LG&E AND KU ENERGY LLC TO THE BANK OF NEW YORK MELLON, Trustee Supplemental Indenture No. 1 Dated as of November 1, 2010 Supplemental to the Indenture dated as of November 1, 2010 Establishing Senior Notes, 2.125% Series due 2015 and Senior Notes,...
Exhibit 4(s)-2
Conformed
LG&E AND KU ENERGY LLC
TO
THE BANK OF NEW YORK MELLON,
Trustee
_____________________________
Supplemental Indenture No. 1
Dated as of November 1, 2010
_____________________________
Supplemental to the Indenture
dated as of November 1, 2010
_____________________________
Establishing
Senior Notes, 2.125% Series due 2015
and
Senior Notes, 3.750% Series due 2020
SUPPLEMENTAL INDENTURE NO. 1
SUPPLEMENTAL INDENTURE No. 1, dated as of the 1st day of November, 2010, made and entered into by and between LG&E AND KU ENERGY LLC, a limited liability company duly organized and existing under the laws of the Commonwealth of Kentucky, having its principal corporate offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter sometimes called the “Company”), and THE BANK OF NEW YORK MELLON, a New York banking corporation, having its corporate trust office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter sometimes called the “Trustee”), as Trustee under the Indenture, dated as of November 1, 2010 (hereinafter called the “Original Indenture”), between the Company and said Trustee this Supplemental Indenture No. 1 being supplemental thereto. The Original Indenture and this Supplemental Indenture No. 1 are hereinafter sometimes, together, called the “Indenture.”
Recitals of the Company
The Original Indenture was authorized, executed and delivered by the Company to provide for the issuance from time to time of its Securities (such term and all other capitalized terms used herein without definition having the meanings assigned to them in the Original Indenture), to be issued in one or more series as contemplated therein.
Pursuant to Article Three of the Original Indenture, the Company wishes to establish two series of Securities, such series of Securities to be hereinafter sometimes called “Securities of Series No. 1” and “Securities of Series No. 2.”
As contemplated in Section 301 of the Original Indenture, the Company further wishes to establish the designation and terms of the Securities of Series No. 1 and the Securities of Series No. 2. The Company has duly authorized the execution and delivery of this Supplemental Indenture No. 1 to establish the designation and terms of each such series of Securities and has duly authorized the issuance of such Securities; and all acts necessary to make this Supplemental Indenture No. 1 a valid agreement of the Company, and to make the Securities of Series No. 1 and the Securities of Series No. 2 valid obligations of the Company, have been performed.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE NO. 1 WITNESSETH, that, for and in consideration of the premises and of the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed as follows:
ARTICLE ONE
SECURITIES OF SERIES NO. 1 AND SERIES NO. 2
Section 101. Creation of Series No. 1.
There is hereby created a series of Securities designated “Senior Notes, 2.125% Series due 2015,” and the Securities of such series shall:
(a) be issued initially in the aggregate principal amount of $400,000,000 and shall be limited to such aggregate principal amount (except as contemplated in Section 301(b) of the Original Indenture); provided, however, that, as contemplated in the last paragraph of Section 301 of the Original Indenture, additional Securities of such series may be subsequently issued from time to time, without any consent of Holders of the Securities of such series, if and to the extent that, prior to each such subsequent issuance, the aggregate principal amount of the additional Securities then to be issued shall have been set forth in a Supplemental Indenture or an Officer’s Certificate, and, thereupon, the Securities of such series shall be limited to such aggregate principal amount as so increased (except as aforesaid and subject to further such increases);
(b) have such terms as are established in an Officer’s Certificate as contemplated in Section 301 of the Original Indenture; and
(c) be in substantially the form or forms established therefor in an Officer’s Certificate, as contemplated by Section 201 of the Original Indenture.
Section 102. Creation of Series No. 2.
There is hereby created a series of Securities designated “Senior Notes, 3.750% Series due 2020,” and the Securities of such series shall:
(a) be issued initially in the aggregate principal amount of $475,000,000 and shall be limited to such aggregate principal amount (except as contemplated in Section 301(b) of the Original Indenture); provided, however, that, as contemplated in the last paragraph of Section 301 of the Original Indenture, additional Securities of such series may be subsequently issued from time to time, without any consent of Holders of the Securities of such series, if and to the extent that, prior to each such subsequent issuance, the aggregate principal amount of the additional Securities then to be issued shall have been set forth in a Supplemental Indenture or an Officer’s Certificate, and, thereupon, the Securities of such series shall be limited to such aggregate principal amount as so increased (except as aforesaid and subject to further such increases);
(b) have such terms as are established in an Officer’s Certificate as contemplated in Section 301 of the Original Indenture; and
(c) be in substantially the form or forms established therefor in an Officer’s Certificate, as contemplated by Section 201 of the Original Indenture.
ARTICLE TWO
COVENANTS
Section 201. Satisfaction and Discharge.
The Company hereby agrees that, if the Company shall make any deposit of money and/or Eligible Obligations with respect to any Securities of Series No. 1 or Series No. 2, or any portion of the principal amount thereof, as contemplated by Section 701 of the Indenture, the Company shall not deliver an Officer’s Certificate described in clause (z) in the first paragraph of said Section 701 unless the Company shall also deliver to the Trustee, together with such Officer’s Certificate, either:
(a) an instrument wherein the Company, notwithstanding the satisfaction and discharge of its indebtedness in respect of such Securities, shall retain the obligation (which shall be absolute and unconditional) to irrevocably deposit with the Trustee or Paying Agent such additional sums of money, if any, or additional Eligible Obligations (meeting the requirements of Section 701), if any, or any combination thereof, at such time or times, as shall be necessary, together with the money and/or Eligible Obligations theretofore so deposited, to pay when due the principal of and premium, if any, and interest due and to become due on such Securities or portions thereof, all in accordance with and subject to the provisions of said Section 701; provided, however, that such instrument may state that the obligation of the Company to make additional deposits as aforesaid shall be subject to the delivery to the Company by the Trustee of a notice asserting the deficiency accompanied by an opinion of an independent public accountant of nationally recognized standing, selected by the Trustee, showing the calculation thereof (which opinion shall be obtained at the expense of the Company); or
(b) an Opinion of Counsel to the effect that the Holders of such Securities, or portions of the principal and amount thereof, will not recognize income, gain or loss for United States federal income tax purposes as a result of the satisfaction and discharge of the Company’s indebtedness in respect thereof and will be subject to United States federal income tax on the same amounts, at the same times and in the same manner as if such satisfaction and discharge had not been effected.
Section 202. Negative Pledge.
(a) The Company agrees that for so long as any Securities of Series No. 1 or Series No. 2 shall remain Outstanding, without consent of the Holders of a majority in principal amount of the Outstanding Securities of each such series, the Company shall not create, incur or assume any Lien (other than Permitted Liens) upon the common stock of Kentucky Utilities Company or Louisville Gas and Electric Company, whether now owned or hereafter acquired, in order to secure any Debt of the Company. The foregoing agreement shall not restrict the ability of Subsidiaries or Affiliates of the Company to create, incur or assume any Lien upon their properties or assets.
(b) The provisions of subsection (a) above shall not prohibit the creation, issuance, incurrence or assumption of any Lien if either:
(1) the Company shall make effective provision whereby all Securities of Series No. 1 and Series No. 2 then Outstanding shall be secured equally and ratably with all other Debt then outstanding under such Lien; or
(2) the Company shall deliver to the Trustee bonds, notes or other evidences of indebtedness secured by the Lien which secures such Debt (hereinafter called “Secured Obligations”) (A) in an aggregate principal amount equal to the aggregate principal amount of the Securities of Series No. 1 and Series No. 2 then Outstanding, (B) maturing (or being subject to mandatory redemption) on such dates and in such principal amounts that, at each Stated Maturity of the Outstanding Securities of Series No. 1 and Series No. 2, there shall mature (or be redeemed) Secured Obligations equal in principal amount to such Securities then to mature and (C) containing, in addition to any mandatory redemption provisions applicable to all Secured Obligations outstanding under such Lien and any mandatory redemption provisions contained therein pursuant to clause (B) above, mandatory redemption provisions correlative to the provisions, if any, for the mandatory redemption (pursuant to a sinking fund or otherwise) of the Securities of Series No. 1 and Series No. 2 or for the redemption thereof at the option of the Holder, as well as a provision for mandatory redemption upon an acceleration of the maturity of all Outstanding Securities of Series No. 1 and Series No. 2 following an Event of Default (such mandatory redemption to be rescinded upon the rescission of such acceleration); it being expressly understood that such Secured Obligations (X) may, but need not, bear interest, (Y) may, but need not, contain provisions for the redemption thereof at the option of the issuer, any such redemption to be made at a redemption price or prices not less than the principal amount thereof and (Z) shall be held by the Trustee for the benefit of the Holders of all Securities of Series No. 1 and Series No. 2, as applicable, from time to time Outstanding subject to such terms and conditions relating to surrender to the Company, transfer restrictions, voting, application of payments of principal and interest and other matters as shall be set forth in an indenture supplemental hereto specifically providing for the delivery to the Trustee of such Secured Obligations.
(c) If the Company shall elect either of the alternatives described in subsection (b) above, the Company shall deliver to the Trustee:
(1) an indenture supplemental to the Original Indenture (A) together with any appropriate inter-creditor arrangements, whereby such Securities of Series No. 1 and Series No. 2 then Outstanding shall be secured by the Lien referred to in subsection (b) above equally and ratably with all other indebtedness secured by such Lien or (B) providing for the delivery to the Trustee of Secured Obligations;
(2) an Officer’s Certificate (A) stating that, to the knowledge of the signer, (i) no Event of Default has occurred and is continuing and (ii) no event has occurred and is continuing which entitles the secured party under such Lien to accelerate the maturity of the indebtedness outstanding thereunder and (B) stating the aggregate principal amount of indebtedness issuable, and then proposed to be issued, under and secured by such Lien; and
(3) an Opinion of Counsel (A) if the Securities of Series No. 1 or Series No. 2, as the case may be, then Outstanding are to be secured by such Lien, to the effect that all such Securities then Outstanding are entitled to the benefit of such Lien equally and ratably with all other indebtedness outstanding under such Lien or (B) if Secured Obligations are to be delivered to the Trustee, to the effect that such Secured Obligations constitute valid obligations and are secured by such Lien equally and ratably with all other indebtedness then secured by such Lien.
(d) For the purposes of this Section 202, except as otherwise expressly provided or unless the context otherwise requires:
(1) “Debt”, with respect to any Person, means (A) indebtedness of such Person for borrowed money evidenced by a bond, debenture, note or other similar written instrument or agreement by which such Person is obligated to repay such borrowed money and (B) any guaranty by such Person of any such indebtedness of another Person. “Debt” does not include, among other things, (W) indebtedness of such Person under any installment sale or conditional sale agreement or any other agreement relating to indebtedness for the deferred purchase price of property or services, (X) any trade obligations (including obligations under agreements relating to the purchase and sale of any commodity, including power purchase or sale agreements, and any commodity ▇▇▇▇▇▇ or derivatives regardless or whether such transaction is a “financial” or physical transaction) or other obligations of such Person in the ordinary course of business, (Y) obligations of such Person under any lease agreement (including any lease intended as security), whether or not such obligations are required to be capitalized on the balance sheet of such Person under United States generally accepted accounting principles, or (Z) liabilities secured by any Lien on any property owned by such Person if and to the extent that such Person has not assumed or otherwise become liable for the payment thereof.
(2) “Lien” means any lien, mortgage, deed of trust, pledge or security interest, in each case, intended to secure the repayment of Debt, except for any Permitted Lien.
(3) “Permitted Liens” means
(A) any Liens existing at November 12, 2010;
(B) any Liens securing Debt which matures less than one year from the date of issuance or incurrence thereof and is not extendible at the option of the issuer, and any refundings, refinancings and/or replacements of any such Debt by or with similar secured Debt;
(C) other Liens securing Debt the principal amount of which does not exceed 10% of the total assets of the Company and its consolidated Subsidiaries as shown on the Company’s most recent audited consolidated balance sheet; and
(D) any Liens granted in connection with extending, renewing, replacing or refinancing, in whole or in part, the Debt secured by liens described in the foregoing clauses (A) through (C), to the extent of such Debt so extended, renewed, replaced or refinanced.
Section 203. Financial Statements.
So long as any Securities of Series No. 1 or Series No. 2 are Outstanding under the Indenture, during such periods as the Company shall not be subject to the periodic reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the Company shall make available to Holders of such Securities by means of posting on its website or other similar means:
(a) as soon as reasonably available and in any event within 120 days after the end of each fiscal year, the Company’s audited consolidated balance sheet, income statement and cash flow statement for such fiscal year prepared in accordance with United States generally accepted accounting principles (with notes to such financial statements), together with an audit report thereon by an independent accounting firm of established national reputation, and a management’s narrative analysis of the results of operations explaining the reasons for material changes in the amount of revenue and expense items between the most recent fiscal year presented and the fiscal year immediately preceding it, as described in Instruction I(2)(a) of Form 10-K.
(b) as soon as reasonably available and in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year, the Company’s unaudited consolidated balance sheet, unaudited consolidated income statement and unaudited consolidated cash flow statement for such fiscal quarter prepared in accordance with United States generally accepted accounting principles (with notes to such financial statements) and a management’s narrative analysis of the results of operations explaining the reasons for material changes in the amount of revenue and expense items between the most recent fiscal year-to-date period presented and the corresponding year-to-date period in the preceding fiscal year, as described in Instruction H(2)(a) to Form 10-Q.
If the Company is unable, for any reason, to post the financial statements on its website, it shall furnish the financial statements to the Trustee, who, at the expense of the Company, will furnish them to the Holders of such Securities, subject to the protections made available to the Trustee by the last paragraph of Section 1002 of the Original Indenture. In addition, for so long as any of such Securities remain Outstanding, the Company will furnish to prospective purchasers of such Securities, upon their request, the information described above as well as any other information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act of 1933, as amended, for compliance with Rule 144A.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
Section 301. Single Instrument.
This Supplemental Indenture No. 1 is a supplement to the Original Indenture. As supplemented by this Supplemental Indenture No. 1, the Original Indenture is in all respects ratified, approved and confirmed, and the Original Indenture and this Supplemental Indenture No. 1 shall together constitute the Indenture.
Section 302. Effect of Headings.
The Article and Section headings in this Supplemental Indenture No. 1 are for convenience only and shall not affect the construction hereof.
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This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture No. 1 to be duly executed as of the day and year first written above.
LG&E AND KU ENERGY LLC
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
THE BANK OF NEW YORK MELLON, as Trustee
By:/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President