UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1998
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
Commission Registrant, State of Incorporation, I.R.S. Employer
File Number Address, and Telephone Number Identification No.
1-11377 CINERGY CORP. 31-1385023
(A Delaware Corporation)
139 East Fourth Street
Cincinnati, Ohio 45202
(513) 421-9500
1-1232 THE CINCINNATI GAS & ELECTRIC COMPANY 31-0240030
(An Ohio Corporation)
139 East Fourth Street
Cincinnati, Ohio 45202
(513) 421-9500
1-3543 PSI ENERGY, INC. 35-0594457
(An Indiana Corporation)
1000 East Main Street
Plainfield, Indiana 46168
(317) 839-9611
2-7793 THE UNION LIGHT, HEAT AND POWER COMPANY 31-0473080
(A Kentucky Corporation)
139 East Fourth Street
Cincinnati, Ohio 45202
(513) 421-9500
Indicate by check mark whether the registrants (1) have filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrants were required to file such reports), and (2) have been subject to
such filing requirements for the past 90 days. Yes X No
This combined Form 10-Q is separately filed by Cinergy Corp., The Cincinnati Gas
& Electric Company, PSI Energy, Inc., and The Union Light, Heat and Power
Company. Information contained herein relating to any individual registrant is
filed by such registrant on its own behalf. Each registrant makes no
representation as to information relating to the other registrants.
The Union Light, Heat and Power Company meets the conditions set forth in
General Instruction H(1)(a) and (b) of Form 10-Q and is therefore filing its
company specific information with the reduced disclosure format.
As of July 31, 1998, shares of Common Stock outstanding for each registrant were
as listed:
Company Shares
Cinergy Corp., par value $.01 per share 158,535,278 The Cincinnati Gas &
Electric Company, par value $8.50 per share 89,663,086 PSI Energy, Inc., without
par value, stated value $.01 per share 53,913,701 The Union Light, Heat and
Power Company, par value $15.00 per share 585,333
<PAGE>
TABLE OF CONTENTS
Item Page
Number Number
Glossary of Terms . . . . . . . . . . . . . . . . . . . 3
PART I. FINANCIAL INFORMATION
1 Financial Statements
Cinergy Corp.
Consolidated Balance Sheets . . . . . . . . . . . . . 6
Consolidated Statements of Income (Loss). . . . . . . 8
Consolidated Statements of Changes in Common
Stock Equity. . . . . . . . . . . . . . . . . . . . 9
Consolidated Statements of Cash Flows . . . . . . . . 12
Results of Operations . . . . . . . . . . . . . . . . 13
The Cincinnati Gas & Electric Company
Consolidated Balance Sheets . . . . . . . . . . . . . 24
Consolidated Statements of Income and Comprehensive
Income. . . . . . . . . . . . . . . . . . . . . . . 26
Consolidated Statements of Cash Flows . . . . . . . . 27
Results of Operations . . . . . . . . . . . . . . . . 28
PSI Energy, Inc.
Consolidated Balance Sheets . . . . . . . . . . . . . 34
Consolidated Statements of Income (Loss) and
Comprehensive Income (Loss) . . . . . . . . . . . . 36
Consolidated Statements of Cash Flows . . . . . . . . 37
Results of Operations . . . . . . . . . . . . . . . . 38
The Union Light, Heat and Power Company
Balance Sheets. . . . . . . . . . . . . . . . . . . . 43
Statements of Income (Loss) . . . . . . . . . . . . . 45
Statements of Cash Flows. . . . . . . . . . . . . . . 46
Results of Operations . . . . . . . . . . . . . . . . 47
Notes to Financial Statements . . . . . . . . . . . . . 50
2 Management's Discussion and Analysis of Financial
Condition and Results of Operations . . . . . . . . . 57
3 Quantitative and Qualitative Disclosures About
Market Risk . . . . . . . . . . . . . . . . . . . . . 62
PART II. OTHER INFORMATION
1 Legal Proceedings . . . . . . . . . . . . . . . . . . . 63
6 Exhibits and Reports on Form 8-K. . . . . . . . . . . . 63
Signatures. . . . . . . . . . . . . . . . . . . . . . . 65
<PAGE>
GLOSSARY OF TERMS
The following abbreviations or acronyms used in the text of this combined Form
10-Q are defined below:
TERM DEFINITION
1997 Form Combined 1997 Annual Report on Form 10-K filed separately by
10-K Cinergy, CG&E, PSI, and ULH&P
Apache Apache Corporation
Avon Energy Avon Energy Partners Holdings, an Unlimited Liability
Company and its wholly-owned subsidiary Avon Energy
Partners PLC, a Limited Liability Company
Bcf Billion cubic feet
Beckjord CG&E's W. C. Beckjord Station (steam electric generating
plant)
CC&T Cinergy Capital and Trading, Inc. (a subsidiary of
Investments)
CERCLA Comprehensive Environmental Response, Compensation and
Liability Act
CFC National Rural Utilities Cooperative Finance Corporation
CG&E The Cincinnati Gas & Electric Company (a subsidiary of
Cinergy)
Cinergy or Cinergy Corp.
Company
Cinergy Global Cinergy Global Power, Inc., formerly Cinergy Investments
Power MPI, Inc. (a subsidiary of Cinergy Global Resources, Inc.)
Cinergy Global Cinergy Global Resources, Inc. (a subsidiary of Cinergy),
Resources which holds Cinergy's foreign non-regulated business
Committed Lines Unsecured lines of credit
Conesville CG&E's Conesville Station (steam electric generating plant)
Enertech Enertech Associates, Inc., formerly Power International,
Inc. (a subsidiary of Cinergy Investments, Inc.)
EPA United States Environmental Protection Agency
EPS Earnings per share
Exxon Exxon Coal and Minerals Company
FASB Financial Accounting Standards Board
FERC Federal Energy Regulatory Commission
HB 443 Customer choice bill introduced by the House Chairman of the
Tourism, Development and Energy Committee in Kentucky
HJR 95 House Joint Resolution, which calls for an executive task
force to study electricity restructuring in Kentucky
<PAGE>
GLOSSARY OF TERMS (Continued)
TERM DEFINITION
HB 732 and Companion electric restructuring bills introduced into the
SB 237 Ohio legislature during 1998
IDEM Indiana Department of Environmental Management
IGC Indiana Gas Company, Inc., formerly Indiana Gas and Water
Company, Inc.
IRS Internal Revenue Service
IT Information Technology
Investments Cinergy Investments, Inc. (a subsidiary of Cinergy)
kwh Kilowatt-hour
Mcf Thousand cubic feet
MGP Manufactured gas plant
Midlands Midlands Electricity plc, a United Kingdom regional electric
company (a wholly-owned subsidiary of Avon Energy)
MW Megawatts
NIPSCO Northern Indiana Public Service Company
NOx Nitrogen Oxide
Oryx Oryx Energy Company
ProEnergy Producers Energy Marketing, LLC (a subsidiary of CC&T)
PSI PSI Energy, Inc. (a subsidiary of Cinergy)
PUCO Public Utilities Commission of Ohio
RUS Rural Utilities Service
SIP State Implementation Plan
Statement 130 Statement of Financial Accounting Standards No. 130,
Reporting Comprehensive Income
Statement 133 Statement of Financial Accounting Standards No. 133,
Accounting for Derivative Instruments and Hedging
Activities
Teplarna Teplarna Svit a.s. (a subsidiary of Cinergy Global Power)
ULH&P The Union Light, Heat and Power Company (a wholly-owned
subsidiary of CG&E)
Uncommitted Short-term borrowings with various banks arranged on an "as
Lines offered" basis
WVPA Wabash Valley Power Association, Inc.
Zimmer CG&E's William H. Zimmer Generating Station (steam electric
generating plant)
<PAGE>
CINERGY CORP.
AND SUBSIDIARY COMPANIES
<PAGE>
CINERGY CORP.
CONSOLIDATED BALANCE SHEETS
ASSETS
June 30 December 31
1998 1997
(unaudited)
(dollars in thousands)
Utility Plant - Original Cost
In service
Electric $9,048,447 $8,981,182
Gas 759,774 746,903
Common 186,236 186,078
---------- ----------
9,994,457 9,914,163
Accumulated depreciation 3,922,498 3,800,322
---------- ----------
6,071,959 6,113,841
Construction work in progress 219,154 183,262
---------- ----------
Total utility plant 6,291,113 6,297,103
Current Assets
Cash and temporary cash investments 86,934 53,310
Restricted deposits 1,507 2,319
Notes receivable 78 110
Accounts receivable less accumulated provision for
doubtful accounts of $14,520 at June 30, 1998,
and $10,382 at December 31, 1997 528,923 413,516
Materials, supplies, and fuel - at average cost
Fuel for use in electric production 72,272 57,916
Gas stored for current use 29,282 29,174
Other materials and supplies 70,475 76,066
Prepayments and other 68,126 38,171
---------- ----------
857,597 670,582
Other Assets
Regulatory assets
Amounts due from customers - income taxes 398,237 374,456
Post-in-service carrying costs and deferred
operating expenses 174,557 178,504
Coal contract buyout costs 112,936 122,485
Deferred merger costs 87,684 90,346
Deferred demand-side management costs 91,793 109,596
Phase-in deferred return and depreciation 82,232 89,689
Unamortized costs of reacquiring debt 64,443 66,242
Other 44,241 45,533
Investments in unconsolidated subsidiaries 589,724 537,720
Other 385,746 275,897
---------- ----------
2,031,593 1,890,468
$9,180,303 $8,858,153
The accompanying notes as they relate to Cinergy Corp. are an integral part of
these consolidated financial statements.
<PAGE>
CINERGY CORP.
CAPITALIZATION AND LIABILITIES
June 30 December 31
1998 1997
(unaudited)
(dollars in thousands)
Common Stock Equity
Common stock - $.01 par value; authorized shares - 600,000,000; outstanding
shares - 158,535,278 at June 30, 1998, and
157,744,658 at December 31, 1997 $ 1,585 $ 1,577
Paid-in capital 1,599,435 1,573,064
Retained earnings 905,556 967,420
Accumulated other comprehensive income (3,330) (2,861)
---------- ----------
Total common stock equity 2,503,246 2,539,200
Cumulative Preferred Stock of Subsidiaries
Not subject to mandatory redemption 92,688 177,989
Long-term Debt 2,192,975 2,150,902
---------- ----------
Total capitalization 4,788,909 4,868,091
Current Liabilities
Long-term debt due within one year 251,569 85,000
Notes payable and other short-term obligations 1,120,559 1,114,028
Accounts payable 655,241 488,716
Accrued taxes 187,197 187,033
Accrued interest 35,420 46,622
Other 88,405 79,193
---------- ----------
2,338,391 2,000,592
Other Liabilities
Deferred income taxes 1,209,293 1,248,543
Unamortized investment tax credits 161,464 166,262
Accrued pension and other postretirement
benefit costs 315,348 297,142
Other 366,898 277,523
---------- ----------
2,053,003 1,989,470
$9,180,303 $8,858,153
<PAGE>
<TABLE>
<CAPTION>
CINERGY CORP.
CONSOLIDATED STATEMENTS OF INCOME (LOSS)
(unaudited)
<S> <C> <C> <C> <C> <C> <C>
Quarter Ended Year to Date Twelve Months Ended
June 30 June 30 June 30
1998 1997 1998 1997 1998 1997
(in thousands, except per share amounts)
Operating Revenues
Electric $1,021,922 $790,576 $2,180,646 $1,608,490 $4,433,854 $3,041,642
Gas 50,081 74,757 223,142 287,023 427,264 495,782
---------- -------- ---------- ---------- ---------- ----------
1,072,003 865,333 2,403,788 1,895,513 4,861,118 3,537,424
Operating Expenses
Fuel used in electric production 155,547 134,602 336,066 310,348 719,153 668,341
Gas purchased 21,668 35,826 118,279 159,794 224,643 275,730
Purchased and exchanged power 439,920 195,364 911,805 355,956 1,775,207 456,371
Other operation 237,130 158,488 400,158 321,900 716,203 625,574
Maintenance 55,613 51,201 94,679 97,055 174,095 199,157
Depreciation 73,790 72,171 147,095 143,727 292,445 285,698
Amortization of phase-in deferrals 5,540 3,370 11,079 6,741 17,821 13,540
Amortization of post-in-service
deferred operating expenses 1,090 1,090 2,181 2,181 4,362 2,379
Income taxes (10,897) 39,937 59,894 103,856 204,975 215,122
Taxes other than income taxes 68,157 67,841 137,806 136,213 266,617 261,482
---------- -------- ---------- ---------- ---------- ----------
1,047,558 759,890 2,219,042 1,637,771 4,395,521 3,003,394
Operating Income 24,445 105,443 184,746 257,742 465,597 534,030
Other Income and Expenses - Net
Allowance for equity funds used
during construction 111 180 132 371 (141) 748
Post-in-service carrying costs - - - - - 386
Phase-in deferred return 1,811 2,002 3,622 4,004 7,626 8,190
Equity in earnings of
unconsolidated subsidiaries 9,717 12,180 21,571 38,680 43,283 61,677
Income taxes 12,788 3,653 26,130 4,444 57,623 18,433
Other - net (12,684) (8,080) (31,715) (10,707) (52,510) (37,545)
---------- -------- ---------- ---------- ---------- ----------
11,743 9,935 19,740 36,792 55,881 51,889
Income Before Interest and Other
Charges 36,188 115,378 204,486 294,534 521,478 585,919
Interest and Other Charges
Interest on long-term debt 43,835 44,977 87,593 94,252 175,113 187,713
Other interest 18,845 13,430 36,839 27,297 69,489 50,274
Allowance for borrowed funds used
during construction (1,925) (1,754) (3,872) (3,096) (6,176) (6,499)
Preferred dividend requirements
of subsidiaries 1,366 3,236 3,788 6,475 9,882 16,209
---------- -------- ---------- ---------- ---------- ----------
62,121 59,889 124,348 124,928 248,308 247,697
Net Income (Loss) Before
Extraordinary Item $ (25,933) $ 55,489 $ 80,138 $ 169,606 $ 273,170 $ 338,222
Extraordinary Item - Equity Share of
Windfall Profits Tax (Less
Applicable Income Taxes of $0) - - - - (109,400) -
---------- -------- ---------- ---------- ---------- -------
Net Income (Loss) $ (25,933) $ 55,489 $ 80,138 $ 169,606 $ 163,770 $ 338,222
Average Common Shares Outstanding 158,018 157,679 157,892 157,679 157,790 157,679
Earnings Per Common Share
Net income (loss) before
extraordinary item $(.16) $.35 $.51 $1.07 $1.73 $2.02
Net income (loss) $(.16) $.35 $.51 $1.07 $1.04 $2.02
Earnings Per Common Share - Assuming Dilution (Note 13)
Net income (loss) before
extraordinary item $(.16) $.35 $.51 $1.06 $1.72 $2.01
Net income (loss) $(.16) $.35 $.51 $1.06 $1.03 $2.01
Dividends Declared Per Common Share $ .45 $.45 $.90 $ .90 $1.80 $1.78
<FN>
The accompanying notes as they relate to Cinergy Corp. are an integral part of these consolidated financial statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CINERGY CORP.
CONSOLIDATED STATEMENTS OF CHANGES IN COMMON STOCK EQUITY
(dollars in thousands)
(unaudited)
<S> <C> <C> <C> <C> <C> <C>
Accumulated
Other Total Total
Common Paid-in Retained Comprehensive Comprehensive Common Stock
Stock Capital Earnings Income Income Equity
Quarter Ended June 30, 1998
Balance April 1, 1998 $1,578 $1,574,080 $1,002,495 $(3,279) $2,574,874
Comprehensive income
Net income (loss) (25,933) $(25,933) (25,933)
Other comprehensive income,
net of tax
Foreign currency translation
adjustment (51) (51)
--------
Other comprehensive income
(loss) total (51) (51)
--------
Comprehensive income (loss) total $(25,984)
Issuance of 771,258 shares of
common stock - net 7 26,504 26,511
Treasury shares purchased (1) (3,502) (3,503)
Treasury shares reissued 1 2,329 2,330
Dividends on common stock (see
page 8 for per share amounts) (71,006) (71,006)
Other 24 24
------ ---------- ---------- ------- ----------
Balance June 30, 1998 $1,585 $1,599,435 $ 905,556 $(3,330) $2,503,246
Quarter Ended June 30, 1997
Balance at April 1, 1997 $1,577 $1,579,934 $1,036,643 $(2,419) $2,615,735
Comprehensive income
Net income 55,489 $ 55,489 55,489
Other comprehensive income,
net of tax
Foreign currency translation
adjustment 446 446
--------
Other comprehensive income
total 446 446
--------
Comprehensive income total $ 55,935
========
Treasury shares purchased (4) (13,778) (13,782)
Treasury shares reissued 4 4,325 4,329
Dividends on common stock (see
page 8 for per share amounts) (70,910) (70,910)
Other 52 (12) 40
------ ---------- ---------- ------- ----------
Balance June 30, 1997 $1,577 $1,570,533 $1,021,210 $(1,973) $2,591,347
<FN>
The accompanying notes as they relate to Cinergy Corp. are an integral part of these consolidated financial statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CINERGY CORP.
CONSOLIDATED STATEMENTS OF CHANGES IN COMMON STOCK EQUITY (CONTINUED)
(dollars in thousands)
(unaudited)
<S> <C> <C> <C> <C> <C> <C>
Accumulated
Other Total Total
Common Paid-in Retained Comprehensive Comprehensive Common Stock
Stock Capital Earnings Income Income Equity
Six Months Ended June 30, 1998
Balance January 1, 1998 $1,577 $1,573,064 $ 967,420 $(2,861) $2,539,200
Comprehensive income
Net income 80,138 $ 80,138 80,138
Other comprehensive income,
net of tax
Foreign currency translation
adjustment (418) (418)
Minimum pension liability
adjustment (51) (51)
--------
Other comprehensive income
(loss) total (469) (469)
--------
Comprehensive income total $ 79,669
========
Issuance of 790,620 shares of
common stock - net 8 26,793 26,801
Treasury shares purchased (2) (4,932) (4,934)
Treasury shares reissued 2 4,478 4,480
Dividends on common stock (see
page 8 for per share amounts) (142,000) (142,000)
Other 32 (2) 30
------ ---------- ---------- ------- ----------
Balance June 30, 1998 $1,585 $1,599,435 $ 905,556 $(3,330) $2,503,246
Six Months Ended June 30, 1997
Balance at January 1, 1997 $1,577 $1,590,735 $ 993,526 $(1,384) $2,584,454
Comprehensive income
Net income 169,606 $169,606 169,606
Other comprehensive income,
net of tax
Foreign currency translation
adjustment (589) (589)
--------
Other comprehensive income
(loss) total (589) (589)
--------
Comprehensive income total $169,017
========
Treasury shares purchased (11) (45,725) (45,736)
Treasury shares reissued 11 25,459 25,470
Dividends on common stock (see
page 8 for per share amounts) (141,910) (141,910)
Other 64 (12) 52
------ ---------- ---------- ------- ----------
Balance June 30, 1997 $1,577 $1,570,533 $1,021,210 $(1,973) $2,591,347
<FN>
The accompanying notes as they relate to Cinergy Corp. are an integral part of these consolidated financial statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CINERGY CORP.
CONSOLIDATED STATEMENTS OF CHANGES IN COMMON STOCK EQUITY (CONTINUED)
(dollars in thousands)
(unaudited)
<S> <C> <C> <C> <C> <C> <C>
Accumulated
Other Total Total
Common Paid-in Retained Comprehensive Comprehensive Common Stock
Stock Capital Earnings Income Income Equity
Twelve Months Ended June 30, 1998
Balance July 1, 1997 $1,577 $1,570,533 $1,021,210 $(1,973) $2,591,347
Comprehensive income
Net income 163,770 $163,770 163,770
Other comprehensive income,
net of tax
Foreign currency translation
adjustment (224) (224)
Minimum pension liability
adjustment (1,133) (1,133)
--------
Other comprehensive income
(loss) total (1,357) (1,357)
--------
Comprehensive income total $162,413
Issuance of 856,149 shares of
common stock - net 8 28,859 28,867
Treasury shares purchased (2) (5,406) (5,408)
Treasury shares reissued 2 5,748 5,750
Dividends on common stock (see
page 8 for per share amounts) (283,956) (283,956)
Other (299) 4,532 4,233
------ ---------- ---------- -------- ----------
Balance June 30, 1998 $1,585 $1,599,435 $ 905,556 $(3,330) $2,503,246
Twelve Months Ended June 30, 1997
Balance at July 1, 1996 $1,577 $1,594,920 $ 982,076 $(1,640) $2,576,933
Comprehensive income
Net income 338,222 $338,222 338,222
Other comprehensive income,
net of tax
Foreign currency translation
adjustment (153) (153)
Minimum pension liability
adjustment (180) (180)
--------
Other comprehensive income
(loss) total (333) (333)
--------
Comprehensive income total $337,889
========
Treasury shares purchased (14) (54,070) (54,084)
Treasury shares reissued 14 29,647 29,661
Costs of reacquisition of
preferred stock of subsidiary (18,391) (18,391)
Dividends on common stock (see
page 8 for per share amounts) (280,668) (280,668)
Other 36 (29) 7
------ ---------- ----------- ------- ----------
Balance June 30, 1997 $1,577 $1,570,533 $1,021,210 $(1,973) $2,591,347
<FN>
The accompanying notes as they relate to Cinergy Corp. are an integral part of these consolidated financial statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CINERGY CORP.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited)
<S> <C> <C> <C> <C>
Year to Date Twelve Months Ended
June 30 June 30
1998 1997 1998 1997
(in thousands)
Operating Activities
Net income $ 80,138 $ 169,606 $ 163,770 $ 338,222
Items providing (using) cash currently:
Depreciation 147,095 143,727 292,445 285,698
Reserves related to electric trading business 67,000 - 71,000 -
WVPA settlement 80,000 - 80,000 -
Deferred income taxes and investment tax
credits - net (61,871) 8,146 (2,379) 23,275
Equity in earnings of unconsolidated subsidiaries (21,571) (38,680) (18,130) (61,677)
Extraordinary item - equity share of windfall
profits tax - - 109,400 -
Allowance for equity funds used during
construction (132) (371) 141 (748)
Regulatory assets - net 36,171 38,881 68,600 57,144
Changes in current assets and current
liabilities
Restricted deposits 812 (224) 438 (270)
Accounts and notes receivable, net of
reserves on receivables sold (1,456) 25,529 (244,142) (37,429)
Materials, supplies, and fuel (4,667) 20,980 (3,830) 52,803
Accounts payable 40,353 7,025 216,624 54,493
Litigation settlement - - - (80,000)
Accrued taxes and interest (11,038) 9,548 (42,000) 20,008
Other items - net 23,850 (56,281) 108,306 (2,345)
--------- --------- --------- ---------
Net cash provided by operating
activities 374,684 327,886 800,243 653,864
Financing Activities
Issuance of common stock 290 - 2,356 -
Issuance of long-term debt 321,921 - 421,983 150,217
Retirement of preferred stock of subsidiaries (85,269) (114) (101,424) (197,487)
Redemption of long-term debt (220,409) (206,312) (350,409) (282,375)
Change in short-term debt 972 182,642 10,141 347,359
Dividends on common stock (141,599) (141,910) (283,555) (280,668)
--------- --------- --------- ---------
Net cash used in financing activities (124,094) (165,694) (300,908) (262,954)
Investing Activities
Construction expenditures (less allowance
for equity funds used during construction) (144,524) (144,372) (328,207) (341,600)
Acquisition of businesses (net of cash acquired) (46,141) - (46,141) -
Deferred demand-side management costs (4,703) (10,783) (13,787) (37,921)
Investments in unconsolidated subsidiaries (21,598) - (50,630) (46,351)
--------- --------- --------- ---------
Net cash used in investing activities (216,966) (155,155) (438,765) (425,872)
Net increase (decrease) in cash and
temporary cash investments 33,624 7,037 60,570 (34,962)
Cash and temporary cash investments at
beginning of period 53,310 19,327 26,364 61,326
--------- --------- --------- ---------
Cash and temporary cash investments at
end of period $ 86,934 $ 26,364 $ 86,934 $ 26,364
<FN>
The accompanying notes as they relate to Cinergy Corp. are an integral part of these consolidated financial
statements.
</FN>
</TABLE>
<PAGE>
CINERGY CORP.
Below is information concerning the consolidated results of operations for
Cinergy for the quarter, six months, and twelve months ended June 30, 1998. For
information concerning the results of operations for each of the other
registrants for the quarter and six months ended June 30, 1998, see the
discussion under the heading "Results of Operations" following the financial
statements of each company.
RESULTS OF OPERATIONS FOR THE QUARTER ENDED JUNE 30, 1998
Kwh Sales
Kwh sales increased 25.5% for the quarter ended June 30, 1998, from the
comparable period of last year, primarily reflecting increased activity in
Cinergy's power marketing and trading operations which led to higher non-firm
power sales for resale. Also contributing to the higher kwh sales level was an
increase in residential and commercial sales due to the return to more normal
weather conditions for the quarter ended June 30, 1998, as compared to the same
period last year, and an increase in industrial sales primarily reflecting
growth in the chemicals, transportation equipment, and miscellaneous
manufacturers sectors.
Mcf Sales and Transportation
Mcf gas sales and transportation volumes for the quarter ended June 30, 1998,
decreased when compared to the same period in 1997. The decline in Mcf sales was
partially offset by an increase in gas transportation volumes as customers
continued the trend of purchasing gas directly from suppliers, using
transportation services provided by Cinergy.
Operating Revenues
Electric Operating Revenues
Electric operating revenues for the quarter ended June 30, 1998, increased $231
million (29%), as compared to the same period last year, primarily as a result
of the increased kwh sales discussed above. Also contributing to the increase
was a higher average price received on non-firm power transactions.
An analysis of electric operating revenues is shown below:
Quarter
Ended June 30
(in millions)
Electric operating revenues - June 30, 1997 $ 791
Increase (Decrease) due to change in:
Price per kwh
Retail (3)
Sales for resale
Firm power obligations 2
Non-firm power transactions 89
Total change in price per kwh 88
Kwh sales
Retail 50
Sales for resale
Firm power obligations 10
Non-firm power transactions 80
Total change in kwh sales 140
Other 3
Electric operating revenues - June 30, 1998 $1,022
Gas Operating Revenues
The increasing trend of industrial customers purchasing gas directly from
producers and utilizing CG&E facilities to transport the gas continues to put
downward pressure on gas operating revenues. Since providing transportation
services does not necessitate recovery of the cost of gas purchased, the revenue
per Mcf transported is less than the revenue per Mcf sold. As a result, a higher
relative volume of gas transported to gas sold translates into lower gas
operating revenues.
Gas operating revenues decreased $25 million (33%) in the second quarter of
1998, when compared to the same period last year, primarily due to the decline
in volume sales discussed above and the aforementioned trend toward increased
transportation services.
Operating Expenses
Fuel Used in Electric Production
Electric fuel costs increased $21 million (16%) for the quarter ended June 30,
1998, as compared to the same period last year.
An analysis of these fuel costs is shown below:
Quarter
Ended June 30
(in millions)
Fuel expense - June 30, 1997 $135 Increase (Decrease) due to change in:
Price of fuel (2)
Deferred fuel cost 7
Kwh generation 16
----
Fuel expense - June 30, 1998 $156
Gas Purchased
Gas purchased for the quarter ended June 30, 1998, decreased $14 million (40%),
when compared to the same period last year, primarily due to a decrease in the
volumes of gas purchased, due to lower demand.
Purchased and Exchanged Power
Purchased and exchanged power increased $245 million for the quarter ended June
30, 1998, when compared to the same period last year, primarily reflecting
increased purchases of non-firm power for resale to others as a result of
increased activity in Cinergy's power marketing and trading operations and the
provision of $61 million of reserves for the electric trading business recorded
during the second quarter of 1998 (see Note 9 of the "Notes to Financial
Statements" in "Part I. Financial Information").
Other Operation
Other operation expenses for the quarter ended June 30, 1998, increased $79
million (50%), as compared to the same period of 1997. This increase is
primarily due to the one-time charge of $80 million recorded during the second
quarter of 1998, reflecting the implementation of a 1989 settlement of a dispute
with the WVPA (see Note 14 of the "Notes to Financial Statements" in "Part I.
Financial Information"). This increase also reflects a provision of $4 million
recorded in the second quarter of 1998 for potential bad debts related to
certain power marketing and trading accounts.
Maintenance
For the quarter ended June 30, 1998, maintenance expenses increased $4 million
(9%), when compared to the quarter ended June 30, 1997. This increase is
primarily due to forced outages at Conesville and Beckjord and an increase in
overhead line maintenance costs resulting from storm damage during the second
quarter of 1998.
Amortization of Phase-in Deferrals
Amortization of phase-in deferrals reflects the PUCO ordered phase-in plan for
Zimmer.
Other Income and Expenses - Net
Equity in Earnings of Unconsolidated Subsidiaries
The $2 million (20%) decrease in equity in earnings of unconsolidated
subsidiaries for the quarter ended June 30, 1998, as compared to the same period
of 1997, is primarily attributable to the decrease in earnings of Midlands.
Other - net
The change in other - net of $5 million for the quarter ended June 30, 1998,
from the same period of 1997, is primarily due to an increase in expenses
related to Cinergy Global Power, which was formed in September 1997, a higher
level of expenses associated with PSI's sales of accounts receivable during the
second quarter of 1998, and expenses related to the acquisitions and start-up
costs of other non-regulated entities.
Interest and Other Charges
Other Interest
Other interest increased $5 million (40%) for the second quarter of 1998, as
compared to the same period last year, partially due to increased interest on
the currency swap, interest expense recognized on a settlement agreement between
PSI and WVPA (see Note 14 of the "Notes to Financial Statements" in "Part I.
Financial Information"), and increased short-term borrowings.
Preferred Dividend Requirements of Subsidiaries
The decrease in preferred dividend requirements of subsidiaries of $2 million
(58%) for the quarter ended June 30, 1998, from the same period of 1997, is
primarily attributable to PSI's redemption of all outstanding shares of its
7.15% Series Cumulative Preferred Stock and 7.44% Series Cumulative Preferred
Stock on September 1, 1997, and March 1, 1998, respectively.
RESULTS OF OPERATIONS FOR THE SIX MONTHS ENDED JUNE 30, 1998
Kwh Sales
Kwh sales increased 47.3% for the six months ended June 30, 1998, from the
comparable period of last year, primarily reflecting increased activity in
Cinergy's power marketing and trading operations which led to higher non-firm
power sales for resale. Also contributing to the higher kwh sales levels was an
increase in industrial sales primarily reflecting growth in the transportation
equipment and miscellaneous manufacturers sectors, and increases in the average
number of residential and commercial customers.
Mcf Sales and Transportation
Mcf gas sales and transportation volumes for the six months ended June 30, 1998,
decreased when compared to the same period in 1997. Decreased Mcf sales reflect,
in part, milder weather during the first quarter of 1998, as compared to the
same period of 1997, and were partially offset by an increase in the average
number of residential and commercial customers. Industrial sales declined and
gas transportation volumes increased as customers continued the trend of
purchasing gas directly from suppliers, using transportation services provided
by CG&E.
Operating Revenues
Electric Operating Revenues
Electric operating revenues for the six months ended June 30, 1998, increased
$572 million (36%), as compared to the same period last year, primarily as a
result of the increased kwh sales previously discussed. Also contributing to the
increase was a higher average price received on non-firm power transactions.
An analysis of electric operating revenues is shown below:
Six Months
Ended June 30
(in millions)
Electric operating revenues - June 30, 1997 $1,609
Increase due to change in:
Price per kwh
Retail 13
Sales for resale
Non-firm power transactions 105
Total change in price per kwh 118
Kwh sales
Retail 58
Sales for resale
Firm power obligations 10
Non-firm power transactions 380
Total change in kwh sales 448
Other revenues 6
Electric operating revenues - June 30, 1998 $2,181
Gas Operating Revenues
For a discussion of the continued trend of downward pressure on gas operating
revenues from increased transportation services, refer to the discussion under
the heading "Gas Operating Revenues" for Cinergy in "Results of Operations for
the Quarter Ended June 30, 1998."
Gas operating revenues decreased $64 million (22%) for the six months ended June
30, 1998, when compared to the same period last year. This decrease is primarily
due to the previously discussed changes in Mcf sales and transportation volumes.
Operating Expenses
Fuel Used in Electric Production
Electric fuel costs increased $26 million (8%) for the first six months of 1998,
as compared to the same period last year.
An analysis of these fuel costs is shown below:
Six Months
Ended June 30
(in millions)
Fuel expense - June 30, 1997 $310 Increase (Decrease) due to change in:
Price of fuel (8)
Deferred fuel cost 17
Kwh generation 17
----
Fuel expense - June 30, 1998 $336
Gas Purchased
Gas purchased for the six months ended June 30, 1998, decreased $42 million
(26%) when compared to the same period last year, reflecting a decrease in the
volume of gas purchased, due to lower demand, and a lower average cost per Mcf
purchased.
Purchased and Exchanged Power
Purchased and exchanged power increased $556 million for the six months ended
June 30, 1998, when compared to the same period last year, primarily reflecting
increased purchases of non-firm power for resale to others as a result of
increased activity in Cinergy's power marketing and trading operations and the
provision of $63 million of reserves for the electric trading business recorded
during 1998 (see Note 9 of the "Notes to Financial Statements" in "Part I.
Financial Information").
Other Operation
Other operation expenses for the first six months of 1998 increased by $78
million (24%), as compared to the same period of 1997. This increase is
primarily due to the one-time charge of $80 million recorded during the second
quarter of 1998, reflecting the implementation of a 1989 settlement of a dispute
with the WVPA (see Note 14 of the "Notes to Financial Statements" in "Part I.
Financial Information"). This increase also reflects a provision of $4 million
for potential bad debts related to certain power marketing and trading accounts
recorded during the six months ended June 30, 1998.
Amortization of Phase-in Deferrals
Amortization of phase-in deferrals reflects the PUCO ordered phase-in plan for
Zimmer.
Other Income and Expenses - Net
Equity in Earnings of Unconsolidated Subsidiaries
The $17 million (44%) decrease in equity in earnings of unconsolidated
subsidiaries for the six months ended June 30, 1998, as compared to the same
period of 1997, is primarily attributable to the decrease in earnings of
Midlands, which is due to milder weather conditions during the first quarter of
1998, and a penalty imposed on each electric distribution company due to the
delay in opening the electricity supply business to competition.
Other - net
The change in other - net of $21 million for the six months ended June 30, 1998,
from the same period of 1997, is primarily due to a litigation settlement (see
Note 10 of the "Notes to Financial Statements" in "Part I. Financial
Information"), an increase in expenses related to Cinergy Global Power, which
was formed in September 1997, and expenses related to the acquisitions and
start-up costs of other non-regulated entities.
Interest and Other Charges
Interest on Long-term Debt
Interest on long-term debt decreased $7 million (7%) for the six months ended
June 30, 1998, as compared to the same period last year, primarily due to the
net redemption of approximately $190 million of long-term debt by CG&E and ULH&P
during the period from March 1997 through June 1998.
Other Interest
Other interest increased $10 million (35%) for the first half of 1998, as
compared to the same period last year, primarily due to increased interest
expense on the currency swap, which was initiated in mid-February 1997, interest
expense recognized on a settlement agreement between PSI and WVPA (see Note 14
of the "Notes to Financial Statements" in "Part I. Financial Information"), and
increased short-term borrowings.
Preferred Dividend Requirements of Subsidiaries
The decrease in preferred dividend requirements of subsidiaries of $3 million
(41%) for the six months ended June 30, 1998, from the same period of 1997, is
primarily attributable to PSI's redemption of all outstanding shares of its
7.15% Series Cumulative Preferred Stock and 7.44% Series Cumulative Preferred
Stock on September 1, 1997, and March 1, 1998, respectively.
RESULTS OF OPERATIONS FOR THE TWELVE MONTHS ENDED JUNE 30, 1998
Kwh Sales
Kwh sales increased 71.5% for the twelve months ended June 30, 1998, from the
comparable period of last year, primarily reflecting increased activity in
Cinergy's power marketing and trading operations which led to higher non-firm
power sales for resale. Also contributing to the higher kwh sales levels was an
increase in residential and commercial sales due to an increase in the average
number of residential and commercial customers, and an increase in industrial
sales primarily reflecting growth in the miscellaneous manufacturers and primary
metals sectors.
Mcf Sales and Transportation
Mcf gas sales and transportation volumes for the twelve months ended June 30,
1998, decreased when compared to the same period in 1997. Decreased Mcf sales
reflect, in part, milder weather during the period, as compared to the same
period a year ago and were partially offset by an increase in the average number
of residential and commercial customers. Industrial sales declined and gas
transportation volumes increased as customers continued the trend of purchasing
gas directly from suppliers, using transportation services provided by CG&E.
Operating Revenues
Electric Operating Revenues
Compared to the same period last year, electric operating revenues for the
twelve months ended June 30, 1998, increased $1.4 billion (46%), reflecting the
increased kwh sales discussed above.
An analysis of electric operating revenues is shown below:
Twelve Months
Ended June 30
(in millions)
Electric operating revenues - June 30, 1997 $3,042
Increase (Decrease) due to change in:
Price per kwh
Retail 14
Sales for resale
Firm power obligations (2)
Non-firm power transactions 231
Total change in price per kwh 243
Kwh sales
Retail 91
Sales for resale
Firm power obligations 22
Non-firm power transactions 1,026
Total change in kwh sales 1,139
Other 10
Electric operating revenues - June 30, 1998 $4,434
Gas Operating Revenues
For a discussion of the continued trend of downward pressure on gas operating
revenues from increased transportation services, refer to the discussion under
the caption "Gas Operating Revenues" for Cinergy in "Results of Operations for
the Quarter Ended June 30, 1998."
Gas operating revenues decreased $69 million (14%) for the twelve months ended
June 30, 1998, when compared to the same period last year. This decrease was
largely the result of the previously discussed changes in Mcf sales and
transportation volumes.
Operating Expenses
Fuel Used in Electric Production
Electric fuel costs increased $51 million (8%) for the twelve months ended June
30, 1998, as compared to the same period last year.
An analysis of these fuel costs is shown below:
Twelve Months
Ended June 30
(in millions)
Fuel expense - June 30, 1997 $668
Increase due to change in:
Price of fuel 4
Kwh generation 47
Fuel expense - June 30, 1998 $719
Gas Purchased
Gas purchased for the twelve months ended June 30, 1998, decreased $51 million
(19%) when compared to the same period last year, reflecting a lower volume of
gas purchased, due to lower demand, and a decrease in the average cost per Mcf
purchased.
Purchased and Exchanged Power
Purchased and exchanged power increased $1.3 billion for the twelve months ended
June 30, 1998, when compared to the same period of last year, primarily
reflecting increased purchases of non-firm power for resale to others as a
result of increased activity in Cinergy's power marketing and trading operations
and the provision of $67 million of reserves for the electric trading business
recorded during the period (see Note 9 of the "Notes to Financial Statements" in
"Part I. Financial Information").
Other Operation
Other operation expenses increased $91 million (14%) for the twelve months ended
June 30, 1998, as compared to the same period last year, primarily due to the
one-time charge of $80 million recorded during the second quarter of 1998,
reflecting the implementation of a 1989 settlement of a dispute with the WVPA
(see Note 14 of the "Notes to Financial Statements" in "Part I. Financial
Information"). This increase also reflects a provision of $4 million recorded in
the second quarter of 1998 for potential bad debts related to certain power
marketing and trading accounts.
Maintenance
Maintenance expenses decreased $25 million (13%) for the twelve months ended
June 30, 1998, as compared to the twelve months ended June 30, 1997, primarily
due to decreased outage-related expenses at PSI's and CG&E's production
facilities.
Amortization of Phase-in Deferrals
Amortization of phase-in deferrals reflects the PUCO ordered phase-in plan for
Zimmer.
Amortization of Post-in-service Deferred Operating Expenses
Amortization of post-in-service deferred operating expenses reflects the
amortization and related recovery in rates of various deferrals of depreciation,
operation and maintenance expenses (exclusive of fuel costs), and property taxes
on certain generating units and other utility plant from the in-service date
until the related plant was reflected in retail rates.
Other Income and Expenses - Net
Equity in Earnings of Unconsolidated Subsidiaries
The $18 million (30%) decrease in equity in earnings of unconsolidated
subsidiaries for the twelve months ended June 30, 1998, as compared to the same
period of 1997, is partially attributable to the decrease in earnings of
Midlands, which is due to milder weather conditions and a penalty imposed on
each electric distribution company due to the delay in opening the electricity
supply business to competition. The decrease also reflects losses recognized on
several non-utility subsidiaries.
Other - net
The change in other - net of $15 million for the twelve months ended June 30,
1998, from the same period of 1997, is primarily due to a litigation settlement
(see Note 10 of the "Notes to Financial Statements" in "Part I. Financial
Information"). Additionally, the change also reflects a gain in 1996 related to
the sale of certain CG&E assets.
Interest and Other Charges
Interest on Long-term Debt
Interest on long-term debt decreased $13 million (7%) for the twelve months
ended June 30, 1998, as compared to the same period last year, primarily due to
the net redemption of approximately $190 million of long-term debt by CG&E and
ULH&P during the period from March 1997 through June 1998.
Other Interest
Other interest increased $19 million (38%) for the twelve months ended June 30,
1998, as compared to the same period last year, partially due to increased
interest expense on the currency swap, which was initiated in mid-February 1997,
interest expense recognized on a settlement agreement between PSI and WVPA (see
Note 14 of the "Notes to Financial Statements" in "Part I. Financial
Information"), and increased short-term borrowings.
Preferred Dividend Requirements of Subsidiaries
The decrease in preferred dividend requirements of subsidiaries of $6 million
(39%) for the twelve months ended June 30, 1998, from the same period of 1997,
is primarily attributable to the September 1996 reacquisition and retirement of
approximately 90 percent of the outstanding preferred stock of CG&E.
Additionally, PSI redeemed all outstanding shares of its 7.15% Series Cumulative
Preferred Stock and 7.44% Series Cumulative Preferred Stock on September 1,
1997, and March 1, 1998, respectively.
<PAGE>
THE CINCINNATI GAS &
ELECTRIC COMPANY
AND SUBSIDIARY COMPANIES
<PAGE>
THE CINCINNATI GAS & ELECTRIC COMPANY
CONSOLIDATED BALANCE SHEETS
ASSETS
June 30 December 31
1998 1997
(unaudited)
(dollars in thousands)
Utility Plant - Original Cost
In service
Electric $4,729,327 $4,700,631
Gas 759,774 746,903
Common 186,236 186,078
---------- ----------
5,675,337 5,633,612
Accumulated depreciation 2,082,014 2,008,005
---------- ----------
3,593,323 3,625,607
Construction work in progress 143,734 118,133
---------- ----------
Total utility plant 3,737,057 3,743,740
Current Assets
Cash and temporary cash investments 12,673 2,349
Restricted deposits 1,173 1,173
Notes receivable from affiliated companies 73,442 27,193
Accounts receivable less accumulated
provision for doubtful accounts of $11,799
at June 30, 1998, and $9,199 at
December 31, 1997 173,035 193,549
Accounts receivable from affiliated
companies 32,216 35,507
Materials, supplies, and fuel - at average cost
Fuel for use in electric production 26,867 29,682
Gas stored for current use 25,734 29,174
Other materials and supplies 40,193 49,111
Prepayments and other 52,130 31,827
---------- ----------
437,463 399,565
Other Assets
Regulatory assets
Amounts due from customers - income taxes 372,567 350,515
Post-in-service carrying costs and
deferred operating expenses 131,261 134,672
Deferred merger costs 16,090 16,557
Deferred demand-side management costs 37,573 38,318
Phase-in deferred return and depreciation 82,233 89,689
Unamortized costs of reacquiring debt 36,051 36,575
Other 4,575 1,439
Other 90,118 103,368
---------- ----------
770,468 771,133
$4,944,988 $4,914,438
The accompanying notes as they relate to The Cincinnati Gas & Electric Company
are an integral part of these consolidated financial statements.
<PAGE>
THE CINCINNATI GAS & ELECTRIC COMPANY
CAPITALIZATION AND LIABILITIES
June 30 December 31
1998 1997
(unaudited)
(dollars in thousands)
Common Stock Equity
Common stock - $8.50 par value; authorized shares - 120,000,000; outstanding
shares - 89,663,086 at June 30, 1998, and
December 31, 1997 $ 762,136 $ 762,136
Paid-in capital 534,668 534,649
Retained earnings 312,799 314,553
Accumulated other comprehensive income (904) (750)
---------- ----------
Total common stock equity 1,608,699 1,610,588
Cumulative Preferred Stock
Not subject to mandatory redemption 20,735 20,793
Long-term Debt 1,219,487 1,324,432
---------- ----------
Total capitalization 2,848,921 2,955,813
Current Liabilities
Long-term debt due within one year 110,000 -
Notes payable and other short-term
obligations 214,000 289,000
Notes payable to affiliated companies 11,362 12,253
Accounts payable 267,277 249,538
Accounts payable to affiliated companies 13,339 10,821
Accrued taxes 167,240 149,129
Accrued interest 18,094 25,430
Other 28,009 29,950
---------- ----------
829,321 766,121
Other Liabilities
Deferred income taxes 815,233 794,396
Unamortized investment tax credits 113,898 116,966
Accrued pension and other postretirement
benefit costs 156,796 180,566
Other 180,819 100,576
---------- ----------
1,266,746 1,192,504
$4,944,988 $4,914,438
<PAGE>
<TABLE>
<CAPTION>
THE CINCINNATI GAS & ELECTRIC COMPANY
CONSOLIDATED STATEMENTS OF INCOME AND COMPREHENSIVE INCOME
(unaudited)
<S> <C> <C> <C> <C> <C> <C>
Quarter Ended Year to Date
June 30 June 30
1998 1997 1998 1997
(in thousands)
Operating Revenues
Electric
Non-affiliated companies $521,198 $404,117 $1,096,039 $ 799,742
Affiliated companies 18,444 7,785 36,908 13,860
Gas
Non-affiliated companies 50,082 74,757 223,142 287,023
Affiliated companies 388 1 790 2
-------- -------- ---------- ----------
590,112 486,660 1,356,879 1,100,627
Operating Expenses
Fuel used in electric production 77,642 60,358 165,705 130,597
Gas purchased 21,657 35,826 118,245 159,794
Purchased and exchanged power
Non-affiliated companies 230,665 93,909 460,159 164,771
Affiliated companies 10,133 3,065 17,747 4,637
Other operation 77,266 79,897 158,913 159,172
Maintenance 27,901 23,957 47,659 51,293
Depreciation 41,588 40,878 82,886 81,282
Amortization of phase-in deferrals 5,540 3,370 11,079 6,741
Amortization of post-in-service
deferred operating expenses 822 822 1,645 1,645
Income taxes 8,806 27,037 53,419 70,837
Taxes other than income taxes 53,712 52,507 108,395 106,021
-------- -------- ---------- ----------
555,732 421,626 1,225,852 936,790
Operating Income 34,380 65,034 131,027 163,837
Other Income and Expenses - Net
Allowance for equity funds used
during construction 97 87 107 206
Phase-in deferred return 1,811 2,002 3,622 4,004
Income taxes 3,844 3,730 7,672 6,736
Other - net (2,273) (4,261) (6,588) (9,036)
-------- -------- ---------- ----------
3,479 1,558 4,813 1,910
Income Before Interest 37,859 66,592 135,840 165,747
Interest
Interest on long-term debt 24,415 27,831 50,467 57,876
Other interest 2,269 2,562 4,370 4,258
Allowance for borrowed funds
used during construction (1,511) (1,231) (2,875) (2,140)
-------- -------- ---------- ----------
25,173 29,162 51,962 59,994
Net Income $ 12,686 $ 37,430 $ 83,878 $ 105,753
Preferred Dividend Requirement 215 217 430 436
-------- -------- ---------- ----------
Net Income Applicable to Common
Stock $ 12,471 $ 37,213 $ 83,448 $ 105,317
Other Comprehensive Income, Net
of Tax - - (155) -
-------- -------- ---------- -------
Comprehensive Income $ 12,471 $ 37,213 $ 83,293 $ 105,317
<FN>
The accompanying notes as they relate to The Cincinnati Gas & Electric Company
are an integral part of these consolidated financial statements.
</FN>
</TABLE>
<PAGE>
THE CINCINNATI GAS & ELECTRIC COMPANY
CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited)
Year to Date
June 30
1998 1997
(in thousands)
Operating Activities
Net income $ 83,878 $ 105,753
Items providing (using) cash currently:
Depreciation 82,886 81,282
Reserves related to electric trading
business 59,000 -
Deferred income taxes and investment tax
credits - net (14,433) 15,055
Allowance for equity funds used during
construction (107) (206)
Regulatory assets - net 15,541 15,011
Changes in current assets and current
liabilities
Restricted deposits - (2)
Accounts and notes receivable, net of
reserves on receivables sold (22,325) 45,703
Materials, supplies, and fuel 15,173 10,429
Accounts payable 20,257 (4,353)
Accrued taxes and interest 10,775 (2,802)
Other items - net (4,146) (29,645)
--------- ---------
Net cash provided by operating
activities 246,499 236,225
Financing Activities
Retirement of preferred stock (39) (113)
Issuance of long-term debt 223,020 -
Redemption of long-term debt (220,409) (160,612)
Change in short-term debt (75,891) 87,398
Dividends on preferred stock (430) (438)
Dividends on common stock (85,200) (85,200)
--------- ---------
Net cash used in financing
activities (158,949) (158,965)
Investing Activities
Construction expenditures (less allowance
for equity funds used during construction) (75,571) (67,963)
Deferred demand-side management costs (1,655) (4,708)
Net cash used in investing
activities (77,226) (72,671)
Net increase in cash and temporary cash
investments 10,324 4,589
Cash and temporary cash investments at
beginning of period 2,349 5,120
--------- ---------
Cash and temporary cash investments at
end of period $ 12,673 $ 9,709
The accompanying notes as they relate to The Cincinnati Gas & Electric Company
are an integral part of these consolidated financial statements.
<PAGE>
THE CINCINNATI GAS & ELECTRIC COMPANY
RESULTS OF OPERATIONS FOR THE QUARTER ENDED JUNE 30, 1998
Kwh Sales
Kwh sales for the quarter ended June 30, 1998, increased 25.2%, as compared to
the second quarter of 1997, primarily due to higher non-firm power sales for
resale resulting from increased activity in Cinergy's power marketing and
trading operations, increased residential and commercial sales due to a return
to more normal weather in the second quarter of 1998, as compared to the
relatively mild weather during the second quarter of 1997, and an increase in
the average number of residential and commercial customers, and an increase in
industrial sales primarily reflecting growth in the chemicals and the
miscellaneous manufacturers sectors. Nonsystem kwh sales (and related revenues
and expenses) resulting from Cinergy's power marketing and trading operations
are allocated 50%/50% between CG&E and PSI pursuant to the operating agreements
filed with the companies' regulators.
Mcf Sales and Transportation
Mcf gas sales and transportation volumes for the quarter ended June 30, 1998,
decreased when compared to the same period in 1997. The decline in Mcf sales was
partially offset by an increase in gas transportation volumes as customers
continued the trend of purchasing gas directly from suppliers, using
transportation services provided by CG&E.
Operating Revenues
Electric Operating Revenues
Electric operating revenues increased $128 million (31%) for the quarter ended
June 30, 1998, from the comparable period of 1997. This increase is primarily a
result of the increased kwh sales previously discussed, higher average price
received on non-firm power transactions, and the operation of fuel adjustment
clauses reflecting a higher average cost per kwh.
An analysis of electric operating revenues is shown below:
Quarter
Ended June 30
(in millions)
Electric operating revenues - June 30, 1997 $412
Increase due to change in:
Price per kwh
Retail 11
Sales for resale
Non-firm power transactions 49
Total change in price per kwh 60
Kwh sales
Retail 25
Sales for resale
Firm power 1
Non-firm power transactions 41
Total change in kwh sales 67
Other 1
Electric operating revenues - June 30, 1998 $540
Gas Operating Revenues
The increasing trend of industrial customers purchasing gas directly from
producers and utilizing CG&E facilities to transport the gas continues to put
downward pressure on gas operating revenues. Since providing transportation
services does not necessitate recovery of the cost of gas purchased, the revenue
per Mcf transported is less than the revenue per Mcf sold. As a result, a higher
relative volume of gas transported to gas sold translates into lower gas
operating revenues.
Gas operating revenues decreased $24 million (32%) in the second quarter of
1998, when compared to the same period last year, primarily due to the decline
in volume sales discussed above and the aforementioned trend toward increased
transportation services.
Operating Expenses
Fuel Used in Electric Production
Electric fuel costs increased $17 million (29%) for the quarter ended June 30,
1998, as compared to the same period last year.
An analysis of these fuel costs is shown below:
Quarter
Ended June 30
(in millions)
Fuel expense - June 30, 1997 $60
Increase due to change in:
Deferred fuel cost 14
Kwh generation 3
Fuel expense - June 30, 1998 $77
Gas Purchased
Gas purchased for the quarter ended June 30, 1998, decreased $14 million (40%),
when compared to the same period last year, primarily due to a decrease in the
volumes of gas purchased, due to lower demand.
Purchased and Exchanged Power
Purchased and exchanged power for the quarter ended June 30, 1998, increased
$144 million over the comparable period of 1997, primarily reflecting increased
purchases of non-firm power for resale to others as a result of increased
activity in Cinergy's power marketing and trading operations and the provision
of additional reserves of $56 million for the electric trading business recorded
during the second quarter of 1998 (see Note 9 of the "Notes to Financial
Statements" in "Part I. Financial Information").
Maintenance
The $4 million (16%) increase in maintenance expenses for the quarter ended June
30, 1998, as compared to the same period of 1997, is primarily due to forced
outages at Conesville and Beckjord and an increase in overhead line maintenance
costs resulting from storm damage during the second quarter of 1998.
Amortization of Phase-in Deferrals
Amortization of phase-in deferrals reflects the PUCO-ordered phase-in plan for
Zimmer.
Interest
Interest on Long-term Debt
Interest on long-term debt decreased $3 million (12%) for the quarter ended June
30, 1998, as compared to the same period of 1997, primarily due to the net
redemption of approximately $174 million of long-term debt during the period
from April 1997 through June 1998.
RESULTS OF OPERATIONS FOR THE SIX MONTHS ENDED JUNE 30, 1998
Kwh Sales
Kwh sales for the six months ended June 30, 1998, increased 50.4%, as compared
to the six months ended June 30, 1997, primarily due to higher non-firm power
sales for resale resulting from increased activity in Cinergy's power marketing
and trading operations, increased residential and commercial sales due to an
increase in the average number of residential and commercial customers, and
increased industrial sales primarily reflecting growth in the chemicals,
miscellaneous manufacturers and primary metals sectors. Nonsystem kwh sales (and
related revenues and expenses) resulting from Cinergy's power marketing and
trading operations are allocated 50%/50% between CG&E and PSI pursuant to the
operating agreements filed with the companies' regulators.
Mcf Sales and Transportation
Mcf gas sales and transportation volumes for the six months ended June 30, 1998,
decreased when compared to the same period in 1997. Decreased Mcf sales reflect,
in part, milder weather during the first quarter of 1998, as compared to the
same period of 1997, and were partially offset by an increase in the average
number of residential and commercial customers. Industrial sales declined and
gas transportation volumes increased as customers continued the trend of
purchasing gas directly from suppliers, using transportation services provided
by CG&E.
Operating Revenues
Electric Operating Revenues
Electric operating revenues increased $319 million (39%) for the six months
ended June 30, 1998, from the comparable period of 1997. This increase is
primarily a result of the increased kwh sales previously discussed, a higher
average price received on non-firm power transactions, and the operation of fuel
adjustment clauses reflecting a higher average cost per kwh.
An analysis of electric operating revenues is shown below:
Six Months
Ended June 30
(in millions)
Electric operating revenues - June 30, 1997 $ 814
Increase (Decrease) due to change in:
Price per kwh
Retail 32
Sales for resale
Firm power (1)
Non-firm power transactions 71
Total change in price per kwh 102
Kwh sales
Retail 23
Sales for resale
Non-firm power transactions 192
Total change in kwh sales 215
Other 2
Electric operating revenues - June 30, 1998 $1,133
Gas Operating Revenues
For a discussion of the continued trend of downward pressure on gas operating
revenues from increased transportation services, refer to the discussion under
the caption "Gas Operating Revenues" for CG&E in "Results of Operations for the
Quarter Ended June 30, 1998."
Gas operating revenues decreased $63 million (22%) for the six months ended June
30, 1998, when compared to the same period last year. This decrease is primarily
due to the previously discussed changes in Mcf sales and transportation volumes.
Operating Expenses
Fuel Used in Electric Production
Electric fuel costs increased $35 million (27%) for the six months ended June
30, 1998, as compared to the same period last year.
An analysis of these fuel costs is shown below:
Six Months
Ended June 30
(in millions)
Fuel expense - June 30, 1997 $131 Increase (Decrease) due to change in:
Price of fuel (1)
Deferred fuel cost 35
Kwh generation 1
---
Fuel expense - June 30, 1998 $166
Gas Purchased
Gas purchased for the six months ended June 30, 1998, decreased $42 million
(26%) when compared to the same period last year, reflecting a decrease in the
volumes of gas purchased, due to lower demand, and a lower average cost per Mcf
purchased.
Purchased and Exchanged Power
Purchased and exchanged power for the six months ended June 30, 1998, increased
$308 million over the comparable period of 1997, primarily reflecting increased
purchases of non-firm power for resale to others as a result of increased
activity in Cinergy's power marketing and trading operations and the provision
of reserves of $57 million for the electric trading business recorded in 1998
(see Note 9 of the "Notes to Financial Statements" in "Part I. Financial
Information").
Maintenance
The $4 million (7%) decrease in maintenance expenses for the six months ended
June 30, 1998, as compared to the same period of 1997, is primarily due to
decreased outage-related expenses. These decreases were offset in part by
overhead line maintenance costs resulting from storm damage during the second
quarter of 1998.
Amortization of Phase-in Deferrals
Amortization of phase-in deferrals reflects the PUCO-ordered phase-in plan for
Zimmer.
Other Income and Expenses - Net
Other - net
The change in other - net of $2 million for the six months ended June 30, 1998,
as compared to the same period of 1997, is due, in part, to a higher level of
expenses in the prior year associated with CG&E's and ULH&P's sales of accounts
receivable, an increase in interest revenue related to an increase in the
balance of short-term loans to affiliated companies through Cinergy's money pool
arrangement, and an adjustment recorded in the prior year related to the sale of
certain assets.
Interest
Interest on Long-term Debt
Interest on long-term debt decreased $7 million (13%) for the six months ended
June 30, 1998, as compared to the same period of 1997, primarily due to the net
redemption of $190 million of long-term debt during the period from March 1997
through June 1998.
<PAGE>
PSI ENERGY, INC.
AND SUBSIDIARY COMPANY
<PAGE>
PSI ENERGY, INC.
CONSOLIDATED BALANCE SHEETS
ASSETS
June 30 December 31
1998 1997
(unaudited)
(dollars in thousands)
Electric Utility Plant - Original Cost
In service $4,319,120 $4,280,551
Accumulated depreciation 1,840,484 1,792,317
---------- ----------
2,478,636 2,488,234
Construction work in progress 75,420 65,129
---------- ----------
Total electric utility plant 2,554,056 2,553,363
Current Assets
Cash and temporary cash investments 36,744 18,169
Restricted deposits 334 1,146
Notes receivable 84 110
Notes receivable from affiliated companies 11,367 21,998
Accounts receivable less accumulated
provision for doubtful accounts of $2,676
at June 30, 1998, and $1,183 at
December 31, 1997 227,227 197,898
Accounts receivable from affiliated companies 621 4,516
Materials, supplies, and fuel - at average cost
Fuel 45,405 28,234
Other materials and supplies 29,161 26,955
Prepayments and other 11,619 4,405
---------- ----------
362,562 303,431
Other Assets
Regulatory assets
Amounts due from customers - income taxes 25,670 23,941
Post-in-service carrying costs and
deferred operating expenses 43,296 43,832
Coal contract buyout costs 112,936 122,485
Deferred merger costs 71,594 73,789
Deferred demand-side management costs 54,220 71,278
Unamortized costs of reacquiring debt 28,391 29,667
Other 39,666 44,094
Other 114,753 127,945
---------- ----------
490,526 537,031
$3,407,144 $3,393,825
The accompanying notes as they relate to PSI Energy, Inc. are an integral part
of these consolidated financial statements.
<PAGE>
<TABLE>
<CAPTION>
PSI ENERGY, INC.
CAPITALIZATION AND LIABILITIES
<S> <C> <C>
June 30 December 31
1998 1997
(unaudited)
(dollars in thousands)
Common Stock Equity
Common stock - without par value; $0.01 stated value; authorized shares -
60,000,000; outstanding shares - 53,913,701
at June 30, 1998, and December 31, 1997 $ 539 $ 539
Paid-in capital 400,904 390,188
Retained earnings 577,438 636,519
Accumulated other comprehensive income (642) (1,586)
---------- ----------
Total common stock equity 978,239 1,025,660
Cumulative Preferred Stock
Not subject to mandatory redemption 71,953 157,196
Long-term Debt 950,425 826,470
---------- ----------
Total capitalization 2,000,617 2,009,326
Current Liabilities
Long-term debt due within one year 141,569 85,000
Notes payable and other short-term obligations 106,500 190,600
Notes payable to affiliated companies 88,919 16,435
Accounts payable 265,035 212,833
Accounts payable to affiliated companies 40,254 40,714
Accrued taxes 48,350 69,310
Accrued interest 18,026 21,369
Other 2,473 2,560
---------- ----------
711,126 638,821
Other Liabilities
Deferred income taxes 381,598 403,535
Unamortized investment tax credits 47,566 49,296
Accrued pension and other postretirement
benefit costs 108,196 116,576
Other 158,041 176,271
---------- ----------
695,401 745,678
$3,407,144 $3,393,825
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PSI ENERGY, INC.
CONSOLIDATED STATEMENTS OF INCOME (LOSS) AND COMPREHENSIVE INCOME (LOSS)
(unaudited)
<S> <C> <C> <C> <C>
Quarter Ended Year to Date
June 30 June 30
1998 1997 1998 1997
(in thousands)
Operating Revenues
Non-affiliated companies $500,723 $386,459 $1,084,607 $808,748
Affiliated companies 10,807 3,079 19,048 4,645
-------- -------- ---------- --------
511,530 389,538 1,103,655 813,393
Operating Expenses
Fuel 77,905 74,244 170,361 179,751
Purchased and exchanged power
Non-affiliated companies 209,255 101,455 451,645 191,185
Affiliated companies 17,932 7,799 35,832 13,868
Other operation 160,983 78,078 243,360 161,787
Maintenance 27,712 27,244 47,020 45,762
Depreciation 32,202 31,293 64,209 62,445
Amortization of post-in-service
deferred operating expenses 268 268 536 536
Income taxes (19,543) 13,067 6,718 33,292
Taxes other than income taxes 14,507 15,323 29,474 30,180
-------- -------- ---------- --------
521,221 348,771 1,049,155 718,806
Operating Income (Loss) (9,691) 40,767 54,500 94,587
Other Income and Expenses - Net
Allowance for equity funds used
during construction 14 93 25 165
Income taxes 1,358 117 1,675 (328)
Other - net 199 (133) 1,906 2,713
-------- -------- ---------- --------
1,571 77 3,606 2,550
Income (Loss) Before Interest (8,120) 40,844 58,106 97,137
Interest
Interest on long-term debt 19,420 17,146 37,126 36,376
Other interest 3,892 2,075 9,667 6,532
Allowance for borrowed funds
used during construction (414) (523) (997) (956)
-------- -------- ---------- --------
22,898 18,698 45,796 41,952
Net Income (Loss) $(31,018) $ 22,146 $ 12,310 $ 55,185
Preferred Dividend Requirement 1,150 3,019 3,358 6,039
-------- -------- ---------- --------
Net Income (Loss) Applicable to
Common Stock $(32,168) $ 19,127 $ 8,952 $ 49,146
Other comprehensive income,
net of tax - - 944 -
-------- -------- ---------- -----
Comprehensive Income (Loss) $(32,168) $ 19,127 $ 9,896 $ 49,146
<FN>
The accompanying notes as they relate to PSI Energy, Inc. are an integral part
of these consolidated financial statements.
</FN>
</TABLE>
<PAGE>
PSI ENERGY, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited)
Year to Date
June 30
1998 1997
(in thousands)
Operating Activities
Net income $ 12,310 $ 55,185
Items providing (using) cash currently:
Depreciation 64,209 62,445
Reserves related to electric trading business 8,000 -
WVPA settlement 80,000 -
Deferred income taxes and investment tax
credits - net (32,596) (6,916)
Allowance for equity funds used during
construction (25) (165)
Regulatory assets - net 20,630 23,870
Changes in current assets and current
liabilities
Restricted deposits 812 (222)
Accounts and notes receivable, net of
reserves on receivables sold (19,676) (52,661)
Materials, supplies, and fuel (19,377) 10,552
Accounts payable 51,742 32,054
Accrued taxes and interest (24,303) (11,516)
Other items - net (1,142) (5,203)
-------- --------
Net cash provided by operating
activities 140,584 107,423
Financing Activities
Issuance of long-term debt 98,901 -
Retirement of preferred stock (85,230) (1)
Redemption of long-term debt - (45,700)
Change in short-term debt (11,616) 73,844
Dividends on preferred stock (3,887) (6,039)
Dividends on common stock (56,800) (56,800)
-------- --------
Net cash used in financing activities (58,632) (34,696)
Investing Activities
Construction expenditures (less allowance
for equity funds used during construction) (60,329) (60,320)
Deferred demand-side management costs (3,048) (6,075)
Net cash used in investing activities (63,377) (66,395)
Net increase in cash and temporary cash
investments 18,575 6,332
Cash and temporary cash investments at
beginning of period 18,169 2,911
-------- --------
Cash and temporary cash investments at
end of period $ 36,744 $ 9,243
The accompanying notes as they relate to PSI Energy, Inc. are an integral part
of these consolidated financial statements.
<PAGE>
PSI ENERGY, INC.
RESULTS OF OPERATIONS FOR THE QUARTER ENDED JUNE 30, 1998
Kwh Sales
Kwh sales for the second quarter of 1998 increased 29.5%, as compared to the
same period last year, primarily due to higher non-firm power sales for resale
resulting from increased activity in Cinergy's power marketing and trading
operations. An increase in retail sales reflects higher industrial sales and a
higher average number of customers in all retail customer classes. The increased
industrial sales primarily reflect growth in the primary metals and
transportation equipment sectors. Also contributing to the higher kwh sales
levels was a return to more normal weather conditions when compared to the same
period last year. Nonsystem kwh sales (and related revenues and expenses)
resulting from Cinergy's power marketing and trading operations are allocated
50%/50% between CG&E and PSI pursuant to the operating agreements filed with the
companies' regulators.
Operating Revenues
Operating revenues increased $122 million (31%) for the quarter ended June 30,
1998, when compared to the same period last year, primarily as a result of the
increased kwh sales previously discussed and a higher average price on non-firm
power transactions.
An analysis of operating revenues is shown below:
Quarter
Ended June 30
(in millions)
Operating revenues - June 30, 1997 $390 Increase (Decrease) due to change in:
Price per kwh
Retail (13)
Sales for resale
Firm power obligations 2
Non-firm power transactions 46
Total change in price per kwh 35
Kwh sales
Retail 25
Sales for resale
Firm power obligations 9
Non-firm power transactions 50
Total change in kwh sales 84
Other 3
Operating revenues - June 30, 1998 $512
Operating Expenses
Fuel
Fuel costs increased $4 million (5%) for the second quarter of 1998, as compared
to the same period last year.
An analysis of fuel costs is shown below:
Quarter
Ended June 30
(in millions)
Fuel expense - June 30, 1997 $74 Increase (Decrease) due to change in:
Price of fuel (2)
Deferred fuel cost (7)
Kwh generation 13
---
Fuel expense - June 30, 1998 $78
Purchased and Exchanged Power
For the quarter ended June 30, 1998, purchased and exchanged power increased
$118 million, as compared to the same period last year, due primarily to
increased purchases of non-firm power for resale to others as a result of
increased activity in Cinergy's power marketing and trading operations. In
addition, a provision of $5 million of reserves for the electric trading
business was recorded during the second quarter of 1998 (see Note 9 of "Notes to
Financial Statements" in "Part I. Financial Information").
Other Operation
Other operation expenses increased $83 million for the quarter ended June 30,
1998, as compared to the same period last year. This increase is primarily due
to the one-time charge of $80 million recorded during the second quarter of
1998, reflecting the implementation of a 1989 settlement of a dispute with the
WVPA (see Note 14 of the "Notes to Financial Statements" in "Part I. Financial
Information"). This increase also reflects a provision of $2 million recorded
during the second quarter of 1998 for potential bad debts related to certain
power marketing and trading accounts.
Interest
Interest on Long-term Debt
Interest on long-term debt increased $2 million (13%) for the quarter ended June
30, 1998, as compared to the same period of 1997, primarily due to the net
issuance of $65 million of long-term debt during the period from March 1997
through March 1998.
Other Interest
Other interest increased $2 million (88%) for the quarter ended June 30, 1998,
as compared to the same period last year, primarily due to interest expense
recognized on a settlement agreement between PSI and WVPA (see Note 14 of the
"Notes to Financial Statements" in "Part I. Financial Information").
Preferred Dividend Requirement
The preferred dividend requirement decreased $2 million (62%) for the second
quarter of 1998, as compared to the same period of 1997. This decrease is
attributable to the redemption of all of the 7.15% Series Cumulative Preferred
Stock and 7.44% Series Cumulative Preferred Stock on September 1, 1997, and
March 1, 1998, respectively.
RESULTS OF OPERATIONS FOR THE SIX MONTHS ENDED JUNE 30, 1998
Kwh Sales
For the six months ended June 30, 1998, kwh sales increased 47.7% when compared
to the same period last year, primarily due to increased activity in Cinergy's
power marketing and trading operations, which led to higher non-firm power sales
for resale. An increase in retail sales reflects higher industrial sales and a
higher average number of customers in all retail customer classes. The increased
industrial sales primarily reflect growth in the primary metals sector.
Nonsystem kwh sales (and related revenues and expenses) resulting from Cinergy's
power marketing and trading operations are allocated 50%/50% between CG&E and
PSI pursuant to the operating agreements filed with the companies' regulators.
Operating Revenues
Total operating revenues increased $291 million (36%) for the six months ended
June 30, 1998, when compared to the same period last year. This increase
primarily reflects the increase in kwh sales previously discussed and a higher
average price on non-firm power transactions, partially offset by the operation
of fuel adjustment clauses reflecting a lower average cost of fuel used in
electric production.
An analysis of operating revenues is shown below:
Six Months
Ended June 30
(in millions)
Operating revenues - June 30, 1997 $ 813
Increase (Decrease) due to change in:
Price per kwh
Retail (18)
Sales for resale
Firm power obligations 1
Non-firm power transactions 49
Total change in price per kwh 32
Kwh sales
Retail 33
Sales for resale
Firm power obligations 10
Non-firm power transactions 209
Total change in kwh sales 252
Other 7
Operating revenues - June 30, 1998 $1,104
Operating Expenses
Fuel
Fuel costs for the six months ended June 30, 1998, decreased $10 million (5%)
when compared to the same period last year.
An analysis of fuel costs is shown below:
Six Months
Ended June 30
(in millions)
Fuel expense - June 30, 1997 $180 Increase (Decrease) due to change in:
Price of fuel (8)
Deferred fuel cost (19)
Kwh generation 17
----
Fuel expense - June 30, 1998 $170
Purchased and Exchanged Power
For the six months ended June 30, 1998, purchased and exchanged power increased
$282 million, as compared to the same period last year, primarily reflecting
increased purchases of non-firm power for resale to others as a result of
increased activity in Cinergy's power marketing and trading operations and a
provision of $6 million of reserves for the electric trading business recorded
during 1998 (see Note 9 of the "Notes to Financial Statements" in "Part I.
Financial Information").
Other Operation
Other operation expenses increased $82 million (50%) for the six months ended
June 30, 1998, as compared to the same period last year. This increase is
primarily due to the one-time charge of $80 million recorded during the second
quarter of 1998, reflecting the implementation of a 1989 settlement of a dispute
with the WVPA (see Note 14 of the "Notes to Financial Statements" in "Part I.
Financial Information"). This increase also reflects a provision of $2 million
for potential bad debts related to certain power marketing and trading accounts
recorded during the second quarter of 1998.
Interest
Other Interest
Other interest increased $3 million (48%) for the six months ended June 30,
1998, as compared to the same period last year, primarily due to interest
expense recognized on a settlement agreement between PSI and WVPA (see Note 14
of the "Notes to Financial Statements" in "Part I. Financial Information").
Additionally, the increase is due to interest resulting from an IRS audit of the
1989 and 1990 tax years.
Preferred Dividend Requirement
The preferred dividend requirement decreased $3 million (44%) for the first half
of 1998, as compared to the same period of 1997. This decrease is attributable
to the redemption of all of the 7.15% Series Cumulative Preferred Stock and
7.44% Series Cumulative Preferred Stock on September 1, 1997, and
March 1, 1998, respectively.
<PAGE>
THE UNION LIGHT, HEAT
AND POWER COMPANY
<PAGE>
THE UNION LIGHT, HEAT AND POWER COMPANY
BALANCE SHEETS
ASSETS
June 30 December 31
1998 1997
(unaudited)
(dollars in thousands)
Utility Plant - Original Cost
In service
Electric $207,160 $204,111
Gas 159,155 155,167
Common 19,057 19,073
-------- --------
385,372 378,351
Accumulated depreciation 138,999 133,213
-------- --------
246,373 245,138
Construction work in progress 21,387 14,346
-------- --------
Total utility plant 267,760 259,484
Current Assets
Cash and temporary cash investments 885 546
Accounts receivable less accumulated provision
for doubtful accounts of $1,038 at
June 30, 1998, and $996 at December 31, 1997 4,694 7,308
Accounts receivable from affiliated companies 11 446
Materials, supplies, and fuel - at average cost
Gas stored for current use 5,552 5,401
Other materials and supplies 944 693
Prepayments and other 100 385
-------- --------
12,186 14,779
Other Assets
Regulatory assets
Deferred merger costs 5,214 5,213
Unamortized costs of reacquiring debt 3,608 3,590
Other 2,275 2,262
Other 4,069 6,262
-------- --------
15,166 17,327
$295,112 $291,590
The accompanying notes as they relate to The Union Light, Heat and Power Company
are an integral part of these financial statements.
<PAGE>
THE UNION LIGHT, HEAT AND POWER COMPANY
CAPITALIZATION AND LIABILITIES
June 30 December 31
1998 1997
(unaudited)
(dollars in thousands)
Common Stock Equity
Common stock - $15.00 par value; authorized shares - 1,000,000; outstanding
shares -
585,333 at June 30, 1998, and December 31, 1997 $ 8,780 $ 8,780
Paid-in capital 18,683 18,683
Retained earnings 94,595 95,450
-------- --------
Total common stock equity 122,058 122,913
Long-term Debt 54,516 44,671
-------- --------
Total capitalization 176,574 167,584
Current Liabilities
Notes payable to affiliated companies 27,323 23,487
Accounts payable 7,504 11,097
Accounts payable to affiliated companies 18,158 19,712
Accrued taxes 216 6,332
Accrued interest 1,361 1,286
Other 4,077 4,364
-------- --------
58,639 66,278
Other Liabilities
Deferred income taxes 27,474 26,211
Unamortized investment tax credits 4,400 4,516
Accrued pension and other postretirement benefit
costs 12,458 14,044
Amounts due to customers - income taxes 7,362 6,566
Other 8,205 6,391
-------- --------
59,899 57,728
$295,112 $291,590
<PAGE>
<TABLE>
<CAPTION>
THE UNION LIGHT, HEAT AND POWER COMPANY
STATEMENTS OF INCOME (LOSS)
(unaudited)
<S> <C> <C> <C> <C>
Quarter Ended Year to Date
June 30 June 30
1998 1997 1998 1997
(in thousands)
Operating Revenues
Electric $41,536 $47,314 $ 88,535 $ 95,894
Gas
Non-affiliated companies 8,564 10,825 36,939 44,788
Affiliated companies 62 69 167 190
------- ------- -------- --------
50,162 58,208 125,641 140,872
Operating Expenses
Electricity purchased from parent
company for resale 34,421 34,626 68,511 69,755
Gas purchased 4,167 6,555 20,520 27,004
Other operation 7,527 8,203 15,662 16,737
Maintenance 1,375 1,496 2,670 3,059
Depreciation 3,209 3,111 6,441 6,181
Income taxes (1,013) 903 3,204 5,645
Taxes other than income taxes 1,029 1,115 2,034 2,214
------- ------- -------- --------
50,715 56,009 119,042 130,595
Operating Income (Loss) (553) 2,199 6,599 10,277
Other Income and Expenses - Net
Allowance for equity funds used
during construction 24 27 10 23
Income taxes 254 206 482 298
Other - net (404) (514) (886) (961)
------- ------- -------- --------
(126) (281) (394) (640)
Income (Loss) Before Interest (679) 1,918 6,205 9,637
Interest
Interest on long-term debt 951 881 1,834 1,762
Other interest 197 333 548 634
Allowance for borrowed funds
used during construction (179) (7) (298) (37)
------- ------- -------- --------
969 1,207 2,084 2,359
Net Income (Loss) $(1,648) $ 711 $ 4,121 $ 7,278
<FN>
The accompanying notes as they relate to The Union Light, Heat and Power Company
are an integral part of these financial statements.
</FN>
</TABLE>
<PAGE>
THE UNION LIGHT, HEAT AND POWER COMPANY
STATEMENTS OF CASH FLOWS
(unaudited)
Year to Date
June 30
1998 1997
(in thousands)
Operating Activities
Net income $ 4,121 $ 7,278
Items providing (using) cash currently:
Depreciation 6,441 6,181
Deferred income taxes and investment tax
credits - net 1,192 438
Allowance for equity funds used during
construction (10) (23)
Regulatory assets (13) (68)
Changes in current assets and current
liabilities
Accounts and notes receivable, net of
reserves on receivables sold 4,671 6,513
Materials, supplies, and fuel (402) 1,604
Accounts payable (5,147) (1,877)
Accrued taxes and interest (6,041) 3,421
Other items - net 1,481 3,334
-------- --------
Net cash provided by operating
activities 6,293 26,801
Financing Activities
Issuance of long-term debt 20,127 -
Redemption of long-term debt (10,118) -
Change in short-term debt 3,836 (9,721)
Dividends on common stock (4,975) (4,975)
-------- --------
Net cash provided by (used in)
financing activities 8,870 (14,696)
Investing Activities
Construction expenditures (less allowance
for equity funds used during construction) (14,824) (8,758)
Net cash used in investing
activities (14,824) (8,758)
Net increase in cash and temporary cash
investments 339 3,347
Cash and temporary cash investments at
beginning of period 546 1,197
-------- --------
Cash and temporary cash investments at
end of period $ 885 $ 4,544
The accompanying notes as they relate to The Union Light, Heat and Power Company
are an integral part of these financial statements.
<PAGE>
THE UNION LIGHT, HEAT AND POWER COMPANY
RESULTS OF OPERATIONS FOR THE QUARTER ENDED JUNE 30, 1998
Mcf Sales and Transportation
Mcf gas sales and transportation volumes for the quarter ended June 30, 1998,
decreased when compared to the same period in 1997. The decrease in Mcf gas
sales was due, in part, to the continued trend of customers purchasing gas
directly from suppliers, using transportation services provided by ULH&P.
Operating Revenues
Electric Operating Revenues
Electric operating revenues decreased $6 million (12%) for the quarter ended
June 30, 1998, from the comparable period of 1997. This decrease primarily
reflects a revision of ULH&P's estimate of unbilled revenue in the third quarter
of 1997. This adjustment, which was recorded in the second quarter of 1998,
resulted in a decrease in electric operating revenues of $3.6 million and a
corresponding decrease to operating income and net income of $1.7 million.
Gas Operating Revenues
The increasing trend of industrial customers purchasing gas directly from
producers and utilizing ULH&P facilities to transport the gas continues to put
downward pressure on gas operating revenues. Since providing transportation
services does not necessitate recovery of the cost of gas purchased, the revenue
per Mcf transported is less than the revenue per Mcf sold. As a result, a higher
relative volume of gas transported to gas sold translates into lower gas
operating revenues.
Gas operating revenues decreased $2 million (21%) in the second quarter of 1998,
when compared to the same period last year, primarily due to the decline in
volume sales discussed above.
Operating Expenses
Gas Purchased
Gas purchased for the quarter ended June 30, 1998, decreased $2 million (36%)
from the second quarter of last year, reflecting a decrease in the average cost
per Mcf purchased and a decrease in the volumes of gas purchased.
Other Operation
The $.7 million (8%) decrease in other operation expenses for the second quarter
of 1998, as compared to the same period of 1997, is primarily due to lower
distribution expenses.
Maintenance
The $.1 million (8%) decrease in maintenance expenses for the second quarter of
1998, as compared to 1997, is primarily due to a decrease in overhead line
maintenance.
Taxes Other Than Income Taxes
The $.1 million (8%) decrease in taxes other than income taxes for the second
quarter of 1998, as compared to the same period of 1997, is primarily due to a
decrease in property taxes.
Other Income and Expenses - Net
Other - net
The change in other - net of $.1 million (21%) for the quarter ended June 30,
1998, as compared to the same period of 1997, is partially attributable to a
higher level of expenses associated with the sales of accounts receivable in the
prior year.
Interest
Allowance for Borrowed Funds Used During Construction
The increase in allowance for borrowed funds used during construction of $.2
million is primarily due to an increase in construction expenditures subject to
allowance during the quarter ended June 30, 1998, as compared to the same period
of 1997.
RESULTS OF OPERATIONS FOR THE SIX MONTHS ENDED JUNE 30, 1998
Mcf Sales and Transportation
For the six months ended June 30, 1998, Mcf gas sales and transportation volumes
decreased, as compared to the same period in 1997. Decreased Mcf sales
reflecting the milder weather during the first quarter of 1998 were slightly
offset by an increase in the number of residential and commercial customers.
Industrial sales declined and gas transportation volumes increased as customers
continued the trend of purchasing gas directly from suppliers, using
transportation services provided by ULH&P.
Operating Revenues
Electric Operating Revenues
Electric operating revenues decreased $7 million (8%) for the six months ended
June 30, 1998, from the comparable period of 1997. This decrease primarily
reflects a revision of ULH&P's estimate of unbilled revenue in the third quarter
of 1997. This adjustment, which was recorded in the second quarter of 1998,
resulted in a decrease in electric operating revenues of $3.6 million and a
corresponding decrease to operating income and net income of $1.7 million.
Gas Operating Revenues
For a discussion of the continued trend of downward pressure on gas operating
revenues from increased transportation services, refer to the discussion under
the heading "Gas Operating Revenues" for ULH&P in "Results of Operations for the
Quarter Ended June 30, 1998."
Gas operating revenues decreased $8 million (18%) for the six months ended June
30, 1998, when compared to the same period of last year, primarily due to the
decline in volume sales discussed above and the aforementioned trend toward
increased transportation services.
Operating Expenses
Electricity Purchased from Parent Company for Resale
Electricity purchased decreased $1 million (2%) for the six months ended June
30, 1998, as compared to the same period last year. This decrease reflects lower
volumes purchased from CG&E.
Gas Purchased
Gas purchased for the six months ended June 30, 1998, decreased $6 million
(24%), as compared to the same period in 1997. This decrease reflects a decrease
in the average cost per Mcf purchased and a decrease in the volumes of gas
purchased.
Other Operation
The $1.1 million (6%) decrease in other operation expenses for the six months
ended June 30, 1998, as compared to the same period of 1997, is primarily due to
lower distribution and administrative and general expenses.
Maintenance
The $.4 million (13%) decrease in maintenance expense for the six months ended
June 30, 1998, as compared to the same period of 1997, is primarily due to a
decrease in overhead line maintenance.
Taxes Other Than Income Taxes
The $.2 million (8%) decrease in taxes other than income taxes for the six
months ended June 30, 1998, as compared to the same period of 1997, is primarily
due to a decrease in property taxes.
Interest
Other Interest
Other interest charges decreased $.1 million (14%) for the six months ended June
30, 1998, as compared to the same period of 1997, primarily due to increased
short-term borrowings in the prior year. This decrease was partially offset by
payments to the Kentucky State Treasurer resulting from a sales tax audit and
underpayment of tax year 1996 income taxes.
Allowance for Borrowed Funds Used During Construction
The increase in allowance for borrowed funds used during construction of $.3
million is primarily due to an increase in construction expenditures subject to
allowance during the six months ended June 30, 1998, as compared to the same
period of 1997.
<PAGE>
NOTES TO FINANCIAL STATEMENTS
Cinergy, CG&E, PSI, and ULH&P
1. These Financial Statements reflect all adjustments (which include
normal, recurring adjustments and those adjustments discussed in Notes
9 and 14) necessary in the opinion of the registrants for a fair
presentation of the interim results. These statements should be read in
conjunction with the Financial Statements and the notes thereto
included in the combined 1997 Form 10-K of the registrants. Certain
amounts in the 1997 Financial Statements have been reclassified to
conform to the 1998 presentation.
Cinergy and CG&E
2. On April 7, 1998, CG&E issued and sold $100 million principal amount of
its 6.40% Debentures due April 1, 2008. Proceeds from the sale were
used to repay short-term indebtedness incurred in connection with
CG&E's March 1998 redemptions of $100 million principal amount of its 8
1/2% Series First Mortgage Bonds due 2022 and $60 million principal
amount of its 7 3/8% Series First Mortgage Bonds due 2001.
3. On May 1, 1998, CG&E redeemed the entire $50 million principal amount
of its 7 3/8% Series First Mortgage Bonds due 1999, at the regular
redemption price of 100.00%. This redemption effectively eliminates the
maintenance and replacement fund provisions of CG&E's First Mortgage
Bond indenture, which provisions required CG&E to make cash payments,
deposit bonds, or pledge unfunded property additions to the trustee
each year based on an amount related to net revenues.
4. On June 15, 1998, CG&E issued and sold $100 million principal amount of
unsecured Reset Put Securities. These debentures will bear interest at
a rate of 6.35% for the first five years, and the interest rate may be
reset every five years thereafter to final maturity in 2038 if the
callholder exercises its option on any reset date to purchase the bonds
and reset the interest rate. If the callholder does not exercise the
option on any reset date, the bonds will be redeemed by CG&E at par.
Proceeds from the sale were used to repay short-term indebtedness
incurred in connection with the redemption of CG&E's 7 3/8% First
Mortgage Bonds referred to above and for general corporate purposes.
Cinergy and PSI
5. On July 23, 1998, PSI redeemed the entire $24 million principal amount
of its 7 5/8% First Mortgage Bonds, Series Y due January 1, 2007, at
the redemption price of 102.11% and the entire $26 million principal
amount of its 7% First Mortgage Bonds, Series S due January 1, 2002, at
the redemption price of 100.73%.
6. On August 5, 1998, PSI issued and sold $50 million principal amount of
unsecured Synthetic Putable Yield Securities. These debentures will
bear interest at a rate of 6.50% for the first seven years, and the
interest rate may be reset every seven years thereafter to final
maturity in 2026 if the callholder exercises its option on any reset
date to purchase the bonds and reset the interest rate. If the
callholder does not exercise the option on any reset date, the bonds
will be redeemed by PSI at par. Proceeds from the sale were used to
repay short-term indebtedness incurred in connection with PSI's July
1998 redemptions of the above-mentioned Series Y and Series S First
Mortgage Bonds.
7. On August 12, 1998, the Indiana Development Finance Authority loaned
the proceeds from the sale of its $23 million principal amount of
Environmental Refunding Revenue Bonds, Series 1998, to PSI. The bonds
will bear interest initially at a daily rate, will mature on August 1,
2028, and are backed by an irrevocable direct-pay letter of credit
through August 1, 2002. Proceeds from the sale will be used to redeem
on September 15, 1998, the $23 million 8 1/4% First Mortgage Bonds
Series QQ, due June 15, 2013 (Pollution Control), at a redemption price
of 102% plus accrued interest.
Cinergy, CG&E, and ULH&P
8. On April 30, 1998, ULH&P issued and sold $20 million principal amount
of its 6.50% Debentures due April 30, 2008. Proceeds from the sale were
used by ULH&P to repay short-term indebtedness incurred in connection
with the redemption, on April 24, 1998, of $10 million principal amount
of its 8% Series First Mortgage Bonds, due 2003, and in connection with
its construction program. The redemption of said First Mortgage Bonds
effectively eliminates the maintenance and replacement fund provisions
of ULH&P's First Mortgage Bond indenture, which provisions required
ULH&P to make cash payments, deposit bonds, or pledge unfunded property
additions to the trustee each year based on an amount related to net
revenues.
Cinergy, CG&E, and PSI
9. Cinergy's power marketing and trading function actively markets and trades
over-the-counter forward and option contracts for the purchase and sale of
electricity. The majority of these contracts are settled via physical
delivery of electricity or netted out in accordance with industry trading
standards. The Company also trades exchange-traded futures contracts.
Option premiums are deferred and included in the Consolidated Balance
Sheets and amortized to "Operating Revenues - Electric" or "Purchased and
exchanged power" in the Consolidated Statements of Income over the term of
the option contract. Cinergy values its portfolio of contracts using the
aggregate lower of cost or market method. To the extent there are net
aggregate losses in the portfolio, Cinergy reserves for such losses. Net
gains are recognized when realized. Due to the lack of liquidity and the
volatility currently experienced in the power markets, significant
assumptions must be made by the Company when estimating current market
values for purposes of the aggregate lower of cost or market comparison. It
is possible that the actual gains and losses from the Company's power
marketing and trading activities could differ substantially from the gains
and losses estimated currently.
Cinergy and its subsidiaries use derivative financial instruments to hedge
exposures to foreign currency exchange rates, lower funding costs, and
manage exposures to fluctuations in interest rates. Instruments used as
hedges must be designated as a hedge at the inception of the contract and
must be effective at reducing the risk associated with the exposure being
hedged. Accordingly, changes in market values of designated hedge
instruments must be highly correlated with changes in market values of the
underlying hedged items at inception of the hedge and over the life of the
hedge contract.
Cinergy utilizes foreign exchange forward contracts and currency swaps to
hedge certain of its net investments in foreign operations. Accordingly,
any translation gains or losses related to the foreign exchange forward
contracts or the principal exchange on the currency swap are recorded in
accumulated other comprehensive income, which is a separate component of
common stock equity. Aggregate translation losses related to these
instruments are reflected in "Current Liabilities Other" in the
Consolidated Balance Sheets.
Interest rate swaps are accounted for under the accrual method.
Accordingly, gains and losses based on any interest differential between
fixed-rate and floating-rate interest amounts, calculated on agreed upon
notional principal amounts, are recognized in the Consolidated Statements
of Income as a component of interest expense as realized over the life of
the agreement.
Cinergy, CG&E, and PSI
10. As discussed in the 1997 Form 10-K, in October 1995, a suit was filed in
the Federal District Court for the Southern District of Ohio by three
former employees of Enertech naming as defendants Enertech, Cinergy,
Investments, CG&E, PSI, James E. Rogers, and William J. Grealis. (Mr.
Rogers and/or Mr. Grealis are officers and/or directors of the foregoing
companies.) The lawsuit, which stemmed from the termination of employment
of the three former employees, alleged that they entered into employment
contracts with Enertech based on the opportunity to participate in
potential profits from future investments in energy projects in central and
eastern Europe. The suit alleged causes of action based upon, among other
theories, breach of contract related to the events surrounding the
termination of their employment and fraud and misrepresentation related to
the level of financial support for future projects. The suit alleged
compensatory damages of $154 million based upon assumed future success of
potential future investments and punitive damages of three times that
amount.
In April 1998, the parties reached a comprehensive settlement and all
claims were dismissed by the Court. The obligations of the Company arising
out of the settlement are not material to its financial condition or its
results of operations.
Cinergy and PSI
11. As discussed in the 1997 Form 10-K, PSI and IGC submitted a proposed
agreed order to the IDEM in 1997 related to the Shelbyville MGP site.
On April 15, 1998, the IDEM signed the proposed agreed order, which
will result in a determination by the IDEM of whether the activities
previously undertaken at the site are sufficient to adequately protect
human health and the environment. Based upon environmental
investigations and remediation completed to date, PSI believes that any
further investigation and remediation required for the Shelbyville site
will not have a material adverse effect on its financial condition or
results of operations.
In August 1997, NIPSCO filed suit against PSI in the United States
District Court for the Northern District of Indiana, South Bend
Division, claiming, pursuant to the CERCLA, recovery from PSI of
NIPSCO's past and future costs of investigating and remediating MGP
related contamination at the Goshen MGP site. Recently, NIPSCO
increased its estimate of the cost of remediating the Goshen site from
$2.7 million to about $3.0 million.
As also discussed in the 1997 Form 10-K, PSI previously placed its
insurance carriers on notice of IGC's, NIPSCO's and the IDEM's claims
related to MGP sites. In April 1998, PSI filed suit in Hendricks
County Circuit Court against its general liability insurance carriers,
seeking, among other matters, a declaratory judgment that its
insurance carriers are obligated to defend MGP claims against PSI or
pay PSI's costs of defense and to indemnify PSI for its costs of
investigating, preventing, mitigating and remediating damage to
property and paying claims associated with MGP sites. PSI cannot
predict the outcome of this litigation.
Cinergy, CG&E, PSI, and ULH&P
12. Effective with the first quarter of 1998, Cinergy and its subsidiaries
adopted Statement 130. Statement 130 establishes standards for
reporting and displaying comprehensive income and its components in a
full set of general-purpose financial statements. Comprehensive income
is defined as the change in equity of a business enterprise during a
period from transactions and other events and circumstances from
nonowner sources.
During the second quarter of 1998, the FASB issued Statement 133. The
new standard requires companies to record derivative instruments, as
defined in Statement 133, as assets or liabilities, measured at fair
value. The Statement requires that changes in the derivative's fair
value be recognized currently in earnings unless specific hedge
accounting criteria are met. Special accounting for qualifying hedges
allows a derivative's gains and losses to offset related results on the
hedged item in the income statement, and requires that a company must
formally document, designate, and assess the effectiveness of
transactions that receive hedge accounting. The standard is effective
for fiscal years beginning after June 15, 1999, and Cinergy expects to
adopt Statement 133 effective for the year beginning January 1, 2000.
The Company has not yet quantified the impacts of adopting Statement
133 on its consolidated financial statements. However, the Statement
could increase volatility in earnings and other comprehensive income.
Cinergy
13. Presented below is a reconciliation of earnings per common share (basic
EPS) and earnings per common share assuming dilution (diluted EPS).
Income Shares Earnings
(Numerator) (Denominator) Per Share
(In thousands, except per share amounts)
Quarter ended June 30, 1998
Earnings per common share:
Net loss $(25,933) 158,018 $(.16)
Effect of dilutive securities:
Common stock options 689
Contingently issuable common stock 113
EPS--assuming dilution:
Net loss plus assumed
conversions $(25,933) 158,820 $(.16)
Quarter ended June 30, 1997
Earnings per common share:
Net income $ 55,489 157,679 $ .35
Effect of dilutive securities:
Common stock options 925
Contingently issuable common stock 204
EPS--assuming dilution:
Net income plus assumed
conversions $ 55,489 158,808 $ .35
<PAGE>
Income Shares Earnings
(Numerator) (Denominator) Per Share
(In thousands, except per share amounts)
Six months ended June 30, 1998
Earnings per common share:
Net income $ 80,138 157,892 $ .51
Effect of dilutive securities:
Common stock options 738
Contingently issuable common stock 118
EPS--assuming dilution:
Net income plus assumed
conversions $ 80,138 158,748 $ .51
Six months ended June 30, 1997
Earnings per common share:
Net income $169,606 157,679 $1.07
Effect of dilutive securities:
Common stock options 954
Contingently issuable common stock 204
EPS--assuming dilution:
Net income plus assumed
conversions $169,606 158,837 $1.06
Income Shares Earnings
(Numerator) (Denominator) Per Share
(In thousands, except per share amounts)
Twelve months ended June 30, 1998
Earnings per common share:
Net income before extraordinary
item $273,170 157,790 $1.73
Effect of dilutive securities:
Common stock options 827
Contingently issuable common stock 162
EPS--assuming dilution:
Net income before extraordinary
item plus assumed conversions $273,170 158,779 $1.72
Twelve months ended June 30, 1997
Net income $338,222
Less: costs of reacquisition of
preferred stock of subsidiary 18,391
Earnings per common share:
Net income applicable to common
stock 319,831 157,679 $2.02
Effect of dilutive securities:
Common stock options 938
Contingently issuable common st 260
EPS--assuming dilution:
Net income applicable to common
stock plus assumed conversions $319,831 158,877 $2.01
The after-tax impact of the extraordinary item - equity share of
windfall profits tax in the twelve months ended June 30, 1998, was $.69
for both basic and diluted earnings per share.
Options to purchase shares of common stock that were excluded from the
calculation of EPS--assuming dilution because the exercise prices of
these options were greater than the average market price of the common
shares during the period are summarized below:
Quarter Average
Ended Exercise
June 30 Shares Price
1998 930,600 $37.54
1997 10,400 34.50
Six Months Average
Ended Exercise
June 30 Shares Price
1998 694,700 $37.83
1997 8,800 34.50
Twelve Months Average
Ended Exercise
June 30 Shares Price
1998 345,000 $37.82
1997 188,900 33.52
Cinergy and PSI
14. In February 1989, PSI and WVPA entered into a settlement agreement to
resolve all claims related to Marble Hill, a nuclear project canceled in
1984. Implementation of the settlement was contingent upon a number of
events, including the conclusion of WVPA's bankruptcy proceeding,
negotiation of certain terms and conditions with WVPA, the RUS, and the
CFC, and certain regulatory approvals. In December 1996, following the
resolution of issues associated with WVPA's bankruptcy proceeding, PSI, on
behalf of itself and its officers, paid $80 million on behalf of WVPA to
the RUS and the CFC. The $80 million obligation, net of insurance proceeds,
other credits, and applicable income tax effects, was charged to income in
1988. In January 1997, an order dismissing the WVPA litigation against PSI
and its officers with prejudice was entered by the United States District
Court for the Southern District of Indiana and final negotiations to
implement the settlement agreement were begun with WVPA, the RUS and the
CFC. An agreement on substantially all matters has been reached with the
parties. As a result, PSI recorded a liability to the RUS and the CFC and
will repay the obligation with interest over a 35-year term. PSI will use
the net proceeds from a 35-year power sales agreement with WVPA to fund the
principal and interest on the obligation. Assumption of the liability
(recorded as long-term debt in the consolidated balance sheet) resulted in
a charge against second quarter earnings of $80 million ($50 million after
tax or $.32 per share basic and diluted).
Cinergy
15. The Company's Midlands subsidiary (of which the Company owns 50%) has a
40% ownership interest in a 586 MW power project in Pakistan (Uch
project or Uch) which was originally scheduled to begin commercial
operation in late 1998. The Pakistani government-owned utility has
recently issued a notice of intent to terminate certain key project
agreements relative to the Uch project. The notice asserts that various
forms of corruption were involved in the original granting of the
agreements to the Uch investors by a predecessor government. The
Company believes that this notice is similar to notices received by
other independent power projects in Pakistan.
The Uch investors, including a subsidiary of Midlands, strongly deny
the allegations and intend to pursue all available legal options to
enforce their contractual rights under the project agreements. At
present, the Uch investors continue to explore remedies to the
situation with officials of the Pakistani government.
Through its ownership of Midlands, the Company's current investment in
the Uch project is approximately $30 million. In addition, project
lenders could require investors to make additional capital
contributions to the project under certain conditions. The Company's
share of these additional contributions is approximately $14 million.
At the present time, the Company cannot predict the ultimate outcome of
this matter.
Cinergy and PSI
16. As discussed in the 1997 Form 10-K, PSI filed a petition with the FERC
for recovery, through the fuel adjustment clause, of the wholesale
jurisdictional portion of the costs resulting from the Exxon contract
buyout. During July 1998, the FERC accepted PSI's request to recover
these buyout costs from its wholesale customers for the period August
1996 through December 2002.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Cinergy, CG&E, PSI, and ULH&P
CAUTIONARY STATEMENTS REGARDING FORWARD-LOOKING INFORMATION Matters discussed in
this Item 2. "Management's Discussion and Analysis of Financial Condition and
Results of Operations" in "Part I. Financial Information" reflect and elucidate
Cinergy's corporate vision of the future and, as a part of that, outline goals
and aspirations, as well as specific projections. These goals and projections
are considered forward-looking statements and are based on management's beliefs,
as well as certain assumptions made by management. In addition to any
assumptions and other factors that are referred to specifically in connection
with these statements, other factors that could cause actual results to differ
materially from those indicated in any forward-looking statements include, among
others: factors generally affecting utility operations--such as unusual weather
conditions, unusual maintenance or repairs, or unanticipated changes in fuel
costs; increased competition in the electric and gas utility environment;
regulatory factors, including the failure to obtain anticipated regulatory
approvals; changes in accounting principles or policies; adverse economic
conditions; changing market conditions; availability or cost of capital;
employee workforce factors; costs and effects of legal and administrative
proceedings; changes in legislative requirements; and other risks. The
Securities and Exchange Commission's rules do not require forward-looking
statements to be revised or updated, and Cinergy does not intend to do so.
FINANCIAL CONDITION
Recent Developments
Cinergy, CG&E, and PSI
Ambient Air Standards As discussed in the 1997 Form 10-K, during 1997, the EPA
revised the National Ambient Air Quality Standards for ozone and fine
particulate matter. EPA has also proposed, but not finalized, new rules for both
ozone transport and regional haze. Relative to ozone transport, during May 1998,
the EPA supplemented its proposed rule to reduce utility NOx emissions by
approximately 85% by 2003 by proposing a model NOx trading program for 22 states
in the eastern half of the United States. On June 25, 1998, 13 midwestern and
southern states and numerous industry groups within those states, including
Cinergy, filed comments in opposition to the EPA proposed NOx rules. These 13
states and utility commentors proposed alternative reduction strategies that
would generally phase in NOx reduction by 65 percent by 2002-2004, would
determine by 2002 if additional reductions are needed, and then implement
necessary controls between 2005-2007. Commentors also generally opposed EPA's 22
state trading program in favor of smaller and more flexible multi-state
programs. The EPA is expected to finalize its ozone transport rulemaking in the
fall of 1998 and states would then have 12 to 18 months to incorporate utility
NOx reductions into their SIPs. The EPA is scheduled to finalize new regional
haze rules in the summer of 1998. Congress, as part of the funding bill for the
Surface Transportation Act, combined the schedules for fine particulates and
regional haze implementation. The impact of the particulate standards and
regional haze rules cannot be determined at this time. Since EPA guidance and
technical studies concerning these new regulations have not been provided,
Cinergy cannot predict the outcome or effect of the new rulemakings.
Air Toxics As discussed in the 1997 Form 10-K, the EPA was to announce, by April
15, 1998, its conclusions regarding the need for additional air toxics
regulations. In April 1998, the EPA announced that it would make its regulatory
determination on the need for additional air toxics regulation by November 15,
1998. If more air toxics regulations are issued, the compliance cost could be
significant. Cinergy cannot predict the outcome or effects of the EPA's
determination.
Cinergy, CG&E, and ULH&P
Competitive Pressures - State Developments As discussed in the 1997 Form
10-K, competition legislation was to be introduced in the Ohio legislature
during 1998. This legislation, SB 237 and HB 732, "companion" electric
restructuring bills that propose to afford choice to all retail electric
customers in Ohio beginning January 1, 2000, was introduced in 1998. Legislative
hearings on these bills occurred in the spring. In addition, legislation to
provide for securitization of transition costs through issuance of rate
reduction bonds has been pending in Ohio since 1997. It is uncertain whether
these pieces of legislation will be passed in Ohio in 1998.
As also discussed in the 1997 Form 10-K, HB 443 was introduced into the Kentucky
General Assembly in January 1998. HB 443 was not brought to a vote during the
1998 legislative session. Rather, HJR 95, which calls for the formation of an
executive task force comprised of members from the governor's office and the
General Assembly to further study electricity restructuring, was passed by the
General Assembly. HJR 95 was signed by the governor during April 1998.
Kentucky's General Assembly does not reconvene until the year 2000.
Cinergy
Acquisitions In June 1998, Cinergy, through its subsidiaries, acquired ProEnergy
and Teplarna. Through CC&T, Cinergy acquired ProEnergy from Apache and Oryx.
ProEnergy has had and will continue to have exclusive marketing rights to North
American gas production owned or controlled by Apache and Oryx, which represents
approximately 1.1 Bcf per day of dedicated natural gas supply. These supplies,
combined with the active marketing of third party gas, are geographically
diverse and are spread through the Southwest, Rocky Mountains, Gulf Coast, Gulf
of Mexico, and Michigan. The acquisition was funded with cash and the issuance
of 771,258 new shares of Cinergy common stock.
A subsidiary of Cinergy Global Power acquired Teplarna, a 410 MW district
heating plant in the Czech Republic. In addition to hot water and steam, the
plant produces 36 MW of electric capacity.
The purchase prices for ProEnergy and Teplarna were not material to Cinergy's
financial condition or results of operations.
Regulatory Matters
Cinergy and PSI Coal Contract Buyout Costs See Note 16 of the "Notes to
Financial Statements" in "Part I. Financial Information."
Market Risk Sensitive Instruments and Positions
Cinergy, CG&E, PSI, and ULH&P
The following discussions about Cinergy's market risk sensitive instruments and
positions and risk management activities include forward-looking information and
statements that involve risks and uncertainties. The forward-looking information
and statements presented are only estimates of what may occur in the future,
assuming certain adverse market conditions, due to their dependence on model
characteristics and assumptions. As a result, actual future results may differ
materially from those presented. These disclosures are not precise indicators of
expected future losses, rather they merely present indications of reasonably
possible losses.
Cinergy, CG&E, and PSI
Energy Commodities Sensitivity The Company markets and trades over-the-counter
forward and option contracts for the purchase and sale of electricity. The
Company also trades exchange-traded futures contracts. See Note 9 of the "Notes
to Financial Statements" in "Part I. Financial Information" for the Company's
accounting policies for certain derivative instruments.
During a few days late in the second quarter, wholesale electric power markets
in the Midwest exhibited unprecedented price volatility due to several market
factors including an extended period of unseasonably hot weather, scheduled and
unplanned generating unit outages, transmission constraints, and defaults by
certain power marketers on their supply obligations. The simultaneous
culmination of these events resulted in temporary but extreme price spikes in
the hourly and daily markets and very little trading liquidity and price
transparency in the term markets. During this period of extreme price volatility
and trading illiquidity, Cinergy's power marketing and trading function
maintained its ability to provide trading-based services, including the physical
delivery of power to fulfill all of its contractual obligations. As of June 30,
1998, Cinergy's daily value-at-risk for its power marketing and trading
activities increased by 80% from December 31, 1997. The daily value-at-risk as
of June 30, 1998 was less than 3% of Cinergy's "Income Before Interest And Other
Charges" for the twelve months then ended. The value-at risk model utilizes a
95% confidence interval and uses the variance-covariance statistical modeling
technique and historical volatilities and correlations over the past 200 day
period. The estimated market prices used to value these transactions for
value-at-risk purposes reflect the use of established pricing models and various
factors including quotations from exchanges and over-the-counter markets, price
volatility factors, the time value of money, and location differentials. The
variables used for value-at-risk purposes at June 30, 1998, reflect the impacts
of the events which transpired in the Midwestern electric power markets during
late June 1998.
The Company provided reserves of $65 million ($41 million after tax), or $.26
per share (basic and diluted), in the second quarter for its electric power
marketing and trading business. The reserve represents potential unrealized
losses in the fair value of its portfolio of open forward and option contract
positions and potential unrealized losses due to nonperformance of certain
counterparties pursuant to contractual supply obligations. Despite the volatile
activity at the end of June, the Company experienced modest net realized gains
from its electric power marketing and trading operations during the second
quarter. Due to the basic lack of liquidity, price transparency, and extreme
price volatility currently experienced in the electric power markets,
significant assumptions regarding estimated market prices and potential
counterparty credit risk must be made by the Company for the purposes of
providing appropriate reserves. It is possible that actual realized results from
the Company's power marketing and trading activities could differ substantially
from those currently estimated.
As of June 30, 1998, approximately 62% of Cinergy's power marketing and trading
activity represents commitments with 10 counterparties. The majority of these
contracts are for terms of one year or less. The temporary but extreme price
volatility and trading illiquidity exhibited in the Midwestern electric power
markets late in the second quarter resulted in a few power marketers defaulting
on contractual supply obligations and industry-wide uncertainty as to whether
others will be able to fulfill existing contractual supply obligations for
future delivery of electricity. As of June 30, 1998, Cinergy believes it has
adequately reserved for credit exposure relating to its portfolio of existing
contracts.
Cinergy remains committed to being a long-term participant in the evolving
competitive wholesale electric power market and will continue to manage its
power marketing and trading portfolio to maximize its existing value while
creating additional value. The New York Mercantile Exchange electricity futures
contracts for delivery into Cinergy's transmission grid, which started trading
on July 10, 1998, should provide additional liquidity and greater price
transparency as well as additional risk management capabilities in Cinergy's
core service territory and trading region. Cinergy continues to review and
enhance its current risk management practices to ensure their responsiveness to
evolving and changing market and business conditions. In addition, efforts are
ongoing to develop and enhance systems to improve the timeliness and quality of
market and credit risk information.
Cinergy
Exchange Rate Sensitivity Cinergy utilizes foreign exchange forward contracts
and currency swaps to hedge certain of its net investments in foreign
operations. See Note 9 of the "Notes to Financial Statements" in "Part I.
Financial Information" for Cinergy's accounting policies for certain derivative
instruments. Cinergy's market risks have not changed materially from the market
risks reported in the 1997 Form 10-K.
Cinergy, CG&E, PSI, and ULH&P
Interest Rate Sensitivity The Company's net exposure to changes in interest
rates primarily consists of debt instruments with floating interest rates that
are benchmarked to various market indices. To manage the Company's exposure to
fluctuations in interest rates and to lower funding costs, the Company
constantly evaluates the use of, and has entered into, interest rate swaps. See
Note 9 of the "Notes to Financial Statements" in "Part I. Financial Information"
for the Company's accounting policies for certain derivative instruments. The
Company's market risks have not changed materially from the market risks
reported in the 1997 Form 10-K.
Accounting Issues
Cinergy, CG&E, PSI, and ULH&P New Accounting Standards See Note 12 of the "Notes
to Financial Statements" in "Part I. Financial Information."
Other Commitments
Cinergy, CG&E, and PSI Enertech See Note 10 of the "Notes to Financial
Statements" in "Part I. Financial Information."
Cinergy, CG&E, and PSI MGP Sites See Note 11 of the "Notes to Financial
Statements" in "Part I. Financial Information."
Cinergy and PSI WVPA See Note 14 of the "Notes to Financial Statements" in "Part
I. Financial Information."
CAPITAL RESOURCES AND REQUIREMENTS
Cinergy, CG&E, PSI, and ULH&P Long-term Debt For information regarding recent
issuances and redemptions of long-term debt securities, see Notes 2, 3, 4, 5, 6,
7, and 8 of the "Notes to Financial Statements" in "Part I. Financial
Information."
Cinergy, CG&E, PSI, and ULH&P
Short-term Debt Obligations representing notes payable and other short-term
obligations (excluding notes payable to affiliated companies) at June 30, 1998,
were as follows:
Cinergy
Established
Lines Outstanding
(in millions)
Cinergy
Committed lines
Acquisition line $ 350 $ 350
Revolving line 400 160
Commercial paper - 189
Utility subsidiaries
Committed lines 300 10
Uncommitted lines 360 67
Pollution control notes 244 244
Non-utility subsidiaries 118 101
Total $1,772 $1,121
CG&E
Established
Lines Outstanding
(in millions)
Committed lines $100 $ -
Uncommitted lines 190 30
Pollution control notes 184 184
Total $474 $214
PSI
Established
Lines Outstanding
(in millions)
Committed lines $200 $ 10
Uncommitted lines 170 37
Pollution control notes 60 60
Total $430 $107
Cinergy, CG&E, and PSI
Cinergy's committed lines are comprised of an acquisition line and a revolving
line. The established revolving line (as shown in the above table) also provides
credit support for Cinergy's commercial paper program. As of June 30, 1998, this
program was limited to a maximum outstanding principal amount of $200 million.
During July 1998, the commercial paper program was increased to a maximum
principal amount of $400 million. This increase is supported by an additional
revolving line of $200 million, which was also established in July 1998. The
majority of the proceeds from the commercial paper sales were used to reduce the
acquisition line to the year-end level of $350 million. CG&E and PSI also have
the capacity to issue commercial paper that must be supported by committed lines
(unsecured lines of credit) of the respective company. Neither CG&E nor PSI
issued commercial paper during the second quarter of 1998.
Cinergy, CG&E, PSI, and ULH&P
Cinergy's utility subsidiaries had regulatory authority to borrow up to $853
million ($453 million for CG&E and its subsidiaries, including $50 million for
ULH&P, and $400 million for PSI) as of June 30, 1998. In connection with this
authority, committed lines, as well as uncommitted lines, have been arranged.
The established committed lines (as shown in the above table) include $100
million designated as backup for certain of the uncommitted lines at June 30,
1998. Further, the committed lines are maintained by commitment fees.
Cinergy, CG&E, PSI, and ULH&P
Year 2000 Cinergy, like most owners and users of IT systems, will be impacted by
what has become known as Year 2000 issues. Cinergy is currently working to
resolve the potential impact of the Year 2000 on the processing of
date-sensitive information by the Company's computerized information systems.
The Year 2000 issues are the result of computer programs being written using two
digits, rather than four, to define the applicable year. Any of Cinergy's
programs which have date-sensitive software may recognize a date using "00" as
the year 1900 rather than the year 2000, which could result in system
malfunctions. The Year 2000 issue impacts not only IT systems but also non-IT
systems (i.e., systems incorporating "embedded processors").
Cinergy is addressing the impacts of the Year 2000 issues by focusing on IT
systems, non-IT systems associated with its generating stations and its
transmission and distribution systems, and an assessment of the ability of its
critical vendors to provide an uninterrupted supply of goods and/or services to
Cinergy.
Cinergy anticipates that its Year 2000 plan will be completed by June 1999. As
of July 31, 1998, the extent of completion ranged from approximately 75% for IT
systems to approximately 25% regarding assessment of critical vendors.
Cinergy estimates the total cost related to the Year 2000 plan will be
approximately $13 million, of which approximately $10 million has been incurred
through June 30, 1998. These costs are being funded through operating cash
flows.
The Company is in the process of developing a Year 2000 contingency plan.
Cinergy
Other Commitments In connection with its energy marketing and trading
activities, Cinergy has issued performance guarantees to numerous counterparties
totaling approximately $170 million.
RESULTS OF OPERATIONS
Cinergy, CG&E, PSI, and ULH&P
Reference is made to "Item 1. Financial Statements" in "Part I. Financial
Information."
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Cinergy, CG&E, PSI, and ULH&P Reference is made to the "Market Risk Sensitive
Instruments and Positions" section in "Item 2. Management's Discussion and
Analysis of Financial Condition and Results of Operations" in "Part I. Financial
Information."
<PAGE>
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Cinergy, CG&E, and PSI
See Notes 10, 11, 14, and 15 of the "Notes to Financial Statements" in "Part
I. Financial Information."
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits identified with a pound sign (#) are being filed herewith
by the registrant identified in the exhibit discussion below and are
incorporated herein by reference with respect to any other
designated registrant. Exhibits not so identified are filed
herewith:
Exhibit
Designation Nature of Exhibit
Cinergy and CG&E
4-A #Fifth Supplemental Indenture dated as of June 9,
1998, between CG&E and The Fifth Third Bank, as
Trustee. (Exhibit to CG&E's June 30, 1998, Form
10-Q in File No. 1-1232.)
Cinergy and PSI
4-B #Fourth Supplemental Indenture dated as of August
5, 1998, between PSI and The Fifth Third Bank, as
Trustee. (Exhibit to PSI's June 30, 1998, Form
10-Q in File No. 1-3543.)
4-C #Loan Agreement between PSI and the Indiana
Department Finance Authority dated as of July 15,
1998. (Exhibit to PSI's June 30, 1998, Form 10-Q
in File No. 1-3543.)
Cinergy, CG&E, and PSI
10-A #Third Amendment to Employment Agreement dated May
1, 1998, between Cinergy, Cinergy Services, Inc.,
CG&E, PSI and Larry E. Thomas. (Exhibit to
Cinergy's June 30, 1998, Form 10-Q in File No. 1-
11377.)
Cinergy, CG&E, PSI, and ULH&P
27 Financial Data Schedules (included in
electronic submission only).
The following reports on Form 8-K were filed during the quarter or prior to
the filing of the Form 10-Q for the quarter ended June 30, 1998.
Date of Report Item Filed
Cinergy
July 15, 1998 Item 5. Other Events
Item 7. Financial Statements and Exhibits
CG&E
July 15, 1998 Item 5. Other Events
PSI
July 15, 1998 Item 5. Other Events
<PAGE>
SIGNATURES
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted pursuant to such rules and regulations, although
Cinergy, CG&E, PSI, and ULH&P believe that the disclosures are adequate to make
the information presented not misleading. In the opinion of Cinergy, CG&E, PSI,
and ULH&P, these statements reflect all adjustments (which include only normal,
recurring adjustments) necessary to reflect the results of operations for the
respective periods. The unaudited statements are subject to such adjustments as
the annual audit by independent public accountants may disclose to be necessary.
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrants have duly caused this report to be signed by an
officer and the chief accounting officer on their behalf by the undersigned
thereunto duly authorized.
CINERGY CORP.
THE CINCINNATI GAS & ELECTRIC COMPANY
PSI ENERGY, INC.
THE UNION LIGHT, HEAT AND POWER COMPANY
Registrants
Date: August 13, 1998 /s/John P. Steffen
---------------------------------------
John P. Steffen
Duly Authorized Officer
and
Chief Accounting Officer
PSI ENERGY, INC.
AND
THE FIFTH THIRD BANK,
Trustee
Fourth Supplemental Indenture
Dated as of August 5, 1998
To
Indenture
Dated as of November 15, 1996
6.50% Synthetic Putable Yield Securities (SPYSsm) Due 2026
<PAGE>
FOURTH SUPPLEMENTAL INDENTURE, dated as of August 5, 1998 (this "Fourth
Supplemental Indenture"), between PSI Energy, Inc., a corporation duly organized
and existing under the laws of the State of Indiana (herein called the
"Company"), having its principal office at 1000 East Main Street, Plainfield,
Indiana 46168, and The Fifth Third Bank, an Ohio banking corporation, as Trustee
(herein called the "Trustee") under the Indenture dated as of November 15, 1996
between the Company and the Trustee (the "Original Indenture").
Recitals of the Company
The Company has executed and delivered the Original Indenture to the
Trustee to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the "Securities"), to be
issued in one or more series as in the Original Indenture provided.
Pursuant to the terms of the Original Indenture, the Company desires to
provide for the establishment of a new series of its Securities to be known as
its 6.50% Synthetic Putable Yield Securities (SPYSsm) Due 2026 (herein called
the "Debentures"), in this Fourth Supplemental Indenture.
All things necessary to make this Fourth Supplemental Indenture a valid
agreement of the Company have been done.
Now, Therefore, This Fourth Supplemental Indenture Witnesseth:
For and in consideration of the premises and the purchase of the
Debentures by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Debentures, as follows:
ARTICLE ONE
Defined Terms
Section 101. Defined Terms. Except as otherwise expressly provided in
this Fourth Supplemental Indenture or in the form of Debenture or otherwise
clearly required by the context hereof or thereof, all capitalized terms used
and not defined herein or in said form of Debenture that are defined in the
Original Indenture shall have the meanings assigned to them in the Original
Indenture. The Original Indenture, as supplemented from time to time, including
by this Fourth Supplemental Indenture, is hereafter referred to as the
"Indenture".
ARTICLE TWO
Terms of the Debentures
Section 201. Establishment of the Debentures. There is hereby
authorized a series of Securities designated the "6.50% Synthetic Putable Yield
Securities (SPYSsm) Due 2026", limited in aggregate principal amount to
$50,000,000. The Debentures shall be substantially in the form set forth in
Exhibit A hereto and shall include substantially the legend shown so long as the
Debentures are Global Securities.
Section 202. Terms of the Debentures. The Debentures will be issued and
maintained exclusively in the form of a registered Global Security without
coupons, registered in the name of Cede & Co., as nominee of The Depository
Trust Company (the "Depositary" or "DTC") except in the limited circumstances
described in Section 305 of the Original Indenture, and beneficial interests
therein may be acquired, or subsequently transferred, only in denominations of
$1,000 or integral multiples thereof. The provisions of Section 305 of the
Original Indenture applicable to Global Securities shall apply to the
Debentures.
The Debentures will bear interest at the rate of 6.50% from August 5,
1998 to but excluding August 1, 2005 (the "First Coupon Reset Date"). The First
Coupon Reset Date, August 1, 2012 and August 1, 2019, are each referred to
herein as a "Coupon Reset Date." If the Company has not theretofore purchased
the aggregate principal amount of the Debentures, in whole, the upcoming Coupon
Reset Date at any time is referred to herein as the "Applicable Coupon Reset
Date." Interest on the Debentures is payable semiannually on February 1 and
August 1 of each year, commencing February 1, 1999 (each an "Interest Payment
Date"). Interest will be calculated based on a 360-day year consisting of twelve
30-day months. On each Interest Payment Date, interest shall be payable to the
persons in whose name the Debentures are registered on the books of the Trustee
on the Business Day immediately preceding the related Interest Payment Date
(each a "Regular Record Date"). "Business Day" means any day other than a
Saturday, a Sunday or a day on which banking institutions in the City of New
York are authorized or required by law or regulation to be closed.
If the Callholder (as defined below) elects to purchase the principal
amount of the Debentures pursuant to its Call Option (as defined below), the
Calculation Agent (as defined below) will reset the interest rate effective on
the Applicable Coupon Reset Date for the Debentures, pursuant to procedures set
forth in the Calculation Agency Agreement (as defined below). In such
circumstance, (i) the principal amount of Debentures will be purchased by the
Callholder at 100% of the principal amount thereof on the Applicable Coupon
Reset Date, on the terms and subject to the conditions described herein and in
the Calculation Agency Agreement (interest accrued to but excluding the
Applicable Coupon Reset Date will be paid by the Company on such date to the
holders of the Debentures on the most recent Regular Record Date) and (ii) on
and after the Applicable Coupon Reset Date, the Debentures will bear interest at
the rate determined by the Calculation Agent in accordance with the procedures
set forth in the Calculation Agency Agreement and the form of Debentures.
The Debentures will mature on August 1, 2026 (the "Maturity Date"). On
the Applicable Coupon Reset Date, however, holders of the Debentures will be
entitled to receive 100% of the principal amount thereof either from (i) the
Callholder, if the Callholder purchases the Debentures, in whole but not in
part, pursuant to its Call Option described in Article Three hereof or (ii) the
Company, by the exercise of the Put Option (as defined below) by the Trustee for
and on behalf of the holders of the Debentures, if the Callholder does not
purchase the Debentures pursuant to the Call Option. If the Call Option is not
exercised or if the Call Option otherwise terminates, the Trustee shall exercise
the Put Option described in Article Four hereof without the consent of, or
notice to, the holders of the Debentures.
Principal of and interest on the Debentures will initially be payable
and the Debentures will be transferable at the corporate trust office of the
Trustee in the City of Cincinnati, located at 38 Fountain Square Plaza,
Cincinnati, Ohio 45263 provided that payment of interest may be made at the
option of the Company, by checks mailed to registered holders of the Debentures.
If the Debentures are issued in certificated form under the circumstances
described in Section 305 of the Original Indenture, payment shall be made at the
Corporate Trust Office of the Trustee against surrender of the applicable
Debentures.
ARTICLE THREE
Call Option
Section 301. Call Option. The Callholder, by giving notice to the
Trustee in accordance with Section 302 hereof, has the right to purchase the
aggregate principal amount of Debentures, in whole but not in part (the "Call
Option"), on the Applicable Coupon Reset Date, at a price equal to 100% of the
principal amount thereof (the "Call Price") (interest accrued to but excluding
the Applicable Coupon Reset Date to be paid by the Company on such date to the
holders of the Debentures on the most recent Regular Record Date). The Company,
as holder of the Call Option in respect of the Debentures, or any person to
which the Call Option is assigned in accordance with Section 305 hereof, is
referred to herein as the "Callholder" in respect of the Debentures.
In the event the Callholder exercises its rights under the Call Option,
unless terminated in accordance with its terms, then (i) not later than 2:00
p.m., New York time on the Business Day prior to the Applicable Coupon Reset
Date, the Callholder shall deliver the Call Price in immediately available funds
to the Trustee for payment of the Call Price on the Applicable Coupon Reset Date
and (ii) the holders of the Debentures will be required to deliver and will be
deemed to have delivered the Debentures to the Callholder against payment
therefor on the Applicable Coupon Reset Date through the facilities of the
Depositary.
The Callholder is not required to exercise the Call Option, and no
holder of the Debentures or any interest therein shall have any right or claim
against the Callholder as a result of the Callholder's decision whether or not
to exercise the Call Option or performance or non-performance of its obligations
with respect thereto.
Section 302. Notice. With respect to the Debentures and the Call Option
related thereto, the Callholder must deliver irrevocable, written notice (the
"Call Notice") to the Trustee of its exercise of the Call Option prior to 4:00
p.m. New York City, no later than fifteen (15) calendar days prior to the
Applicable Coupon Reset Date. The Call Notice shall contain the requisite
delivery details, including the identification of the Callholder's Depositary
Account. The Trustee shall send a copy of the Call Notice to the holders of the
Debentures no later than the immediately succeeding Business Day.
Section 303. Termination of Call Option. Except as otherwise specified in
clause (a) below, the Call Option will automatically and immediately terminate,
no payment will be due from the Callholder and the Coupon Reset Process will
terminate, if any of the following occurs: (a) at any time prior to the sale of
the Debentures on the third Business Day immediately preceding the Applicable
Coupon Reset Date (the "Bid Date"), (i) an Event of Default has occurred and is
continuing under Sections 501(1), (2), (3), (4) or (7) under the Original
Indenture, (ii) a default, event of default or other similar condition or event
(however described) in respect of the Company or any of its subsidiaries has
occurred under one or more agreements or instruments relating to indebtedness of
the Company or any of its subsidiaries (individually or collectively) in an
aggregate amount of not less than $25,000,000, which has resulted in such
indebtedness becoming due and payable, under such agreements or instruments,
before it would otherwise have been due and payable, or (iii) the Company or any
of its subsidiaries has defaulted in making one or more payments on the due date
thereof in an aggregate amount of not less than $25,000,000 under such
agreements or instruments (after giving effect to any applicable notice
requirement or grace period) (in any such event, termination is at Callholder's
option) or an Event of Default has occurred and is continuing under Sections
501(5) or (6) under the Original Indenture (in any such event, termination is
automatic), (b) if following the Call Notice, less than two dealers named on a
list of dealers provided by the Company to Donaldson, Lufkin & Jenrette
Securities Corporation, as calculation agent (the "Calculation Agent"), have
provided an irrevocable written offer for the purchase of the Debentures,
settling on the Applicable Coupon Reset Date, in a timely manner as provided in
the Calculation Agency Agreement, dated as of August 5, 1998 (the "Calculation
Agency Agreement"), between the Company and the Calculation Agent, (c) if,
following the Call Notice, the Callholder fails to pay the Call Price by 2:00
p.m., New York time, on the Business Day prior to the Applicable Coupon Reset
Date due to the occurrence of a Market Disruption Event, (d) if the Company
elects to have Section 1302 (Defeasance and Discharge) or Section 1303 (Covenant
Defeasance) under the Original Indenture applied to any of its Securities or any
series of its Securities or (e) if the Company exercises the Optional Redemption
(as defined herein) under Section 501 hereof. "Market Disruption Event" shall
mean any of the following events, if such events occur or are continuing on any
day from, and including, 15 calendar days prior to the upcoming Coupon Reset
Date to, and including, the Bid Date in the judgment of the Calculation Agent:
(A) a suspension or material limitation in trading in securities generally on
the New York Stock Exchange or the establishment of minimum prices on such
exchange; (B) a general moratorium on commercial banking activities declared by
either federal or New York State authorities; (C) any material adverse change in
the existing financial, political or economic conditions in the United States of
America; (D) an outbreak or escalation of major hostilities involving the United
States of America or the declaration of a national emergency or war by the
United States of America; or (E) any material disruption of the U.S. Treasury
securities market, U.S. corporate bond market or U.S. federal wire system;
provided, in each case, that in the judgment of the Calculation Agent the effect
of the foregoing makes it impractical to conduct the Coupon Reset Process.
Section 304. Trustee Notification.
(i) The Company and, if different, the Callholder will promptly notify
the Trustee in writing of the termination of the Call Option. The Trustee will
promptly thereafter notify the holders of the Debentures that the Trustee, on
behalf of such holders, is required to exercise the Put Option on the Applicable
Coupon Reset Date.
(ii) In anticipation of the exercise of the Call Option or the Put
Option on the Applicable Coupon Reset Date, the Trustee shall notify the holders
of the Debentures, not less than 30 days nor more than 60 days prior to the
Applicable Coupon Reset Date, that all Debentures shall be delivered on the
Applicable Coupon Reset Date through the facilities of the Depositary against
payment of the Call Price by the Callholder under the Call Option or payment of
the Put Price (as defined below) by the Company under the Put Option.
Section 305. Successors and Assigns. A Callholder may at any time
assign its rights and obligations under its Call Option; provided, however, (i)
such rights and obligations are assigned in whole and not in part and (ii) it
provides the Trustee and the Company with notice of such assignment
contemporaneously with such assignment. Upon receipt of notice of assignment,
the Trustee shall treat the assignee as Callholder under such Call Option for
all purposes hereunder. A Callholder may assign its rights under its Call Option
without notice to, or consent of, the holders of the Debentures.
ARTICLE FOUR
Put Option
Section 401. If the Call Option is not exercised or if the Call Option
otherwise terminates, the Trustee is required to exercise the right of the
holders of the Debentures to require the Company to purchase the aggregate
principal amount of Debentures, in whole but not in part (the "Put Option"), on
the Applicable Coupon Reset Date at a price equal to 100% of the principal
amount thereof (the "Put Price"), plus accrued but unpaid interest to but
excluding such Applicable Coupon Reset Date, in each case, to be paid by the
Company to such Holders on the Applicable Coupon Reset Date.
If the Trustee exercises the Put Option then the Company shall deliver
the Put Price in immediately available funds to the Trustee by no later than
12:00 p.m. New York time on the Applicable Coupon Reset Date and the holders of
the Debentures will be required to deliver and will be deemed to have delivered
the Debentures to the Company against payment therefor on the Applicable Coupon
Reset Date through the facilities of the Depositary. By its purchase of
Debentures, each holder irrevocably agrees that the Trustee shall exercise the
Put Option relating to such Debentures for or on behalf of each holder of such
Debentures as provided herein. No holder of any Debentures or of any interest
therein has the right to consent or object to the exercise of the Trustee's
duties under the Put Option.
ARTICLE FIVE
Optional Redemption
Section 501. Subject to the terms of Article Eleven of the Original
Indenture, the Company shall have the right to redeem the Offered Debentures, in
whole but not in part, from time to time and at any time (such redemption, an
"Optional Redemption", and the date thereof, the "Optional Redemption Date")
upon not less than 30 days' notice to the holders, at a redemption price equal
to the sum of (A) the greater of (i) 100% of the principal amount of the
Debentures to be redeemed or (ii) the sum of the present values of the Remaining
Scheduled Payments thereon discounted to the Optional Redemption Date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate plus 15 basis points, less the Applicable Accrued Interest
Amount plus (B) the Applicable Accrued Interest Amount.
"Applicable Accrued Interest Amount" means, at the Optional Redemption
Date, the amount of interest accrued and unpaid from the prior interest payment
date to the Optional Redemption Date on the Debentures subject to the Optional
Redemption determined at the rate per annum shown in the title thereof, computed
on the basis of a 360-day year of twelve 30-day months.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Debentures to be redeemed pursuant to the
Optional Redemption. "Independent Investment Banker" means one of the Reference
Treasury Dealers appointed by the Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to the Optional
Redemption Date, the average of the Reference Treasury Dealer Quotations for
such Optional Redemption Date.
"Reference Treasury Dealer" means a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"). "Reference Treasury
Dealer Quotations" means, with respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the Trustee, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 5:00 p.m. on the third Business Day preceding such redemption
date.
"Remaining Scheduled Payments" means, with respect to any Debenture,
the amount of interest that is unpaid and would but for the Optional Redemption
accrue to but excluding the next scheduled succeeding Coupon Reset Date or, if
there are no more Coupon Reset Dates, the Maturity Date plus 100% of the
principal amount thereof scheduled to be received on the next scheduled Coupon
Reset Date or the Maturity Date, as the case may be.
"Treasury Rate" means, with respect to the Optional Redemption Date (if
any), the rate per annum equal to the semiannual equivalent yield to maturity of
the Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Optional Redemption Date.
ARTICLE SIX
Original Issuance of Debentures
Section 601. Debentures in the aggregate principal amount of
$50,000,000, may, upon execution of this Fourth Supplemental Indenture, or from
time to time thereafter, be executed by the Company and delivered to the Trustee
for authentication, and the Trustee shall thereupon authenticate and deliver
said Debentures upon a Company Order without any further action by the Company.
ARTICLE SEVEN
Paying Agent and Security Registrar
Section 701. The Fifth Third Bank will be the paying Agent and Security
Registrar for the Debentures.
ARTICLE EIGHT
Sundry Provisions
Section 801. Appointment of Replacement Calculation Agent. If the
Calculation Agent is removed or resigns pursuant to Section 7 of the Calculation
Agency Agreement and within 30 days of notice of such removal or resignation no
new Calculation Agent shall have been appointed by the Company, and shall have
accepted such appointment, the Trustee may, on behalf of the holders of the
Debentures, appeal to a court to appoint a new Calculation Agent.
Section 802. The Original Indenture, as supplemented by this Fourth
Supplemental Indenture, is in all respects ratified and confirmed, and this
Fourth Supplemental Indenture shall be deemed part of the Original Indenture in
the manner and to the extent herein and therein provided.
Section 803. Counterparts. This Fourth Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed an original, but all such counterparts shall together constitute but one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed as of the date first written above.
PSI ENERGY, INC.
By /s/ William L. Sheafer
William L. Sheafer
Vice President and
Treasurer
THE FIFTH THIRD BANK, as Trustee
By /s/ Kerry Byrne
Kerry Byrne
Vice President
<PAGE>
EXHIBIT A
[FORM OF FACE OF DEBENTURE]
PSI ENERGY, INC.
No. R-1
CUSIP No.693627AF8 $50,000,000
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
PSI ENERGY, INC., a corporation duly organized and existing under the laws
of the State of Indiana (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of Fifty Million and No/100 Dollars ($50,000,000) on August 1,
2026, and to pay interest thereon from August 5, 1998 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for at
the rate determined as set forth on the reverse hereof, semiannually on February
1 and August 1 of each year (each an "Interest Payment Date"), commencing
February 1, 1999, on said principal sum. 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 Business Day
immediately preceding such Interest Payment Date. Any such interest which is
payable, but is not punctually paid or duly provided for on any Interest Payment
Date ("Defaulted Interest") 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 then listed, and upon such notice as may be required by such exchange,
all as more fully provided in such Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security shall be made at the corporate trust office of the Trustee maintained
for that purpose in the City of Cincinnati, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
Any payment on this Security due on any day which is not a Business Day in
the City of New York need not be made on such day, but may be made on the next
succeeding Business Day with the same force and effect as if made on the due
date and no interest shall accrue for the period from and after such due date,
unless such payment is a payment at maturity or upon redemption, in which case
interest shall accrue thereon at the stated rate for such additional days.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday or a day on which banking institutions in New York, New York are
authorized or required by law or regulation to be closed.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, including those describing the Call Option, the Put
Option, the Optional Redemption and the Coupon Reset Process, which further
provisions shall for all purposes have the same effect as if set forth at this
place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
PSI ENERGY, INC.
By:_________________________________
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:
THE FIFTH THIRD BANK, as Trustee
By:_________________________________
Authorized Signatory
<PAGE>
[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 November 15, 1996 (herein called the
"Indenture", which term shall have the meaning assigned to it in such instrument
as supplemented), 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 of this series and
of the terms upon which the Securities of this series are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $50,000,000.
Subject to the Call Option, the Put Option and the Optional Redemption
described below, the Securities of this series are not redeemable prior to
maturity. The terms of the Securities of this series include those stated in the
Indenture. The Securities of this series are subject to all such terms and
Holders (including the Holder hereof) are referred to the Indenture for a
statement of those terms. Capitalized terms used but not defined herein shall
have the respective meanings assigned to them in the Indenture.
Interest Rate and Interest Payment Dates
This Security will bear interest at the rate of 6.50% from August 5, 1998
to but excluding August 1, 2005 (the "First Coupon Reset Date"). The First
Coupon Reset Date, August 1, 2012 and August 1, 2019, are each referred to
herein as a "Coupon Reset Date." If the Company has not theretofore purchased
the aggregate principal amount of the Securities of this series , in whole, the
upcoming Coupon Reset Date at any time is referred to herein as the "Applicable
Coupon Reset Date." Interest on this Security is payable semiannually on
February 1 and August 1 of each year, commencing February 1, 1999 (each an
"Interest Payment Date"). Interest on this Security will be calculated based on
a 360-day year consisting of twelve 30-day months. On each Interest Payment
Date, interest shall be payable to the persons in whose names the Securities of
this series are registered (including the Holder hereof) on the books of the
Trustee on the Business Day immediately preceding the related Interest Payment
Date (each a "Regular Record Date").
If the Callholder (as defined below) elects to purchase the principal
amount of this Security pursuant to its Call Option (as defined below), the
Calculation Agent (as defined below) will reset the interest rate effective on
the Applicable Coupon Reset Date for this Security, pursuant to the procedures
set forth in the Calculation Agency Agreement (as defined below). In such
circumstance, (i) the principal amount hereof will be purchased by the
Callholder at 100% of the principal amount hereof on the Applicable Coupon Reset
Date, on the terms and subject to the conditions described herein and in the
Calculation Agency Agreement (interest accrued to but excluding the Applicable
Coupon Reset Date will be paid by the Company on such date to the Holder hereof
on the most recent Regular Record Date) and (ii) on and after the Applicable
Coupon Reset Date, this Security will bear interest at the rate determined by
the Calculation Agent in accordance with the procedures set forth in the
Calculation Agency Agreement and described herein.
Maturity Date
This Security will mature on August 1, 2026 (the "Maturity Date"). On the
Applicable Coupon Reset Date, however, the Holder hereof will be entitled to
receive 100% of the principal amount hereof from (i) the Callholder, if the
Callholder purchases this Security pursuant to its Call Option or (ii) the
Company, by the exercise of the Put Option by the Trustee for and on behalf of
the Holder hereof, if the Callholder does not purchase this Security pursuant to
the Call Option. If the Call Option is not exercised or if the Call Option
otherwise terminates, the Trustee shall exercise the Put Option described below
without the consent of, or notice to, the Holder hereof.
Call Option; Put Option
(i) Call Option. The Callholder, by giving notice to the Trustee (the "Call
Notice"), has the right to purchase the aggregate principal amount hereof, in
whole but not in part (the "Call Option"), on the Applicable Coupon Reset Date,
at a price equal to 100% of the principal amount hereof (the "Call Price")
(interest accrued to but excluding the Applicable Coupon Reset Date to be paid
by the Company on such date to the Holder hereof on the most recent Regular
Record Date). The Company, as holder of the Call Option in respect of the
Securities of this series, or any person to which the Call Option is assigned in
accordance with Section 305 of the Fourth Supplemental Indenture, is referred to
herein as the "Callholder" in respect of the Securities of this series. The Call
Notice shall be given to the Trustee, in writing, prior to 4:00 p.m. New York
City, no later than fifteen calendar days prior to the Applicable Coupon Reset
Date. The Call Notice shall contain the requisite delivery details, including
the identification of the Callholder's DTC Account. The Trustee shall send a
copy of the Call Notice to the Holder hereof no later than the immediately
succeeding Business Day.
In the event the Callholder exercises its rights under the Call Option,
unless terminated in accordance with its terms, then (i) not later than 2:00
p.m., New York time, on the Business Day prior to the Applicable Coupon Reset
Date, the Callholder shall deliver the Call Price in immediately available funds
to the Trustee for payment thereof to the Holder hereof of the Call Price on the
Applicable Coupon Reset Date and (ii) the Holder hereof will be required to
deliver and will be deemed to have delivered this Security to the Callholder
against payment therefor on the Applicable Coupon Reset Date through the
facilities of DTC. The Callholder is not required to exercise the Call Option,
and no Holder of the Securities of this series (including, the Holder hereof) or
any interest herein shall have any right or claim against the Callholder as a
result of the Callholder's decision whether or not to exercise the Call Option
or performance or non-performance of its obligations with respect thereto.
The Callholder may at any time assign its rights and obligations under its
Call Option; provided, however, (i) such rights and obligations are assigned in
whole and not in part and (ii) it provides the Trustee and the Company with
notice of such assignment contemporaneously with such assignment. Upon receipt
of notice of assignment, the Trustee shall treat the assignee as Callholder
under such Call Option for all purposes hereunder. The Callholder may assign its
rights under its Call Option without notice to, or consent of, the Holder hereof
The Indenture sets forth certain circumstances in which the Call Option
will automatically be terminated.
(ii) Put Option. If the Call Option is not exercised or if the Call Option
otherwise terminates, the Trustee is required to exercise the right of the
Holder hereof to require the Company to purchase the aggregate principal amount
of this Security, in whole but not in part (the "Put Option"), on the Applicable
Coupon Reset Date at a price equal to 100% of the principal amount hereof (the
"Put Price"), plus accrued but unpaid interest to but excluding such Applicable
Coupon Reset Date, in each case, to be paid by the Company to the Holder hereof
on the Applicable Coupon Reset Date.
If the Trustee exercises the Put Option then the Company shall deliver the
Put Price in immediately available funds to the Trustee by no later than 12:00
p.m. New York time on the Applicable Coupon Reset Date and the Holder hereof
will be required to deliver and will be deemed to have delivered this Security
to the Company against payment therefor on the Applicable Coupon Reset Date
through the facilities of DTC. By its purchase of this Security, each Holder
irrevocably agrees that the Trustee shall exercise the Put Option relating to
such Security for or on behalf each Holder of such Security as provided herein.
No Holder of this Security or of any interest herein has the right to consent or
object to the exercise of the Trustee's duties under the Put Option.
Notice to Holders by Trustee
In anticipation of the exercise of the Call Option or the Put Option on the
Applicable Coupon Reset Date, the Trustee shall notify the Holder hereof, not
less than 30 days nor more than 60 days prior to the Applicable Coupon Reset
Date, that this Security shall be delivered on the Applicable Coupon Reset Date
through the facilities of DTC against payment of the Call Price by the
Callholder under the Call Option or payment of the Put Price by the Company
under the Put Option.
Coupon Reset Process if Securities are Called
Pursuant to and subject to the terms of a Calculation Agency Agreement,
dated August 5, 1998, between the Company and Donaldson, Lufkin & Jenrette
Securities Corporation, Donaldson, Lufkin & Jenrette Securities Corporation has
been appointed the calculation agent for the Securities of this series in
connection with the Call Option (in such capacity as calculation agent, together
with any successors or assigns, the "Calculation Agent"). If the Callholder has
exercised the Call Option, then the following steps (the "Coupon Reset Process")
shall be taken in order to determine the interest rate to be paid on the
Securities of this series from and including the Applicable Coupon Reset Date to
but excluding the next succeeding Coupon Reset Date or, if there are no more
Coupon Reset Dates after the Applicable Coupon Reset Date, the Maturity Date.
The Company and the Calculation Agent shall use reasonable efforts to cause the
actions contemplated below to be completed in as timely a manner as possible.
(a) The Company shall provide the Calculation Agent with (i) a list
(the "Dealer List"), no later than five Business Days prior to each Coupon
Reset Date (unless the Call Option has been terminated prior to such Coupon
Reset Date), containing the names and addresses of three dealers, one of
which shall be Donaldson, Lufkin & Jenrette Securities Corporation, from
which the Company desires the Calculation Agent to obtain the Bids (as
defined below) for the purchase of the Securities of this series and (ii) a
copy of any other material reasonably requested by the Calculation Agent to
facilitate a successful Coupon Reset Process.
(b) Within one Business Day following receipt by the Calculation Agent
of the Dealer List, the Calculation Agent shall provide to each dealer
("Dealer") on the Dealer List (i) a copy of the Prospectus Supplement dated
July 29, 1998 and Prospectus dated July 29, 1998, relating to the offering
of the Securities of this series (collectively, the "Prospectus"), (ii) a
copy of the form of Securities of this series and (iii) a written request
that each such dealer submit a Bid to the Calculation Agent no later than
3:00 p.m., New York time, on the third Business Day prior to the Applicable
Coupon Reset Date (the "Bid Date"). "Bid" shall mean an irrevocable written
offer given by a Dealer for the purchase of all of the Securities of this
series, settling on the Applicable Coupon Reset Date, and shall be quoted
by such Dealer as a stated yield to maturity on the Securities of this
series ("Yield to Maturity"). Each Dealer shall also be provided with (i)
the name of the Company, (ii) an estimate of the Purchase Price (which
shall be stated as a US Dollar amount and be calculated by the Calculation
Agent in accordance with clause (c) below), (iii) the principal amount and
Maturity Date of the Securities of this series and (iv) the method by which
interest will be calculated on the Securities of this series .
(c) The purchase price to be paid by any Dealer for the Securities of
this series in connection with the exercise of the Call Option (the
"Purchase Price") shall be equal to the sum of (i) the principal amount of
the Securities of this series, and (ii) an amount (the "Debentures
Difference") which shall be equal to the difference, if any, of (A) the
discounted present value to the Applicable Coupon Reset Date of a debenture
with a maturity of seven years from the Applicable Coupon Reset Date which
has an interest rate of 5.585%, semiannual interest payments on each
February 1st and August 1st, commencing the February 1 following the
Applicable Coupon Reset Date, and a principal amount equal to the principal
amount of the Securities of this series and assuming a discount rate equal
to the Treasury Rate minus (B) such principal amount of Securities of this
series. The "Treasury Rate" means the per annum rate equal to the offer
side yield to maturity of the linearly interpolated 7-year United States
Treasury rate which shall be defined as 60% of the per annum rate of the
current on-the-run 5-year United States Treasury security plus 40% of the
per annum rate of the current on-the-run 10-year United States Treasury
security per Telerate page 500, or any successor page, no later than 3:00
p.m., New York time, on the Bid Date (or such other date and time that may
be agreed upon by the Company and the Calculation Agent) or, if such rate
does not appear on Telerate page 500, or any successor page, at such time,
the rate shall be the 7-year Constant Maturity Treasury rate as defined on
Federal Reserve Statistical Release H-15 at 3:00 p.m., New York time, on
the Bid Date (or such other date and time that may be agreed upon by the
Company and the Calculation Agent)
(d) The Calculation Agent shall provide written notice to the Company
as soon as practicable on the Bid Date, setting forth (i) the names of each
of the Dealers from whom the Calculation Agent received Bids on the Bid
Date, (ii) the Bid submitted by each such Dealer and (iii) the Purchase
Price as determined pursuant to paragraph (c) hereof. Except as provided
below, the Calculation Agent shall thereafter select from the Bids received
the Bid with the lowest Yield to Maturity (the "Selected Bid"); provided,
however, that if the Calculation Agent has not received a timely Bid from a
Dealer on or before the Bid Date, the Selected Bid shall be the lowest of
all Bids received by such time; provided further that if any two or more of
the lowest Bids submitted are equivalent, the Company shall in its sole
discretion select any of such equivalent Bids (and such selected Bid shall
be the Selected Bid). The Calculation Agent shall set the Coupon Reset Rate
equal to the interest rate which would amortize the Debentures Difference
fully over the term of the Securities of this series at the Yield to
Maturity indicated by the Selected Bid (the "Coupon Reset Rate").
(e) Immediately after calculating the Coupon Reset Rate for the
Securities of this series, the Calculation Agent shall provide written
notice to the Company and the Trustee, setting forth such Coupon Reset
Rate. At the request of the Holders, the Calculation Agent will provide to
the Holders the Coupon Reset Rate. The Coupon Reset Rate for the Securities
of this series will be effective from and including the Applicable Coupon
Reset Date to but excluding the next succeeding Coupon Reset Date, or if
there are no more Applicable Coupon Reset Dates after the Applicable Coupon
Reset Date, the Maturity Date.
(f) The Callholder shall sell the Securities of this series to the
Dealer that made the Selected Bid at the Purchase Price, such sale to be
settled on the Applicable Coupon Reset Date in immediately available funds.
(g) In the event that the Call Option is terminated in accordance with
its terms, the Coupon Reset Process shall also terminate.
Optional Redemption
The Securities of this series are subject to optional redemption, in whole
but not in part, from time to time and at any time (such redemption, an
"Optional Redemption", and the date thereof, the "Optional Redemption Date")
upon not less than 30 days' notice to the holders, at a redemption price equal
to the sum of (A) the greater of (i) 100% of the principal amount of the
Securities of this series to be redeemed or (ii) the sum of the present values
of the Remaining Scheduled Payments thereon discounted to the Optional
Redemption Date on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate plus 15 basis points, less the
Applicable Accrued Interest Amount plus (B) the Applicable Accrued Interest
Amount.
"Applicable Accrued Interest Amount" means, at the Optional Redemption
Date, the amount of interest accrued and unpaid from the prior interest payment
date to the Optional Redemption Date on the Securities of this series subject to
the Optional Redemption determined at the rate per annum shown in the title
thereof, computed on the basis of a 360-day year of twelve 30-day months.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Securities of this series to be redeemed
pursuant to the Optional Redemption. "Independent Investment Banker" means one
of the Reference Treasury Dealers appointed by the Trustee after consultation
with the Company.
"Comparable Treasury Price" means, with respect to the Optional Redemption
Date, the average of the Reference Treasury Dealer Quotations for such Optional
Redemption Date.
"Reference Treasury Dealer" means a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"). "Reference Treasury
Dealer Quotations" means, with respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the Trustee, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 5:00 p.m. on the third Business Day preceding such redemption
date.
"Remaining Scheduled Payments" means, with respect to any Securities of
this series, that amount of interest that is unpaid and would but for the
Optional Redemption accrue to but excluding the next scheduled succeeding Coupon
Reset Date or, if there are no more Coupon Reset Dates, the Maturity Date plus
100% of the principal amount thereof scheduled to be received on the next
scheduled Coupon Reset Date or the Maturity Date, as the case may be.
"Treasury Rate" means, with respect to the Optional Redemption Date (if
any), the rate per annum equal to the semiannual equivalent yield to maturity of
the Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Optional Redemption Date.
No Sinking Fund
The Securities of this series shall not be subject to a sinking fund
requirement.
Discharge and Defeasance
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security or certain restrictive covenants and Events of
Default with respect to this Security upon compliance by the Company with
certain conditions set forth in the Indenture.
Events of Default
If an Event of Default with respect to the Securities of this series shall
occur and be continuing, the unpaid principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
Amendments to Indenture; Waiver of Defaults
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 not less than a majority in principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of a majority in principal
amount of the Securities of each series at the time Outstanding, on behalf of
the Holders of all the 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 any right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 35% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonably satisfactory indemnity,
and the Trustee shall not have received from the Holders of a majority in
principal amount of the 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.
Obligations Unconditional
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.
Transfer and Exchange
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 its 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 unpaid
principal amount, shall be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. Holders
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.
CUSIP Number
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused a CUSIP number to be
printed on this Security as a convenience to the Holder hereof. No
representation is made as to the accuracy of such number and reliance may be
placed only on the other identifying information printed hereon.
Governing Law
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
LOAN AGREEMENT
between
INDIANA DEVELOPMENT FINANCE AUTHORITY
and
PSI ENERGY, INC.
-------------------------------
$23,000,000
Indiana Development Finance Authority
Environmental Refunding
Revenue Bonds, Series 1998
(PSI Energy, Inc. Project)
-------------------------------
Dated
as of
July 15, 1998
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS........................................... 2
Section 1.1. Use of Defined Terms.................................. 2
Section 1.2. Definitions........................................... 2
Section 1.3. Interpretation........................................ 7
Section 1.4. Captions and Headings................................. 7
ARTICLE II REPRESENTATIONS....................................... 8
Section 2.1. Representations of the Issuer......................... 8
Section 2.2. No Warranty by Issuer of Condition or Suitability of
the Project 8
Section 2.3. Representations and Covenants of the Company.......... 8
ARTICLE III COMPLETION OF THE PROJECT; ISSUANCE OF THE BONDS..... 12
Section 3.1. Acquisition, Construction and Installation........... 12
Section 3.2. Project Description.................................. 12
Section 3.3. Issuance of the Bonds; Application of Proceeds....... 12
Section 3.4. Investment of Fund Moneys............................ 13
Section 3.5. Rebate Fund.......................................... 13
ARTICLE IV LOAN BY ISSUER; LOAN PAYMENTS; ADDITIONAL PAYMENTS;
AND CREDIT FACILITY................................ 15
Section 4.1. Loan Repayment....................................... 15
Section 4.2. Additional Payments.................................. 15
Section 4.3. Place of Payments.................................... 16
Section 4.4. Obligations Unconditional............................ 16
Section 4.5. Assignment of Revenues and Agreement................. 16
Section 4.6. Credit Facility; Alternate Credit Facility;
Cancellation....................................... 16
Section 4.7. Company's Option to Elect Rate Period................ 17
Section 4.8. Company's Obligation to Purchase Bonds............... 17
ARTICLE V ADDITIONAL AGREEMENTS AND COVENANTS.................. 18
Section 5.1. Right of Inspection.................................. 18
Section 5.2. Maintenance.......................................... 18
Section 5.3. Removal of Portions of the Project Facilities........ 18
Section 5.4. Operation of Project Facilities...................... 18
Section 5.5. Insurance............................................ 19
Section 5.6. Workers' Compensation Coverage....................... 19
Section 5.7. Damage; Destruction and Eminent Domain............... 19
Section 5.8. Company to Maintain its Corporate Existence;
Conditions Under Which Exceptions Permitted........ 19
Section 5.9. Indemnification...................................... 20
Section 5.10. Company Not to Adversely Affect Exclusion of
Interest on Bonds From Gross Income For Federal
Income Tax Purposes................................ 21
Section 5.11. Use of Project Facilities............................ 21
Section 5.12. Assignment by Company................................ 21
ARTICLE VI REDEMPTION........................................... 23
Section 6.1. Optional Redemption.................................. 23
Section 6.2. Extraordinary Optional Redemption.................... 23
Section 6.3. Mandatory Redemption................................. 25
Section 6.4. Notice of Redemption................................. 25
Section 6.5. Actions by Issuer.................................... 25
ARTICLE VII EVENTS OF DEFAULT AND REMEDIES....................... 26
Section 7.1. Events of Default.................................... 26
Section 7.2. Remedies on Default.................................. 27
Section 7.3. No Remedy Exclusive.................................. 28
Section 7.4. Agreement to Pay Attorneys' Fees and Expenses........ 28
Section 7.5. No Waiver............................................ 28
Section 7.6. Notice of Default.................................... 28
ARTICLE VIII MISCELLANEOUS........................................ 29
Section 8.1. Term of Agreement.................................... 29
Section 8.2. Amounts Remaining in Funds........................... 29
Section 8.3. Notices.............................................. 29
Section 8.4. Extent of Covenants of the Issuer; No Personal
Liability.......................................... 29
Section 8.5. Binding Effect....................................... 30
Section 8.6. Amendments and Supplements........................... 30
Section 8.7. References to Credit Facility........................ 30
Section 8.8. Execution Counterparts............................... 30
Section 8.9. Severability......................................... 30
Section 8.10. Governing Law........................................ 30
<PAGE>
LOAN AGREEMENT
THIS LOAN AGREEMENT is made and entered into as of July 15, 1998
between the INDIANA DEVELOPMENT FINANCE AUTHORITY (the "Issuer"), a separate
body corporate and politic organized and existing under the laws of the State of
Indiana, and PSI ENERGY, INC. (the "Company"), a public utility and corporation
duly organized and validly existing under the laws of the State of Indiana.
Capitalized terms used in the following recitals are used as defined in Article
I of this Agreement.
Pursuant to Indiana Code, Title 4, Article 4, Chapters 10.9 and 11
(collectively, the "Act"), the Issuer has determined to issue, sell and deliver
the Bonds, and to lend the proceeds derived from the sale thereof to the Company
to assist in the refunding of the Refunded Bonds as defined below. The Refunded
Bonds were issued to provide funds to make a loan to the Company to assist in
the financing of its portion of the costs of the Project as defined below.
The Company and the Issuer each have full right and lawful authority to
enter into this Agreement and to perform and observe the provisions hereof on
their respective parts to be performed and observed.
NOW THEREFORE, in consideration of the premises and the mutual
representations and agreements hereinafter contained, the Issuer and the Company
agree as follows (provided that any obligation of the Issuer or the State
created by or arising out of this Agreement shall never constitute a general
debt of the Issuer or the State or give rise to any pecuniary liability of the
Issuer or the State but shall be payable solely out of Revenues, including the
Loan Payments made pursuant hereto and moneys drawn under any Credit Facility):
<PAGE>
ARTICLE I
DEFINITIONS
Section I.1. Use of Defined Terms. In addition to the words and terms
defined elsewhere in this Agreement or by reference to another document, the
words and terms set forth in Section 1.2 hereof shall have the meanings set
forth therein unless the context or use clearly indicates another meaning or
intent. Such definitions shall be equally applicable to both the singular and
plural forms of any of the words and terms defined therein.
Section I.2. Definitions. As used herein:
"Act" means, collectively, Indiana Code, Title 4, Article 4, Chapters 10.9
and 11.
"Additional Payments" means the amounts required to be paid by the Company
pursuant to the provisions of Section 4.2 hereof.
"Administration Expenses" means the compensation (which compensation shall
not be greater than that typically charged in similar circumstances) and
reimbursement of reasonable expenses and advances payable to the Trustee, the
Registrar, the Remarketing Agent, any Paying Agent and any Authenticating Agent.
"Agreement" means this Loan Agreement, as amended or supplemented from time
to time.
"Alternate Credit Facility" means an Alternate Credit Facility as defined
in the Indenture.
"Authenticating Agent" means the Authenticating Agent as defined in the
Indenture.
"Bank" means the Bank as defined in the Indenture.
"Bond Fund" means the Bond Fund created in the Indenture.
"Bond Purchase Fund" means the Bond Purchase Fund as defined in the
Indenture.
"Bond Resolution" means the resolution of the Issuer providing for the
issuance of the Bonds and approving this Agreement, the Indenture and related
matters, as amended or supplemented from time to time.
"Bond Service Charges" means, for any period or time, the principal of,
premium, if any, and interest due on the Bonds for that period or payable at
that time whether due at maturity or upon acceleration or redemption or
otherwise.
"Bonds" means the $23,000,000 Indiana Development Finance Authority
Environmental Refunding Revenue Bonds, Series 1998 (PSI Energy, Inc. Project),
issued by the Issuer pursuant to the Bond Resolution and the Indenture.
"Bonds Outstanding" or "Outstanding Bonds" means Outstanding Bonds as
defined in the Indenture.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time. References to the Code and Sections of the Code include relevant
applicable regulations and proposed regulations thereunder and under the 1954
Code and any successor provisions to those Sections, regulations or proposed
regulations and, in addition, all applicable official rulings and judicial
determinations under the foregoing applicable to the Bonds.
"Conversion Date" means the Conversion Date as defined in the Indenture.
"Credit Facility" means a Credit Facility as defined in the Indenture.
"Credit Facility Account" means the Credit Facility Account as defined in
the Indenture.
"Credit Facility Issuer" means a Credit Facility Issuer as defined in the
Indenture.
"Eligible Investments" means Eligible Investments as defined in the
Indenture.
"Engineer" means an engineer (who may be an employee of the Company) or
engineering firm qualified to practice the profession of engineering under the
laws of the State and who or which is acceptable to the Trustee.
"EPA" means the Department of Environmental Management of the State and any
successor body, agency, commission or department.
"Event of Default" means any of the events described as an Event of Default
in Section 7.1 hereof.
"Force Majeure" means any of the causes, circumstances or events described
as constituting Force Majeure in Section 7.1 hereof.
"Generating Stations" means collectively the Gibson Generating Station,
Cayuga Generating Station, Edwardsport Generating Station, Gallagher Generating
Station and the Wabash River Generating Station and "Generating Station" means
any one of such separately.
"Government Obligations" means Government Obligations as defined in the
Indenture.
"Holder" or "Holder of a Bond" means the Person in whose name a Bond is
registered on the Register.
"Indenture" means the Trust Indenture, dated as of the same date as this
Agreement, between the Issuer and the Trustee, as amended or supplemented from
time to time.
"Interest Rate for Advances" means the interest rate per year payable on
the Bonds.
"Letter of Credit" means the Letter of Credit as defined in the Indenture.
"Loan" means the loan by the Issuer to the Company of the proceeds received
from the sale of the Bonds.
"Loan Payment Date" means any date on which any Bond Service Charges are
due and payable.
"Loan Payments" means the amounts required to be paid by the Company in
repayment of the Loan pursuant to Section 4.1 hereof.
"1954 Code" means the Internal Revenue Code of 1954 as amended from time to
time through the date of enactment of the Code. References to the 1954 Code and
Sections of the 1954 Code include relevant applicable regulations (including
temporary regulations) and proposed regulations thereunder and any successor
provisions to those Sections, regulations or proposed regulations.
"Notice Address" means:
(a) As to the Issuer: Indiana Development Finance Authority
One North Capitol, Suite 320
Indianapolis, Indiana 46204
Attention: Executive Director
(b) As to the Company: PSI Energy, Inc.
1000 East Main Street
Plainfield, Indiana 46168
Attention: Treasurer
with a copy to:
PSI Energy, Inc.
139 East Fourth Street
Cincinnati, Ohio 45202
Attention: Treasurer
(c) As to the Trustee: The Fifth Third Bank of Central Indiana
Fifth Third Center
38 Fountain Square
Cincinnati, Ohio 45263
Attention: Corporate Trust Administration
or such additional or different address, notice of which is given under Section
8.3 hereof.
"Opinion of Bond Counsel" means a written opinion of nationally recognized
bond counsel selected by the Company and acceptable to the Trustee who is
experienced in matters relating to the exclusion from gross income for federal
income tax purposes of interest on obligations issued by states and their
political subdivisions. Bond Counsel may be counsel to the Trustee or the
Company.
"Original Purchaser" means the Original Purchaser as defined in the
Indenture.
"Paying Agent" means the Paying Agent as defined in the Indenture.
"Person" or words importing persons mean firms, associations, partnerships
(including without limitation, general and limited partnerships), limited
liability entities, joint ventures, societies, estates, trusts, corporations,
public or governmental bodies, other legal entities and natural persons.
"Pollution Control Facility" or "Pollution Control Facilities" means those
facilities which are pollution control facilities as defined in Section 24 of
Chapter 10.9 of the Act and those facilities described in Section 103(b)(4)(F)
of the Internal Revenue Code of 1954, as amended, and the final, proposed and
temporary regulations promulgated thereunder and other administrative authority
in effect.
"Project" or "Project Facilities" means the real, personal or real and
personal property, including undivided or other interests therein, identified in
the Project Description, financed with the proceeds of the Refunded Bonds.
"Project Description" means collectively the description of the Project
Facilities originally financed with the proceeds of the Refunded Bonds, attached
hereto as Exhibit A.
"Project Purposes" means the purposes of Pollution Control Facilities as
described in the Act and as particularly described in Exhibit A hereto.
"Project Site" means as applicable to the various Project Facilities the
respective Generating Station site.
"Rate Period" means a Rate Period as defined in the Indenture.
"Rebate Fund" means the Rebate Fund created in the Indenture.
"Refunded Bonds" means the $23,000,000 Indiana Employment Development
Commission 8 1/4% Environmental Revenue Bonds, Series 1988 (Public Service
Company of Indiana, Inc.) issued on July 7, 1988.
"Refunded Bonds Indenture" means the Trust Indenture dated as of June 15,
1988 between Bank One, Indianapolis, National Association (as successor to
American Fletcher National Bank and Trust Company) and the Indiana Employment
Development Commission, as predecessor of the Issuer.
"Refunded Bonds Loan Agreement" means the Loan Agreement dated as of June
15, 1988 between the Indiana Employment Development Commission, as predecessor
of the Issuer and Public Service Company of Indiana, Inc., as predecessor of the
Company, as amended as of March 15, 1990 and as of March 15, 1992.
"Refunded Bonds Trustee" means Bank One, Indianapolis, National Association
(as successor to American Fletcher National Bank and Trust Company), as trustee
under the Refunded Bonds Indenture.
"Refunding Fund" means the Refunding Fund created in the Indenture.
"Register" means the books kept and maintained for the registration and
transfer of Bonds pursuant to Section 3.05 of the Indenture.
"Registrar" means the Registrar as defined in the Indenture.
"Reimbursement Agreement" means the Reimbursement Agreement as defined in
the Indenture.
"Remarketing Agent" means the Remarketing Agent as defined in the
Indenture.
"Revenues" means (a) the Loan Payments, (b) all other moneys received or to
be received by the Issuer (excluding the Issuer Fee) or the Trustee in respect
of repayment of the Loan, including without limitation, all moneys and
investments in the Bond Fund, (c) any moneys and investments in the Refunding
Fund, and (d) all income and profit from the investment of the foregoing moneys.
The term "Revenues" does not include any moneys or investments in the Rebate
Fund or the Bond Purchase Fund.
"Solid Waste Disposal Facility" or "Solid Waste Disposal Facilities" means
those facilities defined as pollution control facilities in Section 24 of
Chapter 10.9 of the Act and those facilities described in Section 142(a)(6) of
the Code.
"State" means the State of Indiana.
"Term Rate Period" means a Term Rate Period as defined in the Indenture.
"Trustee" means The Fifth Third Bank of Central Indiana located in
Indianapolis, Indiana, a corporation duly organized and validly existing under
the laws of the State, until a successor Trustee shall have become such pursuant
to the applicable provisions of the Indenture, and thereafter "Trustee" shall
mean the successor Trustee. "Principal Office" of the Trustee shall mean the
principal corporate trust office of the Trustee, which office at the date of
issuance of the Bonds is located at its Notice Address.
"Unassigned Issuer Rights" means all of the rights of the Issuer to receive
Additional Payments under Section 4.2 hereof, to inspection pursuant to Section
5.1 hereof, to be held harmless and indemnified under Section 5.9 hereof, to be
reimbursed for attorney's fees and expenses under Section 7.4 hereof and to give
or withhold consent to amendments, changes, modifications, alterations and
termination of this Agreement under Section 8.6 hereof and its right to enforce
such rights.
"Variable Rate" means a Variable Rate as defined in the Indenture.
Section I.3. Interpretation. Any reference herein to the State, to the
Issuer or to any member or officer of either includes entities or officials
succeeding to their respective functions, duties or responsibilities pursuant to
or by operation of law or lawfully performing their functions.
Any reference to a section or provision of the Constitution of the State or
the Act, or to a section, provision or chapter of the Indiana Code, or to any
statute of the United States of America, includes that section, provision or
chapter as amended, modified, revised, supplemented or superseded from time to
time; provided, that no amendment, modification, revision, supplement or
superseding section, provision or chapter shall be applicable solely by reason
of this provision, if it constitutes in any way an impairment of the rights or
obligations of the Issuer, the State, the Holders, the Trustee, the Registrar,
an Authenticating Agent, a Paying Agent, any Credit Facility Issuer, the
Remarketing Agent, or the Company under this Agreement, the Indenture or the
Bonds.
Unless the context indicates otherwise, words importing the singular number
include the plural number, and vice versa; the terms "hereof", "hereby",
"herein", "hereto", "hereunder" and similar terms refer to this Agreement; and
the term "hereafter" means after, and the term "heretofore" means before, the
date of delivery of the Bonds. Words of any gender include the correlative words
of the other genders, unless the sense indicates otherwise.
Section I.4. Captions and Headings. The captions and headings in this
Agreement are used solely for convenience of reference and in no way define,
limit or describe the scope or intent of any Articles, Sections, subsections,
paragraphs or subparagraphs or clauses hereof.
(End of Article I)
<PAGE>
ARTICLE II
REPRESENTATIONS
Section II.1. Representations of the Issuer. The Issuer represents that:
(a) it is a body corporate and politic duly organized and validly existing under
the laws of the State; (b) it has duly accomplished all conditions necessary to
be accomplished by it prior to the issuance and delivery of the Bonds and the
execution and delivery of this Agreement and the Indenture; (c) it is not in
violation of or in conflict with any provisions of the laws of the State which
would impair its ability to carry out its obligations contained in this
Agreement or the Indenture; (d) it is empowered to enter into the transactions
contemplated by this Agreement and the Indenture; (e) it has duly authorized the
execution, delivery and performance of this Agreement and the Indenture; (f) it
will do all things in its power in order to maintain its existence or assure the
assumption of its obligations under this Agreement and the Indenture by any
successor municipal corporation; and (g) following reasonable notice, a public
hearing was held on July 20, 1998 with respect to the issuance of the Bonds as
required by Section 147(f) of the Code.
Section II.2. No Warranty by Issuer of Condition or Suitability of the
Project. The Issuer makes no warranty, either express or implied, as to the
suitability or utilization of the Project for the Project Purposes, or as to the
condition of the Project Facilities or that the Project Facilities are or will
be suitable for the Company's purposes or needs.
Section II.3. Representations and Covenants of the Company. The Company
represents that:
(a) The Company has been duly incorporated and is validly existing as a
corporation under the laws of the State, with power and authority (corporate and
other) to own its properties and conduct its business, to execute and deliver
this Agreement and to perform its obligations under this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by the
Company and this Agreement constitutes a valid and legally binding obligation of
the Company, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
(c) The execution, delivery and performance by the Company of this
Agreement and the consummation of the transactions contemplated hereby will not
violate any provision of law or regulation applicable to the Company, or of any
writ or decree of any court or governmental instrumentality, or of the Amended
Articles of Consolidation, as amended, or the By-laws of the Company, or of any
mortgage, indenture, contract, agreement or other undertaking to which the
Company is a party or which purports to be binding upon the Company or upon any
of its assets.
(d) The portions of the Project (i) which are Pollution Control Facilities
were designed to meet or exceed applicable federal, state and local requirements
then in effect for the control of air pollution and have been and will be used
to abate or control air pollution or contamination by removing, altering,
disposing of or storing pollutants, contaminants, wastes or heat, and the
Pollution Control Facilities components of the Project as designed constitute
"air pollution control facilities" or facilities functionally related or
subordinate thereto within the meaning of Section 103(b)(4)(F) of the 1954 Code,
and the final, temporary and proposed regulations promulgated thereunder and
other administrative authority in effect; and (ii) which are Solid Waste
Disposal Facilities have been and will be used for the collection, storage,
treatment, utilization, processing or final disposal of solid waste and
constitute "solid waste disposal facilities" within the meaning of Section
142(a)(6) of the Code and the regulations applicable thereto.
(e) The Project has been and will be used wholly to control pollution and
dispose of solid waste and was designed for no significant purpose other than
pollution control and disposal of solid waste, and the Project was not designed
to result in an increase in production or capacity, in a material extension of
the useful life of the Generating Stations or, in the case of the portions of
the Project which are Pollution Control Facilities, in the recovery of
by-products of any substantial value
(f) Substantially all (at least 95%) of the proceeds of the Refunded Bonds
were used to provide "Solid Waste Disposal Facilities" within the meaning of
Section 142(a)(6) of the Code and "Pollution Control Facilities" within the
meaning of Section 103(b)(4)(F) of the 1954 Code.
(g) Acquisition, construction and installation or the incurrence of Cost of
Construction (as defined in the Refunded Bonds Loan Agreement) for the Pollution
Control Facilities portion of the Project or any separate facility thereof was
not commenced prior to the adoption of the resolution of the City of Princeton,
Indiana, on October 16, 1978; and acquisition, construction and installation or
the incurrence of Cost of Construction for the Solid Waste Disposal Facilities
portion of the Project or any separate facility thereof was not commenced prior
to the adoption of the resolution of the Issuer on April 18, 1988, and no such
portion of the Project had reached a degree of completion which would permit the
Company to operate the Project at substantially the level for which it was
designed and no such portion of the Project was, in fact, operated at such
design level prior to October 1, 1987.
(h) All of the proceeds of the Refunded Bonds were spent for the Project
pursuant to the Refunded Bonds Loan Agreement or to pay costs of issuance of the
Refunded Bonds. The proceeds of the Bonds (other than any accrued interest
thereon) will be used exclusively to refund the Refunded Bonds; any investment
earnings on such proceeds of the Bonds will be used to pay principal, premium or
interest on the Refunded Bonds; and none of the proceeds of the Bonds will be
used to pay for any costs of issuance of the Bonds. The principal amount of the
Bonds does not exceed the outstanding principal amount of the Refunded Bonds.
The proceeds of the Bonds will be used to retire the Refunded Bonds not later
than 90 days after the date of issuance of the Bonds.
(i) It has caused the Project to be substantially completed. The Project
constitutes Pollution Control Facilities under the Act and is consistent with
the purposes of the Act. The Project is being, and the Company will cause the
Project to be, operated and maintained in such manner to conform with all
applicable zoning, planning, building, environmental and other applicable
governmental regulations and all permits, variances and orders issued or granted
pursuant thereto, including the permit-to-install for the Project, which
permits, variances and orders have not been withdrawn or otherwise suspended,
and to be consistent with the Act.
(j) It has used or operated or has caused to be used or operated, and
presently intends to use or operate or cause to be used or operated the Project
Facilities in a manner consistent with the Project Purposes until the date on
which the Bonds have been fully paid and knows of no reason why the Project
Facilities will not be so operated. The Company does not intend to sell or
otherwise dispose of the Project or any portion thereof.
(k) None of the proceeds of the Refunded Bonds was used and none of the
proceeds of the Bonds will be used to provide any airplane, skybox or other
private luxury box, or health club facility, any facility primarily used for
gambling or any store the principal business of which is the sale of alcoholic
beverages for consumption off premises.
(l) Less than 25% of the proceeds of the Refunded Bonds have been used and
less than 25% of the proceeds of the Bonds will be used directly or indirectly
to acquire land or any interest therein, and none of such proceeds has been or
will be used to provide land which is to be used for farming purposes.
(m) No portion of the proceeds of the Refunded Bonds has been used and no
portion of the proceeds of the Bonds will be used to acquire existing property
or any interest therein unless the first use of such property was by the Company
and was pursuant to and followed such acquisition.
(n) At no time will any funds constituting gross proceeds of the Bonds be
used in a manner as would constitute failure of compliance with Section 148 of
the Code.
(o) The Refunded Bonds were not, and the Bonds will not be, "federally
guaranteed" within the meaning of Section 149(b) of the Code.
(p) It is not anticipated that as of the date hereof, there will be created
any "replacement proceeds", within the meaning of Section 1.148-1(c) of the
Treasury Regulations, with respect to the Bonds; however, in the event that any
such replacement proceeds are deemed to have been created, such amounts will be
invested in compliance with Section 148 of the Code.
(q) On the date of issuance and delivery of the Refunded Bonds, the Company
reasonably expected that at least 85% of the spendable proceeds of the Refunded
Bonds would be expended to carry out the governmental purpose of such issue
within the 3-year period beginning on the issue date of such issue and the
Company reasonably expected that the proceeds of the Refunded Bonds would be
spent in accordance with the spending requirements of Section 149(g)(2) of the
Code. All of the spendable proceeds of the Refunded Bonds were expended as of
the date of issuance of the Bonds. None of the proceeds of the Refunded Bonds
were invested in nonpurpose investments having a substantially guaranteed yield
for four years or more.
(r) The weighted average maturity of the Bonds does not exceed 120% of the
average reasonably expected economic life of the Project Facilities financed by
the proceeds of the Refunded Bonds (determined under Section 147(b) of the
Code).
(s) The information furnished by the Company and used by the Issuer in
preparing the certifications and statements pursuant to Sections 148 and 149(e)
of the Code or their statutory predecessors with respect to the Refunded Bonds
was accurate and complete as of the respective date of issuance of the Refunded
Bonds, and the information furnished by the Company and used by the Issuer in
preparing the certification pursuant to Section 148 of the Code and in preparing
the information statement pursuant to Section 149(e) of the Code, both referred
to in the Bond Resolution, will be accurate and complete as of the date of
issuance of the Bonds.
(t) The Project Facilities do not include any office except for offices (i)
located on the Project Site and (ii) not more than a de minimis amount of the
functions to be performed at which is not directly related to the day-to-day
operations of the Project Facilities.
(End of Article II)
<PAGE>
ARTICLE III
COMPLETION OF THE PROJECT; ISSUANCE OF THE BONDS
Section III.1. Acquisition, Construction and Installation. The Company
represents that it has caused the Project Facilities to be acquired, constructed
and installed on the respective Project Sites, substantially in accordance with
the Project Description and in conformance with all applicable zoning, planning,
building and other similar regulations of all governmental authorities having
jurisdiction over the Project and all permits, variances and orders issued in
respect of the Project by EPA, and that the proceeds derived from the Refunded
Bonds, including any investment thereof, were expended in accordance with the
Refunded Bonds Indenture and the Refunded Bonds Loan Agreement, respectively.
Section III.2. Project Description. The Project Description may be changed
from time to time by, or with the consent of, the Company provided that any such
change shall also be filed with the Issuer and provided further that no change
in the Project Description shall materially change the function of the Project
Facilities unless the Trustee shall have received (i) an Engineer's certificate
that such changes will not impair the significance or character of the Project
Facilities as Pollution Control Facilities and (ii) an Opinion of Bond Counsel
or ruling of the Internal Revenue Service to the effect that such amendment will
not adversely affect the exclusion of interest on the Bonds from gross income
for federal income tax purposes.
Section III.3. Issuance of the Bonds; Application of Proceeds. To provide
funds to make the Loan to the Company to assist the Company in the refunding of
the Refunded Bonds, the Issuer will issue, sell and deliver the Bonds to the
Original Purchaser. The Bonds will be issued pursuant to the Indenture in the
aggregate principal amount, will bear interest, will mature and will be subject
to redemption as set forth therein. The Company hereby approves the terms and
conditions of the Indenture and the Bonds, and the terms and conditions under
which the Bonds will be issued, sold and delivered.
The Company hereby requests that the Issuer notify the Refunded Bonds
Trustee (unless the Refunded Bonds Trustee has already received such notice),
pursuant to the Refunded Bonds Indenture, that the entire outstanding principal
amount of the Refunded Bonds is to be redeemed on September 15, 1998 at a
redemption price of 102% of the principal amount thereof plus accrued interest
to that redemption date.
The proceeds from the sale of the Bonds (other than any accrued interest)
shall be loaned to the Company to assist the Company in refunding the Refunded
Bonds in order to reduce the interest cost payable by the Company; those
proceeds shall be deposited in the Refunding Fund. On September 15, 1998 all
moneys on deposit in the Refunding Fund shall be disbursed by the Trustee as
provided in Section 5.02 of the Indenture to the Refunded Bonds Trustee for
deposit in the Bond Fund created in the Refunded Bonds Indenture and applied by
the Refunded Bonds Trustee to the payment of principal of and interest on the
Refunded Bonds on their redemption on September 15, 1998. The Company shall pay
to the Refunded Bonds Trustee such additional amounts as shall be required to
pay in full on such date the entire amount of principal of, premium and interest
due on the Refunded Bonds.
Pending disbursement pursuant to this Section, the proceeds so deposited in
the Refunding Fund, together with any investment earnings thereon, shall
constitute a part of the Revenues assigned by the Issuer to the Trustee for the
payment of Bond Service Charges. Any accrued interest shall be deposited in the
Bond Fund.
Section III.4. Investment of Fund Moneys. At the oral (confirmed promptly
in writing) or written request of the Company, any moneys held as part of the
Bond Fund, the Refunding Fund or the Rebate Fund shall be invested or reinvested
by the Trustee in Eligible Investments; provided, that such moneys shall be
invested or reinvested by the Trustee only in Eligible Investments which shall
mature, or which shall be subject to redemption by the holder thereof at the
option of such holder, not later than the date upon which the moneys so invested
are needed to make payments from those Funds. The Issuer (to the extent it
retained or retains direction or control) and the Company each hereby represents
that the investment and reinvestment and the use of the proceeds of the Refunded
Bonds were restricted in such manner and to such extent as was necessary so that
the Refunded Bonds would not constitute arbitrage bonds under Section 148 of the
Code or its statutory predecessor and each hereby covenants that it will
restrict that investment and reinvestment and the use of the proceeds of the
Bonds in such manner and to such extent, if any, as may be necessary so that the
Bonds will not constitute arbitrage bonds under Section 148 of the Code.
The Company shall provide the Issuer with, and the Issuer may base its
certificate and statement, each as authorized by the Bond Resolution, on a
certificate of an appropriate officer, employee or agent of or consultant to the
Company for inclusion in the transcript of proceedings for the Bonds, setting
forth the reasonable expectations of the Company on the date of delivery of and
payment for the Bonds regarding the amount and use of the proceeds of the Bonds
and the facts, estimates and circumstances on which those expectations are
based.
Section III.5. Rebate Fund. To the extent required by Section 5.08 of the
Indenture, within five days after the end of the fifth Bond Year (as defined in
the Indenture) and every fifth Bond Year thereafter, and within five days after
payment in full of all outstanding Bonds, the Company shall calculate the amount
of Excess Earnings (as defined in the Indenture) as of the end of that Bond Year
or the date of such payment and shall notify the Trustee of that amount. If the
amount then on deposit in the Rebate Fund created under the Indenture is less
than the amount of Excess Earnings (computed by taking into account the amount
or amounts, if any, previously paid to the United States pursuant to Section
5.08 of the Indenture and this Section), the Company shall, within five days
after the date of the aforesaid calculation, pay to the Trustee for deposit in
the Rebate Fund an amount sufficient to cause the Rebate Fund to contain an
amount equal to the Excess Earnings. The obligation of the Company to make such
payments shall remain in effect and be binding upon the Company notwithstanding
the release and discharge of the Indenture. The Company shall obtain and keep
such records of the computations made pursuant to this Section as are required
under Section 148(f) of the Code.
(End of Article III)
<PAGE>
ARTICLE IV
LOAN BY ISSUER; LOAN PAYMENTS;
ADDITIONAL PAYMENTS; AND CREDIT FACILITY
Section IV.1. Loan Repayment. Upon the terms and conditions of this
Agreement, the Issuer agrees to make the Loan to the Company. The proceeds of
the Loan shall be deposited with the Trustee pursuant to Section 3.3 hereof. In
consideration of and in repayment of the Loan, the Company shall make, as Loan
Payments, to the Trustee for the account of the Issuer, payments which
correspond, as to time, and are equal in amount as of the Loan Payment Date, to
the corresponding Bond Service Charges payable on the Bonds. All Loan Payments
received by the Trustee shall be held and disbursed in accordance with the
provisions of the Indenture and this Agreement for application to the payment of
Bond Service Charges.
The Company shall be entitled to a credit against the Loan Payments
required to be made on any Loan Payment Date to the extent that the balance of
the Bond Fund is then in excess of amounts required (a) for the payment of Bonds
theretofore matured or theretofore called for redemption, or to be called for
redemption pursuant to Section 6.1 hereof (b) for the payment of interest for
which checks or drafts have been drawn and mailed by the Trustee or Paying
Agent, and (c) to be deposited in the Bond Fund by the Indenture for use other
than for the payment of Bond Service Charges due on that Loan Payment Date.
The Company's obligation to make Loan Payments shall be reduced to the
extent of any payments made by any Credit Facility Issuer to the Trustee in
respect of the principal of, premium, if any, or interest on the Bonds when due
pursuant to any Credit Facility then in effect, provided, that any such Credit
Facility Issuer has been reimbursed for such payments in accordance with the
terms of the Reimbursement Agreement.
Except for such interest of the Company as may hereafter arise pursuant to
Section 8.2 hereof or Sections 5.06 or 5.07 of the Indenture, the Company and
the Issuer each acknowledge that neither the Company, the State nor the Issuer
has any interest in the Bond Fund or the Bond Purchase Fund, and any moneys
deposited therein shall be in the custody of and held by the Trustee in trust
for the benefit of the Holders.
Section IV.2. Additional Payments. The Company shall pay to the Issuer, as
Additional Payments hereunder, any and all costs and expenses incurred or to be
paid by the Issuer in connection with the issuance and delivery of the Bonds or
otherwise related to actions taken by the Issuer under this Agreement or the
Indenture.
The Company shall pay the Administration Expenses to the Trustee, the
Registrar, the Remarketing Agent, and any Paying Agent or Authenticating Agent,
as appropriate, as Additional Payments hereunder.
The Company may, without creating a default hereunder, contest in good
faith the reasonableness of any such cost or expense incurred or to be paid by
the Issuer and any Administration Expenses claimed to be due to the Trustee, the
Registrar, the Remarketing Agent, any Paying Agent or any Authenticating Agent.
In the event the Company should fail to pay any Loan Payments, Additional
Payments or Administration Expenses when due, the payment in default shall
continue as an obligation of the Company until the amount in default shall have
been fully paid together with interest thereon during the default period at the
Interest Rate for Advances.
Section IV.3. Place of Payments. The Company shall make all Loan Payments
directly to the Trustee at its Principal Office. Additional Payments shall be
made directly to the person or entity to whom or to which they are due.
Section IV.4. Obligations Unconditional. The obligations of the Company to
make Loan Payments, Additional Payments and any payments required of the Company
under Section 5.08 of the Indenture shall be absolute and unconditional, and the
Company shall make such payments without abatement, diminution or deduction
regardless of any cause or circumstances whatsoever including, without
limitation, any defense, set-off, recoupment or counterclaim which the Company
may have or assert against the Issuer, the Trustee, the Registrar, the
Remarketing Agent or any other Person.
Section IV.5. Assignment of Revenues and Agreement. To secure the payment
of Bond Service Charges, the Issuer shall, by the Indenture, (a) absolutely and
irrevocably assign to the Trustee, its successors in trust and its and their
assigns forever, (1) all right, title and interest of the Issuer in and to all
moneys and investments (including, without limitation, the proceeds of the
Credit Facility) in the Bond Fund and (2) all of the Issuer's rights and
remedies under this Agreement (except for the Unassigned Issuer Rights), and (b)
grant a security interest to the Trustee, its successors in trust and its and
their assigns forever, in all of its rights to and interest in the Revenues
including, without limitation, all Loan Payments and other amounts receivable by
or on behalf of the Issuer under the Agreement in respect of repayment of the
Loan (other than the Credit Facility Account, all moneys and investments therein
and the proceeds of any Credit Facility). The Company hereby agrees and consents
to those assignments and that grant of a security interest.
Section IV.6. Credit Facility; Alternate Credit Facility; Cancellation. (a)
The Company agrees to provide for the payment of the principal of and interest
on the Bonds and for payment of the purchase price of Bonds delivered to the
Trustee or Paying Agent pursuant to the Indenture by causing the Letter of
Credit to be delivered to the Trustee on the date of the delivery of the Bonds.
The Company hereby authorizes and directs the Trustee to draw moneys under the
Letter of Credit in accordance with its terms and the terms of the Indenture, to
the extent necessary to pay the principal of and interest on the Bonds when due
and to pay the purchase price of Bonds as provided in the Indenture. The Company
may, at its election and with the consent of the Bank, provide for one or more
extensions of the Letter of Credit beyond its then stated date of expiration.
(b) Upon satisfaction of the requirements contained in Section 14.03 of the
Indenture, the Company may provide for the delivery of an Alternate Credit
Facility.
(c) Upon satisfaction of the conditions contained in Section 14.02 of the
Indenture, the Company may cancel any Credit Facility then in effect at such
time and direct the Trustee in writing to surrender such Credit Facility to the
Credit Facility Issuer by which it was issued in accordance with the Indenture;
provided, that no such cancellation shall become effective and no such surrender
shall take place until all Bonds subject to purchase pursuant to Section 4.07(d)
of the Indenture have been so purchased or redeemed with the proceeds of such
Credit Facility.
Section IV.7. Company's Option to Elect Rate Period. The Company shall
have, and is hereby granted, the option to elect to convert on any Conversion
Date the interest rate borne by the Bonds to another Variable Rate to be
effective for a Rate Period pursuant to the provisions of Article II of the
Indenture and subject to the terms and conditions set forth therein. To exercise
such options, the Company shall give the written notice required by the
Indenture.
Section IV.8. Company's Obligation to Purchase Bonds. The Company hereby
agrees to pay or cause to be paid to the Trustee or the Paying Agent, on or
before each day on which Bonds may be or are required to be tendered for
purchase, amounts equal to the amounts to be paid by the Trustee or the Paying
Agent with respect to the Bonds tendered for purchase on such dates pursuant to
Article IV of the Indenture; provided, however, that the obligation of the
Company to make any such payment under this Section shall be reduced by the
amount of (A) moneys paid by the Remarketing Agent as proceeds of the
remarketing of such Bonds by the Remarketing Agent, (B) moneys drawn under any
Credit Facility, for the purpose of paying such purchase price and (C) other
moneys made available by the Company, as set forth in Section 4.08(b)(ii) of the
Indenture.
(End of Article IV)
<PAGE>
ARTICLE V
ADDITIONAL AGREEMENTS AND COVENANTS
Section V.1. Right of Inspection. The Company agrees that, subject to
reasonable security and safety regulations and to reasonable requirements as to
notice, the Issuer and the Trustee and their or any of their respective duly
authorized agents shall have the right at all reasonable times to enter upon the
Project Site to examine and inspect the Projects.
Section V.2. Maintenance. The Company shall use its best efforts to keep
and maintain the Project Facilities, including all appurtenances thereto and any
personal property therein or thereon, in good repair and good operating
condition so that the Project Facilities will continue to constitute Pollution
Control Facilities or Solid Waste Disposal Facilities, for the purposes of the
operation thereof as required by Section 5.4 hereof.
So long as such shall not be in violation of the Act or impair the
character of the Project Facilities as Pollution Control Facilities or Solid
Waste Disposal Facilities, and provided there is continued compliance with
applicable laws and regulations of governmental entities having jurisdiction
thereof, the Company shall have the right to remodel the Project Facilities or
make additions, modifications and improvements thereto, from time to time as it,
in its discretion, may deem to be desirable for its uses and purposes, the cost
of which remodeling, additions, modifications and improvements shall be paid by
the Company and the same shall, when made, become a part of the Project
Facilities.
Section V.3. Removal of Portions of the Project Facilities. The Company
shall not be under any obligation to renew, repair or replace any inadequate,
obsolete, worn out, unsuitable, undesirable or unnecessary portions of the
Project Facilities, except that, subject to Section 5.4 hereof, it will use its
best efforts to ensure the continued character of the Project Facilities as
Pollution Control Facilities or Solid Waste Disposal Facilities. The Company
shall have the right from time to time to substitute personal property or
fixtures for any portions of the Project Facilities, provided that the personal
property or fixtures so substituted shall not impair the character of the
Project Facilities as Pollution Control Facilities or Solid Waste Disposal
Facilities. Any such substituted property or fixtures shall, when so
substituted, become a part of the Project Facilities. The Company shall also
have the right to remove any portion of the Project Facilities, without
substitution therefor; provided, that the Company shall deliver to the Trustee a
certificate signed by an Engineer describing said portion of the Project
Facilities and stating that the removal of such property or fixtures will not
impair the character of the Project Facilities as Pollution Control Facilities
or Solid Waste Disposal Facilities.
Section V.4. Operation of Project Facilities. The Company will, subject to
its obligations and rights to maintain, repair or remove portions of the Project
Facilities, as provided in Sections 5.2 and 5.3 hereof, use its best efforts to
continue operation of the Project Facilities so long as and to the extent that
operation thereof is required to comply with laws or regulations of governmental
entities having jurisdiction thereof or unless the Issuer shall have approved
the discontinuance of such operation (which approval shall not be unreasonably
withheld). The Company agrees that it will, within the design capacities
thereof, use its best efforts to operate and maintain the Project Facilities in
accordance with all applicable, valid and enforceable rules and regulations of
governmental entities having jurisdiction thereof; provided, that the Company
reserves the right to contest in good faith any such laws or regulations.
Nothing in this Agreement shall prevent or restrict the Company, in its
sole discretion, at any time, from discontinuing or suspending either
permanently or temporarily its use of any facility of the Company served by the
Project Facilities and in the event such discontinuance or suspension shall
render unnecessary the continued operation of the Project Facilities, the
Company shall have the right to discontinue the operation of the Project
Facilities during the period of any such discontinuance or suspension.
Section V.5. Insurance. The Company shall cause the Project Facilities to
be kept insured against fire or other casualty to the extent that property of
similar character is usually so insured by companies similarly situated and
operating like properties, to a reasonable amount by reputable insurance
companies or, in lieu of or supplementing such insurance in whole or in part,
adopt some other method or plan of protection against loss by fire or other
casualty at least equal in protection to the method or plan of protection
against loss by fire or other casualty of companies similarly situated and
operating properties subject to similar or greater fire or other hazards or on
which properties an equal or higher primary fire or other casualty insurance
rate has been set by reputable insurance companies.
Section V.6. Workers' Compensation Coverage. Throughout the term of this
Agreement, the Company shall comply, or cause compliance, with applicable
workers' compensation laws of the State.
Section V.7. Damage; Destruction and Eminent Domain. If, during the term of
this Agreement, the Project Facilities or any portion thereof is destroyed or
damaged in whole or in part by fire or other casualty, or title to, or the
temporary use of, the Project Facilities or any portion thereof shall have been
taken by the exercise of the power of eminent domain, the Company (unless it
shall have exercised its option to prepay the Loan Payments pursuant to Section
6.2 hereof) shall promptly repair, rebuild or restore the portion of the Project
Facilities so damaged, destroyed or taken with such changes, alterations and
modifications (including the substitution and addition of other property) as may
be necessary or desirable for the administration and operation of the Project
Facilities as Pollution Control Facilities or Solid Waste Disposal Facilities
and as shall not impair the character or significance of the Project Facilities
as furthering the purposes of the Act.
Section V.8. Company to Maintain its Corporate Existence; Conditions Under
Which Exceptions Permitted. The Company agrees that, during the term of this
Agreement, it will maintain its corporate existence, will not dissolve or
otherwise dispose of all or substantially all of its assets and will not
consolidate with or merge into another corporation or permit one or more other
corporations to consolidate with or merge into it; provided that the Company
may, without violating its agreement contained in this Section, consolidate with
or merge into another corporation, or permit one or more other corporations to
consolidate with or merge into it, or sell or otherwise transfer to another
corporation all or substantially all of its assets as an entirety and thereafter
dissolve, provided the surviving, resulting or transferee corporation, as the
case may be (if other than the Company), is a corporation organized and existing
under the laws of one of the states of the United States, and assumes in writing
all of the obligations of the Company herein, and, if not an Indiana
corporation, is qualified to do business in the State.
If consolidation, merger or sale or other transfer is made as provided in
this Section, the provisions of this Section shall continue in full force and
effect and no further consolidation, merger or sale or other transfer shall be
made except in compliance with the provisions of this Section.
Section V.9. Indemnification. The Company releases the Issuer from, agrees
that the Issuer shall not be liable for, and indemnifies the Issuer against, all
liabilities, claims, costs and expenses imposed upon or asserted against the
Issuer on account of: (a) any loss or damage to property or injury to or death
of or loss by any person that may be occasioned by any cause whatsoever
pertaining to the construction, maintenance, operation and use of the Project
Facilities; (b) any breach or default on the part of the Company in the
performance of any covenant or agreement of the Company under this Agreement or
any related document, or arising from any act or failure to act by the Company,
or any of its agents, contractors, servants, employees or licensees; (c) the
authorization, issuance and sale of the Bonds, and the provision of any
information furnished in connection therewith concerning the Project Facilities
or the Company (including, without limitation, any information furnished by the
Company for inclusion in any certifications made by the Issuer under Section 3.4
hereof or for inclusion in, or as a basis for preparation of, the Form 8038
information statement to be filed by the Issuer); and (d) any claim or action or
proceeding with respect to the matters set forth in (a), (b) and (c) above
brought thereon.
The Company agrees to indemnify the Trustee, the Paying Agent, the
Remarketing Agent and the Registrar (each hereinafter referred to in this
section as an "indemnified party") for and to hold each of them harmless against
all liabilities, claims, costs and expenses incurred without negligence or
willful misconduct on the part of the indemnified party, on account of any
action taken or omitted to be taken by the indemnified party in accordance with
the terms of this Agreement, the Bonds or the Indenture or any action taken at
the request of or with the consent of the Company, including the costs and
expenses of the indemnified party in defending itself against any such claim,
action or proceeding brought in connection with the exercise or performance of
any of its powers or duties under this Agreement, the Bonds or the Indenture.
In case any action or proceeding is brought against the Issuer, or an
indemnified party in respect of which indemnity may be sought hereunder, the
party seeking indemnity promptly shall give notice of that action or proceeding
to the Company, and the Company upon receipt of that notice shall have the
obligation and the right to assume the defense of the action or proceeding;
provided, that failure of a party to give that notice shall not relieve the
Company from any of its obligations under this Section unless that failure
prejudices the defense of the action or proceeding by the Company. At its own
expense, an indemnified party may employ separate counsel and participate in the
defense; provided, however, where it is ethically inappropriate for one firm to
represent the interests of the Issuer, and any other indemnified party or
parties, the Company shall pay the Issuer's legal expenses in connection with
the Issuer's retention of separate counsel. The Company shall not be liable for
any settlement made without its consent.
The indemnification set forth above is intended to and shall include the
indemnification of all affected officials, directors, officers and employees of
the Issuer, the Trustee, the Paying Agent, the Remarketing Agent and the
Registrar, respectively. That indemnification is intended to and shall be
enforceable by the Issuer, the Trustee, the Paying Agent, the Remarketing Agent
and the Registrar, respectively, to the full extent permitted by law.
Section V.10. Company Not to Adversely Affect Exclusion of Interest on
Bonds From Gross Income For Federal Income Tax Purposes. The Company hereby
covenants and represents that it has taken and caused to be taken and shall take
and cause to be taken all actions that may be required of it for the interest on
the Bonds to be and remain excluded from the gross income of the Holders for
federal income tax purposes, and that it has not taken or permitted to be taken
on its behalf, and covenants that it will not take, or permit to be taken on its
behalf, any action which, if taken, would adversely affect that exclusion under
the provisions of the Code.
Section V.11. Use of Project Facilities. The Issuer agrees that it will not
take any action, or cause any action to be taken on its behalf, to interfere
with the Company's ownership interest in the Project or to prevent the Company
from having possession, custody, use and enjoyment of the Project other than
pursuant to Article VII of this Agreement or Article VII of the Indenture.
Section V.12. Assignment by Company. This Agreement may be assigned in
whole or in part by the Company without the necessity of obtaining the consent
of either the Issuer or the Trustee, subject, however, to each of the following
conditions:
(a) No assignment (other than pursuant to Section 5.8 hereof) shall relieve
the Company from primary liability for any of its obligations hereunder, and in
the event of any such assignment the Company shall continue to remain primarily
liable for the payment of the Loan Payments and Additional Payments and for
performance and observance of the agreements on its part herein provided to be
performed and observed by it.
(b) Any assignment by the Company must retain for the Company such rights
and interests as will permit it to perform its obligations under this Agreement,
and any assignee from the Company shall assume the obligations of the Company
hereunder to the extent of the interest assigned.
(c) The Company shall, within 30 days after execution thereof, furnish or
cause to be furnished to the Issuer and the Trustee a true and complete copy of
each such assignment together with any instrument of assumption. (d) Any
assignment from the Company shall not materially impair fulfillment of the
Project Purposes to be accomplished by operation of the Project as herein
provided.
(End of Article V)
<PAGE>
ARTICLE VI
REDEMPTION
Section VI.1. Optional Redemption. Provided no Event of Default shall have
occurred and be subsisting, at any time and from time to time, the Company may
deliver moneys to the Trustee in addition to Loan Payments or Additional
Payments required to be made and direct the Trustee to use the moneys so
delivered for the purpose of calling Bonds for optional redemption in accordance
with the applicable provisions of the Indenture providing for optional
redemption at the redemption price stated in the Indenture. Pending application
for those purposes, any moneys so delivered shall be held by the Trustee in a
special account in the Bond Fund and delivery of those moneys shall not, except
as set forth in Section 4.1 hereof, operate to abate or postpone Loan Payments
or Additional Payments otherwise becoming due or to alter or suspend any other
obligations of the Company under this Agreement.
Section VI.2. Extraordinary Optional Redemption. The Company shall have,
subject to the conditions hereinafter imposed, the option during a Term Rate
Period to direct the redemption of the Bonds in whole upon the occurrence of the
event described below in paragraph (c) and in part upon the occurrence of the
other events described below in accordance with the applicable provisions of the
Indenture. In the event that any of the events described below affect less than
all of the Project Facilities and the Generating Stations which they serve, the
Bonds may be redeemed in an amount equal to the outstanding principal amount of
the Bonds multiplied by the allocable percentage figure for each Project
Facility, to-wit: 43.5% for Facility 1, 1% for Facility 2, 0% for Facility 3, 0%
for Facility 4, 5% for Facility 5, 44.5% for Facility 6, 0% for Facility 7 and
6% for Facility 8.
(a) One or more of the Project Facilities or the Generating Stations which
they serve shall have been damaged or destroyed to such an extent that (1) such
Project Facilities or such Generating Stations cannot reasonably be expected to
be restored, within a period of six consecutive months, to the condition thereof
immediately preceding such damage or destruction or (2) the Company is
reasonably expected to be prevented from carrying on its normal use and
operation of such Project Facilities or such Generating Stations for a period of
six consecutive months.
(b) Title to, or the temporary use of, all or a significant part of one or
more of the Project Facilities or the Generating Stations which they serve shall
have been taken under the exercise of the power of eminent domain to such an
extent (1) that such Project Facilities or such Generating Stations cannot
reasonably be expected to be restored within a period of six consecutive months
to a condition of usefulness comparable to that existing prior to the taking or
(2) the Company is reasonably expected to be prevented from carrying on its
normal use and operation of such Project Facilities or such Generating Stations
for a period of six consecutive months.
(c) As a result of any changes in the Constitution of the State, the
Constitution of the United States of America or any state or federal laws or as
a result of legislative or administrative action (whether state or federal) or
by final decree, judgment or order of any court or administrative body (whether
state or federal) entered after any contest thereof by the Issuer or the Company
in good faith, this Agreement shall have become void or unenforceable or
impossible of performance in accordance with the intent and purpose of the
parties as expressed in this Agreement.
(d) Unreasonable burdens or excessive liabilities shall have been imposed
upon the Issuer or the Company with respect to one or more of the Project
Facilities or the Generating Stations which they serve or the operation thereof,
including, without limitation, the imposition of federal, state or other ad
valorem, property, income or other taxes other than ad valorem taxes at the
rates presently levied upon privately owned property used for the same general
purpose as such Project Facilities or such Generating Stations.
(e) Changes in the economic availability of raw materials, operating
supplies, energy sources or supplies or facilities (including, but not limited
to, facilities in connection with the disposal of industrial wastes) necessary
for the operation of one or more of the Project Facilities or the Generating
Stations which they serve for the Project Purposes occur or technological or
other changes occur which the Company cannot reasonably overcome or control and
which in the Company's reasonable judgment render such Project Facilities or
such Generating Stations uneconomic or obsolete for the Project Purposes.
(f) Any court or administrative body shall enter a judgment, order or
decree, or shall take administrative action, requiring the Company to cease all
or any substantial part of its operations served by one or more of the Project
Facilities or the Generating Stations which they serve to such extent that the
Company is or will be prevented from carrying on its normal operations at such
Project Facilities or such Generating Stations for a period of six consecutive
months.
(g) The termination by the Company of operations at any of the Generating
Stations which are served by any of the Project Facilities.
The amount payable by the Company in the event of its exercise of the
option granted in this Section shall be the sum of the following:
(i) An amount of money which, when added to the moneys and investments
held to the credit of the Bond Fund, will be sufficient pursuant to the
provisions of the Indenture to pay, at 100% of the principal amount thereof
plus accrued interest to the redemption date, and discharge, all or such
portion of Outstanding Bonds to be redeemed on the earliest applicable
redemption date, that amount to be paid to the Trustee, plus
(ii) An amount of money equal to the Additional Payments relating to
those Bonds accrued and to accrue until actual final payment and redemption
of those Bonds, that amount or applicable portions thereof to be paid to
the Trustee or to the Persons to whom those Additional Payments are or will
be due.
The requirement of (ii) above with respect to Additional Payments to accrue
may be met if provisions satisfactory to the Trustee and the Issuer are made for
paying those amounts as they accrue.
The rights and options granted to the Company in this Section may be
exercised whether or not the Company is in default hereunder; provided, that
such default will not relieve the Company from performing those actions which
are necessary to exercise any such right or option granted hereunder.
Section VI.3. Mandatory Redemption. The Company shall deliver to the
Trustee the moneys needed to redeem the Bonds in accordance with any mandatory
redemption provisions relating thereto as may be set forth in Sections 4.01(b)
of the Indenture.
Section VI.4. Notice of Redemption. In order to exercise an option granted
in, or to consummate a redemption required by, this Article VI, the Company
shall, within 180 days following the event authorizing the exercise of such
option, or at any time during the continuation of the condition referred to in
paragraphs (c), (d) or (e) of Section 6.2 hereof, or at any time that optional
redemption of the Bonds is permitted under the Indenture as provided in Section
6.1 hereof, or promptly upon the occurrence of a Determination of Taxability (as
defined in the Indenture), give written notice to the Issuer and the Trustee
that it is exercising its option to direct the redemption of Bonds, or that the
redemption thereof is required by Section 4.01(b) of the Indenture due to the
occurrence of a Determination of Taxability, as the case may be, in accordance
with the Agreement and the Indenture, and shall specify therein the date on
which such redemption is to be made, which date shall not be more than 180 days
from the date such notice is mailed. The Company shall make arrangements
satisfactory to the Trustee for the giving of the required notice of redemption
to the Holders of the Bonds, in which arrangements the Issuer shall cooperate.
Section VI.5. Actions by Issuer. At the request of the Company or the
Trustee, the Issuer shall take all steps required of it under the applicable
provisions of the Indenture or the Bonds to effect the redemption of all or a
portion of the Bonds pursuant to this Article VI.
(End of Article VI)
<PAGE>
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section VII.1. Events of Default. Each of the following shall be an Event
of Default:
(a) The occurrence of an event of default as defined in Section 7.01 (a),
(b), (c) or (d) of the Indenture;
(b) The Company shall fail to observe and perform any other agreement, term
or condition contained in this Agreement, other than such failure as will have
resulted in an event of default described in (a) above and the continuation of
that failure for a period of 90 days after notice thereof shall have been given
to the Company by the Issuer or the Trustee, or for such longer period as the
Issuer and the Trustee may agree to in writing; provided, that failure shall not
constitute an Event of Default so long as the Company institutes curative action
within the applicable period and diligently pursues that action to completion
within 150 days after the expiration of initial cure period as determined above,
or within such longer period as the Issuer and the Trustee may agree to in
writing; and
(c) By decree of a court of competent jurisdiction the Company shall be
adjudicated a bankrupt, or an order shall be made approving a petition or answer
filed seeking reorganization or readjustment of the Company under the federal
bankruptcy laws or other law or statute of the United States of America or of
the state of incorporation of the Company or of any other state, or, by order of
such a court, a trustee in bankruptcy, a receiver or receivers shall be
appointed of all or substantially all of the property of the Company, and any
such decree or order shall have continued unstayed on appeal or otherwise and in
effect for a period of sixty (60) days; and
(d) The Company shall file a petition in voluntary bankruptcy or shall make
an assignment for the benefit of creditors or shall consent to the appointment
of a receiver or receivers of all or any part of its property, or shall file a
petition seeking reorganization or readjustment under the Federal bankruptcy
laws or other law or statute of the United States of America or any state
thereof, or shall file a petition to take advantage of any debtors' act.
Notwithstanding the foregoing, if, by reason of Force Majeure, the Company
is unable to perform or observe any agreement, term or condition hereof which
would give rise to an Event of Default under subsection (b) hereof, the Company
shall not be deemed in default during the continuance of such inability.
However, the Company shall promptly give notice to the Trustee and the Issuer of
the existence of an event of Force Majeure and shall use its best efforts to
remove the effects thereof; provided that the settlement of strikes or other
industrial disturbances shall be entirely within its discretion.
The term Force Majeure shall mean the following:
(i) acts of God; strikes, lockouts or other industrial disturbances;
acts of public enemies; orders or restraints of any kind of the government
of the United States of America or of the State or any of their
departments, agencies, political subdivisions or officials, or any civil or
military authority; insurrections; civil disturbances; riots; epidemics;
landslides; lightning; earthquakes; fires; hurricanes; tornados; storms;
droughts; floods; arrests; restraint of government and people; explosions;
breakage, nuclear accidents or other malfunction or accident to facilities,
machinery, transmission pipes or canals; partial or entire failure of a
utility serving the Project; shortages of labor, materials, supplies or
transportation; or
(ii) any cause, circumstance or event not reasonably within the
control of the Company.
The exercise of remedies hereunder shall be subject to any applicable
limitations of federal bankruptcy law affecting or precluding that declaration
or exercise during the pendency of or immediately following any bankruptcy,
liquidation or reorganization proceedings.
Section VII.2. Remedies on Default. Whenever an Event of Default shall have
happened and be subsisting, either or both of the following remedial steps may
be taken:
(a) The Issuer or the Trustee may have access to, inspect, examine and
make copies of the books, records, accounts and financial data of the
Company, only, however, insofar as they pertain to the Project; or
(b) The Issuer or the Trustee may pursue all remedies now or hereafter
existing at law or in equity to recover all amounts, including all Loan
Payments and Additional Payments and under Section 4.8 hereof the purchase
price of Bonds tendered for purchase, then due and thereafter to become due
under this Agreement, or to enforce the performance and observance of any
other obligation or agreement of the Company under this Agreement.
Notwithstanding the foregoing, the Issuer shall not be obligated to take
any step which in its opinion will or might cause it to expend time or money or
otherwise incur liability unless and until a satisfactory indemnity bond has
been furnished to the Issuer at no cost or expense to the Issuer. Any amounts
collected as Loan Payments or applicable to Loan Payments and any other amounts
which would be applicable to payment of Bond Service Charges collected pursuant
to action taken under this Section shall be paid into the Bond Fund and applied
in accordance with the provisions of the Indenture or, if the outstanding Bonds
have been paid and discharged in accordance with the provisions of the
Indenture, shall be paid as provided in Section 5.07 of the Indenture for
transfers of remaining amounts in the Bond Fund.
The provisions of this Section are subject to the further limitation that
the rescission and annulment by the Trustee of its declaration that all of the
Bonds are immediately due and payable also shall constitute a rescission and
annulment of any corresponding declaration made pursuant to this Section and a
rescission and annulment of the consequences of that declaration and of the
Event of Default with respect to which that declaration has been made, provided
that no such rescission and annulment shall extend to or affect any subsequent
or other default or impair any right consequent thereon.
Section VII.3. No Remedy Exclusive. No remedy conferred upon or reserved to
the Issuer or the Trustee by this Agreement is intended to be exclusive of any
other available remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this
Agreement, or now or hereafter existing at law, in equity or by statute. No
delay or omission to exercise any right or power accruing upon any default shall
impair that right or power or shall be construed to be a waiver thereof, but any
such right or power may be exercised from time to time and as often as may be
deemed expedient. In order to entitle the Issuer or the Trustee to exercise any
remedy reserved to it in this Article, it shall not be necessary to give any
notice, other than any notice required by law or for which express provision is
made herein.
Section VII.4. Agreement to Pay Attorneys' Fees and Expenses. If an Event
of Default should occur and the Issuer or the Trustee should incur expenses,
including attorneys' fees, in connection with the enforcement of this Agreement
or the collection of sums due hereunder, the Company shall be required, to the
extent permitted by law, to reimburse the Issuer and the Trustee, as applicable,
for the expenses so incurred upon demand.
Section VII.5. No Waiver. No failure by the Issuer or the Trustee to insist
upon the strict performance by the Company of any provision hereof shall
constitute a waiver of their right to strict performance and no express waiver
shall be deemed to apply to any other existing or subsequent right to remedy the
failure by the Company to observe or comply with any provision hereof.
Section VII.6. Notice of Default. The Company shall notify the Trustee and
the Credit Facility Issuer immediately if it becomes aware of the occurrence of
any Event of Default hereunder or of any fact, condition or event which, with
the giving of notice or passage of time or both, would become an Event of
Default.
(End of Article VII)
<PAGE>
ARTICLE VIII
MISCELLANEOUS
Section VIII.1. Term of Agreement. This Agreement shall be and remain in
full force and effect from the date of delivery of the Bonds to the Original
Purchaser until such time as (i) all of the Bonds shall have been fully paid (or
provision made for such payment) and the Indenture has been released pursuant to
Section 9.01 thereof and (ii) all other sums payable by the Company under this
Agreement shall have been paid; provided, however, the obligations of the
Company under Sections 4.2 and 5.9 hereof shall survive any termination of this
Agreement.
Section VIII.2. Amounts Remaining in Funds. Any amounts in the Bond Fund
remaining unclaimed by the Holders of Bonds for four years after the due date
thereof (whether at stated maturity, by redemption, upon acceleration or
otherwise), at the option of the Company, shall be deemed to belong to and shall
be paid, subject to Section 5.06 of the Indenture, at the written request of the
Company, to the Company by the Trustee. With respect to that principal of and
any premium and interest on the Bonds to be paid from moneys paid to the Company
pursuant to the preceding sentence, the Holders of the Bonds entitled to those
moneys shall look solely to the Company for the payment of those moneys.
Further, any amounts remaining in the Bond Fund and any other special funds or
accounts created under this Agreement or the Indenture, except the Rebate Fund,
after all of the Bonds shall be deemed to have been paid and discharged under
the provisions of the Indenture and all other amounts required to be paid under
this Agreement and the Indenture have been paid, shall be paid to the Company to
the extent that those moneys are in excess of the amounts necessary to effect
the payment and discharge of the Outstanding Bonds.
Section VIII.3. Notices. All notices, certificates, requests or other
communications hereunder shall be in writing, except as provided in Section 3.4
hereof, and shall be deemed to be sufficiently given when mailed by registered
or certified mail, postage prepaid, and addressed to the appropriate Notice
Address. A duplicate copy of each notice, certificate, request or other
communication given hereunder to the Issuer, the Company, any Credit Facility
Issuer or the Trustee shall also be given to the others. The Company, the
Issuer, any Credit Facility Issuer and the Trustee, by notice given hereunder,
may designate any further or different addresses to which subsequent notices,
certificates, requests or other communications shall be sent.
Section VIII.4. Extent of Covenants of the Issuer; No Personal Liability.
All covenants, obligations and agreements of the Issuer contained in this
Agreement or the Indenture shall be effective to the extent authorized and
permitted by applicable law. No such covenant, obligation or agreement shall be
deemed to be a covenant, obligation or agreement of any present or future
member, officer, agent or employee of the Issuer in other than his official
capacity, and neither the members of the Issuer nor any official executing the
Bonds shall be liable personally on the Bonds or be subject to any personal
liability or accountability by reason of the issuance thereof or by reason of
the covenants, obligations or agreements of the Issuer contained in this
Agreement or in the Indenture. Section VIII.5. Binding Effect. This Agreement
shall inure to the benefit of and shall be binding in accordance with its terms
upon the Issuer, the Company and their respective permitted successors and
assigns provided that this Agreement may not be assigned by the Company (except
as permitted under Sections 5.8 or 5.12 hereof) and may not be assigned by the
Issuer except to (i) the Trustee pursuant to the Indenture or as otherwise may
be necessary to enforce or secure payment of Bond Service Charges or (ii) any
successor public body to the Issuer.
Section VIII.6. Amendments and Supplements. Except as otherwise expressly
provided in this Agreement or the Indenture, subsequent to the issuance of the
Bonds and prior to all conditions provided for in the Indenture for release of
the Indenture having been met, this Agreement may not be effectively amended,
changed, modified, altered or terminated by the parties hereto except with the
consents required by, and in accordance with, the provisions of Article XI of
the Indenture, as applicable.
Section VIII.7. References to Credit Facility. During such time or times as
no Credit Facility is in effect, and during the continuation of any event of
default under the Indenture due to a failure by the Credit Facility Issuer to
honor a drawing by the Trustee under the Credit Facility then in effect in
accordance with the terms thereof, references herein to the Credit Facility
Issuer shall be ineffective.
Section VIII.8. Execution Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be regarded as an original and
all of which shall constitute but one and the same instrument.
Section VIII.9. Severability. If any provision of this Agreement, or any
covenant, obligation or agreement contained herein is determined by a judicial
or administrative authority to be invalid or unenforceable, that determination
shall not affect any other provision, covenant, obligation or agreement, each of
which shall be construed and enforced as if the invalid or unenforceable portion
were not contained herein. That invalidity or unenforceability shall not affect
any valid and enforceable application thereof, and each such provision,
covenant, obligation or agreement shall be deemed to be effective, operative,
made, entered into or taken in the manner and to the full extent permitted by
law.
Section VIII.10. Governing Law. This Agreement shall be deemed to be a
contract made under the laws of the State and for all purposes shall be governed
by and construed in accordance with the laws of the State.
(End of Article VIII)
<PAGE>
IN WITNESS WHEREOF, the Issuer and the Company have caused this
Agreement to be duly executed in their respective names, all as of the date
hereinbefore written.
INDIANA DEVELOPMENT FINANCE AUTHORITY
By: /s/ William H. King
------------------------------------
William H. King, Chairman
Attest:
/s/ Thomas McKenna
- --------------------------------------------
Thomas McKenna, Designee of the Lt. Governor
PSI ENERGY, INC.
By: /s/ William L. Sheafer
------------------------------------
Treasurer
<PAGE>
Exhibit A
DESCRIPTION OF SOLID WASTE DISPOSAL AND
POLLUTION CONTROL FACILITIES
The Project as amended is comprised of the following Solid Waste
Disposal Facilities and Pollution Control Facilities constructed and installed
in connection with the following Generating Stations.
Facility 1 - Flue gas desulfurization system and sludge fixation system for
Gibson Generating Station, Unit 5, including facilities for transport of
fly ash for sludge fixation purposes and modifications and upgrades to the
Company's undivided ownership interest in the Gibson Generating Station,
Unit 5, ash handling and sludge disposal system.
Facility 2 - An ash sluice pump, ash pond dike addition and an irrigation system
functionally related and subordinate to the ash handling and disposal
system for the Cayuga Generating Station.
Facility 3 - Surfacing of loading area for loading of unregenerated spent resin
on industrial vacuum trucks for the disposal of the unregenerated spend
resin for the Cayuga Generating Station.
Facility 4 - The discrete portions of the demineralizer used in the regeneration
of spent resin or the Edwardsport Generating Station.
Facility 5 - Miscellaneous improvements to the ash handling and disposal system
for the Gallagher Generating Station, including the replacement of
insulation on Units No. 1, No. 2 and No. 4 economizer hoppers, replacement
of Unit No. 1, No. 2 and No. 4 economizer dust lines, replacement of ash
sluice pumps and replacement of low pressure service water pumps for Units
1, 2, 3 and 4.
Facility 6 - Miscellaneous improvements to and expansion of ash handling and
disposal facilities for the Gibson Generating Station, including the
acquisition of land and construction of a 500 acre ash storage pond for
Unit 5, replacement of ash sluice 2B pump, motor, coupling and monitoring
relay for Unit 2, replacement of ash sluice 4A pump and extensions of
existing ash transport lines for Unit 4, and improvements and modifications
of fly ash disposal equipment for Unit 1 and Unit 2.
Facility 7 - Addition to landfill aggregate materials building for housing of
solid waste transport and disposal equipment for the Gibson Generating
Station Unit 5.
Facility 8 - Miscellaneous improvements to and expansion of ash handling and
disposal facilities for the Wabash River Generating Station, including an
ash hopper modifications for Wabash River Generating Station, Units 1-6.
<TABLE> <S> <C>
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<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED
STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> MAR-01-1998
<PERIOD-END> JUN-30-1998
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 2,554,056
<OTHER-PROPERTY-AND-INVEST> 0
<TOTAL-CURRENT-ASSETS> 362,562
<TOTAL-DEFERRED-CHARGES> 375,773
<OTHER-ASSETS> 114,753
<TOTAL-ASSETS> 3,407,144
<COMMON> 539
<CAPITAL-SURPLUS-PAID-IN> 400,904
<RETAINED-EARNINGS> 576,796
<TOTAL-COMMON-STOCKHOLDERS-EQ> 978,239
0
71,953
<LONG-TERM-DEBT-NET> 950,425
<SHORT-TERM-NOTES> 195,419
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 141,569
0
<CAPITAL-LEASE-OBLIGATIONS> 0
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 1,069,539
<TOT-CAPITALIZATION-AND-LIAB> 3,407,144
<GROSS-OPERATING-REVENUE> 511,530
<INCOME-TAX-EXPENSE> (19,543)
<OTHER-OPERATING-EXPENSES> 540,764
<TOTAL-OPERATING-EXPENSES> 521,221
<OPERATING-INCOME-LOSS> (9,691)
<OTHER-INCOME-NET> 1,571
<INCOME-BEFORE-INTEREST-EXPEN> (8,120)
<TOTAL-INTEREST-EXPENSE> 22,898
<NET-INCOME> (31,018)
1,150
<EARNINGS-AVAILABLE-FOR-COMM> (32,168)
<COMMON-STOCK-DIVIDENDS> 0
<TOTAL-INTEREST-ON-BONDS> 19,420
<CASH-FLOW-OPERATIONS> 140,584
<EPS-PRIMARY> 0.00
<EPS-DILUTED> 0.00
</TABLE>
