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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)
<TABLE>
<S> <C>
OHIO 31-0240030
(State of incorporation) (I.R.S. Employer
Identification No.)
</TABLE>
139 EAST FOURTH STREET
CINCINNATI, OHIO 45202
(513) 381-2000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------
WILLIAM L. SHEAFER, TREASURER
139 EAST FOURTH STREET
CINCINNATI, OHIO 45202
(513) 381-2000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------
COPIES OF ALL COMMUNICATIONS TO:
<TABLE>
<S> <C>
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)
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time 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
<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT (1) PRICE (1) FEE
<S> <C> <C> <C> <C>
Debt Securities............... $500,000,000 100% $500,000,000 $172,413.80
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
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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<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED MAY 1, 1995
PROSPECTUS
THE CINCINNATI GAS & ELECTRIC COMPANY
DEBT SECURITIES
-----------------
THE CINCINNATI GAS & ELECTRIC COMPANY (CG&E) INTENDS FROM TIME TO TIME TO
ISSUE UP TO $500,000,000 AGGREGATE PRINCIPAL AMOUNT OF UNSECURED DEBT
SECURITIES (DEBT SECURITIES) IN ONE OR MORE SERIES ON TERMS TO BE
DETERMINED AT THE TIME OR TIMES OF SALE. FOR EACH ISSUE OF THE DEBT
SECURITIES FOR WHICH THIS PROSPECTUS IS BEING DELIVERED (OFFERED
SECURITIES) THERE WILL BE AN ACCOMPANYING PROSPECTUS SUPPLEMENT
(PROSPECTUS SUPPLEMENT) THAT SETS FORTH, WITHOUT LIMITATION AND TO THE
EXTENT APPLICABLE, THE SPECIFIC DESIGNATION, AGGREGATE PRINCIPAL
AMOUNT, DENOMINATION, MATURITY, PREMIUM, IF ANY, RATE OF INTEREST
(WHICH MAY BE FIXED OR VARIABLE) OR METHOD OF CALCULATION THEREOF,
TIME OF PAYMENT OF INTEREST, ANY TERMS FOR REDEMPTION, ANY
SINKING FUND PROVISIONS, ANY SUBORDINATION PROVISIONS, THE
INITIAL PUBLIC OFFERING PRICE, THE NAMES OF ANY UNDERWRITERS
OR AGENTS, THE PRINCIPAL AMOUNTS, IF ANY, TO BE PURCHASED
BY THE UNDERWRITERS, THE COMPENSATION OF SUCH UNDERWRITERS
OR AGENTS, AND ANY OTHER SPECIAL TERMS OF THE
OFFERED SECURITIES.
-------------------
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.
-------------------
CG&E MAY SELL THE DEBT SECURITIES 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 SECURITIES.
, 1995
<PAGE>
AVAILABLE INFORMATION
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 CG&E'S ANNUAL
REPORT ON FORM 10-K FILED WITH THE COMMISSION. SUCH REPORTS 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, 500 WEST MADISON STREET, CHICAGO, ILLINOIS; AND SUITE 1300,
SEVEN WORLD TRADE CENTER, 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 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).
-------------------
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.
-------------------
INCORPORATION OF CERTAIN DOCUMENT BY REFERENCE
There is hereby incorporated in this Prospectus by reference the following
document heretofore filed with the Securities and Exchange Commission:
1. CG&E's Annual Report on Form 10-K for the year ended December 31,
1994 filed pursuant to the Exchange Act.
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).
2
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THE COMPANY
CG&E (incorporated in Ohio in 1837) is a wholly-owned subsidiary of CINergy
Corp. (CINergy), a registered holding company under the Public Utility Holding
Company Act of 1935. CG&E is an electric and gas public utility company with
four wholly-owned utility subsidiaries. CG&E and its utility subsidiaries are
primarily engaged in the production, transmission, distribution, and sale of
electric energy and the sale and transportation of natural gas in the
southwestern portion of Ohio and adjacent areas in Kentucky and Indiana. The
area served with electricity, gas, or both covers approximately 3,000 square
miles, has 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
Except as otherwise described in the Prospectus Supplement, the net proceeds
of the Offered Securities will be applied primarily to the redemption,
repurchase, repayment, or retirement of outstanding indebtedness and preferred
stock.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for each of the years ended December
31, 1990 through 1994 were 2.84, 2.45, 2.57, 1.48 and 2.60, respectively.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The Debt Securities may be issued in one or more new series under an
Indenture between the Company and The Fifth Third Bank, as Trustee (Trustee).
The following summary does not purport to be complete and is subject in all
respects to the provisions of, and is qualified in its entirety by reference to,
the Indenture and the Debt Securities, the forms of which are filed as exhibits
to the registration statement of which this Prospectus forms a part. Whenever
particular provisions or defined terms in such documents are referred to herein
or in a Prospectus Supplement, such provisions or terms are incorporated by
reference herein or therein, as the case may be.
The Debt Securities will be unsecured obligations of the Company.
Reference is made to the Prospectus Supplement relating to any particular
issue of Offered Securities for the following terms, among others: (1) the title
of such Debt Securities; (2) any limit on the aggregate principal amount of such
Debt Securities or the series of which they are a part; (3) the date or dates on
which the principal of any of such Debt Securities will be payable; (4) the rate
or rates at which any of such Debt Securities will bear interest, if any, the
date or dates from which any such interest will accrue, the Interest Payment
Dates on which any such interest will be payable and the Regular Record Date for
any such interest payable on any Interest Payment Date; (5) the right, if any,
to extend interest payment periods and the duration of such extension; (6) the
place or places where the principal of and any premium and interest on any of
such Debt Securities will be payable; (7) the period or periods within which,
the price or prices at which and the terms and conditions on which any of such
Debt Securities may be redeemed, in whole or in part, at the option of the
Company; (8) the obligation, if any, of the Company to redeem or purchase any of
such Debt Securities pursuant to any sinking fund or analogous provision or at
the option of the Holder thereof, and the period or periods within which, the
price or prices at which and the terms and conditions on which any of such Debt
Securities will be redeemed or purchased, in whole or in part, pursuant to any
such obligation; (9) the denominations in which any of such Debt Securities will
be issuable; (10) if the amount of principal of or any premium or interest on
any of such Debt Securities may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts will be determined; (11)
if applicable, that such Debt Securities, in whole or any specified part, are
defeasible pursuant to the provisions of the Indenture described under
"Defeasance and Covenant Defeasance"; (12) whether any of such Debt Securities
will be issuable in whole or in part in the form of one or more Global Debt
Securities and, if so, the
3
<PAGE>
respective Depositaries for such Global Debt Securities, the form of any legend
or legends to be borne by any such Global Debt Security in addition to or in
lieu of the legend referred to under "Form, Exchange and Transfer--Global Debt
Securities" and, if different from those described under such caption, any
circumstances under which any such Global Debt Security may be exchanged in
whole or in part for Debt Securities registered, and any transfer of such Global
Debt Security in whole or in part may be registered, in the names of Persons
other than the Depositary for such Global Debt Security or its nominee; (13) any
addition to or change in the Events of Default applicable to any of such Debt
Securities and any change in the right of the Trustee or the Holders to declare
the principal amount of any of such Debt Securities due and payable; (14) any
addition to or change in the covenants in the Indenture; (15) the applicability
of or any change in the subordination provisions of the Indenture for a series
of Debt Securities; and (16) any other terms of such Debt Securities not
inconsistent with the provisions of the Indenture. (Section 301).
Except as otherwise described in the Prospectus Supplement, the covenants
contained in the Indenture would not afford holders of Debt Securities
protection in the event of a highly-leveraged transaction involving the Company.
SUBORDINATION OF CERTAIN DEBT SECURITIES
The Indenture provides that, pursuant to a supplemental indenture or a Board
Resolution, one or more series of Debt Securities (Junior Subordinated
Securities) may be subordinate and subject in right of payment to the prior
payment in full of all Senior Debt of the Company, whether outstanding as of the
date of the Indenture or thereafter incurred. (Section 1401).
With respect to any Junior Subordinated Securities, no payment of principal
of (including redemption and sinking fund payments), premium, if any, or
interest on, the Junior Subordinated Securities may be made if any Senior Debt
is not paid when due, any applicable grace period with respect to such default
has ended and such default has not been cured or waived, or if the maturity of
any Senior Debt has been accelerated because of a default. (Section 1402). Upon
any distribution of assets of the Company to creditors upon any dissolution,
winding-up, liquidation or reorganization, whether voluntary or involuntary or
in bankruptcy, insolvency, receivership or other proceedings, all principal of,
and premium, if any, and interest due or to become due on, all Senior Debt must
be paid in full before the holders of the Junior Subordinated Securities are
entitled to receive or retain any payment. (Section 1403). The rights of the
holders of the Junior Subordinated Securities will be subrogated to the rights
of the holders of Senior Debt to receive payments or distributions applicable to
Senior Debt. (Section 1404).
The term "Senior Debt" shall mean the principal of, premium, if any,
interest on and any other payment due pursuant to any of the following, whether
outstanding at the date of execution of the Indenture or thereafter incurred,
created or assumed:
(a) all indebtedness of the Company evidenced by notes, debentures,
bonds, or other securities sold by the Company for money, excluding Junior
Subordinated Securities, but including all first mortgage bonds of the
Company outstanding from time to time;
(b) all indebtedness of others of the kinds described in the preceding
clause (a) assumed by or guaranteed in any manner by the Company; and
(c) all renewals, extensions, or refundings of indebtedness of the kinds
described in any of the preceding clauses (a) and (b);
unless, in the case of any particular indebtedness, renewal, extension or
refunding, the instrument creating or evidencing the same or the assumption or
guarantee of the same expressly provides that such indebtedness, renewal,
extension or refunding is not superior in right of payment to or is pari passu
with the Junior Subordinated Securities. (Section 101).
The Indenture does not limit the aggregate amount of Senior Debt that the
Company may issue. As of December 31, 1994, outstanding Senior Debt of the
Company aggregated approximately $1.76 billion.
4
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FORM, EXCHANGE, AND TRANSFER
The Debt Securities of each series will be issuable only in fully registered
form without coupons. (Section 302).
At the option of the Holder, subject to the terms of the Indenture and the
limitations applicable to Global Debt Securities, Debt Securities of any series
will be exchangeable for other Debt Securities of the same series, of any
authorized denomination and of like tenor and aggregate principal amount.
(Section 305).
Subject to the terms of the Indenture and the limitations applicable to
Global Debt Securities, Debt Securities may be presented for exchange as
provided above or for registration of transfer (duly endorsed or with the form
of transfer endorsed thereon duly executed) at the office of the Security
Registrar or at the office of any transfer agent designated by the Company for
such purpose. No service charge will be made for any registration of transfer or
exchange of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. Such transfer or exchange will be effected upon the Security
Registrar or such transfer agent, as the case may be, being satisfied with the
documents of title and identity of the person making the request. The Company
has appointed the Trustee as Security Registrar. Any transfer agent (in addition
to the Security Registrar) initially designated by the Company for any Debt
Securities will be named in the applicable Prospectus Supplement. (Section 305).
The Company may at any time designate additional transfer agents or rescind the
designation of any transfer agent or approve a change in the office through
which any transfer agent acts, except that the Company will be required to
maintain a transfer agent in each Place of Payment for the Debt Securities of
each series. (Section 1002).
If the Debt Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company will not be required to (i) issue,
register the transfer of, or exchange any Debt Security of that series (or of
that series and specified tenor, as the case may be) during a period beginning
at the opening of business 15 days before the day of mailing of a notice of
redemption of any such Debt Security that may be selected for redemption and
ending at the close of business on the day of such mailing or (ii) register the
transfer of or exchange any Debt Security so selected for redemption, in whole
or in part, except the unredeemed portion of any such Debt Security being
redeemed in part. (Section 305).
GLOBAL DEBT SECURITIES
Some or all of the Debt Securities of any series may be issued as Global
Debt Securities. Each Global Debt Security will be registered in the name of a
Depositary or a nominee thereof identified in the applicable Prospectus
Supplement, will be deposited with such Depositary or nominee or a custodian
therefor and will bear a legend regarding the restrictions on exchanges and
registration of transfer thereof referred to below and any such other matters as
may be provided for pursuant to the Indenture.
Notwithstanding any provision of the Indenture or any Debt Security
described herein, no Global Debt Security may be exchanged in whole or in part
for Debt Securities registered, and no transfer of a Global Debt Security in
whole or in part may be registered, in the name of any Person other than the
Depositary for such Global Debt Security or any nominee of such Depositary
unless (i) the Depositary has notified the Company that it is unwilling or
unable to continue as Depositary for such Global Debt Security or has ceased to
be qualified to act as such as required by the Indenture, (ii) there shall have
occurred and be continuing an Event of Default with respect to such Global Debt
Security or (iii) there shall exist such circumstances, if any, in addition to
or in lieu of those described above as may be described in the applicable
Prospectus Supplement. All securities issued in exchange for a Global Debt
Security or any portion thereof will be registered in such names as the
Depositary may direct. (Sections 204 and 305).
5
<PAGE>
As long as the Depositary, or its nominee, is the registered Holder of a
Global Debt Security, the Depositary or such nominee, as the case may be, will
be considered the sole owner and Holder of such Global Debt Security for all
purposes under the Debt Securities and the Indenture. Except in the limited
circumstances referred to above, owners of beneficial interests in a Global Debt
Security will not be entitled to have such Global Debt Security or any portion
thereof registered in their names, will not receive or be entitled to receive
physical delivery of certificated Debt Securities in exchange therefor and will
not be considered to be the owners or Holders of such Global Debt Security or
any portion thereof for any purpose under the Debt Securities or the Indenture.
All payments of principal of and any premium and interest on a Global Debt
Security will be made to the Depositary or its nominee, as the case may be, as
the Holder thereof. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of such securities in definitive
form. These laws may impair the ability to transfer beneficial interests in a
Global Debt Security.
Ownership of beneficial interests in a Global Debt Security will be limited
to institutions that have accounts with the Depositary or its nominee
(participants) and to persons that may hold beneficial interests through
participants. In connection with the issuance of any Global Debt Security, the
Depositary will credit, on its book-entry registration and transfer system, the
respective portion of the principal amounts of the Global Debt Security to the
accounts of its participants. Ownership of beneficial interests in a Global Debt
Security will be shown only on, and the transfer of those ownership interests
will be effected only through, records maintained by the Depositary (with
respect to participants' interests) or any such participant (with respect to
interests of persons held by such participants on their behalf). Payments,
transfers, exchanges, and other matters relating to beneficial interests in a
Global Debt Security are subject to various policies and procedures adopted by
the Depositary from time to time. None of the Company, the Trustee or any agent
of the Company or the Trustee will have any responsibility or liability for any
aspect of the Depositary's or any participant's records relating to, or for
payments made on account of, beneficial interests in a Global Debt Security, or
for maintaining, supervising, or reviewing any records relating to such
beneficial interests.
Secondary trading in notes and debentures of corporate issuers is generally
settled in clearing-house or next-day funds. In contrast, beneficial interests
in a Global Debt Security, in some cases, will trade in the Depositary's
same-day funds settlement system in which secondary market trading activity in
those beneficial interests are required by the Depositary to settle in
immediately available funds. There is no assurance as to the effect, if any,
that settlement in immediately available funds would have on trading activity in
such beneficial interests. Also, settlement for purchases of beneficial
interests in a Global Debt Security upon the original issuance thereof may be
required to be made in immediately available funds.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of interest on a Debt Security on any Interest Payment Date will be made to the
Person in whose name such Debt Security (or one or more Predecessor Debt
Securities) is registered at the close of business on the Regular Record Date
for such interest. (Section 307).
Unless otherwise indicated in the applicable Prospectus Supplement,
principal of and any premium and interest on the Debt Securities of a particular
series will be payable at the office of such Paying Agent or Paying Agents as
the Company may designate for such purpose from time to time, except that at the
option of the Company payment of any interest may be made by check mailed to the
address of the Person entitled thereto as such address appears in the Security
Register. Unless otherwise indicated in the applicable Prospectus Supplement,
the corporate trust office of the Trustee in the City of Cincinnati will be
designated as the Company's sole Paying Agent for payments with respect to Debt
Securities of each series. Any other Paying Agents initially designated by the
Company for the Debt Securities of a particular series will be named in the
applicable Prospectus Supplement. The Company may at any time designate
additional Paying Agents or rescind the designation of any Paying Agent or
approve a change in the office through which any Paying Agent acts, except that
the Company will be required to maintain a Paying Agent in each Place of Payment
for the Debt Securities of a particular series. (Section 1002).
6
<PAGE>
All moneys paid by the Company to a Paying Agent for the payment of the
principal of or any premium or interest on any Debt Security which remain
unclaimed at the end of 18 months after such principal, premium or interest has
become due and payable will be repaid to the Company, and the Holder of such
Debt Security thereafter may look only to the Company for payment thereof.
(Section 1003).
CONSOLIDATION, MERGER, AND SALE OF ASSETS
The Indenture does not contain any covenant that restricts the Company's
ability to merge or consolidate with or into any other corporation, sell or
convey all or substantially all of its assets to any person, firm or corporation
or otherwise engage in restructuring transactions, provided that the successor
corporation assumes due and punctual payment of principal or premium, if any,
and interest on the Debt Securities. (Section 801).
EVENTS OF DEFAULT
Each of the following will constitute an Event of Default under the
Indenture with respect to Debt Securities of any series: (a) failure to pay
principal of or any premium on any Debt Security of that series when due; (b)
failure to pay any interest on any Debt Securities of that series when due,
continued for 30 days; (c) failure to deposit any sinking fund payment, when
due, in respect of any Debt Security of that series; (d) failure to perform any
other covenant of the Company in the Indenture (other than a covenant included
in the Indenture solely for the benefit of a series other than that series),
continued for 90 days after written notice has been given by the Trustee, or the
Holders of at least 35% in principal amount of the Outstanding Debt Securities
of that series, as provided in the Indenture; and (e) certain events of
bankruptcy, insolvency or reorganization. (Section 501).
If an Event of Default (other than an Event of Default described in clause
(e) above) with respect to the Debt Securities of any series at the time
Outstanding shall occur and be continuing, either the Trustee or the Holders of
at least 35% in aggregate principal amount of the Outstanding Debt Securities of
that series by notice as provided in the Indenture may declare the principal
amount of the Debt Securities of that series to be due and payable immediately.
If an Event of Default described in clause (e) above with respect to the Debt
Securities of any series at the time Outstanding shall occur, the principal
amount of all the Debt Securities of that series will automatically, and without
any action by the Trustee or any Holder, become immediately due and payable.
After any such acceleration, but before a judgment or decree based on
acceleration, the Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of that series may, under certain circumstances,
rescind and annul such acceleration if all Events of Default, other than the
non-payment of accelerated principal, have been cured or waived as provided in
the Indenture. (Section 502). For information as to waiver of defaults, see
"Modification and Waiver."
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the Trustee
will be under no obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the Holders, unless such Holders
shall have offered to the Trustee reasonably satisfactory indemnity. (Section
603). Subject to such provisions for the indemnification of the Trustee, the
Holders of a majority in principal amount of the Outstanding Debt Securities of
any series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Debt Securities
of that series. (Section 512).
No Holder of a Debt Security of any series will have any right to institute
any proceeding with respect to the Indenture, or for the appointment of a
receiver or a trustee, or for any other remedy thereunder, unless (i) such
Holder has previously given to the Trustee written notice of a continuing Event
of Default with respect to the Debt Securities of that series, (ii) the Holders
of at least 35% in aggregate principal amount of the Outstanding Debt Securities
of that series have made written request, and such Holder or Holders have
offered reasonably satisfactory indemnity, to the Trustee to institute such
proceeding as trustee and (iii) the Trustee has failed to institute such
proceeding, and has not received from the Holders of a majority in aggregate
principal amount of the Outstanding Debt Securities of that series a direction
inconsistent with such request, within 60 days after such notice, request and
offer. (Section 507). However, such limitations do
7
<PAGE>
not apply to a suit instituted by a Holder of a Debt Security for the
enforcement of payment of the principal of or any premium or interest on such
Debt Security on or after the applicable due date specified in such Debt
Security. (Section 508).
The Company will be required to furnish to the Trustee annually a statement
by certain of its officers as to whether or not the Company, to their knowledge,
is in default in the performance or observance of any of the terms, provisions
and conditions of the Indenture and, if so, specifying all such known defaults.
(Section 1004).
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Debt Securities of each series
affected by such modification or amendment; provided, however, that no such
modification or amendment may, without the consent of the Holder of each
Outstanding Debt Security affected thereby, (a) change the Stated Maturity of
the principal of, or any installment of principal of or interest on, any Debt
Security, (b) reduce the principal amount of, or any premium or interest on, any
Debt Security, (c) reduce the amount of principal of an Original Issue Discount
Security or any other Debt Security payable upon acceleration of the Maturity
thereof, (d) change the place or currency of payment of principal of, or any
premium or interest on, any Debt Security, (e) affect the applicability of the
subordination provisions to any Debt Security, (f) impair the right to institute
suit for the enforcement of any payment on or with respect to any Debt Security,
(g) reduce the percentage in principal amount of Outstanding Debt Securities of
any series, the consent of whose Holders is required for modification or
amendment of the Indenture, reduce the percentage in principal amount of
Outstanding Debt Securities of any series necessary for waiver of compliance
with certain provisions of the Indenture or for waiver of certain defaults or
modify such provisions with respect to modification and waiver. (Section 902).
The Holders of not less than a majority in aggregate principal amount of the
Outstanding Debt Securities of any series may waive compliance by the Company
with certain restrictive provisions of the Indenture. (Section 1007). The
Holders of a majority in principal amount of the Outstanding Debt Securities of
any series may waive any past default under the Indenture, except a default in
the payment of principal, premium, or interest and certain covenants and
provisions of the Indenture which cannot be amended without the consent of the
Holder of each Outstanding Debt Security of such series affected. (Section 513).
Except in certain limited circumstances, the Company will be entitled to set
any day as a record date for the purpose of determining the Holders of
Outstanding Debt Securities of any series entitled to give or take any
direction, notice, consent, waiver, or other action under the Indenture, in the
manner and subject to the limitations provided in the Indenture. In certain
limited circumstances, the Trustee will be entitled to set a record date for
action by Holders. If a record date is set for any action to be taken by Holders
of a particular series, such action may be taken only by persons who are Holders
of Outstanding Debt Securities of that series on the record date. To be
effective, such action must be taken by Holders of the requisite principal
amount of such Debt Securities within a specified period following the record
date. For any particular record date, this period will be 180 days or such other
shorter period as may be specified by the Company (or the Trustee, if it set the
record date), and may be shortened or lengthened (but not beyond 180 days) from
time to time. (Section 104).
DEFEASANCE AND COVENANT DEFEASANCE
If and to the extent indicated in the applicable Prospectus Supplement, the
Company may elect, at its option at any time, to have the provisions of Section
1302, relating to defeasance and discharge of indebtedness, or Section 1303,
relating to defeasance of certain restrictive covenants in the Indenture,
applied to the Debt Securities or to the Debt Securities of any series. (Section
1301).
DEFEASANCE AND DISCHARGE. The Indenture provides that, upon the Company's
exercise of its option (if any) to have Section 1302 applied to any Debt
Securities, the Company will be discharged from all its obligations with respect
to such Debt Securities (except for certain obligations to exchange or register
the transfer of Debt Securities, to replace stolen, lost or mutilated Debt
Securities, to maintain paying agencies
8
<PAGE>
and to hold moneys for payment in trust) upon the deposit in trust for the
benefit of the Holders of such Debt Securities of money or U.S. Government
Obligations, or both, which, through the payment of principal and interest in
respect thereof in accordance with their terms, will provide money in an amount
sufficient to pay the principal of and any premium and interest on such Debt
Securities on the respective Stated Maturities in accordance with the terms of
the Indenture and such Debt Securities. Such defeasance or discharge may occur
only if, among other things, the Company has delivered to the Trustee an Opinion
of Counsel to the effect that the Company has received from, or there has been
published by, the United States Internal Revenue Service a ruling, or there has
been a change in tax law, in either case to the effect that Holders of such Debt
Securities will not recognize gain or loss for federal income tax purposes as a
result of such deposit, defeasance, and discharge and will be subject to federal
income tax on the same amount, in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge were not to occur.
(Sections 1302 and 1304).
DEFEASANCE OF CERTAIN COVENANTS. The Indenture provides that, upon the
Company's exercise of its option (if any) to have Section 1303 applied to any
Debt Securities, the Company may omit to comply with certain restrictive
covenants that may be described in the applicable Prospectus Supplement, and the
occurrence of certain Events of Default, which are described above in clause (d)
(with respect to such restrictive covenants) under "Events of Default" and any
that may be described in the applicable Prospectus Supplement, will be deemed
not to be or result in an Event of Default, in each case with respect to such
Debt Securities. The Company, in order to exercise such option, will be required
to deposit, in trust for the benefit of the Holders of such Debt Securities,
money or U.S. Government Obligations, or both, which, through the payment of
principal and interest in respect thereof in accordance with their terms, will
provide money in an amount sufficient to pay the principal of and any premium
and interest on such Debt Securities on the respective Stated Maturities in
accordance with the terms of the Indenture and such Debt Securities. The Company
will also be required, among other things, to deliver to the Trustee an Opinion
of Counsel to the effect that Holders of such Debt Securities will not recognize
gain or loss for federal income tax purposes as a result of such deposit and
defeasance of certain obligations and will be subject to federal income tax on
the same amount, in the same manner and at the same times as would have been the
case if such deposit and defeasance were not to occur. In the event the Company
exercised this option with respect to any Debt Securities and such Debt
Securities were declared due and payable because of the occurrence of any Event
of Default, the amount of money and U.S. Government Obligations so deposited in
trust would be sufficient to pay amounts due on such Debt Securities at the time
of their respective Stated Maturities but may not be sufficient to pay amounts
due on such Debt Securities upon any acceleration resulting from such Event of
Default. In such case, the Company would remain liable for such payments.
(Sections 1303 and 1304).
TITLE
The Company, the Trustee, and any agent of the Company or the Trustee may
treat the Person in whose name a Debt Security is registered as the absolute
owner thereof (whether or not such Debt Security may be overdue) for the purpose
of making payment and for all other purposes. (Section 308).
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the law of the State of New York. (Section 112).
CONCERNING THE TRUSTEE
The Fifth Third Bank will be the Trustee under the Indenture. It is also the
Trustee for certain pollution control revenue bonds of CG&E and is expected to
be the Trustee for certain unsecured debt securities of The Union Light, Heat
and Power Company (Union Light), CG&E's wholly-owned subsidiary, acts as
registrar for preferred stock of CG&E and PSI Energy, Inc. (PSI), an affiliate
of CG&E, and is the transfer agent for the common stock of CINergy and the
capital stock of Union Light. The Fifth Third Bank makes loans to and acts as
depositary for CG&E, PSI and Union Light, and also performs other services for
CG&E and Union Light in the normal course of business.
9
<PAGE>
PLAN OF DISTRIBUTION
CG&E may sell the Debt Securities 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 Securities sets forth the terms of the offering of the
Offered Securities, including the name or names of any underwriters, dealers or
agents, the purchase price of such Offered Securities 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 Debt Securities 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
Securities 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 Securities, 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 Securities 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
Securities 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 Securities if any are purchased.
Offered Securities 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 Securities 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.
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 Securities 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, 1994 under "Rate Matters", "Regulation" and "Environmental Matters"
(which document is incorporated in this Prospectus by reference), and under
"Description of Debt Securities" 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 4,692 shares of CINergy's Common Stock and 320 shares
of CG&E's Preferred Stock.
The consolidated balance sheets and schedules of cumulative preferred stock
and long-term debt of CG&E as of December 31, 1994 and 1993 and the related
consolidated statements of income, changes in common stock equity and cash flows
for each of the three years in the period ended December 31, 1994, included in
CG&E's Annual Report on Form 10-K for the year ended December 31, 1994, have
been audited by Arthur Andersen LLP, 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.
10
<PAGE>
LEGAL OPINIONS
The legality of the Debt Securities 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.
11
<PAGE>
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 Debt Securities to be registered are as follows:
<TABLE>
<CAPTION>
ITEM AMOUNT
- ---------------------------------------------------------------------------------- ----------
<S> <C>
Registration Fee.................................................................. $ 172,414
Rating Agencies Fees.............................................................. 155,000
Printing.......................................................................... 33,000
Trustee's Fees and Expenses....................................................... 15,000
Legal Fees........................................................................ 80,000
Accounting Fees................................................................... 65,000
Blue Sky and Legal Investment Expenses............................................ 10,000
Other............................................................................. 19,586
----------
Total......................................................................... $ 550,000
----------
----------
</TABLE>
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.
- ---------
<S> <C>
1 --Form of Underwriting Agreement
4 --Form of Indenture between CG&E and The Fifth Third Bank
5 --Opinion of Taft, Stettinius & Hollister as to legality of the Debt Securities
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 --Consent of Arthur Andersen LLP, Cincinnati, Ohio (see page II-5)
24-A --Power of Attorney (filed herewith)
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 Fifth Third Bank
</TABLE>
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;
(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) of this section
do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission 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.
II-2
<PAGE>
-------------------
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 foregoing provisions, or otherwise, 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-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
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, in the City of Cincinnati, State of Ohio, on the 1st day of May,
1995.
THE CINCINNATI GAS & ELECTRIC COMPANY
Registrant
By*JACKSON H. RANDOLPH, Chairman of the
Board and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ ------------------------------- ----------------
<S> <C> <C>
(i) Principal executive officer:
*JACKSON H. RANDOLPH Chairman of the Board and Chief
Executive Officer
(ii) Principal financial officer:
*J. WAYNE LEONARD Group Vice President and Chief
Financial Officer
May 1, 1995
(iii) Principal accounting officer:
*CHARLES J. WINGER Comptroller
(iv) Directors:
*JACKSON H. RANDOLPH Director
*JAMES E. ROGERS Director
*GEORGE H. STINSON Director
*By /s/ WILLIAM L. SHEAFER
---------------------------------
William L. Sheafer, Attorney-in-fact
</TABLE>
II-4
<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 23, 1995,
included in The Cincinnati Gas & Electric Company's Annual Report on Form 10-K
for the year ended December 31, 1994, and to all references to our Firm included
in this Registration Statement.
ARTHUR ANDERSEN LLP
Cincinnati, Ohio
April 28, 1995.
-------------------
The consent of Counsel named as experts is included in their opinion being
filed as an Exhibit to the Registration Statement.
II-5
EXHIBIT 1
$000,000,000
THE CINCINNATI GAS & ELECTRIC COMPANY
% DEBENTURES DUE
----- -------
UNDERWRITING AGREEMENT
, 1995
---------
<PAGE>
, 1995
----------
[Name of Managing Underwriter]
[Address]
Dear Sirs:
The Cincinnati Gas & Electric Company, an Ohio
corporation (hereinafter called the Company), proposes to
issue and sell $000,000,000 principal amount of ______%
Debentures due ______ (hereinafter called the Debentures), to
be issued pursuant to the provisions of an Indenture dated as
of ________, 1995 between the Company and The Fifth Third
Bank, Trustee (hereinafter called the Indenture), as
supplemented by the Supplemental Indenture dated as of
________, 1995 between the Company and the Trustee
(hereinafter called the Supplemental Indenture).
The Company has filed with the Securities and
Exchange Commission (hereinafter called the Commission) a
registration statement (File No. 33-________) including a
prospectus relating to debt securities of the
Company,including the Debentures, and has filed with the
Commission (or will promptly after the sale so file) a
prospectus supplement specifically relating to the Debentures
pursuant to Rule 424 under the Securities Act of 1933. The
term Registration Statement means the registration statement
as amended to the date of this Agreement. The term Basic
Prospectus means the prospectus included in the Registration
Statement. The term Prospectus means the Basic Prospectus
together with the prospectus supplement specifically relating
to the Debentures,as filed with, or mailed for filing to, the
Commission pursuant to Rule 424. The term preliminary
prospectus means a preliminary prospectus supplement
specifically relating to the Debentures together with the
Basic Prospectus. As used herein, the terms "Registration
Statement", "Basic Prospectus", "Prospectus" and "preliminary
prospectus" shall include in each case the material, if any,
incorporated by reference therein.
I.
The Company hereby agrees to sell to each of the
undersigned Underwriters, and the Underwriters, upon the basis
of the representations and warranties herein contained,but
subject to the conditions hereinafter stated, agree to
purchase from the Company, each severally and not jointly, the
principal amount of Debentures set forth opposite their names
at a price of ____% of their principal amount - the purchase
price - and accrued interest from ________, 1995 to the date
of payment and delivery:
Name Principal Amount
---- ----------------
[Name of Managing Underwriter] $
---------------
[Other Underwriters]
---------------
---------------
Total $
---------------
II.
The Company is advised by you that the Underwriters
propose to make a public offering of their respective portions
of the Debentures as soon after the execution of this
Agreement as in your judgment is advisable. The Company is
further advised by you that the Debentures are to be offered
to the public at _____% of their principal amount - the public
offering price - and accrued interest, and to certain dealers
at a price which represents a concession of ____% of their
principal amount under the public offering price, and that any
Underwriter may allow, and such dealers may reallow, a
concession, not in excess of ____% of their principal amount,
to certain other dealers.
III.
Payment for the Debentures shall be made by
certified or official bank check or checks payable to the
order of the Company in New York Clearing House or other next
day funds (or in Federal funds if requested and paid for by
the Company) at the office of Davis Polk & Wardwell, 450
Lexington Avenue, New York, N.Y. 10017, at 10:00 o'clock A.M.,
New York Time, on ______________, 1995 or at such other time
on the same or such other date, not later than _____________,
1995 as may be designated by you, upon delivery to you for the
respective accounts of the several Underwriters of the
Debentures registered in such names and in such denominations
as you shall request in writing not less than two full
business days prior to the date of delivery. The time and date
of such payment and delivery are herein referred to as the
Closing Date.
IV.
The obligations of the Company and the several
obligations of the Underwriters hereunder are subject to the
conditions that:
(a) The Registration Statement shall have become
effective under the Securities Act of 1933, and the Commission
shall have issued an order approving the sale of the
Debentures pursuant to the Public Utility Holding Company Act
of 1935.
(b) No stop order suspending the effectiveness of
the Registration Statement shall be in effect and no
proceedings for such purpose shall be pending before,or
threatened by, the Commission.
(c) An appropriate order or orders of The Public
Utilities Commission of Ohio necessary to permit the issue and
sale of the Debentures as contemplated hereby and containing
no material provision or condition which is unacceptable to
the Company or the Underwriters shall be in effect and no
proceedings to suspend the effectiveness of such order or
orders shall be pending or threatened.
The several obligations of the Underwriters
hereunder are subject to the following further conditions:
(d) There shall have been no material adverse
change(not in the ordinary course of business) in the
condition of the Company and its subsidiaries, taken as a
whole, from that set forth in or contemplated by the
Registration Statement and the Prospectus; and you shall have
received on the Closing Date a certificate, dated the Closing
Date and signed by an executive officer of the Company, to the
foregoing effect.
(e) Subsequent to the execution and delivery of
this Agreement and prior to the Closing Date, there shall not
have occurred any downgrading of, nor shall any notice have
been given of any review with a negative implication with
respect to, the rating accorded any of the Company's
securities by any of Standard & Poor's Corporation, Moody's
Investors Service,Inc. or Duff & Phelps, Inc. (or any of their
successors).
(f) You shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in (b) and (c)
of the first paragraph of this Article IV (provided that such
certificate may omit any reference as to the extent to which
provisions or conditions in the orders referred to in (c)
above are acceptable to the Underwriters). The officer making
such certificate may rely upon the best of his knowledge as to
proceedings pending or threatened.
(g) You shall have received on the Closing Date the
favorable opinion of Taft, Stettinius & Hollister, counsel for
the Company, dated the Closing Date, to the effect that:
(i) the Company is a corporation duly
incorporated and existing in good standing under the laws of
the State of Ohio and, except for certain operating permits
for which the Company has made application but which have
either been denied or have not yet been granted in the form
requested, and except for certain notices of violations, the
Company has due corporate and governmental authority to carry
on the public utility businesses in which it is engaged and to
own and operate the properties in use in such businesses;
(ii) the Company's subsidiaries, The Union
Light, Heat and Power Company, Miami Power Corporation, The
West Harrison Gas and Electric Company, and Lawrenceburg Gas
Company, are corporations duly incorporated and existing in
good standing under the laws of their respective states of
incorporation and, except as may be limited by state and
federal environmental laws and regulations, have due corporate
and governmental authority to carry on the public utility
businesses in which they are engaged and to own and operate
the properties in use in such businesses;
(iii) the Company and its subsidiaries listed
in(ii) above are each duly qualified to transact business and
are in good standing in the jurisdictions in which the conduct
of their respective businesses or the ownership or leasing of
their respective properties requires such qualification;
(iv) the Indenture and the Supplemental
Indenture have been duly authorized, executed and delivered by
the Company and are valid and binding instruments enforceable
in accordance with their terms, except as (A) the
enforceability thereof may be limited by bankruptcy,insolvency
or similar laws affecting the enforcement of creditors' rights
generally and (B) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles
of general applicability; and the Indenture has been duly
qualified under the Trust Indenture Act of 1939;
(v) the Debentures, when duly executed by the
Company, authenticated by the Trustee and delivered to and
paid for by the Underwriters pursuant to this Agreement, will
be valid and binding obligations of the Company in accordance
with their terms, except as (A) the enforceability thereof may
be limited by bankruptcy,insolvency or similar laws affecting
the enforcement of creditors' rights generally and (B) rights
of acceleration and the availability of equitable remedies may
be limited by equitable principles of general applicability;
(vi) the Order of The Public Utilities
Commission of Ohio authorizing the issuance and sale of the
Debentures is in effect on the Closing Date and no further
approval, authorization, consent or order of any other
commission or other governmental authority (other than under
state securities or Blue Sky laws, as to which such counsel
are not called upon to express an opinion) is required for the
issuance and sale of the Debentures;
(vii) the order of the Commission authorizing
sale of the Debentures under the Public Utility Holding
Company Act of 1935 is in effect on the Closing Date;
(viii) such counsel does not know of any
contract required to be filed as an exhibit to the
Registration Statement, or incorporated therein by reference,
which has not been so filed or incorporated by reference;
(ix) the statements made in regard to such
counsel in the Prospectus are correct; such counsel have
prepared or reviewed the material which is described under the
caption "Statement Concerning Experts" as having been prepared
or reviewed by them; in their opinion the material fairly
describes the substantial effect of the matters of law, legal
rights, legal interpretations and conclusions there described,
and does not omit to state a material fact required to be
stated therein or necessary to make the material not
misleading; and the provisions of the Indenture and the
Debentures conform as to legal matters to the description
thereof and to the statements in regard thereto contained in
the Registration Statement and the Prospectus;
(x) this Agreement has been duly
authorized,executed and delivered by the Company and is a
valid and binding agreement of the Company in accordance with
its terms, except as rights to indemnity and contribution
hereunder may be limited under applicable laws;
(xi) such counsel (A) is of the opinion that
each document incorporated by reference in the Prospectus
(except for operating statistics,financial statements and
other financial data therein as to which such counsel need not
express an opinion) complied when filed with the Commission as
to form in all material respects with the requirements of the
Securities Exchange Act of 1934, together with the applicable
rules and regulations of the Commission thereunder, (B) is of
the opinion that the Registration Statement and the Prospectus
and any supplements or amendments thereto (except for
operating statistics, financial statements and other financial
data therein as to which such counsel need not express an
opinion) comply as to form in all material respects with the
requirements of the Securities Act of 1933 and the rules and
regulations of the Commission thereunder and (C) believes that
(except for operating statistics, financial statements and
other financial data therein as to which such counsel need not
express a belief) the Registration Statement and the
Prospectus at the date of this Agreement did not contain an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading and the Prospectus
(as amended or supplemented if applicable) on the Closing Date
does not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein,in the light of the circumstances under
which they were made, not misleading.
In regard to clause (x) above, such counsel may state that no
opinion is expressed with respect to the effect of New York
law. In regard to clause (xi) above, such counsel may state
that their opinion and belief is based upon their
participation in the preparation of the Registration Statement
and the Prospectus and any supplements and amendments thereto
and upon their review and discussion of the contents thereof,
but is without independent check or verification except as
specified, and that their opinion in regard to documents filed
under the Securities Exchange Act of 1934, called for in
clause (xi)(A) above, is based upon the opinion of counsel
satisfactory to them.
(h) You shall have received on the Closing Date an
opinion of Davis Polk & Wardwell, counsel for the
Underwriters, dated the Closing Date, covering the matters in
(iv), (v), (vii), (x) and clauses (B) and(C) of (xi) of (g)
above, provided that with respect to clauses (B) and (C) of
(xi) of (g) above, such counsel may state that their opinion
and belief is based upon their participation in the
preparation of the Registration Statement and the Prospectus
and any amendments and supplements thereto (other than
documents incorporated by reference), and upon their review
and discussion of the contents thereof (including documents
incorporated by reference), but is without independent check
or verification except as specified. In giving such opinion
such counsel may rely as to matters of Ohio law on the opinion
of Taft, Stettinius & Hollister or on the opinions of other
Ohio counsel.
(i) You shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance
satisfactory to you, from Arthur Andersen LLP, independent
accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and
certain financial information contained in or incorporated by
reference into the Registration Statement and the Prospectus.
V.
In further consideration of the agreements of the
Underwriters herein contained the Company covenants as
follows:
(a) To furnish without charge to you two signed
copies of the Registration Statement (including exhibits and
documents incorporated by reference), and to each other
Underwriter a copy of the Registration Statement (without
exhibits but including documents incorporated by reference)
and, during the period mentioned in paragraph (c) below, as
many copies of the Prospectus and any amendments and
supplements thereto as you may reasonably request. The terms
"supplement" and "amendment" or "amend" as used in this
Agreement shall include or refer to all documents subsequently
filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934 which are deemed to be
incorporated by reference in the Prospectus from the date of
filing such documents in accordance with Form S-3.
(b) Before amending or supplementing the
Registration Statement or the Prospectus, to furnish to each
of you a copy of each such proposed amendment or supplement.
(c) If, during such period after the first date of
the public offering of the Debentures as in the opinion of
your counsel a prospectus covering the Debentures is required
by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur as a result of
which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser,
not misleading, or if it shall be necessary to amend or
supplement the Prospectus to comply with law,forthwith to
prepare and furnish, at its own expense, to the Underwriters
and to the dealers (whose names and addresses you will furnish
to the Company) to which Debentures may have been sold by you
on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus so
that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or
so that the Prospectus will comply with law.
(d) To endeavor to qualify the Debentures for offer
and sale under the securities or Blue Sky laws of such
jurisdictions as you shall reasonably request and to pay all
expenses (including fees and disbursements of counsel) in
connection with such qualification and in connection with the
determination of the eligibility of the Debentures for
investment under the laws of such jurisdictions as you may
designate.
(e) To make generally available to the Company's
security holders as soon as practicable an earnings statement
covering the twelve-month period beginning after the date of
this Agreement, which shall satisfy the provisions of Section
11(a) of the Securities Act of 1933 (including Rule 158
thereunder).
(f) During the period beginning on the date of this
Agreement and terminating on the Closing Date not to offer,
sell, contract to sell or otherwise dispose of any debt
securities of the Company substantially similar to the
Debentures, without your prior written consent.
VI.
The Company represents and warrants to each
Underwriter that (i) each preliminary prospectus filed as part
of the registration statement as originally filed or as part
of any amendment thereto or filed pursuant to Rule 424 under
the Securities Act of 1933, complied when so filed in all
material respects with the requirements of the Securities Act
of 1933 and the applicable rules and regulations thereunder,
(ii) each document incorporated by reference in the Prospectus
complied when filed (and each document subsequently filed by
the Company pursuant to the Securities Exchange Act of 1934
and deemed incorporated by reference in the Prospectus will,
at the time of filing, comply) in all material respects with
the provisions of the Securities Exchange Act of 1934,
together with the applicable rules and regulations of the
Commission thereunder, and (iii)the Registration Statement and
Prospectus, as amended or supplemented, will comply in all
material respects with the Securities Act of 1933 and the
applicable rules and regulations thereunder and will not
contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
except that these representations and warranties do not apply
to statements or omissions in the Registration Statement or
the Prospectus, or any preliminary prospectus based upon
information furnished to the Company in writing by any
Underwriter expressly for use therein.
The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Securities
Act of 1933 or Section 20 of the Securities Exchange Act of
1934, from and against any and all losses, claims, damages and
liabilities (including the fees and expenses of counsel in
connection with any governmental or regulatory investigation
or proceeding) caused by any untrue statement or alleged
untrue statement of a material fact contained in the
Registration Statement or Prospectus (if used within the
period set forth in paragraph (c) of Article V hereof and as
amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities
are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information furnished
in writing to the Company by any Underwriter expressly for use
therein.
In case any action shall be brought against any
Underwriter or any person controlling such Underwriter, based
upon the Registration Statement or Prospectus or any amendment
or supplement thereto or any preliminary prospectus and in
respect of which indemnity may be sought against the Company,
such Underwriter shall promptly notify the Company in writing,
and the Company, upon the request of such Underwriter, shall
assume the defense thereof on behalf of such Underwriter or
controlling person, including the employment of counsel and
payment of all expenses. In any such action, any Underwriter
or any such controlling person shall have the right to employ
its own counsel but the fees and expenses of such counsel
shall be at the expense of such Underwriter or such
controlling person unless (i) the employment of such counsel
has been specifically authorized in writing by the Company or
(ii) the named parties to any such action (including any
impleaded parties) include both such Underwriter or such
controlling person and the Company and such Underwriter or
such controlling person shall have been advised by such
counsel that there maybe one or more legal defenses available
to it which are different from or additional to those
available to the Company(it being understood, however, that
the Company shall not, in connection with any one such action
or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of
attorneys(in addition to one firm of local counsel) for all
such Underwriters and controlling persons, which firm shall be
designated in writing by you, and that such fees and expenses
shall be reimbursed as they are incurred). The Company shall
not be liable for indemnification (or contribution as provided
below) with respect to the settlement of any such action
effected without its written consent, but if settled with the
written consent of the Company or if there be a final judgment
for the plaintiff in any such action, the Company agrees to
indemnify and hold harmless any Underwriter and any such
controlling person from and against any loss or liability by
reason of such settlement or judgment (or to make contribution
as provided below).
Each Underwriter agrees, severally and not
jointly,to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement
and any person controlling the Company to the same extent as
the foregoing indemnity from the Company to each Underwriter,
but only with reference to information relating to such
Underwriter furnished in writing by such Underwriter expressly
for use in the Registration Statement,the Prospectus or any
preliminary prospectus. In case any action shall be brought
against the Company, any of its directors or any such officer
or controlling person based on the Registration Statement, the
Prospectus or any preliminary prospectus and in respect of
which indemnity may be sought against any Underwriter, the
Underwriter shall have the rights and duties given to the
Company, and the Company, its directors or any such officer or
controlling person shall have the rights and duties given to
the Underwriter, by the preceding paragraph of this Article
VI.
If the indemnification provided for in the second
paragraph of this Article VI is unavailable to any Underwriter
or other indemnified party in respect of any losses, claims,
damages or liabilities referred to therein, then the Company,
in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such
indemnified party as a result of such losses,claims, damages
or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering
of the Debentures or(ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Underwriters
on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or
liabilities,as well as any other relevant equitable
considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The
relative fault of the Company and of the Underwriters shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
If the indemnification provided for in this Article
VI is sought solely by the Company under the fourth paragraph
hereof and there is no claim for indemnification by any
Underwriter or any person controlling such Underwriter arising
out of the same misstatement or omission and if such
indemnification is unavailable to the Company in respect of
any losses, claims, damages or liabilities referred to in such
fourth paragraph, then the Underwriters,in lieu of
indemnifying the Company, shall contribute to the amount paid
or payable by the Company as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to
reflect the relative fault of the Company on the one hand and
of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims,
damages or liabilities,as well as any other relevant equitable
considerations. The relative fault of the Company on the one
hand and of the Underwriters on the other shall be determined
by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and
the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this
Article VI were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or
by any other method of allocation which does not take account
of the equitable considerations referred to in the two
immediately preceding paragraphs. The amount paid or payable
by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in such paragraphs shall
be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this Article VI, no Underwriter shall be
required to contribute any amount in excess of the amount by
which the total price at which the Debentures underwritten by
it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act of 1933) shall
be entitled to contribution from any person who is not guilty
of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Article VI are
several in proportion to their respective underwriting
percentages (as defined in the Agreement Among Underwriters
relating to the Debentures) and not joint.
The indemnity and contribution agreements contained
in this Article VI and the representations and warranties of
the Company set forth in this Agreement shall remain operative
and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter
or by or on behalf of the Company, its directors or officers
or any person controlling the Company and (iii) acceptance of
and payment for any of the Debentures.
VII.
This Agreement shall be subject to termination in
your absolute discretion, by notice given to the Company,
if(a) prior to the Closing Date (i) trading in securities on
the New York Stock Exchange or the American Stock Exchange
shall have been suspended or materially limited, (ii)trading
in any securities of the Company shall have been suspended on
any national securities exchange in the United States or in
any over-the-counter market in the United States, (iii) a
general moratorium on banking activities in New York shall
have been declared by Federal or New York State authorities or
(iv) there shall have occurred any outbreak or escalation of
hostilities or any change in the financial markets or other
calamity or crisis,any of which is material and adverse and
(b) in the case of any of the events specified in clauses
(a)(i) through(iv), such event either singly or together makes
it, in your reasonable judgment, impracticable to market the
Debentures. Any termination of this Agreement pursuant to
this Article VII shall be without liability on the part of the
Company to the Underwriters, or the Underwriters to the
Company.
VIII.
This Agreement shall become effective upon
signature.
If any one or more of the Underwriters shall fail or
refuse to purchase Debentures which it or they have agreed to
purchase hereunder, and the aggregate principal amount of
Debentures which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of the Debentures,
the other Underwriters shall be obligated severally in the
proportions which the principal amount of Debentures set forth
opposite their names in Article I bears to the aggregate
principal amount of Debentures so set forth opposite the names
of all such non-defaulting Underwriters, or in such other
proportions as you may specify,to purchase the Debentures
which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase; provided that in no event shall
the principal amount of Debentures which any Underwriter has
agreed to purchase pursuant to Article I hereof be increased
pursuant to this Article VIII by an amount in excess of
one-ninth of such principal amount of Debentures without the
written consent of such Underwriter. If any Underwriter or
Underwriters shall fail or refuse to purchase Debentures and
the aggregate principal amount of Debentures with respect to
which such default occurs is more than one-tenth of the
aggregate principal amount of Debentures and arrangements
satisfactory to you and the Company for the purchase of such
Debentures are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of
any non-defaulting Underwriter or of the Company. In any such
case which does not result in such a termination, either you
or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the
Underwriters, or any of them, because of any failure or
refusal on the part of the Company to comply with the terms or
to fulfill any of the conditions of this Agreement or if for
any reason the Company shall be unable to perform its
obligations under this Agreement, the Company will reimburse
the Underwriters or such Underwriters as have so terminated
this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering contemplated
hereunder.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
This Agreement may be signed in various counterparts
which together shall constitute one and the same instrument.
Very truly yours,
THE CINCINNATI GAS & ELECTRIC
COMPANY
By
----------------------------
Title:
By:
---------------------------
Title:
Accepted, , 1995
-----------
[Name of Managing Underwriter]
on behalf of the Underwriters
named in Article I hereof
By
----------------------------
Title:
<PAGE>
EXHIBIT 4
THE CINCINNATI GAS & ELECTRIC COMPANY
AND
THE FIFTH THIRD BANK, Trustee
-------------
INDENTURE
------------
Dated as of , 1995
<PAGE>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
Section 310(a)(1). . . . . . . . . . . . . . . .609
(a)(2). . . . . . . . . . . . . . . . . .609
(a)(3). . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . .Not Applicable
(b). . . . . . . . . . . . . . . . . . . . 608
. . . . . . . . . . . . . . . . . . . . . .610
Section 311(a). . . . . . . . . . . . . . . . . .613
(b). . . . . . . . . . . . . . . . . . . .613
Section 312(a). . . . . . . . . . . . . . . . . .701
. . . . . . . . . . . . . . . . . . . . . .702
(b). . . . . . . . . . . . . . . . . . . . 702
(c). . . . . . . . . . . . . . . . . . . . 702
Section 313(a). . . . . . . . . . . . . . . . . .703
(b). . . . . . . . . . . . . . . . . . . . 703
(c). . . . . . . . . . . . . . . . . . . . .703
(d). . . . . . . . . . . . . . . . . . . . .703
Section 314(a). . . . . . . . . . . . . . . . . . .704
(a)(4). . . . . . . . . . . . . . . . . . . .101
. . . . . . . . . . . . . . . . . . . . . . .1004
(b). . . . . . . . . . . . . . . . Not Applicable
(c)(1). . . . . . . . . . . . . . . . . . . .102
(c)(2). . . . . . . . . . . . . . . . . . . .102
(c)(3). . . . . . . . . . . . . . .Not Applicable
(d). . . . . . . . . . . . . . . . Not Applicable
(e). . . . . . . . . . . . . . . . . . . . . .102
Section 315(a). . . . . . . . . . . . . . . . . . . 601
(b). . . . . . . . . . . . . . . . . . . . . .602
(c). . . . . . . . . . . . . . . . . . . . . .601
(d). . . . . . . . . . . . . . . . . . . . . .601
(e). . . . . . . . . . . . . . . . . . . . . .514
Section 316(a). . . . . . . . . . . . . . . . . . . 101
(a)(1)(A). . . . . . . . . . . . . . . . . . .502
. . . . . . . . . . . . . . . . . . . . . . . 512
(a)(1)(B). . . . . . . . . . . . . . . . . . .513
(a)(2). . . . . . . . . . . . . . .Not Applicable
(b). . . . . . . . . . . . . . . . . . . . . .508
(c). . . . . . . . . . . . . . . . . . . . . .104
Section 317(a)(1). . . . . . . . . . . . . . . . . .503
(a)(2). . . . . . . . . . . . . . . . . . . . 504
(b). . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a). . . . . . . . . . . . . . . . . . . 107
__________________
Note: This reconciliation and tie shall not, for any
purpose, be deemed to be a part of the Indenture.
<PAGE>
THE CINCINNATI GAS & ELECTRIC COMPANY
Inden ture
Dated as of , 1995
- ----- -----------------
TABLE OF CONTENTS
Parties. . . . . . . . . . . . . . . . . . . . . . . . 9
Recitals of the Company . . . . . . . . . . . . . . . . . 9
ARTIC LE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions:
Act . . . . . . . . . . . . . . . . 10
Affiliate; control . . . . . . . . . 10
Authenticating Agent. . . . . . . . .10
Board of Directors. . . . . . . . . .10
Board Resolution. . . . . . . . . . .10
Business Day. . . . . . . . . . . . .10
Commission. . . . . . . . . . . . . .10
Company. . . . . . . . . . . . . . ..10
Company Request; Company Order. . . .11
Corporate Trust Office. . . . . . . .11
corporation. . . . . . . . . . . . . 11
Covenant Defeasance. . . . . . . . . 11
Defaulted Interest. . . . . . . . . .11
Defeasance. . . . . . . . . . . . . .11
Depositary. . . . . . . . . . . . . .11
Event of Default. . . . . . . . . . .11
Exchange Act. . . . . . . . . . . . .11
Expiration Date. . . . . . . . . . . 11
Global Security. . . . . . . . . . . 11
Holder. . . . . . . . . . . . . . . .11
Indenture. . . . . . . . . . . . . . 11
interest. . . . . . . . . . . . . . .12
Interest Payment Date. . . . . . . . 12
Investment Company Act. . . . . . . .12
Junior Subordinated Securities. . . .12
Maturity. . . . . . . . . . . . . . .12
Notice of Default. . . . . . . . . . 12
Officers' Certificate. . . . . . . . 12
Opinion of Counsel. . . . . . . . . .12
Original Issue Discount Security. . .12
Outstanding. . . . . . . . . . . . . 12
Paying Agent. . . . . . . . . . . . .14
Person. . . . . . . . . . . . . . . .14
Place of Payment. . . . . . . . . . .14
Predecessor Security. . . . . . . . .14
Redemption Date. . . . . . . . . . . 14
Redemption Price. . . . . . . . . . .14
Regular Record Date. . . . . . . . . 14
Responsible Officer. . . . . . . . . 14
Securities. . . . . . . . . . . . . .14
Securities Act. . . . . . . . . . . .14
Security Register;Security Registrar.15
Senior Debt. . . . . . . . . . . . . 15
Special Record Date. . . . . . . . . 15
Stated Maturity. . . . . . . . . . . 15
Subsidiary. . . . . . . . . . . . . .15
Trust Indenture Act. . . . . . . . . 15
Trustee. . . . . . . . . . . . . . . 15
U.S. Government Obligation. . . . . .16
Vice President. . . . . . . . . . . .16
Section 102. Compliance Certificates and Opinions.16
Section 103. Form of Documents Delivered
to Trustee. . . . . . . . . . . . 16
Section 104. Acts of Holders; Record Dates. . . . 17
Section 105. Notices, Etc., to Trustee
and Company. . . . . . . . . . . .19
Section 106. Notice to Holders; Waiver. . . . . . 20
Section 107. Conflict with Trust Indenture Act. . 20
Section 108. Effect of Headings and Table of
Contents. . . . . . . . . . . . . 20
Section 109. Successors and Assigns. . . . . . . .21
Section 110. Separability Clause. . . . . . . . . 21
Section 111. Benefits of Indenture. . . . . . . . 21
Section 112. Governing Law. . . . . . . . . . . . 21
Section 113. Legal Holidays. . . . . . . . . . . .21
Section 114. Certain Matters Relating to
Currencies. . . . . . . . . . . . 22
Section 115. Immunity of Incorporators,
Stockholders, Officers
and Directors. . . . . . .22
Section 116. Counterparts. . . . . . . . . . . . .22
Section 117. Assignment to Subsidiary. . . . . . .23
ARTICLE TWO
Security Forms
Section 201. Forms Generally. . . . . . . . . . . 23
Section 202. Form of Face of Security. . . . . . .23
Section 203. Form of Reverse of Security. . . . . 26
Section 204. Form of Legend for Global Securities.30
Section 205. Form of Trustee's Certificate of
Authentication. . . . . . . . . . 30
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.31
Section 302. Denominations. . . . . . . . . . . . 34
Section 303. Execution, Authentication, Delivery
and Dating. . . . . . . . . . . . 34
Section 304. Temporary Securities. . . . . . . . .36
Section 305. Registration, Registration of
Transfer and Exchange. . . . . . .36
Section 306. Mutilated, Destroyed, Lost and
Stolen Securities. . . . . . . . .38
Section 307. Payment of Interest; Interest
Rights Preserved. . . . . . . . . 39
Section 308. Persons Deemed Owners. . . . . . . . 41
Section 309. Cancellation. . . . . . . . . . . . .41
Section 310. Computation of Interest. . . . . . . 41
Section 311. CUSIP Numbers. . . . . . . . . . . . 42
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of
Indenture. . . . . . . . . . . . .42
Section 402. Application of Trust Money. . . . . .43
ARTICLE FIVE
Remedies
Section 501. Events of Default. . . . . . . . . . 43
Section 502. Acceleration of Maturity;
Rescission and Annulment. . . . .45
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee. . . .46
Section 504. Trustee May File Proofs of Claim. . .46
Section 505. Trustee May Enforce Claims Without
Possession of Securities. . . . .47
Section 506. Application of Money Collected. . . .47
Section 507. Limitation on Suits. . . . . . . . . 48
Section 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest. . . . . . . . . . . . .48
Section 509. Restoration of Rights and Remedies. .49
Section 510. Rights and Remedies Cumulative. . . .49
Section 511. Delay or Omission Not Waiver. . . . .49
Section 512. Control by Holders. . . . . . . . . .49
Section 513. Waiver of Past Defaults. . . . . . . 50
Section 514. Undertaking for Costs. . . . . . . . 50
Section 515. Waiver of Usury, Stay or
Extension Laws. . . . . . . . . . 50
ARTICLE SIX
The Trustee
Section 601. Certain Duties and
Responsibilities. . . . . . . .51
Section 602. Notice of Defaults. . . . . . . . . .51
Section 603. Certain Rights of Trustee. . . . . . 51
Section 604. Not Responsible for Recitals or
Issuance of Securities. . . . .52
Section 605. May Hold Securities. . . . . . . . . 53
Section 606. Money Held in Trust. . . . . . . . . 53
Section 607. Compensation and Reimbursement. . . .53
Section 608. Conflicting Interests. . . . . . . . 54
Section 609. Corporate Trustee Required;
Eligibility. . . . . . . . . . .54
Section 610. Resignation and Removal; Appointment
of Successor. . . . . . . . . . 55
Section 611. Acceptance of Appointment by
Successor. . . . . . . . . . . .56
Section 612. Merger, Conversion, Consolidation
or Succession to Business. . . .57
Section 613. Preferential Collection of Claims
Against Company. . . . . . . . .58
Section 614. Appointment of Authenticating Agent. 58
Section 615. Indemnification. . . . . . . . . . . 60
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee
Names and Addresses of Holders. .60
Section 702. Preservation of Information;
Communications to Holders. . . . 61
Section 703. Reports by Trustee. . . . . . . . . .61
Section 704. Reports by Company. . . . . . . . . .62
ARTICLE EIGHT
Consolidation, Merger and Sale
Section 801. Consolidation and Mergers
Permitted. . . . . . . . . . . .62
Section 802. Rights and Duties of Successor
Company. . . . . . . . . . . . .62
Section 803. Opinion of Counsel. . . . . . . . . .63
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without
Consent of Holders. . . . . . . .63
Section 902. Supplemental Indentures With
Consent of Holders. . . . . . . .65
Section 903. Execution of Supplemental
Indentures. . . . . . . . . . . .66
Section 904. Effect of Supplemental Indentures. . 66
Section 905. Conformity with Trust Indenture
Act. . . . . . . . . . . . . . . 67
Section 906. Reference in Securities to
Supplemental Indentures. . . . . 67
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and
Interest. . . . . . . . . . . . .67
Section 1002. Maintenance of Office or Agency. . . 67
Section 1003. Money for Securities Payments to Be
Held in Trust. . . . . . . . . . 68
Section 1004. Statement by Officers as to
Default. . . . . . . . . . . . . 69
Section 1005. Maintenance of Properties. . . . . . 69
Section 1006. Payment of Taxes and Other Claims. . 70
Section 1007. Waiver of Certain Covenants. . . . . 70
Section 1008. Calculation of Original Issue
Discount. . . . . . . . . . . . .70
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article. . . . . . 71
Section 1102. Election to Redeem; Notice to
Trustee. . . . . . . . . . . . .71
Section 1103. Selection by Trustee of Securities
to Be Redeemed. . . . . . . . . 71
Section 1104. Notice of Redemption. . . . . . . . 72
Section 1105. Deposit of Redemption Price. . . . .73
Section 1106. Securities Payable on Redemption
Date. . . . . . . . . . . . . . 73
Section 1107. Securities Redeemed in Part. . . . .73
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article. . . . . . 74
Section 1202. Satisfaction of Sinking Fund
Payments with Securities. . . . 74
Section 1203. Redemption of Securities for
Sinking Fund. . . . . . . . . . 75
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect
Defeasance or Covenant
Defeasance. . . . . . . . . . . .75
Section 1302. Defeasance and Discharge. . . . . . .75
Section 1303. Covenant Defeasance. . . . . . . . . 76
Section 1304. Conditions to Defeasance or Covenant
Defeasance. . . . . . . . . . . .76
Section 1305. Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Miscellaneous Provisions. . . . .79
Section 1306. Reinstatement. . . . . . . . . . . . 79
ARTICLE FOURTEEN
Junior Subordinated Securities
Section 1401. Certain Securities Subordinate to
Senior Debt. . . . . . . . . . . 80
Section 1402. Payment Over of Proceeds Upon
Default. . . . . . . . . . . . . 80
Section 1403. Payment Over of Proceeds Upon
Dissolution, Etc. . . . . . . . .81
Section 1404. Subrogation to Rights of Holders of
Senior Debt. . . . . . . . . . . 82
Section 1405. Trustee to Effectuate
Subordination. . . . . . . . . . 83
Section 1406. Notice to Trustee. . . . . . . . . . 84
Section 1407. Rights of Trustee as Holder of
Senior Debt; Preservation of
Trustee's Rights. . . . . . . . .84
Section 1408. No Waiver of Subordination
Provisions. . . . . . . . . . . .85
Testimonium. . . . . . . . . . . . . . . . . . . . . 86
Signatures and Seals. . . . . . . . . . . . . . . . .86
Acknowledgements. . . . . . . . . . . . . . . . . . .87
<PAGE>
INDENTURE, dated as of , 1995, between The Cincinnati
Gas & Electric Company, a corporation duly organized and existing
under the laws of the State of Ohio (herein called the "Company"),
having its principal office at 139 East Fourth Street, Cincinnati,
Ohio 45202, and The Fifth Third Bank, an Ohio banking corporation,
as Trustee (herein called the "Trustee").
Recitals of the Company
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
unsecured debentures, notes or other evidences of indebtedness (herein
called the "Securities"), to be issued in one or more series as in
this Indenture provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, subject to
Article Fourteen, if applicable, for the equal and proportionate
benefit of the Holders of the Securities of each series thereof, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the
case may be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes
of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"Board of Directors" means the board of directors of the
Company, or any duly authorized committee of that board, or any Person
duly authorized to act on behalf of that board.
"Board Resolution" means a copy of a resolution or resolutions
certified by the Secretary or an Assistant Secretary of the Company to
have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to
the Trustee.
"Business Day", when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment are
authorized or obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission, from
time to time constituted, created under the Exchange Act, or, if at
any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have
become such
pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company either by (i) its Chairman of
the Board, its Vice Chairman, its President or a Vice President, and
by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee, or (ii) any two
Persons designated in a Board Resolution, or in a Company Order
previously delivered to the Trustee signed by any two of the
foregoing, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee for
Securities of any series at which at any particular time its corporate
trust business shall be principally administered, which office at the
date of execution of this Indenture is located at 38 Fountain Square
Plaza, Cincinnati, Ohio.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange Act that
is designated to act as Depositary for such Securities as contemplated
by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or part
of the Securities of any series and bears the legend set forth in
Section 204 (or such legend as may be specified as contemplated by
Section 301 for such Securities).
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indenture" means this instrument as originally executed and as
it may from time to time be supplemented or amended by one or more
indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively. The term "Indenture" shall also
include the terms of particular series of Securities established as
contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an instalment of interest on such
Security.
"Investment Company Act" means the Investment Company Act of
1940 and any statute successor thereto, in each case as amended from
time to time.
"Junior Subordinated Securities" shall have the meaning
specified in Section 1401.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an instalment of
principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified
in Section 501(4).
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the Vice Chairman, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary, of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be an employee of or counsel for the Company.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated
and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities; provided that,
if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected
pursuant to Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given,
made or taken any request, demand, authorization, direction, notice,
consent, waiver or other action hereunder as of any date, (A) the
principal amount of an Original Issue Discount Security which shall be
deemed to be Outstanding shall be the amount of the principal thereof
which would be due and payable as of such date upon acceleration of
the Maturity thereof to such date pursuant to Section 502, (B) if, as
of such date, the principal amount payable at the Stated Maturity of
a Security is not determinable, the principal amount of such Security
which shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 301, (C) the
principal amount of a Security denominated in one or more foreign
currencies or currency units which shall be deemed to be Outstanding
shall be the U.S. dollar equivalent, determined as of such date in the
manner provided as contemplated by Section 301, of the principal
amount of such Security (or, in the case of a Security described in
Clause (A) or (B) above, of the amount determined as provided in such
Clause), and (D) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice,
consent, waiver or other action, only Securities which the Trustee
actually knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities
and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means, if not the Company, then any Person
authorized by the Company to pay the principal of or any premium or
interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of
any series, means the place or places where the principal of and any
premium and interest on the Securities of that series are payable as
specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306
in exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to
this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified
for that purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee,
means any vice president, any assistant vice-president, any trust
officer or assistant trust officer of the Trustee assigned to the
Trustee's corporate trust department and customarily performing
functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of
his knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" of the Company means the principal of, premium, if
any, interest on and any other payment due pursuant to any of the
following, whether outstanding at the date of execution of this
Indenture or thereafter incurred, created or assumed: (a) all
indebtedness of the Company evidenced by notes, debentures, bonds or
other securities sold by the Company for money, excluding Junior
Subordinated Securities, but including all first mortgage bonds of the
Company outstanding from time to time; (b) all indebtedness of others
of the kinds described in the preceding clause (a) assumed by or
guaranteed in any manner by the Company, including through an
agreement to purchase, contingent or otherwise; and (c) all renewals,
extensions or refundings of indebtedness of the kinds described in any
of the preceding clauses (a) and (b); unless, in the case of any
particular indebtedness, renewal, extension or refunding, the
instrument creating or evidencing the same or the assumption or
guarantee of the same expressly provides that such indebtedness,
renewal, extension or refunding is not superior in right of payment to
or is pari passu with the Junior Subordinated Securities.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of
such Security or such instalment of principal or interest is due and
payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company
or by one or more other Subsidiaries, or by the Company and one or
more other Subsidiaries. For the purposes of this definition, "voting
stock" means stock which ordinarily has voting power for the election
of directors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as
provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Trustee" shall mean or include each Person who is then
a Trustee hereunder, and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series
shall mean the Trustee with respect to Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section
1304.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice
president".
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company
shall furnish to the Trustee such certificates and opinions as may be
required under the Trust Indenture Act. Each such certificate or
opinion shall be given in the form of an Officers' Certificate, if to
be given by an officer of the Company, or an Opinion of Counsel, if to
be given by counsel, and shall comply with the requirements of the
Trust Indenture Act and any other requirements set forth in this
Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include,
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(3) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give
an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters
upon which his certificate or opinion is based are erroneous. Any such
certificate or opinion of counsel may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that
the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such
Holders in person or by agent duly appointed in writing; and, except
as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to
Section 601) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that
the individual signing such instrument or writing acknowledged to him
the execution thereof. Where such execution is by a signer acting in
a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The
fact and date of the execution of any such instrument or writing, or
the authority of the Person executing the same, may also be proved in
any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security
Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series
entitled to give, make or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders of
Securities of such series, provided that the Company may not set a
record date for, and the provisions of this paragraph shall not apply
with respect to, the giving or making of any notice, declaration,
request or direction referred to in the next paragraph. If any record
date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other
Holders, shall be entitled to take the relevant action, whether or not
such Holders remain Holders after such record date; provided that no
such action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date.
Nothing in this paragraph shall be construed to prevent the Company
from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by
any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by
Holders of the requisite principal amount of Outstanding Securities of
the relevant series on the date such action is taken. Promptly after
any record date is set pursuant to this paragraph, the Company, at its
own expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be given to
the Trustee in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series
entitled to join in the giving or making of (i) any Notice of Default,
(ii) any declaration of acceleration referred to in Section 502, (iii)
any request to institute proceedings referred to in Section 507(2) or
(iv) any direction referred to in Section 512, in each case with
respect to Securities of such series. If any record date is set
pursuant to this paragraph, the Holders of Outstanding Securities of
such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction,
whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken
on or prior to the applicable Expiration Date by Holders of the
requisite principal amount of Outstanding Securities of such series on
such record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action for
which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action
taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the
Trustee, at the Company's expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration
Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section
106.
With respect to any record date set pursuant to this Section, the
party hereto which sets such record date may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date
to any earlier or later day; provided that no such change shall be
effective unless notice of the proposed new Expiration Date is given
to the other party hereto in writing, and to each Holder of Securities
of the relevant series in the manner set forth in Section 106, on or
prior to the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this
Section, the party hereto which set such record date shall be deemed
to have initially designated the 180th day after such record date as
the Expiration Date with respect thereto, subject to its right to
change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than
the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may
do so with regard to all or any part of the principal amount of such
Security or by one or more duly appointed agents each of which may do
so pursuant to such appointment with regard to all or any part of such
principal amount.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the Trustee
by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, to each Holder affected
by such event, at his address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In
any case where notice to Holders is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Any notice when mailed to a Holder in the
aforesaid manner shall be conclusively deemed to have been received by
such Holder whether or not actually received by such Holder. Where
this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent
to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such
notice by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for
every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act which is required under such Act
to be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto,
their successors hereunder, the Holders, and the holders of any Senior
Debt, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the law of the State of New York.
Without regard to conflicts of laws principles thereof.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities (other than a provision of any Security
which specifically states that such provision shall apply in lieu of
this Section)) payment of interest or principal (and premium, if any)
need not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, and no interest shall
accrue with respect to such payment for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case
may be, to such next succeeding Business Day.
Section 114. Certain Matters Relating to Currencies.
Whenever any action or Act is to be taken hereunder by the
Holders of Securities denominated in different currencies or currency
units, then for purposes of determining the principal amount of
Securities held by such Holders, the aggregate principal amount of the
Securities denominated in a foreign currency or currency unit shall be
deemed to be that amount of Dollars that could be obtained for such
principal amount on the basis of a spot exchange rate specified to the
Trustee for such series in an Officers' Certificate for exchanging
such foreign currency or currency unit into Dollars as of the date of
the taking of such action or Act by the Holders of the requisite
percentage in principal amount of the Securities.
The Trustee shall segregate moneys, funds and accounts held by
the Trustee in one currency or currency unit from any moneys, funds or
accounts held in any other currencies or currency units,
notwithstanding any provision herein that would otherwise permit the
Trustee to commingle such amounts.
Section 115. Immunity of Incorporators, Stockholders, Officers and
Directors.
No recourse shall be had for the payment of the principal of (and
premium, if any), or the interest, if any, on any Securities of any
series, or for any claim based thereon, or upon any obligation,
covenant or agreement of this Indenture, against any incorporator,
stockholder, officer or director, as such, past, present or future, of
the Company or of any successor corporation, either directly or
indirectly through the Company or any successor corporation, whether
by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment of penalty or otherwise; it being
expressly agreed and understood that this Indenture and all the
Securities of each series are solely corporate obligations, and that
no personal liability whatever shall attach to, or is incurred by, any
incorporator, stockholder, officer or director, past, present or
future, of the Company or of any successor corporation, either
directly or indirectly through the Company or any successor
corporation, because of the incurring of the indebtedness hereby
authorized or under or by reason of any of the obligations, covenants
or agreements contained in this Indenture or in any of the Securities
of any series, or to be implied herefrom or therefrom; and that all
such personal liability is hereby expressly released and waived as a
condition of, and as part of the consideration for, the execution of
this Indenture and the issuance of the Securities of each series.
Section 116. Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
Section 117. Assignment to Affiliate.
The Company will have the right at all times to assign by
indenture supplemental hereto any of its rights or obligations under
the Indenture to a direct, indirect, or wholly owned Affiliate of the
Company; provided that, in the event of any such assignment, the
Company will remain liable for all such obligations.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Securities of each series shall be in substantially the form
set forth in this Article, or in such other form as shall be
established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the
rules of any securities exchange or Depositary therefor or as may,
consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution thereof. If the form of
Securities of any series is established by action taken pursuant to a
Board Resolution, a copy of an appropriate record of such action shall
be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the authentication and
delivery of such Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other
manner, all as determined by the officers executing such Securities,
as evidenced by their execution of such Securities.
Section 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
THE CINCINNATI GAS & ELECTRIC COMPANY
............................................
No. ......... $ ........
CUSIP NO. ________
The Cincinnati Gas & Electric Company, a corporation duly
organized and existing under the laws of Ohio (herein called the
"Company", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby
promises to pay to ...............................................,
or registered assigns, the principal sum of
...................................... Dollars on
........................................................ [if the
Security is to bear interest prior to Maturity, insert: , and to
pay interest thereon from ............. or from the most recent
Interest Payment Date to which interest has been paid or duly
provided for, ................... on ............ and ............
in each year, commencing ........., at the rate of ....% per annum,
until the principal hereof is paid or made available for payment.
The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be
paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be the
....... or ....... (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date. Any such interest not
so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be
fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more
fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert:
The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon
redemption or at Stated Maturity and in such case the overdue
principal and any overdue premium shall bear interest at the rate of
....% per annum (to the extent that the payment of such interest
shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any
overdue principal or premium shall be payable on demand. Any such
interest on overdue principal or premium which is not paid on demand
shall bear interest at the rate of ......% per annum (to the extent
that the payment of such interest on interest shall be legally
enforceable), from the date of such demand until the amount so
demanded is paid or made available for payment. Interest on any
overdue interest shall be payable on demand.]
Payment of the principal of (and premium, if any) and [if
applicable, insert: any such] interest on this Security will be made
at the office or agency of the Company maintained for that purpose
in ............, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of
public and private debts [if applicable, insert: ;provided,
however, that at the option of the Company payment of interest may
be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register].
Any payment on this Security due on any day which is not a
Business Day in the City of New York need not be made on such day,
but may be made on the next succeeding Business Day with the same
force and effect as if made on the due date and no interest shall
accrue for the period from and after such date.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, [if subordinated, insert:
including, without limitation, provisions subordinating the payment
of the principal hereof and any premium and interest hereon to the
payment in full of all Senior Debt as defined in the Indenture] such
further provisions shall for all purposes have the same effect as if
set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual
signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
In Witness Whereof, the Company has caused this instrument to
be duly executed under its corporate seal.
THE CINCINNATI GAS & ELECTRIC COMPANY
By...................................................
Attest:
.........................................
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of
, 1995 (herein called the "Indenture", which term shall
have the meaning assigned to it in such instrument), between the
Company and The Fifth Third Bank as Trustee (herein called the
"Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities
are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof [if applicable,
insert: , limited in aggregate principal amount to $...........].
[If applicable, insert: The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail,
[if applicable, insert: (1) on ........... in any year commencing
with the year ...... and ending with the year ...... through
operation of the sinking fund for this series at a Redemption Price
equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert: on or after .........., 19..], as a whole or
in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount): If
redeemed [if applicable, insert: on or before ...............,
...%, and if redeemed] during the 12-month period beginning
............. of the years indicated,
Redemption Redemption
Year Price Year Price
------ ---------- ---- ----------
and thereafter at a Redemption Price equal to .....% of the
principal amount, together in the case of any such redemption [if
applicable, insert: (whether through operation of the sinking fund
or otherwise)] with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.]
[If applicable, insert: The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail,
(1) on ............ in any year commencing with the year .... and
ending with the year .... through operation of the sinking fund for
this series at the Redemption Prices for redemption through
operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below, and (2) at any time
[if applicable, insert: on or after ............], as a whole or
in part, at the election of the Company, at the Redemption Prices
for redemption otherwise than through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the
table below: If redeemed during the 12-month period beginning
............ of the years indicated,
Redemption Price For
Redemption Price For Redemption Otherwise
Redemption Through Than Through
Operation of the Operation of the
Year Sinking Fund Sinking Fund
---- -------------------- ---------------------
and thereafter at a Redemption Price equal to .....% of the
principal amount, together in the case of any such redemption
(whether through operation of the sinking fund or otherwise) with
accrued interest to the Redemption Date, but interest installments
whose Stated Maturity is on or prior to such Redemption Date will be
payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert: Notwithstanding the foregoing, the
Company may not, prior to ............., redeem any Securities of
this series as contemplated by [if applicable, insert: Clause (2)
of] the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of
moneys borrowed having an interest cost to the Company (calculated
in accordance with generally accepted financial practice) of less
than .....% per annum.]
[If applicable, insert: The sinking fund for this series
provides for the redemption on ............ in each year beginning
with the year ....... and ending with the year ...... of [if
applicable, insert: not less than $.......... ("mandatory sinking
fund") and not more than] $......... aggregate principal amount of
Securities of this series. Securities of this series acquired or
redeemed by the Company otherwise than through [if applicable,
insert: mandatory] sinking fund payments may be credited against
subsequent [if applicable, insert: mandatory] sinking fund
payments otherwise required to be made [if applicable, insert: ,
in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert:
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the
unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.]
[If subordinated, insert: The indebtedness evidenced by the
Securities of this series is, to the extent and in the manner
provided in the Indenture, expressly subordinate and subject in
right of payment to the prior payment in full of all Senior Debt of
the Company (as defined in the Indenture) whether outstanding at the
date of the Indenture or thereafter incurred, and this Security is
issued subject to the provisions of the Indenture with respect to
such subordination. Each holder and owner of this Security, by
accepting the same, agrees to and shall be bound by such provisions
and authorizes the Trustee in his behalf to take such action as may
be necessary or appropriate to effectuate the subordination so
provided and appoints the Trustee his attorney-in-fact for such
purpose.]
[If applicable, insert: The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security]
[or] [certain restrictive covenants and Events of Default with
respect to this Security] [, in each case] upon compliance with
certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security,
insert: If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert:
If an Event of Default with respect to Securities of this series
shall occur and be continuing, an amount of principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture. Such amount
shall be equal to insert: formula for determining the amount. Upon
payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest
(in each case to the extent that the payment of such interest shall
be legally enforceable), all of the Company's obligations in respect
of the payment of the principal of and premium and interest, if any,
on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights
and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any
time by the Company and the Trustee with the consent of the Holders
of a majority in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also
contains provisions permitting the Holders of specified percentages
in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions
of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon
all future Holders of this Security and of any Security issued upon
the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute
any proceeding with respect to the Indenture or for the appointment
of a receiver or trustee or for any other remedy thereunder, unless
such Holder shall have previously given the Trustee written notice
of a continuing Event of Default with respect to the Securities of
this series, the Holders of not less than 35% in principal amount of
the Securities of this series at the time Outstanding shall have
made written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the Trustee
indemnity reasonably satisfactory to the Trustee, and the Trustee
shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a
direction inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or
interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Security at the
times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in
any place where the principal of and any premium and interest on
this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company
and the Security Registrar duly executed by, the Holder hereof or
his attorney duly authorized in writing, and thereupon one or more
new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $....... and any integral
multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of
this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee nor any
such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Section 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for
the Securities evidenced thereby, every Global Security
authenticated and delivered hereunder shall bear a legend in
substantially the following form:
This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee thereof. This Security may not be exchanged
in whole or in part for a Security registered, and no transfer of
this Security in whole or in part may be registered, in the name of
any Person other than such Depositary or a nominee thereof, except
in the limited circumstances described in the Indenture.
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE FIFTH THIRD BANK
As Trustee
By.........................................
Authorized Signatory
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall
be established in or pursuant to a Board Resolution and, subject to
Section 303, set forth, or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any
series,
(1)the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2)any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 304, 305,
306, 906 or 1107 and except for any Securities which, pursuant to
Section 303, are deemed never to have been authenticated and
delivered hereunder);
(3)the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest;
(4)the date or dates on which the principal of any Securities
of the series is payable;
(5)the rate or rates at which any Securities of the series
shall bear interest, if any, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable, the manner of determination of such
Interest Payment Dates and the Regular Record Date for any such
interest payable on any Interest Payment Date;
(6)the right, if any, to extend the interest payment
periods and the duration of such extension;
(7)the place or places where the principal of and any premium
and interest on any Securities of the series shall be payable;
(8)the period or periods within which, the price or prices at
which and the terms and conditions upon which any Securities of the
series may be redeemed, in whole or in part, at the option of the
Company and, if other than by a Board Resolution, the manner in which
any election by the Company to redeem the Securities shall be
evidenced;
(9)the obligation, if any, of the Company to redeem or purchase
any Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof and the period or
periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the series shall be redeemed
or purchased, in whole or in part, pursuant to such obligation;
(10)the denominations in which any Securities of the series
shall be issuable;
(11)if the amount of principal of or any premium or interest on
any Securities of the series may be determined with reference to an
index or pursuant to a formula, the manner in which such amounts shall
be determined;
(12)if other than the currency of the United States of America,
the currency, currencies or currency units in which the principal of
or any premium or interest on any Securities of the series shall be
payable and the manner of determining the equivalent thereof in the
currency of the United States of America for any purpose, including
for purposes of the definition of "Outstanding" in Section 101;
(13)if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or the Holder thereof, in one or more currencies or currency
units other than that or those in which such Securities are stated to
be payable, the currency, currencies or currency units in which the
principal of or any premium or interest on such Securities as to which
such election is made shall be payable, the periods within which and
the terms and conditions upon which such election is to be made and
the amount so payable (or the manner in which such amount shall be
determined);
(14)if other than the entire principal amount thereof, the
portion of the principal amount of any Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(15)if the principal amount payable at the Stated Maturity of
any Securities of the series will not be determinable as of any one or
more dates prior to the Stated Maturity, the amount which shall be
deemed to be the principal amount of such Securities as of any such
date for any purpose thereunder or hereunder, including the principal
amount thereof which shall be due and payable upon any Maturity other
than the Stated Maturity or which shall be deemed to be Outstanding as
of any date prior to the Stated Maturity (or, in any such case, the
manner in which such amount deemed to be the principal amount shall be
determined);
(16)if applicable, that the Securities of the series, in whole
or any specified part, shall be defeasible pursuant to Section 1302 or
Section 1303 or both such Sections and, if other than by a Board
Resolution, the manner in which any election by the Company to so
defease such Securities shall be evidenced;
(17)if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for such
Global Securities, the form of any legend or legends which shall be
borne by any such Global Security in addition to or in lieu of that
set forth in Section 204 and any circumstances in addition to or in
lieu of those set forth in Clause (2) of the last paragraph of Section
305 in which any such Global Security may be exchanged in whole or in
part for Securities registered, and any transfer of such Global
Security in whole or in part may be registered, in the name or names
of Persons other than the Depositary for such Global Security or a
nominee thereof;
(18)any addition to or change in the Events of Default which
applies to any Securities of the series and any change in the right of
the Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section 502;
(19)any addition to or change in the covenants set forth in
Article Ten which applies to Securities of the series;
(20)the applicability of, or any addition to or change in,
Article Fourteen with respect to the Securities of a series;
(21)any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture.
All Securities of any one series shall be substantially identical
except as to date and principal amount and except as may otherwise be
provided in or pursuant to the Board Resolution referred to above and
(subject to Section 303) set forth, or determined in the manner
provided, in the Officers' Certificate referred to above or in any
such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the terms of
the series.
Section 302. Denominations.
The Securities of each series shall be issuable only in
registered form without coupons and only in such denominations as
shall be specified as contemplated by Section 301. In the absence of
any such specified denomination with respect to the Securities of any
series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman, its President, one of its
Vice Presidents, or its Treasurer, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries.
The signature of any of these officers on the Securities may be manual
or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company
shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication
and delivery of such Securities or did not hold such offices at the
date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
series executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of
such Securities, and the Trustee in accordance with the Company Order
shall authenticate and deliver such Securities. If the form or terms
of the Securities of the series have been established by or pursuant
to a Board Resolution as permitted by Sections 201 and 301, in
authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 601)
shall be fully protected in relying upon, an Opinion of Counsel
stating,
(1)if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(2)if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
(3)that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights to
general equity principles and to such other matters as such counsel
shall set forth therein.
If such form or terms have been so established, the Trustee shall
not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Securities and this Indenture
or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary to deliver
the Officers' Certificate otherwise required pursuant to Section 301
or the Company Order and Opinion of Counsel otherwise required
pursuant to such preceding paragraph at or prior to the authentication
of each Security of such series if such documents (with appropriate
variations to reflect such future issuance) are delivered at or prior
to the authentication upon original issuance of the first Security of
such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and
such certificate upon any Security shall be conclusive evidence, and
the only evidence, that such Security has been duly authenticated and
delivered hereunder. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security
to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by
their execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of
such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender
of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to
the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or
more definitive Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount. Until
so exchanged, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as
definitive Securities of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and
in any other office or agency of the Company in a Place of Payment
being herein sometimes collectively referred to as the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of
Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a
series at the office or agency of the Company in a Place of Payment
for that series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any
authorized denominations and of like tenor and aggregate principal
amount.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the
Trustee) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may
be imposed in connection with any registration of transfer or exchange
of Securities, other than exchanges pursuant to Section 304, 906 or
1107 not involving any transfer.
If the Securities of any series (or of any series and specified
tenor) are to be redeemed in part, the Company shall not be required
(A) to issue, register the transfer of or exchange any Securities of
that series (or of that series and specified tenor, as the case may
be) during a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption of any such
Securities selected for redemption under Section 1103 and ending at
the close of business on the day of such mailing, or (B) to register
the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being
redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall
apply only to Global Securities:
(1)Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated for such
Global Security or a nominee thereof and delivered to such Depositary
or nominee thereof or custodian therefor, and each such Global
Security shall constitute a single Security for all purposes of this
Indenture.
(2)Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the Depositary
for such Global Security or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is unwilling or unable
to continue as Depositary for such Global Security or (ii) has ceased
to be a clearing agency registered under the Exchange Act, (B) there
shall have occurred and be continuing an Event of Default with respect
to such Global Security or (C) there shall exist such circumstances,
if any, in addition to or in lieu of the foregoing as have been
specified for this purpose as contemplated by Section 301.
(3)Subject to Clause (2) above, any exchange of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion
thereof shall be registered in such names as the Depositary for such
Global Security shall direct.
(4)Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Security or
any portion thereof, whether pursuant to this Section, Section 304,
306, 906 or 1107 or otherwise, shall be authenticated and delivered in
the form of, and shall be, a Global Security, unless such Security is
registered in the name of a Person other than the Depositary for such
Global Security or a nominee thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of
any Security and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall
execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the
Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other
Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment
Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in Clause (1)
or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and
not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be given to each
Holder of Securities of such series in the manner set forth in Section
106, not less than 10 days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall no longer
be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this Clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Security is registered
as the owner of such Security for the purpose of receiving payment of
principal of and any premium and (subject to Section 307) any interest
on such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Trustee, any Paying Agent (if not the
Company) or the Security Registrar shall have any responsibility or
liability for any aspect of the records relating to or payments made
on account of beneficial ownership interests of a Global Security or
for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration
of transfer or exchange or for credit against any sinking fund payment
shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which
the Company has not issued and sold, and all Securities so delivered
shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled
as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be
disposed of as directed by a Company Order; provided, however, that
the Trustee shall not be required to destroy such cancelled
Securities.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day
months.
Section 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee may use "CUSIP"
numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Securities or
as contained in any notice of a redemption and that reliance may be
placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer
or exchange of Securities herein expressly provided for), and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture, when (1) either (A) all Securities theretofore
authenticated and delivered (other than (i) Securities which have
been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306 and (ii) Securities for whose payment money
has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or (B) all such
Securities not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or (ii) will become due and
payable at their Stated Maturity within one year, or (iii) are to
be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Company, and
the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for
the purpose, money in an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal and any premium and
interest to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 607, the
obligations of the Company to any Authenticating Agent under Section
614 and, if money shall have been deposited with the Trustee pursuant
to subclause (B) of Clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall
survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003
and to Article Fourteen, if applicable, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by
it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal and
any premium and interest for whose payment such money has been
deposited with the Trustee.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of
that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on
any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of a series of
Securities other than that series), and continuance of such default or
breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 35% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 90 consecutive
days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect
of the Company in an involuntary case or proceeding under any
applicable Federal or state bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under
any applicable Federal or state law, or the consent by it to the
filing of such petition or to the appointment of, or taking possession
of the Company or of any substantial part of its property by, a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official or the making by the Company of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking
of corporate action by the Company in furtherance of any such action;
or
(7) any other Event of Default established pursuant to Section
301 with respect to Securities of that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified
in Section 501(5) or 501(6)) with respect to Securities of any series
at the time Outstanding occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 35% in principal
amount of the Outstanding Securities of that series may declare the
principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such
portion of the principal amount of such Securities as may be specified
by the terms thereof) to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of
Default specified in Section 501(5) or 501(6) with respect to
Securities of any series at the time Outstanding occurs, the principal
amount of all the Securities of that series (or, if any Securities of
that series are Original Issue Discount Securities, such portion of
the principal amount of such Securities as may be specified by the
terms thereof) shall automatically, and without any declaration or
other action on the part of the Trustee or any Holder, become
immediately due and payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee
as hereinafter in this Article provided, the Holders of a majority in
principal amount of the Outstanding Securities of that series, by
written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if,
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay (A) all overdue interest on all Securities of
that series, (B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate or
rates prescribed therefor in such Securities, (C) all sums paid or
advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due
and payable on such Securities for principal and any premium and
interest and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of
Securities of such series by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or
any other obligor upon the Securities), its property or its creditors,
the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under
the Trust Indenture Act in order to have claims of the Holders and the
Trustee allowed in any such proceeding. In particular, the Trustee
shall be authorized to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute
the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of
any Holder in any such proceeding; provided, however, that the Trustee
may, on behalf of the Holders, vote for the election of a trustee in
bankruptcy or similar official and be a member of a creditors' or
other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article,
subject to Article Fourteen, if applicable, shall be applied in the
following order, at the date or dates fixed by the Trustee and, in
case of the distribution of such money on account of principal or any
premium or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 607;
and
Second: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and any
premium and interest, respectively
Third: The balance, if any, to the Company.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 35% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Securities of that
series; it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of, or
by availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other of such Holders, or to obtain or to
seek to obtain priority or preference over any other of such Holders
or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium
and (subject to Section 307) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in the
case of redemption, on the Redemption Date) and to institute suit for
the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding
has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue as
though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver
of any such Event of Default or an acquiescence therein. Every right
and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders
of all the Securities of such series waive any past default hereunder
with respect to such series and its consequences, except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other default or impair any right consequent
thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of such
suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided
that this Section shall not apply to any suit instituted by the
Trustee or to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of
Outstanding Securities (of any series), or to any suit instituted by
a Holder for the enforcement of the payment of the principal of or any
premium or interest on any Security on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date).
Section 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay
or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not
therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this
Section.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such
series notice of such default as and to the extent provided by the
Trust Indenture Act, unless such default shall have been cured or
waived; provided, however, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of
such series, no such notice to Holders shall be given until at least
30 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to
Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order,
and any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit.
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the
statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application
by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 608 and 613, may otherwise deal
with the Company with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Security Registrar or
such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received
by it hereunder except as otherwise agreed in writing with the
Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation
as shall be agreed to in writing between the Company and the Trustee
for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 607, except with respect
to funds held in trust for the benefit of the Holders of particular
Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(5) or
Section 501(6), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are
intended to constitute expenses of administration under any applicable
Federal or State bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of
this Indenture.
Section 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act
and this Indenture. To the extent permitted by such Act, the Trustee
shall not be deemed to have a conflicting interest by virtue of being
a trustee under this Indenture with respect to Securities of more than
one series.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder
with respect to the Securities of each series, which may be Trustee
hereunder for Securities of one or more other series. Each Trustee
shall be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this
Section and to the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee with respect to the
Securities of any series shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee
required by Section 611 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities
of such series.
The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (B) subject to
Section 514, any Holder who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply
with the applicable requirements of Section 611. If, within one year
after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company
or the Holders and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the
Securities of any series to all Holders of Securities of such series
in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect
to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting
in and confirming to such successor Trustee all such rights, powers
and trusts referred to in the first or second preceding paragraph, as
the case may be.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without
the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall
be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
For purposes of Section 311(b) (4) and (6) of the Trust Indenture Act,
the following terms shall mean:
(a) "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred
by the Company for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation
of the creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
Section 614. Appointment of Authenticating Agent.
From time to time the Trustee may appoint one or more
Authenticating Agents with respect to one or more series of
Securities, which may include the Company or any of its Affiliates,
with power to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or pursuant to
Section 306, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent. Each Authenticating
Agent shall be acceptable to the Company and shall at all times be a
corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding
to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent,
provided such corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this
Section, the Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Company. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE FIFTH THIRD BANK
As Trustee
By......................................,
As Authenticating Agent
By.......................................
Authorized Officer
Section 615. Indemnification.
The Company agrees to indemnify the Trustee for, and hold it
harmless against, any loss, liability or expense incurred by it,
arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder or the
performance of its duties hereunder or under any related document,
including the reasonable costs and expenses of defending itself
against or investigating any claim or liability with respect to the
Securities, except to the extent that any such loss, liability or
expense was due to its own negligence or bad faith. The Company
need not pay for any settlement made without its consent. The
obligations of the Company to the Trustee under this Section shall
survive the satisfaction and discharge of this Indenture and payment
in full and/or retirement of the Securities.
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee:
(1) on each Regular Record Date, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the
Holders of Securities of each series as of such Regular Record Date,
and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request,
a list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the
Security Registrar, no such list need be furnished.
Section 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most
recent list as provided in Section 701 and the names and addresses of
Holders received by the Trustee in its capacity as Security Registrar.
The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities,
and the corresponding rights and privileges of the Trustee, shall be
as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of either of them shall be held accountable
by reason of any disclosure of information as to names and addresses
of Holders made pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto. If required by Section 313(a) of the Trust
Indenture Act, the Trustee shall, within sixty days after each May 15
following the date of this Indenture deliver to Holders a brief
report, dated as of such May 15, which complies with the provisions of
such Section 313(a).
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the Commission and
with the Company.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports,
and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such
Act; provided that any such information, documents or reports required
to be filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days after the
same is so required to be filed with the Commission.
ARTICLE EIGHT
Consolidation, Merger and Sale
Section 801. Consolidations and Mergers Permitted.
Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Company with or into
any other corporation or corporations (whether or not affiliated with
the Company), or successive consolidations or mergers in which the
Company or its successor or successors shall be a party or parties, or
shall prevent any sale, conveyance, transfer or other disposition of
the property of the Company or its successor or successors as an
entirety, or substantially as an entirety, to any other corporation
(whether or not affiliated with the Company or its successor or
successors) authorized to acquire and operate the same; provided,
however, the Company hereby covenants and agrees that, upon any such
consolidation, merger, sale, conveyance, transfer or other
disposition, the due and punctual payment of the principal of
(premium, if any) and interest on all of the Securities of all series
in accordance with the terms of each series, according to their tenor,
and the due and punctual performance and observance of all the
covenants and conditions of this Indenture with respect to each series
or established with respect to such series to be kept or performed by
the Company, shall be expressly assumed, by supplemental indenture
(which shall conform to the provisions of the Trust Indenture Act as
then in effect) satisfactory in form to the Trustee executed and
delivered to the Trustee by the entity formed by such consolidation,
or into which the Company shall have been merged, or by the entity
which shall have acquired such property.
Section 802. Rights and Duties of Successor Company.
In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition and upon the assumption by the successor
corporation, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal of, premium, if any, and interest on
all of the Securities of all series outstanding and the due and
punctual performance of all of the covenants and conditions of this
Indenture or established with respect to each series of the Securities
to be performed by the Company with respect to each series, such
successor corporation shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the
party of the first part, and thereupon the predecessor corporation
shall be relieved of all obligations and covenants under this
Indenture and the Securities. Such successor corporation thereupon
may cause to be signed, and may issue either in its own name or in the
name of the Company or any other predecessor obligor on the
Securities, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to
the Trustee; and, upon the order of such successor company, instead of
the Company, and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall
deliver any Securities which previously shall have been signed and
delivered by the officers of the predecessor Company to the Trustee
for authentication, and any Securities which such successor
corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all
respects have the same legal rank and benefit under this Indenture as
the Securities theretofore or thereafter issued in accordance with the
terms of this Indenture as though all of such Securities had been
issued at the date of the execution hereof.
Nothing contained in this Indenture or in any of the Securities
shall prevent the Company from merging into itself or acquiring by
purchase or otherwise all or any part of the property of any other
corporation (whether or not affiliated with the Company).
Section 803. Opinion of Counsel.
The Trustee may receive an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply with
the provisions of this Article.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities pursuant to Article Eight or
Section 117; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein
conferred upon the Company; provided, however, that in respect of any
such additional covenant, such supplemental indenture may provide for
a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults) or
may provide for an immediate enforcement upon such default or may
limit the remedies available to the Trustee upon such default or may
limit the right of the Holders of a majority in aggregate principal
amount of the Securities of such series to waive such default;
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities in uncertificated
form; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities,
provided that any such addition, change or elimination (A) shall
neither (i) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit
of such provision nor (ii) modify the rights of the Holder of any such
Security with respect to such provision or (B) shall become effective
only when there is no such Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by one or more successor
Trustees, pursuant to the requirements of Section 611; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided that such
action pursuant to this Clause (9) shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations which may be therein
contained.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the
consent of the holders of any of the Securities at the time
outstanding, notwithstanding any of the provisions of Section 902.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected
by such supplemental indenture, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce
the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount of
the principal of an Original Issue Discount Security or any other
Security which would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or
change any Place of Payment where, or the coin or currency in which,
any Security or any premium or interest thereon is payable, affect the
applicability of Article Fourteen to any Security, or impair the right
to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513
or Section 1007, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this
Section and Section 1007, or the deletion of this proviso, in
accordance with the requirements of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities,
or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series; provided that no such supplemental
indenture shall modify any provision of this Indenture so as to
adversely affect the rights of any holder of outstanding Senior Debt
to the benefits of Article Fourteen.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully
protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for
all purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then
in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any
series so modified as to conform, in the opinion of the Trustee and
the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee
in exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series
of Securities that it will duly and punctually pay the principal of
and any premium and interest on the Securities of that series in
accordance with the terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may
be presented or surrendered for payment, where Securities of that
series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If
at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series
may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that
no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each
Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any
such other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due
date of the principal of or any premium or interest on any of the
Securities of that series, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal
and any premium and interest so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any Securities of that
series, deposit with a Paying Agent a sum sufficient to pay such
amount, such sum to be held as provided by the Trust Indenture Act,
and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying
Agent will (1) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (2) during the continuance of
any default by the Company (or any other obligor upon the Securities
of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of or
any premium or interest on any Security of any series and remaining
unclaimed for 18 months after such principal, premium or interest has
become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published
once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the
Borough of Manhattan, The City of New York, New York, notice that such
money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will
be repaid to the Company.
Section 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date
hereof, an Officers' Certificate, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and
conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
Section 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be
necessary so that the business carried on in connection therewith may
be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties
if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business or the business of any Subsidiary.
Section 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the
Company or any Subsidiary or upon the income, profits or property of
the Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided, however,
that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings.
Section 1007. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series, the Company may, with respect to the
Securities of any series, omit in any particular instance to comply
with any term, provision or condition set forth in any covenant
provided pursuant to Section 301(18), 901(2) or 901(7) for the benefit
of the Holders of such series if before the time for such compliance
the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders,
either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the
Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
Section 1008. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of
each calendar year a written notice specifying the amount of original
issue discount (including daily rates and accrual periods) accrued on
Outstanding Securities as of the end of such year.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and
(except as otherwise specified as contemplated by Section 301 for such
Securities) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or in another manner specified as
contemplated by Section 301 for such Securities. In case of any
redemption at the election of the Company the Company shall, at least
45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere
in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor are
to be redeemed or unless such redemption affects only a single
Security), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series not previously called
for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of
a portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be
less than the minimum authorized denomination) for such Security. If
less than all the Securities of such series are to be redeemed (unless
such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption in
accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in case of any
Securities selected for partial redemption as aforesaid, the principal
amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply
with respect to any redemption affecting only a single Security,
whether such Security is to be redeemed in whole or in part. In the
case of any such redemption in part, the unredeemed portion of the
principal amount of the Security shall be in an authorized
denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed
only in part, to the portion of the principal amount of such
Securities which has been or is to be redeemed.
Section 1104. Notice of the Redemption.
Notice of redemption shall be given by mail not less than 30 nor
more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed, at his address appearing in the Security
Register.
All notices of redemption shall identify the Securities to be
redeemed and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any
series consisting of a single Security are to be redeemed, the
principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where each such Security is to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company
and shall be irrevocable.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder
receives such notice. In any case, failure to give such notice by
mail or any defect in the notice to the Holder of any Security
designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security.
Section 1105. Deposit of Redemption Price.
On or before any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to be
redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price therein specified, and from and
after such date (unless the Company shall default in the payment of
the Redemption Price and accrued interest) such Securities shall cease
to bear interest. Upon surrender of any such Security for redemption
in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, unless otherwise specified
as contemplated by Section 301, installments of interest whose Stated
Maturity is on or prior to the Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series and of
like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered;
provided, however, that a Depositary need not surrender a Global
Security for a partial redemption and may be authorized to make a
notation on such Global Security of such partial redemption. In the
case of a partial redemption of a Global Security, the Depositary, and
in turn, the participants in the Depositary, shall have the
responsibility to select any Securities to be redeemed by random lot.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of any series except as
otherwise specified as contemplated by Section 301 for such
Securities.
The minimum amount of any sinking fund payment provided for by
the terms of any Securities is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of such Securities is herein referred
to as an "optional sinking fund payment". If provided for by the terms
of any Securities, the cash
amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied
to the redemption of Securities as provided for by the terms of such
Securities.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as
a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to any
Securities of such series required to be made pursuant to the terms of
such Securities as and to the extent provided for by the terms of such
Securities; provided that the Securities to be so credited have not
been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the
Redemption Price, as specified in the Securities so to be redeemed,
for redemption through operation of the sinking fund and the amount of
such sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for
any Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund
payment for such Securities pursuant to the terms of such Securities,
the portion thereof, if any, which is to be satisfied by payment of
cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities pursuant to Section 1202 and will
also deliver to the Trustee any Securities to be so delivered. Not
less than 30 days prior to each such sinking fund payment date, the
Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such
notice having been duly given, the redemption of such Securities shall
be made upon the terms and in the manner stated in Sections 1106 and
1107.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may elect, at its option at any time, to have Section
1302 or Section 1303 applied to any Securities or any series of
Securities, as the case may be, designated pursuant to Section 301 as
being defeasible pursuant to such Section 1302 or 1303, in accordance
with any applicable requirements provided pursuant to Section 301 and
upon compliance with the conditions set forth below in this Article.
Any such election shall be evidenced by a Board Resolution or in
another manner specified as contemplated by Section 301 for such
Securities.
Section 1302. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this
Section applied to any Securities or any series of Securities, as the
case may be, the Company shall be deemed to have been discharged from
its obligations with respect to such Securities as provided in this
Section on and after the date the conditions set forth in Section 1304
are satisfied (hereinafter called "Defeasance"). For this purpose,
such Defeasance means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by such Securities
and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which
shall survive until otherwise terminated or discharged hereunder: (1)
the rights of Holders of such Securities to receive, solely from the
trust fund described in Section 1304 and as more fully set forth in
such Section, payments in respect of the principal of and any premium
and interest on such Securities when payments are due, (2) the
Company's obligations with respect to such Securities under Sections
304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (4) this Article. Subject
to compliance with this Article, the Company may exercise its option
(if any) to have this Section applied to any Securities
notwithstanding the prior exercise of its option (if any) to have
Section 1303 applied to such Securities.
Section 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this
Section applied to any Securities or any series of Securities, as the
case may be, (1) the Company shall be released from its obligations
under Section 801(3), Sections 1005 through 1006, inclusive, and any
covenants provided pursuant to Section 301(19), 901(2) or 901(7) for
the benefit of the Holders of such Securities and (2) the occurrence
of any event specified in Sections 501(4) (with respect to any of
Section 801(3), Sections 1005 through 1006, inclusive, and any such
covenants provided pursuant to Section 301(19), 901(2) or 901(7)), and
501(7) shall be deemed not to be or result in an Event of Default in
each case with respect to such Securities as provided in this Section
on and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that, with respect to such
Securities, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in
any such specified Section (to the extent so specified in the case of
Section 501(4)) or Article Fourteen, whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or
Article or by reason of any reference in any such Section or Article
to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected
thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of
Section 1302 or Section 1303 to any Securities or any series of
Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders
of such Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, in each case
sufficient, in the opinion of a firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee,
to pay and discharge, and which shall be applied by the Trustee (or
any such other qualifying trustee) to pay and discharge, the principal
of and any premium and interest on such Securities on the respective
Stated Maturities, in accordance with the terms of this Indenture and
such Securities. As used herein, "U.S. Government Obligation" means
(x) any security which is (i) a direct obligation of the United States
of America for the payment of which the full faith and credit of the
United States of America is pledged or (ii) an obligation of a Person
controlled or supervised by and acting as an agency or instrumentality
of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by
the United States of America, which, in either case (i) or (ii), is
not callable or redeemable at the option of the issuer thereof, and
(y) any depositary receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any U.S.
Government Obligation which is specified in Clause (x) above and held
by such bank for the account of the holder of such depositary receipt,
or with respect to any specific payment of principal of or interest on
any U.S. Government Obligation which is so specified and held,
provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder
of such depositary receipt from any amount received by the custodian
in respect of the U.S. Government Obligation or the specific payment
of principal or interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 1302 apply to
any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the
date of this instrument, there has been a change in the applicable
Federal income tax law, in either case (A) or (B) to the effect that,
and based thereon such opinion shall confirm that, the Holders of such
Securities will not recognize gain or loss for Federal income tax
purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to
Federal income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit, Defeasance and
discharge were not to occur.
(3) In the event of an election to have Section 1303 apply to
any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Securities will not recognize gain
or loss for Federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such Securities
and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such deposit
and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that neither such Securities nor
any other Securities of the same series, if then listed on any
securities exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to such Securities
or any other Securities shall have occurred and be continuing at the
time of such deposit or, with regard to any such event specified in
Sections 501(5) and (6), at any time on or prior to the 90th day after
the date of such deposit (it being understood that this condition
shall not be deemed satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the
meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act unless such trust
shall be registered under such Act or exempt from registration
thereunder.
(9) At the time of such deposit, (A) no default in the
payment of any principal of or premium or interest on any Senior Debt
shall have occurred and be continuing, (B) no event of default with
respect to any Senior Debt shall have resulted in such Senior Debt
becoming, and continuing to be, due and payable prior to the date on
which it would otherwise have become due and payable (unless payment
of such Senior Debt has been made or duly provided for), and (C) no
other event of default with respect to any Senior Debt shall have
occurred and be continuing permitting (after notice or lapse of time
or both) the holders of such Senior Debt (or a trustee on behalf of
such holders) to declare such Senior Debt due and payable prior to the
date on which it would otherwise have become due and payable.
(10) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
Section 1305. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee or other qualifying trustee
(solely for purposes of this Section and Section 1306, the Trustee and
any such other trustee are referred to collectively as the "Trustee")
pursuant to Section 1304 in respect of any Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of
such Securities and this Indenture, to the payment, either directly or
through any such Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of
principal and any premium and interest, but money so held in trust
need not be segregated from other funds except to the extent required
by law.
Money and U.S. Government Obligations so held in trust shall not
be subject to the provisions of Article Fourteen.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1304 or the principal and
interest received in respect thereof other than any such tax, fee or
other charge which by law is for the account of the Holders of
Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon
Company Request any money or U.S. Government Obligations held by it as
provided in Section 1304 with respect to any Securities which, in the
opinion of a firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess
of the amount thereof which would then be required to be deposited to
effect the Defeasance or Covenant Defeasance, as the case may be, with
respect to such Securities.
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money
in accordance with this Article with respect to any Securities by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then
the obligations under this Indenture and such Securities from which
the Company has been discharged or released pursuant to Section 1302
or 1303 shall be revived and reinstated as though no deposit had
occurred pursuant to this Article with respect to such Securities,
until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1305 with respect to such
Securities in accordance with this Article; provided, however, that if
the Company makes any payment of principal of or any premium or
interest on any such Security following such reinstatement of its
obligations, the Company shall be subrogated to the rights (if any) of
the Holders of such Securities to receive such payment from the money
so held in trust.
ARTICLE FOURTEEN
Junior Subordinated Securities
Section 1401. Certain Securities Subordinate to Senior Debt.
As provided pursuant to Section 301 or in a supplemental
indenture, the Company may issue one or more series of Securities
subject to the provisions of this Article Fourteen, and each Holder of
a Security of a series so issued ("Junior Subordinated Securities"),
whether upon original issue or upon transfer or assignment thereof,
accepts and agrees to be bound by such provisions.
The payment of the principal of, premium, if any, and interest on
all Junior Subordinated Securities issued with respect to which this
Article Fourteen applies shall, to the extent and in the manner
hereinafter set forth, be subordinate and subject in right of payment
to the prior payment in full of all Senior Debt, whether outstanding
at the date of this Indenture or thereafter incurred.
No provision of this Article Fourteen shall prevent the
occurrence of any default or Event of Default hereunder.
Section 1402. Payment Over of Proceeds Upon Default.
In the event and during the continuation of any default in the
payment of principal, premium, interest or any other payment due on
any Senior Debt continuing beyond the period of grace, if any,
specified in the instrument evidencing such Senior Debt, unless and
until such default shall have been cured or waived or shall have
ceased to exist, or in the event that the maturity of any Senior Debt
has been accelerated because of a default, then no payment shall be
made by the Company with respect to the principal (including
redemption and sinking fund payments) of, or premium, if any, or
interest on the Junior Subordinated Securities.
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any holder when such payment is
prohibited by the preceding paragraph of this Section 1402, such
payment shall be held in trust for the benefit of, and shall be paid
over or delivered to, the holders of Senior Debt or their respective
representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Debt may have been issued, as
their respective interests may appear, but only to the extent that the
holders of the Senior Debt (or their representative or representatives
or a trustee) notify the Trustee within 90 days of such payment of the
amounts then due and owing on the Senior Debt and only the amounts
specified in such notice to the Trustee shall be paid to the holders
of Senior Debt.
Section 1403. Payment Over of Proceeds Upon Dissolution, Etc.
Upon any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding-up or
liquidation or reorganization of the Company, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other
proceedings, all amounts due or to become due upon all Senior Debt
shall first be paid in full, or payment thereof provided for in money
in accordance with its terms, before any payment is made on account of
the principal (and premium, if any) or interest on the Junior
Subordinated Securities; and upon any such dissolution or winding-up
or liquidation or reorganization any payment by the Company, or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of the
Junior Subordinated Securities or the Trustee would be entitled,
except for the provisions of this Article Fourteen, shall be paid by
the Company or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other person making such payment or distribution, or
by the Holders of the Junior Subordinated Securities or by the Trustee
under this Indenture if received by them or it, directly to the
holders of Senior Debt (pro rata to such holders on the basis of the
respective amounts of Senior Debt held by such holders, as calculated
by the Company) or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any
instruments evidencing any Senior Debt may have been issued, as their
respective interests may appear, to the extent necessary to pay all
Senior Debt in full, in money or money's worth, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Debt, before any payment or distribution is made to the holders of
Junior Subordinated Securities or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities, prohibited by the foregoing,
shall be received by the Trustee or the holders of the Junior
Subordinated Securities before all Senior Debt is paid in full, or
provision is made for such payment in money in accordance with its
terms, such payment or distribution shall be held in trust for the
benefit of and shall be paid over or delivered to the holders of
Senior Debt or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any
instruments evidencing any Senior Debt may have been issued, as their
respective interests may appear, as calculated by the Company, for
application to the payment of all Senior Debt remaining unpaid to the
extent necessary to pay all Senior Debt in full in money in accordance
with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Debt.
For purposes of this Article Fourteen, the words, "cash, property
or securities" shall not be deemed to include shares of stock of the
Company as reorganized or readjusted, or securities of the Company or
any other corporation provided for by a plan of reorganization or
readjustment, the payment of which is subordinated at least to the
extent provided in this Article Fourteen with respect to the Junior
Subordinated Securities to the payment of all Senior Debt which may at
the time be outstanding; provided that (i) the Senior Debt is assumed
by the new corporation, if any, resulting from any such reorganization
or readjustment, and (ii) the rights of the holders of the Senior Debt
are not, without the consent of such holders, altered by such
reorganization or readjustment. The consolidation of the Company with,
or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance or
transfer of its property as an entirety, or substantially as an
entirety, to another corporation upon the terms and conditions
provided for in Article Eight hereof shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the
proposes of this Section 1403 if such other corporation shall, as a
part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article Eight hereof. Nothing in Section
1402 or in this Section 1403 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 607.
Section 1404. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all Senior Debt, the rights of
the holders of the Junior Subordinated Securities shall be subrogated
to the rights of the holders of Senior Debt to receive payments or
distributions of cash, property or securities of the Company
applicable to the Senior Debt; and, for the purposes of such
subrogation, no payment or distributions to the holders of the Senior
Debt of any cash, property or securities to which the holders of the
Junior Subordinated Securities or the Trustee would be entitled except
for the provisions of this Article Fourteen, and no payment over
pursuant to the provisions of this Article Fourteen, to or for the
benefit of the holders of Senior Debt by holders of the Junior
Subordinated Securities or the Trustee, shall, as between the Company,
its creditors other than holders of Senior Debt, and the Holders of
the Junior Subordinated Securities, be deemed to be a payment by the
Company to or on account of the Senior Debt. It is understood that
the provisions of this Article Fourteen are and are intended solely
for the purposes of defining the relative rights of the holders of the
Junior Subordinated Securities, on the one hand, and the holders of
the Senior Debt on the other hand.
Nothing contained in this Article Fourteen or elsewhere in this
Indenture or in the Junior Subordinated Securities is intended to or
shall impair, as between the Company, its creditors other than the
holders of Senior Debt, and the holders of the Junior Subordinated
Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the holders of the Junior Subordinated
Securities the principal of (and premium, if any) and interest on the
Junior Subordinated Securities as and when the same shall become due
and payable in accordance with their terms, or is intended to or shall
affect the relative rights of the holders of the Junior Subordinated
Securities and creditors of the Company other than the holders of the
Senior Debt, nor shall anything herein or therein prevent the Trustee
or the holder of any Junior Subordinated Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article Fourteen
of the holders of Senior Debt in respect of cash, property or
securities of the Company received upon the exercise of any such
remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article Fourteen, the Trustee, subject to the
provision of Article Six, and the Holders of the Junior Subordinated
Securities shall be entitled to rely upon any order or decree made by
any court of competent jurisdiction in which such dissolution,
winding-up, liquidation or reorganization, liquidation or
reorganization proceedings are pending, or a certificate of the
receiver, trustee in bankruptcy, liquidation trustee, agent or other
person making such payment or distribution, delivered to the Trustee
or to the Holders of the Junior Subordinated Securities, for the
purposes of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Debt and other indebtedness of
the Company, the amount hereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Fourteen.
Section 1405. Trustee to Effectuate Subordination.
Each Holder of a Junior Subordinated Security by his acceptance
thereof authorizes and directs the Trustee in his behalf to take such
action as may be necessary or appropriate to effectuate the
subordination provided in this Article Fourteen and appoints the
Trustee his attorney-in-fact for any and all such purposes.
Section 1406. Notice to Trustee.
The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company which would
prohibit the making of any payment of monies to or by the Trustee in
respect of the Junior Subordinated Securities pursuant to the
provisions of this Article Fourteen. Notwithstanding the provisions
of this Article Fourteen or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any
facts which would prohibit the making of any payment of monies to or
by the Trustee in respect of the Junior Subordinated Securities
pursuant to the provisions of this Article Fourteen, unless and until
a Responsible Officer of the Trustee shall have received written
notice thereof at the Principal Office of the Trustee from the Company
or a holder or holders of Senior Debt or from any trustee therefor;
and before the receipt of any such written notice, the Trustee,
subject to the provisions of Article Six, shall be entitled in all
respects to assume that no such facts exist; provided, however, that
if the Trustee shall not have received the notice provided for in this
Section 1406 at least two Business Days prior to the date upon which
by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (or
premium, if any) or interest on any Junior Subordinated Security),
then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such money and
to apply the same to the purposes for which they were received, and
shall not be affected by any notice to the contrary which may be
received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Article Six, shall be
entitled to rely on the delivery to it of a written notice by a person
representing himself to be a holder of Senior Debt (or a trustee on
behalf of such holder) to establish that such notice has been given by
a holder of Senior Debt or a trustee on behalf of any such holder or
holders. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any person
as a holder of Senior Debt to participate in any payment or
distribution pursuant to this Article Fourteen, the Trustee may
request such person to furnish evidence to the reasonable satisfaction
of the Trustee as to the amount of Senior Debt held by such Person,
the extent to which such person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of
such person under this Article Fourteen, and if such evidence is not
furnished the Trustee may defer any payment to such person pending
judicial determination as to the right of such person to receive such
payment.
Section 1407. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article Fourteen in respect of any Senior
Debt at any time held by it, to the same extent as any other holder of
Senior Debt, and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder.
Nothing in this Article Fourteen shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 607.
Section 1408. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt to
enforce subordination as herein provided shall at any time in any way
be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be
charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time
to time, without the consent of or notice to the Trustee or the
holders of the Junior Subordinated Securities, without incurring
responsibility to the holders of the Junior Subordinated Securities
and without impairing or releasing the subordination provided in this
Article or the obligations hereunder of the holders of the Junior
Subordinated Securities to the holders of Senior Debt, do any one or
more of the following: (i) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Senior
Debt, or otherwise amend or supplement in any manner Senior Debt or
any instrument evidencing the same or any agreement under which Senior
Debt is outstanding; (ii) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing Senior
Debt; (iii) release any person liable in any manner for the collection
of Senior Debt; and (iv) exercise or refrain from exercising any
rights against the Company and any other person.
_____________________________
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all
such counterparts shall together constitute but one and the same
instrument.
In Witness Whereof, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above
written.
THE CINCINNATI GAS & ELECTRIC COMPANY
By.................................
THE FIFTH THIRD BANK
as Trustee
By.................................
State of Ohio )
) ss.:
County of Hamilton )
On the ............................. day of
..........................., ............, before me personally came
.........................................., to me known, who, being by
me duly sworn, did depose and say that he is
................................. of The Cincinnati Gas & Electric
Company, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it
was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
...............................................
State of Ohio)
) ss.:
County of Hamilton)
On the ......................... day of .......................,
..........., before me personally came
....................................., to me known, who, being by me
duly sworn, did depose and say that he is
............................. of The Fifth Third Bank, one of the
corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he
signed his name thereto by like authority.
...............................................
Exhibit 5
TAFT, STETTINIUS & HOLLISTER
1800 STAR BANK CENTER
CINCINNATI, OHIO 45202
April 28, 1995
The Cincinnati Gas & Electric Company
139 East Fourth Street
Cincinnati, OH 45202
Re: $500,000,000 The Cincinnati Gas & Electric
Company Unsecured Debt Securities
(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 $500,000,000 principal
amount of its unsecured debt securities (the "Debt
Securities").
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 Debt Securities 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 Debt Securities
which were adopted by unanimous written consent of the Board of
Directors of the Company on March 24, 1995;
(d) the form of a proposed indenture between the
Company and The Fifth Third Bank (the "Indenture"), a copy of
which is being filed as an Exhibit to the Registration
Statement;
(e) the form of the Underwriting Agreement relating
to the Debt Securities, a copy of which is being filed as an
Exhibit to the Registration Statement;
(f) the proposed form of the Debt Securities, as
included in the form of the proposed Indenture; and
(g) 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 Debt Securities 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 Debt Securities under the
Indenture, the issuance and sale of the Debt
Securities, the execution and delivery of the
Indenture in substantially the form of the Indenture
referred to in paragraph (d) above, and shall have
established the interest rate, redemption prices and
other terms of the Debt Securities by resolution or
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
Indenture (as supplemented by a supplemental
indenture, if utilized for the Debt Securities)
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 Debt Securities;
(iv) the Indenture (and a supplemental
indenture, if utilized for the Debt Securities) in
substantially the form(s) authorized by the Company
shall have been duly executed and delivered by the
proper officers of the Company and the Trustee; and
(v) the Debt Securities in substantially the
form of the proposed form of the Debt Securities
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 Debt
Securities,
then the Debt Securities 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.
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
----------------------------------------------------
1994 1993 1992 1991 1990
-------- ----------- -------- -------- --------
(THOUSANDS, EXCEPT RATIOS)
<S> <C> <C> <C> <C> <C>
EARNINGS AVAILABLE
Income Before Interest
Charges............... $308,551 $147,183 $360,693 $353,789 $341,258
Allowance for borrowed
funds used during
construction--credit... 2,977 3,586 7,617 23,534 42,256
Income taxes........... 97,509 87,480 68,633 49,095 46,110
Rents(a)............... 6,605 6,179 6,345 6,021 3,934
-------- ----------- -------- -------- --------
Total Available...... $415,642 $244,428 $443,288 $432,439 $433,558
-------- ----------- -------- -------- --------
-------- ----------- -------- -------- --------
FIXED CHARGES
Interest Charges....... $153,217 $159,493 $166,049 $170,327 $148,778
Rents(a)............... 6,605 6,179 6,345 6,021 3,934
-------- ----------- -------- -------- --------
Total Fixed
Charges............. $159,822 $165,672 $172,394 $176,348 $152,712
-------- ----------- -------- -------- --------
-------- ----------- -------- -------- --------
Ratio of Earnings to
Fixed Charges......... 2.60 1.48 2.57 2.45 2.84
-------- ----------- -------- -------- --------
-------- ----------- -------- -------- --------
<FN>
- ---------
(a) Estimated interest component of rentals (1/3 of rentals was used where no
readily defined interest element could be determined).
</TABLE>
EXHIBIT 24-A
THE CINCINNATI GAS & ELECTRIC COMPANY
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That each person signing
below constitutes J. Wayne Leonard, William L. Sheafer, Cheryl M.
Foley and Jerome A. Vennemann, 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 Registration Statements on Forms S-3
or such appropriate form as may be required, and any amendments
thereto, covering the issuance and sale of not to exceed an
aggregate principal amount of $500 million of the Company s First
Mortgage Bonds, First Mortgage Bonds consisting of secured medium
term notes, senior unsecured indebtedness or junior unsecured
subordinated indebtedness, or any combination thereof, in one or
more series, 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/her substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been signed
on this 1st day of May 1995 by the undersigned Directors and
Officers of The Cincinnati Gas & Electric Company in the capacities
indicated.
/s/ Jackson H. Randolph /s/ James E. Rogers
- ------------------------------- -----------------------------
Jackson H. Randolph James E. Rogers
Director and Chief Executive Director
Officer
/s/ George H. Stinson /s/ J. Wayne Leonard
- ------------------------------- -----------------------------
George H. Stinson J. Wayne Leonard
Director Group Vice President and
Chief Financial Officer
/s/ Charles J. Winger
- -------------------------------
Charles J. Winger
Comptroller
EXHIBIT 24-B
[LETTERHEAD OF THE CINCINNATI GAS & ELECTRIC COMPANY]
CERTIFICATE OF ASSISTANT SECRETARY
----------------------------------
I, JEROME A. VENNEMANN, an Assistant Corporate 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 by the Board of Directors of said
corporation by unanimous written consent effective as of
March 24, 1995, and that such resolutions have not been amended
and are in full force and effect on the date hereof:
RESOLVED, That each of J. Wayne Leonard, Group Vice
President and Chief Financial Officer, William L. Sheafer,
Treasurer, Cheryl M. Foley, Vice President, General Counsel
and Corporate Secretary, and Jerome A. Vennemann, Assistant
Corporate Secretary, with power to act without the others,
is authorized to sign Registration Statements on Form S-3 or
such appropriate form as may be required, including any
amendments thereto as he or she may deem necessary, covering
the Securities, on behalf of and as attorney-in-fact for the
Chairman of the Board and Chief Executive Officer, Vice
Chairman and Chief Operating Officer, President, any Vice
President, the Treasurer, the Controller, or any Director of
the Company, with full power of substitution, and hereby
granting unto the above named individuals full authority
to cause to be filed such Registration Statements with the
Securities and Exchange Commission and to do such other acts
as are necessary to be done as fully as this Board might do;
IN WITNESS WHEREOF, I have hereunto subscribed my name and
affixed the seal of said corporation this 1st day of May,
1995.
/s/ Jerome A. Vennemann
------------------------------
Assistant Corporate Secretary
<PAGE> 1
EXHIBIT 25
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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 FIFTH THIRD BANK
(Exact name of trustee as specified in its charter)
Ohio
(Jurisdiction of incorporation or organization if not a
national bank)
31-0854433
(I.R.S. Employer Identification No.)
38 Fountain Square Plaza, Cincinnati, Ohio
(Address of principal executive offices)
45263
(Zip Code)
Paul L. Reynolds, 5th and Walnut Streets
Cincinnati, Ohio, 45263 (513) 579-5300
(Name, address and telephone number of agent for service)
THE CINCINNATI GAS & ELECTRIC COMPANY
(Exact name of obligor as specified in its charter)
Ohio
(State or other jurisdiction of incorporation or organization)
31-0240030
(I.R.S. Employer Identification No.)
139 East Fourth Street, Cincinnati, Ohio
(Address of principal executive offices)
45202
(Zip Code)
Debt Securities*
(Title of the indenture securities)
*Specific title to be determined upon sale(s) of Debt Securities
<PAGE> 2
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.
Ohio Superintendent of Banks
State Office Tower
30 E. Broad Street
Columbus, Ohio 43215
Federal Reserve Bank of Cleveland
East Sixth Street and Superior Avenue
Cleveland, Ohio 44101
Federal Deposit Insurance Corporation,
Washington, D.C.
(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.
Item 3. Voting securities of the trustee.
Furnish the following information as to each class of
voting securities of the trustee:
All of the outstanding voting securities of the trustee are owned
by Fifth Third Bancorp, an Ohio corporation. Answers to the
following items herein concerning voting securities of the
trustee owned by third parties relate to outstanding voting
securities of Fifth Third Bancorp. As of March 31, 1995, there
were 65,200,241 shares of no par value common stock of Fifth
Third Bancorp outstanding. Answers to all other items of this
statement of eligibility on Form T-1 relate to the Trustee only,
and do not contain information regarding Fifth Third Bancorp or
other subsidiaries of Fifth Third Bancorp.
<PAGE> 3
As of March 31, 1995
<TABLE>
<CAPTION>
Col. A. Col. B
Title of Class Amount Outstanding
<S> <C>
Capital Stock, par value 32,000
$2,200.00 per share
</TABLE>
Item 4. Trusteeships under other indentures.
If the trustee is a trustee under another
indenture under which any other securities, or certificates of
interest or participation in any other securities, of the obligor
are outstanding, furnish the following information:
(a) Title of the securities outstanding under each
such other indenture.
(1) State of Ohio Customized Purchase Revenue Bonds,
1985 Series A and B (The Cincinnati Gas & Electric Company Project)
issued by the Ohio Air Quality Development Authority for the benefit of
the obligor (the "Customized Bonds"). The interest rate on the Customized
Bonds is variable and the maturity date is December 1, 2015.
(2) Floating Rate Monthly Demand Pollution Control Revenue
Refunding Bonds, Series 1985A (The Cincinnati Gas & Electric Company
Project) issued by the County of Boone, Kentucky for the benefit of the
obligor (the "Refunding Bonds"). The interest rate on the Refunding
Bonds is variable on a monthly basis and the maturity date is
August 1, 2013.
(b) A brief statement of the facts relied upon as a
basis for the claim that no conflicting interest within the
meaning of Section 310(b)(1) of the Act arises as a result of the
trusteeship under any such other indenture, including a statement
as to how the indenture securities will rank as compared with the
securities issued under such other indenture.
(1) There is no default under the indenture for the
Customized Bonds of which the Trustee has knowledge; therefore, the
Trustee is aware of no facts which could provide a basis for a claim of
conflicting interest. The securities and the Customized Bonds are
unsecured obligations; however, the Customized Bonds are secured by a
Letter of Credit issued by a financial institution other than the Trustee.
(2) There is no default under the indenture for the
Refunding Bonds of which the Trustee has knowledge; therefore, the Trustee
is aware of no facts which could proivde a basis for a claim of conflicting
interest. The securities and the Refunding Bonds are unsecured obligations
of the Obligor; however, the Refunding Bonds are secured by a Letter of Credit
issued by a financial institution other than the Trustee.
<PAGE> 4
Item 5. Interlocking directorates and similar relationships
with the obligor or underwriters.
If the trustee or any of the directors or
executive officers of the trustee is a director, officer,
partner, employee, appointee, or representative of the obligor or
of any underwriter for the obligor, identify each such person
having any such connection and state the nature of each such
connection.
None.
Item 6. Voting securities of the trustee owned by the obligor
or its officials.
Furnish the following information as to the voting
securities of the trustee owned beneficially by the obligor and
each director, partner and executive officer of the obligor.
As of March 31, 1995
Col. D
Percentage of voting
Col. A Col. B Col. C. securities represented
Name of Title Amount owned by amount given in
Owner of Class beneficially Col. C
None, so far as is known to the trustee.
Item 7. Voting securities of the trustee owned by underwriters
or their officials.
Furnish the following information as to the voting
securities of the trustee owned beneficially by each underwriter
for the obligor and each director, partner, and executive officer
of each such underwriter.
As of March 31, 1995
Col. D
Percentage of voting
Col. A Col. B Col. C. securities represented
Name of Title Amount owned by amount given in
Owner of Class beneficially Col. C
None, so far as is known to the trustee.
Item 8. Securities of the obligor owned or held by the trustee.
<PAGE> 5
Furnish the following information as to securities
of the obligor owned beneficially or held as collateral security
for obligations in default by the trustee.
As of March 31, 1995
Col. C
Col. B Amount owned
Whether the beneficially Col. D
securities are or held as Percent of Class
Col. A voting or collateral security represented by
Title of non-voting for obligations amount given in
Class securities in default Col. C
None.
Item 9. Securities of underwriters owned or held by the trustee.
If the trustee owns beneficially or holds as
collateral security for obligations in default any securities of
an underwriter for the obligor, furnish the following information
as to which class of securities of such underwriter any of which
are so owned or held by the trustee.
As of March 31, 1995
Col. D
Col. C Percent
Amount owned of Class
Col. A beneficially or held represented
Title of Col. B as collateral security by amount
issuer and Amount for obligations in given in
title of class outstanding default by trustee Col. C.
None, so far as is known to the trustee.
Item 10. Ownership or holdings by the trustee of voting
securities of certain affiliates or security holders of
the obligor.
If the trustee owns beneficially or holds as
collateral security for obligations in default voting securities
of a person who, to the knowledge of the trustee (1) owns 10
percent or more of the voting securities of the obligor or (2) is
an affiliate, other than a subsidiary, of the obligor, furnish
the following information as to the voting securities of such
person.
<PAGE> 6
As of March 31, 1995
Col. D
Col. C Percent
Amount owned of Class
Col. A beneficially or held represented
Title of Col. B as collateral security by amount
issuer and Amount for obligations in given in
title of class outstanding default by trustee Col. C.
None, so far as is known to the trustee.
Item 11. Ownership or holdings by the trustee of any securities
of a person owning 50 percent or more of the voting
securities of the obligor.
If the trustee owns beneficially or holds as
collateral security for obligations in default any securities of
a person who, to the knowledge of the trustee, owns 50 percent or
more of the voting securities of the obligor, furnish the
following information as to each class of securities of such
person any of which are so owned or held by the trustee.
As of March 31, 1995
Col. D
Col. C Percent
Amount owned of Class
Col. A beneficially or held represented
Title of Col. B as collateral security by amount
issuer and Amount for obligations in given in
title of class outstanding default by trustee Col. C.
None, so far as is known to the trustee.
Item 12. Indebtedness of the Obligor to the Trustee
Except as noted in the instructions, if the obligor is
indebted to the Trustee, furnish the following information:
Col. A Col. B
Nature of Amount Col. C
Indebtedness Outstanding Date Due
None.
<PAGE> 7
Item 13. Defaults by the obligor.
(a) State whether there is or has been a default with
respect to the securities under this indenture. Explain the
nature of any such default.
None.
(b) If the Trustee is a trustee under another
indenture under which any other securities, or certificates of
interest or participation in any other securities, of the obligor
are outstanding, or is trustee for more than one outstanding
series of securities under the indenture, state whether there has
been a default under any such indenture or series, identify the
indenture or series affected, and explain the nature of any such
default.
None.
Item 14. Affiliations with the Underwriters.
If any underwriter is an affiliate of the Trustee,
describe each such affiliation.
Not applicable.
Item 15. Foreign Trustee.
Identify the order or rule pursuant to which the
foreign trustee is authorized to act as sole trustee under
indentures qualified or to be qualified under the Act.
Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as a part of this
statement of eligibility. (Exhibits identified in parentheses,
on file with the Commission, are incorporated herein by reference
as exhibits hereto.)
(1) A copy of the Certificate of Incorporation of the
trustee as now in effect.
(2) A copy of the certificate of authority of the
trustee to commence business. (Included in Exhibit 1)
(3) A copy of the authorization of the trustee to
exercise corporate trust powers.
(4) A copy of the existing code of regulations of the
trustee incorporating amendments to date.
<PAGE> 8
(5) A copy of each indenture referred to in Item 4.
(6) The consent of the trustee required by Section 321
(b) of the Trust Indenture Act of 1939.
(7) A copy of the latest report of condition of the
trustee published pursuant to law or the requirements of its
supervising or examining authority.
(8) A copy of any order pursuant to which the foreign
trustee is authorized to act as sole trustee under indentures
qualified or to be qualified under the Act.
(9) Foreign trustees are required to file a consent to
service of process of Form F-X
<PAGE> 9
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act
of 1939, the trustee, The Fifth Third Bank, a corporation
organized and existing under the laws of the State of Ohio, has
duly caused this statement of eligibility and qualification to be
signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Cincinnati and the State of Ohio,
on the 28th day of April, 1995
THE FIFTH THIRD BANK
By /s/ Brian J. Gardner
Brian J. Gardner,
Senior Trust Officer
<PAGE> 10
EXHIBIT 1
CERTIFICATE OF INCORPORATION
OF THE TRUSTEE AS NOW IN EFFECT
[See Attached]
<PAGE> 11
CERTIFICATE OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
THE FIFTH THIRD BANK
George A. Schaefer, Jr., President and Phillip C. Long,
Secretary to The Fifth Third Bank, an Ohio banking corporation,
with its principal office located at Cincinnati, Hamilton County,
Ohio, do hereby certify that a duly called meeting of the Board
of Directors held on May 18, 1993, at which a quorum was present
and at a special meeting of the shareholder on May 18, 1993, the
following resolution to amend the Third Amended Articles of
Incorporation which adopted by affirmative vote of all the
Directors in attendance and by an unanimous vote of the sole
shareholder.
RESOLVED, that Article FOURTH of the Third Amendment
Articles of Incorporation be and is hereby amended in its
entirety to read as follows:
FOURTH: The maximum number of shares with the
corporation is authorized to have outstanding shall be Thirty-Two
Thousand (32,000) shares with a par value of Two Thousand Two
Hundred Dollars ($2,200.00) per share.
IN WITNESS WHEREOF, said George A. Schaefer, Jr.,
President and Phillip C. Long, Secretary of The Fifth Third Bank,
acting for and on behalf of said corporation have hereunto
subscribed their names this 18th day of May, 1993.
/s/ George A. Schaefer, Jr.
George A. Schaefer, Jr.,
President
Approved this 16th day of June, 1993
/s/ Alison M. Meeks
Alison M. Meeks, Superintendent
/s/ Phillip C. Long
Phillip C. Long, Secretary
<PAGE> 12
THIRD AMENDED ARTICLES OF INCORPORATION
OF
THE FIFTH THIRD BANK
FIRST: The name of said Corporation shall be "The
Fifth Third Bank".
SECOND: The place in Ohio where its principal office
is to be located is Cincinnati, Hamilton County, and its
principal business there transacted.
THIRD: Said Corporation is formed for the purposes
of (a) receiving on deposit or in trust, moneys, securities and
other valuable property, on such terms as may be agreed, and of
doing the business of a savings bank and of a trust company; (b)
of disposing of box vaults for safekeeping of valuables by lease
or otherwise; (c) of investing and loaning the funds of the
company and those received by it on deposit or in trust; (d) of
doing a commercial banking business; and, (e) of doing the
business of a special plan bank, and in furtherance of said
purposes, to exercise all the powers of which may be lawfully
exercised by a corporation formed therefore, and to do all things
necessary to incident thereto.
FOURTH: The maximum number of shares which the
corporation is authorized to have outstanding shall be Thirty-Two
Thousand (32,000) shares with a par value of One Thousand Nine
Hundred Dollars ($1,900.00) per share.
FIFTH: These Amended Articles of Incorporation
supersede and take the place of the existing Articles of
Incorporation.
<PAGE> 13
EXHIBIT 2
CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
(INCLUDED IN EXHIBIT 1)
<PAGE> 14
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
[See Attached]
<PAGE> 15
STATE OF OHIO
DIVISION OF BANKS
TO WHOM IT MAY CONCERN:
This is to certify that The Fifth Third Bank, Cincinnati, Ohio,
organized under the laws of the State of Ohio, has complied with
the laws relating to trust companies under Sections 1105.02 and
1109.04 of the Ohio Revised Code and is qualified to exercise
trust powers in Ohio.
Witness my hand and official seal at Columbus, Ohio, this 24th
day of April, 1995.
/s/ John K. Bishop
[Seal] JOHN K. BISHOP
Deputy Superintendent
Division of Banks
<PAGE> 16
EXHIBIT 4
A COPY OF THE EXISTING CODE OF REGULATIONS OF THE TRUSTEE
INCORPORATING AMENDMENTS TO DATE
[See Attached]
<PAGE> 17
Code of Regulations of The Fifth Third Bank
ARTICLE I
STOCKHOLDERS
Section 1. Meetings. The annual meeting of the
Stockholders shall be held at the principal office of the Company
at such hour, as may be fixed in the notice of such meeting, and
on such date, not earlier than the second Tuesday of January or
later than the third Tuesday of April of each year, as shall be
fixed by the Board of Directors and communicated in writing to
the Shareholders not later than twenty (20) days prior to such
meeting.
Section 2. Quorum. Stockholders, whether in person
or by lawful proxies, representing a majority in amount of the
outstanding stock of the Company, shall constitute a quorum at
any stockholders' meeting. If there be less than a majority in
amount of such stock at any meeting, the meeting may be adjourned
from time to time.
ARTICLE II
DIRECTORS
Section 1. Number. The Board of Directors shall be
composed of eighteen (18) persons unless this number is changed
by: (1) the Shareholders in accordance with the laws of Ohio or
(2) the vote of a majority of the Directors in office. The
Directors may increase the number to not more than twenty-four
(24) persons and may decrease the number to not less than fifteen
(15) persons. Any Director's office created by the Directors by
reason of an increase in their number may be filled by action of
a majority of the Directors in office.
Section 2. Term. Directors shall hold office until
the expiration of the term for which they were erected, and shall
continue in office until their respective successors shall have
been duly elected and qualified.
Section 3. Qualifications and Compensation. No
person shall serve as a Director who is not the owner of record
of at least Five Hundred ($500.00) Dollars par value of stock of
the Company. Each Director shall be entitled to receive such
compensation for attendance at meetings of the Board of Directors
of Committees thereof as the Board of Directors may, from time to
time, fix.
Section 4. Replacement or Removal. Directors may
be replaced or removed as provided by Ohio Law, provided that
Directors may be removed without cause only by an affirmative
vote of not less than two-thirds (2/3) of the outstanding shares
of the Company.
<PAGE> 18
Section 5. Vacancies. Any vacancy occurring in the
Board of Directors may be filled by the Board of Directors until
an election to fill such vacancy is had.
Section 6. Quorum. A majority of the whole
authorized number of Directors, as the same shall be established
from time to time in accordance with Section 1 of this Code of
Regulations, shall constitute a quorum for a meeting of the
Directors, except that a majority of the Directors in office
constitute a quorum for the filling of a vacancy or vacancies of
the Board.
Section 7. Election of Officers. The Board of
Directors at the first meeting after the election of Directors
may elect one of its own number Chairman of the Board and one of
its own number Vice Chairman of the Board; and it shall elect one
of its own number President. It may also elect one or more vice
presidents (one or more of whom may be designated Executive Vice
President and/or Senior Vice President and/or Vice President and
Trust Officer), a Cashier, a Secretary, and a Treasurer, and it
may appoint such other officers as the Board may deem advisable.
Any two of said offices may be held by the same person. Officers
so elected shall hold office during the term of the Board by whom
they are elected, subject to the power of the Board to remove
them at its discretion. They shall be bonded in such amount and
with such survey or sureties as the Board of Directors shall
require.
Section 8. Meetings of the Board. Regular meetings
of the Board of Directors shall be held on the third Tuesday of
each month, or at such other times as may be determined by the
Board of Directors. Except as otherwise provided by law, any
business may be transacted at any regular meeting of the Board of
Directors. Special meetings shall be held upon the call of the
Chairman of the Board, if one be elected, or by the President, or
in their absence, by a Vice President or any three (3) Directors.
Section 9. Notice of Meetings. The Secretary shall
give notice of each meeting of the Board of Directors, whether
regular or special, to each member of the Board.
Section 10. Committees.
Section 10.1 Executive Committee. The Board of
Directors shall appoint any Executive Committee consisting of at
least three (3) members, all of whom may be members of the Board
of Directors, or at least one (1) of whom shall be a Director,
the remainder to be officers of the Bank. Such Executive
Committee shall serve until their successors are appointed. A
majority of the members of said Committee shall constitute a
quorum. The Executive Committee shall conduct the business of
the Company and shall have all the powers of the Board of
Directors when said Board is not in session, except that of
declaring a dividend. The Secretary of the Company shall keep a
record of the Committee's proceedings, which, signed by the
Chairman of the
<PAGE> 19
Committee, shall be presented at the meetings of the
Committee and at the meetings of the Board of Directors.
Section 10.2 Other Committees. The Board of
Directors shall appoint a Trust Committee of which the Vice
President and Trust Officer and at least three (3) of its members
who are not officers of the Company shall be members. The Vice
President and Trust Officer shall be Chairman of the Trust
Committee. In addition thereto, the Chairman of the Board, Chief
Executive Officer, may appoint such additional Committees, by and
with the approval of the Board of Directors, as may be deemed
desirable or necessary.
Each such Committee, so appointed, shall have such
powers and perform such duties, not inconsistent with law, as may
be delegated to it by the Board of Directors.
Section 11. Indemnification. The Company shall
indemnify each Director and each Officer of the Company, and each
person employed by the Company who serves at the written request
of the President of the Company as a director, trustee, officer,
employee or agent of another corporation, domestic or foreign,
non-profit or for profit, partnership, joint venture, trust or
other enterprise, to the full extent permitted by Ohio law.
The term "Officer" as used in this Section shall include the
Chairman of the Board and the Vice Chairman of the Board if such
offices are filled, the President, each Vice President, the
Treasurer, the Secretary, the Cashier, the Controller, the
Auditor, the Counsel and any other person who is specifically
designated as an "Officer" within the operation of this Section
by action of the Board of Directors. The Company may indemnify
assistant Officers, employees and others by action of the Board
of Directors to the extent permitted by Ohio law.
ARTICLE III
OFFICERS
Section 1. Powers and Duties. The Chairman of the
Board if the office be filled, otherwise the Vice Chairman of the
Board, if the office be filled, otherwise the President shall
preside at all meetings of the Stockholders, the Board of
Directors, and the supervision and control over the business of
the Company and shall serve at the pleasure of the Board of
Directors. In the absence or disability of any of the foregoing
officers, their respective duties shall be performed by the
Chairman of the Board, the Vice Chairman of the Board, the
President, or by a Vice President specifically designated by the
Board of Directors, in the order named.
<PAGE> 20
The Secretary, or in his absence or disability, the
Assistant Secretary, shall act, ex officio, as Secretary of all
meetings of the Stockholders, the Board of Directors and the
Executive Committee. The other officers of the Company shall
have such powers and duties as usually and customarily attach to
their offices.
ARTICLE IV
CERTIFICATES OF STOCK
Section 1. Form. Certificates for shares of stock
shall be signed by the Chairman of the Board, or by the
President, or by one of the Vice Presidents, and by the Secretary
or Treasurer or by the Cashier or an Assistant Cashier, shall
contain such statements as are required by law, and shall
otherwise be in such form as the Board of Directors may, from
time to time, require.
Section 2. Transfers. Shares shall be transferable
on the books of the Company by the holders thereof in person or
by duly authorized attorney upon surrender of the certificates
therefor with duly executed assignment endorsed thereon or
attached thereto.
Section 3. Closing of Transfer Books. The books
for transfer of the stock of the Company shall be closed for at
least five (5) days preceding the annual meeting of stockholders,
and may be closed by order of the Board of Directors, or
Executive Committee, for a like period before any other meeting
of the Stockholders.
ARTICLE V
AMENDMENTS
These regulations may be changed, and new regulations
adopted by the assent thereto in writing of two-thirds (2/3) of
the Stockholders of the Company in number an in amount; or by a
majority of such Stockholders in number and in amount, at a
meeting held for that purpose, notice of which has been given by
the President, the Secretary, or any two (2) Directors personally
or by written notice, to each Stockholders, and by publication
once a week for four (4) consecutive weeks in some newspaper of
general circulation in Hamilton County, Ohio, or in such other
manner as may then be authorized by the laws of Ohio.
<PAGE> 21
EXHIBIT 5
A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4
(NOT APPLICABLE)
<PAGE> 22
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321 (B)
OF THE TRUST INDENTURE ACT OF 1939
[See Attached]
<PAGE> 23
EXHIBIT 6 TO FORM T-1
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the
Trust Indenture Act of 1939 in connection with the proposed
issuance of Debt Securities of The Cincinnati Gas & Electric
Company, The Fifth Third Bank hereby consents that reports of
examination by Federal, State, Territorial or District
Authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
THE FIFTH THIRD BANK
By /s/ Brian J. Gardner
Brian J. Gardner,
Senior Trust Officer
<PAGE> 24
EXHIBIT 7
A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE
PUBLISHED PURSUANT TO LAW OR THE REQUIREMENTS
OF ITS SUPERVISING OR EXAMINING AUTHORITY
[See Attached]
<PAGE> 25
REPORT OF CONDITION
Consolidated Report of Condition of FIFTH THIRD BANK of
CINCINNATI, OHIO and Foreign and Domestic Subsidiaries, a member
of the Federal Reserve System, at the close of business on
December 31, 1994, published in accordance with a call made by
the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
ASSETS
<TABLE>
<CAPTION>
Thousands
of Dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin 548,747
Interest-bearing balances 10,099
Held-to-maturity securities 966,723
Available-for-sale securities 323,533
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and of its
Edge and Agreement subsidiaries, and in IBFs:
Federal Funds sold 908,008
Securities purchased under agreements to resell 0
Loans and leases financing receivables:
Loans and leases, net of unearned income 5,519,416
LESS: Allowance for loan and leases losses 77,412
LESS: Allocated transfer risk reserve 0
Loans and leases, net of unearned income, allowance,
and reserve 5,442,004
Assets held in trading accounts 0
Premises and fixed assets (including capitalized leases) 94,951
Other real estate owned 3,446
Investments in unconsolidated subsidiaries and
associated companies 0
Customers' liability to this bank on
acceptances outstanding 29,792
Intangible assets 16,066
Other assets 125,744
Total assets 8,469,113
LIABILITIES
Deposits:
In domestic offices 4,572,229
Noninterest-bearing 1,124,178
Interest-bearing 3,448,051
In foreign offices, Edge and Agreement subsidiaries,
and IBFs: 1,073,425
Noninterest-bearing 0
Interest-bearing 1,073,425
Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of its
</TABLE>
<PAGE> 26
<TABLE>
<S> <C>
Edge and Agreement subsidiaries, and in IBFs:
Federal funds purchased 852,873
Securities sold under agreements to repurchase 113,106
Demand notes issued to the U.S. Treasury 43,433
Trading liabilities 0
Other borrowed money:
With original maturity of one year or less 883,841
With original maturity of more than one year 0
Mortgage indebtedness and obligations under
capitalized leases 0
Bank's liability on acceptances executed and outstanding 29,792
Subordinated notes and debentures 135,000
Other liabilities 172,875
Total liabilities 7,876,574
Limited-life preferred stock and related surplus 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock 70,400
Surplus 110,854
Undivided profits and capital reserves 421,940
Net unrealized holding gains (losses) on
available-for-sale securities (10,655)
Cumulative foreign currency translation adjustments 0
Total equity capital 592,539
Total liabilities, limited-life preferred stock,
and equity capital 8,469,113
</TABLE>
<PAGE> 27
EXHIBIT 8
A COPY OF ANY ORDER PURSUANT TO WHICH THE FOREIGN TRUSTEE IS
AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR
TO BE QUALIFIED UNDER THE ACT
(NOT APPLICABLE)
<PAGE> 28
EXHIBIT 9
FOREIGN TRUSTEES ARE REQUIRED TO FILE A CONSENT TO SERVICE OF
PROCESS OF FORM F-X
(NOT APPLICABLE)
