SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
FORM U5B
REGISTRATION STATEMENT
Filed Pursuant to Section 5 of the
Public Utility Holding Company Act of 1935
CINergy Corp.
__________________
Name of Registrant
Name, Title and Address of Officer to whom Notices
and Correspondence concerning this Statement
should be Addressed
Cheryl M. Foley, Esq.
Vice President, General Counsel
and Corporate Secretary
CINergy Corp.
139 East Fourth Street
Cincinnati, Ohio 45202
<PAGE>
Glossary of Defined Terms
_________________________
When used herein, the following terms shall have the
meanings set forth below :
Act Public Utility Holding Company Act of
1935, as amended
CG&E The Cincinnati Gas & Electric Company,
an Ohio corporation and a subsidiary of
CINergy
CG&E 1993 Form 10-K Annual Report of CG&E on Form 10-K for
the year ended December 31, 1993 (File
No. 1-1232)
CINergy CINergy Corp., a Delaware corporation
Commission Securities and Exchange Commission
Energy PSI Energy, Inc., an Indiana corporation
and a subsidiary of CINergy
Energy 1993 Form 10-K Annual Report of Energy on Form 10-K for
the year ended December 31, 1993, as
amended (File No. 1-3543)
EWG Exempt wholesale generator as defined in
Section 32 of the Act
FERC Federal Energy Regulatory Commission
FUCO Foreign utility company as defined in
Section 33 of the Act
IURC Indiana Utility Regulatory Commission
KPSC Kentucky Public Service Commission
KV Kilovolts
KWH Kilowatt hours
Lawrenceburg Lawrenceburg Gas Company, an Indiana
corporation and a wholly-owned
subsidiary of CG&E
Mcf 1,000 cubic feet (of gas)
Merger The mergers consummated on October 24,
1994, by which CINergy became the
holding company for CG&E and Energy
Miami Miami Power Corporation, an Indiana
corporation and a wholly-owned
subsidiary of CG&E
MW Megawatts
PSI PSI Resources, Inc., an Indiana
corporation and Energy's parent company
prior to its merger with and into
CINergy
PUCO Public Utilities Commission of Ohio
ULH&P The Union Light, Heat and Power Company,
a Kentucky corporation and a wholly-
owned subsidiary of CG&E
West Harrison The West Harrison Gas and Electric
Company, an Indiana corporation and a
wholly-owned subsidiary of CG&E
Explanatory Note and Request for Waiver
CINergy's principal utility subsidiaries, CG&E and Energy, have
been (and remain) subject to the periodic reporting requirements of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission thereunder. Pursuant to these requirements, CG&E and
Energy (or PSI, Energy's parent company prior to the Merger) have filed
Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, proxy
statements and other reports. In addition, CG&E, Energy and PSI have filed
registration statements with the Commission pursuant to the Securities Act
of 1933, as amended, and the rules and regulations of the Commission
thereunder. In addition, as exempt holding companies, CG&E and PSI (which
was merged into CINergy on October 24, 1994) filed annual exemption
statements with the Commission on Form U-3A-2 disclosing additional
information about their operations. Further information regarding CINergy
and its subsidiaries has recently been filed with the Commission in Form U-
1 filings by CINergy in File No. 70-8427 (relating to the Merger), File No.
70-8477 (relating to the issuance of certain shares of common stock), and
File No. 70-8521 (relating to a credit agreement and other transactions).
Additional information regarding CINergy and its subsidiaries will be set
forth in additional U-1 filings to be made in the near future. These
filings set forth much of the same information required by Form U5B.
In view of the Commission's familiarity with the CINergy System
through these filings, CINergy respectfully requests that the Commission
waive, pursuant to Rule 20(a)(3) under the Act, the requirements of Form
U5B to the extent the disclosure required by Form U5B has already been
filed with the Commission in other filings, and permit the incorporation of
certain information by reference to the extent indicated herein.
<PAGE>
REGISTRATION STATEMENT
The undersigned holding company hereby submits its registration
statement to the Commission pursuant to Section 5 of the Act.
1. Exact name of registrant. CINergy Corp.
2. Address of principal executive offices. 139 East Fourth Street,
Cincinnati, Ohio 45202
3. Name and address of
chief accounting officer. Charles J. Winger
Comptroller and Chief Accounting Officer
CINergy Corp.
139 East Fourth Street
Cincinnati, Ohio 45202
4. Certain information as to the registrant and each subsidiary company
thereof:
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D Col. E
- ------ ------ ------ ------ ------
<S> <C> <C> <C> <C>
Date of Type of
Name of Company Organization State Incorporation Business
- --------------- ------------ ----- ------------- --------
CINergy Corp. Corporation DE June 30, 1993 Holding company
The Cincinnati Gas & Electric Co. Corporation OH April 3, 1837 Electric and gas utility
The Union Light, Heat and Power Co. Corporation KY March 20, 1901 Electric and gas utility
Miami Power Corp. Corporation IN March 25, 1930 Ownership of electric transmission line
The West Harrison Gas and Electric Co. Corporation IN August 19, 1942 Electric utility
Lawrenceburg Gas Co. Corporation IN May 5, 1868 Gas utility
Tri-State Improvement Co. Corporation OH January 14, 1964 Utility-related real estate
KO Transmission Co. Corporation KY April 11, 1994 Ownership of future gas pipeline
interest
PSI Energy, Inc. Corporation IN September 6, 1941 Electric utility
PSI Energy Argentina, Inc. Corporation IN June 5, 1992 FUCO
South Construction Company, Inc. Corporation IN May 31, 1934 Utility-related real estate
CINergy Services, Inc. Corporation DE February 23, 1994 Subsidiary service company
CINergy Investments, Inc. Corporation DE October 24, 1994 Subholding company for certain non-
utility businesses
Enertech Associates
International, Inc. Corporation OH October 26, 1992 Energy-related consulting and energy-
related investments
Beheer- En Beleg-
ginsmaatschappij
Bruwabel B.V. Corporation Nether- April 22, 1991 Subholding company for European
Lands consulting operations
Power International s.r.o. Limited Czech May 15, 1991 Energy-related consulting
liability Repub.
company
Power Development s.r.o. Limited Czech June 1, 1994 Energy-related consulting, development
liability Repub. and investments (inactive)
company
CG&E Resource Marketing, Inc. Corporation DE January 10, 1994 Natural gas brokering and marketing and
investments in same
CGE ECK, Inc. Corporation DE March 3, 1994 Subholding company for ownership of
interest in a foreign generating
facility
PSI Recycling, Inc. Corporation IN June 1, 1990 Recycling
PSI Argentina, Inc. Corporation IN April 10, 1992 EWG
Costanera Power Corp. Corporation IN April 10, 1992 EWG
E P EDEGEL, Inc. Corporation DE January 7, 1994 Company formed to acquire, own and hold
interests in foreign EWGs (inactive)
Power Equipment Supply Co. Corporation IN January 23, 1990 Surplus and salvage equipment marketing
and brokering
Wholesale Power Services, Inc. Corporation IN October 8, 1992 Brokering of power emission allowances,
elec. futures and related products and
services; wholesale power consulting;
electronic bulletin board
PSI T&D International, Inc. Corporation IN August 3, 1994 Foreign utility investments (inactive)
PSI Yacyreta, Inc. Corporation IN September 8, 1994 Foreign utility investments (inactive)
PSI Power Resource Development, Inc. Corporation IN January 23, 1990 Independent power production and
cogeneration development (inactive)
PSI Power Resource Operations, Inc. Corporation IN December 27, 1989 Independent power production and
cogeneration operation and maintenance
(inactive)
PSI Environmental Corp. Corporation IN December 12, 1991 Energy-related environmental services
(inactive)
PSI International, Inc. Corporation IN December 9, 1991 Cogeneration and power production
(inactive)
PSI Sunnyside, Inc. Corporation IN December 6, 1990 Cogeneration and power production
(inactive)
</TABLE>
<PAGE>
BUSINESS
5. (a) The general character of the business done by the registrant and
its subsidiaries, separated as between the holding companies, public
utility subsidiaries (as defined in the Act) and the various non-
utility subsidiaries.
CINergy. CINergy was incorporated under the laws of the State of
Delaware on June 30, 1993 to become a holding company for CG&E and
Energy. On October 24, 1994, PSI was merged with and into CINergy,
and a subsidiary of CINergy was merged with and into CG&E. As a
result of these mergers, CINergy became a holding company for CG&E and
Energy, and on October 25, 1994, CINergy filed a Form U5A Notification
of Registration with the Commission.
CG&E. CG&E was incorporated under the laws of the State of Ohio on
April 3, 1837 and is an electric and gas public utility company. In
addition, CG&E owns all of the outstanding common stock of ULH&P,
Miami, West Harrison and Lawrenceburg. Each of ULH&P, Miami, West
Harrison and Lawrenceburg is a public utility company under the Act.
CG&E also owns 9% of the outstanding voting securities of Ohio Valley
Electric Corp., an electric utility company under the Act.
CG&E and its utility subsidiaries are primarily engaged in providing
electric and gas service in the southwestern portion of Ohio and
adjacent areas in Kentucky and Indiana. The area served with
electricity, gas, or both covers approximately 3,000 square miles, has
an estimated population of 1.8 million, and includes the cities of
Cincinnati and Middletown in Ohio, Covington and Newport in Kentucky,
and Lawrenceburg in Indiana.
ULH&P provides electric and/or gas service to customers in a 500-
square-mile area with a population of approximately 280,000 in
Covington, Newport and other smaller communities and adjacent rural
territory within the Counties of Kenton, Campbell, Boone, Grant,
Pendleton and Gallatin, Kentucky. Miami owns a 138 kV transmission
line running from the Miami Fort Power Station to a point near
Madison, Indiana. West Harrison sells electricity over a 3-square-
mile area with a population of approximately 1,000 in West Harrison,
Indiana, and adjacent rural territory. Lawrenceburg sells natural gas
over a 60-square-mile area with a population of approximately 20,000
in southeastern Indiana.
CG&E is subject to regulation as a public utility as to retail
electric and gas rates and other matters by the PUCO. Rates within
municipalities in Ohio are subject to original regulation by the
municipalities. The Ohio Power Siting Board, a division of the PUCO,
has jurisdiction over the location, construction and initial operation
of new electric generating facilities and certain electric and gas
transmission lines of CG&E in Ohio. CG&E, ULH&P and Miami are also
subject to regulation by the FERC with respect to the classification
of accounts, rates for wholesale sales of electricity, interconnection
agreements, issuances of securities not regulated by state
commissions, and acquisition and sales of certain utility properties.
ULH&P is subject to regulation by the KPSC. In addition, CG&E and
ULH&P are subject to regulation by the FERC under the Natural Gas Act
of 1935, as amended.
CG&E non-utility subsidiaries and interests. CG&E has two non-utility
subsidiaries, both of which are wholly owned: Tri-State Improvement
Company ("Tri-State") and KO Transmission Company ("KO").
Tri-State was incorporated in Ohio in 1964 and is devoted to acquiring
and holding property in Ohio, Kentucky and Indiana for substations,
electric and gas rights of way, office space and other uses in CG&E
utility operations.
KO Transmission Company ("KO") was incorporated in Kentucky in 1994
and which will be used to acquire an interest in an interstate natural
gas pipeline to which CG&E is entitled as a result of a settlement
with the Columbia gas system. It will have an office in Cincinnati
and will be engaged in the transportation of natural gas in interstate
commerce between Kentucky and Ohio, subject to the jurisdiction of the
FERC. KO's pipeline system will extend from Montgomery County,
Kentucky, in a northwest direction for approximately 90 miles to the
Ohio River. Services by KO will be rendered in accordance with terms
and conditions and at rates contained in a gas tariff filed with the
FERC.
In addition to Tri-State and KO, CG&E holds small minority interests
in three limited partnerships which own, rehabilitate and maintain
apartment buildings for low income people in the CG&E service
territory, with the aim of neighborhood revitalization,/1/ and two
limited partnerships which were formed to invest in small and
minority- or female-owned businesses in the service territories of
CG&E and its subsidiaries./2/
Energy. Energy is an Indiana corporation engaged in the production,
transmission, distribution and sale of electric energy in north
central, central, and southern Indiana. It serves a population of
approximately 1.9 million in 69 of the 92 counties in Indiana,
including the cities of Terre Haute, Kokomo, Columbus, Lafayette,
Bloomington and New Albany.
As a "public utility" under the laws of Indiana, Energy is regulated
by the IURC as to its retail rates, services, accounts, depreciation,
issuance of securities, and acquisitions and sales of utility
properties, and in other respects as provided by Indiana law. Energy
is also subject to regulation by the FERC with respect to borrowings
and the issuance of securities not regulated by the IURC, the
classification of accounts, rates to wholesale customers,
interconnection agreements, and acquisitions and sales of certain
utility properties as provided by federal laws.
Energy has two subsidiaries, both of which are wholly-owned: South
Construction Company, Inc. ("South Construction") and PSI Energy
Argentina, Inc. ("Energy Argentina").
South Construction was incorporated in Indiana in 1934 and has been
used solely to hold legal title to real estate and interests in real
estate which are either not used and useful in the conduct of Energy's
business (such as undeveloped realty of Energy abutting an Energy
office building) or which has some defect in title which is
unacceptable to Energy. Most of the realty to which South
Construction acquires title relates to Energy's utility business.
Energy Argentina is described below under the heading "Investments in
Argentina".
CINergy Services. CINergy Services was incorporated in Delaware on
February 23, 1994 to serve as the service company for the CINergy
system. CINergy Services provides CG&E, Energy and the other
companies of the CINergy system with a variety of administrative,
management and support services.
CINergy Investments. CINergy has a number of non-utility interests,
most of which are held through CINergy Investments, Inc., a non-
utility subholding company organized under Delaware law on October 24,
1994. CINergy Investments holds the following non-utility
subsidiaries and interests, which are more fully described below:
Enertech Associates International, Inc., its direct subsidiary Beheer-
En Belegginsmaatschappij Bruwabel B.V. and its indirect subsidiaries
Power International s.r.o. and Power Development s.r.o.; CG&E Resource
Marketing, Inc. and its interest in U.S. Energy Partners; CGE ECK,
Inc. and its interest in ECK s.r.o.; PSI Recycling, Inc.; PSI
Argentina, Inc. and its subsidiaries Costanera Power Corp. and E P
EDEGEL, Inc.; Power Equipment Supply Co.; Wholesale Power Services,
Inc.; PSI T&D International, Inc. and its subsidiary PSI Yacyreta,
Inc.; PSI Power Resource Development, Inc.; PSI Power Resource
Operations, Inc.; PSI Environmental Corp.; PSI International, Inc.;
and PSI Sunnyside, Inc.
Enertech and its subsidiaries. Enertech Associates International,
Inc. ("Enertech") was incorporated in Ohio in 1992 as a vehicle for
CG&E to offer utility management consulting services and to pursue
investment opportunities in energy-related areas, including demand-
side management services, consulting, energy and fuel brokering,
engineering services, and construction and/or operation of generation,
co-generation and independent power production facilities and project
development. Enertech has established a regional and international
consulting services practice and has had activities in Ohio, Kentucky,
Indiana and a number of foreign countries, including Kazakhstan. It
has contracted as part of a five-company consortium to render
engineering and technical services to a number of the newly
independent states of the former Soviet Union. In addition, Enertech
renders consulting services in the Czech Republic. To comply with
Czech law, and to facilitate its operations in the Czech Republic and
the tax-efficient treatment of earnings from those operations, certain
Enertech operations are conducted through wholly owned direct and
indirect subsidiaries -- Beheer- En Belegginsmaatschappij Bruwabel
B.V. ("Bruwabel"), which was organized in 1975 under Dutch law and is
a direct subsidiary of Enertech, and Power International s.r.o. and
Power Development s.r.o., which were organized in 1991 and 1994,
respectively, under Czech law and are subsidiaries of Bruwabel.
Bruwabel's business is conducted in The Netherlands, while Power
International s.r.o. and Power Development s.r.o conduct business in
the Czech Republic.
Resource Marketing. CG&E Resource Marketing, Inc. ("Resource
Marketing") was incorporated in Delaware in 1994 and has an office in
Cincinnati. It was formed to hold CG&E's interest in U.S. Energy
Partners, a gas marketing partnership that was formed under Delaware
law in 1994. U.S. Energy Partners will compete with traditional
regulated local distribution companies by offering "merchant service"
(i.e., acquiring natural gas and selling it to customers) and will
broker gas to industrial and large commercial customers, with the
initial aim, among other things, of recapturing former customers of
CG&E's gas utility business. The other partner in the partnership is
Public Service Electric & Gas Company.
CGE ECK. CGE ECK, Inc. ("CGE ECK") was incorporated in Delaware in
1994 and was formed as the vehicle for an investment in ECK s.r.o., a
Czech limited liability company which owns and operates a generating
facility in the Czech Republic. At present, CGE ECK holds an
approximately 3% interest in ECK s.r.o. and intends to dispose of that
interest.
PSI Recycling. PSI Recycling, Inc. was incorporated in Indiana in
1990 and recycles paper, metal and other materials from Energy, its
largest single supplier, and other sources.
PESCO. Power Equipment Supply Co. ("PESCO") was incorporated in
Indiana in 1990 and was established to sell equipment and parts from
an Energy generating plant which was cancelled, the Marble Hill
nuclear project. PESCO now also buys equipment for resale, brokers
equipment, and sells equipment on consignment for others. In 1993,
PESCO sold switchgear/breakers (58%, based on 1993 data), valves
(14%), pumps (14%) and miscellaneous items (14%).
PSI Wholesale. Wholesale Power Services, Inc. ("PSI Wholesale") was
incorporated in Indiana in 1992 and was formed to engage in the
business of brokering power, emission allowances, electricity futures,
and related products and services and to provide consulting services
in the wholesale power-related markets. In addition, PSI Wholesale,
through a division, The International Power Exchange ("IPEX"), was
formed to create, market and maintain the services of an "electronic
bulletin board" ("EBB") for the bulk power market. The on-line EBB
made available by IPEX uses software developed in-house at PSI and
enables Energy and other subscribing entities (investor-owned
utilities, municipal, cooperatives, non-utility generators, industrial
companies and other parties) to advertise wholesale power, bulk
transmission and emission allowances for sale or purchase. IPEX's EBB
represents the first such EBB developed for and introduced to the
national electric utility market. A second phase of the IPEX system
will permit subscribers to conduct on-line "screen" trading of hourly
energy buy/sell proposals.
Investments in Argentina. PSI Argentina, Inc. ("PSI Argentina"),
Costanera Power Corp. ("Costanera"), and Energy Argentina are all
Indiana corporations established in 1992 in connection with the
privatization of electric generation and distribution assets in
Argentina. PSI Argentina is a wholly-owned subsidiary of CINergy
Investments and in turn has two wholly-owned subsidiaries: Costanera
and E P EDEGEL, Inc., which are described below. Through PSI
Argentina, Costanera and Energy Argentina, CINergy is a member of two
consortia holding interests in Argelec S.A. ("Argelec"); Central
Costanera S.A., an Argentine electric generating company that owns a
1260 megawatt facility; and Distrilec Inversora S.A. ("Distrilec"),
which owns 51% of the stock of Edesur S.A., an electric distribution
system serving the southern half of Buenos Aires. Through PSI
Argentina, Energy Argentina and Costanera, CINergy holds a 10%
interest in Argelec, a 6% interest in Central Costanera S.A., and an
8% interest in Distrilec. Argelec was formed to hold, and may
eventually hold, the consortium's 60% equity interest in Central
Costanera S.A.
PSI Argentina and Costanera have been determined by the FERC to be
exempt wholesale generators under Section 32(a) of the Act. See
Costanera Power Corporation, 61 FERC Par.61,335 (1992); PSI Argentina,
Inc., 68 FERC Par.61,286 (1994). Energy Argentina is a foreign
utility company under Section 33(a) of the Act. All three companies -
- Costanera, PSI Argentina, and Energy Argentina -- have been exempted
from the Act pursuant to Section 3(b) by orders of the Commission.
PSI Resources, et al., Rel. No. 35-25570, 51 SEC Docket 1374 (July 2,
1992); PSI Resources, Inc., et al., Rel. No. 35-25674, 52 SEC Docket
2533 (Nov. 13, 1992).
Another subsidiary of PSI Argentina, E P EDEGEL, Inc. was incorporated
in Delaware in 1994 to acquire, own and hold, directly or indirectly,
interests in foreign EWGs, but to date has not made any such
investments and is currently inactive.
Inactive subsidiaries. The following subsidiaries of CINergy
Investments are inactive: PSI Power Resource Development, Inc. and
PSI Power Resource Operations Inc., which were incorporated in Indiana
in 1990 and 1989, respectively, and were formed to develop, and
operate and maintain independent power producer/cogeneration projects;
PSI Environmental Corp., which was incorporated in Indiana in 1991 and
was formed to provide energy-related environmental services; PSI
International, Inc. and PSI Sunnyside, Inc., which were incorporated
in Indiana in 1991 and 1990, respectively, and were formed to develop,
construct, operate, and own cogenerating or power production facili-
ties; PSI T&D International, Inc. ("T&D"), which was incorporated in
August 1994 as an Indiana corporation; and PSI Yacyreta, Inc., which
was incorporated in September 1994 as an Indiana corporation and a
wholly-owned subsidiary of T&D ("Yacyreta"). Both T&D and Yacyreta
were formed to acquire, directly or indirectly, interests in FUCOs.
Other interests. In addition to the foregoing non-utility interests,
CINergy, as the successor in interest to PSI, holds, directly or
indirectly, a number of small minority limited partnership interests
in the following entities: Cambridge Ventures, L.P., CID Partnership,
L.P., CID Ventures, L.P., CID Equity Capital III, L.P., and Circle
Centre Mall. Cambridge Ventures, L.P. is licensed by the United
States Small Business Administration as a small business investment
company. The primary purpose of the partnership is to operate a
venture fund and invest in equities, debt securities with equity
participation, secured short and long-term loans and participations
with other funds. Investments are typically made in start-up
companies with most funding in the $25,000 to $500,000 range. CID
Equity Partners (including CID Partnership, L.P., CID Ventures, L.P.,
and CID Equity Capital III, L.P.) is a private venture capital
partnership dedicated to building successful companies through long-
term investments in growing Indiana and other midwestern businesses.
CID Equity Partners actively seeks investments in companies in
expansion financings, start-ups, management buyouts and family company
recapitalizations. The initial CID investments were created in
response to an Indiana legislative act in 1981 that created a one-time
tax credit. The Circle Centre Mall is a 700,000 square foot shopping
mall under construction in downtown Indianapolis.
Additional information regarding the general character of the business
of CINergy and its subsidiaries is set forth in the following
documents, the applicable portions of which are hereby incorporated by
reference: Item 1.A and 1.B of the Application-Declaration of CINergy
on Form U-1, as amended, in File No. 70-8427; Item 1 of the CG&E 1993
Form 10-K; Item 1 of the Energy 1993 Form 10-K; the Exemption
Statement of CG&E on Form U-3A-2 for the year ended December 31, 1993
(File No. 69-70); and the Exemption Statement of PSI on Form U-3A-2
for the year ended December 31, 1993, as amended (File No. 1-9941).
Information regarding CG&E's arrangements for the purchase of
electricity and gas from other than associate companies is set forth
in Item 1 of the CG&E 1993 Form 10-K and is hereby incorporated by
reference, and information regarding Energy's arrangements for the
purchase of electricity from other than associate companies is set
forth in Item 1 of the Energy 1993
Form 10-K and is hereby incorporated by reference.
The number of communities (by state) served by CG&E and its
subsidiaries at December 31, 1993, were:
Communities Served
Retail Wholesale Total
Electric
Ohio 78 7 85
Kentucky 39 1 40
Indiana 1 - 1
--- --- ---
118 8 126
Gas
Ohio 70 - 70
Kentucky 41 - 41
Indiana 5 1 6
--- --- ---
116 1 117
The number of communities served by Energy at December 31, 1993, were:
Communities Served
Retail Wholesale Total
Electric
Indiana 709 18 727
The following tables summarize the statistics relating to sales,
purchases, operating revenues, and customers for CG&E and its
subsidiaries and Energy, respectively, during the past five years.
THE CINCINNATI GAS & ELECTRIC COMPANY
AND SUBSIDIARY COMPANIES
STATISTICAL SUMMARY
Year Ended December 31
1993 1992 1991 1990 1989
ELECTRIC DEPARTMENT
Number of customers at year end:
Residential 621,111 621,685 612,875 604,819 595,053
Commercial 68,494 69,210 68,025 67,488 66,466
Industrial 3,108 3,194 3,185 3,183 3,176
Other 4,388 4,472 4,361 4,260 4,162
------- ------- ------- ------- -------
Total retail 697,101 698,561 688,446 679,750 668,857
Sales for resale 13 13 15 11 11
------- ------- ------- ------- -------
Total 697,114 698,574 688,461 679,761 668,868
Kwh sales (millions):
Residential 7,149 6,583 7,110 6,257 6,523
Commercial 5,471 5,189 5,294 4,945 4,876
Industrial 6,067 5,926 5,539 5,378 5,290
Other 1,672 1,551 1,587 1,542 1,519
------- ------- ------- ------- -------
Total retail 20,359 19,249 19,530 18,122 18,208
Sales for resale 2,010 1,987 1,483 3,884 892
------- ------- ------- ------- -------
Total 22,369 21,236 21,013 22,006 19,100
Kwh output (millions):
Generated (net) 22,338 21,040 21,428 21,371 20,057
Purchased 1,373 1,441 774 1,986 280
------- ------- ------- ------- -------
Total 23,711 22,481 22,202 23,357 20,337
Revenues (thousands):
Residential $502,399 $436,416 $456,378 $404,789 $411,175
Commercial 353,363 325,402 318,238 303,169 293,227
Industrial 277,021 263,212 245,177 241,050 230,865
Other 92,498 84,577 82,597 81,131 77,869
---------- ---------- ---------- ---------- ----------
Total retail 1,225,281 1,109,607 1,102,390 1,030,139 1,013,136
Sales for resale 46,208 40,076 35,128 80,792 21,898
Other 10,956 9,773 9,877 9,960 9,205
---------- ---------- ---------- ---------- ----------
Total $1,282,445 $1,159,456 $1,147,395 $1,120,891 $1,044,239
<PAGE>
THE CINCINNATI GAS & ELECTRIC COMPANY
AND SUBSIDIARY COMPANIES
STATISTICAL SUMMARY
Year Ended December 31
1993 1992 1991 1990 1989
GAS DEPARTMENT
Number of customers at year end:
Residential 375,992 372,395 364,437 357,092 350,738
Commercial 40,471 40,303 39,829 39,277 38,387
Industrial 2,108 2,229 2,229 2,225 2,251
Other 1,484 1,458 1,437 1,385 1,354
------- ------- ------- ------- -------
Total retail 420,055 416,385 407,932 399,979 392,730
Sales for resale 1 1 1 1 1
------- ------- ------- ------- -------
Total 420,056 416,386 407,933 399,980 392,731
Sales (million cubic feet):
Residential 43,514 39,754 38,048 35,207 42,642
Commercial 20,370 20,142 19,373 18,318 20,215
Industrial 10,011 10,091 10,663 12,238 16,225
Other 3,996 3,941 3,709 3,729 3,990
------- ------- ------- ------- -------
Total retail 77,891 73,928 71,793 69,492 83,072
Sales for resale 307 285 273 258 298
------- ------- ------- ------- -------
Total 78,198 74,213 72,066 69,750 83,370
Gas transported 28,593 25,372 20,748 15,502 12,969
------- ------- ------- ------- -------
Total gas sales and
gas transported 106,791 99,585 92,814 85,252 96,339
Sources of Gas (million cubic feet):
Natural gas purchased 79,393 75,851 74,618 72,223 85,276
Gas produced 18 14 8 2 238
------- ------- ------- ------- -------
Total 79,411 75,865 74,626 72,225 85,514
Revenues (thousands):
Residential $269,684 $220,140 $205,790 $168,627 $212,185
Commercial 114,957 99,827 94,399 78,629 92,526
Industrial 47,403 42,091 41,445 43,989 61,543
Other 20,219 17,024 15,588 14,420 16,400
------- ------- ------- ------- -------
Total retail 452,263 379,082 357,222 305,665 382,654
Sales for resale 1,354 927 967 1,028 1,103
Other 15,679 13,961 12,514 10,884 9,515
------- ------- ------- ------- -------
Total $469,296 $393,970 $370,703 $317,577 $393,272
<PAGE>
PSI ENERGY, INC.
STATISTICAL SUMMARY
Year Ended December 31
1993 1992 1991 1990 1989
Number of customers at year end:
Residential 545,027 535,796 527,160 519,568 513,348
Commercial 74,582 72,916 71,572 70,317 68,806
Industrial 3,193 3,051 2,936 2,905 2,893
Other 1,188 1,304 1,277 1,256 1,205
------- ------- ------- ------- -------
Total retail 623,990 613,067 602,945 594,046 586,252
Sales for resale 32 30 30 22 26
------- ------- ------- ------- -------
Total 624,022 613,097 602,975 594,068 586,278
Kwh sales (millions):
Residential 6,669 5,943 6,294 5,653 5,759
Commercial 5,492 5,121 5,179 4,826 4,729
Industrial 8,793 8,338 7,954 7,699 7,048
Other 60 59 57 59 58
------- ------- ------- ------- -------
Total retail 21,014 19,461 19,484 18,237 17,594
Sales for resale 5,673 6,290 7,701 8,141 6,966
------- ------- ------- ------- -------
Total 26,687 25,751 27,185 26,378 24,560
Kwh output (millions):
Generated (net) 26,740 26,303 26,446 25,817 24,560
Purchased 1,322 1,005 2,354 2,047 1,456
------- ------- ------- ------- -------
Total 28,062 27,308 28,800 27,864 26,016
Revenues (thousands):
Residential $386,421 $354,975 $374,876 $350,666 $385,292
Commercial 251,346 238,668 243,449 234,727 250,276
Industrial 301,311 293,688 286,122 284,603 286,201
Other 7,403 7,271 7,146 7,256 7,813
---------- ---------- ---------- ---------- ----------
Total retail 946,481 894,602 911,593 877,252 929,582
Sales for resale 142,144 146,507 194,087 215,745 192,729
Other/3/ (10,356) 31,074 14,140 13,144 16,594
---------- ---------- ---------- ---------- ----------
Total $1,078,269 $1,072,183 $1,119,820 $1,106,141 $1,138,905
<PAGE>
(b) Any substantial changes which may have occurred in the general
character of the business of such companies during the preceding
five years.
Information regarding substantial changes that have taken place during
the preceding five years related to CINergy and its subsidiaries is set
forth in the following documents, the applicable portions of which are
hereby incorporated by reference: Item 7 of the Annual Reports of CG&E
on Form 10-K for the fiscal years ended December 31, 1993, 1992, 1991,
1990 and 1989 (File No. 1-1232); Item 7 of the Annual Reports of ULH&P on
Form 10-K for the fiscal years ended December 31, 1993, 1992, 1991, 1990
and 1989 (File No. 2-7793); Item 7 of the Annual Reports of PSI on Form
10-K for the fiscal years ended December 31, 1993, 1992, 1991, 1990 and
1989 (File No. 1-9941); Part I, Item 2 of the Quarterly Reports of CG&E
on Form 10-Q for the quarterly periods ended March 31, June 30, and
September 30, 1994 (File No. 1-1232); Part I, Item 2 of the Quarterly
Reports of ULH&P on Form 10-Q for the quarterly periods ended March 31,
June 30, and September 30, 1994 (File No. 2-7793); Part I, Item 2 of the
Quarterly Reports of Energy on Form 10-Q for the quarterly periods ended
March 31, June 30, and September 30, 1994 (File No. 1-3543); Item 1.C.1
of the Application-Declaration of CINergy on Form U-1, as amended, in
File No. 70-8427; and the Registration Statement of CINergy on Form S-4
(File No. 33-59964) ("The Mergers -- Background of the Mergers").
PROPERTY
6. Describe briefly the general character and location of the principal
plants, properties and other important physical units of the
registrant and its subsidiaries, showing separately (a) public
utility and (b) other properties. If any principal plant or
important unit is not held in fee, so state and describe how held.
Information regarding the principal plants, properties and other
important physical units of CINergy and its subsidiaries is set forth
in the following documents, the applicable portions of which are
hereby incorporated by reference: Item 1.B.2 of the Application-
Declaration of CINergy on Form U-1, as amended, in File No. 70-8427;
Item 2 of the Exemption Statement of CG&E on Form U-3A-2 for the year
ended December 31, 1993 (File No. 69-70); Item 2 of the Exemption
Statement of PSI on Form U-3A-2 for the year ended December 31, 1993,
as amended (File No. 1-9941); Item 2 of the CG&E 1993 Form 10-K; and
Item 2 of the Energy 1993 Form 10-K.
Additional information:
At December 31, 1993, Tri-State Improvement Company had non-utility
property on its books of $14,643,014, which primarily consisted of
rights of way, office space, and other property to be used in the
utility operations of CG&E and its subsidiaries.
INTERSTATE TRANSACTIONS
7. For each public utility company in the holding company system of the
registrant which is engaged in the transmission of electric energy or
gas in interstate commerce, furnish the following information for the
last calendar year:
Information regarding the transmission of electric energy or gas in
interstate commerce for each public utility in the CINergy system is
set forth in the following documents, the applicable portions of
which are hereby incorporated by reference: Item 3 of the Exemption
Statement of CG&E on Form U-3A-2 for the year ended December 31, 1993
(File No. 69-70); Item 3 of the Exemption Statement of PSI on Form U-
3A-2 for the year ended December 31, 1993, as amended (File No. 1-
9941). In addition, on file with the FERC are CG&E's 1993 Form No. 1
and Form No. 2; ULH&P's 1993 Form No. 1 and Form No. 2; and Energy's
1993 Form No. 1. The 1994 Forms No. 1 and 2 for these companies will
be filed with the FERC on or before April 30, 1995.
See Item 5 above for additional information regarding annual electric
sales of Energy and annual electric and gas sales of CG&E and its
subsidiaries for the year ended December 31, 1993.
SECURITIES OUTSTANDING
8. Submit the following information concerning the registrant and each
subsidiary thereof as of the latest available date:
FUNDED DEBT
(a) For each issue or series of funded debt, including funded
debt secured by liens on property owned, whether or not such debt has
been assumed: (Do not include here any contingent liabilities
reported under paragraph 8(c).)
<TABLE>
<CAPTION>
As of October 31, 1994
Col. A Col. B Col. C Col. D Col. E Col. F Col. G Col. H Col. I
- ------ ------ ------ ------ ------ ------ ------ ------ ------
Aggregate
Amount
Amount owned by
reacquired Amount in Amount Registrant
Amount by Issuer Sinking and Pledged by and Subsid-
Issued or Obligor Other Funds Registrant iaries other
Name of Amount Less and Available of Issuer and each than Issuer Name of
Obligor Title of Issue Authorized Retired for Resale or Obligor Subsidiary or Obligor Trustee
- ------- -------------- ---------- ------- ------------- ----------- ---------- ------------ -------
($000s) ($000s) Omitted Omitted Omitted Omitted Omitted
with Staff with Staff with Staff with Staff with Staff
permission permission permission permission permission
<S> <C> <C> <C> <C> <C> <C> <C> <C>
CG&E First mortgage bonds
5 7/8% series due
July 1, 1997 30,000 30,000
CG&E First mortgage bonds
7 3/8% series due
May 1, 1999 50,000 50,000
CG&E First mortgage bonds
7 3/8% series due
November 1, 2001 60,000 60,000
CG&E First mortgage bonds
8 1/8% series due
August 1, 2003 60,000 60,000
CG&E First mortgage bonds
10 1/8% series due
December 1, 2015
(Pollution Control) 84,000 84,000
CG&E First mortgage bonds
9.70% series due
June 15, 2019 100,000 100,000
CG&E First mortgage bonds
10 1/8% series due
May 1, 2020 100,000 100,000
CG&E First mortgage bonds
10.20% series due
December 1, 2020 150,000 150,000
CG&E First mortgage bonds
8.95% series due
December 15, 2021 100,000 100,000
CG&E First mortgage bonds
7.20% series due
October 1, 2023 300,000 300,000
CG&E First mortgage bonds
6 1/4% series due
September 1, 1997 100,000 100,000
7 1/4% series due
September 1, 2002 100,000 100,000
8 1/2% series due
September 1, 2022 100,000 100,000
CG&E First mortgage bonds
5.45% series due
January 1, 2024
(Pollution Control) 21,400 21,400
5.45% series due
January 1, 2024
(Pollution Control) 25,300 25,300
5 1/2% series due
January 1, 2024
(Pollution Control) 48,000 48,000
CG&E First mortgage bonds
5.80% series due
February 15, 1999 110,000 110,000
6.45% series due
February 15, 2004 110,000 110,000
CG&E County of Boone, Kentucky
6.50% Collateralized
Pollution Control Revenue
Refunding Bonds Series
1992 A, due
November 15, 2022 12,721 12,721
CG&E County of Boone, Kentucky
Floating Rate Collateralized
Pollution Control Revenue
Refunding Bonds Series
1985 A, due August 1,
2013 16,000 16,000
CG&E Ohio Air Quality Development
Authority Customized
Purchase Revenue Bonds
Variable Rate, Series A
and B, due December 1,
2015 84,000 84,000
Energy First mortgage bonds
Series S, 7%, due
January 1, 2002 50,000 26,429
Energy First mortgage bonds
Series Y, 7 5/8%, due
January 1, 2007 85,000 24,140
Energy First mortgage bonds
Series BB, 6 5/8%, due
March 1, 2004
(Pollution Control) 5,000 5,000
Energy First mortgage bonds
Series NN, 7.60%, due
March 15, 2012
(Pollution Control) 35,000 35,000
Energy First mortgage bonds
Series QQ, 8 1/4%, due
June 15, 2013
(Pollution Control) 23,000 23,000
Energy First mortgage bonds
Series RR, 9 3/4%, due
August 1, 1996 50,000 50,000
Energy First mortgage bonds
Series TT, 7 3/8%, due
March 15, 2012
(Pollution Control) 10,000 10,000
Energy First mortgage bonds
Series UU, 7 1/2%, due
March 15, 2015
(Pollution Control) 14,250 14,250
Energy First mortgage bonds
Series YY, 5.60%, due
February 15, 2023
(Pollution Control) 30,000 30,000
Energy First mortgage bonds
Series ZZ, 5 3/4%, due
February 15, 2028
(Pollution Control) 50,000 50,000
Energy First mortgage bonds
Series AAA, 7 1/8%, due
February 1, 2024 50,000 50,000
Energy Secured medium-term notes
Series A, 6.65% to 8.88%,
due January 3, 1997 to
June 1, 2022 300,000 300,000
Energy Secured medium-term notes
Series B, 5.22% to 8.26%,
due August 30, 1995 to
August 22, 2022 545,000 290,000
Energy Pollution Control Notes
Series A, 5 3/4%, due
December 15, 1994 to
December 15, 2003 22,000 20,160
Energy Series 1994A Promissory Note,
non-interest bearing,
due January 3, 2001 19,825 19,825
ULH&P First mortgage bonds
6 1/2% series due
August 1, 1999 20,000 20,000
ULH&P First mortgage bonds
8% series due
October 1, 2003 10,000 10,000
ULH&P First mortgage bonds
9 1/2% series due
December 1, 2008 10,000 10,000
ULH&P First mortgage bonds
9.70% series due
July 1, 2019 20,000 20,000
ULH&P First mortgage bonds
10 1/4% series due
June 1, 2020 15,000 15,000
ULH&P First mortgage bonds
10 1/4% series due
November 15, 2020 15,000 15,000
Lawrence-
burg First mortgage bonds
9 3/4% series due
October 1, 2001 1,200 1,200
Tri-State
Improve-
ment Co. Promissory Note 8 1/2%
due November 15, 1994 275 275
</TABLE>
<PAGE>
CAPITAL STOCK
8. (b) For each class of capital stock including certificates of
beneficial interest give information both in number of shares and in dollar
amounts: (Do not include here any warrants, options or other securities
reported under paragraph 8(d).)
<TABLE>
<CAPTION>
As of October 31, 1994
Col. A Col. B Col. C Col. D Col. E Col. F
- ------ ------ ------ ------ ------ ------
Amount
Reserved for
Options, Warrants, Additional Amount Issued
Amount Authorized Conversions Amount (Col. C Less
Name of Issuer Title of Issue by Charter & Other Rights Unissued Cols. D and E)
- -------------- -------------- ----------------- ------------------ ---------- --------------
<S> <C> <C> <C> <C> <C>
CINergy Common stock, par value
$.01 per share 600,000,000 shares 18,887,838 shares 432,538,435 shares 148,573,727 shares
CG&E Common stock, par value
$8.50 per share 120,000,000 shares (1) 30,336,914 shares 89,663,086 shares
CG&E Cumulative preferred
stock, par value $100
per share, 4% series (2) 270,000 shares
CG&E Cumulative preferred
stock, par value $100
per share, 4 3/4% series (2) 130,000 shares
CG&E Cumulative preferred
stock, par value $100
per share, 7.44% series (2) 400,000 shares
CG&E Cumulative preferred
stock, par value $100
per share, 9.15% series (2) 500,000 shares
CG&E Cumulative preferred
stock, par value $100
per share, 7 7/8% series (2) 800,000 shares
CG&E Cumulative preferred
stock, par value $100
per share, 7 3/8% series (2) 800,000 shares
Energy Common stock, stated
value $.01 per share 60,000,000 shares 6,086,299 shares 53,913,701 shares
Energy Cumulative preferred
stock, par value $25
per share, 4.32% Series (3) 169,162 shares
Energy Cumulative preferred
stock, par value $25
per share, 4.16% Series (3) 148,763 shares
Energy Cumulative preferred
stock, par value $25
per share, 7.44% Series (3) 4,000,000 shares
Energy Cumulative preferred
stock, par value $100
per share, 3 1/2% Series (4) 41,559 shares
Energy Cumulative preferred
stock, par value $100
per share, 6 7/8% Series (4) 600,000 shares
Energy Cumulative preferred
stock, par value $100
per share, 7.15% Series (4) 158,640 shares
Energy Preference stock,
no par value 5,000,000 shares 5,000,000 shares
ULH&P Common stock, par
value $15 per share 1,000,000 shares 414,667 shares 585,333 shares
Lawrenceburg Common stock, stated
value $50 per share 11,000 shares 232 shares 10,768 shares
West Harrison Common stock, par
value $10 per share 10,000 shares 8,000 shares 2,000 shares
Miami Common stock, stated
value $1 per share 10,000 shares 9,000 shares 1,000 shares
Tri-State
Improvement Co. Common stock, stated
value $25 per share 1,000 shares 1,000 shares
KO Transmission
Co. Common stock, par
value $1 per share 100 shares 90 shares 10 shares
PSI Energy
Argentina, Inc. Common stock,
no par value 100,000,000 shares 99,999,900 shares 100 shares
PSI Energy
Argentina, Inc. Cumulative preferred
stock, par value $100
per share 20,000,000 shares 20,000,000 shares
South Construction
Company, Inc. Common stock, par
value $100 per share 10 shares 10 shares
CINergy
Services, Inc. Common stock, par
value $.05 per share 50 shares 50 shares
CINergy Invest-
ments, Inc. Common stock, par
value $.01 per share 100 shares 100 shares
Enertech Associates
International, Inc. Common stock, stated
value $500 per share 750 shares 650 shares 100 shares
Beheer En Beleggin-
smaatschappij
Bruwabel B.V. Common stock, stated
value 125 Dutch Guilders
per share 400 shares 79 shares321 shares
Power International
s.r.o. N/A
Power Development
s.r.o. N/A
CG&E Resource
Marketing, Inc. Common stock, par value
$.01 per share 100 shares 90 shares 10 shares
CGE ECK, Inc. Common stock, par value
$.01 per share 100 shares 90 shares 10 shares
PSI Recycling, Inc. Common stock, no
par value 15,000,000 shares 14,999,900 shares 100 shares
PSI Recycling, Inc. Cumulative preferred
stock, par value $100
per share 5,000,000 shares 5,000,000 shares
PSI Argentina, Inc. Common stock, no
par value 100,000,000 shares 99,999,900 shares 100 shares
PSI Argentina, Inc. Cumulative preferred
stock, par value $100
per share 20,000,000 shares 20,000,000 shares
Costanera Power
Corp. Common stock, no
par value 100,000,000 shares 99,999,900 shares 100 shares
Costanera Power
Corp. Cumulative preferred
stock, par value
$100 per share 20,000,000 shares 20,000,000 shares
E P EDEGEL, Inc. Common stock, no
par value 1,000 shares 1,000 shares
Power Equipment
Supply Co. Common stock, no
par value 100,000,000 shares 99,999,900 shares 100 shares
Power Equipment
Supply Co. Cumulative preferred
stock, par value
$100 per share 20,000,000 shares 20,000,000 shares
Wholesale Power
Services, Inc. Common stock, no
par value 100,000,000 shares 99,999,900 shares 100 shares
Wholesale Power
Services, Inc. Cumulative preferred
stock, par value
$100 per share 20,000,000 shares 20,000,000 shares
PSI T&D Inter-
national, Inc. Common stock, no
par value 100,000,000 shares 99,999,900 shares 100 shares
PSI T&D
International,
Inc. Cumulative preferred
stock, par value
$100 per share 20,000,000 shares 20,000,000 shares
PSI Yacyreta, Inc. Common stock, no
par value 100,000,000 shares 99,999,900 shares 100 shares
PSI Yacyreta, Inc. Cumulative preferred
stock, par value
$100 per share 20,000,000 shares 20,000,000 shares
PSI Power Resource
Development, Inc. Common stock, no
par value 100,000,000 shares 99,999,900 shares 100 shares
PSI Power Resource
Development, Inc. Cumulative preferred
stock, par value
$100 per share 20,000,000 shares 20,000,000 shares
PSI Power Resource
Operations, Inc. Common stock, no
par value 100,000,000 shares 99,999,900 shares 100 shares
PSI Power Resource
Operations, Inc. Cumulative preferred
stock, par value
$100 per share 20,000,000 shares 20,000,000 shares
PSI Environmental
Corp. Common stock, no
par value 100,000,000 shares 99,999,900 shares 100 shares
PSI Environmental
Corp. Cumulative preferred
stock, par value
$100 per share 20,000,000 shares 20,000,000 shares
PSI International,
Inc. Common stock, no
par value 100,000,000 shares 99,999,900 shares 100 shares
PSI International,
Inc. Cumulative preferred
stock, par value
$100 per share 20,000,000 shares 20,000,000 shares
PSI Sunnyside, Inc. Common stock, no
par value 100,000,000 shares 99,999,900 shares 100 shares
PSI Sunnyside, Inc. Cumulative preferred
stock, par value
$100 per share 20,000,000 shares 20,000,000 shares
<FN>
______________
(1) A total of 2,600,057 shares of CG&E common stock that had been listed on the New York Stock Exchange as reserved for various
stock purchase plans were delisted after the Merger.
(2) In total, the cumulative preferred stock, $100 par value, of CG&E is authorized 6,000,000 shares, of which 3,100,000 shares
remained unissued at October 31, 1994.
(3) In total, the cumulative preferred stock, $25 par value, of Energy is authorized 5,000,000 shares, of which 682,075 shares
remained unissued at October 31, 1994.
(4) In total, the cumulative preferred stock, $100 par value, of Energy is authorized 5,000,000 shares, of which 4,199,801 shares
remained unissued at October 31, 1994.
Note: CGE Corp. and PSI Investments, Inc. were merged with and into CINergy Investments, Inc. on November 3, 1994, and Energy
Services Inc. of Buenos Aires, an inactive corporation, was administratively dissolved by the Secretary of State of the
State of Indiana on January 3, 1995, and are therefore not included in the foregoing table.
</TABLE>
<TABLE>
<CAPTION>
As of October 31, 1994
Col. G Col. H Col. I Col. J
- ------ ------ ------ ------
Liquidating Value Amount Reacquired Amount Pledged Aggregate Amount
Voluntary & by Issuer and by Registrant Owned by Registrant &
Involuntary Available for Resale and each Subsidiary Subsidiaries Other Than Issuer
- ----------------- -------------------- ------------------- ------------------------------
Omitted Omitted Omitted Omitted
with Staff with Staff with Staff with Staff
permission permission permission permission
<S> <C> <C> <C>
</TABLE>
<PAGE>
CONTINGENT LIABILITIES
8. (c) A brief outline of the nature and amount of each contingent
liability on account of endorsement or other guarantees of any
securities.
None.
OTHER SECURITIES
8. (d) A statement of the amount of warrants, rights or options and of
any class of securities of the registrant and subsidiary
companies not elsewhere herein described which is outstanding
and/or authorized. A brief description of the provisions thereof
should be included. Information need not be set forth under this
item as to notes, drafts, bills of exchange or bankers'
acceptances which mature within nine months.
Certain information regarding the CINergy Stock Option Plan is
set forth in the Registration Statement of CINergy on Form S-3
(File No. 33-56093), and is hereby incorporated by reference.
INVESTMENTS IN SYSTEM SECURITIES
9. Give a tabulation showing the principal amount, par or stated value,
the cost to the system company originally acquiring such security, and
the number of shares or units, of each security described under Item 8
that is held by the registrant and by each subsidiary company thereof
as the record (or beneficial) owner, and the amounts at which the same
are carried on the books of each such owner. This information should
be given as of the same date as the information furnished in answer to
Item 8.
(Note: Between October 31, 1994 (the date of the information furnished
in Item 8) and the filing date hereof, CGE Corp. and PSI
Investments, Inc. were merged into CINergy Investments, Inc. and
Energy Services Inc. of Buenos Aires, an inactive subsidiary of
PSI Argentina, Inc., has been administratively dissolved. In
addition, three companies which became direct subsidiaries of
CINergy as a result of the merger of PSI into CINergy on October
24, 1994 -- PSI Argentina, Inc., PSI Recycling, Inc., and PSI T&D
International, Inc. -- have been realigned under CINergy
Investments, Inc. In the interest of presenting the Commission
with more current information regarding the CINergy System, the
table below reflects the merger of CGE Corp. and PSI Investments,
Inc. with and into CINergy Investments, Inc. and the
administrative dissolution of Energy Services Inc. of Buenos
Aires, and shows PSI Argentina, Inc., PSI Recycling, Inc., and
PSI T&D International, Inc. as subsidiaries of CINergy
Investments, Inc.)
<PAGE>
<TABLE>
<CAPTION>
As of October 31, 1994
Shares Number of
Name of Issuer Held By Title of Issue Original Cost Shares Held Book Value
- -------------- ------- -------------- ------------- ----------- ----------
($000s) ($000s)
<S> <C> <C> <C> <C> <C>
CG&E CINergy Common stock, 1,550,890 89,663,086 1,547,315
par value
$8.50 per share
Energy CINergy Common stock, 725,692 53,913,701 724,593
stated value
$.01 per share
ULH&P CG&E Common stock, 27,397 585,333 104,711
par value
$15 per share
Lawrenceburg CG&E Common stock,
stated value 1,177 10,768 4,922
$50 per share
West Harrison CG&E Common stock, 26 2,000 273
par value
$10 per share
Miami CG&E Common stock, 41 1,000 37
stated value
$1 per share
Tri-State CG&E Common stock,
Improvement Co. stated value 25 1,000 (96)
$25 per share
KO Transmission CG&E Common stock,
Co. par value * 10 *
$1 per share
PSI Energy Energy Common stock, * 100 10,705
Argentina, Inc. no par value
South Construction Energy Common stock, 1 10 1
Company, Inc. par value
$100 per share
CINergy Services, CINergy Common stock, * 50 *
Inc. par value
$.05 per share
CINergy CINergy Common stock, * 100 16,207
Investments, Inc. par value
$.01 per share
Enertech Associates CINergy Common stock, 50 100 (1,339)
International, Inc. Investments, stated value
Inc. $500 per share
Beheer En Enertech Common stock, 300 321 300
Belegginsmaat- Associates stated value
schappij International, 125 Dutch Guilders
Bruwabel B.V. Inc. per share
Power International Beheer En N/A * N/A 100,000
s.r.o. Belegginsmaat- Czech crowns
schappij
Bruwabel B.V.
Power Development Beheer En N/A * N/A 100,000
s.r.o. Belegginsmaat- Czech crowns
schappij
Bruwabel B.V.
CG&E Resource CINergy Common stock, * 10 (371)
Marketing, Inc. Investments, Inc. par value $.01
per share
CGE ECK, Inc. CINergy Common stock, * 10 (32)
Investments, Inc. par value $.01
per share
PSI Recycling, Inc. CINergy Common stock, * 100 1,382
Investments, no par value
Inc.
PSI Argentina, Inc. CINergy Common stock, 4,254 100 9,766
Investments, no par value
Inc.
Costanera Power PSI Argentina, Common stock, 4,540 100 9,786
Corp. Inc. no par value
E P EDEGEL, Inc. PSI Argentina, Common stock, * 1,000 *
Inc. no par value
Power Equipment CINergy Common stock, * 100 6,486
Supply Co. Investments, Inc. no par value
Wholesale Power CINergy Common stock, * 100 382
Services, Inc. Investments, Inc. no par value
PSI T&D CINergy Common stock, * 100 *
International, Inc. Investments, Inc. no par value
PSI Yacyreta, Inc. PSI T&D Common stock, * 100 *
International, Inc. no par value
PSI Power CINergy Common stock, * 100 *
Resource Investments, Inc. no par value
Development, Inc.
PSI Power CINergy Common stock, * 100 *
Resource Investments, Inc. no par value
Operations, Inc.
PSI Environmental CINergy Common stock, * 100 *
Corp. Investments, Inc. no par value
PSI International, CINergy Common stock, * 100 *
Inc. Investments, Inc. no par value
PSI Sunnyside, Inc. CINergy Common stock, * 100 *
Investments, Inc. no par value
<FN>
______________
* Less than 1.
</TABLE>
<PAGE>
INVESTMENTS IN OTHER COMPANIES
10. Give a tabulation showing all investments of the registrant and of
each subsidiary thereof in holding companies and in public utility
companies which are not subsidiary companies of the registrant. Also
show all other investments of the registrant and of each subsidiary
thereof in the securities of any other enterprise, if the book value
of the investment in any such enterprise exceeds 2% of the total debit
accounts shown on the balance sheet of the company owning such
investment or an amount in excess of $25,000 (whichever amount is the
lesser). Give principal amount and number of shares or units and the
cost of each issue of such securities to the system company originally
acquiring such security, and amount at which carried on the books of
the owner. List all such securities pledged as collateral for loans
or other obligations and identify loans and obligations for which
pledged. This information should be given as of the same date as the
information furnished in answer to Item 8. (Note: By permission of
the Staff, Items 10(a) and (b) include only investments where the book
value of the investment exceeds the greater of (i) 2% of the total
debit accounts shown on the balance sheet of the company owning such
investment and (ii) an amount in excess of $25,000.)
(a) Investments of the registrant and of each subsidiary thereof in
holding companies and in public utility companies which are not
subsidiary companies of the registrant:
<TABLE>
<CAPTION>
As of October 31, 1994
Principal Amount/ Amount
Name of Name of Description Number of Original Pledged as
Owner Enterprise of Securities Shares/Units Cost Book Value Collateral
- ------- ---------- ------------- ----------------- -------- ---------- ----------
($000s) ($000s)
<S> <C> <C> <C> <C> <C> <C>
CG&E Ohio Valley Common Stock 9% 900 900 None
Electric Corporation
CGE ECK, Inc. ECK s.r.o. Limited liability 3% interest 97 97 None
company
</TABLE>
<PAGE>
(b) Investments of the registrant and of each subsidiary thereof in
the securities of other enterprises:
<TABLE>
<CAPTION>
As of October 31, 1994
Principal Amount/ Amount
Name of Name of Description Number of Original Pledged as
Owner Enterprise of Securities Shares/Units Cost Book Value Collateral
- ------- ---------- ------------- ----------------- -------- ---------- ----------
($000s) ($000s)
<S> <C> <C> <C> <C> <C> <C>
CG&E Resource U.S. Energy Partnership 1/3 interest 738 315 None
Marketing, Inc. Partners interest
<FN>
Additional information regarding certain limited partnership interests held by CINergy is set forth in response to Item 5(a)
hereof under the headings "CG&E Non-Utility Subsidiaries and Interests" and "Other Interests" and in Item 1.B.3. of the
Application-Declaration of CINergy on Form U-1, as amended, in File No. 70-8427.
</TABLE>
<PAGE>
INDEBTEDNESS OF SYSTEM COMPANIES
11. List each indebtedness of the registrant and of each subsidiary
company thereof (other than indebtedness reported under Item 8, but as
of the same date) where the aggregate debt owed by any such company to
any one person exceeds $25,000 or an amount exceeding 2% of the total
of the debit accounts shown on the balance sheet of the debtor (which
amount is the lesser) but not including any case in which such
aggregate indebtedness is less than $5,000, and give the following
additional information as to each such indebtedness: (Note: By
permission of the Staff, this item includes only indebtedness where
the aggregate debt owed by any such company to any one person exceeds
the greater of: (i) $25,000 and (ii) an amount exceeding 2% of the
total of the debit accounts shown on the balance sheet of the debtor.)
(a) Debts owed to associate companies at October 31, 1994:
<TABLE>
<CAPTION>
Name of Name of
Debtor Creditor Amount Owed Rate of Interest Date of Maturity
------- -------- ----------- ---------------- ----------------
($000s)
<S> <C> <C> <C> <C>
ULH&P CG&E 13,112 None N/A
Lawrenceburg CG&E 1,325 4.90% None
CG&E 346 None N/A
West Harrison CG&E 40 7.75% None
CG&E 66 None N/A
Miami CG&E 3 None N/A
Tri-State CG&E 19,267 9.50% None
Improvement Co. CG&E 3,211 7.75% None
CG&E 406 None N/A
Enertech
Associates CG&E 5,250 7.75% None
International, CG&E 91 None N/A
Inc.
CG&E Resource CG&E 860 4.90% None
Marketing, Inc.
CGE ECK, Inc. CGE Corp.* 593 4.90% None
CGE Corp.* 2 None N/A
CGE Corp.* CG&E 648 4.90% None
CG&E 2 None N/A
<FN>
_______________
* CGE Corp. was merged into CINergy Investments, Inc. on November 3, 1994.
</TABLE>
Additional information relating to debts of the registrant and
subsidiary companies thereof owed to associate companies will be set
forth in an Application-Declaration on Form U-1 to be filed by CINergy
in connection with certain proposed short-term borrowing and money pool
arrangements.
(b) Debts owed to others at October 31, 1994:
<TABLE>
<CAPTION>
Name of Name of
Debtor Creditor Amount Owed Rate of Interest Date of Maturity
------- -------- ----------- ---------------- ----------------
($000s)
<S> <C> <C> <C> <C>
CINergy Barclays Bank 75,000 6.1125% January 23, 1995
Energy Chase Manhattan Bank 93,100 Various Various
ULH&P National City Bank 6,500 5.10% Various
</TABLE>
Certain additional information relating to the borrowings by CINergy
reflected in the table above is set forth in the Declaration of CINergy
on Form U-1, as amended, in File No. 70-8521, and is hereby incorporated
by reference.
Certain additional information regarding short-term credit arrangements
of Energy is set forth in Note 12 to Item 8 of the Energy 1993 Form 10-K
and Part I, Item 1 of the Quarterly Report of Energy on Form 10-Q for
the quarterly period ended September 30, 1994 (File No. 1-3543), which
are hereby incorporated by reference.
Certain information regarding lines of credit of CG&E and its
subsidiaries is set forth in Note 6 to Item 8 of the CG&E 1993 Form 10-
K, which is hereby incorporated by reference.
Additional information relating to debts of the registrant and
subsidiary companies thereof owed to others will be set forth in an
Application-Declaration on Form U-1 to be filed by CINergy in connection
with certain proposed short-term borrowing arrangements.
PRINCIPAL LEASES
12. Describe briefly the principal features of each lease (omitting oil
and gas leases) to which the registrant or any subsidiary company
thereof is a party, which involves rental at an annual rate of more
than $50,000 or an amount exceeding 1% of the annual gross operating
revenue of such party to said lease during its last fiscal year
(whichever of such sums is the lesser) but not including any lease
involving rental at a rate of less than $5,000 per year. (Note: By
permission of the Staff, this item includes only leases which involve
rental at an annual rate of the greater of (i) $50,000 and (ii) an
amount exceeding 1% of the annual gross operating revenue of such
party to said lease during its last fiscal year.)
<TABLE>
<CAPTION>
Total 1993 Payment Expiration
Lessee Lessor Item(s) Leased Payments Frequency Date
- ------ ------ -------------- ---------- --------- ----------
($000s)
<S> <C> <C> <C> <C> <C>
Power North American Building 247 Monthly 10/31/94
Equipment Properties
Supply Co.
PSI Recycling, Burr Oak Building 68 Monthly 6/01/98
Inc. Properties
Fisher Properties Tri-State Land held for 67 Semi- 12/31/99
of Indiana, Inc. Improvement Co. future development annual
</TABLE>
Additional information:
Commencing July 1, 1994, Power Equipment Supply Co., through its North
American Machinery Division, as lessee, entered into a leasehold
arrangement with Solon Industrial Associates, as lessor, for a building
located in Solon, Ohio. This is a seven-year lease, with an option to
purchase, and calls for a monthly rental for the initial five years of
$22,192.42.
In 1994, Tri-State Improvement Co. acquired an office building located next
to CG&E's Cincinnati headquarters. Tri-State Improvement Co., as lessor,
presently is a party to a number of leases with respect to space in such
building, with terms expiring at various times between 1995 and 2003 and
aggregate annual rentals of $2,379,981. Included in this total, Tri-State
Improvement Co. is leasing office space to CG&E for annual revenues of
$1,091,730.
Certain additional information regarding leases is set forth in Note 7 to
Item 8 of the CG&E 1993 Form 10-K, which is hereby incorporated by
reference.
<PAGE>
SECURITIES SOLD
13. If, during the last five years, the registrant or any subsidiary
company thereof has issued, sold or exchanged either publicly or
privately any securities having a principal amount, par, stated or
declared value exceeding $1,000,000 or exceeding an amount equal to
10% of the total liabilities as shown by the balance sheet of issuer
at the time of such issue (whichever of such sums is the lesser), give
the following information with respect to each such issue or sale:
(Note: By permission of the Staff, this item includes only issuances,
sales and exchanges of securities with a principal amount, par, stated
or declared value exceeding the greater of (i) $1,000,000 and (ii) an
amount equal to 10% of the total liabilities as shown by the balance
sheet of issuer at the time of such issue.)
<TABLE>
<CAPTION>
Approx-
Proceeds imate
Received by Expenses Underwriters
Title Name of Amount Issued Issuer per $100 of Issuer Name of Principal Initial
of Issue Obligor or Sold Before Expenses) Per $100 Underwriters or Purchasers Offering Price
- -------- ------- ------------- ---------------- --------- -------------------------- --------------
($000)
<S> <C> <C> <C> <C> <C> <C>
First mortgage bonds
10 1/4% series due
June 1, 2020 ULH&P 15,000 $98.660 $0.575 Morgan Stanley & Co. Inc.
Shearson Lehman Hutton Inc. 99.535%
First mortgage bonds
10 1/4% series due
November 15, 2020 ULH&P 15,000 $98.465 $0.644 Morgan Stanley & Co. Inc.
Lehman Brothers 99.340%
First mortgage bonds
6 1/2% series due
August 1, 1999 ULH&P 20,000 $98.354 $0.383 Morgan Stanley & Co. Inc. 98.685%
Secured medium-term
notes, Series A, 6.65%
to 8.78%, due
January 3, 1997 to
December 27, 2011 Energy 140,000 various various First National Bank of Chicago various
Secured medium-term
notes, Series A, 7.15%
to 8.88%, due
January 6, 1999 to
June 1, 2022 Energy 160,000 various various First National Bank of Chicago various
</TABLE>
In December 1994, CINergy raised approximately $160 million in connection
with the issuance and sale of 7.1 million shares of CINergy common stock in
a public offering. The net proceeds received by CINergy from the sale of
the common stock were contributed to the equity capital of Energy.
Additional information regarding the offering is set forth in the
Declaration of CINergy on Form U-1 in File No. 70-8477, the Certificate of
Notification filed by CINergy on December 29, 1994, and the Registration
Statement of CINergy on Form S-3 (Registration No. 33-55713).
Certain additional information regarding issuances of securities of CG&E is
set forth in the following documents, the applicable portions of which are
hereby incorporated by reference: Item 8 of the Annual Reports of CG&E on
Form 10-K for the fiscal years ended December 31, 1990, 1991, 1992 and 1993
(File No. 1-1232), and Part I, Item 1 of the Quarterly Reports of CG&E on
Form 10-Q for the quarterly periods ended March 31, June 30, and
September 30, 1994 (File No. 1-1232).
Certain additional information regarding issuances of securities of ULH&P
is set forth in the following documents, the applicable portions of which
are hereby incorporated by reference: Item 8 of the Annual Reports of
ULH&P on Form 10-K for the fiscal years ended December 31, 1990, 1991, 1992
and 1993 (File No. 2-7793); and Part I, Item 1 of the Quarterly Reports of
ULH&P on Form 10-Q for the quarterly periods ended March 31, June 30, and
September 30, 1994 (File No. 2-7793).
Certain additional information regarding issuances of securities of Energy
is set forth in the following documents, the applicable portions of which
are hereby incorporated by reference: Item 8 of the Annual Reports of
Energy on Form 10-K for the fiscal years ended December 31, 1990, 1991,
1992 and 1993 (File No. 1-3543), and Part I, Item 1 of the Quarterly
Reports of Energy on Form 10-Q for the quarterly periods ended March 31,
June 30, and September 30, 1994 (File No. 1-3543).
AGREEMENT FOR FUTURE DISTRIBUTION OF SECURITIES
14. (a) Summarize the terms of any existing agreement to which the
registrant or any associate or affiliate company thereof is a
party or in which any such company has a beneficial interest with
respect to future distribution of securities of the registrant or
of any subsidiary.
Certain information regarding agreements with respect to future
distribution of securities of CINergy and its subsidiaries is set
forth in the following documents, the applicable portions of
which are hereby incorporated by reference: Items 1.D, 1.E and
1.F of the Application-Declaration of CINergy on Form U-1 in File
No. 70-8427; Item 1 of the Declaration of CINergy on Form U-1 in
File No. 70-8477; Item 1 of the Declaration of CINergy on Form U-
1 in File No. 70-8521 as amended; Registration Statement of
CINergy on Form S-4, as amended, Registration No. 33-59964, under
the section entitled "THE MERGERS" and the subsection entitled
"Employee Plans, Severance Arrangements and Agreements and Trust
Agreements"; Registration Statement of CINergy on Form S-3 with
respect to the CINergy Dividend Reinvestment and Stock Purchase
Plan, Registration No. 33-55267; and the Registration Statements
of CINergy on Form S-8 with respect to certain stock-based
benefit plans, Registration Nos. 33-55291, 33-55293, 33-56093,
33-56091, 33-56095, 33-56089, and 33-56067.
(b) Describe briefly the nature of any financial interest (other than
the ownership of securities acquired as a dealer for the purpose
of resale) which any person with whom such agreement exists, has
in the registrant or in any associate or affiliate company
thereof.
The beneficiaries of the stock-based benefit plans referred to
above may be deemed to have a financial interest in the
registrant or associate or affiliate companies thereof by virtue
of their employment relationship with the registrant or such
other companies, and compensation, benefit and severance
agreements and arrangements relating to such employment.
TWENTY LARGEST HOLDERS OF CAPITAL STOCKS
15. As of a recent date (indicating such date for each class) give the
following information with respect to the holders of each class of
stock and/or certificates of beneficial interest of the registrant:
(a) The twenty largest holders of the common stock of CINergy, as of
its most recent dividend record date (November 3, 1994).
CINergy shares can be held by certificate, through dividend
reinvestment plans, through employee investment plans, through
investment companies, and other street name and nominee accounts.
Absent an unreasonable expenditure of time and money, CINergy has
no way to determine the number of shares held by each holder of
beneficial interest. Accordingly, CINergy is only able to
provide information as to shares registered with CINergy.
The following table sets forth CINergy's twenty largest
registered shareholders on the books:
<PAGE>
<TABLE>
<CAPTION>
CINERGY
TWENTY LARGEST HOLDERS OF CAPITAL STOCK
SHAREHOLDERS OF RECORD
AT NOVEMBER 3, 1994
Number of Percent
Title of Issue Holder of Record and Address Shares Owned of Class
- -------------- ---------------------------- ------------ --------
<S> <C> <C> <C>
CINergy common stock, CEDE & Co. 109,984,765 74.01%
par value $.01 per share c/o Depository Trust Co.
P.O. Box 20
Bowling Green Station
New York, NY 10274
CINergy common stock, CINergy Dividend Reinvestment 6,003,371 4.04%
par value $.01 per share and Stock Purchase Account
c/o Shareholder Services
P.O. Box 900
Cincinnati, OH 45201-0900
CINergy common stock, Mansell & Co. 1,692,443 1.14%
par value $.01 per share Attn: United States Trust
of New York
Box 2044 Peck Slip Station
New York, NY 10038
CINergy common stock, Kray & Co. 1,339,881 0.90%
par value $.01 per share One Financial Place
440 South LaSalle
Chicago, IL 60605
CINergy common stock, PECO 1,300,075 0.87%
par value $.01 per share c/o PNC Bank Ohio NA
201 E Fifth St.
Cincinnati, OH 45202-4117
CINergy common stock, Philadep & Co. 742,074 0.50%
par value $.01 per share 1900 Market Street
Second Floor
Philadelphia, PA 19103-3595
CINergy common stock, The Cincinnati Life Insurance Co. 487,500 0.33%
par value $.01 per share c/o The Investment Department
Attn: James Miller
Box 145496
Cincinnati, OH 45250-5498
CINergy common stock, Cincinnati Insurance Co. 375,000 0.25%
par value $.01 per share c/o The Investment Department
Attn: James G. Miller
Box 145496
Cincinnati, OH 45250
CINergy common stock, Cincinnati Casualty Company 127,500 0.09%
par value $.01 per share c/o The Investment Department
Box 145493
Cincinnati, OH 45250-5493
CINergy common stock, Allen W. Pike, Trustee 102,300 0.07%
par value $.01 per share Revocable Trust Dtd 05-04-83
U-A Allen W. Pike
20 Chestnut Street #N10
Exeter, NH 03833-1881
CINergy common stock, Cincinnati Financial Corp. 75,000 0.05%
par value $.01 per share c/o The Investment Department
Attn: James G. Miller
Box 145496
Cincinnati, OH 45250
CINergy common stock, John J. Schiff 57,500 0.04%
par value $.01 per share P.O. Box 145496
Cincinnati, OH 45250
CINergy common stock, Miriam L. Eisenberg 43,800 0.03%
par value $.01 per share 3901 N Lake Dr.
Milwaukee, WI 53211
CINergy common stock, Ralph J. Stolle 31,860 0.02%
par value $.01 per share P.O. Box 265
Lebanon, OH 45036
CINergy common stock, W.J. Dwyer & Wm. G. Dwyer & 30,000 0.02%
par value $.01 per share Gwendolyn D. Pingrey
Tr UA Dec 7 62
FBO C.A. Dwyer 1962 Trust
11110 Wickway
Houston, TX 77024-7520
CINergy common stock, Troy Andrade Tr UA Dec 20 93 30,000 0.02%
par value $.01 per share The Mary Kuehner Trust
4741 Atlantic Blvd. F
Jacksonville, FL 32207-2168
CINergy common stock, Physicians Mutual Ins. Co. 30,000 0.02%
par value $.01 per share Attn: Jerry Coon Sr. Vice Pres.
P.O. Box 3313
Omaha, NE 68103
CINergy common stock, J. Harold Scism & Nini V. 23,835 0.02%
par value $.01 per share Scism Tr U-A 08-01-68 F-B-O
J. Harold Scism & Nini V. Scism
P.O. Box 685
Solana Beach, CA 92075
CINergy common stock, Masak 23,650 0.02%
par value $.01 per share c/o The Citizens Natl. Bank &
Trust Co.
Trust Department
P.O. Box 189
Port Richey, FL 34673-0189
CINergy common stock, Jeanne K. Bernard 23,466 0.02%
par value $.01 per share 1865 Forest View Lane
Cincinnati, OH 45233
</TABLE>
Additional information concerning certain holdings of CINergy common stock
is set forth in the Schedule 13G filed by PNC Bancorp, Inc. with the
Commission on December 9, 1994.
(b) Number of shareholders of record each holding 1,000 shares or
more, and aggregate number of shares so held. (Note: By
permission of the Staff, the information in this item relates
only to holders of 10,000 shares or more.)
At November 3, 1994, there were 90 shareholders of record holding
10,000 shares or more. The aggregate number of shares held by
these shareholders was 123,408,551 shares, which represents
83.05% of the total number of shares of CINergy.
(c) Number of shareholders of record each holding less than 1,000
shares and the aggregate number of shares so held. (Note: By
permission of the Staff, the information in this item relates
only to holders of less than 10,000 shares.)
At November 3, 1994, there were 79,313 shareholders of record
holding less than 10,000 shares. The aggregate number of shares
held by these shareholders was 25,191,024 shares, which
represents 16.95% of the total number of shares of CINergy.
OFFICERS, DIRECTORS AND EMPLOYEES
16. (a) Positions and Compensation of Officers and Directors. Give name
and address of each director and officer (including any person
who performs similar functions) of the registrant, of each
subsidiary company thereof, and of each mutual service company
which is a member of the same holding company system. Opposite
the name of each such individual give the title of every such
position held by him and briefly describe each other employment
of such individual by each such company.
State the present rate of compensation on an annual basis for
each director whose aggregate compensation from all such
companies exceeds $1,000 per year, and of each officer whose
aggregate compensation from such companies is at the rate of
$20,000 or more per year. In the event any officer devotes only
part of his time to a company or companies in the system this
fact should be indicated by appropriate footnote. Such
compensation for such part time should be computed on an annual
rate and if such annual rate exceeds $20,000 the actual
compensation as well as annual rate should also be reported.
(b) Compensation of Certain Employees. As to regular employees of
such companies who are not directors or officers of any one of
them, list the name, address and aggregate annual rate of
compensation of all those who receive $20,000 or more per year
from all such companies.
(c) Indebtedness to System Companies. As to every such director,
trustee or officer as aforesaid, who is indebted to any one of
such companies, or on whose behalf any such company has now
outstanding and effective any obligation to assume or guarantee
payment of any indebtedness to another, and whose total direct
and contingent liability to such company exceeds the sum of
$1,000, give the name of such director, trustee, or officer, the
name of such company and describe briefly the nature and amount
of such direct and contingent obligations.
(d) Contracts. If any such director, trustee or officer as
aforesaid:
(1) has an existing contract with any such company (exclusive of
an employment contract which provides for no compensation
other than that set forth in paragraph (a) of this Item);
or,
(2) either individually or together with the members of his
immediate family, owns, directly or indirectly, 5% or more
of the voting securities of any third person with whom any
such company has an existing contract; or,
(3) has any other beneficial interest in an existing contract to
which any such company is a party; describe briefly the
nature of such contract, the names of the parties thereto,
the terms thereof and the interest of such officer, trustee
or director therein.
(e) Banking Connections. If any such director, trustee or officer,
is an executive officer, director, partner, appointee or
representative of any bank, trust company, investment banker, or
banking association or firm, or of any corporation a majority of
whose stock having the unrestricted right to vote for the
election of directors, is owned by any bank, trust company,
investment banker, or banking association or firm, state the name
of such director or officer, describe briefly such other
positions held by him and indicate which of the rules under
Section 17(c) authorizes the registrant and subsidiary companies
of which he is a director or officer to retain him in such
capacity.
By permission of the Staff, information required to be disclosed
pursuant to items 16(a) through 16(e) is not set forth herein.
In lieu thereof, information in respect thereof will be set forth
in the Proxy Statement of CINergy to be distributed in connection
with the 1995 Annual Meeting of Shareholders of CINergy. Prior
to the Merger, the officers and directors of CINergy were
officers and/or directors of CG&E, PSI and/or Energy.
Information regarding the positions and compensation of officers
and directors of CG&E prior to the Merger is set forth in the
CG&E Proxy Statement of April 6, 1994, which is hereby
incorporated by reference. Information regarding the positions
and compensation of officers and directors of PSI prior to the
Merger is set forth in the PSI Proxy Statement of March 9, 1994,
which is hereby incorporated by reference.
Additional information concerning indebtedness of officers and
directors of CINergy System companies will be set forth under
Item 6, Part III(d) in Annual Reports of CINergy on Form U5S.
Additional information concerning contracts of officers and
directors will be set forth under Item 6, Part III(c) ("Certain
Relationships and Related Transactions") in Annual Reports of
CINergy on Form U5S.
Additional information concerning banking connections of officers
and directors will be set forth under Item 6, Part II ("Banking
Affiliations") in Annual Reports of CINergy on Form U5S. With
respect to the last sentence of Item 16(e), the retention of the
directors and officers of CINergy and its subsidiaries who have
banking connections is permitted by Rules 70(a), (b), (c) and/or
(d).
INTERESTS OF TRUSTEES IN SYSTEM COMPANIES
17. Describe briefly the nature of any substantial interest which any
trustee under indentures executed in connection with any outstanding
issue of securities of the registrant or any subsidiary thereof, has
in either the registrant or such subsidiary, and any claim which any
such trustee may have against registrant or any subsidiary; provided,
however, that it shall not be necessary to include in such description
any evidences of indebtedness owned by such trustee which were issued
pursuant to such an indenture.
To the best knowledge of CINergy management, there is no such
interest.
SERVICE, SALES AND CONSTRUCTION CONTRACTS
18. As to each service, sales or construction contract (as defined in
paragraphs (19) to (21) of Section 2(a) of the Act) which the
registrant and any subsidiary company thereof has had in effect within
the last three months, describe briefly the nature of such contract,
the name and address of the parties thereto, the dates of execution
and expiration, and the compensation to be paid thereunder. Attach
typical forms of any such contracts as an exhibit to this registration
statement. If the other party to any such contract is a mutual
service company or a subsidiary service company which is a member of
the same holding company system as the registrant and as to which the
Commission has made a favorable finding in accordance with Rule 13-22,
specific reference may be made to the application or declaration filed
by such company pursuant to Rule 13-22 and no further details need be
given as to such contracts.
The contracts listed below are attached as Exhibits H-1 through H-6
hereto:
Exhibit No. Description
----------- -----------
H-1 Service Agreement dated March 2, 1994 by and among
CG&E, Energy, ULH&P, Lawrenceburg, West Harrison, Miami
and CINergy Services, Inc. (filed as Exhibit B-6 to the
Application-Declaration of CINergy on Form U-1, as
amended, in File No. 70-8427 and approved by the order
of the Commission dated October 21, 1994 with respect
thereto).
H-2 Service Agreement, dated by and among CINergy, non-
utility subsidiaries of CINergy, and CINergy Services,
Inc. (filed as Exhibit B-7 to the Application-
Declaration of CINergy on Form U-1, as amended, in File
No. 70-8427 and approved by the order of the Commission
dated October 21, 1994 with respect thereto).
H-3 Gas Transportation Agreement dated March 9, 1987
between CG&E and ULH&P.
Addresses of the parties:
CG&E
139 East Fourth Street
Cincinnati, Ohio 45202
ULH&P
139 East Fourth Street
Cincinnati, Ohio 45202
Date of expiration: Contract continues from month
to month unless cancelled by either party upon
thirty (30) days written notice.
Compensation to be paid: See Article VI of the
contract (Exhibit H-3) for consideration to be
paid.
H-4 Agreement dated May 23, 1961 between CG&E and ULH&P
regarding ULH&P's underground gas storage cavern.
Addresses of the parties:
CG&E
139 East Fourth Street
Cincinnati, Ohio 45202
ULH&P
139 East Fourth Street
Cincinnati, Ohio 45202
Date of expiration: Contract is automatically
renewed from year to year until terminated by
either party upon written notice given to the other
party at least six months prior to the expiration
of such one-year renewal term.
Compensation to be paid: See Section 2 (Exhibit H-
4) of the contract for consideration to be paid.
H-5 Agreement dated May 20, 1983 between Miami Power
Corporation and CG&E in respect of the transfer and
interchange of electric power and energy.
Addresses of parties:
CG&E
139 East Fourth Street
Cincinnati, Ohio 45202
Miami
139 East Fourth Street
Cincinnati, Ohio 45202
Date of expiration: Contract remains in effect
until terminated by either party upon 60 days
written notice.
Compensation to be paid: See Section 3 of the
contract (Exhibit H-5) for consideration to be
paid.
H-6 Agreement dated July 26, 1991 between Energy and PSI
Recycling, Inc. in respect of the purchase of
recyclable materials by PSI Recycling, Inc. from
Energy.
Addresses of parties:
Energy
1000 East Main Street
Plainfield, Indiana 46168
PSI Recycling, Inc.
2130 Stout Field West Drive
Indianapolis, Indiana 46241
Date of expiration: Contract remains in effect
until terminated by either party upon sixty (60)
days written notice.
Compensation to be paid: See Section 1 of the
contract (Exhibit H-6) for consideration to be
paid.
H-7 Revised Transportation and Reimbursement Agreement
dated July 31, 1986 between Columbia Gas Transmission
Corp., ULH&P and CG&E.
Addresses of parties:
CG&E
139 East Fourth Street
Cincinnati, OH 45202
ULH&P
139 East Fourth Street
Cincinnati, OH 45202
Columbia Gas Transmission Corp.
1700 MacCorkle Ave., S.E.
Charleston, West Virginia 25314
Date of expiration: Contract remains in effect
from year to year until terminated by any party at
the end of such yearly period by six months prior
notice.
Compensation to be paid: See Section 2 of the
contract (Exhibit H-7) for consideration to be
paid.
LITIGATION
19. Describe briefly any existing litigation of the following
descriptions, to which the registrant or any subsidiary company
thereof is a party, or of which the property of the registrant or any
such subsidiary company is the subject, including the names of the
parties and the court in which such litigation is pending:
(1) Proceedings to enforce or to restrain enforcement of any order of
a State commission or other governmental agency;
(2) Proceedings involving any franchise claimed by any such company;
(3) Proceedings between any such company and any holder, in his
capacity as such, of any funded indebtedness or capital stock
issued, or guaranteed by such company, or between any such
company and any officer thereof;
(4) Proceedings in which any such company sues in its capacity as
owner of capital stock or funded indebtedness issued or
guaranteed by any other company;
(5) Each other proceeding in which the matter in controversy,
exclusive of interest and costs, exceeds an amount equal to 2% of
the debit accounts shown on the most recent balance sheet of such
company.
Information regarding litigation involving CINergy and its
subsidiaries is set forth in the following documents, the applicable
portions of which are hereby incorporated by reference: Item 3 of the
CG&E 1993 Form 10-K; Items 3 and 8 of the Annual Report of PSI on Form
10-K for the fiscal year ended December 31, 1993 (File No. 1-9941);
Item 3 of the Energy 1993 Form 10-K; and Part I, Item 1 of the
Quarterly Reports of PSI on Form 10-Q for the quarterly periods ended
March 31, June 30, and September 30, 1994 (File No. 1-9941).
<PAGE>
EXHIBITS
EXHIBIT A. Furnish a corporate chart showing graphically relationships
existing between the registrant and all subsidiary companies thereof as of
the same date as the information furnished in the answer to Item 8. The
chart should show the percentage of each class voting securities of each
subsidiary owned by the registrant and by each subsidiary company.
NOTE: Because the realignment of certain CINergy non-utility subsidiary
companies (contemplated by CINergy's Form U-1 Application-
Declaration in File No. 70-8427 and approved by the Commission's
October 21, 1994 order therein) was incomplete as of October 31,
1994 (the date of the information furnished in Item 8), certain
transitional arrangements that were temporarily in effect as of
October 31, 1994 are not shown. Instead, in the interests of
presenting the Commission with a more current organization chart,
the information set forth in Exhibit A reflects the organization
of the CINergy system as of the filing date hereof. Subsidiary
relationships are shown by indentation.
EXHIBIT B. With respect to the registrant and each subsidiary company
thereof, furnish a copy of the charter, articles of incorporation, trust
agreement, voting trust agreement, or other fundamental document of
organization, and a copy of its by-laws, rules and regulations, or other
instruments corresponding thereto. If such documents do not set forth
fully the rights, priorities and preferences of the holders of each class
of capital stock described in the answer to Item 8(b) and those of the
holders of any warrants, options or other securities described in the
answer to Item 8(d), and of any limitations on such rights, there shall
also be included a copy of each certificate, resolution or other document
establishing or defining such rights and limitations. Each such document
shall be in the amended form effective at the date of filing the
registration statement or shall be accompanied by copies of any amendments
to it then in effect. (Note: By permission of the Staff, in lieu of the
exhibits required hereunder, the disclosure requirements for Exhibit B have
been limited to (i) the date and state of incorporation for the registrant
and each of its subsidiary companies and (ii) a brief description of every
subsidiary company of the registrant including a statement as to whether
each such company is active or inactive. Such information is set forth in
Items 4 and 5 hereof.)
EXHIBIT C.
(a) With respect to each class of funded debt shown in the answers to
Items 8(a) and 8(c), submit a copy of the indenture or other
fundamental document defining the rights of the holders of such
security, and a copy of each contract or other instrument evidencing
the liability of the registrant or a subsidiary company thereof as
endorser or guarantor of such security. Include a copy of each
amendment of such document and of each supplemental agreement,
executed in connection therewith. If there have been any changes of
trustees thereunder, such changes, unless otherwise shown, should be
indicated by notes on the appropriate documents. No such indenture or
other document need be filed in connection with any such issue if the
total amount of securities that are now, or may at any time hereafter,
be issued and outstanding thereunder does not exceed either $1,000,000
or an amount equal to 10% of the total of the debit accounts shown on
the most recent balance sheet of the registrant or subsidiary company
which issued or guaranteed such securities or which is the owner of
property subject to the lien of such securities, whichever of said
sums is the lesser.
See Exhibit C-1 through C-50 hereto.
(b) As to each outstanding and uncompleted contract or agreement entered
into by registrant or any subsidiary company thereof relating to the
acquisition of any securities, utility assets (as defined in Section
2(a)(18) of the Act), or any other interest in any business, submit a
copy of such contract or agreement and submit details of any
supplementary understandings or arrangements that will assist in
securing an understanding of such transactions.
In October 1989, the FERC approved a Global Settlement Agreement that
allowed the purchase from Columbia Gas Transmission Corporation by
CG&E, or its wholly-owned subsidiary or affiliate, of certain gas
facilities. On July 31, 1991, Columbia Gas Transmission Corporation
sought protection under Chapter 11 of the Bankruptcy Code with the
United States Bankruptcy Court for the District of Delaware. KO
Transmission Company has contracted to purchase gas facilities from
Columbia Gas Transmission Corporation. These contracts have been
filed with the FERC, and are awaiting FERC approval and the contracts
must be filed to seek approval of the United States Bankruptcy Court.
Contracts with KO Transmission Company are set forth in Exhibits C-51
and C-52 hereto.
EXHIBIT D. A consolidating statement of income and surplus of the
registrant and its subsidiary companies for its last fiscal year ending
prior to the date of filing this registration statement, together with a
consolidating balance sheet of the registrant and its subsidiary companies
as of the close of such fiscal year. (Note: By permission of the Staff,
Exhibit D will be filed by an amendment to this document on or before May
1, 1995. Such amendment will disclose the consolidating financial
statements of CINergy and its subsidiary companies as of the fiscal year
ended December 31, 1994.)
EXHIBIT E. For each public utility company and natural gas producing and
pipe line property in the holding company system of the registrant, furnish
the following maps (properties of associate companies operating in
contiguous or nearby areas may be shown on the same map, provided property
and service areas of each company are shown distinctively).
(1) Map showing service area in which electric service is furnished,
indicating the names of the companies serving contiguous areas.
See Exhibit E-1 hereto.
(2) Electric system map showing location of electric property
(exclusive of local distribution lines) owned and/or operated,
and information as follows:
(a) Generating plants--kind and capacity;
See Exhibit E-2 hereto.
(b) Transmission lines--voltage, number of circuits, kind of
supports, kind and size of conductors;
See Exhibit E-3 hereto.
(c) Transmission substations--capacity.
Omitted by permission of the Staff.
(d) Distribution substations--capacity.
Omitted by permission of the Staff.
(e) Points of interconnection with all other electric utility
companies and with all electrical enterprises operated by
municipal or governmental agencies, giving names of such
companies and enterprises;
See Exhibit E-4 hereto.
(3) Map showing service area in which gas service is furnished,
indicating the names of companies serving contiguous areas;
See Exhibit E-5 hereto.
(4) Gas system map showing location of gas property (exclusive of low
pressure local distribution lines) owned and/or operated, and
information as follows:
(a) Generating plants--kind and daily capacity;
Omitted by permission of the Staff.
(b) Holders--kind and capacity;
Omitted by permission of the Staff.
(c) Compressor stations--capacity in horsepower;
Omitted by permission of the Staff.
(d) Transmission pipe lines--size, approximate average
transmission pressure and the estimated daily delivery
capacity of the system;
See Exhibit E-6 hereto.
(e) Points of interconnection with all other private and public
gas utilities, pipe lines or producing enterprises; giving
names of such companies and other enterprises;
See Exhibit E-6 hereto.
(f) General location and outline of gas producing and reserve
areas and diagrammatic location of gathering lines.
None.
EXHIBIT F. Furnish an accurate copy of each annual report for the last
fiscal year ending prior to the date of the filing of this registration
statement, which the registrant and each subsidiary company thereof has
previously submitted to its stockholders. For companies for which no
reports are submitted the reason for omission should be indicated; provided
that electronic filers shall submit such reports in paper format only under
cover of Form SE.
The 1994 annual report to shareholders of CINergy has not yet been
prepared. A copy of such annual report will be filed with the Commission
as an amendment to this document on or before May 1, 1995.
EXHIBIT G. Furnish a copy of each annual report which the registrant and
each public utility subsidiary company thereof shall have filed with any
State commission having jurisdiction to regulate public utility companies
for the last fiscal year ending prior to the date of filing this
registration statement. If any such company shall have filed similar
reports with more than one such State commission, the registrant need file
a copy of only one of such reports provided that notation is made of such
fact, giving the names of the different commissions with which such report
was filed, and setting forth any differences between the copy submitted and
the copies filed with such other commissions. In the event any company
submits an annual report to the Federal Power Commission but not to a State
commission, a copy of such report should be furnished. In the case of a
registrant or any public utility subsidiary company for which no report is
appended the reasons for such omission should be indicated such as "No such
reports required or filed;" provided that electronic filers shall submit
such reports in paper format only under cover of Form SE.
The 1994 FERC Form Nos. 1 and 2 of CG&E and ULH&P and Form No. 1 of Energy
have not yet been prepared nor have the 1994 annual reports submitted to
the Indiana Utility Regulatory Commission by West Harrison and
Lawrenceburg, respectively. Copies of each of these reports will be filed
with the Commission as an amendment to this document on or before May 1,
1995.
EXHIBIT H. Typical forms of service, sales or construction contracts
described in answer to Item 18.
See Exhibit H-1 through H-7 hereto.
This registration statement comprises:
(a) A cover page, followed by pages numbered i to iii consecutively,
followed by pages 1 to 72, consecutively.
(b) The following Exhibits: the Exhibits shown on the attached exhibit
index.
<PAGE>
<TABLE>
<CAPTION>
INDEX OF EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
A Corporate chart of CINergy and its subsidiary companies
C-1 Original Indenture (First Mortgage Bonds) between CG&E and The
Bank of New York, as Trustee, dated as of August 1, 1936
(previously filed with the Commission as an exhibit to
Registration Statement No. 2-2374, and is hereby incorporated by
reference)
C-2 Tenth Supplemental Indenture between CG&E and The Bank of New
York dated as of July 1, 1967 (previously filed with the
Commission as an exhibit to Registration Statement No. 2-26549,
and is hereby incorporated by reference)
C-3 Eleventh Supplemental Indenture between CG&E and The Bank of New
York dated as of May 1, 1969 (previously filed with the
Commission as an exhibit to Registration Statement No. 2-32063,
and is hereby incorporated by reference)
C-4 Thirteenth Supplemental Indenture between CG&E and The Bank of
New York dated as of November 1, 1971 (previously filed with the
Commission as an exhibit to Registration Statement No. 2-41974,
and is hereby incorporated by reference)
C-5 Fourteenth Supplemental Indenture between CG&E and The Bank of
New York dated as of November 2, 1972 (previously filed with the
Commission as an exhibit to Registration Statement No. 2-60961,
and is hereby incorporated by reference)
C-6 Fifteenth Supplemental Indenture between CG&E and The Bank of
New York dated as of August 1, 1973 (previously filed with the
Commission as an exhibit to Registration Statement No. 2-60961,
and is hereby incorporated by reference)
C-7 Twenty-fifth Supplemental Indenture between CG&E and The Bank of
New York dated as of December 1, 1985 (previously filed with the
Commission as an exhibit to CG&E's 1985 Form 10-K in File No. 1-
1232, and is hereby incorporated by reference)
C-8 Twenty-ninth Supplemental Indenture between CG&E and The Bank of
New York dated as of June 15, 1989 (previously filed with the
Commission as an exhibit to CG&E's June 30, 1989, Form 10-Q in
File No. 1-1232, and is hereby incorporated by reference)
C-9 Thirtieth Supplemental Indenture between CG&E and The Bank of
New York dated as of May 1, 1990 (previously filed with the
Commission as an exhibit to CG&E's June 30, 1990, Form 10-Q in
File No. 1-1232, and is hereby incorporated by reference)
C-10 Thirty-first Supplemental Indenture between CG&E and The Bank of
New York dated as of December 1, 1990 (previously filed with the
Commission as an exhibit to CG&E's 1990 Form 10-K in File No. 1-
1232, and is hereby incorporated by reference)
C-11 Thirty-second Supplemental Indenture between CG&E and The Bank
of New York dated as of December 15, 1991 (previously filed with
the Commission as an exhibit to Registration Statement No. 33-
45115, and is hereby incorporated by reference)
C-12 Thirty-third Supplemental Indenture between CG&E and The Bank of
New York dated as of September 1, 1992 (previously filed with
the Commission as an exhibit to Registration Statement No. 33-
53578, and is hereby incorporated by reference)
C-13 Thirty-fourth Supplemental Indenture between CG&E and The Bank
of New York dated as of October 1, 1993 (previously filed with
the Commission as an exhibit to CG&E's September 30, 1993, Form
10-Q in File No. 1-1232, and is hereby incorporated by
reference)
C-14 Thirty-fifth Supplemental Indenture between CG&E and The Bank of
New York dated as of January 1, 1994 (previously filed with the
Commission as an exhibit to Registration Statement No. 33-52335,
and is hereby incorporated by reference)
C-15 Thirty-sixth Supplemental Indenture between CG&E and The Bank of
New York dated as of February 15, 1994 (previously filed with
the Commission as an exhibit to Registration Statement No. 33-
52335, and is hereby incorporated by reference)
C-16 Loan Agreement between CG&E and County of Boone, Kentucky dated
as of February 1, 1985 (previously filed with the Commission as
an exhibit to CG&E's 1984 Form 10-K in File No. 1-1232, and is
hereby incorporated by reference)
C-17 Loan Agreement between CG&E and State of Ohio Air Quality
Development Authority dated as of December 1, 1985 (previously
filed with the Commission as an exhibit 4-A-28 to CG&E's 1985
Form 10-K in File No. 1-1232, and is hereby incorporated by
reference)
C-18 Loan Agreement between CG&E and State of Ohio Air Quality
Development Authority dated as of December 1, 1985 (previously
filed with the Commission as an exhibit 4-A-29 to CG&E's 1985
Form 10-K in File No. 1-1232, and is hereby incorporated by
reference)
C-19 Loan Agreement between CG&E and State of Ohio Air Quality
Development Authority dated as of December 1, 1985 (previously
filed with the Commission as an exhibit 4-A-30 to CG&E's 1985
Form 10-K in File No. 1-1232, and is hereby incorporated by
reference)
C-20 Repayment Agreement between CG&E and The Dayton Power and Light
Company dated as of December 23, 1992 (previously filed with the
Commission as an exhibit to CG&E's 1992 Form 10-K in File No. 1-
1232, and is hereby incorporated by reference)
C-21 Loan Agreement between CG&E and State of Ohio Water Development
Authority dated as of January 1, 1994 (previously filed with the
Commission as an exhibit to CG&E's 1993 Form 10-K in File No. 1-
1232, and is hereby incorporated by reference)
C-22 Loan Agreement between CG&E and State of Ohio Air Quality
Development Authority dated as of January 1, 1994 (previously
filed with the Commission as an exhibit to CG&E's 1993 Form 10-K
in File No. 1-1232, and is hereby incorporated by reference)
C-23 Loan Agreement between CG&E and County of Boone, Kentucky dated
as of January 1, 1994 (previously filed with the Commission as
an exhibit to CG&E's 1993 Form 10-K in File No. 1-1232, and is
hereby incorporated by reference)
C-24 Original Indenture (First Mortgage Bonds) between ULH&P and The
Bank of New York dated as of February 1, 1949 (previously filed
with the Commission as an exhibit to Registration Statement No.
2-7793, and is hereby incorporated by reference)
C-25 Fifth Supplemental Indenture between ULH&P and The Bank of New
York dated as of January 1, 1967 (previously filed with the
Commission as an exhibit to CG&E's Registration Statement No. 2-
60961, and is hereby incorporated by reference)
C-26 Seventh Supplemental Indenture between ULH&P and The Bank of New
York dated as of October 1, 1973 (previously filed with the
Commission as an exhibit to CG&E's Registration Statement No. 2-
60961, and is hereby incorporated by reference)
C-27 Eighth Supplemental Indenture between ULH&P and The Bank of New
York dated as of December 1, 1978 (previously filed with the
Commission as an exhibit to CG&E's Registration Statement No. 2-
63591, and is hereby incorporated by reference)
C-28 Tenth Supplemental Indenture between ULH&P and The Bank of New
York dated as of July 1, 1989 (previously filed with the
Commission as an exhibit to CG&E's June 30, 1989, Form 10-Q in
File No. 1-1232, and is hereby incorporated by reference)
C-29 Eleventh Supplemental Indenture between ULH&P and The Bank of
New York dated as of June 1, 1990 (previously filed with the
Commission as an exhibit to CG&E's June 30, 1990, Form 10-Q in
File No. 1-1232, and is hereby incorporated by reference)
C-30 Twelfth Supplemental Indenture between ULH&P and The Bank of New
York dated as of November 15, 1990 (previously filed with the
Commission as an exhibit to ULH&P's 1990 Form 10-K in File No.
2-7793, and is hereby incorporated by reference)
C-31 Thirteenth Supplemental Indenture between ULH&P and The Bank of
New York dated as of August 1, 1992 (previously filed with the
Commission as an exhibit to ULH&P's 1992 Form 10-K in File No.
2-7793, and is hereby incorporated by reference)
C-32 Original Indenture (First Mortgage Bonds) dated September 30,
1939, between Energy and The First National Bank of Chicago, as
Trustee (previously filed with the Commission as Exhibit A -
Part 3 in File No. 70-258, and is hereby incorporated by
reference), and LaSalle National Bank as Successor Trustee
(supplemental indenture dated March 30, 1984)
C-33 Nineteenth Supplemental Indenture between Energy and The First
National Bank of Chicago dated January 1, 1969 (previously filed
with the Commission as an exhibit to File No. 2-42545, and is
hereby incorporated by reference)
C-34 Twenty-third Supplemental Indenture between Energy and The First
National Bank of Chicago dated January 1, 1977 (previously filed
with the Commission as an exhibit to File No. 2-57828, and is
hereby incorporated by reference)
C-35 Twenty-fifth Supplemental Indenture between Energy and The First
National Bank of Chicago dated September 1, 1978 (previously
filed with the Commission as an exhibit to File No. 2-62543, and
is hereby incorporated by reference)
C-36 Twenty-seventh Supplemental Indenture between Energy and The
First National Bank of Chicago dated March 1, 1979 (previously
filed with the Commission as an exhibit to File No. 2-63753, and
is hereby incorporated by reference)
C-37 Thirty-fifth Supplemental Indenture between Energy and LaSalle
National Bank dated March 30, 1984 (previously filed with the
Commission as an exhibit to Energy's 1984 Form 10-K in File No.
1-3543, and is hereby incorporated by reference)
C-38 Thirty-ninth Supplemental Indenture between Energy and LaSalle
National Bank dated March 15, 1987 (previously filed with the
Commission as an exhibit to Energy's 1987 Form 10-K in File No.
1-3543, and is hereby incorporated by reference)
C-39 Forty-first Supplemental Indenture between Energy and LaSalle
National Bank dated June 15, 1988 (previously filed with the
Commission as an exhibit to Energy's 1988 Form 10-K in File No.
1-3543, and is hereby incorporated by reference)
C-40 Forty-second Supplemental Indenture between Energy and LaSalle
National Bank dated August 1, 1988 (previously filed with the
Commission as an exhibit to Energy's 1988 Form 10-K in File No.
1-3543, and is hereby incorporated by reference)
C-41 Forty-fourth Supplemental Indenture between Energy and LaSalle
National Bank dated March 15, 1990 (previously filed with the
Commission as an exhibit to Energy's 1990 Form 10-K in File No.
1-3543, and is hereby incorporated by reference)
C-42 Forty-fifth Supplemental Indenture between Energy and LaSalle
National Bank dated March 15, 1990 (previously filed with the
Commission as an exhibit to Energy's 1990 Form 10-K in File No.
1-3543, and is hereby incorporated by reference)
C-43 Forty-sixth Supplemental Indenture between Energy and LaSalle
National Bank dated June 1, 1990 (previously filed with the
Commission as an exhibit to Energy's 1991 Form 10-K in File No.
1-3543, and is hereby incorporated by reference)
C-44 Forty-seventh Supplemental Indenture between Energy and LaSalle
National Bank dated July 15, 1991 (previously filed with the
Commission as an exhibit to Energy's 1991 Form 10-K in File No.
1-3543, and is hereby incorporated by reference)
C-45 Forty-eighth Supplemental Indenture between Energy and LaSalle
National Bank dated July 15, 1992 (previously filed with the
Commission as an exhibit to Energy's 1992 Form 10-K in File No.
1-3543, and is hereby incorporated by reference)
C-46 Forty-ninth Supplemental Indenture between Energy and LaSalle
National Bank dated February 15, 1993 (previously filed with the
Commission as an exhibit to Energy's 1992 Form 10-K in File No.
1-3543, and is hereby incorporated by reference)
C-47 Fiftieth Supplemental Indenture between Energy and LaSalle
National Bank dated February 15, 1993 (previously filed with the
Commission as an exhibit to Energy's 1992 Form 10-K in File No.
1-3543, and is hereby incorporated by reference)
C-48 Fifty-first Supplemental Indenture between Energy and LaSalle
National Bank dated February 1, 1994 (previously filed with the
Commission as an exhibit to Energy's 1993 Form 10-K in File No.
1-3543, and is hereby incorporated by reference)
C-49 Indenture (Secured Medium-term Notes, Series A) dated July 15,
1991, between Energy and The First National Bank of Chicago, as
Trustee (previously filed with the Commission as an exhibit to
Energy's Form 10-K/A in File No. 1-3543, Amendment No. 2, dated
July 15, 1993, and is hereby incorporated by reference)
C-50 Indenture (Secured Medium-term Notes, Series B) dated July 15,
1992, between Energy and The First National Bank of Chicago, as
Trustee (previously filed with the Commission as an exhibit to
Energy's Form 10-K/A in File No. 1-3543, Amendment No. 2, dated
July 15, 1993, and is hereby incorporated by reference)
C-51 Agreement for Purchase and Sale of Assets, dated as of March 31,
1994 by and between Columbia Gas Transmission Corporation as
Seller and KO Transmission Company as Buyer
C-52 Agreement for Purchase and Sale of Line AM-4, dated as of March
31, 1994 by and between Columbia Gas Transmission Corporation as
Seller and KO Transmission Company as Buyer
D To be filed by an amendment
E-1 Maps of electric service areas (previously filed with the
Commission as Exhibits E-1, E-2 through E-5, and E-8 through
E-10 to the Application-Declaration of CINergy on Form U-1, as
amended, in File No. 70-8427, and incorporated herein by
reference)
E-2 Maps of electric system showing generating plants (previously
filed with the Commission as Exhibits E-1, E-2, E-9 and E-10 to
the Application-Declaration of CINergy on Form U-1, as amended,
in File No. 70-8427, and incorporated herein by reference)
E-3 Maps of electric system showing transmission lines (previously
filed with the Commission as Exhibits E-2, E-3, E-6, E-9 and
E-10 to the Application-Declaration of CINergy on Form U-1, as
amended, in File No. 70-8427, and incorporated herein by
reference)
E-4 Maps of electric system showing points of interconnection with
the other utility companies and electrical enterprises
(previously filed with the Commission as Exhibits E-2, E-3, E-6,
E-9 and E-10 to the Application-Declaration of CINergy on Form
U-1, as amended, in File No. 70-8427, and incorporated herein by
reference)
E-5 Map showing service area in which gas services is furnished
(previously filed with the Commission as Exhibits E-1, E-4, E-5
and E-7 to the Application-Declaration of CINergy on Form U-1,
as amended, in File No. 70-8427, and incorporated herein by
reference)
E-6 Map of gas system showing transmission pipelines and points of
interconnection (filed under cover of Form SE)
F To be filed by amendment
G To be filed by amendment
H-1 Service agreement dated March 2, 1994 by and among CG&E, Energy,
ULH&P, West Harrison, Lawrenceburg, Miami and CINergy Services,
Inc. (previously filed with the Commission as Exhibit B-6 to the
Application-Declaration of CINergy on Form U-1, as amended, in
File No. 70-8427, and hereby incorporated by reference)
H-2 Form of service agreement by and among CINergy, non-utility
subsidiaries of CINergy, and CINergy Services, Inc. (previously
filed with the Commission as Exhibit B-7 to the Application-
Declaration of CINergy on Form U-1, as amended, in File No. 70-
8427, and hereby incorporated by reference)
H-3 Gas Transportation Agreement dated March 9, 1987 between CG&E
and ULH&P
H-4 Agreement dated May 23, 1961 between CG&E and ULH&P regarding
ULH&P's underground gas storage cavern
H-5 Agreement dated May 20, 1983 between Miami and CG&E in respect
of the transfer and interchange of electric power and energy
H-6 Agreement dated July 26, 1991 between Energy and PSI Recycling,
Inc. ("PSI Recycling") in respect of the purchase of recyclable
materials by PSI Recycling from Energy
H-7 Revised Transportation and Reimbursement Agreement dated July
31, 1986 between Columbia Gas Transmission Corp., ULH&P and CG&E
</TABLE>
<PAGE>
FOOTNOTES
/1/ North Rhine I Limited Partnership, North Rhine II Limited
Partnership, and Franciscan Homes II Limited Partnership.
/2/ Blue Chip Capital Fund, and Blue Chip Opportunity Fund.
/3/ Includes provision for rate refunds applicable to both retail
and wholesale customers.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Public Utility Holding
Company Act of 1935, the registrant has caused this registration statement
to be duly signed on its behalf in the City of Cincinnati and State of Ohio
on the 23rd day of January, 1995.
CINergy Corp.
By /s/ Jackson H. Randolph
-----------------------
Chairman of the Board and
Chief Executive Officer
Attest:
/s/ James E. Rogers
- -----------------------------
Vice Chairman of the Board,
President and Chief Operating Officer
VERIFICATION
State of Ohio )
) ss.
County of Hamilton )
The undersigned, being duly sworn, deposes
and says that he has duly executed the attached registration statement
dated January 23, 1995, for and on behalf of CINergy Corp.; that he is the
Chairman of the Board and Chief Executive Officer of such company; and that
all action by stockholders, directors, and other bodies necessary to
authorize deponent to execute and file such instrument has been taken.
Deponent further says that he is familiar with such instrument and the
contents thereof, and that the facts therein set forth are true to the best
of his knowledge, information and belief.
/s/ Jackson H. Randolph
--------------------------
Subscribed and sworn to before me
this 23rd day of January, 1995.
/s/ Jerome A. Vennemann
- ----------------------------
My commission expires: N/A
EXHIBIT A
CORPORATE CHART
CINergy Corp.
The Cincinnati Gas & Electric Co.
The Union Light, Heat and Power Co.
Miami Power Corp.
The West Harrison Gas and Electric Co.
Lawrenceburg Gas Co.
Tri-State Improvement Co.
KO Transmission Co.
PSI Energy, Inc.
PSI Energy Argentina, Inc.
South Construction Company, Inc.
CINergy Services, Inc.
CINergy Investments, Inc.
Enertech Associates International, Inc.
Beheer- En Belegginsmaatschappij
Bruwabel B.V.
Power International s.r.o.
Power Development s.r.o.
CG&E Resource Marketing, Inc.
CGE ECK, Inc.
PSI Recycling, Inc.
PSI Argentina, Inc.
Costanera Power Corp.
E P EDEGEL, Inc.
Power Equipment Supply Co.
Wholesale Power Services, Inc.
PSI T&D International, Inc.
PSI Yacyreta, Inc.
PSI Power Resource Development, Inc.
PSI Power Resource Operations, Inc.
PSI Environmental Corp.
PSI International, Inc.
PSI Sunnyside, Inc.
EXHIBIT C-51
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
Dated as of March 31, 1994
By and Between
COLUMBIA GAS TRANSMISSION CORPORATION
as SELLER
and
KO TRANSMISSION COMPANY
as BUYER
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I - DEFINITIONS 2
1.1 Assets 2
1.2 Buyer's Property Interest 2
1.3 Closing 2
1.4 Closing Date 2
1.5 Columbia Encumbrances 2
1.6 Force Majeure 3
1.7 Kentucky System 4
1.8 Law 4
1.9 Net Depreciated Book Cost 4
1.10 Operating Agreement 4
1.11 Permitted Encumbrances 4
1.12 Property Rights 4
1.13 Purchase Price 5
1.14 Seller's Conveyances 5
1.15 Disposal Site 5
1.16 Hazardous Substance 5
ARTICLE II - SALE AND PURCHASE 5
ARTICLE III - PURCHASE PRICE 6
ARTICLE IV - SELLER'S REPRESENTATIONS 6
4.1 Corporate Existence 7
4.2 Corporate Authority 7
4.3 Due Authorization 7
4.4 Binding Obligation 8
4.5 Marketable Title 8
4.6 Payments Current 8
4.7 Instruments in Effect 8
4.8 No Violation 9
4.9 Good Order and Repair 9
4.10 Obligations Current 9
4.11 No Litigation 10
4.12 Full Disclosure and Adequacy of Assets 10
4.13 Insurance Policies 10
4.14 Recorded Title Documents 11
4.15 Warranty of Capacity 11
4.16 Representations True and Correct 11
ARTICLE V - BUYER'S REPRESENTATIONS 12
5.1 Corporate Existence 12
5.2 Corporate Authority 12
5.3 Due Authorization 13
5.4 Binding Obligation 13
-i-
<PAGE>
Page
----
5.5 No Bankruptcy 13
5.6 No Litigation 13
5.7 Funds Availability 13
5.8 Full Disclosure 14
5.9 Representations True and Correct 14
ARTICLE VI - ACCESS TO INFORMATION AND TESTING 14
6.1 Title Information 14
6.2 Access to Confidential Information and Inspection 14
6.3 Inspections and Testing 15
ARTICLE VII - COVENANTS OF SELLER 15
7.1 Covenants of Seller Pending Closing 15
7.2 Covenants of Buyer Pending Closing 17
ARTICLE VIII - SELLER'S CLOSING CONDITIONS 18
8.1 Truth of Representations and Warranties of Buyer 18
8.2 Certificate 18
8.3 Consents and Approvals 18
8.4 Entitlement to Acquire 19
8.5 Execution of Operating Agreement and Affidavit 19
8.6 Evidence of Insurability 19
ARTICLE IX - BUYER'S CLOSING CONDITIONS 20
9.1 Truth of Representations and Warranties of Seller 20
9.2 Certificate 20
9.3 Consents and Approvals 20
9.4 Entitlement to Acquire 21
9.5 Execution of Operating Agreement 21
9.6 Releases 21
ARTICLE X - CLOSING 22
10.1 Closing 22
10.2 Delivery by Seller 22
10.3 Delivery by Buyer 22
ARTICLE XI - EFFECT OF CLOSING 23
11.1 Buyer's Use of Assets 23
11.2 Imbalances 23
11.3 Termination of Existing Contracts 24
ARTICLE XII - SURVIVAL OF OBLIGATIONS AND INDEMNITY 24
12.1 Survival 24
12.2 Indemnity by Seller 25
12.3 Indemnity by Buyer 26
ARTICLE XIII - CASUALTY LOSS AND CONDEMNATION 27
13.1 Right to Terminate 27
-ii-
<PAGE>
Page
----
ARTICLE XIV - DEFAULT AND REMEDIES 28
14.1 Termination 28
14.2 Bankruptcy Proceeding 28
14.3 Remedies 29
ARTICLE XV - TRANSFER OF INTEREST 29
15.1 Right of First Opportunity 29
15.2 Permitted Transfer 31
ARTICLE XVI - ALTERNATE DISPUTE RESOLUTION (ARBITRATION) 32
ARTICLE XVII - MISCELLANEOUS 33
17.1 Further Assurances and Records 33
17.2 Notices 33
17.3 Incidental Expenses 34
17.4 Entire Agreement and Amendment 34
17.5 Governing Law 35
17.6 Exhibits 35
17.7 Time of the Essence 35
17.8 Counterparts 35
17.9 Assignment 35
17.10 Waiver 36
17.11 Binding Effect 36
17.12 Section Headings 36
EXHIBITS
A -- Map of Kentucky System
B -- Kentucky System Asset Description
C -- Operating Agreement
D -- EPA Affidavit of Buyer
-iii-
<PAGE>
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
THIS AGREEMENT, dated as of the 31st day of March, 1994, between
COLUMBIA GAS TRANSMISSION CORPORATION, a Delaware corporation, whose
address is 1700 MacCorkle Avenue, S.E., Charleston, West Virginia 25314
(hereinafter referred to as "Seller"), and KO TRANSMISSION COMPANY, a
Kentucky corporation, whose address is 139 E. Fourth Street, Cincinnati,
Ohio 45202 (hereinafter referred to as "Buyer").
W I T N E S S E T H:
WHEREAS, pursuant to the Stipulation and Agreement dated June 29, 1989
submitted to the Federal Energy Regulatory Commission and the letter
agreements executed July 19, 1989, it was agreed that Seller would sell to
Buyer an undivided interest of 32.67 percent in the facilities of the
Kentucky System (as defined below) existing as of the date of the Closing
Date (as defined below);
WHEREAS, Seller owns and operates those certain natural gas facilities
known as the Kentucky System, consisting of certain pipeline, looping and
appurtenances thereto extending approximately ninety (90) miles from an
interconnection with facilities owned by Columbia Gulf Transmission Company
(Columbia Gulf) in Menifee County, Kentucky (South Means Interconnect), to
various points of interconnection with Buyer in Kentucky; and
WHEREAS, Seller is obligated to sell and Buyer is obligated to acquire
an undivided interest in such natural gas facilities on the terms and
conditions hereinafter provided.
<PAGE>
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
The following terms, as used herein, have the following meanings:
1.1 "Assets" shall mean all of the following described properties,
rights, titles, interests and assets subject to the Permitted Encumbrances
and Columbia Encumbrances:
(a) the Kentucky System; and
(b) the Property Rights.
1.2 "Buyer's Property Interest" shall mean an undivided interest of
32.67 percent of the Assets, free and clear of all liens and encumbrances
except the Permitted Encumbrances.
1.3 "Closing" shall be as defined in Section 10.1.
1.4 "Closing Date" shall be as defined in Section 10.1.
1.5 "Columbia Encumbrances" shall mean those security interests,
mortgages, liens or encumbrances contained or represented by: (a) that
certain Indenture of Mortgage and Deed of Trust, dated August 30, 1985,
from Columbia Gas Transmission Corporation to Wilmington Trust Company,
securing bonds issuable in an aggregate principal amount not to exceed
$1,200,000,000 at any time, recorded in various county recording offices in
Kentucky in which Seller holds property, with related financing statements
filed in the various county offices and the Office of the Secretary
-2-
<PAGE>
of State of Kentucky; and (b) any local and state liens placed on the
Assets as a result of non-payment of Seller's pre-petition ad valorem taxes
in the counties and states where the Assets are located, which are the
subject of Seller's current bankruptcy proceedings before the United States
Bankruptcy Court for the District of Delaware.
1.6 "Force Majeure" shall mean any act, omission or circumstance
occasioned by or in consequence of any act of God, strike, lockout, act of
the public enemy, war, blockade, insurrection, riot, epidemic, landslide,
lightning, earthquake, fire, storm, flood, washout, arrest or restraint of
rulers and peoples, civil disturbance, explosion, breakage or accident to
machinery or lines of pipe, line or well freezeup, partial or entire
electronic, mechanical or physical failure that affects the ability to
transport gas, or the binding order of any court or governmental authority
which has been resisted in good faith by all reasonable legal means and any
other causes, whether of the kind herein enumerated, or otherwise, and
whether caused or occasioned by or happening on account of the act or
omission of one of the parties to this Agreement or some person or concern
not a party hereto, not within the control of the party claiming force
majeure and which, by the exercise of due diligence, such claiming party is
unable to prevent or overcome. A failure to settle or prevent any strike or
other controversy with employees or with anyone purporting or seeking to
represent employees shall not be considered to be a matter within the
control of the party claiming
-3-
<PAGE>
Force Majeure. Force Majeure may not be invoked to suspend, cancel or
otherwise modify Buyer's payment obligations under this Agreement.
1.7 "Kentucky System" shall mean the gas pipelines located in Bath,
Bracken, Campbell, Menifee, Montgomery, Nicholas, Pendleton, and Robertson
Counties, Kentucky as depicted on the map attached as Exhibit A, and being
more particularly described in Exhibit B attached hereto.
1.8 "Law" shall mean any applicable statute, regulation, ordinance,
judgment, order or decree of a court of competent jurisdiction.
1.9 "Net Depreciated Book Cost" shall mean the amount, as determined
by Seller, equal to the original cost of the Kentucky System and Property
Rights, less accumulated depreciation as of the Closing Date determined
according to the FERC Uniform System of Accounts. For purposes of Article
XV, "Net Depreciated Book Cost" shall be as of the date of sale
contemplated therein.
1.10 "Operating Agreement" shall mean that agreement to be entered
into by Seller and Buyer at Closing in a form substantially similar to that
attached hereto as Exhibit C.
1.11 "Permitted Encumbrances" shall mean: (a) the terms and conditions
of all documents or instruments embodying or memorializing the Property
Rights; and (b) any inchoate liens for taxes and assessments not yet due
and payable.
1.12 "Property Rights" shall mean any rights-of-way, easements, fee
interests, leasehold interests. estates, property
-4-
<PAGE>
rights, servitudes, permits, licenses, franchises, certificates or other
privileges establishing the right to own, operate, maintain, repair and
remove the Kentucky System created, granted, reserved, evidenced by or
otherwise established by any documents or instruments embodying or
memorializing such rights.
1.13 "Purchase Price" shall mean an amount equal to the result of the
Net Depreciated Book Cost, multiplied by 0.3267.
1.14 "Seller's Conveyances" shall mean the forms of deeds,
assignments, bills of sale and other conveyances conveying Buyer's Property
Interest.
1.15 "Disposal Site" shall mean any "facility" as such term is defined
in the Comprehensive Environmental Response, Compensation, and Liability
Act, 42 U.S.C. Sec. 9601, et seq., as amended ("CERCLA").
1.16 "Hazardous Substance" shall mean any "hazardous waste" or
"hazardous substance" as defined under CERCLA or the Resource Conservation
and Recovery Act, 42 U.S. 9601, et seq., as amended ("RCRA") and any other
material or substance regulated under any environmental Law.
ARTICLE II
SALE AND PURCHASE
Subject to the terms and conditions of this Agreement, Seller agrees
to sell and convey to Buyer and Buyer agrees to purchase Buyer's Property
Interest.
-5-
<PAGE>
ARTICLE III
PURCHASE PRICE AND TAXES
The total consideration for the sale and conveyance by the Seller of
Buyer's Property Interest to Buyer is the payment by Buyer to Seller of
the Purchase Price payable in immediately available federal funds. At least
five business days prior to Closing, Seller shall provide Buyer with
written notice of the Net Depreciated Book Cost as of the Closing Date
which notice shall also set forth the manner by which such amount was
determined in sufficient accounting detail that such amount and computation
can be confirmed by Buyer. Prior to or at Closing, Buyer shall provide
Seller 38,104 Dth of gas to compensate Seller for line pack. As of the
Closing Date, the Net Depreciated Book Cost was equal to $____________, and
the Purchase Price was $____________________. Any taxes on real or
personal property constituting the Assets for the year during which the
Closing occurs shall be prorated between Seller and Buyer, on a calendar
year basis, based on their ownership interests in the Assets as of the
Closing, and Buyer shall pay Seller accordingly for its allocable share of
such taxes ("Buyer's Allocable Taxes").
ARTICLE IV
SELLER'S REPRESENTATIONS
Seller represents and warrants to Buyer as of the date hereof that
with respect to the period prior to the Closing Date and as of the Closing
Date, as follows:
-6-
<PAGE>
4.1 Corporate Existence. Seller is a corporation duly organized,
validly existing and in good standing under the Laws of the State of
Delaware, and is duly qualified to carry on its business in the State of
Kentucky.
4.2 Corporate Authority. Seller has all requisite corporate power and
authority to carry on its business as presently conducted, to enter into
this Agreement, and to perform its obligations hereunder. The consummation
of the transactions contemplated by this Agreement and performance of the
terms and conditions contemplated thereby by Seller will not: (a) violate,
or be in conflict with (i) any provision of its charter, by-Laws or
governing documents, or any agreement or instrument to which it is a party
or by which it is bound, or (ii) any Law applicable to Seller or the
Assets; or (b) require the consent, authorization or approval of any third
party, except for (i) the approval of the United States Bankruptcy Court
for the District of Delaware with respect to consummation of the
transaction contemplated by this Agreement and the related release of the
Columbia Encumbrances encumbering Buyer's Property Interest, and (ii) the
approval of the Federal Energy Regulatory Commission.
4.3 Due Authorization. The execution, delivery and performance of
this Agreement and the transactions contemplated hereunder, have been duly
and validly authorized by all requisite corporate action on the part of
Seller, subject to the conditions set forth in section 4.2.
-7-
<PAGE>
4.4 Binding Obligation. This Agreement constitutes as of the date
hereof, and all documents and instruments required hereunder to be executed
and delivered by Seller at Closing will constitute, on the Closing Date,
valid, legal and binding obligations of Seller enforceable against Seller
in accordance with their respective terms, subject to applicable bankruptcy
and other similar laws of general application with respect to creditors.
4.5 Marketable Title. Seller has good and marketable title to and is
possessed of the Assets, free and clear of all mortgages, liens, pledges,
charges, security interests, preferential purchase rights, required
consents or other burdens or encumbrances, or adverse claims, except for
the Permitted Encumbrances and Columbia Encumbrances.
4.6 Payments Current. All rentals, payments and obligations due and
payable or performable on or prior to the Closing Date under or on account
of the Assets have been or will be duly paid, performed or provided for
prior to the Closing Date, except for pre-petition obligations which are
the subject of Seller's current bankruptcy proceedings before the United
States Bankruptcy Court for the District of Delaware.
4.7 Instruments In Effect. To the best of Seller's knowledge, all
documents or instruments embodying or memorializing the Property Rights are
presently valid, subsisting and in full force and effect, no default now
exists thereunder, and Seller has not received or given any notice of
default or claimed default thereunder, and Seller has no knowledge of any
event or
-8-
<PAGE>
circumstance which with notice or passage of time or both could constitute
a default thereunder. The Assets are currently being operated and
maintained in compliance with all terms and provisions of the instruments
applicable thereto.
4.8 No Violation. To the best of Seller's knowledge, Seller, the
Assets and Seller's ownership, construction, maintenance, and operation or
other handling of the Assets are not in violation of any Law applicable
thereto. To the best of Seller's knowledge, Seller has made, filed,
obtained and/or paid all filings, reports, permits, licenses, certificates.
approvals and fees required under applicable Law with respect to the Assets
and Seller's ownership, construction, maintenance and operation of the
Assets, and Seller
has no knowledge of nor has it received any notice of violation or claimed
violation of any such Law.
4.9 Good Order and Repair. To the best of Seller's knowledge, the
Assets are in good repair and working order, free from known material
defects, normal wear and tear excepted, and no known material injury or
damage to any of the Assets has occurred prior to the date hereof, which
has not been fully repaired, rebuilt or replaced. To the best of Seller's
knowledge, there has been no actual or threatened taking (whether
permanent, temporary, whole or partial) of any part of the Assets by reason
of condemnation or the threat of condemnation.
4.10 Obligations Current. To the best of Seller's knowledge, all
taxes, as well as all assessments and other governmental charges,
penalties, interest and fines, which have become due and
-9-
<PAGE>
payable on or with respect to the Assets, or Seller's ownership or
operation thereof, prior to the Closing Date, or which have been collected
by Seller in connection with the Assets on behalf of some governmental
entity, have been properly paid prior to becoming delinquent, and all
returns and reports with respect to such matters have been duly and timely
filed: except for any pre- petition obligations, to the extent they exist,
which are the subject of Seller's current bankruptcy proceedings before the
United States Bankruptcy Court for the District of Delaware.
4.11 No Litigation. To the best of Seller's knowledge, there are no
demands, suits, actions, proceedings or investigations pending or
threatened before any court or governmental agency which might result in a
material impairment or loss of Seller's title to any part of the Assets or
the value thereof or which might materially hinder or impede the
consummation of this Agreement, or the operation of any part of the Assets;
except to the extent such matters may be affected by Seller's current
bankruptcy proceedings referred to in Section 4.2. Seller shall promptly
notify Buyer of any such matters arising or threatened prior to Closing.
4.12 Full Disclosure and Adequacy of Assets. To the best of Seller's
knowledge, all information and disclosures set forth in this Agreement or
in any exhibits attached hereto or furnished by Seller to Buyer in
connection herewith, are accurate and complete in all material respects.
4.13 Insurance Policies. Policies of insurance are held by Seller as
an insured with respect to the Kentucky System or
-10-
<PAGE>
Seller's business relating to the Kentucky System as required under the
terms of the Operating Agreement. No notice has been received from any
insurance company that has issued a policy insuring Seller with respect to
any portion of the Kentucky System (or Seller's business relating thereto),
or any board of fire underwriters (or other body exercising similar
functions) claiming any defects or deficiencies, requiring the performance
of any material repairs, replacements, alterations or other work or
requiring any changes in Seller's operations with respect to the Kentucky
System.
4.14 Recorded Title Documents. The entire and continuous lengths of
the Kentucky System are covered: (a) by recorded deeds vesting fee
ownership in Seller of the underlying land; or (b) by recorded
rights-of-way, easements, leases, permits, licenses or other instruments
which purport to be from the owners of the land covered thereby and purport
to grant to Seller and Seller's successors and assigns (or to Seller's
predecessor in title and its successors and assigns) the right to
construct, operate and maintain the Kentucky System in, over, under and
across such land.
4.15 Warranty of Capacity. The total capacity of the Kentucky System
is 676,500 Dth per day under "Current Operating Conditions", as that term
is defined in the Operating Agreement.
4.16 Representations True and Correct. No representation, warranty or
other statement of the Seller contained in this Agreement, or in any
certificate, instrument or other agreement delivered by Seller to Buyer
pursuant hereto, contains any untrue statement of a material fact or omits
to state any material fact
-11-
<PAGE>
necessary in order to make the statements contained herein or therein not
misleading in light of the circumstances under which they were made.
ARTICLE V
BUYER'S REPRESENTATIONS
Buyer represents and warrants to Seller as of the date hereof that
with respect to the period prior to the Closing Date and as of the Closing
Date, as follows:
5.1 Corporate Existence. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of Kentucky.
5.2 Corporate Authority. Buyer has all requisite corporate power and
authority to carry on its business as presently conducted, to enter into
this Agreement and other documents or agreements contemplated hereby, to
purchase the Buyer's Property Interest on the terms described in this
Agreement and to perform its other obligations under this Agreement and
other documents or agreements contemplated hereby. The consummation of
transactions contemplated by this Agreement and performance of the terms
and conditions contemplated thereby by Buyer will not: (a) violate, or be
in conflict with (i) any provision of Buyer's charter, by-laws or governing
documents, or any agreement or instrument to which Buyer is a party or by
which it is bound, or (ii) any law applicable to Buyer or the Assets; or
(b) require the consent, authorization or approval of any third party,
except the approval of the Federal Energy Regulatory Commission.
-12-
<PAGE>
5.3 Due Authorization. The execution, delivery and performance of
this Agreement and the transactions contemplated hereby have been duly and
validly authorized by all requisite corporate action on the part of Buyer.
5.4 Binding Obligation. This Agreement constitutes, and all
documents and instruments required hereunder to be executed and delivered
by Buyer at Closing will constitute on the Closing Date, legal, valid and
binding obligations of Buyer enforceable against Buyer in accordance with
their respective terms, subject to bankruptcy and other similar laws of
general application with respect to creditors.
5.5 No Bankruptcy. There are no bankruptcy, reorganization or
insolvency proceedings pending, being contemplated by or to the knowledge
of Buyer threatened against Buyer.
5.6 No Litigation. To the best of Buyer's knowledge, there are no
demands, suits, actions, proceedings or investigations pending or
threatened before any court or governmental agency against Buyer or to
which Buyer is a party which might materially hinder or impede the
consummation of this Agreement or the operation of any of the Assets,
except to the extent such matters may be affected by Seller's current
bankruptcy proceedings referred to in Section 4.2. Buyer shall promptly
notify Seller of any such matters arising or threatened prior to Closing.
5.7 Funds Availability. Buyer has and will have at Closing
sufficient and immediately available funds in an amount equal to the
Purchase Price for delivery to Seller at Closing.
-13-
<PAGE>
5.8 Full Disclosure. To the best of Buyer's knowledge, all
information and disclosures, including without limitation any documents
furnished by Buyer to Seller in connection herewith, are accurate and
complete in all material respects.
5.9 Representations True and Correct. No representation, warranty or
other statement of the Buyer contained in this agreement, or in any
document or other agreement delivered by Buyer to Seller pursuant hereto,
contains any untrue statement of a material fact or omits to state any
material fact necessary in order to make the statements contained herein
or therein not misleading in light of the circumstances under which they
were made.
ARTICLE VI
ACCESS TO INFORMATION AND TESTING
6.1 Title Information. Promptly after the execution of this
Agreement and until Closing, Seller shall permit Buyer and its
representatives at reasonable times to examine and copy, at Buyer's
expense, all abstracts of title, title opinions, title files, ownership
maps, right-of-way maps, assignments, and such other like documents
pertaining to the Assets.
6.2 Access to Confidential Information and Inspection. Prior to
Closing, Seller shall make available to Buyer for inspection by Buyer at
reasonable times at Seller's location, all books and records relating to
the cost of the Kentucky System and Property Rights (and any depreciation
associated therewith), the condition of the Assets, their operation and the
operating costs attributable
-14-
<PAGE>
to the Assets as such pertain to costs and expenses to be shared by Buyer
and Seller under the Operating Agreement attached as Exhibit C. Any
information made available to Buyer under this Agreement shall be
maintained confidential by Buyer and shall not be disclosed to any third
party, except as required by law, without the prior written consent of
Seller, which consent shall not be unreasonably withheld.
6.3 Inspections and Testing. Prior to Closing, Seller shall permit
Buyer and its representatives at reasonable times and at Buyer's sole risk,
cost and expense, to fully inspect, test, analyze, measure and inventory
any and all of the Assets.
ARTICLE VII
COVENANTS OF SELLER
7.1 Covenants of Seller Pending Closing. From and after the date of
this Agreement, and until the Closing, except as otherwise consented to by
Buyer in writing, or required by an Order of the United States Bankruptcy
Court for the District of Delaware, Seller shall:
(a) Operate the Assets as a reasonably prudent operator,
within the constraints of applicable operating and other
agreements, only in the ordinary course of business. and in
accordance with all applicable Laws;
(b) Maintain and keep the Assets in their present condition
and working order, ordinary wear and tear expected;
(c) Maintain in full force and effect policies of insurance
covering the Kentucky System;
(d) Preserve in full force and effect all documents and
instruments required to operate, maintain, repair, replace and/or
remove the Kentucky System;
-15-
<PAGE>
(e) Not enter into any agreement or arrangement granting any
preferential right to purchase any of Buyer's Property Interest
or requiring the consent of any person to transfer and assignment
of Buyer's Property Interest;
(f) Not incur, or agree to incur, any contractual
obligation, encumbrance, mortgage or liability (absolute or
contingent) with respect to Buyer's Property Interest, except:
(1) current liabilities incurred in the ordinary course of
business; (2) the Columbia Encumbrances; (3) liabilities incurred
in connection with the consummation of the transactions
contemplated in this Agreement; and (4) any future liabilities,
encumbrances, or mortgages as a result of Seller's current
bankruptcy proceedings in the United States Bankruptcy Court for
the District of Delaware;
(g) Not sell, release, abandon or otherwise dispose of any
of Buyer's Property Interest, except items of personal property
replaced by equivalent property or consumed in normal operations;
(h) Notify the Environmental Protection Agency at least
thirty (30) days prior to Closing of the conveyance of Buyer's
Property Interest to Buyer, and submit therewith Buyer's executed
affidavit in the form of Exhibit D attached hereto, all pursuant
to the "Technical Guidance for the Abandonment in Place of
Interstate Natural Gas Pipeline Systems Developed by the United
States Environmental Protection Agency" dated October 24, 1990,
as it applies to Seller;
(i) Undertake its best efforts to obtain the approval of the
United States Bankruptcy Court for the District of Delaware of:
(1) this Agreement, the transactions contemplated herein, the
Operating Agreement contained in Exhibit C, and (2) the release
of the Columbia Encumbrances as they relate to Buyer's Property
Interest;
(j) Make all filings and reports with, and undertake its
reasonable efforts to obtain all approvals and consents from, all
governmental authorities prior to the Closing Date which are
required of Seller under applicable Law in connection with the
consummation of this transaction; and
(k) Maintain in good order and condition all files, books,
records, documents and papers of Seller relating to or evidencing
the Assets and continue to maintain all accounting procedures and
books of account with respect
-16-
<PAGE>
to the Assets in accordance with the FERC Uniform System of
Accounts.
Notwithstanding the foregoing, except in the case of emergency or of
normally recurring expenses, Seller shall not make or commit to
expenditures with regard to the Kentucky System in excess of $100,000 for
each such expenditure without first obtaining Buyer's prior consent, which
consent shall not be unreasonably withheld or delayed. In the event an
emergency expenditure is required hereunder, Seller shall notify Buyer of
same as soon thereafter as practicable.
7.2 Covenants of Buyer Pending Closing. From and after the date of
this Agreement, and until the Closing, except as otherwise consented to by
Seller in writing, Buyer shall:
(a) Obtain all necessary certificate and abandonment
authority of the Federal Energy Regulatory Commission for Buyer's
purchase of Buyer's Property Interest;
(b) Make all filings and reports with, and obtain all
approvals and consents from, all governmental authorities prior
to the Closing Date which are required by Buyer under applicable
Law in connection with the consummation of this transaction:
(c) Execute and deliver to Seller, at least forty-five (45)
days prior to Closing, the Buyer's affidavit in the form of
Exhibit D attached hereto; and
(d) Obtain written assurance, to Seller's satisfaction, that
Buyer shall, at Closing, have in full force and effect a policy
of insurance covering Buyer's Property Interest, which written
assurance shall specifically set forth the insurance company,
amount of coverage, insurable losses, deductibles, premium
payments, policy conditions and such other information as Seller
may request and which shall be delivered to Seller thirty (30)
days prior to Closing.
-17-
<PAGE>
ARTICLE VIII
SELLER'S CLOSING CONDITIONS
The obligations of Seller at the Closing are subject, at the option of
Seller, to the satisfaction at or prior to the Closing Date of the
following conditions:
8.1 Truth of Representations and Warranties of Buyer. All
representations and warranties of Buyer contained in this Agreement shall
be true in all material respects at and as of the Closing Date as if such
representations and warranties were made at and as of the Closing Date, and
Buyer shall have performed and satisfied all covenants and agreements
required by this Agreement to be performed and satisfied by Buyer at or
prior to the Closing Date.
8.2 Certificate. Seller shall have received a certificate dated as
of the Closing Date, executed by a duly authorized officer of Buyer to the
effect that the statements made under Article V above are true in all
material respects at and as of the Closing Date.
8.3 Consents and Approvals. All necessary: (a) certificate and
abandonment authority by the Federal Energy Regulatory Commission shall
have been obtained, without modification or condition, unless agreed to by
Buyer and Seller, which agreement shall not be unreasonably withheld; and
(b) consents and approvals by the United States Bankruptcy Court for the
District of Delaware and any state or federal governmental authority or
agency, relating to the consummation of the transactions contemplated by
this Agreement shall have been obtained or accomplished, without
-18-
<PAGE>
modification or condition, unless agreed to by Buyer and Seller, which
agreement shall not be unreasonably withheld. No action, proceeding,
inquiry or investigation by any governmental body or agency shall have been
brought or threatened (and shall not have been fully disposed of) which
questions the validity or legality of the transactions contemplated by this
Agreement, and would have an adverse effect on the transactions
contemplated hereby.
8.4 Entitlement to Acquire. Buyer shall be legally entitled to
acquire Buyer's Property Interest on the Closing Date and no governmental
order or regulation of the United States of America, or of any state or
local government therein shall have been published which by its express
terms prohibits Buyer from acquiring Buyer's Property Interest.
8.5 Execution of Operating Agreement and Affidavit. Buyer shall have
executed and delivered the Operating Agreement to Seller in the form of
Exhibit C attached hereto, and at least forty-five (45) days prior to
Closing, shall have executed and delivered the Buyer's affidavit to Seller
in the form of Exhibit D attached hereto.
8.6 Evidence of Insurability. Buyer shall have delivered to Seller
thirty (30) days prior to Closing, the written assurance of insurability
provided for in section 7.2(d) of this Agreement.
-19-
<PAGE>
ARTICLE IX
BUYER'S CLOSING CONDITIONS
The obligations of Buyer at the Closing are subject, at the option of
Buyer, to the satisfaction at or prior to the Closing Date of the
following conditions:
9.1 Truth of Representations and Warranties of Seller. All
representations and warranties of Seller contained in this Agreement shall
be true in all material respects at and as of the Closing Date as if such
representations and warranties were made at and as of the Closing Date, and
Seller shall have performed and satisfied all covenants and agreements
required by this Agreement to be performed and satisfied by Seller at or
prior to the Closing Date.
9.2 Certificate. Buyer shall have received a certificate dated as of
the Closing Date, executed by a duly authorized officer of Seller, to the
effect that the statements made under Article IV above are true in all
material respects at and as of the Closing Date.
9.3 Consents and Approvals. All necessary: (a) certificate and
abandonment authority by the Federal Energy Regulatory Commission shall
have been obtained, without modification or condition, unless agreed to by
Buyer and Seller, which agreement shall not be unreasonably withheld; and
(b) consents and approvals by the United States Bankruptcy Court for the
District of Delaware and any state or federal governmental authority or
agency, relating to the consummation of the transactions contemplated by
this
-20-
<PAGE>
Agreement shall have been obtained or accomplished, without modification or
condition, unless agreed to by Buyer and Seller, which agreement shall not
be unreasonably withheld. No action, proceeding, inquiry or investigation
by any governmental body or agency shall have been brought or threatened
(and shall not have been fully disposed of) which questions the validity or
legality of the transactions contemplated by this Agreement, and would have
an adverse effect on the transactions contemplated hereby.
9.4 Entitlement to Acquire. Buyer shall be legally entitled to
acquire Buyer's Property Interest on the Closing Date and no governmental
order or regulation of the United States of America, or of any state or
local government therein shall have been published which by its express
terms prohibits Buyer from acquiring Buyer's Property Interest.
9.5 Execution of Operating Agreement. Seller shall have executed and
delivered the Operating Agreement to Buyer in the form of Exhibit C
attached hereto.
9.6 Releases. Seller shall have obtained the release of the Columbia
Encumbrances as they relate to the Buyer's Property Interest.
-21-
<PAGE>
ARTICLE X
CLOSING
10.1 Closing. The closing of this transaction (the "Closing") shall
be held on the date 45 days after receipt of all requisite approvals as
contemplated in sections 7.1(i), 7.2(a), 8.3 and 9.3, at the offices of
Seller in Charleston, West Virginia unless extended by the written
agreement of the parties hereto, or at such other place as the parties may
agree in writing (herein called "Closing Date"), which agreements shall not
be unreasonably withheld.
10.2 Delivery By Seller. At Closing, Seller shall deliver to Buyer
the following:
(a) The executed Seller's Conveyances, all documents described in
Article IX and such other documents as may be reasonably necessary to
convey Buyer's Property Interest to Buyer in accordance with the
provisions hereof;
(b) The certificate of Seller referred to in Section 9.2 hereof;
(c) A copy of the Operating Agreement attached as Exhibit C,
properly executed by Seller; and
(d) Such evidence of compliance, satisfaction and performance by
Seller with or of all representations, warranties, covenants and
agreements of Seller made at or as of the Closing Date or to be
performed or satisfied at or prior to the Closing Date as Buyer may
reasonably request at least five (5) days prior to the Closing Date.
10.3 Delivery By Buyer. At Closing, Buyer shall deliver to Seller the
following:
(a) The Purchase Price and Buyer's Allocable Taxes (as defined in
Article III of this Agreement) in immediately available federal funds
by wire transfer to Seller's account at Mellon Bank N.A., Pittsburgh,
Pennsylvania, ABA #043000261, Account No. 191-0604 (or at such other
place within the continental United States of America designated by
Seller to
-22-
<PAGE>
Buyer at least five (5) business days prior to the Closing Date);
(b) A copy of the Operating Agreement attached as Exhibit C,
properly executed by Buyer; and
(c) Such evidence of compliance, satisfaction and performance by
Buyer with or of all representations, warranties, covenants and
agreements of Buyer made at or as of the Closing Date or to be
performed or satisfied at or prior to the Closing Date as Seller may
reasonably request at least five (5) days prior to the Closing Date;
and
(d) Evidence of insurance covering Buyer for Buyer's Property
Interest, to the satisfaction of Seller, effective as of Closing.
ARTICLE XI
EFFECT OF CLOSING
11.1 Buyer's Use of Assets. Following Closing, Buyer shall own
Buyer's Property Interest. Buyer's Property Interest shall entitle Buyer to
make use of 221,000 Dth per day of the capacity of the Kentucky System,
which, as of the date of this Agreement equals 32.67% of the total capacity
as warranted in Section 4.15. Buyer's entitlement to such use of the
Buyer's Property Interest in the Kentucky System shall be subject to the
terms and conditions of the Operating Agreement, as such may be amended
from time to time.
11.2 Imbalances. Any imbalances with respect to transportation of
gas for others that arise or exist with respect to the Kentucky System
prior to the Closing Date are, and shall remain, the sole responsibility of
Seller; provided, however, this provision shall not affect Seller's rights
to correct any imbalances which exist at Closing and which are
attributable to Buyer or Buyer's Affiliates.
-23-
<PAGE>
11.3 Termination of Existing Agreements. As of the Closing, this
Agreement, the Operating Agreement and the Agreement for Purchase and Sale
of Line AM-4 shall constitute the entire agreement between the parties and
supersede all other prior agreements, representations and understandings,
written or oral, pertaining to the sale, operation and maintenance of the
facilities sold thereunder and the matters agreed to therein, unless
specifically excepted, including, but not limited to, any and all prior
agreements requiring Seller to provide discounted transportation to The
Cincinnati Gas & Electric Company and/or to The Union Light, Heat and Power
Company ("ULHP"); provided, that nothing in this Agreement is intended to
waive, release or impair any of the parties' rights or remedies under the
Operating Agreement or the Agreement for Purchase and Sale of Line AM-4.
Consequently, the Stipulation and Agreement and Precedent Agreement between
Columbia, The Cincinnati Gas & Electric Company, ULHP and Tennessee Gas
Pipeline Company dated January 25, 1987 shall be deemed terminated as of
the Closing, except for the first sentence in paragraph (6), and all of
paragraphs (7) and (8). Nothing contained in this Agreement, the Operating
Agreement or the Agreement for Purchase and Sale of Line AM-4 shall affect
the parties' respective rights, claims and defenses in connection with
pre-petition obligations or agreements between the parties, if any, which
are or may be subject to Seller's bankruptcy proceeding before the United
States Bankruptcy Court for the District of Delaware.
-24-
<PAGE>
ARTICLE XII
SURVIVAL OF OBLIGATIONS AND INDEMNITY
12.1 Survival. All representations, warranties and covenants
made by the parties hereto in this Agreement in Articles IV, V and
VII shall survive the execution and delivery of this Agreement and
all closing documents, but shall not survive past the Closing.
12.2 Indemnity By Seller. Seller agrees to indemnify Buyer as
follows:
(a) Seller hereby indemnifies and agrees to hold harmless Buyer
and its officers, directors, employees, representatives and agents
from and against any and all claims, demands, causes of action,
damages, penalties, liabilities, and costs and expenses imposed upon
or incurred by Buyer related thereto (of whatsoever nature or
character, whether known or unknown, whether arising out of contract,
tort, misrepresentations, violations of Law or otherwise and
regardless of applicable insurance coverage), arising or accruing with
respect to any breach by Seller of any of its representations,
warranties, covenants or agreements under this Agreement.
(b) Indemnity By Seller For Environmental Matters. With respect
to events pertaining to the Kentucky System, or any portion thereof
which has not become part of the "Indicated System" as that term is
defined in Section 1.9 of the Operating Agreement, Seller shall
indemnify and hold harmless Buyer and its officers, directors,
employees, representatives and agents from and against any and all
claims, demands, causes of action, damages, penalties, liabilities,
and costs and expenses imposed upon or incurred by Buyer related
thereto (of whatsoever nature or character, whether known or unknown,
whether arising out of contract, tort, misrepresentations, violations
of law or otherwise and regardless of applicable insurance coverage),
with respect to such events occurring prior to the Closing Date
including: (i) any violation by Seller of laws designed to protect
human health and the environment with respect to the Assets, including
any violations consisting of any material spills, discharges or
releases of gas, petroleum products, contaminants, pollutants and/or
hazardous wastes or substances (including without limitation, any
Hazardous Substances), from, affecting or in any way connected with
the Assets; (ii) the disposal or treatment of any substance, including
Hazardous Substances, in any Disposal Site in connection with the
Assets; (iii) the
-25-
<PAGE>
disposal of any substance, including Hazardous Substances, on, in or
through the Assets; and (iv) that which would result in Seller being
liable or strictly liable with respect to the period prior to the
Closing Date under the Resource Conservation and Recovery Act, 42 U.S.
6901, et seq., Toxic Substances Control Act, 15 U.S.C. 2601, et seq.,
Federal Water Pollution Control Act, 33 U.S.C. 1251, et seq., Safety
of Public Water Systems, 42 U.S.C. 300___ et seq. and The
Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA), 42 U.S.C. 9601, et seq., and the regulations promulgated
pursuant to these statutes, all as in effect as of the Closing Date.
Such liability shall include but not be limited to, potential
liability arising from the EPA presumption that the Assets are PCB
contaminated and potential liability arising from the use of metals in
metering or other operations associated with the Assets.
(c) No Indemnity for Latent Defects. Notwithstanding any
express or implied term of this Agreement or the Operating Agreement,
Seller shall not be required to indemnify nor hold harmless Buyer, its
officers, directors, employees, representatives or agents from any
claim, demand, cause of action, damage, penalty, liability or related
cost and expense imposed upon or incurred by Buyer related thereto
with respect to that which arises or accrues as a result of any latent
defect (except latent environmental defects) pertaining to the
Kentucky System.
(d) Seller shall have no liability to Buyer under this section
12.2 to the extent that any officer, director, or any employee at a
managerial or higher level, or agent of Buyer ("Buyer's Agent"), who
in each case has actual knowledge of the terms and provisions of this
Agreement: (i) had actual knowledge of the falsity of such
representation or of the breach of such warranty when made; or (ii)
fails to give written notice to Seller of the breach promptly after
Buyer or Buyer's Agent acquires such actual knowledge.
(e) The sole and exclusive remedy of Buyer with respect to the
breach of any representation, warranty, covenant or agreement made by
Seller in this Agreement, shall be a claim pursuant to Section 12.2(a)
and provided Buyer has provided Seller with written notice of such
claim promptly after the facts providing the basis for such claim are
known by Buyer. If such claim involves a claim by a third party
against Buyer, Seller may, at its sole discretion, assume, at its
expense, the defense of the claim by the third party, which shall not
affect any indemnification obligation under this Agreement.
12.3 Indemnity By Buyer. Buyer agrees to indemnify Seller as follows:
-26-
<PAGE>
(a) Buyer hereby indemnifies and agrees to hold harmless Seller
and its officers, directors, employees, representatives and agents
from and against any and all claims, demands, causes of action,
damages, penalties, liabilities, costs and expenses imposed upon or
incurred by Seller related thereto (of whatsoever nature or character,
whether known or unknown, whether arising out of contract, tort,
misrepresentations, violations of Law or otherwise and regardless of
applicable insurance coverage), arising or accruing with respect to
any breach by Buyer of any of its representations, warranties,
covenants or agreements under this Agreement.
(b) Buyer shall have no liability to Seller under this section
12.3 to the extent that any officer, director, or any employee at a
managerial or higher level, or agent of Seller ("Seller's Agent"), who
in each case has actual knowledge of the terms and provisions of this
Agreement: (i) had actual knowledge of the falsity of such
representation or of the breach of such warranty when made; or (ii)
fails to give written notice to Buyer of the breach promptly after
Seller or Seller's Agent acquires such actual knowledge.
(c) The sole and exclusive remedy of Seller with respect to the
breach of any representation, warranty, covenant or agreement made by
Buyer in this Agreement, shall be a claim pursuant to Section 12.3(a)
and provided Seller has provided Buyer with written notice of such
claim promptly after the facts providing the basis for such claim are
known by Seller.
ARTICLE XIII
CASUALTY LOSS AND CONDEMNATION
13.1 Right to Terminate. If prior to the Closing Date any part of
the Assets having a value in excess of $1,000,000 shall be destroyed by
fire or other casualty or if any part of the Assets having a value in
excess of $50,000 shall be taken in condemnation or under the right of
eminent domain or if proceedings for such purposes shall be pending or
threatened, or if any casualty or taking occurs or is pending or threatened
which causes or could cause operation of any part of the Kentucky System to
be shutdown or curtailed for a period exceeding five (5) days, Buyer at its
option may terminate this Agreement.
-27-
<PAGE>
ARTICLE XIV
DEFAULT AND REMEDIES
14.1 Termination. If Buyer, due to its bad faith, fails to satisfy
its covenants and obligations under this Agreement thereby resulting in the
inability of Buyer and Seller to consummate the Closing as set forth in
Section 10.1, Seller's obligations under the July 19, 1989 letter
agreements and all prior letter agreements pertaining to Buyer's
acquisition of Buyer's Property Interest shall be considered fulfilled and
Seller may, at its sole option, terminate this Agreement, and any and all
prior letter agreements or other agreements requiring Seller to provide
discounted transportation to The Cincinnati Gas & Electric Company and/or
to The Union Light, Heat and Power Company. If Seller, due to its bad
faith, fails to satisfy its covenants and obligations under this Agreement
thereby resulting in the inability of Buyer and Seller to consummate the
Closing as set forth in Section 10.1, Buyer may, at its sole option,
terminate this Agreement, and Seller's obligations under any and all prior
letter agreements or other agreements requiring Seller to provide
discounted transportation to The Cincinnati Gas & Electric Company and/or
to The Union Light, Heat and Power Company shall be unaffected.
14.2 Bankruptcy Proceeding. Buyer understands that Seller is
currently a debtor-in-possession subject to the jurisdiction of the United
States Bankruptcy Court for the District of Delaware, which court must
approve this Agreement, the Operating Agreement and the transactions
contemplated therein, and the release of the Columbia
-28-
<PAGE>
Encumbrances as they relate to Buyer's Property Interest. In the event
Seller is unable to obtain such court approval(s), Seller may, at its sole
option, terminate this Agreement.
14.3 Remedies. If this Agreement is terminated pursuant to this
Article, each party shall bear its own respective costs and expenses
incurred in connection with the underlying transactions contemplated by
this Agreement, including its own consultants' fees, attorneys' fees,
accountants' fees, and other similar costs and expenses. The prevailing
party in any proceeding brought under or with relation to this Agreement or
transaction shall be entitled to recover costs and reasonable attorneys'
fees incurred by such party in connection therewith from the non-prevailing
party.
ARTICLE XV
TRANSFER OF INTEREST
15.1 Right of First Opportunity.
(a) At any time after the Closing Date without limitation, Seller
or Buyer desires to sell, transfer, exchange or abandon its undivided
interest in the Assets, or any portion thereof or any interest
therein, or shall receive a formal written offer to purchase, transfer
or exchange its undivided interest in the same (in both cases such
party being defined for purposes of this Article XV as "Transferor")
such Transferor shall promptly send a written notice of such intent or
offer (the "Option Notice") to the nontransferring party (such party
being defined for purposes of this Article XV as "Transferee") and
Transferee shall have forty-five (45) days (the "Option Period") from
the date of Transferee's receipt of the Option Notice in which to
elect to acquire the Transferor's interest in the Assets, or such
portion thereof or interest therein, for the higher of: (i) the
prorated Net Depreciated Book Cost thereof as of the date of the sale,
transfer, exchange or abandonment of such interest as contemplated in
such Option Notice, or if no date is contemplated, then as of the date
of the Option Notice; or (ii) the purchase price offered for such
interest by a person or entity making an offer to purchase said
interest.
-29-
<PAGE>
If Transferee elects within the Option Period to purchase the
Transferor's interest in the Assets, Transferor and Transferee shall
thereupon commence negotiations in good faith and with due diligence
toward preparation and execution of an agreement for sale (the "Sales
Agreement") by Transferor to Transferee of Transferor's undivided
interest in the Assets on the terms set forth in the Option Notice;
provided, however, that in all events such Sales Agreement shall
provide for the conveyance of such interest in the Assets by
Transferor to Transferee free and clear of all liens and encumbrances
except the Permitted Encumbrances and other liens and encumbrances
created by Transferor with the written consent of Transferee.
(b) If Transferor does not receive an election from Transferee to
purchase the Transferor's undivided interest in the Assets within the
Option Period, then Transferor may offer its undivided interest in the
Assets for sale and enter into negotiations with a third party
pursuant to the terms in the Option Notice. If, during such
negotiations, the price agreed to by Transferor and a third party is
less than that originally offered by such third party then Transferor
shall promptly send a written notice of such intent or offer (the
"Option Notice II") to the Transferee and Transferee shall have
forty-five (45) days (the "Option Period II") from the date of the
Transferee's receipt of the Option Notice II in which to elect to
acquire Transferor's undivided interest at such lower price.
If Transferee elects not to acquire Transferor's undivided
interest, then Transferor may enter into an agreement for sale with
the third party at the previously agreed to price and otherwise
pursuant to the terms in the Option Notice II.
If such agreement with said third party is not entered into
within six (6) months from the end of the Option Period, or Option
Period II, as the case may be, or if the sale pursuant to the
agreement with the third party is not closed within ninety (90) days
after such agreement is executed, then Transferor must give Transferee
a new Option Notice (subject to the requirements of this section 15.1)
before making any new offers, including a renewal of the initial
offer.
(c) If either party, whether voluntarily or by operation of Law,
sells, conveys, assigns, alienates or otherwise transfers the legal or
equitable title to either party's undivided interest in the Assets or
any part thereof or any interest therein or of all or substantially
all of the assets of either party, or other transfer of the stock or
equity interest in either party, if all or substantially all of the
assets of such party, or Affiliate as defined in Section 15.2, consist
of its interest in the Assets and the Operating
-30-
<PAGE>
Agreement, such action shall be deemed to be a sale of either party's
undivided interest in the Assets hereunder, and shall thus, unless
waived in writing in advance by the non- transferring party, be
subject to the requirements and terms set forth in subsections 15.1(a)
and 15.1(b) above.
(d) In the event Transferor consummates a sale to a third party
in accordance with the terms contained in this section 15.1, then such
third party will accede to all of Transferor's rights and obligations
under this Agreement, and the Operating Agreement.
(e) Any sale, conveyance, assignment, alienation or other
transfer of Transferor's undivided interest in the Assets, or any
portion thereof or any interest therein, which in the reasonable
opinion of Transferee, does not comply with this section 15.1 shall,
at the option of Transferee, be voidable by Transferee. In the event
of such noncompliance, Transferor shall indemnify Transferee for any
and all costs, expenses or capital expenditures required to secure
Transferee's rights under this section 15.1, including, at the option
of Transferee, the vesting in Transferee of unencumbered fee title in
Transferor's interest so conveyed, assigned, alienated or otherwise
transferred in violation of this section 15.1.
15.2 Permitted Transfer. Either Party may sell, convey, assign,
transfer or exchange its interest in the Assets and under the Operating
Agreement to (a) such party's parent company (e.g., a company which owns
90% of such party's outstanding stock); (b) a wholly-owned subsidiary of
such party; or (c) a company which is wholly owned by such party's parent
company ("Affiliate"), without being subject to section 15.1, provided
that, prior to such transfer, Affiliate has, to the non-transferring
party's satisfaction, met the requirements and conditions set forth in
sections 7.2, and 10.3. For purposes of this section 15.2, the term
"Buyer" in sections 7.2 and 10.3 shall be replaced with the term
"Affiliate", and "Closing" or "Closing Date" in sections 7.2 and 10.3 shall
refer to the date of the proposed transfer to
-31-
<PAGE>
Affiliate under this section 15.2. In the event an Affiliate acquires an
interest in the Assets pursuant to this section 15.2, then such Affiliate
will accede to all of the transferring party's rights and obligations under
this Agreement, and the Operating Agreement.
ARTICLE XVI
ALTERNATE DISPUTE RESOLUTION (ARBITRATION)
Any dispute between Seller and Buyer that arises under or relates to
this Agreement and that the parties cannot resolve between then shall be
resolved exclusively and finally in arbitration by a panel of three
arbitrators. In the event of such arbitration:
(a) except as provided in this Article XVI, the procedural rules
(including discovery rules) governing the arbitration shall be those
of the American Arbitration Association as then in effect;
(b) the site of the arbitration shall be Charleston, West
Virginia;
(c) the Seller shall be entitled to choose a single arbitrator
(the "Seller's Arbitrator") and the Buyer shall be entitled to choose
a single arbitrator (the "Buyer's Arbitrator");
(d) the Seller's Arbitrator and the Buyer's Arbitrator shall
agree upon and choose the third arbitrator; and
(e) if Seller's Arbitrator and the Buyer's Arbitrator are unable
to agree on the choice of the third arbitrator, the parties shall
petition the applicable court of general jurisdiction in Charleston,
West Virginia to choose the third arbitrator.
-32-
<PAGE>
ARTICLE XVII
MISCELLANEOUS
17.1 Further Assurances and Records. After the Closing, each of the
parties will execute, acknowledge and deliver to the other such further
instruments and conveyances, and take such other action as may be
reasonably requested in order to more effectively assure to said party all
of the respective properties, rights, titles, interests, estates, licenses,
permits and privileges intended to be assigned and delivered in
consummation of the transactions contemplated hereby
17.2 Notices. All communications required or permitted under this
Agreement shall be in writing and, if given by telegram, telecopy, or telex
shall be deemed received when sent (with appropriate confirmation of
receipt obtained); if personally delivered, shall be deemed received upon
such delivery to the address shown (with appropriate confirmation of
receipt obtained); and if mailed, shall be deemed to have been received
three days after the date when sent by first class, postage prepaid,
registered or certified mail, addressed as follows:
If to Seller: Columbia Gas Transmission Corporation
Post Office Box 1273
1700 MacCorkle Avenue, S.E.
Charleston, West Virginia 25325-1273
Attention: Glen L. Kettering
Telecopy: 304-357-3206
If to Buyer: KO Transmission Company
139 E. Fourth Street
Cincinnati, Ohio 45202
Attention: George H. Stinson
Telecopy: 513-287-2938
-33-
<PAGE>
Any party may, by written notice so delivered to the other, change the
address to which delivery shall thereafter be made.
17.3 Incidental Expenses. Each party shall bear its own respective
costs and expenses incurred in connection with the closing of this
transaction, including state or local taxes, its own consultants' fees,
attorney's fees, accountants' fees, and other similar costs and expenses.
17.4 Entire Agreement and Amendment. This Agreement and the Operating
Agreement and the Agreement for Purchase and Sale of Line AM-4 shall
constitute the entire agreement between the parties and, upon Closing,
shall supersede all other prior agreements, representations and
understandings, written or oral, pertaining to the sale, operation and
maintenance of the facilities sold thereunder, and the matters agreed to
therein, unless specifically excepted, including, but not limited to, any
and all prior agreements requiring Seller to provide discounted
transportation to The Cincinnati Gas & Electric Company and/or to The Union
Light, Heat and Power Company; provided, that nothing in this Agreement is
intended to waive, release or impair any of the parties' rights or remedies
under the Operating Agreement or the Agreement for Purchase and Sale of
Line AM-4. Any modifications, amendments or changes to this Agreement shall
be binding upon the parties only if mutually agreed upon in writing by the
parties. Consequently, the Stipulation and Agreement and Precedent
Agreement between Columbia, The Cincinnati Gas & Electric Company, ULHP and
Tennessee Gas Pipeline Company dated January 25, 1987 shall be deemed
terminated
-34-
<PAGE>
upon Closing, except for the first sentence in paragraph (6), and all of
paragraphs (7) and (8). Nothing contained in this Agreement, the
Operating Agreement or the Agreement for Purchase and Sale of Line AM-4
shall affect the parties' respective rights, claims and defenses in
connection with other pre-petition obligations or agreements between the
parties, if any, which are or may be subject to Seller's bankruptcy
proceedings before the United States Bankruptcy Court for the District of
Delaware.
17.5 Governing Law. This Agreement shall be governed and construed
and enforced in accordance with the Laws of the Commonwealth of Kentucky.
17.6 Exhibits. All Exhibits hereto which are referred to herein are
hereby made a part hereof and incorporated herein by reference.
17.7 Time of the Essence. Time is of the essence in this Agreement in
all respects.
17.8 Counterparts. This Agreement may be executed in any number of
counterparts, and each and every counterpart shall be deemed for all
purposes one agreement.
17.9 Assignment. None of the parties hereto may assign this Agreement
or its rights hereunder, whether in whole or in part, without the prior
written consent of the other parties hereto; provided, however, that either
party may assign this Agreement and its rights and obligations hereunder to
an Affiliate, as defined in section 15.2, if, pursuant to a transfer to an
Affiliate under section 15.2, such assignment would not render ineffective
any
-35-
<PAGE>
consent or approval of a third party or any governmental authority obtained
or received by such transferring party prior to the date of such
assignment.
17.10 Waiver. Any of the terms, provisions, covenants,
representations, warranties or conditions hereof may be waived only by a
written instrument executed by the party waiving compliance. The failure of
any party at any time or times to require performance of any provision
hereof shall in no manner affect the right to enforce the same. No waiver
by any party of any condition, or of the breach of any term, provision,
covenant, representation or warranty contained in this Agreement, whether
by conduct or otherwise, in any one or more instances, shall be deemed to
be or construed as a further or continuing waiver of any such condition or
breach or a waiver of any other condition or of the breach of any other
term, provision, covenant, representation or warranty.
17.11 Binding Effect. All the terms, provisions, covenants,
representations, warranties and conditions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and assigns.
17.12 Section Headings. The section headings contained herein are
for purposes of convenience only and shall not be deemed to constitute a
part of this Agreement or to affect the meaning or interpretation of this
Agreement in any way.
-36-
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above
written.
COLUMBIA GAS TRANSMISSION CORPORATION
By: //Glen L. Kettering//
-------------------------------
Name: Glen L. Kettering
-------------------------------
Title: Senior Vice President
-------------------------------
"Seller"
KO TRANSMISSION COMPANY
By: //George H. Stinson//
-------------------------------
Name: George H. Stinson
-------------------------------
Title: Vice President
-------------------------------
"Buyer"
THE CINCINNATI GAS & ELECTRIC COMPANY
By: //George H. Stinson//
-------------------------------
Name: George H. Stinson
-------------------------------
Title: Vice President
-------------------------------
THE UNION LIGHT, HEAT AND POWER
COMPANY
By: //George H. Stinson//
-------------------------------
Name: George H. Stinson
-------------------------------
Title: Vice President
-------------------------------
-37-
<PAGE>
EXHIBITS
A -- Map of Kentucky System
B -- Kentucky System Asset Description
C -- Operating Agreement
D -- EPA Affidavit of Buyer
-38-
<PAGE>
AGREEMENT FOR PURCHASE AND SALE OF LINE AM-4
EXHIBIT A
Map of Kentucky gas transmission system being sold by Columbia Gas
Transmission System. Map shows interconnection of pipeline being purchased
by KO Transmission with the pipelines of Columbia Gulf in Menifee County,
Kentucky. The pipeline runs northwestward for approximately 90 miles until
it reaches Cincinnati, Ohio. For a more detailed description, see Exhibit
B.
<PAGE>
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
EXHIBIT B
COLUMBIA GAS TRANSMISSION CORPORATION
PROPOSED SALE TO THE CINCINNATI GAS & ELECTRIC COMPANY
AND THE UNION LIGHT HEAT AND POWER COMPANY
OF 32.67% UNDIVIDED INTEREST IN THE "KENTUCKY SYSTEM"
Facility Description
- -------- -----------
Line A Beginning near the Town of Alexandria in Campbell
County, Ky. running in a northwesterly direction, to
its terminus near the Town of Cold Spring in Campbell
County, Ky. A distance of approximately 7.95 miles of
20" pipe.
Line AM-4 Beginning near the Town of Foster in Bracken County,
Ky. running in a northwesterly direction through
Pendleton County into Campbell County to the Town of
Cold Spring and ending with the 24"x24"x24" tee
immediately downstream of the 16" valve number 151 and
the 2.4" valve number 152. A distance of approximately
20.11 miles of 24" pipe.
Line AM-9 Beginning near the Town of Foster in Bracken County,
Ky. Running in a northwesterly direction through
Pendleton and Campbell Counties to its terminus in the
Town of Cold Spring in Campbell County, Ky., a distance
of approximately 19.47 miles of 26" pipe and 1.16 miles
of 24" pipe.
Line E Beginning near the Town of Means in Menifee County, Ky.
Running in a northwesterly direction through
Montgomery, Bath, Nicholas and Robertson Counties to
its terminus near the Town of Foster in Bracken County,
Ky. A distance of 65.9 miles of 14" pipe and 1.15 miles
of 12" pipe.
Line E-Loop Beginning in Montgomery County near Town Branch Road.
Running in a northwesterly direction through
Montgomery, Bath, Nicholas and Robertson Counties to
its terminus near the Town of Foster in Bracken County,
Ky. A distance of approximately 62.3 miles of 20" pipe
and 1.16 miles of 16" pipe.
Line EM-1 A crossover on Columbia Gas Transmission's regulator
lot at the Town of foster, Bracken County, Ky.
Consisting of 189' - 16" pipe, 14' - 12" pipe, 4' - 10"
pipe.
Revised 7/7/89
<PAGE>
Facility Description
- -------- -----------
Line EM-2 Beginning near the Town of Means in Menifee County, Ky.
and running in a northwesterly direction to its
terminus in Montgomery County, Ky. near Town Branch
Road, a distance of approximately 3.7 miles of 20"
pipe.
Line EM-3 A crossover on Columbia Gas Transmission's Measuring
Station lot near the Town of Means in Menifee County,
Ky. Consisting of 199' of 14" pipe.
Line EM-7 This pipeline consists of two sections: Section 1 -
Beginning near the Town of Means in Menifee County, Ky.
Running northwesterly through Montgomery and Bath
Counties to its terminus near the Town of East Union in
Nicholas County, Ky. A distance of approximately 24.4
miles of 30" pipe. Section 2 - Beginning near the Town
of Carlisle in Nicholas County, Ky. Running
northwesterly to its terminus near the North Fork of
the Licking River in Robertson County, Ky. A distance
of approximately 19 miles.
Foster Reg. #7163 Regulation equipment and structures located
Station on Columbia Gas Transmission's lot near the Town
of Foster in Bracken County, Ky.
Alexandria #5777 Measuring and regulating equipment and
Measuring Station structures located on Columbia Gas Transmission's
lot near the Town of Alexandria in Campbell
County, Ky.
Alexandria #5858 Measurement equipment located on Columbia
Measuring Station Gas Transmission's lot near the Town of Alexandria
in Campbell County, Ky.
Cold Spring #3575 Measuring and regulating equipment and
Measuring Station structures located on Columbia Gas Transmission's
lot in the Town of Cold Spring in Campbell County,
Ky.
Pendleton County #4916 Measurement equipment located on Columbia
Measuring Station Gas Transmission's lot in Pendleton County,
Kentucky near the Pendleton-Campbell County line.
Alexandria Telemetering equipment for Columbia Gas
Telemetering Transmission's facilities near the Town of
Alexandria in Campbell County, Ky.
<PAGE>
Facility Description
- -------- -----------
Cold Spring Telemetering equipment for Columbia Gas
Telemetering Transmission's facilities in the Town of Cold
Spring in Campbell County, Ky.
Foster Telemetering equipment for Columbia Gas
Telemetering Transmission's facilities near the Town of Foster
in Bracken County, Ky.
South Means Telemetering equipment for Columbia Gas
Telemetering Transmission's facilities near the Town of Means
in Menifee County, Ky.
North Means Telemetering equipment for Columbia Gas
Telemetering Transmission'sfacilities near Town Branch Road in
Montgomery County, Ky.
<PAGE>
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
EXHIBIT D
AFFIDAVIT
STATE OF OHIO )
COUNTY OF HAMILTON ) SS:
George H. Stinson, being first duly sworn, deposes and says:
1. He is the Vice President of KO Transmission Company ("KO
Transmission"), located in Cincinnati, Ohio.
2. KO Transmission has executed an "Agreement for Purchase and
Sale of Assets" for the purchase of certain pipeline facilities, being more
particularly described on the attached from Columbia Gas Transmission
Corporation (Columbia).
3. KO Transmission has reviewed a document dated October 24,
1990, entitled "Technical Guidance for the Abandonment in Place of
Interstate Natural Gas Pipeline Systems" (the Guidance) developed by the
United States Environmental Protection Agency (EPA).
4. As transferee of said pipeline facilities from Columbia, KO
Transmission avers that it will abide by the terms of the Guidance without
deviation (modification, addition, or deletion) issued originally to
Columbia for the purpose of classifying these former portions of the
Columbia system according to their level of PCB contamination.
5. KO Transmission's averment is made with the understanding,
as specified in the Guidance, that if KO Transmission so abides by the
terms of the Guidance, EPA will recognize the results of the system
classification for the purpose of determining the regulatory status of the
portion of the system transferred to KO Transmission and subsequently
abandoned in place based upon current, rather than historical levels of PCB
contamination.
Further affiant sayeth naught.
KO TRANSMISSION COMPANY
By: //George H. Stinson//
-----------------------------------------
Name: George H. Stinson
-----------------------------------------
Title: Vice President of KO Transmission Company
-----------------------------------------
Subscribed and sworn to before me this 22nd day of July, 1994.
My commission expires:
EXHIBIT C-52
AGREEMENT FOR PURCHASE AND SALE OF LINE AM-4
Dated as of March 31, 1994
By and Between
COLUMBIA GAS TRANSMISSION CORPORATION
as SELLER
and
KO TRANSMISSION COMPANY
as BUYER
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I - DEFINITIONS 2
1.1 Assets 2
1.2 Buyer's Property Interest 2
1.3 Closing 2
1.4 Closing Date 2
1.5 Columbia Encumbrances 2
1.6 Force Majeure 3
1.7 Law 4
1.8 Line AM-4 4
1.9 Net Depreciated Book Cost 4
1.10 Permitted Encumbrances 4
1.11 Property Rights 4
1.12 Purchase Price 5
1.13 Seller's Conveyances 5
ARTICLE II - SALE AND PURCHASE 5
ARTICLE III - PURCHASE PRICE AND TAXES 5
ARTICLE IV - SELLER'S REPRESENTATIONS 6
4.1 Corporate Existence 6
4.2 Corporate Authority 6
4.3 Due Authorization 7
4.4 Binding Obligation 7
4.5 Marketable Title 7
4.6 Payments Current 7
4.7 Instruments in Effect 8
4.8 No Violation 8
4.9 Good Order and Repair 8
4.10 Obligations Current 9
4.11 No Litigation 9
4.12 Full Disclosure and Adequacy of Assets 10
4.13 Insurance Policies 10
4.14 Recorded Title Documents 10
4.15 Representations True and Correct 11
ARTICLE V - BUYER'S REPRESENTATIONS 12
5.1 Corporate Existence 12
5.2 Corporate Authority 12
5.3 Due Authorization 13
5.4 Binding Obligation 13
-i-
<PAGE>
Page
----
5.5 No Bankruptcy 12
5.6 No Litigation 12
5.7 Funds Availability 13
5.8 Full Disclosure 13
5.9 Representations True and Correct 13
ARTICLE VI - ACCESS TO INFORMATION AND TESTING 13
6.1 Title Information 13
6.2 Access to Confidential Information and Inspection 14
6.3 Inspections and Testing 14
ARTICLE VII - COVENANTS OF SELLER 14
7.1 Covenants of Seller Pending Closing 14
7.2 Covenants of Buyer Pending Closing 16
ARTICLE VIII - SELLER'S CLOSING CONDITIONS 17
8.1 Truth of Representations and Warranties of Buyer 17
8.2 Certificate 17
8.3 Consents and Approvals 17
8.4 Entitlement to Acquire 18
8.5 Execution of Affidavit 18
ARTICLE IX - BUYER'S CLOSING CONDITIONS 18
9.1 Truth of Representations and Warranties of Seller 18
9.2 Certificate 19
9.3 Consents and Approvals 19
9.4 Entitlement to Acquire 20
9.5 Releases 20
ARTICLE X - CLOSING 20
10.1 Closing 20
10.2 Delivery by Seller 20
10.3 Delivery by Buyer 21
ARTICLE XI - EFFECT OF CLOSING 21
11.1 Buyer's Use of Assets 21
11.2 Imbalances 22
11.3 Termination of Existing Contracts 22
ARTICLE XII - SURVIVAL OF OBLIGATIONS AND INDEMNITY 23
12.1 Survival 23
12.2 Indemnity by Seller 23
12.3 Indemnity by Buyer 24
ARTICLE XIII - CASUALTY LOSS AND CONDEMNATION 25
13.1 Right to Terminate 25
-ii-
<PAGE>
Page
----
ARTICLE XIV - DEFAULT AND REMEDIES 25
14.1 Termination 25
14.2 Bankruptcy Proceeding 26
14.3 Remedies 26
ARTICLE XV - ALTERNATE DISPUTE RESOLUTION (ARBITRATION) 27
ARTICLE XVI - MISCELLANEOUS 27
16.1 Further Assurances and Records 27
16.2 Notices 28
16.3 Incidental Expenses 28
16.4 Entire Agreement and Amendment 28
16.5 Governing Law 29
16.6 Exhibits 29
16.7 Time of the Essence 29
16.8 Counterparts 30
16.9 Assignment 30
16.10 Waiver 30
16.11 Binding Effect 30
16.12 Section Headings 30
EXHIBITS
- --------
A -- Map of Relevant Portion of Line AM-4
B -- Description of Relevant Portion of Line AM-4
C -- EPA Affidavit of Buyer
-iii-
<PAGE>
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
THIS AGREEMENT, dated as of the 31st day of March, 1994, between
COLUMBIA GAS TRANSMISSION CORPORATION, a Delaware corporation, whose
address is 1700 MacCorkle Avenue, S.E., Charleston, West Virginia 25314
(hereinafter referred to as "Seller"), and KO TRANSMISSION COMPANY, a
Kentucky corporation, whose address is 139 E. Fourth Street, Cincinnati,
Ohio 45202 (hereinafter referred to as "Buyer").
W I T N E S S E T H:
WHEREAS, pursuant to the Stipulation and Agreement dated June 29, 1989
submitted to the Federal Energy Regulatory Commission and the letter
agreements executed July 19, 1989, it was agreed that Seller would sell to
Buyer a 100 percent interest in a certain portion of Line AM-4 (as defined
below) existing as of the date of the Closing Date (as defined below);
WHEREAS, Seller owns and operates that certain portion of natural gas
facilities known as Line AM-4 (as defined below); and
WHEREAS, Seller is obligated to sell and Buyer is obligated to acquire
a 100% percent interest in such natural gas facilities on the terms and
conditions hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, the parties hereby agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS
The following terms, as used herein, have the following meanings:
1.1 "Assets" shall mean all of the following described properties,
rights, titles, interests and assets subject to the Permitted Encumbrances
and Columbia Encumbrances:
(a) the portion of Line AM-4 as defined in Section 1.8 below;
and
(b) the Property Rights.
1.2 "Buyer's Property Interest" shall mean a 100 percent interest in
the Assets, free and clear of all liens and encumbrances except the
Permitted Encumbrances.
1.3 "Closing" shall be as defined in Section 10.1.
1.4 "Closing Date" shall be as defined in Section 10.1.
1.5 "Columbia Encumbrances" shall mean those security interests,
mortgages, liens or encumbrances contained or represented by: (a) that
certain Indenture of Mortgage and Deed of Trust, dated August 30, 1985,
from Columbia Gas Transmission Corporation to Wilmington Trust Company,
securing bonds issuable in an aggregate principal amount not to exceed
$1,200,000,000 at any time, recorded in various county recording offices in
Kentucky and Ohio in which Seller holds property, with related financing
statements filed in the various county offices and the Office of the
Secretary of State of Kentucky and Ohio; and (b) any local and state liens
placed on the Assets as a result of non-payment of
-2-
<PAGE>
Seller's pre-petition ad valorem taxes in the counties and states where the
Assets are located, which are the subject of Seller's current bankruptcy
proceedings before the United States Bankruptcy Court for the District of
Delaware.
1.6 "Force Majeure" shall mean any act, omission or circumstance
occasioned by or in consequence of any act of God, strike, lockout, act of
the public enemy, war, blockade, insurrection, riot, epidemic, landslide,
lightning, earthquake, fire, storm, flood, washout, arrest or restraint of
rulers and peoples, civil disturbance, explosion, breakage or accident to
machinery or lines of pipe, line or well freezeup, partial or entire
electronic, mechanical or physical failure that affects the ability to
transport gas, or the binding order of any court or governmental authority
which has been resisted in good faith by all reasonable legal means and any
other causes, whether of the kind herein enumerated, or otherwise, and
whether caused or occasioned by or happening on account of the act or
omission of one of the parties to this Agreement or some person or concern
not a party hereto, not within the control of the party claiming force
majeure and which, by the exercise of due diligence, such claiming party is
unable to prevent or overcome. A failure to settle or prevent any strike or
other controversy with employees or with anyone purporting or seeking to
represent employees shall not be considered to be a matter within the
control of the party claiming Force Majeure. Force Majeure may not be
invoked to suspend, cancel
-3-
<PAGE>
or otherwise modify Buyer's payment obligations under this Agreement.
1.7 "Law" shall mean any applicable statute, regulation, ordinance,
judgment, order or decree of a court of competent jurisdiction.
1.8 "Line AM-4" shall mean that certain gas pipeline facility located
beginning in Campbell County, Kentucky, and running in a northerly
direction crossing the Ohio River and terminating near the City of
Cincinnati, Hamilton County, Ohio, as depicted on the map attached as
Exhibit A, and being more particularly described in Exhibit B attached
hereto.
1.9 "Net Depreciated Book Cost" shall mean the amount, as determined
by Seller, equal to the original cost of Line AM-4 and Property Rights,
less accumulated depreciation as of the Closing Date determined according
to the FERC Uniform System of Accounts. For purposes of Article XV, "Net
Depreciated Book Cost" shall be as of the date of sale contemplated herein.
1.10 "Permitted Encumbrances" shall mean: (a) the terms and conditions
of all documents or instruments embodying or memorializing the Property
Rights; and (b) any inchoate liens for taxes and assessments not yet due
and payable.
1.11 "Property Rights" shall mean any rights-of-way, easements, fee
interests, leasehold interests, estates, property rights, servitudes,
permits, licenses, franchises, certificates or other privileges
establishing the right to own, operate, maintain, repair and remove Line
AM-4 created, granted, reserved, evidenced
-4-
<PAGE>
by or otherwise established by any documents or instruments embodying or
memorializing such rights.
1.12 "Purchase Price" shall mean an amount equal to the Net
Depreciated Book Cost.
1.13 "Seller's Conveyances" shall mean the forms of deeds,
assignments, bills of sale and other conveyances conveying Buyer's Property
Interest.
ARTICLE II
SALE AND PURCHASE
Subject to the terms and conditions of this Agreement, Seller agrees
to sell and convey to Buyer and Buyer agrees to purchase Buyer's Property
Interest.
ARTICLE III
PURCHASE PRICE AND TAXES
The total consideration for the sale and conveyance by the Seller of
Buyer's Property Interest to Buyer is the payment by Buyer to Seller of
the Purchase Price payable in immediately available federal funds. At least
five business days prior to Closing, Seller shall provide Buyer with
written notice of the Net Depreciated Book Cost as of the Closing Date
which notice shall also set forth the manner by which such amount was
determined in sufficient accounting detail that such amount and computation
can be confirmed by Buyer. As of the Closing Date, the Net Depreciated Book
Cost was equal to $_________, which is the Purchase Price as defined in
Section 1.12. Any taxes on real or personal property constituting the
Assets for the year during which the Closing
-5-
<PAGE>
occurs shall be prorated between Seller and Buyer, on a calendar year
basis, as of the Closing, and Buyer shall pay Seller accordingly for its
allocable share of such taxes ("Buyer's Allocable Taxes").
ARTICLE IV
SELLER'S REPRESENTATIONS
Seller represents and warrants to Buyer as of the date hereof that
with respect to the period prior to the Closing Date and as of the Closing
Date, as follows:
4.1 Corporate Existence. Seller is a corporation duly organized,
validly existing and in good standing under the Laws of the State of
Delaware, and is duly qualified to carry on its business in the State of
Kentucky.
4.2 Corporate Authority. Seller has all requisite corporate power
and authority to carry on its business as presently conducted, to enter
into this Agreement, and to perform its obligations hereunder. The
consummation of the transactions contemplated by this Agreement and
performance of the terms and conditions contemplated thereby by Seller will
not: (a) violate, or be in conflict with (i) any provision of its charter,
by-Laws or governing documents, or any agreement or instrument to which it
is a party or by which it is bound, or (ii) any Law applicable to Seller or
the Assets; or (b) require the consent, authorization or approval of any
third party, except for (i) the approval of the United States Bankruptcy
Court for the District of Delaware with respect to consummation of the
transaction contemplated by this
-6-
<PAGE>
Agreement and the related release of the Columbia Encumbrances encumbering
Buyer's Property Interest, and (ii) the approval of the Federal Energy
Regulatory Commission.
4.3 Due Authorization. The execution, delivery and performance of
this Agreement and the transactions contemplated hereunder, have been duly
and validly authorized by all requisite corporate action on the part of
Seller, subject to the conditions set forth in section 4.2.
4.4 Binding Obligation. This Agreement constitutes as of the date
hereof, and all documents and instruments required hereunder to be executed
and delivered by Seller at Closing will constitute, on the Closing Date,
valid, legal and binding obligations of Seller enforceable against Seller
in accordance with their respective terms, subject to applicable bankruptcy
and other similar laws of general application with respect to creditors.
4.5 Marketable Title. Seller has good and marketable title to and is
possessed of the Assets, free and clear of all mortgages, liens, pledges,
charges, security interests, preferential purchase rights, required
consents or other burdens or encumbrances, or adverse claims, except for
the Permitted Encumbrances and Columbia Encumbrances.
4.6 Payments Current. All rentals, payments and obligations due and
payable or performable on or prior to the Closing Date under or on account
of the Assets have been or will be duly paid, performed or provided for
prior to the Closing Date, except for pre-petition obligations which are
the subject of Seller's current
-7-
<PAGE>
bankruptcy proceedings before the United States Bankruptcy Court for the
District of Delaware.
4.7 Instruments In Effect. To the best of Seller's knowledge, all
documents or instruments embodying or memorializing the Property Rights are
presently valid, subsisting and in full force and effect, no default now
exists thereunder, and Seller has not received or given any notice of
default or claimed default thereunder, and Seller has no knowledge of any
event or circumstance which with notice or passage of time or both could
constitute a default thereunder. The Assets are currently being operated
and maintained in compliance with all terms and provisions of the
instruments applicable thereto.
4.8 No Violation. To the best of Seller's knowledge, Seller, the
Assets and Seller's ownership, construction, maintenance, and operation or
other handling of the Assets are not in violation of any Law applicable
thereto. To the best of Seller's knowledge, Seller has made, filed,
obtained and/or paid all filings, reports, permits, licenses, certificates,
approvals and fees required under applicable Law with respect to the Assets
and Seller's ownership, construction, maintenance and operation of the
Assets, and Seller has no knowledge of nor has it received any notice of
violation or claimed violation of any such Law.
4.9 Good Order and Repair. To the best of Seller's knowledge, the
Assets are in good repair and working order, free from known material
defects, normal wear and tear excepted, and no known material injury or
damage to any of the Assets has occurred
-8-
<PAGE>
prior to the date hereof, which has not been fully repaired, rebuilt or
replaced. To the best of Seller's knowledge, there has been no actual or
threatened taking (whether permanent, temporary, whole or partial) of any
part of the Assets by reason of condemnation or the threat of condemnation.
4.10 Obligations Current. To the best of Seller's knowledge, all
taxes, as well as all assessments and other governmental charges,
penalties, interest and fines, which have become due and payable on or with
respect to the Assets, or Seller's ownership or operation thereof, prior to
the Closing Date, or which have been collected by Seller in connection with
the Assets on behalf of some governmental entity, have been properly paid
prior to becoming delinquent, and all returns and reports with respect to
such matters have been duly and timely filed; except for any pre- petition
obligations, to the extent they exist, which are the subject of Seller's
current bankruptcy proceedings before the United States Bankruptcy Court
for the District of Delaware.
4.11 No Litigation. To the best of Seller's knowledge, there are no
demands, suits, actions, proceedings or investigations pending or
threatened before any court or governmental agency which might result in a
material impairment or loss of Seller's title to any part of the Assets or
the value thereof or which might materially hinder or impede the
consummation of this Agreement, or the operation of any part of the Assets;
except to the extent such matters may be affected by Seller's current
bankruptcy proceedings
-9-
<PAGE>
referred to in Section 4.2. Seller shall promptly notify Buyer of any such
matters arising or threatened prior to Closing.
4.12 Full Disclosure and Adequacy of Assets. To the best of Seller's
knowledge, all information and disclosures set forth in this Agreement or
in any exhibits attached hereto or furnished by Seller to Buyer in
connection herewith, are accurate and complete in all material respects.
4.13 Insurance Policies. Policies of insurance are held by Seller as
an insured with respect to Line AM-4 or Seller's business relating to Line
AM-4. No notice has been received from any insurance company that has
issued a policy insuring Seller with respect to any portion of Line AM-4
(or Seller's business relating thereto), or any board of fire underwriters
(or other body exercising similar functions) claiming any defects or
deficiencies, requiring the performance of any material repairs,
replacements, alterations or other work or requiring any changes in
Seller's operations with respect to Line AM-4.
4.14 Recorded Title Documents. The entire and continuous lengths of
Line AM-4 are covered: (a) by recorded deeds vesting fee ownership in
Seller of the underlying land; or (b) by recorded rights-of-way, easements,
leases, permits, licenses or other instruments which purport to be from the
owners of the land covered thereby and purport to grant to Seller and
Seller's successors and assigns (or to Seller's predecessor in title and
its successors and assigns) the right to construct, operate and maintain
Line AM-4 in, over, under and across such land.
-10-
<PAGE>
4.15 Representations True and Correct. No representation, warranty or
other statement of the Seller contained in this Agreement, or in any
certificate, instrument or other agreement delivered by Seller to Buyer
pursuant hereto, contains any untrue statement of a material fact or omits
to state any material fact necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances
under which they were made.
ARTICLE V
BUYER'S REPRESENTATIONS
Buyer represents and warrants to Seller as of the date hereof that
with respect to the period prior to the Closing Date and as of the Closing
Date, as follows:
5.1 Corporate Existence. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of Kentucky.
5.2 Corporate Authority. Buyer has all requisite corporate power and
authority to carry on its business as presently conducted, to enter into
this Agreement and other documents or agreements contemplated hereby, to
purchase the Buyer's Property Interest on the terms described in this
Agreement and to perform its other obligations under this Agreement and
other documents or agreements contemplated hereby. The consummation of
transactions contemplated by this Agreement and performance of the terms
and conditions contemplated thereby by Buyer will not: (a) violate, or be
in conflict with (i) any provision of Buyer's charter, by-laws
-11-
<PAGE>
or governing documents, or any agreement or instrument to which Buyer is a
party or by which it is bound, or (ii) any law applicable to Buyer or the
Assets; or (b) require the consent, authorization or approval of any third
party, except the approval of the Federal Energy Regulatory Commission.
5.3 Due Authorization. The execution, delivery and performance of
this Agreement and the transactions contemplated hereby have been duly and
validly authorized by all requisite corporate action on the part of Buyer.
5.4 Binding Obligation. This Agreement constitutes, and all
documents and instruments required hereunder to be executed and delivered
by Buyer at Closing will constitute on the Closing Date, legal, valid and
binding obligations of Buyer enforceable against Buyer in accordance with
their respective terms, subject to bankruptcy and other similar laws of
general application with respect to creditors.
5.5 No Bankruptcy. There are no bankruptcy, reorganization or
insolvency proceedings pending, being contemplated by or to the knowledge
of Buyer threatened against Buyer.
5.6 No Litigation. To the best of Buyer's knowledge, there are no
demands, suits, actions, proceedings or investigations pending or
threatened before any court or governmental agency against Buyer or to
which Buyer is a party which might materially hinder or impede the
consummation of this Agreement or the operation of any of the Assets,
except to the extent such matters may be affected by Seller's current
bankruptcy proceedings referred
-12-
<PAGE>
to in Section 4.2. Buyer shall promptly notify Seller of any such matters
arising or threatened prior to Closing.
5.7 Funds Availability. Buyer has and will have at Closing
sufficient and immediately available funds in an amount equal to the
Purchase Price for delivery to Seller at Closing.
5.8 Full Disclosure. To the best of Buyer's knowledge, all
information and disclosures, including without limitation any documents
furnished by Buyer to Seller in connection herewith, are accurate and
complete in all material respects.
5.9 Representations True and Correct. No representation, warranty or
other statement of the Buyer contained in this agreement, or in any
document or other agreement delivered by Buyer to Seller pursuant hereto,
contains any untrue statement of a material fact or omits to state any
material fact necessary in order to make the statements contained herein
or therein not misleading in light of the circumstances under which they
were made.
ARTICLE VI
ACCESS TO INFORMATION AND TESTING
6.1 Title Information. Promptly after the execution of this
Agreement and until Closing, Seller shall permit Buyer and its
representatives at reasonable times to examine and copy, at Buyer's
expense, all abstracts of title, title opinions, title files, ownership
maps, right-of-way maps, assignments, and such other like documents
pertaining to the Assets.
-13-
<PAGE>
6.2 Access to Confidential Information and Inspection. Prior to
Closing, Seller shall make available to Buyer for inspection by Buyer at
reasonable times at Seller's location, all books and records relating to
the cost of Line AM-4 and Property Rights (and any depreciation associated
therewith), the condition of the Assets, their operation and the operating
costs attributable to the Assets. Any information made available to Buyer
under this Agreement shall be maintained confidential by Buyer until
Closing and, prior to Closing, shall not be disclosed to any third party,
except as required by law, without the prior written consent of Seller,
which consent shall not be unreasonably withheld.
6.3 Inspections and Testing. Prior to Closing, Seller shall permit
Buyer and its representatives at reasonable times and at Buyer's sole risk,
cost and expense, to fully inspect, test, analyze, measure and inventory
any and all of the Assets.
ARTICLE VII
COVENANTS OF SELLER
7.1 Covenants of Seller Pending Closing. From and after the date of
this Agreement, and until the Closing, except as otherwise consented to by
Buyer in writing, or required by an Order of the United States Bankruptcy
Court for the District of Delaware, Seller shall:
(a) Operate the Assets as a reasonably prudent operator,
within the constraints of applicable operating and other
agreements, only in the ordinary course of business, and in
accordance with all applicable Laws;
(b) Maintain and keep the Assets in their present condition
and working order, ordinary wear and tear expected;
-14-
<PAGE>
(c) Maintain in full force and effect policies of insurance
covering Line AM-4;
(d) Preserve in full force and effect all documents and
instruments required to operate, maintain, repair, replace and/or
remove Line AM-4;
(e) Not enter into any agreement or arrangement granting any
preferential right to purchase any of Buyer's Property Interest
or requiring the consent of any person to transfer and assignment
of Buyer's Property Interest;
(f) Not incur, or agree to incur, any contractual
obligation, encumbrance, mortgage or liability (absolute or
contingent) with respect to Buyer's Property Interest, except:
(1) current liabilities incurred in the ordinary course of
business; (2) the Columbia Encumbrances; (3) liabilities
incurred in connection with the consummation of the transactions
contemplated in this Agreement; and (4) any future liabilities,
encumbrances, or mortgages as a result of Seller's current
bankruptcy proceedings in the United States Bankruptcy Court for
the District of Delaware;
(g) Not sell, release, abandon or otherwise dispose of any
of Buyer's Property Interest, except items of personal property
replaced by equivalent property or consumed in normal operations;
(h) Notify the Environmental Protection Agency at least
thirty (30) days prior to Closing of the conveyance of Buyer's
Property Interest to Buyer, and submit therewith Buyer's executed
affidavit in the form of Exhibit C attached hereto, all pursuant
to the "Technical Guidance for the Abandonment in Place of
Interstate Natural Gas Pipeline Systems Developed by the United
States Environmental Protection Agency" dated October 24, 1990,
as it applies to Seller;
(i) Undertake its best efforts to obtain the approval of the
United States Bankruptcy Court for the District of Delaware of:
(1) this Agreement, the transactions contemplated herein, and (2)
the release of the Columbia Encumbrances as they relate to
Buyer's Property Interest;
(j) Make all filings and reports with, and undertake its
reasonable efforts to obtain all approvals and consents from, all
governmental authorities prior to the Closing Date which are
required of Seller under
-15-
<PAGE>
applicable Law in connection with the consummation of this
transaction: and
(k) Maintain in good order and condition all files, books,
records, documents and papers of Seller relating to or evidencing
the Assets and continue to maintain all accounting procedures and
books of account with respect to the Assets in accordance with
the FERC Uniform System of Accounts.
Notwithstanding the foregoing, except in the case of emergency or of
normally recurring expenses, Seller shall not make or commit to
expenditures with regard to Line AM-4 in excess of $100,000 for each such
expenditure without first obtaining Buyer's prior consent, which consent
shall not be unreasonably withheld or delayed. In the event an emergency
expenditure is required hereunder, Seller shall notify Buyer of same as
soon thereafter as practicable.
7.2 Covenants of Buyer Pending Closing. From and after the
date of this Agreement, and until the Closing, except as otherwise
consented to by Seller in writing, Buyer shall:
(a) Obtain all necessary certificate and abandonment
authority of the Federal Energy Regulatory Commission for Buyer's
purchase of Buyer's Property Interest;
(b) Make all filings and reports with, and obtain all
approvals and consents from, all governmental authorities prior
to the Closing Date which are required by Buyer under applicable
Law in connection the consummation of this transaction; and
(c) Execute and deliver to Seller, at least forty- five (45)
days prior to Closing, the Buyer's affidavit in the form of
Exhibit C attached hereto.
-16-
<PAGE>
ARTICLE VIII
SELLER'S CLOSING CONDITIONS
The obligations of Seller at the Closing are subject, at the option of
Seller, to the satisfaction at or prior to the Closing Date of the
following conditions:
8.1 Truth of Representations and Warranties of Buyer. All
representations and warranties of Buyer contained in this Agreement shall
be true in all material respects at and as of the Closing Date as if such
representations and warranties were made at and as of the Closing Date, and
Buyer shall have performed and satisfied all covenants and agreements
required by this Agreement to be performed and satisfied by Buyer at or
prior to the Closing Date.
8.2 Certificate. Seller shall have received a certificate dated as
of the Closing Date, executed by a duly authorized officer of Buyer to the
effect that the statements made under Article V above are true in all
material respects at and as of the Closing Date.
8.3 Consents and Approvals. All necessary: (a) certificate and
abandonment authority by the Federal Energy Regulatory Commission shall
have been obtained, without modification or condition, unless agreed to by
Buyer and Seller, which agreement shall not be unreasonably withheld; and
(b) consents and approvals by the United States Bankruptcy Court for the
District of Delaware and any state or federal governmental authority or
agency, relating to the consummation of the transactions contemplated by
this Agreement shall have been obtained or accomplished, without
-17-
<PAGE>
modification or condition, unless agreed to by Buyer and Seller, which
agreement shall not be unreasonably withheld. No action, proceeding,
inquiry or investigation by any governmental body or agency shall have been
brought or threatened (and shall not have been fully disposed of) which
questions the validity or legality of the transactions contemplated by this
Agreement, and would have an adverse effect on the transactions
contemplated hereby.
8.4 Entitlement to Acquire. Buyer shall be legally entitled to
acquire Buyer's Property Interest on the Closing Date and no governmental
order or regulation of the United States of America, or of any state or
local government therein shall have been published which by its express
terms prohibits Buyer from acquiring Buyer's Property Interest.
8.5 Execution of Affidavit. Buyer, at least forty-five (45) days
prior to Closing, shall have executed and delivered the Buyer's affidavit
to Seller in the form of Exhibit C attached hereto.
ARTICLE IX
BUYER'S CLOSING CONDITIONS
The obligations of Buyer at the Closing are subject, at the option of
Buyer, to the satisfaction at or prior to the Closing Date of the
following conditions:
9.1 Truth of Representations and Warranties of Seller. All
representations and warranties of Seller contained in this Agreement shall
be true in all material respects at and as of the Closing Date as if such
representations and warranties were made at
-18-
<PAGE>
and as of the Closing Date, and Seller shall have performed and satisfied
all covenants and agreements required by this Agreement to be performed and
satisfied by Seller at or prior to the Closing Date.
9.2 Certificate. Buyer shall have received a certificate dated as of
the Closing Date, executed by a duly authorized officer of Seller, to the
effect that the statements made under Article IV above are true in all
material respects at and as of the Closing Date.
9.3 Consents and Approvals. All necessary: (a) certificate and
abandonment authority by the Federal Energy Regulatory Commission shall
have been obtained, without modification or condition, unless agreed to by
Buyer and Seller, which agreement shall not be unreasonably withheld; and
(b) consents and approvals by the United States Bankruptcy Court for the
District of Delaware and any state or federal governmental authority or
agency, relating to the consummation of the transactions contemplated by
this Agreement shall have been obtained or accomplished, without
modification or condition, unless agreed to by Buyer and Seller, which
agreement shall not be unreasonably withheld. No action, proceeding,
inquiry or investigation by any governmental body or agency shall have been
brought or threatened (and shall not have been fully disposed of) which
questions the validity or legality of the transactions contemplated by this
Agreement, and would have an adverse effect on the transactions
contemplated hereby.
-19-
<PAGE>
9.4 Entitlement to Acquire. Buyer shall be legally entitled to
acquire Buyer's Property Interest on the Closing Date and no governmental
order or regulation of the United States of America, or of any state or
local government therein shall have been published which by its express
terms prohibits Buyer from acquiring Buyer's Property Interest.
9.5 Releases. Seller shall have obtained the release of the Columbia
Encumbrances as they relate to the Buyer's Property Interest.
ARTICLE X
CLOSING
10.1 Closing. The closing of this transaction (the "Closing") shall
be at the same place and held on the same date on which the Closing will
occur pursuant to the "Agreement for Purchase and Sale of Assets" between
Buyer and Seller dated March 31, 1994; provided all requisite approvals as
contemplated in sections 7.1(i), 7.2(a), 8.3 and 9.3 of this Agreement
shall also have been obtained. As set forth in Section 10.1 of such
"Agreement for Purchase and Sale of Assets" the Closing Date may be
extended as provided for therein, and such extension(s), if any, shall
apply to the Closing of the transaction contemplated in this Agreement.
10.2 Delivery By Seller. At Closing, Seller shall deliver to Buyer
the following:
(a) The executed Seller's Conveyances, all documents described in
Article IX and such other documents as may be reasonably necessary to
convey Buyer's Property Interest to Buyer in accordance with the
provisions hereof;
-20-
<PAGE>
(b) The certificate of Seller referred to in Section 9.2 hereof:
and
(c) Such evidence of compliance, satisfaction and performance by
Seller with or of all representations, warranties, covenants and
agreements of Seller made at or as of the Closing Date or to be
performed or satisfied at or prior to the Closing Date as Buyer may
reasonably request at least five (5) days prior to the Closing Date.
10.3 Delivery By Buyer. At Closing, Buyer shall deliver to Seller the
following:
(a) The Purchase Price and Buyer's Allocable Taxes (as defined in
Article III of this Agreement) in immediately available federal funds
by wire transfer to Seller's account at Mellon Bank N.A., Pittsburgh,
Pennsylvania, ABA #043000261, Account No. 191-0604 (or at such other
place within the continental United States of America designated by
Seller to Buyer at least five (5) business days prior to the Closing
Date);
(b) Such evidence of compliance, satisfaction and performance by
Buyer with or of all representations, warranties, covenants and
agreements of Buyer made at or as of the Closing Date or to be
performed or satisfied at or prior to the Closing Date as Seller may
reasonably request at least five (5) days prior to the Closing Date;
and
(c) Evidence of insurance covering Buyer for Buyer's Property
Interest, to the satisfaction of Seller, effective as of Closing.
ARTICLE XI
EFFECT OF CLOSING
11.1 Buyer Ownership of Assets. Following Closing, Buyer shall own
Buyer's Property Interest. As of Closing, Buyer, as the sole owner, shall
be solely responsible for all operation, maintenance, repairs and
replacement of Buyer's Property Interest, and all of Seller's obligations,
or rights to operate, maintain, repair or replace Buyer's Property Interest
shall forever terminate.
-21-
<PAGE>
11.2 Imbalances. Any imbalances with respect to transportation of
gas for others that arise or exist with respect to Line AM-4 prior to the
Closing Date are, and shall remain, the sole responsibility of Buyer;
provided, however, this provision shall not affect Seller's rights to
require Buyer to correct any imbalances which exist at Closing and which
are attributable to Buyer or Buyer's Affiliates.
11.3 Termination of Existing Agreements. As of the Closing, this
Agreement, the Agreement for Purchase and Sale of Assets and the Operating
Agreement pertaining to the "Kentucky System" as defined in those two
agreements (collectively the "E-Line Agreements"), shall constitute the
entire agreement between the parties and supersede all other prior
agreements, representations and understandings, written or oral, pertaining
to the sale, operation and maintenance of the facilities sold thereunder
and the matters agreed to therein, unless specifically excepted, including,
but not limited to, any and all prior agreements requiring Seller to
provide discounted transportation to The Cincinnati Gas & Electric Company
and/or to The Union Light, Heat and Power Company ("ULHP"); provided, that
nothing in this Agreement is intended to waive, release or impair any of
the parties' rights or remedies under the E-Line Agreements. Consequently,
the Stipulation and Agreement and Precedent Agreement between Columbia, The
Cincinnati Gas & Electric Company, ULHP and Tennessee Gas Pipeline Company
dated January 25, 1987 shall be deemed terminated as of the Closing,
except for the first sentence in paragraph (6), and all of
-22-
<PAGE>
paragraphs (7) and (8). Nothing contained in this Agreement or the E-Line
Agreements shall affect the parties' respective rights, claims and defenses
in connection with pre-petition obligations or agreements between the
parties, if any, which are or may be subject to Seller's bankruptcy
proceeding before the United States Bankruptcy Court for the District of
Delaware.
ARTICLE XII
SURVIVAL OF OBLIGATIONS AND INDEMNITY
12.1 Survival. All representations, warranties and covenants made by
the parties hereto in this Agreement in Articles IV, V and VII shall
survive the execution and delivery of this Agreement and all closing
documents, but shall not survive past the Closing.
12.2 Indemnity By Seller. Seller agrees to indemnify Buyer as
follows:
(a) Seller hereby indemnifies and agrees to hold harmless Buyer
and its officers, directors, employees, representatives and agents
from and against any and all claims, demands, causes of action,
damages, penalties, liabilities, and costs and expenses imposed upon
or incurred by Buyer related thereto (of whatsoever nature or
character, whether known or unknown, whether arising out of contract,
tort, misrepresentations, violations of Law or otherwise and
regardless of applicable insurance coverage), arising or accruing with
respect to any breach by Seller prior to the Closing Date of any of
its representations, warranties, covenants or agreements under this
Agreement.
(b) No Indemnity for Latent Defects, Environmental Matters or
Post-Closing Events. Notwithstanding any express or implied term of
this Agreement, Seller shall not be required to indemnify nor hold
harmless Buyer, its officers, directors, employees, representatives or
agents from any claim, demand, cause of action, damage, penalty,
liability or related cost and expense imposed upon or incurred by
Buyer related thereto with respect to: (i) that which arises or
accrues as a result of any latent defect pertaining to Line AM-4; (ii)
that which arises or accrues as a result of the violation of any law
designed to protect human health and the
-23-
<PAGE>
environment, or the disposal or treatment of any substance, in
connection with Line AM-4; or (iii) that which arises or accrues after
the Closing Date pertaining to Line AM-4.
(c) Seller shall have no liability to Buyer under this section
12.2 to the extent that any officer, director, or any employee at a
managerial or higher level, or agent of Buyer ("Buyer's Agent"), who
in each case has actual knowledge of the terms and provisions of this
Agreement: (i) had actual knowledge of the falsity of such
representation or of the breach of such warranty when made; or (ii)
fails to give written notice to Seller of the breach promptly after
Buyer or Buyer's Agent acquires such actual knowledge.
(d) The sole and exclusive remedy of Buyer with respect to the
breach of any representation, warranty, covenant or agreement made by
Seller in this Agreement, shall be a claim pursuant to Section 12.2(a)
and provided Buyer has provided Seller with written notice of such
claim promptly after the facts providing the basis for such claim are
known by Buyer. If such claim involves a claim by a third party
against Buyer, Seller may, at its sole discretion, assume, at its
expense, the defense of the claim by the third party, which shall not
effect any indemnification obligation under this Agreement.
12.3 Indemnity By Buyer. Buyer agrees to indemnify Seller as follows:
(a) Buyer hereby indemnifies and agrees to hold harmless Seller
and its officers, directors, employees, representatives and agents
from and against any and all claims, demands, causes of action,
damages, penalties, liabilities, costs and expenses imposed upon or
incurred by Seller related thereto (of whatsoever nature or character,
whether known or unknown, whether arising out of contract, tort,
misrepresentations, violations of Law or otherwise and regardless of
applicable insurance coverage), arising or accruing with respect to
any breach by Buyer prior to the Closing Date of any of its
representations, warranties, covenants or agreements under this
Agreement.
(b) Buyer shall have no liability to Seller under this section
12.3 to the extent that any officer, director, or any employee at a
managerial or higher level, or agent of Seller ("Seller's Agent"), who
in each case has actual knowledge of the terms and provisions of this
Agreement: (i) had actual knowledge of the falsity of such
representation or of the breach of such warranty when made; or (ii)
fails to give written notice to Buyer of the breach promptly after
Seller or Seller's Agent acquires such actual knowledge.
-24-
<PAGE>
(c) The sole and exclusive remedy of Seller with respect to the
breach of any representation, warranty, covenant or agreement made by
Buyer in this Agreement, shall be a claim pursuant to Section 12.3(a)
and provided Seller has provided Buyer with written notice of such
claim promptly after the facts providing the basis for such claim are
known by Seller.
(d) No Indemnity for Post-Closing Events. Buyer shall not be
required to indemnify nor hold harmless Seller, its officers,
directors, employees, representatives or agents from any claim,
demand, cause of action, damage, penalty, liability or related cost
and expense imposed upon or incurred by Seller related thereto with
respect to that which arises or accrues after the Closing Date
pertaining to Line AM-4.
ARTICLE XIII
CASUALTY LOSS AND CONDEMNATION
13.1 Right to Terminate. If prior to the Closing Date any part of
the Assets having a value in excess of $1,000,000 shall be destroyed by
fire or other casualty or if any part of the Assets having a value in
excess of $50,000 shall be taken in condemnation or under the right of
eminent domain or if proceedings for such purposes shall be pending or
threatened, or if any casualty or taking occurs or is pending or threatened
which causes or could cause operation of any part of Line AM-4 to be
shutdown or curtailed for a period exceeding five (5) days, Buyer at its
option may terminate this Agreement.
ARTICLE XIV
DEFAULT AND REMEDIES
14.1 Termination. If Buyer, due to its bad faith, fails to satisfy
its covenants and obligations under this Agreement thereby resulting in the
inability of Buyer and Seller to consummate the Closing as set forth in
Section 10.1, Seller's obligations under the July 19, 1989 letter
agreements and all prior letter agreements
-25-
<PAGE>
pertaining to Buyer's acquisition of Buyer's Property Interest shall be
considered fulfilled and Seller may, at its sole option, terminate this
Agreement, and any and all prior letter agreements or other agreements
requiring Seller to provide discounted transportation to The Cincinnati Gas
& Electric Company and/or to The Union Light, Heat and Power Company. If
Seller, due to its bad faith, fails to satisfy its covenants and
obligations under this Agreement thereby resulting in the inability of
Buyer and Seller to consummate the Closing as set forth in Section 10.1,
Buyer may, at its sole option, terminate this Agreement, and Seller's
obligations under any and all prior letter agreements or other agreements
requiring Seller to provide discounted transportation to The Cincinnati Gas
& Electric Company and/or to The Union Light, Heat and Power Company shall
be unaffected.
14.2 Bankruptcy Proceeding. Buyer understands that Seller is currently
a debtor-in-possession subject to the jurisdiction of the United States
Bankruptcy Court for the District of Delaware, which court must approve
this Agreement, the transactions contemplated therein, and the release of
the Columbia Encumbrances as they relate to Buyer's Property Interest. In
the event Seller is unable to obtain such court approval(s), Seller may, at
its sole option, terminate this Agreement.
14.3 Remedies. If this Agreement is terminated pursuant to this
Article, each party shall bear its own respective costs and expenses
incurred in connection with the underlying transactions contemplated by
this Agreement, including its own consultants'
-26-
<PAGE>
fees, attorneys' fees, accountants' fees, and other similar costs and
expenses. The prevailing party in any proceeding brought under or with
relation to this Agreement or transaction shall be entitled to recover
costs and reasonable attorneys' fees incurred by such party in connection
therewith from the non-prevailing party.
ARTICLE XV
ALTERNATE DISPUTE RESOLUTION (ARBITRATION)
Any dispute between Seller and Buyer that arises under or relates to
this Agreement and that the parties cannot resolve between then shall be
resolved exclusively and finally in arbitration by a panel of three
arbitrators. In the event of such arbitration:
(a) except as provided in this Article XV, the procedural rules
(including discovery rules) governing the arbitration shall be those
of the American Arbitration Association as then in effect;
(b) the site of the arbitration shall be Charleston, West
Virginia;
(c) the Seller shall be entitled to choose a single arbitrator
(the "Seller's Arbitrator") and the Buyer shall be entitled to choose
a single arbitrator (the "Buyer's Arbitrator");
(d) the Seller's Arbitrator and the Buyer's Arbitrator shall
agree upon and choose the third arbitrator; and
(e) if Seller's Arbitrator and the Buyer's Arbitrator are unable
to agree on the choice of the third arbitrator, the parties shall
petition the applicable court of general jurisdiction in Charleston,
West Virginia to choose the third arbitrator.
-27-
<PAGE>
ARTICLE XVI
MISCELLANEOUS
16.1 Further Assurances and Records. After the Closing, each of the
parties will execute, acknowledge and deliver to the other such further
instruments and conveyances, and take such other action as may be
reasonably requested in order to more effectively assure to said party all
of the respective properties, rights, titles, interests, estates, licenses,
permits and privileges intended to be assigned and delivered in
consummation of the transactions contemplated hereby.
16.2 Notices. All communications required or permitted under this
Agreement shall be in writing and, if given by telegram, telecopy, or telex
shall be deemed received when sent (with appropriate confirmation of
receipt obtained); if personally delivered, shall be deemed received upon
such delivery to the address shown (with appropriate confirmation of
receipt obtained); and if mailed, shall be deemed to have been received
three days after the date when sent by first class, postage prepaid,
registered or certified mail, addressed as follows:
If to Seller: Columbia Gas Transmission Corporation
Post Office Box 1273
1700 MacCorkle Avenue, S.E.
Charleston, West Virginia 25325-1273
Attention: Glen L. Kettering
Telecopy: 304-357-3206
If to Buyer: The Union Light, Heat and Power Company
139 E. Fourth Street
Cincinnati, Ohio 45202
Attention: George H. Stinson
Telecopy: 513-287-2938
-28-
<PAGE>
Any party may, by written notice so delivered to the other, change the
address to which delivery shall thereafter be made.
16.3 Incidental Expenses. Each party shall bear its own respective
costs and expenses incurred in connection with the closing of this
transaction, including state or local taxes, its own consultants' fees,
attorney's fees, accountants' fees, and other similar costs and expenses.
16.4 Entire Agreement and Amendment. This Agreement and the E-Line
Agreements (as defined in Section 11.3 herein) shall constitute the entire
agreement between the parties and, upon Closing, shall supersede all other
prior agreements, representations and understandings, written or oral,
pertaining to the sale, operation and maintenance of the facilities sold
thereunder and the matters agreed to therein, unless specifically excepted,
including, but not limited to, any and all prior agreements requiring
Seller to provide discounted transportation to The Cincinnati Gas &
Electric Company and/or to ULHP; provided that nothing in this Agreement is
intended to waive, release or impair any of the parties' rights or remedies
under the E-Line Agreements. Any modifications, amendments or changes to
this Agreement shall be binding upon the parties only if mutually agreed
upon in writing by the parties. Consequently, the Stipulation and Agreement
and Precedent Agreement between Columbia, The Cincinnati Gas & Electric
Company, ULHP and Tennessee Gas Pipeline Company dated January 25, 1987
shall be deemed terminated upon Closing, except for the first sentence in
paragraph (6), and all of paragraphs (7) and (8).
-29-
<PAGE>
Nothing contained in this Agreement or the E-Line Agreements shall affect
the parties' respective rights claims and defenses in connection with other
pre-petition obligations or agreements between the parties, if any, which
are or may be subject to Seller's bankruptcy proceedings before the United
States Bankruptcy Court for the District of Delaware.
16.5 Governing Law. This Agreement shall be governed and construed
and enforced in accordance with the Laws of the State of Kentucky.
16.6 Exhibits. All Exhibits hereto which are referred to herein are
hereby made a part hereof and incorporated herein by reference.
16.7 Time of the Essence. Time is of the essence in this Agreement in
all respects.
16.8 Counterparts. This Agreement may be executed in any number of
counterparts, and each and every counterpart shall be deemed for all
purposes one agreement.
16.9 Assignment. None of the parties hereto may assign this Agreement
or its rights hereunder, whether in whole or in part, without the prior
written consent of the other parties hereto.
16.10 Waiver. Any of the terms, provisions, covenants,
representations, warranties or conditions hereof may be waived only by a
written instrument executed by the party waiving compliance. The failure of
any party at any time or times to require performance of any provision
hereof shall in no manner affect the
-30-
<PAGE>
right to enforce the same. No waiver by any party of any condition, or of
the breach of any term, provision, covenant, representation or warranty
contained in this Agreement, whether by conduct or otherwise, in any one or
more instances, shall be deemed to be or construed as a further or
continuing waiver of any such condition or breach or a waiver of any other
condition or of the breach of any other term, provision, covenant,
representation or warranty.
16.11 Binding Effect. All the terms, provisions, covenants,
representations, warranties and conditions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and assigns.
16.12 Section Headings. The section headings contained herein are for
purposes of convenience only and shall not be deemed to constitute a part
of this Agreement or to affect the meaning or interpretation of this
Agreement in any way.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above
written.
COLUMBIA GAS TRANSMISSION CORPORATION
By: //Glen L. Kettering//
-------------------------------
Name: Glen L. Kettering
-------------------------------
Title: Senior Vice President
-------------------------------
"Seller"
-31-
<PAGE>
KO TRANSMISSION COMPANY
By: //George H. Stinson//
-------------------------------
Name: George H. Stinson
-------------------------------
Title: Vice President
-------------------------------
"Buyer"
THE CINCINNATI GAS & ELECTRIC COMPANY
By: //George H. Stinson//
-------------------------------
Name: George H. Stinson
-------------------------------
Title: Vice President
-------------------------------
THE UNION LIGHT, HEAT AND POWER
COMPANY
By: //George H. Stinson//
-------------------------------
Name: George H. Stinson
-------------------------------
Title: Vice President
-------------------------------
-32-
<PAGE>
EXHIBITS
A -- Map of Relevant Portion of Line AM-4
B -- Description of Relevant Portion of Line AM-4
C -- EPA Affidavit of Buyer
-33-
<PAGE>
AGREEMENT FOR PURCHASE AND SALE OF LINE AM-4
EXHIBIT A
Map Showing Relevant Portion of Line AM-4 Being Sold
The map details the path of Line AM-4 from Cold Spring, Kentucky to
Cincinnati, Ohio, a distance of approximately 2.25 miles. For a more
detailed description, see Exhibit B.
<PAGE>
AGREEMENT FOR PURCHASE AND SALE OF LINE AM-4
EXHIBIT B
COLUMBIA GAS TRANSMISSION CORPORATION
PROPOSED SALE TO THE CINCINNATI GAS & ELECTRIC COMPANY
AND THE UNION LIGHT HEAT AND POWER COMPANY
OF 100% UNDIVIDED INTEREST OF AM-4
NORTH OF COLD SPRING MEASURING STATION
Facility Description
- -------- -----------
Line AM-4 Beginning in the Town of Cold Spring in Campbell County,
Kentucky at the 24" x 24" x 24" tee immediately downstream
of the 16" valve number 151 running in a northwesterly
direction through Campbell County, crossing the Ohio River
and terminating with its connection to Cincinnati Gas &
Electric Company near the City of Cincinnati in Hamilton
County, Ohio a distance of approximately 2.25 miles of 24"
pipe and four (4) 0.44 miles of 12" pipe river crossing.
<PAGE>
AGREEMENT FOR PURCHASE AND SALE OF LINE AM-4
EXHIBIT C
AFFIDAVIT
- ---------
STATE OF OHIO )
COUNTY OF HAMILTON ) SS:
George H. Stinson, being first duly sworn, deposes and says:
1. He is the Vice President of KO Transmission Company ("KO
Transmission"), located in Cincinnati, Ohio.
2. KO Transmission has executed an "Agreement for Purchase and Sale
of Line AM-4" for the purchase of certain pipeline facilities, being more
particularly described on the attached from Columbia Gas Transmission
Corporation (Columbia).
3. KO Transmission has reviewed a document dated October 24, 1990,
entitled "Technical Guidance for the Abandonment in Place of Interstate
Natural Gas Pipeline Systems" (the Guidance) developed by the United States
Environmental Protection Agency (EPA).
4. As transferee of said pipeline facilities from Columbia, KO
Transmission avers that it will abide by the terms of the Guidance without
deviation (modification, addition, or deletion) issued originally to
Columbia for the purpose of classifying these former portions of the
Columbia system according to their level of PCB contamination.
5. KO Transmission's averment is made with the understanding, as
specified in the Guidance, that if KO Transmission so abides by the terms
of the Guidance, EPA will recognize the results of the system
classification for the purpose of determining the regulatory status of the
portion of the system transferred to KO Transmission and subsequently
abandoned in place based upon current, rather than historical levels of PCB
contamination.
Further affiant sayeth naught.
KO TRANSMISSION COMPANY
By: //George H. Stinson//
-----------------------------------------
Name: George H. Stinson
-----------------------------------------
Title: Vice President of KO Transmission Company
-----------------------------------------
Subscribed and sworn to before me this 22nd day of July, 1994.
//John G. Banner//
------------------
My commission expires:
EXHIBIT H-3
GAS TRANSPORTATION AGREEMENT
BETWEEN
THE CINCINNATI GAS & ELECTRIC COMPANY
AND
THE UNION LIGHT, HEAT AND POWER COMPANY
Dated: March 9, 1987
<PAGE>
INDEX
-----
ARTICLE I Definitions
ARTICLE II Transportation Service
ARTICLE III Scheduling and Transportation
Limitations
ARTICLE IV Pressure
ARTICLE V Term of Agreement
ARTICLE VI Rates and Charges
ARTICLE VII Measurement
Article VIII Quality
Article IX Billing and Payment
Article X Possession and Warranty of Title
ARTICLE XI Force Majeure
ARTICLE XII Taxes
ARTICLE XIII Assignments
ARTICLE XIV Laws and Regulations
ARTICLE XV Waiver
ARTICLE XVI Miscellaneous
<PAGE>
GAS TRANSPORTATION AGREEMENT
BETWEEN
THE CINCINNATI GAS & ELECTRIC COMPANY
AND
THE UNION LIGHT, HEAT AND POWER COMPANY
THIS AGREEMENT, made and entered into this ninth day of
March, 1987, by and between The Cincinnati Gas & Electric Company, an
Ohio corporation, hereinafter referred to as "Transporter, and The
Union Light, Heat and Power Company, a Kentucky corporation,
hereinafter referred to as "Customer,"
WITNESSETH:
WHEREAS, Customer has access to natural gas supplies which
cannot be moved into its system through its existing facilities; and
WHEREAS, Transporter has capacity within its gas distribution
system which will allow it to transport natural gas for the account of
Customer; and
WHEREAS, Customer qualifies as a local distribution company
within the meaning of Section 2(17) of the Natural Gas Policy Act of
1978 (NGPA); and
WHEREAS, Transporter has filed for and received blanket
certificate authority pursuant to Section 7(c) of the Natural Gas Act
and Section 284.224 (previously Section 284.222) of the Commission's
Regulations under the Natural Gas Policy Act to perform the
transportation services hereinafter described in accordance with the
FERC's Order Issuing Certificate dated June 24, 1985 in Docket No.
CP85-191-000.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained, the parties hereto covenant and
agree as follows:
ARTICLE I
Definitions:
1.1 The term "day" shall mean a period of twenty-four (24)
consecutive hours, beginning and ending at 8:00 a.m. local time.
1.2 The term "month" shall mean the period beginning at 8:00 a.m.
on the first day of the calendar month and ending at 8:00 a.m. on the
first day of the next succeeding calendar month.
1.3 The term "year" shall mean a period of three hundred
sixty-five (365) consecutive days beginning with the date of first
delivery of gas under this Agreement, or on any anniversary thereof;
provided, however, that any such year which contains a
<PAGE>
date of February 29 shall consist of three hundred sixty-six (366)
consecutive days.
1.4 The term "gas" shall include natural gas, including
associated liquefiable hydrocarbons produced from gas wells, oil well
gas produced in association with crude oil, and synthetic or substitute
natural gas.
1.5 The term "cubic foot of gas" shall mean the volume of gas
which would occupy one (1) cubic foot of space when such gas is at a
temperature of sixty (60) degrees Fahrenheit and at a pressure of
fourteen and seventy-three hundredths (14.73) pounds per square inch
absolute.
1.6 The term "Mcf" is the abbreviation employed to denote one
thousand (1,000) cubic feet of gas.
1.7 The term "Btu" is the abbreviation employed to denote a
British thermal unit.
1.8 The term "MMBtu" is the abbreviation employed to denote
1,000,000 Btu.
1.9 The term "quantity of gas" shall mean the number of units of
gas expressed in MMBtu unless otherwise specified.
1.10 The words "equivalent quantities" shall mean quantities of
gas of equal thermal content as determined by the product of their
volumes and heating values as defined above.
ARTICLE II
Transportation Service
2.1 Transporter will receive up to 100,000 MMBtu per day of
natural gas into its system on behalf of Customer, at Transporter's
Fernald Station and/or Butler Station receipt points from Texas Gas
Transmission Corporation, ("Texas Gas"), or such other receipt points
as may mutually agreed upon, and will physically re-deliver to Customer
or re-deliver by displacement, on an interruptible basis, an equivalent
quantity at the interconnection of Transporter's and Customer's
facilities at Anderson Ferry, Ohio, which quantity will be hereinafter
be referred to as Contract Demand.
2.2 Should Customer's delivery to Transporter at the Point(s) of
Receipt on any day exceed the Contract Demand, Transporter will in good
faith attempt to accommodate the same, such decision to be solely
within the judgment and discretion of Transporter.
2.3 Transporter shall have the right, at its sole discretion, to
curtail or discontinue the transportation and delivery of natural gas
to Customer hereunder at any time.
-2-
<PAGE>
ARTICLE III
Scheduling and Transportation Limitations
3.1 Customer shall be obligated to, on or before the 25th day of
each month, furnish Transporter with a schedule of estimated monthly
and daily quantities of gas it desires to have transported during the
upcoming month.
3.2 Customer shall give Transporter at least twenty-four (24)
hours prior notice when Customer desires to change the quantities of
gas it has scheduled for delivery by Transporter. Transporter may waive
such notice requirements, if, in Transporter's sole judgment, operating
conditions permit such waiver.
3.4 Customer agrees to indemnify and hold harmless Transporter
from all claims, suits, damages or actions arising from the failure of
Transporter to receive quantities of gas nominated by Customer, or as a
result of Transporter's exercise of its right to refuse transportation
pursuant to Section 2.4.
ARTICLE IV
Pressure
4.1 Customer shall cause the gas to be delivered to Transporter
at the Points of Receipt at pressures sufficient to allow the gas to
enter Transporter's system, provided, however, that the pressure of gas
delivered by Customer shall not exceed the maximum allowable operating
pressures (MAOP) applicable to Transporter's facilities. If the MAOP of
those facilities is subsequently reduced or increased, the maximum
pressure of the gas received by Transporter at the Points of Receipt
shall be correspondingly reduced or increased upon notification by
Transporter to Customer.
4.1 Transporter shall deliver the gas transported hereunder for
the account of Customer at the Point of Delivery at the varying
pressures that may exist on Transporter's pipeline system from time to
time; provided, however, that the pressure of the gas delivered by
Transporter shall not be more than the MAOP of Transporter's pipeline.
If the MAOP of Transporter's pipeline is subsequently reduced or
increased, then the maximum pressure of gas delivered by Transporter
for the account of Customer at the Point of Delivery shall be
correspondingly reduced or increased upon notification by Transporter
to Customer.
ARTICLE V
Term of Agreement
The initial term of this agreement shall be for a period of
one (1) year from the date that transportation service
-3-
<PAGE>
hereunder commences. Thereafter, it will continue from month to month
unless cancelled by either party upon thirty (30) days written notice.
ARTICLE VI
Rates and Charges
6.1 Customer agrees to pay Transporter for all gas delivered
hereunder at a rate equivalent to that rate charged by Transporter for
a similar wholesale transportation service provided by Transporter on
behalf of Oxford Natural Gas Company. The currently effective rate for
such service consists of a monthly fixed charge of $4184, and a
commodity charge of $0.0363 per dekatherm transported. Said charge may
be adjusted from time to time to reflect changes in the rate charged by
Transporter to Oxford Natural Gas Company.
6.2 Transporter may also file with the Federal Energy Regulatory
Commission, or other body having jurisdiction, for a change in the
rates and charges effective as to Customer; provided, however, that
should it become unnecessary so to file, Transporter shall have the
right to increase the rates and charges effective as to Customer.
ARTICLE VII
Measurement
7.1 Transporter and Customer must agree to all matters pertaining
to measurement practices, procedures, equipment and installations, not
specifically covered herein.
7.2 The unit of volume for the purpose of measurement hereunder
shall be one cubic foot of gas at a temperature of sixty degrees (60)
Fahrenheit and at a pressure of fourteen and seventy-three hundredths
(14.73) pounds per square inch absolute. The average atmospheric
pressure for the Point(s) of Receipt and for the Point of Delivery
shall be assumed to be 14.4 Psi.
7.3 The specific gravity of the gas shall be determined by one of
the following methods, mutually acceptable to both parties: (a) by
means of a recording gravitometer of standard manufacture utilizing the
arithmetical average of the hourly specific gravity recorded each day
for computing the quantity of gas for that day, or (b) by continuous
sampling, or (c) if (a) or (b) is not feasible, by use of a portable
specific gravity balance of standard manufacture acceptable to both
parties. Such determination to be made at least once every thirty (30)
days.
7.4 Temperature of gas transported hereunder shall be determined
by a recording thermometer continuously used and
-4-
<PAGE>
installed so as to record properly the temperature of the gas flowing
through each meter.
7.5 The arithmetic average of the hourly temperature, the factor
for specific gravity according to the latest test therefore, and the
corrections for deviation from Boyle's Law applicable during each
metering period shall be used to make proper computations of gas
volumes measured hereunder.
7.6 Orifice meters, if selected for measurement herein, shall be
installed, operated, and volumes computed in accordance with the
American Gas Association publication, Orifice Metering of Natural Gas,
Gas Measurement Committee Report No. 3, 1985, and in such amendments
and revisions thereto and superseding reports thereof as are
recommended by such committee and mutually agreed to by the parties
hereof.
7.7 Turbine meters, if selected for measurement herein, shall be
installed, operated, and volumes computed in accordance with the
American Gas Association publication, Measurement of Fuel Gas by
Turbine Meters, A. G. A. Measurement Committee Report No. 7, and in
such amendments and revisions thereto and superseding reports thereof
as are recommended by such committee.
7.8 Other types of meters, if selected for measurement herein,
shall be installed, operated, and volumes computed in accordance with
any applicable American Gas Association and manufacturer publication
consistent with industry accepted practices for gas volume measurement.
7.9 The accuracy of all measuring equipment shall be verified at
reasonable intervals, but neither party shall be required to verify the
accuracy of the equipment more frequently than once in any thirty (30)
day period. If either party desires a special test of any measuring
equipment, it will promptly notify the other party and the parties
shall then cooperate to secure a prompt verification of the accuracy of
such equipment. The expense of any such special test shall be borne by
the party requesting such test.
7.10 If, upon test, any measuring equipment is found to be in
error, such errors shall be taken into account in a practical manner in
computing the deliveries. If the resultant aggregate error in the
computed receipts is not more than two percent (2%), then previous
receipts shall be considered accurate. All equipment shall, in any
case, be adjusted at the time of test to record correctly. If, however,
the resultant aggregate error in computed receipts exceeds two percent
(2%) of a recording corresponding to the average hourly rate of gas
flow for the period since the last preceding test, the previous
recordings of such equipment shall be corrected to zero error for any
period which is know definitely or agreed upon, but in case the period
is not known definitely or agreed upon, such correction shall be for a
period extending over one-half of the time elapsed since
-5-
<PAGE>
the date of the last test, not exceeding a correction period of sixteen
(16) days.
7.11 In the event a meter is out of service, or registering
inaccurately, the volume of gas delivered shall be determined:
(a) by using the registration of any check meter or
meters, if installed and accurately registering; or,
in the absence of (a),
(b) by correcting the error if the percentage of error is
ascertainable by calibration tests or mathematical
calculations; or in the absence of both (a) and (b),
then,
(c) by estimating the quantity of delivery as may be
derived by a method or methods mutually acceptable to
both parties.
7.12 The total "heating value" of gas in British thermal units per
cubic foot shall be determined by the party performing measurement
herein as determined by a mutually agreed method of general use in the
gas industry.
ARTICLE VIII
Quality
8.1 Gas received or delivered hereunder shall be merchantable
natural gas; shall be commercially free from dust, gums, gum-forming
constituents, gasoline, water, or any other substance of any kind which
may become separated from the gas in the course of transportation
through Customer's, Customer's agent's or Transporter's pipeline; shall
not contain more than seven (7) pounds of water per million cubic feet
of gas; shall not contain more than one (1) grain of hydrogen sulphide
per one hundred (100) cubic feet of gas nor more than twenty (20)
grains of total sulphur per one hundred (100) cubic feet of gas and
mercaptan sulphur shall not constitute any portion of the allowable
total sulphur content; shall not be more than two percent (2%) by
volume of carbon dioxide nor more than one-half percent (0.5%) by
volume of oxygen; shall not be at a temperature of more than one
hundred twenty degrees (120) Fahrenheit or no less than forty degrees
(40) Fahrenheit; and shall contain not less than nine hundred
sixty-seven (967) British thermal units per cubic foot.
8.2 Customer shall not permit or cause the injection of oxygen or
any other substance which will dilute such gas, even if such dilution
does not render the gas unable to meet the quality specifications
outlined in subsection (a) above.
-6-
<PAGE>
8.3 Neither party shall be obligated to receive and transport gas
hereunder that fails to conform to the foregoing requirement.
8.4 Transporter agrees to odorize the natural gas delivered
hereunder, and to maintain any odorant levels in such natural gas until
such time that such gas is delivered to customer. Notwithstanding
anything to the contrary in this Agreement, Customer agrees to
indemnify and hold harmless Transporter, its officers, agents,
employees and contractors against any liability, loss or damage,
including costs and attorneys' fees, whether or not such liability,
loss or damage arises out of any demand, claim, action, cause of
action, and/or suit brought by Customer or by any person, association
or entity, public or private, that is not a party to this Agreement,
where such liability, loss or damage is suffered by Transporter, its
officers, agents, employees and/or contractors as a direct or indirect
result of any actual or alleged failure by Customer, Transporter and/or
any other person, association or entity, public or private, to odorize
the natural gas or product after delivery hereunder or to maintain any
odorant levels in such natural gas or product.
ARTICLE IX
Billing and Payment
9.1 On or before the fifteenth (15th) day of each month,
Transporter shall render to Customer a statement of (a) the total
quantity of gas delivered to Transporter by Customer at the Point(s) of
Receipt hereunder during the preceding month, (b) the total quantity of
gas delivered to Customer by Transporter at the Point of Delivery
hereunder during the preceding month, and (c) the dollar amount due
Transporter based upon the quantity of gas delivered by Transporter to
Customer at the Point of Delivery hereunder during the preceding month.
When information necessary for billing purposes is in the
control of Customer, Customer shall furnish such information to
Transporter on or before the fifth (5th) day of the month.
Both Transporter and Customer shall have the right to examine
at reasonable times, books, records, and charts of the other to the
extent necessary to verify the accuracy of any statement, charge, or
computation made under or pursuant to the provisions hereof.
9.2 Payment by Customer to Transporter shall be due on the
twenty-fifth (25th) day of each month, except when such day is a
Saturday, Sunday, or bank holiday, in which case payment is due the
following business day. Payment shall be made for all natural gas
delivered to Customer by Transporter hereunder during the preceding
month, and billed by Transporter in a statement for
-7-
<PAGE>
such month according to the measurements, computations, and rates
provided herein.
If the presentation of a bill by Transporter is delayed after
the fifteenth (15th) day of the month, then the time of payment shall
be extended accordingly unless Customer is responsible for such delay.
Should Customer fail to pay all of the amount of any bill as
herein provided when such amount is due, interest on the unpaid portion
of the bill shall accrue, at the then effective prime interest rate
from the due date, until the date of payment. If such failure to pay
continues for thirty (30) days after payment is due, Transporter, in
addition to any other remedy it may have hereunder, may suspend further
delivery of the gas until such amount is paid; provided, however, that
if Customer in good faith shall dispute the amount of any such bill or
part thereof and shall pay to Transporter such amount as it concedes to
be correct and, at any time thereafter within thirty (30) days of a
demand made by Transporter, shall furnish good and sufficient surety
bond in an amount and with surety satisfactory to Transporter,
guaranteeing payment to Transporter of the amount ultimately found due
upon such bills after a final determination which may be reached either
by agreement or judgment of the courts, as may be the case, then
Transporter shall not be entitled to suspend further delivery of gas
unless and until default by made in the conditions of such bond.
9.3 Subject to the provisions of Article 7.10 hereof, if it shall
be found that at any time Customer has been overcharged or undercharged
under the provisions hereof and Customer shall have paid the bills
containing such overcharge or undercharge, then within thirty (30) days
after the final determination thereof, Transporter shall refund the
amount of any such overcharge and Customer shall pay the amount any
such undercharge. In the event an error is discovered in the amount
billed in any statement rendered by Transporter, such error shall be
adjusted within thirty (30) days of the determination thereof.
ARTICLE X
Possession and Warranty of Title
10.1 Each party to this Agreement shall be in control and
possession of all gas in that party's facilities. The receiving party
shall have no responsibility with respect to any gas deliverable under
this Agreement until such gas is received into its facilities or on
account of anything which may be done, happen or arise with respect to
such gas before such delivery. The delivering party shall have no
responsibility with respect to such gas after its delivery into the
facilities of the other party or on account of anything which may be
done, happen or arise with respect to such gas after such delivery.
-8-
<PAGE>
10.2 Customer hereby warrants that it will at the time of receipt
of gas by Transporter hereunder have good title to or the good right to
deliver all gas so made available and that all such gas is free from
all liens and adverse claims.
10.3 Customer agrees to indemnify Transporter and save it harmless
from all suits, actions, debts, accounts, damages, costs, losses and
expenses arising from or out of adverse claims of any and all persons
to the gas received and transported hereunder by Transporter or to all
royalties, taxes, license fees or charges thereon which may be levied
and assessed against Customer upon the transfer thereof to Transporter.
If any adverse claim of any character is asserted with respect to the
gas delivered hereunder, with respect to Customer's right to deliver
such gas, or with respect to Transporter's right to receive payment for
transporting such gas, either party shall have the right to retain any
amount of money up to the amount of such claim out of the money then or
thereafter payable to the other party hereunder. Such money shall be
retained without interest as security for the performance of the
obligations with respect to such claim until such claim has been
finally terminated or until bond has been furnished conditioned for
protection with respect to such claim in an amount and with sureties
satisfactory to the claimant.
ARTICLE XI
Force Majeure
11.1 If by reason of force majeure, either party hereto is unable
to carry out its obligations under this Agreement, and if such party
gives notice and particulars of such force majeure in writing to the
other party within a reasonable time after the occurrence of the cause
relied on, the obligations of the parties so far as and to the extent
that they are affected by such force majeure, shall be suspended during
the continuance of any inability so caused, but for no longer period;
and such cause shall so far as possible be remedied with all reasonable
dispatch, except as provided for in this Article XI hereof.
11.2 The term "force majeure," as used herein shall mean any and
all circumstances beyond the direct or reasonable control of either
party which would make performance of this Agreement impossible or
unsafe, and shall include, without limiting the foregoing, acts of God
such as landslides, earthquakes, lightning, storms (including but not
limited to hurricanes and hurricane warnings), crevasses, floods,
washouts, epidemics; acts of public enemies including wars, riots,
blockades; civil and military disturbances; insurrections, fires,
explosions, freezing; arrests and restraints of government, either
federal or state, civil or military; shutdowns for purposes of
necessary or required repairs, relocations, or construction of
facilities; any operational or mechanical failure such as breakage or
accident to machinery or lines of pipe, temporary losses of supply of
failure
-9-
<PAGE>
of surface equipment or pipelines; the necessity for testing pipeline
or other equipment as may be required by governmental authority or as
deemed necessary by the testing party for the safe operation thereof;
any failure to perform or to comply with any obligation or condition
of this Agreement due to the inability to obtain necessary materials,
supplies, permits, or labor; any industrial disturbance, including
strikes or lockouts; or any inability to obtain necessary
rights-of-way.
11.3 Force majeure affecting the performance hereunder by either
party, however, shall not relieve such party of liability in the event
of negligence or in the event of failure to use due diligence to remedy
the situation and to remove the cause in an adequate manner and with
all reasonable dispatch; and such causes or contingencies affecting
such performance shall not relieve either party from its obligations to
make payment as determined hereunder.
11.4 It is understood and agreed that the settlement of strikes,
lockouts, or controversies with landowners involving rights-of-way
shall be entirely within the discretion of the party having the
difficulty and that the above requirement that any force majeure shall
be remedied with all reasonable dispatch shall not require the
settlement of strikes, lockouts, or controversies with landowners
involving rights-of-way, by acceding to the demands of the opposing
party when such course is inadvisable in the discretion of the party
having the difficulty.
ARTICLE XII
Taxes
Customer agrees to reimburse Transporter for any and all
taxes, and any interest thereon, imposed by the federal government, any
state, or political subdivision thereof which tax Transporter is
obligated to pay or collect and remit by reason of the transportation
of gas for Customer pursuant to this Agreement.
ARTICLE XIII
Assignments
Neither party hereto shall assign this Agreement or any of
its rights or obligations hereunder without the consent of the other
party. Notwithstanding the foregoing, either party may assign its
right, title and interest in, to and by virtue of this Agreement,
including any and all extensions, renewals, amendments, and
supplements thereto, to a trustee or trustees, individual or corporate,
as security for bonds or other obligations or securities, without such
trustee or trustees assuming or becoming in any respect obligated to
perform any of the obligations of the assignor and, if any such trustee
be a corporation, without its being required by the parties hereto to
-10-
<PAGE>
qualify to do business in the state in which the performance of the
Agreement may occur, nothing contained herein shall require consent to
transfer this agreement by virtue of merger or consolidation of a party
hereto or a sale of all or substantially all of the assets of a party
hereto, or any other corporate reorganization of a party hereto.
ARTICLE XIV
Laws and Regulations
This Agreement, insofar as it is affected thereby, is subject
to all valid laws, rules, regulations and orders of all governmental
authorities having jurisdiction.
ARTICLE XV
Waiver
No waiver by either party of any one or more defaults by the
other in the performance of any provisions hereunder shall operate or
be construed as a waiver of any future default or defaults whether of a
like or a different character.
ARTICLE XVI
Miscellaneous
16.1 This Agreement is expressly made subject to Subpart G, Part
284, Subchapter I, Chapter I of Title 18 of the U.S. Code of Federal
Regulations, and subject to such other terms and conditions as the
Commission may, by rule or order, deem appropriate and in the public
interest.
16.2 Any notice, request, demand, statement, bill or payment
provided for in this Agreement, or any notice which any party may
desire to give to the other, shall be in writing and shall be
considered as duly delivered when mailed to the post office address of
the parties hereto as follows:
For Transporter
The Cincinnati Gas & Electric Company
Post Office Box 960
Cincinnati, Ohio 45201
Attn: Gas Supply Department, 2nd Floor
For Customer
The Union Light, Heat and Power Company
Post Office Box 960
Cincinnati, Ohio 45201
Attn: Gas Supply Department, 2nd Floor
-11-
<PAGE>
16.3 Modifications to the terms and provisions of this Agreement
shall become effective only upon the execution of a supplementary
written agreement.
16.4 This Agreement shall be governed by the laws of the State of
Ohio.
16.5 If the service contemplated hereunder has not commenced by
March 30, 1987, either party may terminate this Agreement. If at any
time during the term of this agreement, any governmental authority
having jurisdiction or control over the parties, their facilities or
gas supplies, this Agreement or any provision thereof, shall take any
action as to Customer or Transporter whereby the delivery, receipt and
use of gas as contemplated hereunder shall be proscribed or subjected
to conditions or restraints that in the sole judgment of the party
affected are unduly burdensome to that party, such party may terminate
this Agreement without further liability hereunder other than to
discharge obligations incurred prior to termination.
16.6 Transporter and Customer agree to file timely all statements,
notices, and petitions required under Subpart G of Part 284 or any
other applicable rules or regulations of any governmental authority
having jurisdiction which are issued pursuant to said Subpart G of Part
284 and to exercise due diligence to obtain all necessary governmental
approvals required for the implementation of this transportation
agreement. In the event that such approvals should be conditioned so as
to require a variance in the terms of this Agreement which would reduce
considerations bargained for or enlarge the obligations of Transporter
or Customer hereunder, then either party shall have the right to reject
such approvals.
16.7 This Agreement shall be binding upon and inure to the benefit
of the successors, assigns and legal representatives of the parties
hereto.
16.8 Customer shall be responsible for any charges or penalties
imposed upon Transporter by any delivering pipelines and incurred as a
result of the service provided under this agreement.
-12-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed by their respective representatives thereunto
duly authorized, on the day and year first above written.
THE CINCINNATI GAS & ELECTRIC COMPANY
By //C. Schmidt//
----------------------------------
Vice President
ATTEST: //D. R. Blum//
---------------------------------
Secretary
THE UNION LIGHT, HEAT AND POWER COMPANY
By //Jackson H. Randolph//
----------------------------------
President and CEO
ATTEST: //D. R. Blum//
-----------------------------
Secretary
-13-
EXHIBIT H-4
AGREEMENT BETWEEN THE CINCINNATI GAS & ELECTRIC
COMPANY AND THE UNION LIGHT, HEAT AND POWER COMPANY
REGARDING UNION COMPANY'S UNDERGROUND STORAGE CAVERN
This Agreement entered into on this 23rd day of May,
1961, between The Cincinnati Gas & Electric Company, an Ohio
corporation, hereinafter referred to as "Cincinnati" and The Union
Light, Heat and Power Company, a Kentucky corporation, hereinafter
referred to as "Union",
WITNESSETH THAT:
WHEREAS, Union and Cincinnati are public utilities
rendering gas service in their respective service areas in northern
Kentucky and southwestern Ohio, respectively, in the proximity of
Cincinnati, Ohio; and
WHEREAS, both Union and Cincinnati severally desire to
avail themselves of certain propane-air gas supplies to supplement on
peak days the natural gas that they severally purchase from Kentucky
Gas Transmission Corporation (KGT) and thereby hold to a minimum the
demand charges made against Union and Cincinnati by KGT under its
F.P.C. Gas Tariff; and
WHEREAS, Union has in its service area underground
formations for the construction of a mined cavern for storing liquid
propane that can be used to produce peak shaving propane-air gas; and
WHEREAS, it would not be economical for a company the
size of Union to construct such a cavern and its associated equipment
solely for its own use because of the high unit costs involved; and
WHEREAS, Union proposes to construct such a cavern and
facilities for the storage of liquid propane and for the production of
a maximum of 50,000 Mcf per day of propane-air gas near KGT's line AM-7
in the proximity of Erlanger, Kentucky and to provide therefrom
propane-air gas for its own use and also for delivery to Cincinnati
through approximately 5 miles of line AM-7 to be purchased for that
purpose; and
WHEREAS, Union proposes to complete the construction
of the cavern and facilities necessary to produce and deliver the
propane-air gas so as to be in operation during the next heating
season, i.e., by November 1, 1961; and
WHEREAS, as a result of the foregoing plans, Union and
Cincinnati have been able to avoid the necessity of requesting
additional peak day supplies of natural gas from KGT to the extent of
5,400 Mcf and 32,600 Mcf of Contract Demands, respectively; and
WHEREAS, the construction and operation of the cavern
and production facilities will provide economic peak shaving in the
public interest; and
WHEREAS, by virtue of the foregoing circumstances,
time is of the essence; and
WHEREAS, Union, Cincinnati and KGT have,
simultaneously with the execution of this agreement, entered into a
Precedent Agreement covering the sale and purchase of portions of line
AM-7;
NOW, THEREFORE the parties hereto agree with each
other as follows:
1. Union agrees to perform the following:
(a) Construct a mined cavern together with the
necessary pumps and appurtenances at an approximate
depth of 400 feet on a site to be purchased on
Amsterdam Road, said cavern to be of such size that it
can store approximately 7 million gallons of liquid
propane, and also construct suitable unloading
facilities to receive propane from public carriers.
(b) Lease or purchase certain real property near line
AM-7 north of Erlanger, Kentucky, and construct on
said property a propane-air gas plant and gas mixing,
regulating, measuring, and control equipment, together
with compressors, boilers, heater exchangers, water
supply, electric facilities, and necessary
appurtenances for producing approximately 50,000 Mcf
of propane-air gas in a 24 hour period.
(c) Construct a steel pipeline for transporting
liquid propane from the cavern site to said property
near line AM-7.
(d) Construct a lateral connection from the plant
outlet to line AM-7.
(e) Subject to the performance and satisfaction of
the provisions of the Precedent Agreement referred to
above, including regulatory approvals relating to the
proposed Agreements referred to therein, (1) purchase
and store, to the extent feasible, liquid propane or
other product in the above cavern for use in the
production of propane-air gas, of heat content as near
equal to that of the natural gas received from KGT as
operating equipment and interchangeability of gas will
permit, during peak periods of operation or
emergencies, (ii) operate and maintain, to the extent
feasible, all of the above cavern, pipeline, and gas
plant equipment for the production of such propane-air
gas, and (iii) deliver such propane-air gas to its own
system and to that of Cincinnati through the portion
of line AM-7 purchased by Union under said Precedent
Agreement, at the respective options of such companies
to the limit of 20% for Union, and 80% for Cincinnati,
of the propane-air gas producing capacity in any 24
hour period as metered at said plant.
(f) Obtain any necessary regulatory authorizations in
connection with the performance of this agreement.
2. Subject to the performance of said Precedent
Agreement, Cincinnati agrees to pay to Union starting with November,
1961 and continuing each month thereafter during the term of this
agreement, its proportionate share of all costs pertaining to the plant
and facilities constructed pursuant to this agreement, as described in
appended Exhibit A. Such monthly amount shall be paid on or before the
25th of each following month and shall consist of the following:
(a) A monthly amount based on estimated costs to be
adjusted each subsequent December to actual costs incurred
during the preceding 12 months ended November 30 consisting
of 1/12 of 80% (based on Cincinnati's requirement of 40,000
Mcf daily capacity out of a total of 50,000 Mcf daily plant
capacity) of the following items:
(i) Depreciation
An amount equal to the annual accrual for depreciation
applicable to the plant and facilities constructed
pursuant to this agreement, as recorded on Union's
books, the initial annual depreciation rates to be as
set forth on said Exhibit A.
(ii) Insurance
An amount equal to the total property insurance cost
applicable to said plant and facilities, as recorded
on the books of Union.
(iii) Return
An amount equal to six and three quarters percent (6-
3/4%) per annum of Union's "base for return" which
shall be an amount consisting of the original cost of
said plant and facilities, estimated, if not known, at
date of this contract and revised to actual amounts as
of November 30 of each calendar year, less the
accumulated provision for depreciation applicable
thereto, plus the average month end investment in
liquid propane carried in inventory during the 12
months ended the preceding November 30. Should any
large or costly additions or retirements be made in
any year during the term of this agreement, such
additions and retirements when recorded shall be
considered in determining a revised "base for return".
(iv) Land Rental
An amount equal to the total annual rental cost
applicable to said plant and facilities, as recorded
on the books of Union.
(v) Taxes
An amount equal to all taxes, fees or assessments
lawfully imposed upon Union by any authority which are
the result of or directly attributable to the
ownership, operation, maintenance or earnings of said
plant and facilities.
(vi) Maintenance Expense
An amount equal to the annual maintenance expenses
incurred by Union in maintaining said plant and
facilities as recorded on Union's books.
(b) A monthly amount comprising a portion of the
operation expenses, excluding insurance and land rentals,
incurred during the preceding month by Union in operating
said plant and facilities as recorded on its books. Such
portion shall be based on Cincinnati's annual usage of
propane-air gas related to the annual deliveries from the
plant during the 12 months ended the preceding November 30.
(c) The cost of liquid propane, based on the average
cost method of pricing inventory, attributable to Cincinnati
during the current month.
3. Subject to the performance of said Precedent
Agreement, Cincinnati also agrees to pay Union eighty percent (80%) of
all costs, including all court costs, counsel fees and expenses,
incurred by Union in the defense or adjustment of all actions or
proceedings brought and all claims and demands made growing out of the
operation or maintenance of said plant and facilities. Such amount
will be billed separately and paid by Cincinnati within 25 days of
receipt of such billing.
4. Subject to the performance of said Precedent
Agreement, Union will operate the cavern and related plant consistent
with generally accepted standards and will not be held responsible to
Cincinnati for interruptions or failures in service thereof due to
accidents, acts committed by others or acts of God.
5. This agreement shall become effective forthwith
and shall remain in full force and effect for 25 years after
November 1, 1961, and thereafter shall be automatically renewed from
year to year unless and until terminated by either party upon written
notice given to the other party at least 6 months prior to the
expiration of the original term or any such one year renewal term. It
shall be binding upon and inure to the benefit of the parties thereto
and successors and assigns. This agreement is made subject to the
jurisdiction of any governmental authority or authorities having
jurisdiction in the premises and the performance thereof shall be
subject to (a) the receipt of all regulatory approvals, in form and
substance satisfactory to the parties hereto, necessary to permit the
parties hereto to perform all the duties and obligations to be
performed by such parties hereunder and (b), in the instances
indicated, the performance of said Precedent Agreement.
6. In the event that the necessary regulatory
authorizations are not obtained or Union determines that it is not
feasible to complete the construction of said plant and facilities,
Union shall, to the extent possible, sell the property involved and
Cincinnati shall reimburse Union for 80% of the costs which it has
incurred less any proceeds from the sale.
In witness whereof, the parties hereto have caused
this to be duly executed on the 23rd day of May, 1961.
ATTEST: THE UNION LIGHT, HEAT AND
POWER
By
ATTEST: THE CINCINNATI GAS & ELECTRIC
COMPANY
By
Executive Vice President
<PAGE>
EXHIBIT
C
THE UNION LIGHT, HEAT AND POWER COMPANY
ENGINEERING COST ESTIMATES
PROPANE STORAGE CAVERN AND PLANT
Constance Cavern
Acquire Land for Cavern Site $ 14,200
Install Cavern Structures 845,100
Install Cavern Equipment 80,700
Overheads - Constance Cavern 45,400
Sub Total, Cavern $ 985,400
Erlanger Plant
Acquire Land Rights for 20 Acre Site $ 8,000
Install Plant Structures 240,000
Install Plant Equipment 987,600
Install Natural Gas Measuring &
Regulating Station 47,000
Install 66/4 KV Electric Substation 88,800
Acquire Right of Way for 17,000'
Propane Line 20,400
Install 17,000' of 8" Propane
Feedstock Line 113,400
Install 6" Water Main 3,700
Acquire Right of Way for 4,000'
Kentucky Feeder Main 4,700
Install 4,000' of 18" Kentucky
Feeder Main 59,500
Plant Accessory Equipment 3,800
Overheads - Erlanger Plant 351,528
Sub Total, Plant $1,928,428
Total Cavern and Plant $2,913,828
<PAGE>
The Union Light, Heat and Power Company
107 Brent Spence Square
Covington, Kentucky 41011
May 6, 1982
The Cincinnati Gas & Electric
Company
P.O. Box 960
4th & Main Streets
Cincinnati, Ohio 45201
Attention: Mr. J. H. Randolph
Re: AGREEMENT BETWEEN THE CINCINNATI GAS & ELECTRIC
COMPANY AND THE UNION LIGHT, HEAT AND POWER COMPANY
REGARDING UNION COMPANY'S UNDERGROUND STORAGE
CAVERN
Gentlemen:
The Union Light, Heat and Power Company (Union), as a result
of a recent Public Service Commission of Kentucky gas rate order dated
April 16, 1982 in Case No. 8373, herewith revises the "Return"
percentage as stated in Item (iii) of the cost allocation formula in
the subject agreement dated May 23, 1961, from six and three quarters
percent (6 3/4%) to ten and ninety-one hundredths percent (10.91%),
effective on and after April 12, 1982. The existing 80% allocation of
fixed costs to The Cincinnati Gas & Electric Company (Cincinnati) will
remain in effect.
This change is being made in order that the allocation of
Union's propane plant charges to Cincinnati will reflect an equitable
rate of return as approved by the Public Service Commission of
Kentucky.
Please indicate Cincinnati's acceptance and agreement to this
change by signing in the appropriate space provided below.
Very truly yours,
THE UNION LIGHT, HEAT AND POWER
COMPANY
By /s/ Paul W. Herking
Vice President
GEM:mlf
Agreed to this 7th day
of May, 1982.
THE CINCINNATI GAS & ELECTRIC
COMPANY
By /s/ Jackson H. Randolph
-----------------------
<PAGE>
February 7, 1985
The Cincinnati Gas & Electric
Company
P.O. Box 960
4th & Main Streets
Cincinnati, Ohio 45201
Attention: Mr. J. H. Randolph
Gentlemen:
Re: AGREEMENT BETWEEN THE CINCINNATI GAS & ELECTRIC
COMPANY AND THE UNION LIGHT, HEAT AND POWER COMPANY
REGARDING UNION COMPANY'S ERLANGER PROPANE PLANT
AND CONSTANCE CAVERN
The Union Light, Heat and Power Company (Union), as a result
of a recent Public Service Commission of Kentucky (PSCKY) gas rate
order dated October 25, 1984 in Case No. 9029, herewith revises the
"Return" percentage, referred to in Item (iii) of the cost allocation
formula in the subject agreement dated May 23, 1961, to twelve and
three hundredths percent (12.03%). The new return percentage will be
reflected in the monthly fixed charge billed to The Cincinnati Gas &
Electric Company (Cincinnati) effective on and after December 1, 1984.
This supersedes the Agreement that you accepted on May 7, 1982 which
showed a return of 10.91% (PSCKY Case No. 8373).
This change is being made in order that the allocation of
Union's propane plant charges to Cincinnati will reflect an equitable
rate of return as approved by the Public Service Commission of
Kentucky.
The existing 80% allocation of fixed costs to Cincinnati will
remain in effect.
Please indicate Cincinnati's acceptance and agreement to this
change by signing in the appropriate space provided below.
Very truly yours,
THE UNION LIGHT, HEAT AND POWER
COMPANY
By_____________________________
C. L. Schmidt
Vice President
Agreed to this 12th day
of February, 1985.
THE CINCINNATI GAS & ELECTRIC
COMPANY
By /s/ Jackson H. Randolph
<PAGE>
November 29, 1990
The Cincinnati Gas & Electric
Company
P.O. Box 960
4th & Main Streets
Cincinnati, Ohio 45201
Attention: Mr. J. H. Randolph
Gentlemen:
Re: AGREEMENT BETWEEN THE CINCINNATI GAS & ELECTRIC
COMPANY AND THE UNION LIGHT, HEAT AND POWER COMPANY
REGARDING UNION COMPANY'S ERLANGER PROPANE PLANT
AND CONSTANCE CAVERN
The Union Light, Heat and Power Company (Union), as a result
of a recent Public Service Commission of Kentucky (PSCKY) gas rate
order dated October 2, 1990 in Case No. 90-041, herewith revises the
"Return" percentage, referred to in Item (iii) of the cost allocation
formula in the subject agreement dated May 2, 1961, to eleven and
twenty-five hundredths percent (11.25). The new return percentage will
be reflected in the monthly fixed charge billed to The Cincinnati Gas &
Electric Company (Cincinnati) effective on and after December 1, 1990.
This supersedes the Agreement that you accepted on February 12, 1985
which showed a return of 12.03% (PSCKY Case No. 9029).
This change is being made in order that the allocation of
Union's propane plant charges to Cincinnati will reflect an equitable
rate of return as approved by the Public Service Commission of
Kentucky.
The existing 64% allocation of fixed costs to Cincinnati will
remain in effect.
Please indicate Cincinnati's acceptance and agreement to this
change by signing in the appropriate space provided below.
Very truly yours,
THE UNION LIGHT, HEAT AND POWER
COMPANY
By /s/ G. H. Stinson
Manager, Gas Operations
Agreed to this 30th day
of November, 1990.
THE CINCINNATI GAS & ELECTRIC
COMPANY
By /s/ J.H. Randolph
<PAGE>
January 6, 1995
The Cincinnati Gas & Electric
Company
P.O. Box 960
4th & Main Streets
Cincinnati, Ohio 45201
Attention: Mr. G.H. Stinson
Gentlemen:
Re: AGREEMENT BETWEEN THE CINCINNATI GAS & ELECTRIC COMPANY AND THE
UNION LIGHT, HEAT AND POWER COMPANY REGARDING UNION COMPANY'S
ERLANGER PROPANE PLANT AND CONSTANCE CAVERN
The Union Light, Heat and Power Company (Union), as a result of a
Kentucky Public Service Commission (KYPSC) gas rate order dated August
31, 1993 in Case No. 92-346, herewith revises the "Return" percentage,
referred to in Item (iii) of the cost allocation formula in the subject
agreement dated May 2, 1961, to nine and sixty-two hundredths percent
(9.62%). The new return percentage should be reflected in the monthly
fixed charge billed to The Cincinnati Gas & Electric Company
(Cincinnati) effective on and after April 26, 1993. This supersedes
the Agreement that was accepted on October 2, 1990 which showed a
return of 11.25% (KYPSC Case No. 90-041).
This change is being made in order that the allocation of Union's
propane plant charges to Cincinnati will reflect an equitable rate of
return as approved by the KYPSC.
The existing 65% allocation of fixed costs to Cincinnati will remain in
effect.
Please indicate Cincinnati's acceptance and agreement to this change by
signing in the appropriate space provided below.
Very truly yours,
THE UNION LIGHT, HEAT AND POWER COMPANY
By: /s/ J.F. McCarthy
Manager, Gas Supply
Agreed to this 6th day
of January, 1995.
THE CINCINNATI GAS & ELECTRIC
COMPANY
By: /s/ G. H. Stinson
EXHIBIT H-5
AGREEMENT
between
MIAMI POWER CORPORATION
and
THE CINCINNATI GAS & ELECTRIC COMPANY
This agreement made and entered into this 20th day of May 1983, by
and between Miami Power Corporation, a corporation organized under the
laws of the State of Indiana, hereinafter known as Miami, and The
Cincinnati Gas & Electric Company, a corporation organized under the
laws of the State of Ohio, hereinafter known as Cincinnati, WITNESSETH:
WHEREAS, Cincinnati from time to time makes arrangements with the
Louisville Gas and Electric Company for the transfer and interchange of
electric power and energy to be used for the purpose of serving the
public, and
WHEREAS, Cincinnati from time to time makes arrangements with the
Tennessee Valley Authority for the interchange of electric power and
energy to be used for the purpose of serving the public, by means of
transfer, to an extent, through the Louisville Gas and Electric
Company's system, and
WHEREAS, Miami, a subsidiary of Cincinnati, was organized for the
sole purpose of and is engaged solely in transmitting electric energy
for Cincinnati, and,
WHEREAS, Miami owns and operates an electric transmission line
extending from a point located at the sectionalizing switch tower
approximately five (5) miles north of Madison, Indiana, where it is
interconnected with a transmission line owned by the Ohio Valley
Transmission Corporation, a subsidiary of Louisville Gas and Electric
Company, to a point located at the Kentucky-Ohio state line on the
north bank of the Ohio River across from Boone County, State of
Kentucky near Cincinnati's Miami Fort electric generating station;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, promises and agreements of each of the parties as
hereinafter set forth, the parties hereto do mutually covenant and
agree as follows:
(1) Miami hereby agrees that it will receive and deliver all
electrical energy as required by Cincinnati in Cincinnati's
transactions with Louisville Gas and Electric Company, Tennessee Valley
Authority and other utilities; and
(2) Miami shall maintain and keep in good repair said
transmission line during the term of this agreement so that the line
shall at all times be in a safe and satisfactory condition for the uses
herein specified.
(3) In consideration of services to be rendered by Miami to
Cincinnati under this agreement, Cincinnati agrees to pay to Miami
during the term of this agreement, monthly amounts determined as
follows:
a. Operation and Maintenance Costs - an amount equal to the
total of the operation and maintenance expenses incurred
during the month by Miami,
b. Depreciation - an amount equal to the accrual for
depreciation for the month as recorded on the books of Miami,
determined by the following rates of depreciation:
Account No. Account Title Rate
340.3 Rights of Way 1.00%
344.0 Towers and Fixtures 2.00%
345.0 Poles and Fixtures 3.39%
346.0 Overhead Conductors and
Devices 2.54%
c. Taxes - an amount equal to the total tax expenses for the
month as recorded on the books of Miami, including federal
and state taxes on income, and other assessments.
d. Return - one-twelfth of an amount equal to twelve (12)
percent of Miami's "rate base" which shall be the sum of
Miami's utility plant as of January 1 of each year including
therein land and land rights and all other amounts recorded
in electric plant in service accounts, plus any costs of
construction work in progress, less the amount of
depreciation reserve applicable to said investment as of the
said January 1, plus an allowance for working capital in an
amount equal to 12.5% of the annual operation and maintenance
expenses incurred by Miami during the prior year.
As of January 1, 1983, certain of the above items shall
be taken as:
Utility Plant in service including
cost of construction work in progress $563,552
Less depreciation reserve $535,752
Utility plant less depreciation
reserve $ 27,800
Working capital $ 3,687
(4) Nothing contained herein shall be construed as affecting in
any way the right of any party furnishing or receiving service under
this rate schedule to unilaterally make application to the Federal
Energy Regulatory Commission for a change in rates, charges,
classification, or service, or in any rule, regulation, or contract
relating thereto, or to petition for investigation of existing rates,
under Section 205 and 206 of the Federal Power Act, whichever shall be
applicable, and pursuant to the Commission's Rules and Regulations
promulgated thereunder.
(5) This agreement shall become effective August 1, 1983, shall
cancel all previous agreements and supplements between the parties
thereto, shall remain in full force and effect for a period of one year
from that date and thereafter and until terminated by either party upon
sixty (60) days written notice, and shall be binding upon and inure to
the benefit of the parties thereto and successors and assigns.
In witness thereof, the parties hereto have caused this to be duly
executed on the 20th day of May 1983.
ATTEST: MIAMI POWER CORPORATION
/s/ D. R. Blum By /s/ Jackson H. Randolph
Secretary Vice President
ATTEST: THE CINCINNATI GAS & ELECTRIC COMPANY
/s/ D. R. Blum By /s/ R. P. Wiwi
Secretary Vice President
EXHIBIT H-6
AGREEMENT
THIS AGREEMENT is made and entered into as of the 26TH day of
July, 1991, by and between PSI Energy, Inc., an Indiana corporation,
with a place of business at 1000 East Main Street, Plainfield, Indiana
(hereafter "PSIE"), and PSI Recycling, Inc., an Indiana corporation
with a place of business at 1030 East New York Street, Indianapolis,
Indiana (hereafter "PSIR").
WITNESSETH:
WHEREAS, PSIE desires to contract for the sale of its
recyclable materials in an environmentally responsible manner;
WHEREAS, PSIR is in the business of recycling materials in an
environmentally responsible manner;
WHEREAS, the parties desire to enter into an agreement
whereby PSIR will purchase recyclable materials from PSIE;
WHEREAS, PSIE and PSIR are both wholly owned subsidiaries of
PSI Resources, Inc.; and
WHEREAS, PSIE is a regulated electric utility company, and
PSIE desires to enter into a contract with PSIR, which is commercially
reasonable and which will allow PSIE to receive commercial benefits
commensurate with the benefits it would receive from the sale of
recyclable materials if it were selling such materials to an
unaffiliated company.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, the parties agree as follows:
1. Purchases/Prices. PSIR will purchase recyclable
materials from PSIE at recognized industry published prices as agreed
upon by the parties for such materials, less a discount as set forth on
Exhibit "A". Prices will be fixed for the materials delivered based on
the referenced price indices published in the most recent issue of the
Wall Street Journal. Notwithstanding this agreement on pricing, the
parties may negotiate and agree upon other prices for specific
transactions. PSIE agrees to either accept in return or pay PSIR a fee
of $.05 per pound for any non-recyclable materials. PSIR shall allow
PSIE the option of inspecting materials identified as non-recyclable
materials before disposing of such materials.
2. Pickup and Delivery. PSIE will deliver materials at its
expense to PSIR's place of business based on its normal operating
schedule for hauling materials. IF PSIR requires special delivery,
PSIR will pay PSIE at a rate of $40.00 per hour for truck, trailer, and
driver. Should any delivery to PSIR require any special equipment
(i.e., equipment other than that normally used to deliver materials),
rates will be established at that time.
3. Material Transfer Memos. PSIE shall send a material
transfer memo to PSIR with all shipments of recyclable materials, which
sets forth the type, weight, and quantity of materials being sent to
PSIR. PSIR shall verify the accuracy of the information within three
(3) working days of receipt and shall promptly notify PSIE's
representative of any deviations discovered. Thereafter, the parties
shall endeavor to promptly resolve any differences. Each month PSIR
shall send PSIE copies of PSIR's receiving reports, which set forth by
date and shipment the quantities, weights, grades, and prices for all
materials received.
4. Payment. The parties shall make full payment (or
appropriate credit and debit accounting entries shall be made on the
accounting records of each company) by the end of the calendar month
that PSIE receives each monthly statement as set forth in paragraph 3.
5. Confidentiality. Materials marked "confidential"
provided by PSIE to PSIR shall be shredded by PSIR within three (3)
working days from the time that PSIR receives such documents or
materials from PSIE unless other arrangements are made. An executed
certificate of destruction for recycling shall be provided by PSIR to
PSIE for all confidential documents or materials destroyed or recycled.
PSIE shall provide locked containers for all confidential
documents, which shall be returned to PSIE upon destruction of
documents by PSIR.
PSIE shall pay PSIR for shredding documents at the rate of
$.14 per pound. PSIR will be responsible for picking up documents to
be shredded from PSIE's principal place of business.
All PSIR employees, agents, or contract employees shall be
advised and instructed by PSIR to maintain the confidentiality of the
contents of any confidential documents or materials provided by PSIE to
PSIR.
All PSIR employees, agents, or contract employees shall be
advised and instructed by PSIR not to remove any confidential documents
or materials from the premises and that no confidential documents or
materials shall be copied, photocopied, or otherwise duplicated.
Immediately after each PSIR employee, agent, or contract
employee is instructed regarding confidentiality of documents as set
forth above, each PSIR employee, agent, or contract employee shall
execute the Confidentiality Agreement attached hereto as Exhibit "B."
6. Audit. PSIE shall have the right to fully audit such
information and documents, including obtaining copies of any documents
as will enable it to determine PSIR's full compliance with this
Agreement. PSIR agrees to furnish PSIE with reports and other
documentation in a format and frequency as may reasonably be prescribed
by PSIE.
7. Termination for Cause. Either party may terminate this
Agreement or any part thereof for cause at any time upon written notice
to the other party if the other party defaults in performing hereunder
or breaches any term or condition of this Agreement.
8. Termination for Convenience. Either party may at any
time and for any reason terminate this Agreement or any part thereof
for its sole convenience upon sixty (60) days' prior written notice.
At the point in time specified by the terminating party in writing to
the other party, that other party shall immediately cease performance
hereunder. As full payment under this Agreement, PSIE shall be paid
for any materials received by PSIR from PSIE prior to the termination
date.
9. Indemnity. PSIR hereby agrees to indemnify and hold
harmless and to defend PSIE during the period of any applicable statute
of limitations from and against any and all actions or causes of
action, claims, demands, liabilities, losses, damages, or expenses of
whatever kind or nature including attorneys' fees, that PSIE may suffer
or incur by reason of bodily injury, including death, to any person or
persons, including PSIR employees, contract employees, or PSIR agents,
or by reason of damage to or destruction of any property, including the
loss of use thereof, arising out of or in any way connected with this
Agreement, or which PSIE may sustain or incur in conjunction with any
litigation, investigation, or other expenditures incident thereto,
including any suit instituted to enforce the obligation of this
Agreement of indemnity, unless caused solely by the act, omission or
negligence of PSIE or the representatives and employees of PSIE.
10. Release and Reimbursement. PSIR shall release,
exculpate, and hold harmless and shall reimburse PSIE and the
representatives and employees of PSIE from and for all claims, losses,
damages, costs, and expenses, including attorneys' fees, arising or
alleged to arise, in whole or in part, from injury to PSIR or its
agents or employees, including death, or damage to the property of PSIR
and PSIE, including the loss of use thereof, arising or alleged to
arise out of or in any way connected with this Agreement, unless caused
solely by any act, omission, or negligence of PSIE or the
representatives or employees of PSIE.
11. Non-Waiver of Rights. No delay or omission by PSIE to
exercise any right in this Agreement shall constitute a waiver of such
right, at law or in equity, or any other right in this Agreement, at
law or in equity.
12. Limitation of Liability and Action. PSIE shall not be
liable to PSIR for anticipated profits or for incidental or
consequential damages of any kind. The liability of PSIE on any claim
of any kind for any loss or damage arising out of or in connection with
or resulting from this Agreement or from the performance or breach
thereof and which has not been cured by PSIE within ninety (90) days
after written notice from PSIR of the claim shall in no event exceed
the price allocable to the documents or materials that gives rise to
the claim. PSIE shall not be liable for penalties of any description.
Any action resulting from any breach on the part of PSIE shall be
commenced within one (1) year after the cause of action has accrued.
13. Setoff. All claims for money due or to become due from
PSIE shall be subject to deduction or setoff by PSIE by reason of any
counterclaim or crossclaim arising out of this or any other transaction
with PSIR.
14. Compliance With Laws and PSIE Rules. PSIR shall comply
with all applicable federal, state, and local laws, rules, regulations,
and ordinances in the performance of this Agreement. PSIR shall abide
by any and all rules PSIE may have in effect or hereinafter put into
effect when goods are to be delivered or services are to be performed
on PSIE property. PSIR shall be responsible for the safe performance
of the work with due regard for the safety of PSIR employees,
subcontractor employees, the general public, and PSIE employees and
property. PSIR shall promptly investigate and report to PSIE all
accidents involving PSIR's work pursuant to this Agreement. Neither
this paragraph nor enforcement of these provisions is intended to
create any duty on the part of PSIE to review or enforce PSIR safety
rules and practices; rather, such obligation rests entirely upon PSIR.
PSIE assumes no duty to review PSIR's compliance with said laws and
rules, including those involved with safety. Further, these provisions
are not for the benefit of any third party.
15. Assignment and Delegation. PSIR shall neither assign
any of its rights nor delegate any of its duties under this Agreement
without the prior written consent of PSIE. If delegation is permitted
by PSIE, PSIR shall continue to be responsible for the performance of
this Agreement. If requested by PSIE, PSIR shall provide PSIE with
copies of any contracts with third parties regarding the assignment or
rights or delegation of duties hereunder. PSIE shall have the right at
any time to assign its rights and delegate its duties to its parent or
to any subsidiary or affiliate of PSIE or its parent. The terms and
conditions of this Agreement shall be binding upon and inure to the
benefit of any and all successors or assigns of PSIR and PSIE.
16. Applicable Laws and Severability. This Agreement shall
be governed by and interpreted under the laws of the state of Indiana.
If any part of a term or condition in this Agreement is found to be
contrary to the law governing this Agreement by a court of competent
jurisdiction, such term and condition shall in all other respects be
and remain legally effective and binding to the full extent
permissible.
17. Merger Clause. This Agreement, including any exhibits
or documents incorporated herein by reference, constitutes the final
written expression of all the terms and conditions of the agreement
between PSIR and PSIE and is a complete and exclusive statement of
those terms and conditions and supersedes all prior negotiations,
representations or agreements, either written or oral, with respect to
the subject matter of this Agreement, except those representations
relating to warranties of quality. This Agreement may be modified only
by a contract amendment duly executed by both PSIR and PSIE.
18. Insurance. At least thirty (30) days before commencing
any work hereunder, PSIR shall cause the insurance company providing
workmen's compensation insurance for PSIR to file Form 18A with the
Worker's Compensation Board of Indiana to certify to the satisfaction
of said Board that PSIR has complied with all applicable requirements
of "The Indiana Workmen's Compensation Act of 1929," as amended to
date, and "The Indiana Workmen's Occupational Diseases Act of 1937," as
amended to date. Each party shall waive all claims against the other
party for injuries to its employees and shall waive all rights of
subrogation against the other party.
During the entire period while this Agreement is in
effect, PSIR shall procure and keep in force a policy or policies of
insurance or self-insurance, in a form acceptable to PSIE and issued by
an insurance company or companies acceptable to PSIE, which adequately
protects PSIR and PSIE from and against any and all claims, losses, or
actions arising out of or in any way connected with the work to be
provided pursuant to this Agreement. Any such insurance policy or
policies shall specifically name PSIE as an additional insured, and
within ten (10) days of the execution of this Agreement, PSIR shall
provide PSIE with Certificates of Insurance providing evidence of the
following insurance coverages and limits, at a minimum:
COVERAGE LIMITS
Workmen's Compensation Statutory Requirements
Employer's Liability $100,000 Each Person
Public Liability
Comprehensive General Liability (including contractor's protection
for liability arising from subcontractors)
Bodily Injury $1,000,000 Each Occurrence
Property Damage (Including coverage for "X"
Explosion, "C" Collapse and "U" Underground
Hazards) $1,000,000 Each Occurrence
Contractual Liability (all written contracts between PSIR and PSIE)
Bodily Injury $1,000,000 Each Occurrence
Property Damage (Including coverage of "X"
Explosion, "C" Collapse and "U" Underground
Hazards) $1,000,000 Each Occurrence
Products Completed Operations
Bodily Injury $1,000,000 Each Occurrence
Property Damage $1,000,000 Each Occurrence
Automotive Liability (owned, non-owned and hired)
Bodily Injury $1,000,000 Each Occurrence
Property Damage $1,000,000 Each Occurrence
19. Notices. All notices allowed or required hereunder
shall be deemed duly given upon receipt thereof if deposited in the
United States mail, first class certified mail, return receipt
requested, addressed as follows:
To PSIR:
Vice President and General Manager
PSI Recycling, Inc.
1030 East New York Street
Indianapolis, Indiana 46202
To PSIE:
Vice President, Material Management Services
PSI Energy, Inc.
1000 East Main Street
Plainfield, Indiana 46168
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their duly authorized representatives as of the 26th day
of July, 1991.
PSI ENERGY, INC. PSI RECYCLING, INC.
By: /s/ Harold L. Isaacs By: /s/ Mark A. Mensing
- ------------------------ -----------------------
Title: Vice President Title: Vice President and
Material Management General Manager
Services
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT "A"
PSI ENERGY
COMPARISON OF 1989 SALVAGE PROCEEDS
TO MONTHLY 1989 DAILY COMEX CLOSE AVERAGE
VARIANCE
#1 #2 #3 #4 #5 COLUMN #4 MINUS
ACTUAL ACTUAL ACTUAL COMEX COMEX COLUMN #3 DOLLAR DISCOUNT
NO. S/I # DESCRIPTION QUANTITY AMOUNT $/UNIT $/UNIT AMOUNT ($/UNIT) PER UNIT PRICE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 991001 BATTERY 13 ea 6.50
2 991001 BATTERY 13 ea 13.00
2 991022 BATTERY 5 ea 5.00
4 992444 CABLE LEAD COV 416 lb 91.52 0.2200
8 992444 CABLE LEAD COV 522 lb 73.08 0.1400
6 992450 CABLE SE CU 228 lb 30.78 0.1350 1.0945 249.55
9 992450 CABLE SE CU 450 lb 180.00 0.4000 1.3197 593.87
678 210.78 0.3109 1.2440 843.42 -0.9331 -0.9331
4 992457 CABLE UG ALUM 700 lb 140.00 0.2000 0,9370 655.90
7 992457 CABLE UG ALUM 651 lb 97.65 0.1500 0.8255 537.40
9 992457 CABLE UG ALUM 460 lb 69.00 0.1500 0.7823 359.86
10 992457 CABLE UG ALUM 306 lb 30.60 0.1000 0.7923 242.44
12 992457 CABLE UG ALUM 3,494 lb 384.83 0.1100 0.7283 2,545.38
5,611 721.59 0.1286 0.7737 4,340.98 -0.6451 -0.6451
2 992468 CABLE IKV & > 784 lb 313.60 0.4000 1.3420 1,052.13
9 992468 CABLE IKV & > 665 lb 166.25 0.2500 1.3197 877,60
10 992468 CABLE IKV & > 488 lb 73.20 0.1500 1.2553 612.59
1,937 553.05 0.2855 1.3125 2,542.32 -1.027 -1.027
1 992470 CABLE UG ALUM 4,552 lb 854.10 0.1876 1.0691 4,866.54
2 992470 CABLE UG ALUM 6,584 lb 1,571.36 0.2387 0.9632 6,341.71
3 992470 CABLE UG ALUM 321 lb 46.77 0.1457 0.9215 295.80
4 992470 CABLE UG ALUM 13,847 lb 2,096.10 0.1514 0.9370 12,974.64
6 992470 CABLE UG ALUM 6,805 lb 1,044.42 0.1535 0.8874 6,038.76
7 992470 CABLE UG ALUM 8,222 lb 881.85 0.1073 0.8255 6,787.26
8 992470 CABLE UG ALUM 1,886 lb 295.63 0.1567 0.8128 1,532.94
9 992470 CABLE UG ALUM 11,392 lb 1,856.43 0.1630 0.7823 8,911.96
10 992470 CABLE UG ALUM 1,518 lb 218.34 0.1438 0.7923 1,202.71
11 992470 CABLE UG ALUM 159 lb 23.25 0.1462 0.7616 121.09
12 992470 CABLE UG ALUM 8,671 lb 1,232.61 0.1422 0.7285 6,316.82
63,957 10,120.86 0.1582 0.8661 55,390.23 -0.7079 -0.7079
1 993150 MTL ALUM 4,510 lb 3,610.58 0.8006 1.0691 4,821.64
2 993150 MTL ALUM 11,412 lb 7,406.23 0.6490 0.9632 10,992.04
3 993150 MTL ALUM 1,895 lb 1,302.91 0.6876 0.9215 1,746.24
4 993150 MTL ALUM 9,808 lb 8,072.15 0.8230 0.9370 9,190.10
6 993150 MTL ALUM 5,912 lb 4,435.62 0.7503 0.8874 5,246.31
7 993150 MTL ALUM 8,278 lb 5,765.31 0.6965 0.8255 6,833.49
8 993150 MTL ALUM 2,620 lb 1,428.78 0.5453 0.8128 2,129.54
9 993150 MTL ALUM 13,123 lb 8,538.50 0.6507 0.7823 10,266.12
10 993150 MTL ALUM 6,293 lb 3,680.52 0.5849 0.7616 4,985.94
11 993150 MTL ALUM 1,999 lb 1,091.74 0.5461 0.7414 1,522.44
12 993150 MTL ALUM 5,642 lb 3,110.91 0.5514 0.7285 4,110.20
71,492 48,443.25 0.6776 0.865 61,844.06 -0.1874 -0.1874
1 993162 MTL BREAKAGE 345 lb 86.25 0.2500
2 993162 MTL BREAKAGE 1,132 lb 90.56 0.0800
4 993162 MTL BREAKAGE 2,312 lb 90.02 0.0389
6 993162 MTL BREAKAGE 645 lb 99.98 0.1550
7 993162 MTL BREAKAGE 509 lb 20.36 0.0400
8 993162 MTL BREAKAGE 1,200 lb 12.00 0.0100
9 993162 MTL BREAKAGE 3,097 lb 537.51 0.1736
10 993162 MTL BREAKAGE 840 lb 50.40 0.0600
12 993162 MTL BREAKAGE 421 lb 8.42 0.0200
10.501 995.50 0.0948
1 993171 MTL COPPER 12,726 lb 13,441.91 1.0563 1.5221 19,370.24
2 993171 MTL COPPER 12,413 lb 12,903.29 1.0395 1.3420 16,658.25
3 993171 MTL COPPER 8,514 lb 8,410.99 0.9879 1.4288 12,164.80
4 993171 MTL COPPER 57,405 lb 59,172.50 1.0308 1.3826 79,368.15
5 993171 MTL COPPER 26,240 lb 26,970.25 1.0278 1.2072 31,676.93
6 993171 MTL COPPER 17,503 lb 17,361.49 0.9919 1.0945 19,157.03
7 993171 MTL COPPER 16,117 lb 14,145.93 0.8777 1.0724 17,283.87
8 993171 MTL COPPER 17,460 lb 15,722.98 0.9005 1.2177 21,261.04
9 993171 MTL COPPER 20.024 lb 20,988.16 1.0482 1.3197 26,425.67
10 993171 MTL COPPER 26,405 lb 29,235.35 1.1072 1.2553 33,146.20
11 993171 MTL COPPER 7,445 lb 8,039.82 1.0799 1.1145 8,297.45
12 993171 MTL COPPER 37,475 lb 35,467.07 0.9464 1.0360 38,824.10
259,727 261,859.74 1.0082 1.2461 323,633.73 -0.2379 -0.2379
2 993192 MTL BRASS LT YL 732 lb 292.80 0.4000 1.3420 982.34
4 993192 MTL BRASS LT YL 1,110 lb 255.30 0.2300 1.3826 1,534.69
6 993192 MTL BRASS LT YL 12, 135 lb 8.385.29 0.6910 1.0945 13,281.76
8 993192 MTL BRASS LT YL 214 lb 96.30 0.4500 1.2177 260.59
11 993192 MTL BRASS LT YL 197 lb 99.81 0.5066 1.0799 212.74
14,388 9,129.50 0.6345 1.1310 16,272.12 -0.4965
Excludes largest transaction 2,253 744.21 0.3304 1.3273 2,990.36 -0.9969 -0.9969
1 993213 MTL IRON 3,021 lb 3.61 0.0012
2 993213 MTL IRON 4,230 lb 4.23 0.0010
6 993213 MTL IRON 110,898 lb 2,923.08 0.0264
7 993213 MTL IRON 3,523 lb 1.01 0.0003
8 993213 MTL IRON 349,550 lb 10,829.07 0.0310
9 993213 MTL IRON 38,225 lb 1,826.73 0.0478
10 993213 MTL IRON 289,680 lb 3,621.02 0.0125
11 993213 MTL IRON 2,515 lb 0.27 0.0001
4 993213 MTL IRON 11,630 lb 20.90 0.0018
813,272 19,230.00 0.0236
1 994631 SPEC IND LOT 20,646 lt 5,321.55 0.2578
2 994631 SPEC IND LOT 59 lt 11,941.95 202.4059
3 994631 SPEC IND LOT 1 lt 293.15 293.1500
4 994631 SPEC IND LOT 9,889 lt 4,661.50 0.4714
5 994631 SPEC IND LOT 1,453 lt 6,153.38 4.2349
6 994631 SPEC IND LOT 1,177 lt 481.50 0.4091
8 994631 SPEC IND LOT 9,239 lt 7,679.22 0.8312
9 994631 SPEC IND LOT 3 lt 2,483.40 827.8000
11 994631 SPEC IND LOT 15,076 lt 10.051.25 0.6667
12 994631 SPEC IND LOT 207 lt 1,687.50 8.1522
57,750 50,754.40 1,338.3800
1 997985 WIRE BARE ACSR 21.010 lb 11,123.21 0.5294 1.0691 22,461.79
2 997985 WIRE BARE ACSR 37,460 lb 18,905.27 0.5047 0.9632 36,081.47
4 997985 WIRE BARE ACSR 3,833 lb 1,733.25 0.4522 0.9370 3,591.52
6 997985 WIRE BARE ACSR 14,759 lb 7,646.46 0.5181 0.8874 13,097.14
7 997985 WIRE BARE ACSR 106 lb 37.10 0.3500 0.8255 87.50
8 997985 WIRE BARE ACSR 1,076 lb 360.96 0.3355 0.8128 874.57
9 997985 * WIRE BARE ACSR 130,600 lb 60,402.50 0.4625 0.7823 102,168.38
10 997985 WIRE BARE ACSR 10,655 lb 3,558.39 0.3340 0.7923 8,441,96
12 997985 WIRE BARE ACSR 15,325 lb 4,818.96 0.3145 0.7285 11,164.26
234,824 108,586.10 0.4624 0.8431 197,968.59 -0.3807
* Excluded 104,224 48,184 0.4623 0.9192 95,800.21 -0.4569 -0.4569
1 997989 WIRE INS ALUM 3,076 lb 1,594.96 0.5185 1.069 13,288.55
4 997989 WIRE INS ALUM 3,087 lb 1,420.30 0.4601 0.9370 2,892.52
7 997989 WIRE INS ALUM 3,195 lb 1,168,02 0.3656 0.8255 2,637.47
9 997989 WIRE INS ALUM 7,720 lb 2,807.33 0.3636 0.7823 6,039.36
10 997989 WIRE INS ALUM 258 b 98.04 0.3800 0.7923 204.41
12 997989 WIRE INS ALUM 4,104 lb 1,292.76 0.3150 0.7285 2,989.76
21,440 8,381.41 0.3909 0.8420 18,052.07 -0.4511 -0.4511
1 997994 WIRE BAR/INS AL 20,168 lb 9,654.23 0.4787 1.0691 21,561.61
2 997994 WIRE BAR/INS AL 38,702 lb 18,564.32 0.4797 0.9632 37,277.77
3 997994 WIRE BAR/INS AL 14,101 lb 6,403.30 0.4541 0.9215 12,994.07
4 997994 WIRE BAR/INS AL 43,346 lb 20,288.84 0.4681 0.9370 40,615.20
5 997994 WIRE BAR/INS AL 2,180 lb 748.20 0.3432 0.9715 2,117.87
6 997994 WIRE BAR/INS AL 38,971 lb 18,970.75 0.4868 0.8874 34,582.87
7 997994 WIRE BAR/INS AL 36,251 lb 13,739.15 0.3790 0.8255 29,925.20
8 997994 WIRE BAR/INS AL 22,850 lb 8,384.99 0.3670 0.8128 18,572.48
9 997994 WIRE BAR/INS AL 38,272 lb 13,871.66 0.3624 0.7823 29,940.19
10 997994 WIRE BAR/INS AL 34,881 lb 12,548.66 0.3598 0.7923 27,636.22
11 997994 WIRE BAR/INS AL 12,754 lb 3,884.67 0.3046 0.7616 9,713.45
12 997994 WIRE BAR/INS AL 30,535 lb 9,137.80 0.2993 0.7285 22,244.75
333,011 136,196.57 0.4090 0.8624 287,181.68 -0.4534 -0.4534
2 997996 WIRE CONTL CABL 430 lb 109.95 0.2557 1.3420 577.06
6 997996 WIRE CONTL CABL 2,060 lb 618.00 0.3000 1.0945 2,254.67
8 997996 WIRE CONTL CABL 979 lb 127.27 0.1300 1.2177 1,192.13
12 997996 WIRE CONTL CABL 622 lb 68.42 0.1100 1.0360 644.39
4,091 923.64 0.2258 1.1411 4,668.25 -0.9153 -0.9153
1 998006 WIRE CU INS 16,911 lb 12,500.43 0.7392 1.5221 25,740.23
2 998006 WIRE CU INS 22,335 lb 16,347.40 0.7319 1.3420 29,973.57
3 998006 WIRE CU INS 11,112 lb 6,949.05 0.6254 1.4288 15,876.83
4 998006 WIRE CU INS 39,285 lb 24,483.44 0.6232 1.3826 54,315.44
5 998006 WIRE CU INS 1,425 lb 857.53 0.6018 1.2072 1,720.26
6 998006 WIRE CU INS 33,708 lb 23,465.36 0.6961 1.0945 36,893.41
7 998006 WIRE CU INS 25,438 lb 16,281.71 0.6401 1.0724 27,279.71
8 998006 WIRE CU INS 22,136 lb 12,969.39 0.5859 1.2177 26,955.01
9 998006 WIRE CU INS 26,460 lb 16,662.07 0.6297 1.3197 34,919.26
10 998006 WIRE CU INS 22,856 lb 15,677.36 0.6859 1.2553 28,691.14
11 998006 WIRE CU INS 9,774 lb 7,071.57 0.7235 1.1145 10,893.12
12 998006 WIRE CU INS 29,989 lb 18,985.07 0.6331 1.0360 31,068.60
261,429 172,250.38 0.6589 1.2406 324,326.58 -0.5817 -0.5817
1 998027 WIRE CW 838 lb 251.40 0.3000 1,5221 1,275.52
8 998027 WIRE CW 458 lb 22.90 0.0500 1,2177 557.71
1,296 274.30 0.2117 1,4145 1,833.23 -1.2028 -1.2028
1 998048 WIRE CWC 1,111 lb 585.85 0.5273 1,5221 1,691.05
2 998048 WIRE CWC 1,144 lb 451.86 0.3950 1.3420 1,535.25
3 998048 WIRE CWC 3,355 lb 1,009.19 0.3008 1.4288 4,793.62
4 998048 WIRE CWC 13,967 lb 6,993.08 0.5007 1.3826 19,310.77
5 998048 WIRE CWC 110 lb 35.20 0.3200 1.2072 132.79
6 998048 WIRE CWC 3,848 lb 1.500.10 0.3898 1.0945 4,211.64
7 998048 WIRE CWC 3,417 lb 1,658.84 0.4855 1.0724 3,664.39
8 998048 WIRE CWC 6,487 lb 2,918.79 0.4499 1.2177 7,899.22
9 998048 WIRE CWC 7,977 lb 3,930.22 0.4927 1.3197 10,527.25
10 998048 WIRE CWC 3,427 lb 1,566.51 0.4571 1.2553 4,301.91
11 998048 WIRE CWC 325 lb 108.87 0.3350 1.1145 362.21
12 998048 WIRE CWC 9,121 lb 3,227.92 0.3539 1.0360 9,449.36
54,289 23,986.43 0.4418 1.2503 67,879.46 -0.8085 -0.8085
6 998069 WIRE IRON 3,683 lb 3.68
<FN>
_____________
NOTE: INDUSTRY PUBLISHED PRICES WILL BE "LME" (LONDON METAL EXCHANGE) FOR ALUMINUM AND COMEX FOR ALL OTHER MATERIAL.
</TABLE>
<PAGE>
Exhibit "B"
CONFIDENTIALITY AGREEMENT
I have been instructed and advised by PSI Recycling, Inc. to maintain
the confidentiality of the contents of all materials designated to be
confidential. I have been instructed by PSI Recycling, Inc. not to
remove any confidential documents or materials from the premises. I
have been instructed by PSI Recycling, Inc. not to copy, photocopy, or
otherwise duplicate any documents or materials designated to be
confidential.
I agree to fully abide by all of the foregoing instructions.
___________________________
Signature
___________________________
Printed Name
___________________________
Date
<PAGE>
Exhibit "C"
Addendum to Agreement between PSI Energy, Inc., (PSIE)
and PSI Recycling, Inc., (PSIR) dated July 26, 1991
The following pricing format replaces the discount method set forth on
Exhibit "A".
- Effective January 1, 1993 PSIR will purchase scrap wire and
cable on a recovered basis. PSIE will be paid according to
the actual amount of aluminum and copper recovered from its
material.
- A regression analysis formula developed by Load Forecasting
will be used to price the recovered material. Closing spot
prices quoted on the London Metal Exchange (LME) and the
Commodity Exchange (COMEX) for the day PSIR sells the
material will be used as the indices for aluminum and copper
respectively. Monthly averages for LME and COMEX will still
be maintained.
Equation for aluminum:
PSIE price = e (-0.3804 + (1.0741)(Ln LME))
Equation for copper:
PSIE price = e (-0.253 + (0.8517)(Ln COMEX))
(Where Ln = Natural Log)
- A chopping fee of $.07 per pound of gross material weight
will be assessed by PSIR for material they chop. The
chopping fee may be increased annually based upon an
escalation factor or determined market value as recommended
by Material Management Services. PSIE will pay the direct
cost to incinerate weather-proof insulation off of copper
wire.
- PSIR will segregate PSIE's material for control purposes.
PSIR will maintain records in a manner that will allow
sufficient review by Internal Auditing.
- A small portion of scrap material received from PSIE contains
both aluminum and copper. When processed (chopped) the
aluminum and copper cannot be segregated; thus, producing a
lower grade of aluminum. Should the volume of this material
become substantial enough to erode PSIR's profits, a revised
indices agreed upon by both parties will be used.
- Copper will be deemed #2 grade when such material cannot be
sold at a #1 copper price. Number 2 grade material includes,
but is not limited to, small diameter wire, tin coated wire,
or wire that has had the weather-proof insulation burnt off
of it. The parties will use the regression formula for
copper, as stated above, but use the index price for #2 grade
copper instead of #1 grade copper.
In witness whereof, the parties have caused this addendum to
be executed by their duly authorized representatives as of the 25th day
of August, 1993.
PSI Energy, Inc. PSI Recycling, Inc.
By: /s/ Harold L. Isaacs By: /s/ Mark A. Mensing
Title: Vice President Title: Vice President and
General Manager
EXHIBIT H-7
REVISED TRANSPORTATION AND REIMBURSEMENT
AGREEMENT BETWEEN
COLUMBIA GAS TRANSMISSION CORPORATION,
THE UNION LIGHT, HEAT AND POWER COMPANY,
AND
THE CINCINNATI GAS & ELECTRIC COMPANY
This AGREEMENT, made and entered into this 31st day of July
1986, by and between COLUMBIA GAS TRANSMISSION CORPORATION (CGT), a
Delaware corporation; THE UNION LIGHT, HEAT AND POWER COMPANY (ULH&P),
a Kentucky corporation; and THE CINCINNATI GAS & ELECTRIC COMPANY
(CG&E), an Ohio corporation:
W I T N E S S E T H
THAT WHEREAS, the parties hereto have an existing contract,
dated March 1, 1972 which provides for the transportation of natural
gas by ULH&P through certain of its facilities for the account of CGT,
to various delivery points along the Ohio River where sales and/or
deliveries of such gas are made to CG&E by CGT as provided in signed
Service Agreements between CGT and CG&E; and
WHEREAS, the aforementioned agreement is now on file with the
Federal Energy Regulatory Commission as Rate Schedule X-4 of ULH&P's
FERC Gas Tariff, First Revised Volume No. 2, and as Rate Schedule X-33
of CGT's FERC Gas Tariff, Original Volume No. 2; and
WHEREAS, said Rate Schedules X-4 of ULH&P and X-33 of CGT
contemplate that revisions may be required from time to time to reflect
current costs and facilities used in rendering such service by ULH&P to
CGT, since such Schedules are of the "cost-of-service" variety; and
WHEREAS, the parties now agree that there has been a
substantial change in the "cost-of-service" due to the sale by Columbia
to ULH&P of its portion of Line AM-7, including appurtenances, which
consists of approximately 10.7 miles of 24 inch pipeline and 0.8 miles
of 20 inch pipeline extending from the outlet of Columbia's Cold Spring
measuring station in Campbell County, Kentucky to the inlet of ULH&P's
Erlanger gas plant in Kenton County, Kentucky.
WHEREAS, the parties also agree that the sale and purchase of
said facilities necessitate a Revised Agreement covering such
transportation service by ULH&P for CGT and the updating of said
currently filed Rate Schedule X-4 of ULH&P and Rate Schedule X-33 of
CGT.
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND MUTUAL
COVENANTS HEREIN CONTAINED, the parties hereto respectively agree as
follows:
(1) ULH&P agrees to receive into its facilities designated
as Lines AM, AM-1, AM-2, AM-7 and UL-6, and to transport and deliver
for the account of CGT to the points of intersection between ULH&P and
CG&E facilities at the Kentucky-Ohio State Line at locations referred
to as East Works Station, Front and Rose Station and Anderson Ferry
Station such quantities of natural gas as CG&E may be entitled to
receive from CGT at those delivery points.
(2) CGT agrees to pay ULH&P for the transportation service
provided herein, certain percentages of all costs pertaining to ULH&P
facilities used for this transportation service as follows:
a. One Hundred Percent (100%) of all costs pertaining to
the two (2) Ohio River Crossings designated as:
1. Line AM-2 (East Works) Ohio River Crossing
2. Line AM-1 (Front & Rose) Ohio River Crossing
b. A percentage of the costs of Line AM-7 (Anderson Ferry)
Ohio River Crossing determined on the basis of the flow
of gas through Anderson Ferry Station to CG&E, as a
percentage of the total flow of gas through Anderson
Ferry Station in both directions.
c. A percentage, determined by a facilities gas delivery
allocation study based on the prior 12-month period
ending October 31 of each year of all costs pertaining
to the following facilities:
1. Line AM
2. Line AM-1, Exclusive of Ohio River Crossing
3. Line AM-2, Exclusive of Ohio River Crossing
4. Line UL-6
5. Odorization equipment located at CGT's Cold Spring
Station and Alexandria Station
6. Regulatory equipment, structures and rights of way
associated with the above facilities
d. A percentage, determined by a facilities gas delivery
allocation study based on the prior 12-month period
ending October 31 of each year, of all costs pertaining
to Line AM-7 exclusive of the Ohio River Crossing.
One-twelfth of the facilities costs as itemized below after
allocation, will constitute the monthly payment for transportation
service. These monthly payments are to be made on or before the 15th
of each month based on the estimated annual cost of providing such
service. Such costs will be adjusted with each December billing to the
level of actual costs incurred during the preceding twelve (12) months
ended November 30. The costs to be recovered for such transportation
service will consist of the following items:
(A) Depreciation
An amount equal to the product of the annual depreciation rates in
effect and the gas plant in service at November 30. The FERC
Distribution Plant Account numbers applicable to the determination
of depreciation costs are: 374, 375, 376 and 378.
(B) Return
An amount equal to nine and eighty-four one hundredths percent
(9.84%) per annum of ULH&P's rate base. Such rate base shall be
an amount consisting of the original cost of the facilities
including construction work in progress as of November 30 less the
accumulated reserve for depreciation applicable to this plant.
The FERC Distribution plant account numbers applicable to rate
base determinations are: 374, 375, 376 and 378.
(C) Taxes
An amount equal to all taxes, fees or assessments, including
property taxes, Kentucky Income Tax, Public Service Commission of
Kentucky tax and Federal Income taxes lawfully imposed upon ULH&P
by any authority which are the result of, or directly attributable
to, the ownership, operation, maintenance or earnings of the
facilities subject to this agreement.
(D) Operation and Maintenance Expenses
An amount equal to the annual operation and maintenance expenses
incurred by ULH&P in operating and maintaining the facilities
covered by this agreement as recorded on ULH&P's books. The FERC
Distribution expense account numbers applicable are: 874, 875, 887
and 889.
(3) CG&E agrees to reimburse CGT for all payments made by
CGT to ULH&P pursuant to Paragraph No. 2 hereof. Such reimbursement
shall be made within twenty (20) days following billing by CGT to CG&E.
It is specifically understood and agreed between the parties that CGT
shall not be obligated to make any payments to ULH&P hereunder except
to the extent that it receives reimbursement for such payments from
CG&E. In the event such reimbursement is not forthcoming upon demand
therefor, CGT's obligation hereunder to pay ULH&P shall cease, and
ULH&P shall repay to CGT any amounts theretofore paid by CGT for which
the latter has not been reimbursed by CG&E.
(4) This agreement shall be effective as of the 23rd day of
August, 1986, and shall continue into effect until August 23, 1991, and
thereafter from year to year unless cancelled by any party hereto at
the end of any such yearly period by six months prior notice.
IN WITNESS WHEREOF, the parties hereto have caused this
agreement to be signed and attested by their respective officers
thereunto duly authorized as of this 31st day of July, 1986.
ATTEST: COLUMBIA GAS TRANSMISSION
CORPORATION
/s/ James A. Connell /s/ R. M. Bennett
Assistant Secretary Senior Vice President
(CORPORATE SEAL)
ATTEST: THE UNION LIGHT, HEAT AND POWER
COMPANY
/s/ Margaret L. Huber /s/ C. L. Schmidt
Assistant Secretary Vice President
(CORPORATE SEAL)
ATTEST: THE CINCINNATI GAS & ELECTRIC
COMPANY
/s/ D. R. Blum /s/ W. H. Dickhoner
Secretary President
(CORPORATE SEAL)
