As filed with the Securities and Exchange Commission on
December 21, 1994.
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WEST PENN POWER COMPANY
(Exact name of registrant as specified in its charter)
PENNSYLVANIA 13-5480882
(State of incorporation) (I.R.S. Employer
Identification No.)
800 Cabin Hill Drive
Greensburg, PA 15601
(412) 837-3000
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
NANCY H. GORMLEY, Esq.
Vice President
Allegheny Power System, Inc.
12 East 49th Street
New York, New York 10017
(212) 752-2121
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
ROBERT E. BUCKHOLZ, JR., Esq. JAMES M. COTTER, Esq.
Sullivan & Cromwell Simpson Thacher & Bartlett
125 Broad Street 425 Lexington Avenue
New York, New York 10004 New York, New York 10017
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration
Statement.
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment plans,
please check the following box. [ ]
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment
plans, check the following box. [X]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Amount maximum maximum Amount of
Title of each class of to be offering price aggregate registration
securities to be registered registered per unit(1)(2) offering price(1)(2) fee
<S> <C> <C> <C> <C>
Preferred Stock 400,000 shares. $100 $40,000,000 $13,793
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Exclusive of accrued dividends, if any.
Pursuant to Rule 429 under the Securities Act of 1933, the
Prospectus included in this Registration Statement is a combined
prospectus and also relates to First Mortgage Bonds and Preferred
Stock registered under Registration Statements Nos. 33-51303, 33-
56260 and 33-52862. This Registration Statement also constitutes
post-effective amendment No. 1 to Registration Statement No. 33-
51303 and post-effective amendment No. 3 to Registration
Statements Nos. 33-56260 and 33-52862. Such post-effective
amendments shall hereafter become effective concurrently with the
effectiveness of this Registration Statement in accordance with
Section 8(c) of the Securities Act of 1933.
The registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective date
until the registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall
become effective on such date as the Commission, acting pursuant
to said Section 8(a), may determine.
<PAGE>
Information contained herein is subject to completion or
amendment. A registration statement relating to these securities
has been filed with the Securities and Exchange Commission. These
securities may not be sold nor may offers to buy be accepted prior
to the time the registration statement becomes effective. This
prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of
these securities in any State in which such offer, solicitation or
sale would be unlawful prior to registration or qualification
under the securities laws of any such State.
<PAGE>
PROSPECTUS
SUBJECT TO COMPLETION, DATED DECEMBER 21, 1994
First Mortgage Bonds
Preferred Stock
(par value $100)
WEST PENN POWER COMPANY
West Penn Power Company (the "Company") may offer and
sell, from time to time in one or more series, or all at one time
in one or more series, up to $130,000,000 aggregate principal
amount of its First Mortgage Bonds (the "New Bonds") and up to
900,000 shares of its Preferred Stock (par value $100) ("New
Preferred Stock" and together with the New Bonds, the
"Securities") at prices and on terms to be determined at the time
of sale. This Prospectus will be supplemented by one or more
prospectus supplements ("Prospectus Supplement") which will set
forth in the case of an offering of New Bonds, the aggregate
principal amount, maturity, interest rate (or method of
calculating the interest rate), any redemption provisions,
offering price, proceeds to the Company, and any other specific
terms of the particular series of New Bonds and, in the case of an
offering of New Preferred Stock, the specific designation, number
of shares, rate and time of payment of dividends, or manner of
determining such rate and time, offering price, any redemption
provisions, proceeds to the Company, and any other specific terms
of the particular series of the New Preferred Stock. Unless
otherwise provided in a Prospectus Supplement, the sale of one
series of New Bonds or of one series of New Preferred Stock will
not be contingent upon the sale of any other series of New Bonds
or New Preferred Stock, as the case may be.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is December , 19 .
<PAGE>
AVAILABLE INFORMATION
West Penn Power Company (the "Company"), 800 Cabin
Hill Drive, Greensburg, PA 15601 (tel. 412-837-3000), is subject
to the informational requirements of the Securities Exchange Act
of 1934 and in accordance therewith files reports and other
information with the Securities and Exchange Commission (the
"Commission"). Such reports and other information filed by the
Company can be inspected at the public reference facilities of the
Commission, Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549; Suite 1400, 500 West Madison Street,
Chicago, Illinois 60661; and Room 1400, 7 World Trade Center, New
York, New York 10048. Copies of such material can be obtained
from the Public Reference Section of the Commission at prescribed
rates. Requests should be directed to the Commission's Public
Reference Section, Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549. Certain securities of the Company
are listed on the New York Stock Exchange, Inc., and reports and
other information concerning the Company can be inspected at the
offices of such Exchange.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the
Company with the Commission pursuant to the Securities Exchange
Act of 1934, are hereby incorporated by reference in this
Prospectus:
(i) The Annual Report of the Company on Form 10-K
for the year ended December 31, 1993 (the
"Annual Report");
(ii) The Quarterly Reports of the Company on Form 10-
Q for the Quarters ended March 31, 1994, June
30, 1994 and September 30, 1994; and
(iii) The Current Report of the Company on Form 8-K
dated August 2, 1994.
<PAGE>
All documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934 after the date of this Prospectus and prior to the
termination of the offering of the Securities offered hereby shall
be deemed to be incorporated in this Prospectus by reference and
to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any subsequently filed document
which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified
or superseded shall not be deemed, except as modified or
superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without
charge to each person to whom a copy of this Prospectus has been
delivered, on the written or oral request of any such person, a
copy of any or all of the documents referred to above which have
been or may be incorporated by reference in this Prospectus, other
than exhibits to such documents. Requests for such copies should
be directed to: West Penn Power Company, 800 Cabin Hill Drive,
Greensburg, PA 15601, Attention: Mr. Kenneth D. Mowl, Secretary
and Treasurer (tel. 412-837-3000).
<PAGE>
THE COMPANY
The Company, incorporated in Pennsylvania in 1916, is
an electric utility operating in western, north and south central
Pennsylvania which owns generating capacity in Pennsylvania and
West Virginia. The Company is a wholly-owned subsidiary of
Allegheny Power System, Inc. and, together with Monongahela Power
Company ("Monongahela"), The Potomac Edison Company ("Potomac
Edison") and Allegheny Generating Company ("AGC") (collectively,
the "affiliates"), makes up the Allegheny Power integrated
electric utility system (the "System"). The Company owns 45% of
the common stock of AGC, and Monongahela and Potomac Edison own
the remainder of AGC's common stock. AGC owns an undivided 40%
interest (840 MW) in a pumped-storage hydroelectric station in
Bath County, Virginia, which is operated by an unaffiliated
company.
SELECTED INFORMATION
The following selected information is qualified in its
entirety by the detailed information appearing elsewhere in this
Prospectus and by the information and financial statements
(including the notes thereto) appearing in the documents
incorporated in this Prospectus by reference.
<TABLE>
<CAPTION>
Twelve Months
Ended Years Ended December 31,
September 30, 1994 1993 1992 1991 1990 1989
Generating capability at end of
period (KW in Thousands):
Company-owned:
<S> <C> <C> <C> <C> <C> <C>
Coal-fired.................................... 3,160 3,160 3,160 3,160 3,160 3,115
Pumped-storage (a)............................ 378 378 378 378 378 378
Hydro......................................... 52 52 52 52 52 52
Nonutility contract (b)......................... 133 133 133 133 133 133
Maximum hour peak demand
(KW in Thousands)................................ 3,068 2,954 2,935 2,845 2,703 2,840
Sales (KWh in Millions):
Retail customers................................. 16,734 16,317 15,830 15,408 15,179 14,816
Nonaffiliated utilities (c)...................... 4,717 5,445 7,780 7,684 9,343 10,580
Other, including affiliates (c).................. 1,773 1,821 2,248 2,485 2,426 1,868
Customers (at end of period)...................... 650,603 646,732 640,219 633,636 627,479 621,056
</TABLE>
(a) Capacity entitlement through percentage ownership of AGC.
(b) Nonutility generating capacity available through contractual
arrangements pursuant to the Public Utility Regulatory
Policies Act of 1978.
(c) Amounts for periods prior to 1991 have been reclassified for
comparative purposes to reflect a change in a Federal
Energy Regulatory Commission classification.
<PAGE>
<TABLE>
<CAPTION>
CAPITALIZATION
September 30, 1994
Amount Percent
(Thousands of Dollars)
<S> <C> <C>
Common Stock, Other Paid-in Capital, and Retained Earnings..... $ 902,721 47.1%
Preferred Stock (Not Subject to Mandatory Redemption).......... 149,708 7.8
Long-Term Debt................................................. 863,302 45.1
Total Capitalization................................... $1,915,731 100.0%
</TABLE>
INCOME STATEMENT SUMMARY
The following summary income information as to the years ended
December 31, 1989 through 1993 should be read in conjunction with the audited
Financial Statements contained in the Annual Report. The unaudited income
information for the twelve months ended September 30, 1994 reflects all
adjustments (which consist only of normal recurring adjustments) which
in the Company's opinion are necessary for fair presentation of that period.
<TABLE>
<CAPTION>
Twelve Months
Ended Years Ended December 31,
September 30, 1994 1993 1992 1991 1990 1989
(Thousands of Dollars)
Income Statement Data:
<S> <C> <C> <C> <C> <C> <C>
Total Operating Revenues*.............. $1,140,943 $1,084,977 $1,076,841 $1,070,803 $1,058,852 $1,015,647
Operating Income....................... 149,978 141,352 130,938 134,854 124,725 114,060
Income Before Interest
Charges.............................. 167,863 159,157 150,482 151,806 140,465 133,138
Interest Charges....................... 55,524 57,096 52,326 50,628 47,212 44,887
Consolidated Net Income................ 112,339 102,061 98,156 101,178 93,253 88,251
Ratio of Earnings to Fixed
Charges.............................. 3.79 3.49 3.51 3.80 3.51 3.41
Ratio of Earnings to Fixed
Charges and Preferred Stock
Dividend Requirements................ 3.15 2.92 2.97 3.19 2.95 2.86
</TABLE>
*Amounts for periods prior to 1991 have been reclassified for comparative
purposes to reflect a change in a Federal Energy Regulatory Commission
classification.
USE OF PROCEEDS
The net proceeds from the sale of the Securities will
be added to the Company's general funds and, together with other
funds available to the Company, will be used to pay or prepay, to
the extent desirable, debt, to redeem outstanding bonds and
preferred stock, and for other corporate purposes, including the
financing of the Company's construction program.
<PAGE>
CONSTRUCTION AND FINANCING
Construction expenditures by the Company in 1993
amounted to $251 million and for 1994 and 1995 are expected to
aggregate $258 million and $208 million, respectively. In 1993,
these expenditures included $118 million for environmental
protection, of which $104 million was for compliance with the
Clean Air Act Amendments of 1990 (the "CAAA"). The 1994 and 1995
estimated expenditures include $95 million and $51 million,
respectively, for environmental protection, of which $82 million
and $33 million, respectively, are to cover costs of compliance
with the CAAA. Allowance for funds used during construction
(AFUDC)(shown below) has been reduced for carrying charges on CAAA
expenditures that will be collected through currently approved
base rates.
<TABLE>
<CAPTION>
1993 1994 1995
(Millions of Dollars)
<S> <C> <C> <C>
Generation.............................................. $152.0 $165.7 $118.2
Transmission and Distribution........................... 81.0 69.5 70.9
Other................................................... 18.0 22.7 18.9
Total............................................. $251.0 $257.9 $208.0
Allowance for Funds used During Construction
Included Above........................................ $8.6 $12.7 $6.2
</TABLE>
In connection with its construction and demand-side
management programs, the Company must make estimates of the
availability and cost of capital as well as the future demands of
its customers that are necessarily subject to regional, national,
and international developments, changing business conditions, and
other factors. The construction of facilities and their cost are
affected by laws and regulations, lead times in manufacturing,
availability of labor, materials and supplies, inflation, interest
rates, and licensing, rate, environmental, and other proceedings
before regulatory authorities. As a result, the Company's future
plans, as well as its projected ownership of future generating
stations, are subject to continuing review and substantial change.
The Company has financed its construction program
through internally generated funds, first mortgage bond and
preferred stock issues, pollution control and solid waste disposal
bonds, instalment loans, long-term lease arrangements, equity
investments by its parent, and, where necessary, interim short-
term debt. The future ability of the Company to finance its
construction program by these means depends on many factors,
including rate levels sufficient to provide internally generated
funds and adequate revenues to produce a satisfactory return on
the common equity portion of the Company's capital structure and
to support the issuance of senior and other securities.
<PAGE>
DESCRIPTION OF THE NEW BONDS
General
The New Bonds are to be issued under an Indenture, dated as
of March 1, 1916, between the Company and The Chase Manhattan Bank
(National Association), as Trustee, as supplemented and as to be
supplemented as is necessary to create any series of New Bonds
(collectively, the "Indenture") and under resolutions of the Board
of Directors of the Company creating New Bonds (the "Board
Resolutions"). The Trustee is a depositary of funds of, and a
lender to, the Company and its affiliates.
The statements under this caption relating to the New Bonds,
the Indenture and the Board Resolutions are summaries and do not
purport to be complete. They make use of terms defined in the
Indenture and the Board Resolutions and are qualified in their
entirety by express reference to the Indenture and the Board
Resolutions, the form of which will be filed as exhibits to the
Registration Statement of which this Prospectus is a part.
Reference is made to the Prospectus Supplement relating to
the particular New Bonds offered thereby (the "Offered New Bonds")
for the terms of the Offered New Bonds, including dates of
maturity, the rates of interest, and the prices at which, the
periods within which, and the terms and conditions upon which, the
Offered New Bonds may, pursuant to any optional or mandatory
redemption provisions, be redeemed by the Company.
<PAGE>
Unless otherwise indicated in the Prospectus Supplement
relating thereto, the Offered New Bonds are to be issued as
registered securities without coupons in denominations of $1,000
or any integral multiple of $1,000. They will be transferable and
exchangeable without charge except for governmental charges, if
any.
The Indenture does not contain any covenants or other
provisions that are specifically intended to afford holders of the
New Bonds special protection in the event of a highly leveraged
transaction.
Maintenance and Depreciation Provisions
The Company must annually credit to a depreciation reserve
account at least 2% of the average principal amount of Bonds
outstanding during such year, in addition to expenditures for
repairs and renewals, and must within one (1) year thereafter
expend such amount in property additions. The Company must also
expend annually for maintenance and repairs 2-1/2% of the average
principal amount of Bonds outstanding during such year, with a
credit for expenditures in the three (3) previous years in excess
of the sum covenanted to be so expended. If the amount covenanted
to be so expended exceeds requirements, the Company must apply any
unexpended balance to property additions.
On or before May 1 in each year, as long as any of the Bonds
of Series U, EE, FF, GG, HH or II ("Prior Bonds") are
outstanding, the Company is required to pay to the Trustee as a
Renewal and Replacement Fund an amount equal to 2-1/4% of the
<PAGE>
average amount of Depreciable Property of the Company during the
preceding year less certain optional credits for expenditures for
replacements, property additions and Bonds retired. Cash
deposited may be used to purchase or redeem Prior Bonds or
withdrawn against Prior Bonds or property additions. Excess
credits may be used in any subsequent year. The Company has
reserved the right to change the 2-1/4% with the approval of the
Commission.
The maintenance and depreciation provisions for the various
series overlap in many respects and, accordingly, may be satisfied
by the same expenditures and credit.
Security
The New Bonds will be equally and ratably secured, together
with all other Bonds now or hereafter issued, by a direct first
mortgage lien on all real estate (including easements), fixed
property and franchises now or hereafter owned by the Company
subject to no liens securing indebtedness except taxes for the
current year and those not yet due and liens existing on property
acquired. The lien on certain after-acquired property may be
subject to rights of others which attach prior to the recording of
a supplemental indenture subjecting such property to the
Indenture.
The Company, subject to the meeting of certain requirements,
may acquire property subject to liens, which, as to property
covered thereby, will rank prior to the lien of the Indenture.
<PAGE>
Issuance of Additional Bonds
Additional Bonds may be issued in an amount equal to (1) 60%
of the lesser of cost or fair value of property additions, (2)
cash deposited with the Trustee and (3) Bonds retired or to be
retired. Cash deposited may be withdrawn in the amount of the
Bonds issuable as shown in (1). Bonds are issuable as shown in
(1) and (except as to Bonds issued to refund Bonds or prior lien
obligations which bear a higher interest rate or mature within 2
years of the refunding) as shown in (3) only if net earnings of
the Company available for bond interest for a specified period are
not less than twice interest charges for a like period on all
Bonds then outstanding and applied for and on prior lien
obligations. In calculating such net earnings, (a) there is
deducted for depreciation a sum equal to the higher of (i) 2-1/4%
per annum of Depreciable Property or (ii) book depreciation, and
(b) in the case of (1) after consent by certain of the present
Bonds outstanding or after such certain of the present Bonds are
no longer outstanding, no deduction shall be made for any income,
excess profits or other taxes measured by or dependent on income.
The Company estimates that at September 30, 1994, it had $675
million of unbonded bondable property available for the issuance
of Bonds.
The Company expects that the New Bonds will be issued on the
basis of property additions, cash or Bonds retired or to be
retired.
Modification
A majority in interest of the Bondholders may waive any
default, and the Indenture may be modified to permit qualification
<PAGE>
under the Trust Indenture Act of 1939, or substitute legislation,
without any consent of the Bondholders of the New Bonds. To the
extent permitted by the Indenture, the rights of Bondholders of
Series U, EE, FF, GG, HH, II, JJ, KK and LL, the New Bonds and
future series of Bonds may, with consent of holders of 66-2/3% of
the Bonds adversely affected, be changed in any way except to
affect the terms of payment of principal or interest or to reduce
such percentage.
Defaults
Failure to pay principal, or, for specified periods, to pay
interest or meet other Indenture requirements constitutes an event
of default. A majority of the Bondholders may direct the time,
method and place of exercising any power conferred upon the
Trustee, but the Trustee, subject during default to the required
standard of care, is first entitled to security or indemnity
satisfactory to it. Periodic evidence as to general compliance
with the Indenture is not required to be furnished unless
prescribed by the Commission under the Trust Indenture Act of
1939, but certificates as to compliance with certain provisions
are required to be furnished annually and in connection with
action to be taken by the Trustee at the Company's request.
Miscellaneous
Holders of the New Bonds must furnish the Company the
necessary evidence to enable it to determine whether deduction or
retention of any taxes from any payment of principal or interest
is required. New Bonds owned by individuals residing in
Pennsylvania are subject to the 4 mills ($4.00 on each $1,000 of
principal amount) Pennsylvania corporate loans tax. Such tax will
be withheld from interest payments to such individuals.
<PAGE>
DESCRIPTION OF THE NEW PREFERRED STOCK
The authorized preferred stock of the Company consists of
3,097,077 shares of cumulative preferred stock, par value $100
(the "Preferred Stock"), of which 1,497,077 shares were issued and
outstanding as of September 30, 1994 as shares of various series
heretofore established. The statements herein concerning the New
Preferred Stock are brief summaries of the relative rights and
preferences of the Preferred Stock. They make use of terms
defined in the Company's charter, as amended, do not purport to be
complete, and are qualified in their entirety by reference to such
charter, which has been filed as an exhibit to the Registration
Statement of which this Prospectus is a part.
As set forth below, particular series of the New Preferred
Stock may differ with respect to designation, liquidation
preference per share, sinking fund provisions, if any, amount and
method of determining the rate of dividends and redemption terms,
among other things.
Reference is made to the Prospectus Supplement relating to
the particular series of New Preferred Stock offered thereby (the
"Offered New Preferred Stock") for the specific terms of the
Offered New Preferred Stock, including the dividend rate (or, if
the rate is not fixed, the method of determining the dividend
rate), the liquidation preference per share, any provisions for
redemption (including by way of sinking fund) and other terms of
the Offered New Preferred Stock.
<PAGE>
General
The Company's charter provides that the Company's Preferred
Stock may be divided into and issued in series. The New Preferred
Stock will constitute one or more new series of the Company's
Preferred Stock. All shares of Preferred Stock are of equal rank.
The charter provides that all of the shares of Preferred Stock
shall be identical in all respects, except as to the designation
thereof and except that each series may vary, as fixed and
determined by the Board of Directors of the Company at the time of
its creation and expressed in a resolution, as to (a) the dividend
rate, (b) the price at which, and the terms and conditions on
which, such shares may be redeemed, (c) the amounts payable upon
shares in the event of voluntary or involuntary liquidation, (d)
sinking fund provisions for the redemption or purchase of shares,
and (e) the terms and conditions, if any, on which shares may be
converted.
Dividends
The holders of each series of the New Preferred Stock shall
be entitled to receive, in preference to any class of stock
ranking junior to the Preferred Stock, when, as and if declared by
the Board of Directors of the Company out of funds legally
available therefor, cumulative cash dividends at the rate
determined in accordance with the charter at the time of creation
of such series. If so specified in the Prospectus Supplement,
such dividend rate may be subject to adjustment from time to time
in the manner specified therein. The New Preferred Stock will
rank on parity, as to dividends, with all series of Preferred
Stock. No dividend shall be paid upon, or declared or set apart
<PAGE>
for, any share of Preferred Stock for any quarterly dividend
period unless at the same time a like proportionate dividend for
the same quarterly dividend period, ratably in proportion to the
respective annual dividend rates fixed therefor, shall be paid
upon, or declared and set apart for, all shares of Preferred Stock
of all series then issued and outstanding and entitled to receive
such dividend.
If any dividends are in arrears on the Preferred Stock, the
Company may not acquire (for a sinking fund or otherwise) any
shares thereof (except by redemption of all) without prior
approval of the Commission under the Public Utility Holding
Company Act of 1935.
The Company's charter provides that so long as shares of
Preferred Stock are outstanding, the Company shall not declare any
dividends or make any distributions in respect of outstanding
shares of any stock of the Company ranking junior to the Preferred
Stock as to dividends or assets (the "junior stock"), other than
dividends in shares of junior stock, or purchase or otherwise
acquire for value any outstanding shares of junior stock (each
such dividend, distribution, purchase or acquisition being called
a "dividend") in contravention of the following:
(a) If and so long as the junior stock equity, as
defined, at the end of the calendar month immediately
preceding the date on which a dividend on the junior stock
is declared is, or as a result of the dividend would become,
less than 20% of total consolidated capitalization, as
<PAGE>
defined, the Company shall not declare such dividends in an
amount which, together with all other dividends on the
junior stock paid within the year ending with and including
the date on which such dividend is payable, exceeds 50% of
the consolidated net income of the Company and its
subsidiaries available for dividends on the junior stock for
the 12 full calendar months immediately preceding the
calendar month in which such dividends are declared, except
in an amount not exceeding the aggregate of dividends which
under the restriction set forth above could have been, and
have not been, declared; and
(b) If and so long as the junior stock equity, as
defined, at the end of the calendar month immediately
preceding the date on which a dividend on the junior stock
is declared is, or as a result of the dividend would become,
less than 25% but not less than 20% of total consolidated
capitalization, as defined, the Company shall not declare
dividends on the junior stock in an amount which, together
with all other dividends on the junior stock paid within the
year ending with and including the date on which such
dividend is payable, exceeds 75% of the consolidated net
income of the Company and its subsidiaries available for
dividends on the junior stock for 12 full calendar months
immediately preceding the calendar month in which such
dividends are declared, except in an amount not exceeding
the aggregate of dividends on junior stock which under the
restriction above under (a) and in this paragraph could have
been, and have not been, declared.
<PAGE>
Liquidation Rights
In the event of any voluntary or involuntary dissolution,
liquidation or winding up of the Company, each series of Preferred
Stock, pari passu with each other, shall have preference over any
class of stock ranking junior to the Preferred Stock until an
amount equal to the amount per share determined in accordance with
the charter provisions, plus accrued dividends, shall have been
paid.
Voting Rights
The Preferred Stock has no voting rights except as indicated
below or as required by law.
If dividends on any of the Preferred Stock are in default in
an amount equivalent to four or more full quarterly dividends, and
until all such dividends in arrears have been paid, the Preferred
Stock, voting as a class, is entitled to elect a majority of the
Board of Directors. In such case, each share is entitled to one
vote for each director to be elected by the Preferred Stock, which
votes may be cast cumulatively.
A consent of two-thirds of the holders of the outstanding
shares of Preferred Stock, voting as a class, is required to
(1) change the charter to adversely affect the powers,
preferences or rights of the Preferred Stock (the vote being by
the series adversely affected, voting as a class, if less than all
series are adversely affected), but a change in the authorized
<PAGE>
amount of the Preferred Stock or the creation, or change in the
amount, of any new class of stock ranking on a parity as to
dividends or assets (hereinafter referred to as "equal rank")
with, or any class of stock ranking junior to, the Preferred Stock
is deemed not adverse; or
(2) authorize or create, or increase the authorized amount
of, or issue more than 12 months after such authorization or
creation, any prior ranking stock.
A consent of the holders of a majority of the outstanding
shares of the Preferred Stock, voting as a class, is required to
(1) issue or assume any securities representing unsecured
debt (except to refund unsecured debt or retire all outstanding
shares of Preferred Stock) if all unsecured debt to be outstanding
would exceed 20%, or all such debt with maturities of less than 10
years to be outstanding would exceed 10%, of secured indebtedness,
capital and surplus;
(2) issue any additional or reacquired shares of Preferred
Stock or stock of equal rank (except to refinance an equal par
amount of Preferred Stock or stock of equal or prior rank) unless
annual interest charges on indebtedness of the Company and its
subsidiaries to be outstanding after the issuance and annual
dividend requirements of all Preferred Stock and stock of equal or
prior rank to be outstanding after the issuance are covered 1-1/2
times by consolidated gross income (after all taxes) for 12
consecutive calendar months within the 15 preceding calendar
<PAGE>
months and unless aggregate capital applicable to junior stock
equity, as defined, is not less than the aggregate amount payable
on involuntary liquidation on all Preferred Stock and stock of
equal or prior rank to be outstanding; or
(3) dispose of substantially all of the Company's assets or
merge or consolidate except (i) with the approval of the
Commission under the Public Utility Holding Company Act of 1935,
or (ii) with or to a subsidiary of the Company, if the Preferred
Stock is not adversely affected thereby and if other conditions
are met.
Other Rights
The New Preferred Stock, when issued, will be fully paid and
non-assessable. The New Preferred Stock has no preemptive,
conversion or subscription rights.
Transfer Agent and Registrar
The transfer agent and the registrar for the Preferred Stock
is Chemical Bank, New York, New York.
PLAN OF DISTRIBUTION
The Company will sell the Securities from time to time
through underwriters or dealers in either negotiated or
competitively bid transactions. Any Securities acquired by any
underwriters will be acquired by such underwriters for their own
account and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of
<PAGE>
sale. The underwriter or underwriters with respect to a
particular underwritten offering of New Bonds or New Preferred
Stock will be named in the Prospectus Supplement relating to such
offering and, if an underwriting syndicate is used, the managing
underwriter or underwriters will be set forth on the cover page of
such Prospectus Supplement. The applicable Prospectus Supplement
will also set forth the purchase price of the New Bonds or New
Preferred Stock offered and the proceeds to the Company from such
sale, any underwriting discounts and other items constituting
underwriters' compensation, any initial public offering price and
any discounts or concessions allowed or reallowed or paid to
dealers and other specific terms of the particular Securities.
Unless otherwise set forth in a Prospectus Supplement, the
obligations of the underwriters to purchase any Securities will be
subject to certain conditions precedent, and the underwriters will
be obligated to purchase all of the particular Securities offered
thereby if any are purchased. Underwriters and dealers may be
entitled, under agreements to be entered into with the Company, to
indemnification against certain civil liabilities, including
liabilities under the Securities Act of 1933.
VALIDITY OF THE SECURITIES
The validity of the Securities offered hereby will be passed
upon for the Company by Sullivan & Cromwell, New York, New York,
and for underwriters by Simpson Thacher & Bartlett (a partnership
which includes professional corporations), New York, New York. On
matters of local law, those firms will rely on Thomas K.
Henderson, Esq., Vice President, Legal Services of the Company.
<PAGE>
EXPERTS
The consolidated financial statements incorporated in this
Prospectus by reference to the Annual Report have been so
incorporated in reliance on the reports of Price Waterhouse LLP,
independent accountants, given on the authority of said firm as
experts in auditing and accounting.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
<TABLE>
<CAPTION>
Estimated
Amounts
<S> <C>
Filing fee-Securities and Exchange Commission-1933 Act........... $ 13,793*
Transfer Agent's and Registrar's fees............................ $ 16,000
Printing and engraving........................................... $ 8,000
Rating agency fees............................................... $ 15,000
Services of counsel.............................................. $ 30,000
Services of independent accountants.............................. $ 15,000
Blue Sky and legal investment fees and expenses.................. $ 4,000
Miscellaneous.................................................... $ 7,000
Total....................................................... $108,793
* Actual.
</TABLE>
Item 15. Indemnification of Directors and Officers.
Under Article 6 of the By-laws of the Company and
Section 1741 of the Pennsylvania Business Corporation Law of 1988,
directors and officers are entitled to indemnification by the
Company against liability which they may incur in their respective
capacities as directors and officers under certain circumstances.
Directors' and Officers' Liability Insurance is carried in an
amount of $80,000,000 with a $500,000 corporate reimbursement.
In the Purchase Agreement each Purchaser will agree to
indemnify the directors and certain officers of the Company
against liabilities resulting from information the Purchaser
supplies for the Registration Statement.
Item 16. Exhibits.
Exhibit
Number
1(a) Form of First Mortgage Bond Standard
Purchase Agreement Provisions.
1(b) Form of Preferred Stock Standard Purchase
Agreement Provisions.
4(a) Articles of Incorporation, as amended and
supplemented (incorporated herein by
reference from Form S-3 of the Company,
33-51303).
II-1
<PAGE>
4(b) By-laws of the Company (incorporated
herein by reference from Form 8-K of the
Company (1-255-2) dated June 9, 1993).
4(c) Form of New Bond with respect to each
particular series of New Bonds registered
hereunder will be contained in Form of
Board Resolutions which will be filed as
Exhibit 4(f) and incorporated herein by
reference.
4(d) Indenture, dated as of March 1, 1916, and
certain Supplemental Indentures
(incorporated herein by reference from the
following documents: S-3, 33-51303, exh.
4(d); S 2-1835, exh. B(1), B(6); S 2-4099,
exh. B(6), B(7); S 2-4322, exh. B(5); S 2-
5362, exh. B(2), B(5); S 2-7422, exh.
7(c), 7(i); S 2-7840, exh. 7(d), 7(k); S
2-8782, exh. 7(e)(1); S 2-9477, exh. 4(c),
4(d); S 2-10802, exh. 4(b), 4(c); S 2-
13400, exh. 2(c), 2(d); Form 10-Q of the
Company (1-255-2), June 1980, exh. D;
Forms 8-K of the Company (1-255-2), dated
June 16, 1989, exh. 4.1; February 20,
1991, exh. 4(c); December 11, 1991, exh.
4(c); August 13, 1992, exh. 4(c);
September 15, 1992, exh. 4(c); June 9,
1993, exh. 4(c); and August 2, 1994, exh.
4(c). There are omitted the Supplemental
Indentures which do no more than subject
property to the lien of the above
Indenture since they are not considered
constituent instruments defining the
rights of the holders of long-term debt
within the meaning of Instruction 2. to
Item 601 of Regulation S-K under the
Securities Act of 1933. The Company
agrees to furnish the Commission on its
request with copies of such Supplemental
Indentures.
4(e) Form of Supplemental Indenture.
4(f) Form of Board Resolutions with respect to
each particular series of New Bonds
registered hereunder will be filed as an
exhibit to a Current Report on Form 8-K
and incorporated herein by reference.
4(g) Form of Charter amendment with respect to
a particular series of New Preferred Stock
registered hereunder will be filed as an
exhibit to a Current Report on Form 8-K
and incorporated herein by reference.
5 Opinion of Sullivan & Cromwell.
12(a) Statement re Computation of Ratios.
23(a) Consent of Price Waterhouse LLP,
Independent Accountants.
II-2
<PAGE>
23(b) Consent of Sullivan & Cromwell. (Filed as
part of Exhibit 5 hereto.)
24 Power of Attorney. (Contained in the
"Signatures" page hereof.)
25 Form T-1 Statement of Eligibility under
the Trust Indenture Act of 1939 of The
Chase Manhattan Bank (National
Association).
26(a) Form of Notice of Invitation for
Competitive Bids for First Mortgage Bonds.
26(b) Form of Invitation for Competitive Bids
for First Mortgage Bonds.
26(c) Form of Notice of Invitation for
Competitive Bids for Preferred Stock.
26(d) Form of Invitation for Competitive Bids
for Preferred Stock.
II-3
<PAGE>
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any
material change to such information in the
registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability
under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference
in this registration statement shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling
II-4
<PAGE>
persons of the registrant pursuant to the provisions described
under Item 15, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on
the day of .
WEST PENN POWER COMPANY
By KLAUS BERGMAN
(Klaus Bergman, Chairman)
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned officers
and directors of West Penn Power Company, a Pennsylvania corporation, for
himself or herself and not for one another, does hereby constitute
and appoint STANLEY I. GARNETT, II, ESQ. and NANCY H. GORMLEY, ESQ. and each
of them, a true and lawful attorney in his or her name, place and
stead, in any and all capacities, to sign his or her name to any and all
amendments,including post-effective amendments, to this Registration
Statement, and to cause the same to be filed with the Securities and
Exchange Commission, granting unto said attorneys and each of them full power
and authority to do and perform any act and thing necessary and proper to be
done in the premises, as fully and to all intents and purposes as the
undersigned could do if personally present, and each of the undersigned for
himself or herself hereby ratifies and confirms all that said attorneys or any
one of them shall lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on .
Signature Title
KLAUS BERGMAN Chairman of the Board and
(Klaus Bergman) Chief Executive Officer and Director
(principal executive officer)
KENNETH D. MOWL Secretary and Treasurer
(Kenneth D. Mowl) (principal financial officer)
CHARLES V. BURKLEY Comptroller
(Charles V. Burkley) (principal accounting officer)
ELEANOR BAUM Director
(Eleanor Baum)
WILLIAM L. BENNETT Director
(William L. Bennett)
II-6
<PAGE>
Signature Title
STANLEY I. GARNETT, II Vice President and Director
(Stanley I. Garnett, II)
WENDELL F. HOLLAND Director
(Wendell F. Holland)
PHILLIP E. LINT Director
(Phillip E. Lint)
Director
(Edward H. Malone)
FRANK A. METZ, JR. Director
(Frank A. Metz, Jr.)
ALAN J. NOIA Director
(Alan J. Noia)
JAY S. PIFER President and Director
(Jay S. Pifer)
STEVEN H. RICE Director
(Steven H. Rice)
GUNNAR E. SARSTEN Director
(Gunnar E. Sarsten)
PETER L. SHEA Director
(Peter L. Shea)
PETER J. SKRGIC Director
(Peter J. Skrgic)
II-7
<PAGE>
INDEX TO EXHIBITS
Sequential page
Exhibits number
1(a) Form of First Mortgage Bond Standard
Purchase Agreement Provisions.
1(b) Form of Preferred Stock Standard Purchase
Agreement Provisions.
4(a) Articles of Incorporation, as amended and
supplemented (incorporated herein by
reference from Form S-3 of the Company,
33-51303).
4(b) By-laws of the Company (incorporated
herein by reference from Form 8-K of the
Company (1-255-2) dated June 9, 1993).
4(c) Form of New Bond with respect to each
particular series of New Bonds registered
hereunder will be contained in Form of
Board Resolutions which will be filed as
Exhibit 4(f) and incorporated herein by
reference.
4(d) Indenture, dated as of March 1, 1916, and
certain Supplemental Indentures
(incorporated herein by reference from the
following documents: S-3, 33-51303, exh.
4(d); S 2-1835, exh. B(1), B(6); S 2-4099,
exh. B(6), B(7); S 2-4322, exh. B(5); S 2-
5362, exh. B(2), B(5); S 2-7422, exh.
7(c), 7(i); S 2-7840, exh. 7(d), 7(k); S
2-8782, exh. 7(e)(1); S 2-9477, exh. 4(c),
4(d); S 2-10802, exh. 4(b), 4(c); S 2-
13400, exh. 2(c), 2(d); Form 10-Q of the
Company (1-255-2), June 1980, exh. D;
Forms 8-K of the Company (1-255-2), dated
June 16, 1989, exh. 4.1; February 20,
1991, exh. 4(c); December 11, 1991, exh.
4(c); August 13, 1992, exh. 4(c);
September 15, 1992, exh. 4(c); June 9,
1993, exh. 4(c); and August 2, 1994, exh.
4(c). There are omitted the Supplemental
Indentures which do no more than subject
property to the lien of the above
Indenture since they are not considered
constituent instruments defining the
rights of the holders of long-term debt
within the meaning of Instruction 2. to
Item 601 of Regulation S-K under the
Securities Act of 1933. The Company
agrees to furnish the Commission on its
request with copies of such Supplemental
Indentures.
4(e) Form of Supplemental Indenture.
<PAGE>
4(f) Form of Board Resolutions with respect to
each particular series of New Bonds
registered hereunder will be filed as an
exhibit to a Current Report on Form 8-K
and incorporated herein by reference.
4(g) Form of Charter amendment with respect to
a particular series of New Preferred Stock
registered hereunder will be filed as an
exhibit to a Current Report on Form 8-K
and incorporated herein by reference.
5 Opinion of Sullivan & Cromwell.
12(a) Statement re Computation of Ratios.
23(a) Consent of Price Waterhouse LLP,
Independent Accountants.
23(b) Consent of Sullivan & Cromwell. (Filed as
part of Exhibit 5 hereto.)
24 Power of Attorney. (Contained in the
"Signatures" page hereof.)
25 Form T-1 Statement of Eligibility under
the Trust Indenture Act of 1939 of The
Chase Manhattan Bank (National
Association).
26(a) Form of Notice of Invitation for
Competitive Bids for First Mortgage Bonds.
26(b) Form of Invitation for Competitive Bids
for First Mortgage Bonds.
26(c) Form of Notice of Invitation for
Competitive Bids for Preferred Stock.
26(d) Form of Invitation for Competitive Bids
for Preferred Stock.
EXHIBIT 1(a)
WEST PENN POWER COMPANY
STANDARD PURCHASE AGREEMENT PROVISIONS -
FIRST MORTGAGE BONDS
INCLUDING
FORM OF PURCHASE AGREEMENT
STANDARD PURCHASE AGREEMENT PROVISIONS -
FIRST MORTGAGE BONDS
From time to time the Company may enter into purchase
agreements that provide for the sale of designated securities to the
purchaser or purchasers named therein. The standard provisions set forth
herein shall be incorporated by reference in such purchase agreement, a
form of which is set forth in Schedule II attached hereto ("Purchase
Agreement"). The Purchase Agreement, including the provisions
incorporated therein by reference, is herein sometimes referred to as
"this Agreement". Unless otherwise defined in Schedule I attached
hereto, terms defined or set forth in the Purchase Agreement are used
herein as therein defined.
1. Introductory. The Company proposes to issue and sell from
time to time First Mortgage Bonds registered under the registration
statements referred to in Section 2(a) (the "Bonds"). The Bonds will be
issued under an Indenture (as defined in Schedule I attached hereto) and
will have varying designations, interest rates and times of payment of
any interest, maturities, redemption provisions and other terms, with all
such terms for any particular series of the Bonds being determined at the
time of the sale. The Bonds involved in any such offering are hereinafter
referred to as the "New Bonds", and the purchaser or purchasers, as the
case may be, which agree to purchase the same are hereinafter referred
to as the "Purchasers" of such New Bonds. The terms "you" and "your"
refer to those Purchasers who sign the Purchase Agreement either on
behalf of themselves only or on behalf of themselves and as
representatives of the several Purchasers named in Schedule A thereto as
representatives of the several Purchasers name in Schedule A thereto
("Schedule A"), as the case may be, unless one of such Purchasers shall
have been appointed representative ("Representative") of all of the
Purchasers who sign the Purchase Agreement, in which case the terms
"you" and "your" shall mean such Purchaser acting in its capacity of
Representative. If there shall be only one Purchaser named in Schedule
A, the terms "Purchasers" and "Representatives" shall mean such
Purchaser. All obligations of the Purchasers are several and not joint.
2. Representations and Warranties of the Company. The
Company represents and warrants to and agrees with each Purchaser
that:
(a) One or more registration statements on Form S-3
relating to the Bonds including a prospectus and all documents
incorporated by reference therein have been filed with the
Securities and Exchange Commission (the "Commission") and
have become effective. Each such registration statement,
including the prospectus set forth therein and all prior
amendments and supplements thereto (other than supplements
and amendments relating to Bonds that are not New Bonds),
including all documents filed as a part thereof or incorporated by
reference therein, are hereinafter collectively referred to as the
"Registration Statement" and the most recent prospectus included
therein, as amended or supplemented by a prospectus supplement
with respect to the offering of New Bonds referred to in Section
1, including all material incorporated by reference therein, is
hereinafter referred to as the "Prospectus".
(b) The Registration Statement and Prospectus in all
material respects comply with the provisions of the Securities
Act of 1933, as amended (the "Act"), and the applicable rules
and regulations of the Commission thereunder (the "Rules and
Regulations") and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), the Registration Statement does not
contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading, and the Prospectus does
not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading and all documents
incorporated therein by reference, as of the respective dates on
which they were filed, complied in all material respects with the
requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the pertinent published rules
and regulations thereunder (the "Exchange Act Rules and
Regulations") and, on said dates, and at the time of purchase,
when read together with the Prospectus, or the Prospectus as it
may be otherwise amended or supplemented, will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of circumstances under which they were
made, not misleading, except that the Company makes no
warranty or representation to any Purchaser with respect to any
statement contained in, or any matter omitted from, the
Registration Statement or Prospectus, which statements were
made, or matters omitted, in reliance upon and in conformity
with information furnished in writing to the Company through
you for use in the Registration Statement and Prospectus.
(c) Since the respective dates as of which information is
given in the Registration Statement and Prospectus, there has
been no material and unfavorable change in the condition of the
Company, financial or otherwise, other than as referred to in the
Registration Statement and Prospectus.
(d) The consummation of the transactions herein
contemplated and the performance by the Company of the terms
of the Purchase Agreement will not result in the breach by the
Company of any term of, or constitute a default under, any other
material agreement or undertaking of the Company.
3. Delivery and Payment. Payment for the New Bonds shall be
made to the Company or its order by certified or official bank check or
checks in New York Clearing House (next day) funds at the office of the
Company's Counsel against the delivery of the New Bonds to you for the
respective accounts of the Purchasers at the office of the Trustee or at
such other place as shall be agreed to by the Company and you. Such
payment and delivery shall be made at 10:00 A.M., New York time, on
the date set forth in the Purchase Agreement, unless another time shall
be agreed to by the Company and by you or unless postponed in
accordance with the provisions of Section 8 hereof. The time at which
payment and delivery are actually made is hereinafter sometimes called
the "time of purchase".
The New Bonds so delivered shall be definitive Bonds in
registered form without coupons, in denominations of $1,000 or any
multiple thereof. Definitive Bonds, at the option of the Company, may
be printed or lithographed on steel engraved borders. You shall specify
the denominations of the New Bonds to be delivered and the names and
addresses in which each New Bond is to be registered, by notice
delivered to the Company not later than 10:00 A.M., New York time,
on the third business day preceding the time of purchase. For the
purpose of expediting the checking of the New Bonds by you, the
Company agrees to make the New Bonds available to you at said office
of the Trustee not later than 2:00 P.M., New York time, on the first
business day preceding the time of purchase.
4. Covenants of the Company. The Company covenants and
agrees with the several Purchasers:
(a) To cause the Prospectus to be filed with, or mailed
for filing to, the Commission pursuant to Rule 424 of the Rules
and Regulations as soon as practical, but in no event later than
5:30 P.M., New York time, on the first business day following
the date of this Agreement unless approved by the Representative
and, whenever the Company learns of any action of the
Commission or its staff affecting the effectiveness of the
Registration Statement, to advise the Representative thereof
promptly.
(b) To make generally available to its security holders (as
contemplated by Section 11(a) of the Act and Rule 158 of the
Rules and Regulations) an earnings statement of the Company
covering a 12-month period beginning the first day of the first
fiscal quarter occurring after the effective date of the Registration
Statement, as soon as reasonably practicable after the termination
of such 12-month period.
(c) To advise the Representative of each proposed
amendment or supplement to the Registration Statement or
Prospectus with respect to the New Bonds and to file no such
amendment or supplement to which the Representative shall
reasonably object in writing.
(d) To deliver to the Purchasers' counsel without charge
one executed copy of the Registration Statement (including all
amendments thereto and all exhibits not incorporated by
reference) and sufficient conformed copies of the Registration
Statement (without exhibits) for distribution of one to each
Purchaser and to deliver to the Representative as many copies of
the Prospectus as the Representative may reasonably request.
(e) As long as the Bonds are outstanding, to deliver to
the Representative upon request, and to each Purchaser who may
so request, as soon as practicable after the end of each fiscal
year a balance sheet of the Company, as of the end of such year,
and statements of income, retained earnings, capitalization, and
cash flows of the Company for such year, all as certified by its
regular independent accountants, and to deliver to the
Representative upon request, as soon as practicable after the end
of each quarterly period, income statements of the Company for
the 12 months ended with the end of such quarterly period. If the
Company should have active subsidiaries, such financial
statements shall be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in
the financial statements regularly published by the Company.
(f) For three months after the date of any Purchase
Agreement, to cooperate in qualifying the New Bonds under the
securities laws and legal investment laws of such jurisdictions
within the United States and its territories as the Representative
may reasonably request and pay the filing fees and expenses,
including reasonable fees and disbursements of Purchasers'
Counsel paid in connection therewith, except that the Company
will not submit to any State requirements which it deems unduly
burdensome.
(g) To apply the net proceeds received from the sale of
the New Bonds as stated in the Registration Statement.
(h) Except as herein otherwise provided, to pay all
expenses and taxes (except transfer taxes) in connection with (i)
the preparation and filing by it of the Registration Statement, (ii)
the issuance and delivery of the New Bonds, (iii) the preparation,
execution, filing and recording of any supplemental indenture,
and (iv) the printing and delivery to the Purchasers, through the
Representative, of reasonable quantities of copies of the
Registration Statement and the Prospectus, and any amendment
or supplement thereto, except as otherwise provided in paragraph
(i) of this Section. The Company shall not, however, be required
to pay any amount for any expenses of the Representative or any
of the Purchasers (other than as contemplated by Section 4(f)
(above), except that, if the sale of the New Bonds provided for
herein is not consummated because any condition to the
obligations of the Purchasers set forth in Section 5 hereof or any
condition to the obligations of the Company in Section 6 hereof
is not satisfied, or because of any refusal, inability or failure of
the Company to perform any agreement herein or to comply with
any provision hereof other than by reason of a default by any
Purchasers, or the Purchase Agreement shall be terminated in
accordance with the provisions of Section 7, the Company will
reimburse the Representative for the reasonable fees and
disbursements of Purchasers' Counsel, whose fees and
disbursements the Purchasers agree to pay in every other
circumstance. The Company shall not in any event be liable to
any of the Purchasers for damages on account of loss of
anticipated profits.
(i) During such period of time after the effective date of
the Registration Statement as the Purchasers are required by law
to deliver a prospectus in connection with any sale of the New
Bonds contemplated by the Prospectus, if any event relating to
or affecting the Company or of which the Company shall be
advised in writing by you shall occur which in the Company's
opinion should be set forth in a supplement or amendment to the
Prospectus in order to make the Prospectus not misleading in
light of the circumstances when it is delivered to a purchaser of
the New Bonds, to amend or supplement the Prospectus by either
(i) preparing and filing with the Commission and furnishing to
you at the Company's expense a reasonable number of copies of
a supplement or supplements or an amendment or amendments
to the Prospectus or (ii) making an appropriate filing pursuant to
Section 13 or 14 of the Exchange Act, which will supplement or
amend the Prospectus so that, as supplemented or amended, it
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the
circumstances when the Prospectus is delivered to a purchaser of
the New Bonds, not misleading; provided that should such event
relate solely to the activities of any of the Purchasers, then the
Purchasers shall assume all of the expenses in connection with
preparing any such supplement or amendment.
(j) During such period of time after the date hereof as a
prospectus relating to the New Bonds is required to be delivered
under the Act, to file promptly all documents required to be filed
with the Commission pursuant to Section 13 or 14 of the
Exchange Act.
5. Conditions to Purchasers' Obligations. The obligations of
each Purchaser hereunder to purchase New Bonds are subject to the
accuracy at the time of purchase of the representations and warranties of
the Company herein, to performance by the Company of its obligations
to be performed hereunder at or prior to the time of purchase, and to the
following further conditions at the time of purchase:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding
for such an order shall be pending or, to the knowledge of the
Company, threatened and the Representative shall have received
a certificate, dated at the time of purchase and signed by an
officer of the Company, to the effect that no such stop order is
in effect and that no proceedings for such purpose are pending
before, or to the knowledge of the Company threatened by, the
Commission.
(b) All necessary orders of the Commission under the
Public Utility Holding Company Act of 1935 and of the State
Commission(s) authorizing the issuance and sale of the New
Bonds shall be in full force and effect, and no such order shall
contain any provision unacceptable to the Representative or the
Company in their respective reasonable judgments (but all
provisions of any such orders heretofore entered and furnished
to the Representative are deemed acceptable to the Representative
and the Company).
(c) The Representative shall receive the opinions, dated
the time of purchase, of Purchasers' Counsel; Sullivan &
Cromwell; and Local Counsel, substantially in the form supplied
to you before the date of the Purchase Agreement, with
conformed copies thereof for the other Purchasers.
(d) The Representative shall receive a letter of Price
Waterhouse, dated the time of purchase, in substantially the form
supplied to you before the date of the Purchase Agreement.
(e) There shall have been no material and unfavorable
change in the condition of the Company, financial or otherwise,
from that set forth in the Registration Statement and Prospectus,
the representations and warranties of the Company herein shall
be true and correct as of the time of purchase and the
Representative shall have received a certificate to that effect
dated as of the time of purchase, signed by the Chairman, the
President or a Vice President of the Company.
6. Conditions to Company's Obligations. The obligations of the
Company hereunder are subject to the conditions set forth in paragraphs
(a) and (b) of Section 5 hereof.
7. Termination of Agreement. If a public offering of the New
Bonds is to be made by the Purchasers, this Agreement may be
terminated at any time prior to 5:00 P.M., New York time, on the first
business day following the date of this Agreement (but not after the
initial public offering of the New Bonds) by the Representative with the
consent of the Purchasers (including the Representative) who have agreed
to purchase in the aggregate 50% or more of the aggregate principal
amount of the New Bonds agreed to be purchased hereunder, if trading
in securities on the New York Stock Exchange shall have been suspended
or limited, or minimum prices shall have been established on such
exchange, or a banking moratorium shall have been declared by either
Federal or New York State authorities. This agreement may also be
terminated by the Representative, with like consent whether or not a
public offering of the New Bonds has been made, at any time prior to the
time of purchase, if the Company or any of its subsidiaries shall have
sustained a loss by fire, flood, accident or other calamity that is
substantial with respect to the property of the Company and its
subsidiaries as a whole and that, in the reasonable judgment of the
Representative, shall render it inadvisable to proceed with the delivery
of the New Bonds, whether or not such loss shall have been insured.
The time of the "initial public offering", for the purposes of this
Section 7, shall mean the time, after the execution of this Agreement, of
the release by the Representative for publication of the first newspaper
advertisement referring to the New Bonds, or the time, after the
execution of this Agreement, at which the New Bonds are first generally
offered by the Purchasers to the public or to dealers by letter or telegram
or otherwise, whichever shall first occur.
If this Agreement is terminated as provided in this Section 7, the
Company and each other Purchaser shall be notified promptly by
telephone or telegram, confirmed by letter. If this Agreement shall not
be carried out by any Purchaser for any reason permitted hereunder or
if the sale of the New Bonds to the Purchasers as herein contemplated
shall not be carried out because the Company shall be unable in good
faith to comply with any of the terms hereof or if the Company shall not
deliver the New Bonds because the conditions set forth in Section 6
hereof are not satisfied, the Company shall not be under any obligation
under this Agreement (except that the Company shall remain liable to the
extent provided in Sections 4(f), 4(h), 9 and 11 hereof) and the
Purchasers (except any Purchasers in default hereunder) shall be under
no liability to the Company (except that the Purchasers shall remain
liable to the extent provided in Sections 10 and 11 hereof) nor be under
any liability under this Agreement to one another.
8. Default of Purchasers. If any Purchaser or Purchasers default
in their obligations to purchase New Bonds hereunder and the aggregate
principal amount of New Bonds which such defaulting Purchaser or
Purchasers agreed but failed to purchase is 10% of the principal amount
of New Bonds or less, the Representative may make arrangements
satisfactory to the Company for the purchase of such New Bonds by
other persons, including any of the Purchasers, but if no such
arrangements are made by the time of purchase the non-defaulting
Purchasers shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the New Bonds which such
defaulting Purchasers agreed but failed to purchase. If any Purchaser or
Purchasers so default and the aggregate principal amount of New Bonds
with respect to which such default or defaults occur is more than the
above percentage and arrangements satisfactory to the Representative and
the Company for the purchase of such New Bonds by other persons are
not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Purchaser or
the Company, except as provided in Sections 4(f), 4(h), 9, 10 and 11. In
the event that any Purchaser or Purchasers default in their obligation to
purchase New Bonds hereunder, the Company may, by prompt written
notice to the non-defaulting Purchasers, postpone the time of purchase
for a period of not more than five full business days in order to effect
whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus or in any other documents, and the Company
will promptly file any amendments to the Registration Statement or
supplements to the Prospectus which may thereby be made necessary.
Nothing in this Section 8, however, shall operate to limit any rights
which the Company may have against any Purchaser who shall for any
reason other than a reason permitted hereunder fail to purchase the
principal amount of New Bonds purchasable by it upon tender thereof in
accordance with the terms of this Agreement. The term "Purchaser" as
used in this Agreement shall refer to and include each purchaser
substituted under this Section 8, with like effect as if said substituted
Purchaser had originally been named in Schedule A.
9. Indemnity by the Company. The Company agrees to
indemnify, defend and hold harmless each Purchaser and each person,
if any, who controls any Purchaser within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, from and against any loss,
expense, liability or claim (including the reasonable cost of investigation
and reasonable legal and other expenses) which, jointly or severally, any
such Purchaser or person may incur under the Act, or otherwise, insofar
as such loss, expense, liability or claim arises out of or is based upon
any alleged untrue statement of a material fact contained in the
Registration Statement (or in the Registration Statement as amended by
any post-effective amendment thereof) or in the Prospectus (the term
"Prospectus" for the purpose of this Section 9 shall be deemed to include
any preliminary prospectus, the prospectus included in the Registration
Statement at the time it became effective, the Prospectus, the Prospectus
as amended or supplemented and any document incorporated by
reference therein pursuant to Item 12 of Form S-3), or arises out of or
is based upon any alleged omission to state a material fact required to be
stated in either such Registration Statement or such Prospectus or
necessary to make the statements made in such Registration Statement not
misleading or necessary to make the statements in such Prospectus, in
light of the circumstances under which they were made, not misleading,
unless such alleged untrue statement or omission was made in conformity
with written information given the Company by the Purchaser through
the Representative expressly for use therein or arises out of any statement
or omission in the Statement of Eligibility of the Trustee under the
Indenture, provided, however, that with respect to any untrue statement
or omission or alleged untrue statement or omission made in any
preliminary prospectus or in the Prospectus included in the Registration
Statement at the time it became effective, the indemnity agreement
contained in this paragraph shall not inure to the benefit of any Purchaser
(or of any person controlling such Purchaser) on account of any such
loss, claim, damage or liability arising from the sale of the New Bonds
to any person unless a copy of the Prospectus (excluding any documents
incorporated by reference therein), as then supplemented or amended,
shall have been given or sent to such person by or on behalf of such
Purchaser with or prior to the written confirmation of such sale. The
Company's agreement to indemnify or reimburse any such Purchaser or
person with respect to any such loss, expense, liability or claim is
expressly conditioned upon its being notified of the action in connection
therewith brought against such Purchaser or person by letter or telegram
addressed to the Company within ten days after the summons or other
first legal process which discloses the nature of the liability or claim shall
have been personally served upon such Purchaser or person (or after he
shall have received notice of such service upon any agent designated by
him) but failure so to notify the Company shall not relieve the Company
from any liability which it may have to such Purchaser or person
otherwise than on account of the indemnity agreement contained in this
Section 9. The Company shall be entitled to assume the investigation of
any liability or claim or the defense of any suit brought to enforce any
such liability or claim and the Purchaser or person against whom such
suit is brought shall be entitled to participate in such investigation and
defense. If the Company assumes the investigation and defense, such
investigation and defense shall be conducted by counsel of good standing
chosen by the Company and satisfactory to such Purchaser or person,
and in such case such Purchaser or person shall bear the expense of his
investigation and the fees and expenses of any additional counsel retained
by him, except those incurred after notifying the Company of such claim
and prior to being advised by the Company of its intention to assume
such investigation or defense. If the Company does not assume the
investigation of any such claim or the defense of any such suit, or if the
Company shall agree in writing to pay such fees and expenses or if such
Purchaser or person shall reasonably conclude that there may be defenses
available to it or them which are different from or in addition to those
available to the Company, the Company will reimburse such Purchaser
or person for the reasonable fees and expenses of any counsel retained
by him; provided however, that in such event the Company shall be
entitled, at its own expense, to participate in the investigation or defense.
The Company's indemnity agreement contained in this Section
9 and its warranties and representations in this Agreement shall remain
in full force and effect regardless of any investigation made by or on
behalf of any Purchaser or controlling person, and shall survive any
termination of this Agreement or the issuance and delivery of the New
Bonds.
The Company agrees promptly to notify the Purchasers of the
commencement of any litigation or proceedings against the Company or
any of its officers or directors in connection with the issuance and sale
of the New Bonds, or such Registration Statement or Prospectus.
10. Warranties of and Indemnity by Purchasers.
(a) Each Purchaser warrants and represents that the
information furnished in writing to the Company through the
Representative for use in the Registration Statement or in the
Prospectus does not contain an untrue statement of a material
fact and does not omit to state a material fact in connection with
such information required to be stated therein or necessary to
make such information when used in such Registration Statement
not misleading, or necessary to make such information when
used in such Prospectus, in light of the circumstances under
which it was used, not misleading. Each Purchaser, in addition
to any other information furnished to the Company through the
Representative for use in the Registration Statement and
Prospectus, hereby authorizes the Representative to furnish to the
Company the information with regard to the terms of offering of
the New Bonds by such Purchaser, for use in the Registration
Statement.
(b) Each Purchaser severally agrees to indemnify, defend
and hold harmless the Company and its directors and officers
and each other Purchaser and each person, if any, who controls
the Company or any other Purchaser within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, from
and against any loss, expense, liability or claim (including the
reasonable cost of investigation and reasonable legal and other
expenses) which, jointly or severally, the Company or any such
person may incur under the Act or otherwise, insofar as such
loss, expense, liability or claim arises out of or is based upon
any alleged untrue statement of a material fact contained in
information furnished in writing to the Company through the
Representative for use in the Registration Statement (or in the
Registration Statement as amended by any post-effective
amendment thereto, or in the Prospectus (or in the Prospectus as
amended or supplemented), or arises out of or is based upon any
alleged omission from information furnished in writing to the
Company on behalf of any Purchaser through the Representative
to state a material fact in connection with such information
required to be stated therein or necessary to make such
information when used in such Registration Statement not
misleading, or necessary to make such information when used in
such Prospectus, in light of the circumstances under which it was
used, not misleading. The agreement of such Purchaser to
indemnify or reimburse the Company or any such person with
respect to any such loss, expense, liability or claim is expressly
conditioned upon such Purchaser being notified of the action in
connection therewith brought against the Company or any such
person, by letter or telegram addressed to such Purchaser, within
ten days after the summons or other first legal process which
discloses the nature of the liability or claim shall have been
personally served upon the Company or any such person (or
after the Company or any such person shall have received notice
of such service on any agent designated by the Company or any
such person), but failure so to notify such Purchaser shall not
relieve such Purchaser from any liability which it may have to
the Company or any such person otherwise than on account of
the indemnity agreement contained in this Section 10(b). Such
Purchaser shall be entitled to assume the investigation of any
liability or claim and the defense of any suit brought to enforce
any such liability or claim, if such liability or claim is based
solely upon such alleged misstatement or omission on the part of
such Purchaser, and the Company or any person against whom
such action is brought shall be entitled to participate in such
investigation and defense. If such Purchaser shall be entitled to
assume and does assume the investigation and defense, such
investigation and defense shall be conducted by counsel of good
standing chosen by such Purchaser and satisfactory to the Com-
pany or such person, and in such case the Company or such
person shall bear the expenses of its investigation and the fees
and expenses of any additional counsel retained by it except
those incurred after notifying such Purchaser of such claim and
prior to being advised by such Purchaser of its intention to
assume such investigation or defense. If such Purchaser shall be
entitled to assume but does not assume the investigation of any
such claim or the defense of any such suit, or if such Purchaser
shall agree in writing to pay such fees and expenses or if the
Company or such person shall reasonably conclude that there
may be defenses available to it or them which are different from
or in addition to those available to such Purchaser, such
Purchaser will reimburse the Company or such person for the
reasonable fees and expenses of any counsel retained by it;
provided, however, that in such event, such Purchaser shall be
entitled, at its own expense, to participate in the investigation or
defense.
The indemnity agreement on the part of such Purchaser
contained in this Section 10(b) and the warranties and
representations of such Purchaser contained in this Agreement
shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or such
person, and shall survive any termination of this Agreement or
the issuance and delivery of the New Bonds.
Each Purchaser agrees promptly to notify the Company
and each other Purchaser of the commencement of any litigation
or proceedings against such Purchaser in connection with the
issuance and sale of the New Bonds, or such Registration
Statement or Prospectus.
11. Contribution by the Company and the Purchasers.
(a) If the indemnification provided for in Section 9 or
Section 10 is unavailable to an indemnified party under such
Sections in respect of any losses, expenses, liabilities or claims
referred to therein, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result
of such losses, expenses, liabilities or claims (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Purchaser on
the other hand from the offering of the New Bonds or (ii) if the
allocation provided by clause (i) above is not permitted by appli-
cable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the
Purchasers on the other in connection with the statements or
omissions which resulted in such losses, expenses, liabilities or
claims, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand
and the Purchasers on the other shall be deemed to be in the
same proportion as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting
expenses) received by the Company bear to the underwriting
discounts and commissions received by the Purchasers, in each
case as set forth in the table on the cover page of the Prospectus
or Prospectus Supplement with respect to the New Bonds if the
same be so set forth. The relative fault of the Company on the
one hand and of the Purchasers on the other shall be determined
by reference to, among other things, whether the untrue
statement or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Purchasers
through you and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as
a result of the losses, claims, damages and liabilities referred to
above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such party in connection with
investigating or defending any claim or action.
(b) The Company and the Purchasers agree that it would
not be just and equitable if contribution pursuant to this Section
11 were determined by pro rata allocation (even if the Purchasers
were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 11, no
Purchaser shall be required to contribute any amount in excess
of the amount by which the total price at which the New Bonds
purchased by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Purchaser
has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent
misrepresentation. The Purchasers' obligations to contribute
pursuant to this Section 11 are several in proportion to their
respective underwriting commitments and not joint.
(c) The contribution agreement contained in this Section
11 shall remain in full force and effect regardless of any
investigation made by or on behalf of any Purchaser, or any
person who controls any Purchaser within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, or by or on
behalf of the Company, its directors and officers or any person
who controls the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, and shall survive any
termination of this Agreement or the issuance and delivery of the
New Bonds.
12. Notices. All notices hereunder shall, unless otherwise
expressly permitted, be in writing and be delivered at or mailed to the
following address, or be sent by telegram to the following address: if to
the Purchasers or you, to you at your address as it appears in the
Purchase Agreement and if to the Company, to the Company c/o
Allegheny Power System, Inc., 12 East 49th Street, New York, New
York 10017.
13. Parties in Interest. The Agreement herein set forth has been
and is made solely for the benefit of the Purchasers and the Company,
and the directors, officers and controlling persons referred to in Sections
9, 10 and 11 hereof, and their respective successors, assigns, executors
and administrators and no other person shall acquire or have any right
under or by virtue of this Agreement.
The section headings in this Agreement have been inserted as a
matter of convenience of reference and are not part of this Agreement.
The terms "Purchasers", "persons", "firms" and "corporations" as used
herein shall include the singular of such terms as well as the plural. The
term "successor" to any Purchaser shall not include any subsequent
holder of the New Bonds merely by reason of such holding.
14. Construction. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
SCHEDULE I
DEFINITIONS
"Company" means West Penn Power Company, a Pennsylvania
corporation.
"Indenture" means the Indenture, dated as of March 1, 1916,
between the Company and The Chase Manhattan Bank (National
Association), as Trustee, as supplemented and as may be supplemented
from time to time (including a supplemental indenture pertaining to the
particular series of Bonds involved in the offering).
"Purchasers' Counsel" means Simpson Thacher & Bartlett with
offices at 425 Lexington Avenue, New York, New York 10017.
"Local Counsel" means Thomas K. Henderson, Esq.
"State Commission" means the Pennsylvania Public Utility
Commission.
SCHEDULE II
PURCHASE AGREEMENT
FIRST MORTGAGE BONDS
Interest Rate: % Price: %
Date:
To: West Penn Power Company
c/o Allegheny Power System, Inc.,
12 East 49th Street
New York, New York 10017
Dear Sirs:
Referring to the First Mortgage Bonds of West Penn Power
Company (the "Company") covered by Registration Statements No.
33- and No. 33- (the "Registration Statement"), on the
basis of the representations, warranties and agreements contained in the
Standard Purchase Agreement Provisions-First Mortgage Bonds (referred
to below) and this Agreement, but subject to the terms and conditions
herein set forth, the Purchasers named in Schedule A hereto
("Purchasers") agree to purchase, severally and not jointly, and the
Company agrees to sell to the Purchasers, severally and not jointly,
$ aggregate principal amount of First Mortgage Bonds,
Series % (the "New Bonds") in the respective principal
amounts set forth opposite the names of the Purchasers on Schedule A
hereto.
The interest rate of the New Bonds and the price at which the
New Bonds shall be purchased from the Company [plus accrued interest
from ] shall be those shown above. The New Bonds will be
offered initially as set forth in the Prospectus Supplement relating to such
New Bonds.
The New Bonds will have the terms set forth in your letter of
, and draft Prospectus Supplement enclosed therewith.
All of the provisions contained in the document entitled
"Standard Purchase Agreement Provisions First Mortgage Bonds", a
copy of which has been filed as Exhibit I to the Registration Statement
No. 33- and has been previously furnished to us, are hereby
incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been
set forth in full herein.
The "time of purchase" (as defined in Section 3 of the
aforementioned Standard Purchase Agreement Provisions) shall be
, 19 .
This Agreement may be executed in one or more counterparts
and it is not necessary that the signatures of all parties appear on the
same counterpart, but such counterparts together shall constitute but one
and the same agreement.
We represent that we are authorized to act for the several
Purchasers named in Schedule A hereto in connection with this financing
and any action under this Agreement by any of us will be binding upon
all the Purchasers. If the foregoing is in accordance with your under-
standing of our agreement, kindly sign and return to us the enclosed
duplicate hereof, whereupon it will become a binding agreement between
the Company and the several Purchasers in accordance with its terms.
Very truly yours,
As Representative of the Purchasers
By
The foregoing Purchase Agreement is hereby
confirmed as of the date first above written
By______________________________________________
EXHIBIT 1(b)
WEST PENN POWER COMPANY
STANDARD PURCHASE AGREEMENT PROVISIONS -
PREFERRED STOCK
INCLUDING
FORM OF PURCHASE AGREEMENT
STANDARD PURCHASE AGREEMENT
PROVISIONS - PREFERRED STOCK
From time to time the Company may enter into purchase
agreements that provide for the sale of designated securities to the
purchaser or purchasers named therein. The standard provisions set forth
herein shall be incorporated by reference in such purchase agreement, a
form of which is set forth in Schedule II attached hereto ("Purchase
Agreement"). The Purchase Agreement, including the provisions
incorporated therein by reference, is herein sometimes referred to as
"this Agreement". Unless otherwise defined in Schedule I attached
hereto, terms defined or set forth in the Purchase Agreement are used
herein as therein defined.
1. Introductory. The Company proposes to issue and sell from
time to time shares of preferred stock registered under the registration
statements referred to in Section 2(a) (the "Preferred Stock"). The
Preferred Stock may be issued in one or more series, which series may
vary as to designation, rate and time of payment of dividends,
redemption provisions, if any, selling prices and other terms, with all
such terms for any particular series of the Preferred Stock being
determined at the time of the sale. Particular series of the Preferred
Stock will be sold pursuant to a Purchase Agreement referred to in
Section 3, for resale in accordance with terms of the offering determined
at the time of sale. The Preferred Stock involved in any such offering is
hereinafter referred to as the "New Preferred Stock", and the purchaser
or purchasers, as the case may be, which agree to purchase the same are
hereinafter referred to as the "Purchasers" of such New Preferred Stock.
The terms "you" and "your" refer to those Purchasers who sign the
Purchase Agreement either on behalf of themselves only or on behalf of
themselves and as representatives of the several Purchasers named in
Schedule A thereto ("Schedule A"), as the case may be, unless one of
such Purchasers shall have been appointed representative
("Representative") of all of the Purchasers who sign the Purchase
Agreement, in which case the terms "you" and "your" shall mean such
Purchaser acting in its capacity of Representative. If there shall be only
one Purchaser named in Schedule A, the terms "Purchasers" and
"Representatives" shall mean Purchaser. All obligations of the Purchasers
are several and not joint.
2. Representations and Warranties of the Company. The
Company represents and warrants to and agrees with each Purchaser
that:
(a) One or more registration statements on Form S-3
relating to the Preferred Stock including a prospectus and all
documents incorporated by reference therein have been filed with
the Securities and Exchange Commission (the "Commission")
and have become effective. Each such registration statement,
including the prospectus set forth therein and all prior
amendments and supplements thereto (other than supplements
and amendments relating to series of Preferred Stock that are not
New Preferred Stock), including all documents filed as a part
thereof or incorporated by reference therein, are hereinafter
collectively referred to as the "Registration Statement" and the
most recent prospectus included therein, as amended by a
prospectus supplement with respect to the offering of New
Preferred Stock referred to in Section 1, including all material
incorporated by reference therein, is hereinafter referred to as
the "Prospectus".
(b) The Registration Statement and the Prospectus in all
material respects comply with the provisions of the Securities
Act of 1933, as amended (the "Act"), and the applicable rules
and regulations of the Commission thereunder (the "Rules and
Regulations"), and the Registration Statement does not contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectus does not
contain any untrue statement of a material fact or omit to state
a material fact required to bc stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading and all documents incorporated
therein by reference as of the respective dates on which they
were filed complied in all material respects with the requirements
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the pertinent published rules and
regulations thereunder (the "Exchange Act Rules and
Regulations") and, on said dates, and at the time of purchase,
when read together with the Prospectus, or the Prospectus as it
may be otherwise amended or supplemented, will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of circumstances under which they were made,
not misleading, except that the Company makes no warranty or
representation to any Purchaser with respect to any statement
contained in, or any matter omitted from, the Registration State-
ment or Prospectus, which statements were made, or matters
omitted, in reliance upon and in conformity with information
furnished in writing to the Company through you for use in the
Registration Statement and Prospectus.
(c) Since the respective dates as of which information is
given in the Registration Statement and Prospectus, there has
been no material and unfavorable change in the condition of the
Company, financial or otherwise, other than as referred to in the
Registration Statement and Prospectus.
(d) The consummation of the transactions herein
contemplated and the performance by the Company of the terms
of the Purchase Agreement will not result in the breach by the
Company of any terms of, or constitute a default under, any
other agreement or undertaking of the Company.
3. Delivery and Payment. The obligation of the Purchasers with
respect to the New Preferred Stock will be evidenced by a Purchase
Agreement delivered at the time the Company determines to sell a
particular series of the Preferred Stock. The Purchase Agreement will
specify the date of delivery of payment, such date, or such other time as
the Representative and the Company agree as to time of payment and
delivery, being herein and in the Purchase Agreement referred to as the
"time of purchase". Payment for the New Preferred Stock shall be made
to the Company or its order by certified or official bank check or checks
in New York Clearing House (next day) funds at the office of the
Company's Counsel against the delivery of the New Preferred Stock to
you for the respective accounts of the Purchasers at the office of the
Registrar and Transfer Agent or at such other place as shall be agreed to
by the Company and you. Such payment and delivery shall be made at
10:00 A.M., New York time, on the date set forth in the Purchase
Agreement, unless another time shall be agreed to by the Company and
by you or unless postponed in accordance with the provisions of Section
8 hereof.
Certificates in definitive form for the shares of the New
Preferred Stock to be purchased by each Purchaser shall be delivered by
the Company to you, in such denominations and registered in such names
as the Representative may request by notice delivered to the Company
not later than 10:00 A.M., New York time, on the third business day
preceding the time of purchase. For the purpose of expediting the
checking of the New Preferred Stock certificates by you, the Company
agrees to make the New Preferred Stock certificates available to you at
said office of the Registrar and Transfer Agent not later than 2:00 P.M.,
New York time, on the first business day preceding the time of purchase.
The New Preferred Stock certificates, at the option of the Company, may
be printed or lithographed on steel engraved borders.
4. Covenants of the Company. The Company covenants and
agrees with the several Purchasers:
(a) To cause the Prospectus to be filed with, or mailed
for filing to, the Commission pursuant to Rule 424 of the Rules
and Regulations as soon as practicable, but in no event later than
5:30 P.M., New York time, on the first business day following
the date of this Agreement unless approved by the Representative
and, whenever the Company learns of any action of the Commis-
sion or its staff affecting the effectiveness of the Registration
Statement, to advise the Representative thereof immediately.
(b) Whenever the Representative so requests, to amend
and supplement the Registration Statement and Prospectus in
such manner as the Representative may reasonably consider
advisable in connection with any offering of the New Preferred
Stock.
(c) To advise the Representative of each proposed
amendment or supplement to the Registration Statement or
Prospectus with respect to the New Preferred Stock and to file
no such amendment or supplement to which the Representative
shall reasonably object in writing.
(d) To deliver to the Purchasers without charge one
executed copy of the Registration Statement (including all
amendments thereto and all exhibits not incorporated by
reference) and sufficient conformed copies of the Registration
Statement (without exhibits) for distribution of one to each
Purchaser and to deliver to the Representative as many copies of
the Prospectus as the Representative may reasonably request.
(e) As long as the Preferred Stock is outstanding, to
deliver to the Representative upon request, and to each Purchaser
who may so request, as soon as practicable after the end of each
fiscal year a balance sheet of the Company, as of the end of such
year, and statements of income, retained earnings, capitalization,
and cash flows of the Company for such year, all as certified by
its regular independent accountants, and to deliver to the
Representative upon request, as soon as practicable after the end
of each quarterly period, income statements of the Company for
the 12 months ended with the end of such quarterly period. If the
Company should have active subsidiaries, such financial
statements shall be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in
the financial statements regularly published by the Company.
(f) For three months after the date of any Purchase
Agreement, to cooperate in qualifying the New Preferred Stock
under the securities laws and legal investment laws of such
jurisdictions in the United States as the Representative may
reasonably request and pay the filing fees and expenses,
including reasonable fees and disbursements of Purchasers'
Counsel paid in connection therewith, except that the Company
will not submit to any State requirements which it deems unduly
burdensome.
(g) To apply the net proceeds received from the sale of
the New Preferred Stock as stated in the Registration Statement.
(h) Except as herein otherwise provided, to pay all
expenses and taxes (except transfer taxes) in connection with (i)
the preparation and filing by it of the Registration Statement, (ii)
the issuance and delivery of the New Preferred Stock, and (iii)
the printing and delivery to the Purchasers, through the
Representative, of reasonable quantities of copies of the
Registration Statement and the Prospectus, and any amendment
or supplement thereto, except as otherwise provided in paragraph
(i) of this Section. The Company shall not, however, be required
to pay any amount for any expenses of the Representative or any
of the Purchasers (other than as contemplated by Section 4(f)
above), except that, if the sale of the New Preferred Stock
provided for herein is not consummated because any condition
to the obligations of the Purchasers set forth in Section 5 hereof
or any condition to the obligations of the Company in Section 6
hereof is not satisfied, or because of any refusal, inability or
failure of the Company to perform any agreement herein or to
comply with any provision hereof other than by reason of a
default by any Purchasers, or the Purchase Agreement shall be
terminated in accordance with the provisions of Section 7, the
Company will reimburse the Representative for the reasonable
fees and disbursements of Purchasers' Counsel, whose fees and
disbursements the Purchasers agree to pay in every other circum-
stance. The Company shall not in any event be liable to any of
the Purchasers for damages on account of loss of anticipated
profits.
(i) During such period of time after the effective date of
the Registration Statement as the Purchasers are required by law
to deliver a prospectus in connection with any sale of the New
Preferred Stock contemplated by the Prospectus, if any event
relating to or affecting the Company or of which the Company
shall be advised in writing by you shall occur which in the
Company's opinion should be set forth in a supplement or
amendment to the Prospectus in order to make the Prospectus not
misleading in light of the circumstances when it is delivered to
a purchaser of the New Preferred Stock, to amend or supplement
the Prospectus by either (i) preparing and filing with the
Commission and furnishing to you at the Company's expense a
reasonable number of copies of a supplement or supplements or
an amendment or amendments to the Prospectus or (ii) making
an appropriate filing pursuant to Section 13 or 14 of the
Exchange Act, which will supplement or amend the Prospectus
so that, as supplemented or amended, it will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances when the
Prospectus is delivered to a purchaser of the New Preferred
Stock, not misleading; provided that should such event relate
solely to the activities of any of the Purchasers, then the
Purchasers shall assume the expense of preparing any such
supplement or amendment.
(j) During such period of time after the date hereof as a
prospectus relating to the New Preferred Stock is required to be
delivered under the Act, to file promptly all documents required
to be filed with the Commission pursuant to Section 13 or 14 of
the Exchange Act.
(k) To make generally available to its security holders (as
contemplated by Section 11(a) of the Act and Rule 158 of the
Rules and Regulations) an earnings statement of the Company
covering a 12-month period beginning the first day of the first
fiscal quarter occurring after the effective date of the Registration
Statement, as soon as reasonably practicable after the termination
of such 12-month period.
5. Conditions to Purchasers' Obligations. The obligations of each
Purchaser hereunder to purchase New Preferred Stock are subject to the
accuracy at the time of purchase of the representations and warranties of
the Company herein, to performance by the Company of its obligations
to be performed hereunder at or prior to the time of purchase, and to the
following further conditions at the time of purchase:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding
for such an order shall be pending or, to the knowledge of the
Company, threatened and the Representative shall have received
a certificate, dated at the time of purchase and signed by an
officer of the Company, to the effect that no such stop order is
in effect and that no proceedings for such purpose are pending
before, or to the knowledge of the Company threatened by, the
Commission.
(b) The orders of the Commission under the Public
Utility Holding Company Act of 1935, if any, and of the State
Commission authorizing the issuance and sale of the New
Preferred Stock shall be in full force and effect, and no such
order shall contain any provision unacceptable to the
Representative or the Company in their respective reasonable
judgments (but all provisions of any such orders heretofore
entered and furnished to the Representative are deemed
acceptable to the Representative and the Company).
(c) The Representative shall receive the opinions, dated
the time of purchase, of Purchasers' Counsel; Sullivan &
Cromwell; and Local Counsel, substantially in the form supplied
to you before the date of the Purchase Agreement, with
conformed copies thereof for the other Purchasers.
(d) The Representative shall receive a letter of Price
Waterhouse, dated the time of purchase, in substantially the form
supplied to you before the date of the Purchase Agreement.
(e) There shall have been no material and unfavorable
change in the condition of the Company, financial or otherwise,
from that set forth in the Registration Statement and Prospectus,
the representations and warranties of the Company herein shall
be true and correct as of the time of purchase and the
Representative shall have received a certificate to that effect
dated as of the time of purchase, signed by the Chairman, the
President or a Vice President of the Company.
6. Conditions to Company's Obligations. The obligations of the
Company hereunder are subject to the conditions set forth in paragraphs
(a) and (b) of Section 5 hereof.
7. Termination of Agreement. If a public offering of the New
Preferred Stock is to be made by the Purchasers, this Agreement may be
terminated at any time prior to 5:00 p.m., New York time, on the first
business day following the date of this Agreement (but not after the
initial public offering of the New Preferred Stock by the Representative
with the consent of the Purchasers (including the Representative) who
have agreed to purchase in the aggregate 50% or more of the aggregate
principal amount of the New Preferred Stock agreed to be purchased
hereunder, if trading in securities on the New York Stock Exchange shall
have been suspended or limited, or minimum prices shall have been
established on such exchange, or a banking moratorium shall have been
declared by either Federal or New York State authorities. This
Agreement may also be terminated by the Representative, with like
consent whether or not a public offering of the New Preferred Stock has
been made, at any time prior to the time of purchase, if the Company or
any of its subsidiaries shall have sustained a loss by fire, flood, accident
or other calamity that is substantial with respect to the property of the
Company and its subsidiaries as a whole and that, in the reasonable
judgment of the Representative, shall render it inadvisable to proceed
with the delivery of the New Preferred Stock, whether or not such loss
shall have been insured.
The time of the "initial public offering", for the purposes of this
Section 7, shall mean the time, after the execution of this Agreement, of
the release by the Representative for publication of the first newspaper
advertisement referring to the New Preferred Stock, or the time, after the
execution of the Agreement, at which the New Preferred Stock are first
generally offered by the Purchasers to the public or to dealers by letter
or telegram or otherwise, whichever shall first occur.
If this Agreement is terminated as provided in this Section 7, the
Company and each other Purchaser shall be notified promptly by
telephone or telegram, confirmed by letter. If this Agreement shall not
be carried out by any Purchaser for any reason permitted hereunder or
if the sale of the New Preferred Stock to the Purchasers as herein
contemplated shall not be carried out because the Company shall be
unable in good faith to comply with any of the terms hereof or if the
Company shall not deliver the New Preferred Stock because the
conditions set forth in Section 6 hereof are not satisfied, the Company
shall not be under any obligation under this Agreement (except that the
Company shall remain liable to the extent provided in Sections 4(f), 4(h),
9 and 11 hereof) and the Purchasers (except any Purchasers in default
hereunder) shall be under no liability to the Company nor be under any
liability under this Agreement to one another.
8. Default of Purchasers. If any Purchaser or Purchasers default
in their obligations to purchase New Preferred Stock hereunder and the
number of shares of New Preferred Stock which such defaulting
Purchaser or Purchasers agreed but failed to purchase is 10% of the total
number of shares of New Preferred Stock or less, the Representative may
make arrangements satisfactory to the Company for the purchase of such
New Preferred Stock by other persons, including any of the Purchasers,
but if no such arrangements are made by the time of purchase the
non-defaulting Purchasers shall be obligated severally, in proportion to
their respective commitments hereunder, to purchase the New Preferred
Stock which such defaulting Purchasers agreed but failed to purchase. If
any Purchaser or Purchasers so default and the aggregate principal
amount of New Preferred Stock with respect to which such default or
defaults occur is more than the above percentage and arrangements
satisfactory to the Representative and the Company for the purchase of
such New Preferred Stock by other persons are not made within 36 hours
after such default, this Agreement will terminate without liability on the
part of any non-defaulting Purchaser or the Company, except as provided
in Sections 4(f), 4(h), 9, 10 and 11. In the event that any Purchaser or
Purchasers default in their obligation to purchase New Preferred Stock
hereunder, the Company may, by prompt written notice to the
non-defaulting Purchasers, postpone the time of purchase for a period of
not more than five full business days in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the
Prospectus or in any other documents, and the Company will promptly
file any amendments to the Registration Statement or supplements to the
Prospectus which may thereby be made necessary. Nothing in this
Section 8, however, shall operate to limit any rights which the Company
may have against any Purchaser who shall for any reason other than a
reason permitted hereunder fail to purchase the principal amount of New
Preferred Stock purchasable by it upon tender thereof in accordance with
the terms of this Agreement. The term "Purchaser" as used in this
Agreement shall refer to and include each Purchaser substituted under
this Section 8, with like effect as if said substituted Purchaser had
originally been named in Schedule A.
9. Indemnity by the Company. The Company agrees to
indemnify, defend and hold harmless each Purchaser and each person,
if any, who controls any Purchaser within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, from and against any loss,
expense, liability or claim (including the reasonable cost of investigation
and reasonable legal and other expenses) which, jointly or severally, any
such Purchaser or person may incur under the Act, or otherwise, insofar
as such loss, expense, liability or claim arises out of or is based upon
any alleged untrue statement of a material fact contained in the
Registration Statement (or in the Registration Statement as amended by
any post-effective amendment thereof) or in the Prospectus (the term
"Prospectus" for the purpose of this Section 9 shall be deemed to include
any preliminary prospectus, the prospectus included in the Registration
Statement at the time it became effective, the Prospectus, the Prospectus
as amended or supplemented and any document incorporated by
reference therein pursuant to Item 12 of Form S-3), or arises out of or
is based upon any alleged omission to state a material fact required to be
stated in either such Registration Statement or such Prospectus or
necessary to make the statements made in such Registration Statement not
misleading or necessary to make the statements in such Prospectus, in
light of the circumstances under which they were made, not misleading,
unless such alleged untrue statement or omission was made in conformity
with written information given the Company by the Purchaser through
the Representative expressly for use therein or arises out of any statement
or omission; provided, however, that with respect to any untrue statement
or omission or alleged untrue statement or omission made in any
preliminary prospectus or in the Prospectus included in the Registration
Statement at the time it became effective, the indemnity agreement
contained in this paragraph shall not inure to the benefit of any Purchaser
(or of any person controlling such Purchaser) on account of any such
loss, claim, damage or liability arising from the sale of the New
Preferred Stock to any person unless a copy of the Prospectus (excluding
any documents incorporated by reference therein), as then supplemented
or amended, shall have been given or sent to such person by or on behalf
of such Purchaser with or prior to the written confirmation of such sale.
The Company's agreement to indemnify or reimburse any such Purchaser
or person with respect to any such loss, expense, liability or claim is
expressly conditioned upon its being notified of the action in connection
therewith brought against such Purchaser or person by letter or telegram
addressed to the Company within ten days after the summons or other
first legal process which discloses the nature of the liability or claim shall
have been personally served upon such Purchaser or person (or after he
shall have received notice of such service upon any agent designated by
him) but failure to so notify the Company shall not relieve the Company
from any liability which it may have to such Purchaser or person
otherwise than on account of the indemnity agreement contained in this
Section 9. The Company shall be entitled to assume the investigation of
any liability or claim or the defense of any suit brought to enforce any
such liability or claim and the Purchaser or person against whom such
suit is brought shall be entitled to participate in such investigation and
defense. If the Company assumes the investigation and defense, such
investigation and defense shall be conducted by counsel of good standing
chosen by the Company and satisfactory to such Purchaser or person,
and in such case such Purchaser or person shall bear the expense of his
investigation and the fees and expenses of any additional counsel retained
by him, except those incurred after notifying the Company of such claim
and prior to being advised by the Company of its intention to assume
such investigation or defense. If the Company does not assume the
investigation of any such claim or the defense of any such suit, or if the
Company shall agree in writing to pay such fees and expenses or if such
Purchaser or person shall reasonably conclude that there may be defenses
available to it or them which are different from or in addition to those
available to the Company, the Company will reimburse such Purchaser
or person for the reasonable fees and expenses of any counsel retained
by it; provided, however, that in such event the Company shall be
entitled, at its own expense, to participate in the investigation or defense.
The Company's indemnity agreement contained in this Section 9
and its warranties and representations in this Agreement shall remain in
full force and effect regardless of any investigation made by or on behalf
of any Purchaser or controlling person, and shall survive any termination
of this Agreement or the issue and delivery of the New Preferred Stock.
The Company agrees promptly to notify the Purchasers of the
commencement of any litigation or proceedings against the Company or
any of its officers or directors in connection with the issue and sale of
the New Preferred Stock, or such Registration Statement or Prospectus.
10. Warranties of and Indemnity by Purchasers.
(a) Each Purchaser warrants and represents that the information
furnished in writing to the Company through the Representative for use
in the Registration Statement or in the Prospectus does not contain an
untrue statement of a material fact and does not omit to state a material
fact in connection with such information required to be stated therein or
necessary to make such information when used in such Registration
Statement not misleading, or necessary to make such information when
used in such Prospectus, in light of the circumstances under which it was
used, not misleading. Each Purchaser, in addition to any other
information furnished to the Company through the Representative for use
in the Registration Statement and Prospectus, hereby authorizes the
Representative to furnish to the Company the information with regard to
the terms of offering of the New Preferred Stock by such Purchaser, for
use in the Registration Statement.
(b) Each Purchaser severally agrees to indemnify, defend and
hold harmless the Company and its directors and officers and each other
Purchaser and each person, if any, who controls the Company or any
other Purchaser within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, from and against any loss, expense, liability or
claim (including the reasonable cost of investigation and reasonable legal
and other expenses) which, jointly or severally, the Company or any
such person may incur under the Act or otherwise, insofar as such loss,
expense, liability or claim arises out of or is based upon any alleged
untrue statement of a material fact contained in information furnished in
writing to the Company through the Representative for use in the
Registration Statement (or in the Registration Statement as amended by
any post-effective amendment thereof), or in the Prospectus (or in the
Prospectus as amended or supplemented), or arises out of or is based
upon any alleged omission from information furnished in writing to the
Company on behalf of any Purchaser through the Representative to state
a material fact in connection with such information required to be stated
therein or necessary to make such information when used in such
Registration Statement not misleading, or necessary to make such
information when used in such Prospectus, in light of the circumstances
under which it was used, not misleading. The agreement of such
Purchaser to indemnify or reimburse the Company or any such person
with respect to any such loss, expense, liability or claim is expressly
conditioned upon such Purchaser being notified of the action in
connection therewith brought against the Company or any such person,
by letter or telegram addressed to you, within ten days after the
summons or other first legal process which discloses the nature of the
liability or claim shall have been personally served upon the Company
or any such person (or after the Company or any such person shall have
received notice of such service on any agent designated by the Company
or any such person), but failure to so notify such Purchaser shall not
relieve such Purchaser from any liability which it may have to the
Company or any such person otherwise than on account of the indemnity
agreement contained in this Section 10(b). Such Purchaser shall be
entitled to assume the investigation of any liability or claim and the
defense of any suit brought to enforce any such liability or claim, if such
liability or claim is based solely upon such alleged misstatement or
omission on the part of such Purchaser, and the Company or any person
against whom such action is brought shall be entitled to participate in
such investigation and defense. If such Purchaser shall be entitled to
assume and does assume the investigation and defense, such investigation
and defense shall be conducted by counsel of good standing chosen by
such Purchaser and satisfactory to the Company or such person, and in
such case the Company or such person shall bear the expenses of its
investigation and the fees and expenses of any additional counsel retained
by it except those incurred after notifying such Purchaser of such claim
and prior to being advised by such Purchaser of its intention to assume
such investigation or defense. If such Purchaser shall be entitled to
assume but does not assume the investigation of any such claim or the
defense of any such suit, or if such Purchaser shall agree in writing to
pay such fees and expenses or if the Company or such person shall
reasonably conclude that there may be defenses available to it or them
which are different from or in addition to those available to such
Purchaser, such Purchaser will reimburse the Company or such person
for the reasonable fees and expenses of any counsel retained by it;
provided, however, that in such event, such Purchaser shall be entitled,
at its own expense, to participate in the investigation or defense.
The indemnity agreement on the part of such Purchaser contained
in this Section 10(b) and the warranties and representations of such
Purchaser contained in this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of the
Company or such person, and shall survive any termination of this
Agreement or the issue and delivery of the New Preferred Stock.
Each Purchaser agrees promptly to notify the Company and each
other Purchaser of the commencement of any litigation or proceedings
against such Purchaser in connection with the issue and sale of the New
Preferred Stock, or such Registration Statement or Prospectus.
11. Contribution by the Company and the Purchasers.
(a) If the indemnification provided for in Section 9 or Section 10
is unavailable to an indemnified party under such Sections in respect of
any losses, expenses, liabilities or claims referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, expenses, liabilities or claims (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Purchaser on the other hand from the
offering of the New Preferred Stock or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and
of the Purchasers on the other in connection with the statements or
omissions which resulted in such losses, expenses, liabilities or claims,
as well as any other relevant equitable consideration. The relative
benefits received by the Company on the one hand and the Purchasers on
the other hand shall be deemed to be in the same proportion as the total
proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company
bear to the underwriting discounts and commissions received by the
Purchasers, in each case as set forth in the table on the cover page of the
Prospectus or Prospectus Supplement with respect to the New Preferred
Stock if the same be so set forth. The relative fault of the Company on
the one hand and of the Purchasers on the other hand shall be determined
by reference to, among other things, whether the untrue statement or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or by the Purchasers through you and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, claims, damages and liabilities referred to
above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or
defending any claim or action.
(b) The Company and the Purchasers agree that it would not be
just and equitable if contribution pursuant to this Section 11 were
determined by pro rata allocation (even if the Purchasers were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the provisions of this
Section 11, no Purchaser shall be required to contribute any amount in
excess of the amount by which the total price at which the New
Preferred Stock purchased by it and distributed to the public were offered
to the public exceeds the amount of any damages which such Purchaser
has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Purchasers' obligations to
contribute pursuant to this Section 11 are several in proportion to their
respective underwriting commitments and not joint.
(c) The contribution agreement contained in this Section 11 shall
remain in full force and effect regardless of any investigation made by
or on behalf of any Purchaser, or any person who controls any Purchaser
within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, or by or on behalf of the Company, its directors and
officers or any person who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and shall
survive any termination of this Agreement or the issuance and delivery
of the New Preferred Stock.
12. Notices. All notices hereunder shall, unless otherwise
expressly permitted, be in writing and be delivered at or mailed to the
following address, or be sent by telegram to the following address: if to
the Purchasers or you, to you at your address as it appears in the
Purchase Agreement and if to the Company, to the Company c/o
Allegheny Power System, Inc., 12 East 49th Street, New York, New
York 10017, Attention: Nancy H. Gormley, Esq.
13. Parties in Interest. The Agreement herein set forth has been
and is made solely for the benefit of the Purchasers and the Company,
and the directors, officers and controlling persons referred to in Sections
9, 10 and 11 hereof, and their respective successors, assigns, executors
and administrators and no other person shall acquire or have any right
under or by virtue of this Agreement.
The section headings in this Agreement have been inserted as a
matter of convenience of reference and are not part of this Agreement.
The term "Purchasers", "persons", "firms" and "corporations" as used
herein shall include the singular of such terms as well as the plural. The
term "successor" to any Purchaser shall not include any subsequent
holder of the New Preferred Stock merely by reasons of such holding.
14. Construction. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
SCHEDULE I
DEFINITIONS
"Company" means West Penn Power Company, a Pennsylvania
corporation.
"Company's Counsel" means Sullivan & Cromwell with offices at 125
Broad Street, New York, New York 10004.
"Local Counsel" means Thomas K. Henderson, Esq.
"Purchasers' Counsel" means Simpson Thacher & Bartlett with offices
at 425 Lexington Avenue, New York, New York 10017.
"State Commission" means the Pennsylvania Public Utility Commission.
SCHEDULE II
PURCHASE AGREEMENT
PREFERRED STOCK
Initial Dividend Rate: % Price per share: %
Date:
WEST PENN POWER COMPANY
c/o Allegheny Power System, Inc.
12 East 49th Street
New York, New York 10017
Dear Sirs:
Referring to the Preferred Stock of West Penn Power Company
(the "Company") covered by Registration Statements No. 33- and No.
33- (the "Registration Statement"), on the basis of the
representations, warranties and agreements contained in the Standard
Purchase Agreement Provisions-Preferred Stock (referred to below) and
this Agreement, but subject to the terms and conditions herein set forth,
the Purchasers named in Schedule A hereto ("Purchasers") agree to
purchase, severally and not jointly, and the Company agrees to sell to the
Purchasers, severally and not jointly, ____ shares of Preferred Stock (the
"New Preferred Stock"). The respective number of shares of the New
Preferred Stock to be purchased by each Purchaser are set forth opposite
the names of the Purchasers on Schedule A hereto.
The initial dividend rate of the New Preferred Stock and the
price per share at which the New Preferred Stock shall be purchased
from the Company shall be those shown above. The New Preferred
Stock will be offered initially as set forth in the Prospectus Supplement
relating to such New Preferred Stock.
The New Preferred Stock will have the terms set forth in the
Prospectus Supplement dated ,
attached hereto.
All of the provisions contained in the document entitled
"Standard Purchase Agreement Provisions-Preferred Stock", a copy of
which has been filed as Exhibit 1 to the Registration Statement No. 33-
and has been previously furnished to us, are hereby incorporated by
reference in their entirety and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in
full herein.
The "time of purchase" (as defined in Section 3 of the
aforementioned Standard Purchase Agreement Provisions) shall
be , 19 .
This Agreement may be executed in one or more counterparts
and it is not necessary that the signatures of all parties appear on the
same counterpart, but such counterparts together shall constitute but one
and the same agreement.
We represent that we are authorized to act for the several
Purchasers named in Schedule A hereto in connection with this financing
and any action under this Agreement by any of us will be binding upon
all the Purchasers.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will become a binding agreement between the Company
and the several Purchasers in accordance with its terms.
Very truly yours,
___________________________________
As Representative of the Purchasers
By ________________________________
The foregoing Purchase Agreement
is hereby confirmed as of the date
first above written
By________________________________
EXHIBIT 4(e)
WEST PENN POWER COMPANY
TO
THE CHASE MANHATTAN BANK
(National Association),
as Trustee
_____________
Supplemental Indenture
Dated as of
_____________
Supplemental to First Mortgage
Dated March 1, 1916
<PAGE>
SUPPLEMENTAL INDENTURE, dated as of ,19 between WEST PENN
POWER COMPANY, a corporation organized and existing under the laws of the
Commonwealth of Pennsylvania (hereinafter called the "Company"), having its
principal office at 800 Cabin Hill Drive, Greensburg, Westmoreland
County, Pennsylvania, party of the first part, and THE CHASE MANHATTAN BANK
(National Association), a national banking association existing under the
laws of the United States of America, as Trustee under the First
Mortgage hereinafter mentioned (hereinafter called the "Trustee"), having its
principal corporate trust office at 4 Chase MetroTech Center, Brooklyn,
New York, New York 11245, party of the second part.
The Company has heretofore executed and delivered its First Mortgage,
dated March 1, 1916, to The Equitable Trust Company of New York, as Trustee,
to secure an issue of First Mortgage Bonds of the Company, issuable in
series and said First Mortgage has been supplemented by indentures
supplemental thereto, including the Supplemental Indentures dated
as of March 1, 1940, May 1, 1944, March 1, 1948, March 1, 1949, October 1,
1949, April 1, 1952, April 1, 1954, July 1, 1957, March 1, 1962,
December 1, 1965, July 1, 1980, June 1,1989, February 1, 1991, December 1,
1991, August 1, 1992, September 1, 1992, June 1, 1993, June 1, 1993 and
August 1, 1994 (said First Mortgage as so supplemented being hereinafter
called the "Original Indenture").
The Chase National Bank of the City of New York was the successor by
consolidation to The Equitable Trust Company of New York and the Trustee is
successor by merger to The Chase National Bank of the City of New York and
as such has become and now is the Trustee under the Original Indenture.
In accordance with the terms and provisions of the Original
Indenture there have been issued and are now outstanding thereunder
$654,000,000 principal amount of First Mortgage Bonds consisting of:
Principal Amount Series Maturing
$ 27,000,000 Series U, 4-7/8% Dec. 1, 1995
30,000,000 Series EE, 9% June 1, 2019
100,000,000 Series FF, 8-7/8% Feb. 1, 2021
70,000,000 Series GG, 7-7/8% Dec. 1, 2004
45,000,000 Series HH, 7-3/8% Aug. 1, 2007
135,000,000 Series II, 7-7/8% Sept. 1, 2022
102,000,000 Series JJ, 5-1/2% June 1, 1998
80,000,000 Series KK, 6-3/8% June 1, 2003
65,000,000 Series LL, 8-1/8% August 1, 2024
The Company proposes to issue and sell for cash $
principal amount of a new series of First Mortgage Bonds, to mature 1, ,
to bear interest from 1, at the rate of % per annum,
to be designated as First Mortgage Bonds Series , % (hereinafter
sometimes called the "Bonds of Series "), to be issued only in fully
registered form, and to be issued under Sections 3 or 8 of Article I of
the Original Indenture, and the Company has duly authorized such issue and sale.
<PAGE>
The Company, pursuant to resolutions of its Board of Directors,
has duly resolved and determined to execute this Supplemental Indenture for
the purpose of entering into certain covenants in addition to the covenants
contained in the Original Indenture, such additional
covenants to remain in force and effect as long, but only as long, as any of
said Bonds of Series remain outstanding under the Original Indenture.
All conditions and requirements necessary to make this Supplemental
Indenture a valid and legally binding instrument have been done, performed
and fulfilled and the execution and delivery hereof have been in all
respects duly authorized.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
That West Penn Power Company, for itself and its successors, in
consideration of the premises and of One Dollar, to it duly paid by the
Trustee at or before the ensealing and delivery of these presents, the receipt
whereof is hereby acknowledged, and of other good and valuable consideration,
hereby covenants and agrees to and with the Trustee and its successors
in the trust under the Original Indenture, as follows:
PART I
ADDITIONAL ARTICLE
The Original Indenture is hereby supplemented as provided in this
Part I by adding thereto the following new article, to be added after Article
II of the Original Indenture:
ARTICLE II
The term Original Indenture as used in this Article means the First
Mortgage of the Company, dated March 1, 1916, as supplemented prior to the
date of this Supplemental Indenture by indentures supplemental thereto,
including the Supplemental Indentures dated as of March 1, 1940, May 1, 1944,
March 1, 1948, March 1, 1949, October 1, 1949, April 1, 1952, April 1, 1954,
July 1, 1957, March 1, 1962, December 1, 1965, July 1, 1980, June 1,
1989, February 1, 1991, December 1, 1991, August 1, 1992, September 1, 1992,
June 1, 1993, June 1, 1993 and August 1, 1994. Unless otherwise indicated,
all references in this Article to Articles and Sections are to Articles and
Sections of the Original Indenture.
The Company hereby covenants, as long, but only as long, as any of
the First Mortgage Bonds, Series , % of the Company remain
outstanding, as follows:
<PAGE>
SECTION 1. Whether or not the Bonds of Series U, EE, FF, GG, HH,
II, JJ, KK or LL issued under the Original Indenture remain outstanding,
the covenants contained in Section 1 of Article II B, Section 6 of Article
II E, Sections 4, 5 and 6 of Article II F and Section 6 of Article II G
shall remain in full force and effect.
SECTION 2. No permanent improvements, extensions or additions to or
about the plants or property of the Company made prior to December 1, 1948
in excess of an aggregate of $3,600,000 of such permanent improvements,
extensions or additions, calculated on the basis of the actual cash cost or
fair value to the Company, whichever is less, shall be used as the basis
for the issuance of bonds or the withdrawal of cash under any provisions of
the Original Indenture or as a credit against the Renewal and Replacement
Fund provided for in Section 4 of Article IIG (the "Renewal and Replacement
Fund"). In connection with any request to the Trustee for any such
authentication and delivery of bonds or such withdrawal of cash or in
connection with any such taking by the Company of any such credit, the
Company shall furnish to the Trustee a certificate signed by the President or a
Vice President of the Company containing an appropriate statement evidencing
compliance with the provisions of this Section. Such certificate shall comply
with the requirements of Section 5 of Article V A. In lieu of
furnishing such a separate certificate, such statement may be included in
another certificate then being furnished to the Trustee, signed by the
President or a Vice President of the Company and complying with the requirements
of Section 5 of Article V A.
SECTION 3. The Company hereby agrees that redemptions of Bonds of
Series during any 12-month period beginning May 1 pursuant to
Article V of the Original Indenture may not exceed the greater of
(a) 1% of the aggregate principal amount ($ ) of the Bonds
of Series originally issued or (b) the lowest percentage so redeemed
(zero, if none are redeemed) of any other series of bonds then redeemable
during such 12-month period relative to the respective aggregate principal
amount of bonds of such other series originally issued.
PART II
Whether or not any Bonds of Series S issued under the Original
Indenture are outstanding, the amendment of Section 8 of Article I of
the Original Indenture as set forth in Part II of the aforesaid Supplemental
Indenture dated as of March 1, 1962 shall remain in full force and effect as
long as any of the Bonds of Series are outstanding.
<PAGE>
PART III
MISCELLANEOUS
The Company, and the holders of Bonds of Series , by their
acceptance and holding thereof, hereby consent and agree that (i) the Company
may redeem Bonds of Series or any other Series on an interest payment
day or any other day, (ii) interest on Bonds of Series or
any other Series may be paid to persons in whose names such bonds are
registered on such record date or dates, and in accordance with such
implementing provisions and with such exceptions thereto, as may be established
by the Board of Directors of the Company in creating the bonds of such Series,
(iii) the Bonds of Series and of any other Series may be executed
on behalf of the Company, and its corporate seal may be attested, by the use
of facsimile signatures, and (iv) in computing "net earnings of the Company
applicable to the payment of interest" under Sections 3 and 8 of Article I,
no deduction shall be made for any income, excess profits or other taxes
measured by or dependent on income.
The recitals contained herein and in the Bonds of Series shall
be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no
representation as to the validity of this Supplemental Indenture.
All of the provisions of the Original Indenture in respect of the rights,
privileges, immunities, powers and duties of the Trustee shall be
applicable to this Supplemental Indenture as fully and with like effect as
if set forth herein in full.
The Company hereby confirms, mortgages and conveys to the Trustee
as security for all bonds heretofore or hereafter issued hereunder all real
estate and other property heretofore mortgaged or conveyed to the Trustee
by the Original Indenture, except insofar as the property covered thereby may
have been or may be released pursuant to the provisions thereof.
This Supplemental Indenture may be simultaneously executed in any
number of counterparts, each of which shall be an original and all of which
shall together constitute one and the same instrument.
West Penn Power Company does hereby constitute and appoint Stanley I.
Garnett, II, Esq., and Nancy H. Gormley, Esq., and each of them, to be
its attorney for it, and in its name, and as and for its corporate
act and deed to acknowledge this Supplemental Indenture before any
person having authority by the laws of the Commonwealth of Pennsylvania to
take such acknowledgment, to the intent that the same may be duly recorded.
The Chase Manhattan Bank (National Association) does hereby
constitute and appoint C. J. Heinzelmann to be its attorney for it, and in
its name, and as and for its corporate act and deed to acknowledge
this Supplemental Indenture before any person having authority by the laws
of the Commonwealth of Pennsylvania to take such acknowledgment, to the
intent that the same may be duly recorded.
IN WITNESS WHEREOF, WEST PENN POWER COMPANY has caused these
presents to be signed in its corporate name by its Chief Executive Officer,
its President or one of its Vice Presidents and sealed with its corporate seal,
attested by its Secretary or one of its Assistant Secretaries; and THE
CHASE MANHATTAN BANK (National Association) has caused these presents to be
signed in its corporate name by one of its Vice Presidents and sealed
with its corporate seal, attested by one of its Assistant Secretaries, all as
of the day and year first
above written.
[CORPORATE SEAL] WEST PENN POWER COMPANY
By ..............................
Chief Executive Officer
Attest:
...............................
Assistant Secretary
Signed, sealed and delivered by
West Penn Power Company in the
presence of:
................................
................................
[CORPORATE SEAL] THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By ........................
Vice President
Attest:
...............................
Assistant Secretary
Signed, sealed and delivered by
The Chase Manhattan Bank (National Association)
in the presence of:
................................
................................
<PAGE>
STATE OF NEW YORK
COUNTY OF NEW YORK ss.:
I HEREBY CERTIFY that on this day of , , before me, the
subscriber, a Notary Public in and for the State and County aforesaid,
personally appeared Nancy H. Gormley, the attorney for WEST PENN POWER COMPANY
and one of the attorneys named in the foregoing Supplemental Indenture, and by
virtue and in pursuance of the authority therein conferred upon him/her
acknowledged the said Supplemental Indenture to be the act and deed of said
West Penn Power Company.
I FURTHER CERTIFY that I am not a stockholder, director or official
of the said corporation.
WITNESS my hand and notarial seal the day and year aforesaid.
.......................
Notary Public
[NOTARIAL SEAL]
<PAGE>
STATE OF NEW YORK
COUNTY OF KINGS ss.:
I HEREBY CERTIFY that on this day of , 19 , before me, the
subscriber, a Notary Public in and for the State and County aforesaid,
personally appeared C. J. Heinzelmann, the attorney for THE CHASE MANHATTAN
BANK (National Association) and the attorney named in the foregoing
Supplemental Indenture, and by virtue and in pursuance of the authority
therein conferred upon him/her acknowledged the said Supplemental Indenture to
be the act and deed of said The Chase Manhattan Bank (National Association).
I FURTHER CERTIFY that I am not a stockholder, director or official
of the said corporation.
WITNESS my hand and notarial seal the day and year aforesaid.
.......................
Notary Public
[NOTARIAL SEAL]
<PAGE>
CERTIFICATE OF RESIDENCE
The Chase Manhattan Bank (National Association), mortgagee and
Trustee within named, HEREBY CERTIFIES that its official name and its
address are: The Chase Manhattan Bank (National Association), 4 Chase
MetroTech Center, Brooklyn, NY 11245.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By .......................
Vice President
STATE OF NEW YORK )
COUNTY OF NEW YORK) ss.:
I, Eileen Beck, a Notary Public in and for the State and County of
New York, do certify that Klaus Bergman who signed the writing above,
bearing date the day of , 19 , for West Penn Power Company, has
this day in my said County before me acknowledged the said writing to be the
act and deed of said corporation.
GIVEN under my hand and official seal this day of , 19 .
.......................
Notary Public
[NOTARIAL SEAL]
<PAGE>
STATE OF NEW YORK)
COUNTY OF KINGS ) ss.:
I , Notary Public in and for the State and County of
New York, do certify that C. J. Heinzelmann who signed the writing above,
bearing date the day of , 19 , for The Chase Manhattan Bank
(National Association), has this day in my said County before me
acknowledged the said writing to be the act and deed of said corporation.
GIVEN under my hand and official seal this day of , 19 .
.......................
Notary Public
[NOTARlAL SEAL]
Exhibit 5.
December 21, 1994
West Penn Power Company,
800 Cabin Hill Drive,
Greensburg, Pennsylvania 15601.
Dear Sirs:
In connection with the registration under the
Securities Act of 1933 (the "Act") of 400,000 shares of
Preferred Stock, par value $100 per share (the "Preferred
Stock"), of West Penn Power Company, a Pennsylvania
corporation (the "Company"), we, as your counsel, have
examined such corporate records, certificates and other
documents, and such questions of law, as we have considered
necessary or appropriate for the purposes of this opinion.
Upon the basis of such examination, we advise you that, in
our opinion,
when the Registration Statement relating to the
Preferred Stock (the "Registration Statement") has
become effective under the Act, the issuance and sale
of the Preferred Stock by the Company has received the
<PAGE>
necessary state regulatory approval, the terms of the
Preferred Stock and of its issue and sale have been
duly established in conformity with the Charter of the
Company so as not to violate any applicable law or
agreement or result in a default under or breach of any
agreement or instrument binding upon the Company and so
as to comply with any requirement or restriction
imposed by any court or governmental body having
jurisdiction over the Company, one or more resolutions
specifying the distinctive serial designations of the
Preferred Stock have been duly approved and adopted by
the Board of Directors of the Company and a statement
operating as an amendment to the Charter of the Company
in connection therewith has been duly delivered to the
Department of State of the Commonwealth of Pennsylvania
for filing, and the Preferred Stock has been duly
issued and sold as contemplated by the Registration
Statement and in conformity with any orders of the
Pennsylvania Public Utility Commission relating to the
Preferred Stock, the Preferred Stock will be validly
issued, fully paid and nonassessable.
In rendering the foregoing opinion, we have relied
as to certain matters on information obtained from public
<PAGE>
officials, officers of the Company and other sources
believed by us to be responsible.
We hereby consent to the filing of this opinion as
an exhibit to the Registration Statement and to the
reference to us under the heading "Validity of the
Securities" in the Prospectus. In giving such consent, we
do not thereby admit that we are in the category of persons
whose consent is required under Section 7 of the Act.
Very truly yours,
SULLIVAN & CROMWELL
Exhibit 12(a)
WEST PENN POWER COMPANY
(THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
COMPUTATION IN SUPPORT OF RATIO OF EARNINGS TO FIXED CHARGES
12 Months Years Ended December 31,
Ended
9/30/94 1993 1992 1991 1990 1989
Earnings:
<S> <C> <C> <C> <C> <C> <C>
Consolidated Net income $112,339 $102,061 $98,156 $101,178 $93,253 $88,251
Fixed charges (see below) 60,155 61,845 56,835 53,329 50,567 47,416
Income taxes 55,699 51,958 44,658 48,236 33,587 25,811
Total Earnings $228,193 $215,864 $199,649 $202,743 $177,407 $161,478
Fixed Charges:
Interest on long-term debt 56,675 $58,857 $53,768 $51,129 $43,177 $43,669
Other interest 2,222 1,728 1,824 848 6,091 2,284
Estimated interest component
of rentals 1,258 1,260 1,243 1,352 1,299 1,463
Total Fixed Charges $60,155 $61,845 $56,835 $53,329 $50,567 $47,416
Ratio of Earnings to Fixed Charges 3.79 3.49 3.51 3.80 3.51 3.41
</TABLE>
<TABLE>
<CAPTION>
COMPUTATION IN SUPPORT OF RATIO OF EARNINGS TO FIXED CHARGES
AND PREFERRED STOCK DIVIDEND REQUIREMENTS
12 Months Years Ended Years Ended December 31,
Ended
9/30/94 1993 1992 1991 1990 1989
Earnings:
<S> <C> <C> <C> <C> <C> <C>
Consolidated Net income $112,339 $102,061 $98,156 $101,178 $93,253 $88,251
Fixed charges:
Interest on long-term debt 56,675 58,857 53,768 51,129 43,177 43,669
Other interest 2,222 1,728 1,824 848 6,091 2,284
Estimated interest component of
rentals 1,258 1,260 1,243 1,352 1,299 1,463
Total fixed charges 60,155 61,845 56,835 53,329 50,567 47,416
Income taxes 55,699 51,958 44,658 48,236 33,587 25,811
Total earnings $228,193 $215,864 $199,649 $202,743 $177,407 $161,478
Consolidated net income $112,339 $102,061 $98,156 $101,178 $93,253 $88,251
Add-Income taxes 55,699 51,958 44,658 48,236 33,587 25,811
Income before taxes on income $168,038 $154,019 $142,814 $149,414 $126,840 $114,062
Effective income tax rate (1) 0.3315 0.3373 0.3127 0.3228 0.2648 0.2263
Inverse of effective income tax rate 0.6685 0.6627 0.6873 0.6772 0.7352 0.7737
Preferred dividends not deductible for
federal income tax purposes $7,817 $7,671 $6,781 $6,586 $6,586 $6,586
Earnings requirement before income
taxes, necessary to meet non-
deductible preferred stock
dividends (2) $11,693 $11,575 $9,866 $9,725 $8,958 $8,512
Preferred dividends deductible for
federal income tax purposes 535 535 550 550 550 550
Fixed charges 60,155 61,845 56,835 53,329 50,567 47,416
Fixed charges and preferred stock
dividend requirements $72,383 $73,955 $67,251 $63,604 $60,075 $56,478
Ratio of total earnings to fixed charges
and preferred stock dividend
requirements 3.15 2.92 2.97 3.19 2.95 2.86
(1) Income taxes divided by income before taxes on income.
(2) Preferred dividends charged to retained earnings during period divided by the inverse of effective income tax rate
</TABLE>
Exhibit 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated February 3, 1994, of West Penn Power Company appearing in the
Consolidated Annual Report for Allegheny Power System, Inc., Allegheny
Generating Company, Monongahela Power Company, The Potomac Edison Company and
West Penn Power Company on Form 10-K for the year ended December 31, 1993. We
also consent to the reference to us under the heading "EXPERTS" in such
Prospectus.
PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
December 21, 1994
New York, New York
Securities Act of 1933 File No. _________
(If application to determine eligibility of trustee
for delayed offering pursuant to Section 305 (b) (2))
______________________________________________________________________________
_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)___________
__________________
THE CHASE MANHATTAN BANK
(National Association)
(Exact name of trustee as specified in its charter)
13-2633612
(I.R.S. Employer Identification Number)
1 Chase Manhattan Plaza, New York, New York
(Address of principal executive offices)
10081
(Zip Code)
________________
WEST PENN POWER COMPANY
(Exact name of obligor as specified in its charter)
Pennsylvania
(State or other jurisdiction of incorporation or organization)
13-5480882
(I.R.S. Employer Identification No.)
800 Cabin Hill Drive
Greensburg, Pennsylvania
(Address of principal executive offices)
15601
(Zip Code)
__________________________________
First Mortgage Bonds, Series , %, Due
(Title of the indenture securities)
______________________________________________________________________________
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of The Federal Reserve System,
Washington, D. C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
The Trustee is not the obligor, nor is the Trustee directly or
indirectly controlling, controlled by,
or under common control with the obligor.
(See Note on Page 2.)
Item 16. List of Exhibits.
List below all exhibits filed as a part of this statement of eligibility.
*1. -- A copy of the articles of association of the trustee as now in
effect .(See Exhibit T-1
(Item 12) , Registration No. 33-55626.)
*2. -- Copies of the respective authorizations of The Chase Manhattan Bank
(National Association) and The Chase Bank of New York (National Association)
to commence business and a copy of approval of merger of said corporations,
all of which documents are still in effect.
(See Exhibit T-1 (Item 12), Registration No. 2-67437.)
*3. -- Copies of authorizations of The Chase Manhattan Bank (National
Association) to exercise corporate trust powers, both of which documents are
still in effect. (See Exhibit T-1 (Item 12), Registration No. 2-67437).
*4. -- A copy of the existing by-laws of the trustee. (See Exhibit T-1
(Item 12(a)), Registration No. 22-26320.)
*5. -- A copy of each indenture referred to in Item 4, if the obligor is in
default. (Not applicable).
*6. -- The consents of United States institutional trustees required by
Section 321(b) of the Act. (See Exhibit T-1, (Item 12), Registration No.
22-19019.)
7. -- A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining authority.
___________________
*The Exhibits thus designated are incorporated herein by reference.
Following the description of such Exhibits is a reference to the copy of the
Exhibit heretofore filed with the Securities and Exchange Commission, to which
there have been no amendments or changes.
___________________
1.
<PAGE>
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by
the trustee of all facts on which to base a responsive answer to Item 2
the answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
the trustee, The Chase Manhattan Bank (National Association), a corporation
organized and existing under the laws of the United States of America, has
duly caused this statement of eligibility to be signed on its behalf by
the undersigned, thereunto duly authorized , all in the City of New York, and
the State of New York, on the 15th day December, 1994.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By
Charles J.Heinzelmann
Vice President
_________________
2.
<PAGE>
Exhibit 7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the
The Chase Manhattan Bank, N.A.
of New York in the State of New York, at the close of business on September
30, 1994, published in response to call made by Comptroller of the Currency,
under title 12, United States Code, Section 161.
Charter Number 2370 Comptroller of the Currency Northeastern District
Statement of Resources
and Liabilities
Thousands
ASSETS of Dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin............... $ 5,329,799
Interest-bearing balances........................................ 7,247,035
Held to maturity securities........................................ 1,315,347
Available-for-sale securities...................................... 5,289,499
Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and of its
Edge and Agreement subsidiaries, and IBFs:
Federal funds sold............................................... 3,043,701
Securities purchased under agreements to resell.................. 11,450
Loans and lease financing receivable:
Loans and leases, net of unearned income............$50,033,807
LESS: Allowance for loan and lease losses........... 1,069,547
LESS: Allocated transfer risk reserve............... 0
Loans and leases, net of unearned income, allowance, and reserve.. 48,964,260
Assets held in trading accounts..................................... 15,642,451
Premises and fixed assets(including capitalized leases)............. 1,728,478
Other real estate owned............................................. 740,657
Investments in unconsolidated subsidiaries and associated companies. 54,288
Customers' liability to this bank on acceptances outstanding........ 704,895
Intangible assets................................................... 811,028
Other assets........................................................ 3,962,227
TOTAL ASSETS........................................................ $94,845,115
LIABILITIES
Deposits:
In domestic offices............................................... $28,883,652
Noninterest-bearing..............................$10,787,819
Interest-bearing................................. 18,095,833
In foreign offices, Edge and Agreement subsidiaries, and IBFs..... 34,739,997
Noninterest-bearing..............................$ 2,533,081
Interest-bearing................................. 32,206,916
Federal funds purchased and securities sold under agreements to repurchase
in domestic offices of the bank and of its Edge and Agreement subsdiaries,
and in IBFs:
Federal funds purchased......................................... 1,958,837
Securities sold under agreements to repurchase.................. 346,589
Demand notes issued to the U.S. Treasury............................ 418,219
Trading liabilities................................................. 10,707,226
Other borrowed money:
With original maturity of one year or less........................ 3,314,023
With original maturity of more than one year...................... 252,491
Mortgage indebtedness and obligations under capitalized leases...... 40,761
Bank's liability on acceptances executed and outstanding............ 708,649
Subordinated notes and debentures................................... 2,360,000
Other liabilities................................................... 4,126,966
TOTAL LIABILITIES................................................... 87,857,410
Limited-life preferred stock and related surplus.................... 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus....................... 0
Common stock........................................................ 914,334
Surplus............................................................. 4,625,213
Undivided profits and capital reserves.............................. 1,445,029
Net unrealized holding gains(losses)on available-for-sale securities (7,882)
Cumulative foreign currency translation adjustments................. 11,011
TOTAL EQUITY CAPITAL................................................ 6,987,705
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK,
AND EQUITY CAPITAL................................................ $94,845,115
I, Lester J. Stephens, Jr., Senior Vice President and Controller of the above
named bank do hereby declare that this Report of Condition is true and correct
to the best of my knowledge and belief.
(Signed) Lester J. Stephens, Jr.
We the undersigned directors, attest to the correctness of this statement of
resources and liabilities. We declare that it has been examined by us, and
to the best of our knowledge and belief has been prepared in conformance with
the instructions and is true and correct.
(Signed)Thomas G. Labrecque
(Signed)Arthur F. Ryan Directors
(Signed)Richard J. Boyle
EXHIBIT 26(a)
[Letterhead of Stanley I. Garnett, II]
, 19
(Individual letter sent to each
prospective underwriter)
Dear :
West Penn Power Company (the "Company") has on file with the Securities
and Exchange Commission an effective shelf Registration Statement on Form S-3,
pursuant to Rule 415, which contains a Prospectus relating to $ million of
First Mortgage Bonds. I have enclosed an information package including three
(3) copies of the Registration Statement, the related Prospectus, the Standard
Purchase Agreement Provisions - First Mortgage Bonds, Underwriter's
Questionnaire and a draft of the Comfort Letter from Price Waterhouse. Also
enclosed is one set of documents incorporated by reference, including the
Annual Report for the Company on Form 10-K for the year ended December 31,
1994, and the Company's Quarterly Reports on Form 10-Q for the quarters ended
, 19 .
Although we have set no specific date to go to market, it is our present
intention to solicit proposals for the purchase of probably $ million
principal amount of First Mortgage Bonds during the month of . We
anticipate giving 48 hours' notice of the date that we would like to receive
proposals. Notice will be given by a hand-delivered or faxed letter to
underwriters specifying the planned sale date and providing information with
respect to the principal amount, maturity date, interest payment dates,
redemption and sinking fund provisions, and any other special rights,
restrictions and terms and conditions of the First Mortgage Bonds upon which
your proposals will be solicited.
Arrangements will be made with sufficient advance notice regarding any
due diligence investigation of the Company you wish to undertake. Simpson
Thacher & Bartlett is counsel for the underwriters and may be contacted by
calling James M. Cotter at (212) 455-2570, Fidelis A. Grandfield at (212) 455-
3705 or Edward P. Tolley, III at (212) 455-3189. If you have any questions,
please call the undersigned or Nancy L. Campbell, Vice President and Treasurer
at (212) 752-2121. Additional copies of the enclosed documents will be
provided upon request.
Sincerely,
Stanley I. Garnett, II
Enclosures
EXHIBIT 26(b)
[Letterhead of Stanley I. Garnett, II]
, 19
HAND DELIVERY
(Individual letter sent to each
prospective underwriter on
attached distribution letter)
Dear :
West Penn Power Company (the "Company") filed a shelf Registration
Statement on Form S-3, pursuant to Rule 415, with the Securities and Exchange
Commission on , 1994. The Registration Statement, which became
effective on , 19 , contains a Prospectus relating to $
million of First Mortgage Bonds. By transmittal letter dated , 19 ,
we provided copies of the Registration Statement, the related Prospectus, the
Supplemental Indenture, documents incorporated by reference, the Underwriters'
Questionnaire and the Purchase Agreement. Enclosed herewith are five copies
of a proof of the Prospectus Supplement.
It is our intention to receive proposals for the purchase of $
million principal amount of First Mortgage Bonds maturing on , 19 ,
(the "New Bonds") on , 19 , at A.M. This amount and date
will remain in effect unless notification is made to the contrary. Proposals
should be made by telephone to a designated representative of the Company.
You will be notified of your contact prior to bidding. Each offer is to
specify the coupon rate and the proceeds to the Company. Two copies of the
enclosed Purchase Agreement should be completed and returned with the terms of
your offer and be available for execution immediately upon acceptance by the
Company of a winning proposal. A completed Underwriters' Questionnaire should
be returned to Nancy L. Campbell, Vice President and Treasurer, prior to .
Acceptance will be based on the lowest "annual cost of money" to the Company,
i.e., the yield based on the stated maturity, the interest rate and the price
to the Company (exclusive of accrued interest) contained in the offer to
purchase, determined by conventional bond yield calculations.
The Company requires a coupon rate in multiples of 1/8 of 1% and a price
(exclusive of accrued interest) to be paid to the Company for the New Bonds of
not less than % or more than % of principal amount. Interest will
accrue from the [first day of the month in which the New Bonds are purchased]
[the date of purchase of the New Bonds] and will be paid semiannually
commencing
, 19 .
The New Bonds will have a year maturity, no cash sinking fund and
will be non-refundable at a regular redemption price for the first years at
an effective interest cost less than the cost of the New Bonds to the Company.
[The New Bonds will also be non-callable at a regular redemption price for the
first years.] [The initial regular redemption price of the New Bonds will
be the price to public plus the interest rate and will be scaled down by
regular progression to par in the th year and thereafter. The special
redemption price will be 100% of principal amount unless the public offering
price is more than par in which case the special redemption price shall be
established in accordance with customary practice.]
Redemptions of the New Bonds during each 12 month period beginning
at the special redemption price may not exceed the greater of (a) 1% of the
aggregate principal amount of the New Bonds or (b) the lowest percentage so
redeemed (zero, if none are redeemed) of bonds of any other series then
redeemable at the special redemption price during such period relative to the
aggregate principal amount of such other bonds.
The information set forth above is a summary of provisions more fully
described in the Prospectus, and reference should be made to the Prospectus
for such information and for information with respect to other provisions of
the New Bonds.
We have been informed that our first mortgage bonds will be given the
following ratings: Moody's ( ), Standard & Poor's ( ), and Fitch ( ).
The closing will be on , 19 .
We will be available by telephone to discuss with you matters regarding
your due diligence investigation of the Company on , 19 , at
A.M. You may contact the undersigned or Ms. Campbell at (212) 752-2121.
Sincerely,
Stanley I. Garnett, II
Enclosures
EXHIBIT 26(c)
[Letterhead of Stanley I. Garnett, II]
, 19
(Individual letter sent to each
prospective underwriter)
Dear :
West Penn Power Company (the "Company") has on file with the Securities
and Exchange Commission an effective shelf Registration Statement on Form S-3,
pursuant to Rule 415, which contains a Prospectus relating to shares
of Preferred Stock (par value $100). I have enclosed an information package
including three (3) copies of the Registration Statement, the related
Prospectus, the Standard Purchase Agreement Provisions - Preferred Stock,
Underwriter's Questionnaire and a draft of the Comfort Letter from Price
Waterhouse. Also enclosed is one set of documents incorporated by reference,
including the Annual Report for the Company on Form 10-K for the year ended
December 31, 1994, and the Company's Quarterly Reports on Form 10-Q for the
quarters ended , 19 .
Although we have set no specific date to go to market, it is our present
intention to solicit proposals for the purchase of probably shares of
Preferred Stock during the month of . We anticipate giving 48
hours' notice of the date that we would like to receive proposals. Notice
will be given by a hand-delivered or faxed letter to underwriters specifying
the planned sale date and providing information with respect to the number of
shares, rate and time of payment of dividends, or manner of determining such
rate and time, redemption and sinking fund provisions, if any, and any other
special rights, restrictions and terms and conditions of the Preferred Stock
upon which your proposals will be solicited.
Arrangements will be made with sufficient advance notice regarding any
due diligence investigation of the Company you wish to undertake. Simpson
Thacher & Bartlett is counsel for the underwriters and may be contacted by
calling James M. Cotter at (212) 455-2570, Fidelis A. Grandfield at (212) 455-
3705 or Edward P. Tolley, III at (212) 455-3189. If you have any questions,
please call the undersigned or Nancy L. Campbell, Vice President and Treasurer
at (212) 752-2121. Additional copies of the enclosed documents will be
provided upon request.
Sincerely,
Stanley I. Garnett, II
Enclosures
EXHIBIT 26(d)
[Letterhead of Stanley I. Garnett, II]
, 19
HAND DELIVERY
(Individual letter sent to each
prospective underwriter on
attached distribution letter)
Dear :
West Penn Power Company (the "Company") filed a shelf Registration
Statement on Form S-3, pursuant to Rule 415, with the Securities and Exchange
Commission on , 1994. The registration statement, which became
effective on , 19 , contains a Prospectus relating to
shares of Preferred Stock (par value $100). By transmittal letter dated
, 19 , we provided copies of the Registration Statement, the
related Prospectus, documents incorporated by reference and the Underwriters'
Questionnaire.
It is our intention to receive proposals for the purchase of
shares of Preferred Stock (the "New Preferred Stock") on , 19 ,
at A.M. This amount and date will remain in effect unless notification is
made to the contrary. Proposals may be made by telephone to Allegheny Power
System, Inc. at (212) 752-2121. Each offer is to specify the dividend rate
and the proceeds to the Company. Two copies of the enclosed Purchase
Agreement should be completed and returned with the terms of your offer and be
available for execution immediately upon acceptance by the Company of a
winning proposal. A completed Underwriters' Questionnaire should be returned
to Nancy L. Campbell, Vice President and Treasurer, prior to .
Acceptance will be based on the lowest annual cost of money to the Company for
the New Preferred Stock.
Dividends on the New Preferred Stock, in preference to any class of
stock ranking junior to the Preferred Stock, will be paid quarterly commencing
, 19 . In the event of any voluntary or involuntary dissolution,
liquidation or winding up of the Company, each series of Preferred Stock shall
have preference over any class of stock ranking junior to the Preferred Stock
until an amount equal to the amount per share determined in accordance with
the charter provisions, plus accrued dividends, shall have been paid.
Reference should be made to the Prospectus for further information with
respect to other provisions of the Preferred Stock.
We have been informed that our Preferred Stock will be given the
following ratings: Moody's ( ), Standard & Poor's ( ), and Fitch ( ).
We will be available by telephone to discuss with you matters regarding
your due diligence investigation of the Company on , 19 , at
A.M. You may contact the undersigned or Ms. Campbell at (212) 752-2121.
Sincerely,
Stanley I. Garnett, II
Enclosures
