copy of Fourteenth Supplemental Indenture between CG&E and The
Bank of New York dated as of November 2, 1972 (filed as Exhibit 2-
B-15 to Registration Statement No. 2-60961)
*4-A-12 --Copy of Fifteenth Supplemental Indenture between CG&E and The Bank
of New York dated as of August 1, 1973 (filed as Exhibit 2-B-16 to
Registration Statement No. 2-60961)
4-A-13 --(This space has been left blank intentionally)
4-A-14 --(This space has been left blank intentionally)
*4-A-15 --Copy of Eighteenth Supplemental Indenture between CG&E and The
Bank of New York dated as of October 15, 1976 (filed as Exhibit 2-
B-19 to Registration Statement No. 2-57243)
*4-A-16 --Copy of Nineteenth Supplemental Indenture between CG&E and The
Bank of New York dated as of April 15, 1978 (filed as Exhibit 1 to
Form 10-Q for the quarter ended June 30, 1978)
4-A-17 --(This space has been left blank intentionally)
4-A-18 --(This space has been left blank intentionally)
4-A-19 --(This space has been left blank intentionally)
4-A-20 --(This space has been left blank intentionally)
4-A-21 --(This space has been left blank intentionally)
*4-A-22 --Copy of Twenty-fifth Supplemental Indenture between CG&E and The
Bank of New York dated as of December 1, 1985 (filed as Exhibit 4-
A-20 to Form 10-K for the year ended December 31, 1985)
</TABLE>
- --------
* The exhibits with an asterisk have been filed with the SEC and are
incorporated herein by reference.
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO.
-------
<C> <S>
4-A-23 --(This space has been left blank intentionally)
4-A-24 --(This space has been left blank intentionally)
4-A-25 --(This space has been left blank intentionally)
*4-A-26 --Copy of Twenty-ninth Supplemental Indenture between CG&E and The
Bank of New York dated as of June 15, 1989 (filed as Exhibit 4-A to
Form 10-Q for the quarter ended June 30, 1989)
*4-A-27 --Copy of Thirtieth Supplemental Indenture between CG&E and The Bank
of New York dated as of May 1, 1990 (filed as Exhibit 4-A to Form
10-Q for the quarter ended June 30, 1990)
*4-A-28 --Copy of Thirty-first Supplemental Indenture between CG&E and The
Bank of New York dated as of December 1, 1990 (filed as Exhibit 4-
A-21 to Form 10-K for the year ended December 31, 1990)
*4-A-29 --Copy of Thirty-second Supplemental Indenture between CG&E and The
Bank of New York dated as of December 15, 1991 (filed as Exhibit 4-
A-29 to Registration Statement No. 33-45115)
*4-A-30 --Copy of Thirty-third Supplemental Indenture between CG&E and The
Bank of New York dated as of September 1, 1992 (filed as Exhibit 4-
A-30 to Registration Statement No. 33-53578)
*4-A-31 --Copy of Thirty-fourth Supplemental Indenture between CG&E and The
Bank of New York dated as of October 1, 1993 (filed as Exhibit 4-A
to Form 10-Q for the quarter ended September 30, 1993)
4-A-32 --Copy of Thirty-fifth Supplemental Indenture between CG&E and The
Bank of New York dated as of January 1, 1994
4-A-33 --Copy of Thirty-sixth Supplemental Indenture between CG&E and The
Bank of New York dated as of February 15, 1994
*4-A-34 --Form of proposed Supplemental Indenture between CG&E and The Bank
of New York (filed as Exhibit 4-A-27 to Registration Statement No.
33-34889)
5 --Opinion of Taft, Stettinius & Hollister as to legality of the New
Bonds
12 --Computation of ratio of earnings to fixed charges (Consolidated)
23-A --Consent of Taft, Stettinius & Hollister (included in their opinion
filed as Exhibit 5)
23-B-1 --Consent of Arthur Andersen & Co., Cincinnati, Ohio (see page II-7)
23-B-2 --Consent of Arthur Andersen & Co., Indianapolis, Indiana (see page
II-8)
24-A --Power of Attorney (set forth on page II-5)
24-B --Certified copy of resolution of CG&E's Board of Directors
25 --Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York
</TABLE>
- --------
* The exhibits with an asterisk have been filed with the SEC and are
incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
II-3
<PAGE>
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
----------------
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 of this
Registration Statement, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted against the registrant by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person signing below constitutes
William L. Sheafer, James J. Mayer and C. Robert Everman, and each of them,
with full power to act without the others, his lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
name, in any capacity, to sign any amendment to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
the attorneys-in-fact and agents, and each of them, full authority to do each
act necessary to be done, as fully to all purposes as he might do in person,
hereby ratifying all that the attorneys-in-fact and agents or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
----------------
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
The Cincinnati Gas & Electric Company, a corporation organized and existing
under the laws of Ohio, certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Cincinnati and State
of Ohio on the 16th day of February, 1994.
THE CINCINNATI GAS & ELECTRIC COMPANY
/s/ Jackson H. Randolph
By___________________________________
(JACKSON H. RANDOLPH,
CHAIRMAN OF THE BOARD,
PRESIDENT AND CHIEF EXECUTIVE OFFICER)
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
(i) Principal Executive Officer: Chairman of theBoard,
President and Chief
/s/ Jackson H. Randolph Executive Officer February 16, 1994
- --------------------------------------
(JACKSON H. RANDOLPH)
(ii) Principal Financial Officer: Senior
Vice-President--
/s/ C. R. Everman Finance February 16, 1994
- -------------------------------------
(C. R. EVERMAN)
(iii) Principal Accounting Officer:
/s/ Daniel R. Herche Controller February 16, 1994
- -------------------------------------
(DANIEL R. HERCHE)
II-5
<PAGE>
(iv) A Majority of the Board of Directors:
/s/ NEIL A. ARMSTRONG
--------------------------------- February 16, 1994
(Neil A. Armstrong)
/s/ OLIVER W. BIRCKHEAD
--------------------------------- February 16, 1994
(Oliver W. Birckhead)
/s/ CLEMENT L. BUENGER
--------------------------------- February 16, 1994
(Clement L. Buenger)
/s/ C. R. EVERMAN
--------------------------------- February 16, 1994
(C. R. EVERMAN)
/s/ GEORGE C. JUILFS
--------------------------------- February 16, 1994
(GEORGE C. JUILFS)
/s/ THOMAS E. PETRY
--------------------------------- February 16, 1994
(Thomas E. Petry)
/s/ JACKSON H. RANDOLPH
--------------------------------- February 16, 1994
(Jackson H. Randolph)
--------------------------------- February 16, 1994
(Jane L. Rees)
/s/ JOHN J. SCHIFF, Jr.
--------------------------------- February 16, 1994
(John J. Schiff, JR.)
/s/ DUDLEY S. TAFT
--------------------------------- February 16, 1994
(Dudley S. Taft)
/s/ OLIVER W. WADDELL
--------------------------------- February 16, 1994
(Oliver W. Waddell)
II-6
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated January 25, 1993
(except with respect to Note 5 as to which the date is November 15, 1993),
included in the Annual Report on Form 10-K for the year ended December 31,
1992, as amended, of The Cincinnati Gas & Electric Company, filed pursuant to
the Securities Exchange Act of 1934, and to all references to our Firm included
in this Registration Statement.
Arthur Andersen & Co.
Cincinnati, Ohio,
February 16, 1994.
II-7
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated January 27, 1993,
on the consolidated financial statements of PSI Resources, Inc. included in The
Cincinnati Gas & Electric Company's Current Report on Form 8-K dated March 3,
1993, and to all references to our firm included in this Registration
Statement.
Arthur Andersen & Co.
Indianapolis, Indiana,
February 16, 1994.
----------------
The consent of Counsel named as experts is included in their opinion being
filed as an Exhibit to the Registration Statement.
II-8
EXHIBIT 4-A-32
THE CINCINNATI GAS & ELECTRIC COMPANY
and
THE BANK OF NEW YORK
Trustee
---------------
Thirty-fifth Supplemental Indenture
---------------
Dated as of January 1, 1994
<PAGE>
THE CINCINNATI GAS & ELECTRIC COMPANY
Thirty-fifth Supplemental Indenture
Dated as of January 1, 1994
------------------
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
<PAGE>
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);
<PAGE>
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);
<PAGE>
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:
<PAGE>
[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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
[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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
[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
<PAGE>
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,
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
(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
<PAGE>
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]
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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:
<PAGE>
"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."
<PAGE>
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
<PAGE>
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.
<PAGE>
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
<PAGE>
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
<PAGE>
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
EXHIBIT 4-A-33
THE CINCINNATI GAS & ELECTRIC COMPANY
and
THE BANK OF NEW YORK
Trustee
---------------
Thirty-sixth Supplemental Indenture
---------------
Dated as of February 15, 1994
<PAGE>
THE CINCINNATI GAS & ELECTRIC COMPANY
Thirty-sixth Supplemental Indenture
Dated as of February 15, 1994
-----------------
TABLE OF CONTENTS
PARTIES............................................................... 1
RECITALS.............................................................. 1
Form of Bonds of Series Due 1999.................................... 2
Form of Trustee's Certificate on Bonds, Series Due 1999............. 5
Form of Bonds of Series Due 2004.................................... 6
Form of Trustee's Certificate on Bonds, Series Due 2004............. 9
ARTICLE ONE
BONDS OF SERIES DUE 1999 AND 2004 AND ISSUE THEREOF
SECTION 1. Series and Form of Bonds of Series Due 1999 and 2004...... 10
SECTION 2. Issue of Bonds of Series Due 1999 and 2004................ 10
SECTION 3. Dates, Interest, etc., of Bonds of Series Due 1999 and 2004 10
SECTION 4. Denominations and Exchangeability of Bonds of Series
Due 1999 and 2004........................................ 11
SECTION 5. Redemption of Bonds of Series Due 1999 and 2004........... 12
SECTION 6. [This space left blank intentionally]..................... 12
SECTION 7. Absence of Maintenance and Replacement Fund............... 12
ARTICLE TWO
COVENANTS OF THE COMPANY
SECTION 1. Confirmation of Covenants by Company in First
Mortgage................................................. 12
SECTION 2. Covenants with Respect to Subsidiaries.................... 12
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..................... 13
SECTION 2. Reservation of Right to Amend Mortgage without
consent of Certain Bondholders........................... 13
ARTICLE FOUR
MISCELLANEOUS
SECTION 1. Thirty-sixth Supplemental Indenture to Form Part of First
Mortgage................................................. 15
SECTION 2. Definitions in First Mortgage Shall Apply to Thirty-sixth
Supplemental Indenture................................... 15
SECTION 3. Execution in Counterparts................................. 15
<PAGE>
THIRTY-SIXTH SUPPLEMENTAL INDENTURE, dated as of February
15, 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-five
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, Thirty-fourth and
Thirty-fifth 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-sixth Supplemental Indenture and authorized its
execution for the purpose of creating under the First Mortgage as
amended and this Thirty-sixth Supplemental Indenture two new
series of First Mortgage Bonds designated as the First Mortgage
Bonds, 5.80% Series Due 1999 (the Bonds of Series Due 1999) and
the First Mortgage Bonds, 6.45% Series Due 2004 (the Bonds of
Series Due 2004);
WHEREAS, the Bonds of Series Due 1999 and the Bonds of Series
Due 2004, when referred to collectively in this Thirty-sixth
Supplemental Indenture, are called the Bonds of Series Due 1999
and 2004;
WHEREAS, the Bonds of Series Due 1999 and 2004 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-sixth Supplemental Indenture provided or permitted:
<PAGE>
[FORM OF BOND OF SERIES DUE 1999]
No. ..................... $ .......................
THE CINCINNATI GAS & ELECTRIC COMPANY
FIRST MORTGAGE BOND
5.80% Series Due 1999
Due February 15, 1999
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 February 15, 1999, 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-sixth 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 August 1, 1994, or prior thereto, in
which case from February 15, 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 5.80% per annum in like coin or currency, payable at
such office or agency semiannually on February 15 and August 15 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, 5.80% Series Due
1999, of the Company (the Bonds of Series Due 1999), the terms and
provisions
<PAGE>
of which have been established by a Thirty-sixth Supplemental
Indenture dated as of February 15, 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-six indentures
supplemental thereto, including the Thirty-sixth 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 Due 1999 are not redeemable prior to
February 15, 1999.
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 transferable as prescribed in the Indenture by
the registered owner hereof in person, or by his duly authorized
attorney, at the office or agency of the Company in the Borough of
Manhattan, The City of New York, upon
<PAGE>
surrender and cancellation of this Bond; and thereupon a new
registered Bond or Bonds of Series Due 1999 for a like principal
amount and of authorized denominations will be issued to the
transferee in exchange therefor as provided in the Indenture, and
upon payment, if the Company shall require it, of the charges
therein prescribed. The Company and the Trustee may deem and treat
the person in whose name this Bond is registered as the absolute
owner hereof for the purpose of receiving payment of or on account
of the principal and interest due hereon and for all other
purposes.
Bonds of Series Due 1999 are issuable as registered Bonds in
the denominations of $1,000 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.
<PAGE>
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
President
Attest:
Secretary
[FORM OF TRUSTEE'S CERTIFICATE ON ALL BONDS OF SERIES DUE 1999]
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.
<PAGE>
[FORM OF BOND OF SERIES DUE 2004]
No. ..................... $ .......................
THE CINCINNATI GAS & ELECTRIC COMPANY
FIRST MORTGAGE BOND
6.45% Series Due 2004
Due February 15, 2004
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 February 15, 2004, 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-sixth 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 August 1, 1994, or prior thereto, in
which case from February 15, 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 6.45% per annum in like coin or currency, payable at
such office or agency semiannually on February 15 and August 15 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, 6.45% Series Due
2004, of the Company (the Bonds of Series Due 2004), the terms and
provisions
<PAGE>
of which have been established by a Thirty-sixth Supplemental
Indenture dated as of February 15, 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-six indentures
supplemental thereto, including the Thirty-sixth 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 Due 2004 are not redeemable prior to
February 15, 2004.
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 transferable as prescribed in the Indenture by
the registered owner hereof in person, or by his duly authorized
attorney, at the office or agency of the Company in the Borough of
Manhattan, The City of New York, upon
<PAGE>
surrender and cancellation of this Bond; and thereupon a new
registered Bond or Bonds of Series Due 2004 for a like principal
amount and of authorized denominations will be issued to the
transferee in exchange therefor as provided in the Indenture, and
upon payment, if the Company shall require it, of the charges
therein prescribed. The Company and the Trustee may deem and treat
the person in whose name this Bond is registered as the absolute
owner hereof for the purpose of receiving payment of or on account
of the principal and interest due hereon and for all other
purposes.
Bonds of Series Due 2004 are issuable as registered Bonds in
the denominations of $1,000 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.
<PAGE>
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
President
Attest:
Secretary
[FORM OF TRUSTEE'S CERTIFICATE ON ALL BONDS OF SERIES DUE 2004]
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
1999 and 2004 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-sixth
Supplemental Indenture a valid and binding agreement supplemental
to the First Mortgage, have been done and performed;
<PAGE>
THIS THIRTY-SIXTH SUPPLEMENTAL INDENTURE WITNESSETH
In consideration of the premises and of the acceptance and
purchase of the Bonds of Series Due 1999 and 2004, the Company
agrees with the Trustee as follows:
ARTICLE ONE
BONDS OF SERIES DUE 1999 AND 2004 AND ISSUE THEREOF
SECTION 1. There shall be two 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 Due
1999 and the Bonds of Series Due 2004 which may be outstanding
under the First Mortgage as amended and this Thirty-sixth
Supplemental Indenture shall be limited to $110,000,000 for each
such series, except as provided in Section 9 of Article Two of the
First Mortgage as amended.
The Bonds of Series Due 1999 and 2004 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-sixth Supplemental
Indenture permitted.
SECTION 2. Upon the execution and delivery of this Thirty-
sixth Supplemental Indenture and upon delivery to the Trustee of
$220,000,000 aggregate principal amount of Bonds of Series Due
1999 and 2004, 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-sixth Supplemental Indenture, authenticate and deliver the
Bonds.
SECTION 3. Bonds of Series Due 1999 and 2004 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, payable by check
semi-annually on each February 15 and August 15, and shall be
payable as to both principal and interest in such coin or currency
of the United States of
<PAGE>
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 1999
and 2004, 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 February 15 or August 15, as the
case may be, next preceding the date of such Bond to which
interest has been paid, unless such interest payment date is
August 15, 1994, in which case from February 15, 1994. The person
in whose name any Bond of Series Due 1999 and 2004 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 1999 and 2004 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 February 1 for interest payable
February 15 and shall mean August 1 for interest payable August
15.
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 1999 and 2004 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 1999 and 2004 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 1999 and 2004 shall be issued
in the denominations of $1,000 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 1999 or a Bond
of Series Due 2004 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.
<PAGE>
SECTION 5. Bonds of Series Due 1999 and Bonds of Series Due
2004 are not redeemable prior to February 15, 1999 and February
15, 2004, respectively.
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 1999 and 2004.
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 1999 and 2004
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 1999 and 2004 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
<PAGE>
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 1999 and 2004 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 1999 and
2004 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
<PAGE>
(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
<PAGE>
evidenced by the supplemental indenture
establishing the terms and provisions of such
series."
ARTICLE FOUR
MISCELLANEOUS
SECTION 1. The provisions of this Thirty-sixth 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 1999 and 2004. From and after such initial issue of Bonds of
Series Due 1999 and 2004, this Thirty-sixth 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-sixth 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 1999 and 2004, 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-sixth Supplemental Indenture in the same manner
as though set out herein at length. All representations and
recitals contained in this Thirty-sixth Supplemental Indenture and
in the Bonds of Series Due 1999 and 2004 (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-sixth Supplemental Indenture shall, respectively, have the
meanings set forth in such Article.
SECTION 3. This Thirty-sixth Supplemental Indenture may be
executed in several counterparts and each counterpart shall be an
original instrument.
<PAGE>
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/ J. A. Dorsey
---------------------------
J. A. Dorsey
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/ A. Mazur
---------------------------
A. Mazur
/S/ L. Mullen
---------------------------
L. Mullen
<PAGE>
STATE OF OHIO ) ss.:
COUNTY OF HAMILTON )
On this 9th day of February 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
<PAGE>
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK )
On this 11th day of February 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
EXHIBIT 5
[LETTERHEAD OF TAFT, STETTINIUS & HOLLISTER]
February 16, 1994
The Cincinnati Gas & Electric Company
139 East Fourth Street
Cincinnati, OH 45202
Re: $300,000,000 The Cincinnati Gas & Electric Company
First Mortgage Bonds (Shelf Registration)
--------------------------------------------------
Dear Sirs:
We are acting as counsel to The Cincinnati Gas &
Electric Company (the "Company") in connection with the proposed
shelf registration by it of $300,000,000 principal amount of its
First Mortgage Bonds (the "Bonds").
In connection therewith we have examined copies of:
(a) The Registration Statement on Form S-3, including
the documents incorporated therein by reference (the
"Registration Statement"), being filed by the Company with the
Securities and Exchange Commission (the "Commission") for the
registration of the Bonds pursuant to the Securities Act of 1993,
as amended;
(b) the Amended Articles of Incorporation of the
Company, as amended (the "Articles"), and its Regulations as now
in effect;
(c) resolutions relating to the Bonds which were
adopted at a meeting of the Board of Directors of the Company
held on February 16, 1994;
(d) the First Mortgage dated as of August 1, 1936
between the Company and Bank of New York, Trustee, as amended and
supplemented by thirty-six supplemental indentures (the First
Mortgage as amended and supplemented by the thirty-six
supplemental indentures being hereinafter called the "Mortgage");
(e) the form of a proposed supplemental indenture to
the Mortgage, a copy of which is being filed as an Exhibit to the
Registration Statement;
(f) the form of the Underwriting Agreement relating to
the Bonds, a copy of which is being filed as an Exhibit to the
Registration Statement;
(g) the proposed form of the Bonds, as included in the
form of the proposed supplemental indenture; and
(h) such other opinions, documents, minutes, corporate
records, certificates of public officials, certificates or
representations of officers of the Company, instruments and
matters relating to the authorization and issuance of the Bonds
as we have deemed necessary.
Based upon the foregoing, we are of the opinion that:
(1) The Company has been duly incorporated and is
validly existing in good standing under the laws of the State of
Ohio; and
(2) when
(i) the Company shall have duly authorized the
creation of the Bonds under the Mortgage and the
supplemental indenture, the issuance and sale of the
Bonds, and the execution and delivery of the
supplemental indenture in substantially the form of the
supplemental indenture referred to in paragraph (e)
above (completed as to interest rate, redemption prices
and other terms) (the "Supplemental Indenture");
(ii) the Company's Registration Statement, as it
may be amended, shall have been declared effective by
order of the Commission, and the Mortgage, as
supplemented by the Supplemental Indenture, shall have
been qualified under the Trust Indenture Act of 1939,
as amended;
(iii) The Public Utilities Commission of Ohio
shall have entered an appropriate order authorizing the
issuance and sale of the Bonds;
(iv) the Supplemental Indenture in substantially
the form authorized by the Company shall have been duly
executed and delivered by the proper officers of the
Company and the Trustee; and
(v) the Bonds in substantially the form of the
proposed form of the Bonds shall have been duly
executed, authenticated, issued and delivered to the
underwriters thereof against payment of the purchase
price therefor in accordance with the Underwriting
Agreement relating to the Bonds,
then the Bonds will constitute valid and binding obligations of
the Company in accordance with their terms, except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting the enforcement of creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of
general applicability, and will be entitled to the lien of the
Mortgage, as supplemented by the Supplemental Indenture, equally
and ratably with the bonds or other series outstanding under the
Mortgage.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement, to the references to us in
the Prospectus comprising a part of the Registration Statement,
to the use of our name under the captions "Statement Concerning
Experts" and "Legal Opinions" in that Prospectus, and to the
incorporation into the Prospectus by reference of the statements
as to matters of law and legal conclusions reviewed by us and
referred to under said caption "Statement Concerning Experts".
Very truly yours,
/s/ Taft, Stettinius & Hollister
<PAGE>
EXHIBIT 12
THE CINCINNATI GAS & ELECTRIC COMPANY
AND SUBSIDIARY COMPANIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31
-----------------------------------------------
1993 1992 1991 1990 1989
---- ---- ---- ---- ----
(UNAUDITED)
(THOUSANDS, EXCEPT RATIOS)
<S> <C> <C> <C> <C> <C>
Earnings Available
Income Before Interest
Charges.................... $147,183 $360,693 $353,789 $341,258 $339,672
Allowance for borrowed funds
used during construction--
credit..................... 3,586 7,617 23,534 42,256 34,119
Income taxes................ 87,480 68,633 49,095 46,110 62,174
Rents(a).................... 6,179 6,345 6,021 3,934 3,031
-------- -------- -------- -------- --------
Total Available.......... $244,428 $443,288 $432,439 $433,558 $438,996
======== ======== ======== ======== ========
Fixed Charges
Interest Charges............ $159,493 $166,049 $170,327 $148,778 $134,098
Rents(a).................... 6,179 6,345 6,021 3,934 3,031
-------- -------- -------- -------- --------
Total Fixed Charges...... $165,672 $172,394 $176,348 $152,712 $137,129
======== ======== ======== ======== ========
Ratio of Earnings to Fixed 1.48 2.57 2.45 2.84 3.20
Charges.................... ======== ======== ======== ======== ========
</TABLE>
- --------
(a) Estimated interest component of rentals ( 1/3 of rentals was used where no
readily defined interest element could be determined).
EXHIBIT 24-B
[LETTERHEAD OF DONALD R. BLUM, SECRETARY,
THE CINCINNATI GAS & ELECTRIC COMPANY]
CERTIFICATE OF SECRETARY
------------------------
I, D. R. Blum, Secretary of The Cincinnati Gas &
Electric Company, an Ohio corporation, DO HEREBY CERTIFY that the
following is a true and correct copy of a resolution duly adopted
at a meeting of the Board of Directors duly called and held
February 16, 1994 (with reference to the issuance of not to
exceed an additional $300 million principal amount of First
Mortgage Bonds), and that said resolution is presently in full
force and effect, and has not been modified, altered, amended or
repealed:
RESOLVED, That each of William L. Sheafer,
James J. Mayer, and C. Robert Everman, with
power to act without the others, is
authorized to sign any and all amendments and
supplements to the Registration Statement on
Form S-3 covering the Bonds, on behalf of and
as attorney for the President, any
Vice-President, the Secretary, the Treasurer,
the Controller, or any Director of the
Company.
IN WITNESS WHEREOF, I have hereunto subscribed my name
and affixed the seal of said corporation this 16th day of
February 1994.
/s/ D. R. Blum
--------------------------------
D. R. Blum
(SEAL)
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2)
-------------
------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. employer
if not a national bank) Identification No.)
48 Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip Code)
------------------
T H E C I N C I N N A T I G A S & E L E C T R I C C O M P A N Y
(Exact name of obligor as specified in its charter)
Ohio 31-0240030
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) Identification No.)
139 East Fourth Street
Cincinnati, Ohio 45202
(Address of principal executive offices) (Zip Code)
------------------
First Mortgage Bonds*
(Title of the indenture securities)
*Specific title(s) to be determined in connection with sale(s) of Securities
<PAGE>
GENERAL
ITEM 1. General Information.
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Superintendent of Banks of the State 2 Rector Street, New York, N.Y.
of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y.
Federal Deposit Insurance Corporation Washington, D.C. 20549
New York Clearing House Association New York, N.Y.
(b) Whether it is authorized to exercise corporate trust powers:
Yes.
ITEM 2. Affiliations with Obligor
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 2)
------------------
ITEM 16. List of Exhibits:
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of the
Commission's Rules of Practice.
1. -A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. -A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. -The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1, Registration Statement No. 33-44051.)
7. -A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority. (Exhibit 7 to Form T-1 filed with Registration Statement
No. 33-51921).
<PAGE>
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base responsive answer to Item 2, the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
- ------------------
------------------
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York, a
corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by
the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 15th day of February, 1994.
The Bank of New York
By: /s/ W. T. Cunningham
.........................
W. T. Cunningham
Vice President
