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Registration No. 333-
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)
THOMAS K. HENDERSON, Esq.
Vice President
Allegheny Power System, Inc.
10435 Downsville Pike
Hagerstown, MD 21740-1766
(301) 790-3400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
ROBERT E. BUCKHOLZ, JR., Esq. EDWARD F. PETROSKY, Esq.
Sullivan & Cromwell Brown & Wood LLP
125 Broad Street One World Trade Center
New York, New York 10004 New York, New York 10048
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 ("Securities Act"), other than securities offered
only in connection with dividend or interest reinvestment plans, check the
following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [X]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
<S> <C> <C> <C> <C>
Title Amount maximum maximum Amount of
of each class of to be offering price aggregate registration
securities to be registered registered(1) per unit(2)(3)(4)(5) offering price(2)(3) fee
First Mortgage Bonds and Unsecured
Debt Securities
$60,000,000(6) 100% $ 60,000,000 $18,182
</TABLE>
(1) In United States dollars or the equivalent thereof in any other currency,
currency unit or units.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Exclusive of accrued interest and accrued amortization of discount, if any.
(4) Not specified as to each class of securities to be registered pursuant to
General Instruction II.D of Form S-3 under the Securities Act.
(5) The proposed maximum offering price per unit will be determined from time
to time by the Registrant in connection with, and at the time of, the
issuance by the Registrant of the securities registered hereunder.
(6) Represents the aggregate principal amount of securities, or if any
securities are issued at a discount, the aggregate initial offering
price thereof.
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Pursuant to Rule 429 under the Securities Act, the Prospectus included
in this Registration Statement is a combined prospectus and also relates to $55
million aggregate principal amount of securities registered pursuant to
Registration Statement No. 33-56260 (as to which a filing fee of $17,187 was
previously paid), $45 million aggregate principal amount of securities
registered pursuant to Registration Statement No. 33-51303 (as to which a
filing fee of $15,517 was previously paid), and $40 million aggregate
principal amount of securities registered pursuant to Registration Statement
No. 33-59133 (as to which a filing fee of $13,793 was previously paid). This
Registration Statement also constitutes a post-effective amendment to
Registration Statement No. 33-56260, Registration Statement No. 33-51303 and
Registration Statement No. 33-59133. 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.
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 or until this Registration Statement shall
become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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SUBJECT TO COMPLETION, DATED , 1997
WEST PENN POWER COMPANY
FIRST MORTGAGE BONDS
UNSECURED DEBT SECURITIES
West Penn Power Company (the "Company") may offer and sell, at one
time or from time to time in one or more series, its First Mortgage Bonds
(the "New Bonds") and its unsecured debt securities (the "New Debt Securities"
and together with the New Bonds, the "Securities") with an aggregate principal
amount (or if issued at a discount, the aggregate initial offering price) not
to exceed $200,000,000, at prices and on terms to be determined at the time of
sale. This Prospectus will be supplemented by one or more supplements hereto
(each, a "Prospectus Supplement") which will set forth: (i) 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, any
initial offering price, proceeds to the Company, and any other specific terms
of the particular series of New Bonds; and (ii) in the case of an offering of
the New Debt Securities, the aggregate principal amount, maturity, interest
rate (or method of calculating the interest rate), any redemption or repayment
provisions, any subordination provisions, any initial offering price, any
listing on a securities exchange, proceeds to the Company, and any other
specific terms of the particular series of the New Debt Securities. Unless
otherwise provided in a Prospectus Supplement, the sale of one series of
Securities will not be contingent upon the sale of any other series of
Securities.
The Company may sell the Securities to underwriters, through agents
and/or directly to other purchasers. The applicable Prospectus Supplement will
set forth the names of any underwriters or agents involved in the sale of the
Securities in respect of which this Prospectus is being delivered, the purchase
prices, if any, to be paid by underwriters and the compensation, if any, to
be paid to such underwriters or agents. See "Plan of Distribution".
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 , 1997.
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 jurisdiction in which such offer, solicitation or sale would
be unlawful prior to registration or qualification under the securities laws of
any such jurisdiction.
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AVAILABLE INFORMATION
West Penn Power 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, as amended (the "Exchange Act"), 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, 450 Fifth Street, N.W., Washington, D.C. 20549, 500 West Madison
Street, Chicago, Illinois 60661, and 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, 450 Fifth Street, N.W.,
Washington, D.C. 20549. Such material may also be accessed electronically
by means of the Commission's "home" page on the Internet at
http://www.sec.gov. Certain securities of the Company are listed on the New
York Stock Exchange, and reports and other information concerning the Company
can be inspected at the offices of such Exchange.
The Company filed with the Commission a registration statement on Form
S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the Securities. This Prospectus does not contain all the
information set forth in the Registration Statement, certain portions of
which have been omitted as permitted by the rules and regulations of the
Commission. For further information with respect to the Company and the
Securities, reference is made to the Registration Statement and the exhibits
and the financial statements, notes and schedules filed as a part thereof
or incorporated by reference therein, which may be inspected at the public
reference facilities of the Commission at the addresses set forth above or
through the Commission's home page on the Internet. Statements made in this
Prospectus concerning the contents of any documents referred to herein are
not necessarily complete, and in each instance are qualified in all respects
by reference to the copy of such document filed as an exhibit to the
Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company
with the Commission pursuant to the Exchange Act, 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, 1996 (the "Annual Report");
(ii) The Current Report of the Company on Form 8-K dated April 5,
1997; and
(iii) The Quarterly Reports of the Company on Form 10-Q for the
quarters ended March 31, 1997 and June 30, 1997.
All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus
and prior to the termination of the offering of the applicable Securities 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
herein, in the applicable Prospectus Supplement or 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, in such Prospectus Supplement 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
the Registration Statement and/or this Prospectus.
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The Company hereby undertakes to provide without charge to each person
to whom a copy of this Prospectus and the applicable Prospectus Supplement 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: Carole R. Chamberlain,
Assistant Secretary (tel. 412-838-6444).
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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 a
nonaffiliated company.
RATIOS OF EARNINGS TO FIXED CHARGES
For purposes of calculating the following ratios, (i)
"earnings" represent pretax income from continuing operations plus fixed
charges, and (ii) "fixed charges" represent interest expenses, amortization
of debt expense and discount or premium relating to any indebtedness, portion
of rental expense as can be demonstrated to be representative of the interest
factor, and preferred stock dividend requirements of majority-owned
subsidiaries and 50-percent-owned persons.
<TABLE>
<CAPTION>
Fiscal Year Ended 12-Month Period Ended
December 31 June 30
1992 1993 1994 1995 1996 1996 1997
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings
to Fixed Charges 3.51 3.49 3.40 3.58 2.88 3.03 3.27
</TABLE>
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus Supplement,
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 and for other corporate
purposes, including the financing of the Company's construction program.
CONSTRUCTION AND FINANCING
Construction expenditures by the Company in 1996 amounted to $130.6
million and for 1997 and 1998 are expected to aggregate $140.4 million and
$123.4 million, respectively. In 1996, these expenditures included $22.8
million for environmental control technology, of which $1.6 million was for
compliance with the Clean Air Act Amendments of 1990 (the "CAAA"). The 1997
and 1998 estimated expenditures include $16.9 million and $29.1 million,
respectively, for environmental control technology of which $6.4 million and
$23.7 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 are being collected
through currently approved base rates.
<TABLE>
<CAPTION>
1996 1997 1998
(Millions of Dollars)
<S> <C> <C> <C>
Generation.............................................. $ 49.9 $ 59.1 $ 72.2
Transmission ........................................... 24.9 14.5 3.8
Distribution............................................ 51.0 56.0 45.3
Other................................................... 4.8 10.8 2.1
Total............................................. $130.6 $140.4 $123.4
Allowance for Funds used During Construction
Included Above........................................ $ 2.7 $ 3.4 $ 4.5
</TABLE>
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In connection with its construction and demand-side management programs,
the ompany 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. Decisions
regarding construction of facilities must now also take into account retail
competition. As a result, the Company's future plans are subject to continuing
review and substantial change.
The Company has financed its construction program through internally
generated funds, first mortgage bonds, subordinated debt and preferred stock
issues, pollution control and solid waste disposal notes, 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 creditworthiness, 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.
DESCRIPTION OF THE NEW BONDS
General
The New Bonds are to be issued as First Mortgage Bonds (the "Bonds")
under an Indenture, dated as of March 1, 1916, between the Company and The
Chase Manhattan Bank as Bond Trustee, as supplemented and as to be supplemented
as is necessary to create any series of New Bonds (collectively, the "Bond
Indenture") and under resolutions of the Board of Directors of the Company
creating New Bonds (the "Board Resolutions"). The Chase Manhattan Bank 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 Bond
Indenture and the Board Resolutions are summaries and do not purport to be
complete. They make use of terms defined in the Bond Indenture and the Board
Resolutions and are qualified in their entirety by express reference to the
Bond Indenture and the Board Resolutions, the forms 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 the dates of maturity, the rates of
interest (or manner of calculation thereof), and the prices at which, the
period(s) 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.
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 and any integral multiple thereof.
They will be transferable and exchangeable without charge except for
governmental charges, if any.
The Bond 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 or similar transaction involving
the Company.
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
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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
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 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 recordation of a supplemental indenture
subjecting such property to the Bond 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 Bond Indenture.
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 June 30, 1997, it had $700 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 deposited 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 under the Trust Indenture
Act of
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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 FF, GG, HH, II, JJ, KK, LL and MM, 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 Bond Indenture requirements constitutes an event of default. A major
ty of the Bondholders may direct the time, method and place of exercising any
power conferred upon the Bond Trustee, but the Bond 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 Bond 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 Bond Trustee at the Company's
request.
Regarding the Trustee
The Trustee under the Bond Indenture is The Chase Manhattan Bank. The
Company maintains normal banking arrangements with The Chase Manhattan Bank.
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.
DESCRIPTION OF NEW DEBT SECURITIES
General
The New Debt Securities may be issued in one or more series under an
Indenture dated as of May 15, 1995, between the Company and The Bank of New
York, as Trustee (the "Trustee"). The following summary does not purport to
be complete and is subject in all respects to the provisions of, and is
qualified in its entirety by reference to, the Indenture and the New Debt
Securities, the forms of which are filed, or will be filed, as exhibits to
the Registration Statement of which this Prospectus forms a part, or as an
exhibit to a Current Report on Form 8-K to be incorporated by reference in
such Prospectus. Whenever particular provisions or defined terms in such
documents are referred to herein or in a Prospectus Supplement, such provisions
or terms are incorporated by reference herein or therein, as the case may be.
The New Debt Securities will be unsecured obligations of the Company
and, unless otherwise provided in a Prospectus Supplement relating to a
particular series of New Debt Securities, will be subordinated obligations of
the Company.
Reference is made to the Prospectus Supplement relating to any
particular issue of New Debt Securities for the following terms: (1) the
title of such New Debt Securities; (2) any limit on the aggregate principal
amount of such New Debt Securities or the series of which they are a part; (3)
the date or dates on which the principal of any of such New Debt Securities
will be payable; (4) the rate or rates at which any of such New Debt Securities
will bear interest, if any, the date or dates from which any such interest will
accrue, the Interest Payment Dates on which any such interest will be payable,
including the right to defer the payment of interest, and
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the Regular Record Date for any such interest payable on any Interest Payment
Date; (5) the place or places where the principal of and any premium and
interest on any of such New Debt Securities will be payable; (6) the period
or periods within which, the price or prices at which and the terms and
conditions on which any of such New Debt Securities may be redeemed, in
whole or in part, at the option of the Company; (7) the obligation, if any,
of the Company to redeem or purchase any of such New Debt Securities pursuant
to any sinking fund or analogous provision or at the option of the Holder
thereof, and the period or periods within which, the price or prices at which
and the terms and conditions on which any of such New Debt Securities will be
redeemed or purchased, in whole or in part, pursuant to any such obligation; (8)
the denominations in which any of such New Debt Securities will be issuable, if
other than denominations of $1,000 and any integral multiple thereof; (9) if
the amount of principal of or any premium or interest on any of such New Debt
Securities may be determined with reference to an index or pursuant to a
formula, the manner in which such amounts will be determined; (10) if other
than the currency of the United States of America, the currency, currencies
or currency units in which the principal of or any premium or interest on any
of such New Debt Securities will be payable and the manner of determining the
equivalent thereof in the currency of the United States of America for any
purpose, including for purposes of determining the principal amount deemed
to be Outstanding at any time; (11) if the principal of or any premium or
interest on any of such New Debt Securities is to be payable, at the election
of the Company or the Holder thereof, in one or more currencies or currency
units other than those in which such New Debt Securities are stated to be
payable, the currency, currencies or currency units in which payment of any
such amount as to which such election is made will be payable, the periods
within which and the terms and conditions upon which such election is to be
made and the amount so payable (or the manner in which such amount is to be
determined); (12) if other than the entire principal amount thereof, the
portion of the principal amount of any of such New Debt Securities which will
be payable upon declaration of acceleration of the Maturity thereof; (13) if
the principal amount payable at the Stated Maturity of any of such New Debt
Securities will not be determinable as of any one or more dates prior to the
Stated Maturity, the amount which will be deemed to be such principal amount
as of any such date for any purpose, including the principal amount thereof
which will be due and payable upon any Maturity other than the Stated Maturity
or which will be deemed to be Outstanding as of any such date (or, in any such
case, the manner in which such deemed principal amount is to be determined);
(14) if applicable, that such New Debt Securities, in whole or any specified
part, are defeasible pursuant to the provisions of the Indenture described
under "--Defeasance and Covenant Defeasance - Defeasance and Discharge" or
"Defeasance and Covenant Defeasance - Defeasance of Certain Covenants," or
under both such captions; (15) whether any of such New Debt Securities will
be issuable in whole or in part in the form of one or more Global Securities
and, if so, the identity of the Depositary for such Global Securities and
disclosure of the form of any legend or legends to be borne by any such
Global Security in addition to or in lieu of the legend referred to under
"--Global Securities" and whether any transfer of such Global Security in
whole or in part may be registered in the names of Persons other than such
Depositary or its nominee; (16) any addition to or change in the Events of
Default applicable to any of such New Debt Securities and any change in
the right of the Trustee or the Holders to declare the principal amount of
any of such New Debt Securities due and payable; (17) any addition to or
change in the covenants in the Indenture; and (18) any other terms of such
New Debt Securities not inconsistent with the provisions of the Indenture.
(Section 301).
New Debt Securities, including Original Issue Discount Securities, may
be sold at a substantial discount below their principal amount. Certain special
United States federal income tax considerations (if any) applicable to New Debt
Securities sold at an original issue discount may be described in the applicable
Prospectus Supplement. In addition, certain special United States federal income
tax or other considerations (if any) applicable to any New Debt Securities which
are denominated in a currency or currency unit other than United States dollars
may be described in the applicable Prospectus Supplement.
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The Indenture does not contain any covenants or other provisions that
are specifically intended to afford holders of the New Debt Securities special
protection in the event of a highly leveraged or similar transaction involving
the Company.
Subordination
The Indenture provides that, unless otherwise provided in a
supplemental indenture or a Board Resolution and described in the applicable
Prospectus Supplement, the New Debt Securities will be subordinate and subject
in right of payment to the prior payment in full of all Senior Debt (as defined
below) of the Company, whether outstanding as of the date of the Indenture or
thereafter incurred. (Section 1401). If the relevant supplemental indenture
or Board Resolution results in the corresponding series of New Debt Securities
being subordinated obligations of the Company, the following provisions will
apply:
(i) No payment of principal (including redemption and sinking fund
payments) of, or premium, if any, or interest on, the New Debt
Securities may be made if any Senior Debt is not paid when due,
any applicable grace period with respect to such default has ended
and such default has not been cured or waived, or if the maturity
of any Senior Debt has been accelerated because of a default.
(Section 1402).
(ii) Upon any distribution of assets of the Company to creditors
upon any dissolution, winding-up, liquidation or reorganization,
whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all principal of, and
premium, if any, and interest due or to become due on, all Senior
Debt must be paid in full before the holders of the New Debt
Securities are entitled to receive or retain any payment.
(Section 1403).
(iii) Subject to the payment in full of all Senior Debt, the rights of
the holders of the New Debt Securities will be subrogated to the
rights of the holders of Senior Debt to receive payments or
distributions applicable to Senior Debt until all amounts owing
on the New Debt Securities are paid in full. (Section 1404).
The term "Senior Debt" means the principal of, and premium, if any,
interest on, and any other payment due pursuant to, any of the following items
of indebtedness, whether outstanding at the date of execution of the Indenture
or thereafter incurred, created or assumed:
(a) all indebtedness of the Company evidenced by notes,
debentures, bonds, or other securities sold by the Company for money,
including all Bonds of the Company outstanding from time to time;
(b) all indebtedness of others of the kinds described in the
preceding clause (a) assumed by or guaranteed in any manner by the
Company, including through an agreement to purchase, contingent or
otherwise; and
(c) all renewals, extensions, or refundings of indebtedness
of the kinds described in any of the preceding clauses (a) and (b);
unless, in the case of any particular indebtedness, renewal, extension or
refunding, the instrument creating or evidencing the same or the assumption or
guarantee of the same expressly provides that such indebtedness, renewal,
extension or refunding is not superior in right of payment to or is pari
passu with the New Debt Securities.
(Section 101).
The Indenture does not limit the aggregate amount of Senior Debt that
the Company may issue. As of June 30, 1997, outstanding Senior Debt of the
Company aggregated approximately $843,985,000.
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Form, Exchange, and Transfer
The New Debt Securities of each series will be issuable only in fully
registered form without coupons and, unless otherwise specified in the
applicable Prospectus Supplement, in denominations of $1,000 and any integral
multiple thereof. (Section 302).
At the option of the Holder, subject to the terms of the Indenture and
the limitations applicable to Global Securities, New Debt Securities of any
series will be exchangeable for other New Debt Securities of the same series,
of any authorized denomination and of like tenor and aggregate principal
amount. (Section 305).
Subject to the terms of the Indenture and the limitations applicable
to Global Securities, New Debt Securities may be presented for exchange as
provided above or for registration of transfer (duly endorsed or with the
form of transfer endorsed thereon duly executed) at the office of the
Security Registrar or at the office of any transfer agent designated by the
Company for such purpose. No service charge will be made for any registration
of transfer or exchange of New Debt Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. Such transfer or exchange will be effected
upon the Security Registrar or such transfer agent, as the case may be, being
satisfied with the documents of title and identity of the person making the
request. The Company has appointed the Trustee as Security Registrar. Any
transfer agent (in addition to the Security Registrar) initially designated
by the Company for any New Debt Securities will be named in the applicable
Prospectus Supplement. (Section 305). The Company may at any time designate
additional transfer agents or rescind the designation of any transfer agent
or approve a change in the office through which any transfer agent acts,
except that the Company will be required to maintain a transfer agent in each
Place of Payment for the New Debt Securities of each series. (Section 1002).
If the New Debt Securities of any series (or of any series and
specified tenor) are to be redeemed in part, the Company will not be required
to (i) issue, register the transfer of, or exchange any Debt Security of that
series (or of that series and specified tenor, as the case may be) during a
period beginning at the opening of business 15 days before the day of mailing
of a notice of redemption of any such Debt Security that may be selected for
redemption and ending at the close of business on the day of such mailing or
(ii) register the transfer of or exchange any Debt Security so selected for
redemption, in whole or in part, except the unredeemed portion of any such
Debt Security being redeemed in part. (Section 305).
Global Securities
Some or all of the New Debt Securities of any series may be
represented, in whole or in part, by one or more Global Securities which
will have an aggregate principal amount equal to that of the New Debt
Securities represented thereby. Each Global Security will be registered in
the name of a Depositary or a nominee thereof identified in the applicable
Prospectus Supplement, will be deposited with such Depositary or nominee or
a custodian therefor and will bear a legend regarding the restrictions on
exchanges and registration of transfer thereof referred to below and any
such other matters as may be provided for pursuant to the Indenture.
Notwithstanding any provision of the Indenture or any Debt Security
described herein, no Global Security may be exchanged in whole or in part for
New Debt Securities registered, and no transfer of a Global Security in whole
or in part may be registered, in the name of any Person other than the
Depositary for such Global Security or any nominee of such Depositary unless
(i) the Depositary has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Security or has ceased to be qualified
to act as such as required by the Indenture, (ii) there shall have occurred
and be continuing an Event of Default with respect to the New Debt Securities
represented by such Global Security or (iii) there shall exist such
circumstances, if any, in addition to or in lieu of those described above as
may
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be described in the applicable Prospectus Supplement. All securities issued
in exchange for a Global Security or any portion thereof will be registered in
such names as the Depositary may direct. (Sections 204 and 305).
As long as the Depositary, or its nominee, is the registered Holder of
a Global Security, the Depositary or such nominee, as the case may be, will be
considered the sole owner and Holder of such Global Security and the New Debt
Securities represented thereby for all purposes under the New Debt Securities
and the Indenture. Except in the limited circumstances referred to above,
owners of beneficial interests in a Global Security will not be entitled to
have such Global Security or any New Debt Securities represented thereby
registered in their names, will not receive or be entitled to receive physical
delivery of certificated New Debt Securities in exchange therefor and will not
be considered to be the owners or Holders of such Global Security or any New
Debt Securities represented thereby for any purpose under the New Debt
Securities or the Indenture. All payments of principal of and any premium and
interest on a Global Security will be made in immediately available funds to the
Depositary or its nominee, as the case may be, as the Holder thereof. The laws
of some jurisdictions require that certain purchasers of securities take
physical delivery of such securities in certificated form. These laws may
impair the ability to transfer beneficial interests in a Global Security.
Ownership of beneficial interests in a Global Security will be limited
to institutions that have accounts with the Depositary or its nominee
("participants") and to persons that may hold beneficial interests through
participants. In connection with the issuance of any Global Security, the
Depositary will credit, on its book-entry registration and transfer system,
the respective principal amounts of New Debt Securities represented by the
Global Security to the accounts of its participants. Ownership of beneficial
interests in a Global Security will be shown only on, and the transfer of
those ownership interests will be effected only through, records maintained
by the Depositary (with respect to participants' interests) or such
participants (with respect to interests of persons held by such participants on
their behalf). Payments, transfers, exchanges, and other matters relating to
beneficial interests in a Global Security may be subject to various policies
and procedures adopted by the Depositary from time to time. None of the
Company, the Trustee or any agent of the Company or the Trustee will have
any responsibility or liability for any aspect of the Depositary's or any
participant's records relating to, or for payments made on account of,
beneficial interests in a Global Security, or for maintaining, supervising,
or reviewing any records relating to such beneficial interests.
Beneficial interests in a Global Security will trade in the
Depositary's same-day funds settlement system, and secondary market trading
activity in such beneficial interests will settle in immediately available
funds, subject in all cases to the rules and procedures of the Depositary
and its participants.
Payment and Paying Agents
Unless otherwise indicated in the applicable Prospectus Supplement,
payment of interest on a New Debt Security on any Interest Payment Date will
be made to the Person in whose name such New Debt Security (or one or more
Predecessor New Debt Securities) is registered at the close of business on
the Regular Record Date for such interest. (Section 307).
Unless otherwise indicated in the applicable Prospectus Supplement,
principal of and any premium and interest on the New Debt Securities of a
particular series will be payable at the office of such Paying Agent or
Paying Agents as the Company may designate for such purpose from time to
time, except that at the option of the Company payment of any interest may
be made by check mailed to the address of the Person entitled thereto as such
address appears in the Security Register. Unless otherwise indicated in the
applicable Prospectus Supplement, the principal corporate trust office of The
Bank of New York will be designated as the Company's sole Paying Agent for
payments with respect to New Debt Securities of each series. Any other Paying
Agents initially designated by the Company for the New Debt Securities of a
particular
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series will be named in the applicable Prospectus Supplement. The Company may
at any time designate additional Paying Agents or rescind the designation of
any Paying Agent or approve a change in the office through which any Paying
Agent acts, except that the Company will be required to maintain a Paying
Agent in each Place of Payment for the New Debt Securities of a particular
series. (Section 1002).
All moneys paid by the Company to a Paying Agent for the payment of
the principal of or any premium or interest on any New Debt Security which
remain unclaimed at the end of two years after such principal, premium or
interest has become due and payable will be repaid to the Company, and the
Holder of such New Debt Security thereafter may look only to the Company for
payment thereof. (Section 1003).
Consolidation, Merger, and Sale of Assets
The Company may not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and may not permit any Person to consolidate with or merge into
the Company or convey, transfer, or lease its properties and assets
substantially as an entirety to the Company, unless (i) the successor Person
(if any) is a corporation, partnership, trust or other entity organized and
validly existing under the laws of any domestic jurisdiction and expressly
assumes the Company's obligations on the New Debt Securities and under the
Indenture, (ii) immediately after giving effect to the transaction, no Event
of Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing and
(iii) certain other conditions are met. (Section 801).
Events of Default
Each of the following will constitute an Event of Default under the
Indenture with respect to New Debt Securities of any series: (a) failure to
pay principal of or any premium on any Debt Security of that series when due;
(b) failure to pay any interest on any New Debt Securities of that series when
due, continued for 30 days; (c) failure to deposit any sinking fund payment,
when due, in respect of any Debt Security of that series; (d) failure to
perform any other covenant of the Company in the Indenture (other than a
covenant included in the Indenture solely for the benefit of a series other
than that series), continued for 60 days after written notice has been given
by the Trustee, or the Holders of at least 10% in principal amount of the
Outstanding New Debt Securities of that series, as provided in the Indenture;
provided, however, that no notice by the Trustee to the Holders of such an
occurrence shall be given until at least 30 days after the occurrence of such
failure to perform; and (e) certain events in bankruptcy, insolvency or
reorganization. (Section 501).
If an Event of Default (other than an Event of Default described in
clause (e) above) with respect to the New Debt Securities of any series at
the time Outstanding shall occur and be continuing, either the Trustee or the
Holders of at least 25% in aggregate principal amount of the Outstanding New
Debt Securities of that series by notice as provided in the Indenture may
declare the principal amount of the New Debt Securities of that series (or,
in the case of any Debt Security that is an Original Issue Discount Security
or the principal amount of which is not then determinable, such portion of
the principal amount of such Debt Security, or such other amount in lieu of
such principal amount, as may be specified in the terms of such Debt Security)
to be due and payable immediately. If an Event of Default described in clause
(e) above with respect to the New Debt Securities of any series at the time
Outstanding shall occur, the principal amount of all the New Debt Securities
of that series (or, in the case of any such Original Issue Discount Debt
Security or other Debt Security, such specified amount) will automatically,
and without any action by the Trustee or any Holder, become immediately due
and payable. After any such acceleration, but before a judgment or decree
based on acceleration, the Holders of a majority in aggregate principal amount
of the Outstanding New Debt Securities of that series may, under certain
circumstances, rescind and annul such acceleration if all Events of Default,
other than the non-payment of accelerated principal (or other specified
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amount), have been cured or waived as provided in the Indenture. (Section 502).
For information as to waiver of defaults, see "Modification and Waiver."
Subject to the provisions of the Indenture relating to the duties of
the Trustee in case an Event of Default shall occur and be continuing, the
Trustee will be under no obligation to exercise any of its rights or powers
under the Indenture at the request or direction of any of the Holders,
unless such Holders shall have offered to the Trustee reasonable indemnity.
(Section 603). Subject to such provisions for the indemnification of the
Trustee, the Holders of a majority in principal amount of the Outstanding
New Debt Securities of any series will have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the New Debt Securities of that series. (Section 512).
No Holder of a Debt Security of any series will have any right to
institute any proceeding with respect to the Indenture, or for the appointment
of a receiver or a trustee, or for any other remedy thereunder, unless (i) such
Holder has previously given to the Trustee written notice of a continuing Event
of Default with respect to the New Debt Securities of that series, (ii) the
Holders of at least 25% in aggregate principal amount of the Outstanding New
Debt Securities of that series have made written request, and such Holder or
Holders have offered reasonable indemnity, to the Trustee to institute such
proceeding as trustee and (iii) the Trustee has failed to institute such
proceeding, and has not received from the Holders of a majority in aggregate
principal amount of the Outstanding New Debt Securities of that series a
direction inconsistent with such request, within 60 days after such notice,
request and offer. (Section 507). However, such limitations do not apply to
a suit instituted by a Holder of a Debt Security for the enforcement of
payment of the principal of or any premium or interest on such Debt Security
on or after the applicable due date specified in such Debt Security. (Section
508).
The Company will be required to furnish to the Trustee annually a
statement by certain of its officers as to whether or not the Company, to their
knowledge, is in default in the performance or observance of any of the terms,
provisions and conditions of the Indenture and, if so, specifying all such
known defaults. (Section 1004).
Modification and Waiver
Modifications and amendments of the Indenture may be made by the
Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Outstanding New Debt Securities of each
series affected by such modification or amendment; provided, however, that
no such modification or amendment may, without the consent of the Holder of
each Outstanding Debt Security affected thereby, (a) change the Stated
Maturity of the principal of, or any instalment of principal of or interest
on, any Debt Security, (b) reduce the principal amount of, or any premium or
interest on, any Debt Security, (c) reduce the amount of principal of an
Original Issue Discount Security or any other Debt Security payable upon
acceleration of the Maturity thereof, (d) change the place or currency of
payment of principal of, or any premium or interest on, any Debt Security,
(e) impair the right to institute suit for the enforcement of any payment on
or with respect to any Debt Security, (f) modify the subordination provisions
in a manner adverse to the Holders of the New Debt Securities, (g) reduce the
percentage in principal amount of Outstanding New Debt Securities of any
series, the consent of whose Holders is required for modification or amendment
of the Indenture, (h) reduce the percentage in principal amount of Outstanding
New Debt Securities of any series necessary for waiver of compliance with
certain provisions of the Indenture or for waiver of certain defaults or (i)
modify such provisions with respect to modification and waiver. (Section 902).
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The Holders of a majority in principal amount of the Outstanding New
Debt Securities of any series may waive compliance by the Company with certain
restrictive provisions of the Indenture with respect to such series. (Section
1008). The Holders of a majority in aggregate principal amount of the
Outstanding New Debt Securities of any series may waive any past default
under the Indenture with respect to such series, except a default in the
payment of principal, premium, or interest and certain covenants and provisions
of the Indenture which cannot be amended without the consent of the Holder of
each Outstanding Debt Security of such series affected. (Section 513).
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding New Debt Securities have given or
taken any direction, notice, consent, waiver, or other action under the
Indenture as of any date, (i) the principal amount of an Original Issue
Discount Security that will be deemed to be Outstanding will be the amount
of the principal thereof that would be due and payable as of such date upon
acceleration of the Maturity thereof to such date, (ii) if, as of such date,
the principal amount payable at the Stated Maturity of a Debt Security is not
determinable (for example, because it is based on an index), the principal
amount of such Debt Security deemed to be Outstanding as of such date will
be an amount determined in the manner prescribed for such Debt Security and
(iii) the principal amount of a Debt Security denominated in one or more
foreign currencies or currency units that will be deemed to be Outstanding
will be the U.S. dollar equivalent, determined as of such date in the manner
prescribed for such Debt Security, of the principal amount of such Debt
Security (or, in the case of a Debt Security described in clause (i) or (ii)
above, of the amount described in such clause). Certain New Debt Securities,
including those for whose payment or redemption money has been deposited or
set aside in trust for the Holders and those that have been fully defeased,
as described under "Defeasance and Covenant Defeasance--Defeasance and
Discharge" below, will not be deemed to be Outstanding. (Section 101).
Except in certain limited circumstances, the Company will be entitled
to set any day as a record date for the purpose of determining the Holders of
Outstanding New Debt Securities of any series entitled to give or take any
direction, notice, consent, waiver, or other action under the Indenture, in
the manner and subject to the limitations provided in the Indenture. In
certain limited circumstances, the Trustee will be entitled to set a record
date for action by Holders. If a record date is set for any action to be
taken by Holders of a particular series, such action may be taken only by
persons who are Holders of Outstanding New Debt Securities of that series on
the record date. To be effective, such action must be taken by Holders of the
requisite principal amount of such New Debt Securities within a specified
period following the record date. For any particular record date, this period
will be 180 days or such shorter period as may be specified by the Company (or
the Trustee, if it set the record date), and may be shortened or lengthened
(but not beyond 180 days) from time to time. (Section 104).
Defeasance and Covenant Defeasance
If and to the extent indicated in the applicable Prospectus
Supplement, the Company may elect, at its option at any time, to have
the provisions of Section 1302, relating to defeasance and discharge of
indebtedness, or Section 1303, relating to defeasance of certain restrictive
covenants in the Indenture, applied to the New Debt Securities of any series,
or to any specified part of a series. (Section 1301).
Defeasance and Discharge. The Indenture will provide that, upon the
Company's exercise of its option (if any) to have Section 1302 applied to any
New Debt Securities, the Company will be discharged from all its obligations
with respect to such New Debt Securities (except for certain obligations to
exchange or register the transfer of New Debt Securities, to replace stolen,
lost or mutilated New Debt Securities, to maintain paying agencies and to
hold moneys for payment in trust) upon the deposit in trust for the benefit
of the Holders of such New Debt Securities of
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money or U.S. Government Obligations, or both, which, through the payment of
principal and interest in respect thereof in accordance with their terms,
will provide money in an amount sufficient to pay the principal of and any
premium and interest of such New Debt Securities on the respective Stated
Maturities in accordance with the terms of the Indenture and such New Debt
Securities. Such defeasance or discharge may occur only if, among other
things, the Company has delivered to the Trustee an Opinion of Counsel to
the effect that the Company has received from, or there has been published
by, the United States Internal Revenue Service a ruling, or there has been
a change in tax law, in either case to the effect that Holders of such New
Debt Securities will not recognize gain or loss for federal income tax
purposes as a result of such deposit, defeasance, and discharge and will
be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such deposit, defeasance
and discharge were not to occur. (Sections 1302 and 1304).
Defeasance of Certain Covenants. The Indenture provides that, upon
the Company's exercise of its option (if any) to have Section 1303 applied
to any New Debt Securities, the Company may omit to comply with certain
restrictive covenants that may be described in the applicable Prospectus
Supplement, and the occurrence of certain Events of Default, which are
described above in clause (d) (with respect to such restrictive covenants)
in the first paragraph under "Events of Default" and any that may be described
in the applicable Prospectus Supplement, will be deemed not to be or result
in an Event of Default and the provisions of the Indenture relating to
subordination (if otherwise applicable) will cease to be effective, in each case
with respect to such New Debt Securities. The Company, in order to exercise
such option, will be required to deposit, in trust for the benefit of the
Holders of such New Debt Securities, money or U.S. Government Obligations,
or both, which, through the payment of principal and interest in respect
thereof in accordance with their terms, will provide money in an amount
sufficient to pay the principal of and any premium and interest on such
New Debt Securities on the respective Stated Maturities in accordance with
the terms of the Indenture and such New Debt Securities. The Company will also
be required, among other things, to deliver to the Trustee an Opinion of Counsel
to the effect that Holders of such New Debt Securities will not recognize gain
or loss for federal income tax purposes as a result of such deposit and
defeasance of certain obligations and will be subject to federal income tax
on the same amount, in the same manner and at the same times as would have
been the case if such deposit and defeasance were not to occur. In the event
the Company were to exercise this option with respect to any New Debt
Securities and such New Debt Securities were declared due and payable because
of the occurrence of an Event of Default, other than one relating to the
applicable restrictive covenant, the amount of money and U.S. Government
Obligations so deposited in trust would be sufficient to pay amounts due on such
New Debt Securities at the time of their respective Stated Maturities but may
not (and generally will not) be sufficient to pay amounts due on such New
Debt Securities upon any acceleration resulting from such Event of Default.
In such case, the Company would remain liable for such payments. (Sections
1303 and 1304).
Notices
Notices to Holders of New Debt Securities will be given by mail to the
addresses of such Holders as they may appear in the Security Register. (Sections
101 and 106).
Title
The Company, the Trustee, and any agent of the Company or the Trustee
may treat the Person in whose name a Debt Security is registered as the absolute
owner thereof (whether or not such Debt Security may be overdue) for the purpose
of making payment and for all other purposes. (Section 308).
Governing Law
The Indenture and the New Debt Securities will be governed by, and
construed in accordance with, the law of the State of New York. (Section 112).
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Regarding the Trustee
The Trustee under the Indenture is The Bank of New York. The Company
maintains normal banking arrangements with The Bank of New York. The Trustee
is also trustee for Junior Subordinated Deferrable Interest Debentures, Series
A, of the Company under the Indenture. Upon the occurrence of an Event of
Default or an event which, after notice or lapse of time or both, would
become an Event of Default, the Trustee may be deemed to have a conflicting
interest, for the purposes of the Trust Indenture Act of 1939 with respect
to the New Debt Securities of any series that rank senior to such Series A
Debentures. In such case, the Trustee may be required to resign as Trustee
under the Indenture. In that event, the Company would be required to appoint a
successor Trustee.
PLAN OF DISTRIBUTION
The Company will sell the Securities from time to time through
underwriters, dealers or agents and/or directly to other purchasers 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, at
market prices prevailing at the time of sale or at varying prices determined
at the time of sale. The underwriter or underwriters with respect to a
particular underwritten offering of Securities will be named in the Prospectus
Supplement relating to such offering and, if an underwriting syndicate is used,
the managing underwriter or underwriters will be set forth on the cover page of
such Prospectus Supplement. The applicable Prospectus Supplement will also set
forth the purchase price of the Securities 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.
The Securities may be offered and sold by the Company directly or
through agents designated by the Company from time to time. Any agent
involved in the offer or sale of the Securities in respect of which this
Prospectus is delivered will be named in, and any commissions payable by the
Company to such agent will be set forth in, the applicable Prospectus
Supplement. Unless otherwise indicted in the applicable Prospectus Supplement,
each such agent will be acting on a reasonable-efforts basis for the period
of its appointment.
Underwriters, dealers and agents that participate in the distribution
of Securities may be deemed to be underwriters and any discounts or commissions
received by them from the Company and any profit on the resale of Securities by
them may be deemed to be underwriting discounts and commissions under the
Securities Act.
Underwriters, dealers and agents may be entitled, under agreements to
be entered into with the Company, to indemnification against certain civil
liabilities, including liabilities under the Securities Act.
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 the
underwriters, agents or dealers by Brown & Wood LLP, New York, New York.
On matters of local law, those
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firms will rely on Robert R. Winter, Esq., Vice President, Legal Services of the
Company.
EXPERTS
The 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.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses in connection with the issuance and
istribution of the securities being registered, other than Underwriting
Compensation, are as follows:
Estimated
Amounts
Filing fee
Securities and Exchange Commission........................ $ 18,182
Rating agency fees.......................................... $ 15,000*
Cost of printing and engraving.............................. $ 90,000*
Services of counsel......................................... $ 100,000*
Depositary's and Trustees'
fees and expenses......................................... $ 17,500*
Services of independent accountants......................... $ 48,000*
Miscellaneous............................................... $ 9,000*
Total.................................................. $ 297,682*
* Estimated.
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 Underwriter will agree to
indemnify the directors and certain officers of the Company against
liabilities resulting from information an underwriter supplies for the
Registration Statement.
Item 16. Exhibits.
Exhibit
Number
1(a) Form of Standard Purchase Agreement Provisions - Debt
Securities (incorporated by reference from Registration
Statement 33-59133, exh. 1).
1(b) Form of First Mortgage Bond Standard Purchase Agreement
Provisions (incorporated by reference from Registration
Statement 33-51303, exh. 1).
4(a) Indenture relating to New Debt Securities.
4(b) Form of New Debt Securities (to be filed as an Exhibit by
means of a Form 8-K).
4(c) Form of New Bonds. (Contained in Form of Supplemental
Indenture filed as Exhibit 4(e).)
4(d) Indenture dated as of March 1, 1916, and certain Supplemental
Indentures of the Company defining rights of security holders
(incorporated herein by reference from the following
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documents: S-3, 33-51303, exh. 4(d), S2-1835, 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 February 1991, December
1991, August 13, 1993, September 15, 1992, June 9, 1993, June
9, 1993, August 2, 1994 and May 19, 1995). 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. The
Company agrees to furnish the Commission on its request with
copies of such Supplemental Indentures.
4(e) Form of Supplemental Indenture.
5 Opinion of Sullivan & Cromwell.
12 Statement re Computation of Ratios.
23(a) Consent of Independent Accountants, Price Waterhouse LLP.
23(b) Consent of Sullivan & Cromwell. (Filed as part of Exhibit 5
hereto.)
25(a) Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Bank of New York.
25(b) Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank.
27 Financial Data Schedule.
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. Notwithstanding the
foregoing, any increase or decrease in volume of securities
II-2
<PAGE>
offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low
or high and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the change in
volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "calculation of
Registration Fee" table in the effective 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
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-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Hagerstown, State of Maryland, on the 10th day of
July, 1997.
WEST PENN POWER COMPANY
By /s/ Alan J. Noia
(Alan J. Noia, 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 THOMAS K. HENDERSON, ESQ. and CAROL G. RUSS, ESQ. and each of them,
a true and lawful attorney-in-fact and agent(s) 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 and other documents in connection therewith
to be filed with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agent(s) 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 and the date indicated.
Signature Title Date
/s/ Alan J. Noia Chairman of the Board
(Alan J. Noia) Chief Executive Officer and Director
(principal executive officer) 7/10/97
/s/ Michael P. Morrell Vice President Finance
(Michael P. Morrell) (principal financial officer) 7/10/97
/s/ Thomas J. Kloc Controller
(Thomas J. Kloc) (principal accounting officer) 7/10/97
/s/ Eleanor Baum Director
(Eleanor Baum) 7/10/97
II-4
<PAGE>
Signature Title Date
/s/ William L. Bennett Director 7/10/97
(William L. Bennett)
/s/ Wendell F. Holland Director 7/10/97
(Wendell F. Holland)
/s/ Phillip E. Lint Director 7/10/97
(Phillip E. Lint)
/s/ Frank A. Metz, Jr. Director 7/10/97
(Frank A. Metz, Jr.)
/s/ Michael P. Morrell Director 7/10/97
(Michael P. Morrell)
/s/ Alan J. Noia Director 7/10/97
(Alan J. Noia)
/s/ Jay S. Pifer Director 7/10/97
(Jay S. Pifer)
/s/ Steven H. Rice Director 7/10/97
(Steven H. Rice)
/s/ Gunnar E. Sarsten Director 7/10/97
(Gunnar E. Sarsten)
/s/ Peter L. Shea Director 7/10/97
(Peter L. Shea)
/s/ Peter J. Skrgic Director 7/10/97
(Peter J. Skrgic)
II-5
<PAGE>
INDEX TO EXHIBITS
Sequential page
Exhibits number
1(a) Form of Standard Purchase Agreement Provisions - Debt
Securities (incorporated by reference from Registration
Statement 33-59133, exh. 1).
1(b) Form of First Mortgage Bond Standard Purchase Agreement
Provisions (incorporated by reference from Registration
Statement 33-51303, exh. 1).
4(a) Indenture relating to New Debt Securities.
4(b) Form of New Debt Securities (to be filed as an
Exhibit by means of a Form 8-K).
4(c) Form of New Bonds. (Contained in Form of Supplemental
Indenture filed as Exhibit 4(e).)
4(d) Indenture dated as of March 1, 1916, and certain
Supplemental Indentures of the Company defining rights of
security holders (incorporated herein by reference from the
following documents: S-3, 33-51303, exh. 4(d), S2-1835,
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
February 1991, December 1991, August 13, 1993, September
15, 1992, June 9, 1993, June 9, 1993, August 2, 1994 and
May 19, 1995). 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. The
Company agrees to furnish the Commission on its request
with copies of such Supplemental Indentures.
4(e) Form of Supplemental Indenture.
5 Opinion of Sullivan & Cromwell.
12 Statement re Computation of Ratios.
23(a) Consent of Independent Accountants, Price Waterhouse LLP.
23(b) Consent of Sullivan & Cromwell. (Filed as part of Exhibit 5
hereto.)
25(a) Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Bank of New York.
25(b) Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank.
27 Financial Data Schedule.
II-6
<PAGE>
EXHIBIT 4(a)
WEST PENN POWER COMPANY
TO
THE BANK OF NEW YORK,
Trustee
______________
Indenture
Dated as of May 15, 1995
______________
WEST PENN POWER COMPANY
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
Section 310(a)(1) 609
(a) (2) 609
(a) (3) Not Applicable
(a) (4) Not Applicable
(b) 608
610
Section 311(a) 613
(b) 613
Section 312(a) 701
702
(b) 702
(c) 702
Section 313(a) 703
(b) 703
(c) 703
(d) 703
Section 314(a) 704
(a)(4) 101
1004
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
Section 315(a) 601
(b) 602
(c) 601
(d) 601
(e) 514
Section 316(a) 101
(a)(1)(A) 502
512
(a)(1)(B) 513
(a)(2) Not Applicable
(b) 508
(c) 104
Section 317(a)(1) 503
(a)(2) 504
(b) 1003
Section 318(a) 107
___________________
Note: This reconciliation and tie shall not,
for any purpose, be deemed to be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
__________
Page
Parties 1
Recitals of the Company 1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions:
Act 2
Affiliate; control 2
Authenticating Agent 2
Board of Directors 2
Board Resolution 2
Business Day 2
Commission 2
Company 2
Company Request; Company Order 2
Conditional Redemption 3
Corporate Trust Office 3
corporation 3
Covenant Defeasance 3
Defaulted Interest 3
Defeasance 3
Depositary 3
Event of Default 3
Exchange Act 3
Expiration Date 3
Global Security 3
Holder 3
Indenture 3
interest 3
Interest Payment Date 3
Investment Company Act 4
Maturity 4
Notice of Default 4
Officers' Certificate 4
Opinion of Counsel 4
Original Issue Discount Security 4
Outstanding 4
Paying Agent 5
<PAGE>
Person 5
Place of Payment 5
Predecessor Security 5
Redemption Date 5
Redemption Price 5
Regular Record Date 5
Responsible Officer 6
Securities 6
Securities Act 6
Security Register and Security Registrar 6
Senior Debt 6
Special Record Date 6
Stated Maturity 6
Subsidiary 6
Trust Indenture Act 7
Trustee 7
U.S. Government Obligation 7
Vice President 7
Section 102. Compliance Certificates and Opinions 7
Section 103. Form of Documents Delivered to Trustee 8
Section 104. Acts of Holders; Record Dates 8
Section 105. Notices, Etc., to Trustee and Company 10
Section 106. Notice to Holders; Waiver 10
Section 107. Conflict with Trust Indenture Act 11
Section 108. Effect of Headings and Table of Contents 11
Section 109. Successors and Assigns 11
Section 110. Separability Clause 11
Section 111. Benefits of Indenture 11
Section 112. Governing Law 12
Section 113. Legal Holidays 12
ARTICLE TWO
Security Forms
Section 201. Forms Generally 12
Section 202. Form of Face of Security 13
Section 203. Form of Reverse of Security 14
Section 204. Form of Legend for Global Securities 19
Section 205. Form of Trustee's Certificate of Authentication 19
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series 19
Section 302. Denominations 22
<PAGE>
Section 303. Execution, Authentication, Delivery and Dating 22
Section 304. Temporary Securities 24
Section 305. Registration, Registration of Transfer and Exchange
24
Section 306. Mutilated, Destroyed, Lost and Stolen Securities 26
Section 307. Payment of Interest; Interest Rights Preserved 27
Section 308. Persons Deemed Owners 28
Section 309. Cancellation 28
Section 310. Computation of Interest 28
Section 311. CUSIP Numbers 28
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture 29
Section 402. Application of Trust Money 30
ARTICLE FIVE
Remedies
Section 501. Events of Default 30
Section 502. Acceleration of Maturity; Rescission and Annulment 31
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee 32
Section 504. Trustee May File Proofs of Claim 33
Section 505. Trustee May Enforce Claims Without Possession
of Securities 34
Section 506. Application of Money Collected 34
Section 507. Limitation on Suits 34
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest 35
Section 509. Restoration of Rights and Remedies 35
Section 510. Rights and Remedies Cumulative 35
Section 511. Delay or Omission Not Waiver 36
Section 512. Control by Holders 36
Section 513. Waiver of Past Defaults 36
Section 514. Undertaking for Costs 36
Section 515. Waiver of Usury, Stay or Extension Laws 37
<PAGE>
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities 37
Section 602. Notice of Defaults 37
Section 603. Certain Rights of Trustee 38
Section 604. Not Responsible for Recitals or Issuance of Securities
39
Section 605. May Hold Securities 39
Section 606. Money Held in Trust 39
Section 607. Compensation and Reimbursement 39
Section 608. Conflicting Interests 40
Section 609. Corporate Trustee Required; Eligibility 40
Section 610. Resignation and Removal; Appointment of Successor
40
Section 611. Acceptance of Appointment by Successor 42
Section 612. Merger, Conversion, Consolidation or Succession
to Business 43
Section 613. Preferential Collection of Claims Against Company 43
Section 614. Appointment of Authenticating Agent 43
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses
of Holders 45
Section 702. Preservation of Information; Communications
to Holders 45
Section 703. Reports by Trustee 46
Section 704. Reports by Company 46
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on
Certain Terms 47
Section 802. Successor Substituted 47
<PAGE>
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders
48
Section 902. Supplemental Indentures with Consent of Holders 49
Section 903. Execution of Supplemental Indentures 50
Section 904. Effect of Supplemental Indentures 50
Section 905. Conformity with Trust Indenture Act 50
Section 906. Reference in Securities to Supplemental Indentures 50
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest 51
Section 1002. Maintenance of Office or Agency 51
Section 1003. Money for Securities Payments to Be Held in Trust 51
Section 1004. Statement by Officers as to Default 52
Section 1005. Existence 53
Section 1006. Maintenance of Properties 53
Section 1007. Payment of Taxes and Other Claims 53
Section 1008. Waiver of Certain Covenants 53
Section 1009. Calculation of Original Issue Discount 54
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article 54
Section 1102. Election to Redeem; Notice to Trustee 54
Section 1103. Selection by Trustee of Securities to Be Redeemed 55
Section 1104. Notice of Redemption 55
Section 1105. Deposit of Redemption Price 56
Section 1106. Securities Payable on Redemption Date 56
Section 1107. Securities Redeemed in Part 57
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article 57
Section 1202. Satisfaction of Sinking Fund Payments
with Securities 57
Section 1203. Redemption of Securities for Sinking Fund 58
<PAGE>
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or
Covenant Defeasance 58
Section 1302. Defeasance and Discharge 58
Section 1303. Covenant Defeasance 59
Section 1304. Conditions to Defeasance or Covenant Defeasance 59
Section 1305. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous Provisions 61
ARTICLE FOURTEEN
Subordination of Securities
Section 1401. Securities Subordinate to Senior Debt 62
Section 1402. Payment Over of Proceeds Upon Default 63
Section 1403. Payment Over of Proceeds Upon Dissolution, Etc. 63
Section 1404. Subrogation to Rights of Holders of Senior Debt 64
Section 1405. Trustee to Effectuate Subordination 65
Section 1406. Notice to Trustee 65
Section 1407. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights 66
Section 1408. Trustee Not Fiduciary for Holders of Senior Debt 66
Section 1409. No Waiver of Subordination Provisions 67
Section 1410. Defeasance of this Article Fourteen 67
Testimonium 68
Signatures and Seals 68
Acknowledgements 69
INDENTURE, dated as of May 15, 1995, between WEST PENN
POWER COMPANY, a corporation duly organized and existing under
the laws of the State of Pennsylvania (herein called the Company),
having its principal office at 800 Cabin Hill Drive, Greensburg,
Pennsylvania 15601, and THE BANK OF NEW YORK, a New York
banking corporation, as Trustee (herein called the Trustee).
<PAGE>
Recitals of the Company
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
Securities), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof,
as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles;
(4) unless the context otherwise requires, any reference to an
Article or a Section refers to an Article or a Section, as the case may
be, of this Indenture; and
(5) the words herein, hereof and hereunder and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
<PAGE>
Act, when used with respect to any Holder, has the meaning specified
in Section 104.
Affiliate of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
control when used with respect to any specified Person means the power
to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms controlling and controlled have
meanings correlative to the foregoing.
Authenticating Agent means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
Board of Directors means either the board of directors of the
Company or any duly authorized committee of that board.
Board Resolution means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
Business Day, when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in that Place of Payment are
authorized or obligated by law or executive order to close.
Commission means the Securities and Exchange Commission, from
time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
Company means the Person named as the Company in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter Company shall mean such successor Person.
Company Request or Company Order means a written request or order
signed in the name of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its President or a Vice President, and by
its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
Conditional Redemption has the meaning specified in Section 1104.
<PAGE>
Corporate Trust Office means the principal office of the Trustee in
New York, New York at which at any particular time its corporate trust
business shall be administered, which currently is 101 Barclay Street,
Floor 21 west, New York, New York 10286.
corporation means a corporation, association, company, joint-stock
company or business trust.
Covenant Defeasance has the meaning specified in Section 1303.
Defaulted Interest has the meaning specified in Section 307.
Defeasance has the meaning specified in Section 1302.
Depositary means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act that is designated to act as
Depositary for such Securities as contemplated by Section 301.
Event of Default has the meaning specified in Section 501.
Exchange Act means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
Expiration Date has the meaning specified in Section 104.
Global Security means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or
such legend as may be specified as contemplated by Section 301 for such
Securities).
Holder means a Person in whose name a Security is registered in the
Security Register.
Indenture means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument and any
such supplemental indenture, the provisions of the Trust Indenture Act
that are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively. The term Indenture shall also
include the terms of particular series of Securities established as contem-
plated by Section 301.
interest, when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest
payable after Maturity.
<PAGE>
Interest Payment Date, when used with respect to any Security, means
the Stated Maturity of an instalment of interest on such Security.
Investment Company Act means the Investment Company Act of 1940
and any statute successor thereto, in each case as amended from time to
time.
Maturity, when used with respect to any Security, means the date on
which the principal of such Security or an instalment of principal
becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
Notice of Default means a written notice of the kind specified in
Section 501(4).
Officers' Certificate means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Comptroller, the
Secretary or an Assistant Secretary, of the Company, and delivered to
the Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 1004 shall be the principal executive, financial or
accounting officer of the Company.
Opinion of Counsel means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
Original Issue Discount Security means any Security which provides
for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502.
Outstanding, when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities; provided that,
if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor satis-
factory to the Trustee has been made;
<PAGE>
(3) Securities as to which Defeasance has been effected pursuant
to Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given, made
or taken any request, demand, authorization, direction, notice, consent,
waiver or other action hereunder as of any date, (A) the principal amount
of an Original Issue Discount Security which shall be deemed to be
Outstanding shall be the amount of the principal thereof which would be
due and payable as of such date upon acceleration of the Maturity thereof
to such date pursuant to Section 502, (B) if, as of such date, the principal
amount payable at the Stated Maturity of a Security is not determinable,
the principal amount of such Security which shall be deemed to be
Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security
denominated in one or more foreign currencies or currency units which
shall be deemed to be Outstanding shall be the U.S. dollar equivalent,
determined as of such date in the manner provided as contemplated by
Section 301, of the principal amount of such Security (or, in the case of
a Security described in Clause (A) or (B) above, of the amount
determined as provided in such Clause), and (D) Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not
to be Outstanding, except that, in determining whether the Trustee shall
be protected in relying upon any such request, demand, authorization,
direction, notice, consent, waiver or other action, only Securities which
the Trustee actually knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Securities
and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
Paying Agent means any Person authorized by the Company to pay
the principal of or any premium or interest on any Securities on behalf
of the Company.
Person means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
<PAGE>
Place of Payment, when used with respect to the Securities of any
series, means the place or places where the principal of and any premium
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
Predecessor Security of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for
or in lieu of a mutilated, destroyed, lost or stolen Security shall be
deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
Redemption Date, when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
Redemption Price, when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
Regular Record Date for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
Responsible Officer, when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman
or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller or any assistant controller or any
other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means,
with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
Securities has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered
under this Indenture.
Securities Act means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
Security Register and Security Registrar have the respective meanings
specified in Section 305.
<PAGE>
Senior Debt of the Company means the principal of, premium, if any,
interest on and any other payment due pursuant to any of the following,
whether outstanding at the date of execution of this Indenture or
thereafter incurred, created or assumed: (a) all indebtedness of the
Company evidenced by notes, debentures, bonds or other securities sold
by the Company for money, including all first mortgage bonds of the
Company outstanding from time to time, (b) all indebtedness of others
of the kinds described in the preceding clause (a) assumed by or
guaranteed in any manner by the Company, including through an
agreement to purchase, contingent or otherwise, and (c) all renewals,
extensions or refundings of indebtedness of the kinds described in any of
the preceding clauses (a) and (b) unless, in the case of any particular
indebtedness, renewal, extension or refunding, the instrument creating
or evidencing the same or the assumption or guarantee of the same
expressly provides that such indebtedness, renewal, extension or
refunding is not superior in right of payment to or is pari passu with the
Securities.
Special Record Date for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
Stated Maturity, when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such instalment of principal or interest is due and payable.
Subsidiary means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company
or by one or more other Subsidiaries, or by the Company and one or
more other Subsidiaries. For the purposes of this definition, voting stock
means stock which ordinarily has voting power for the election of direc-
tors, whether at all times or only so long as no senior class of stock has
such voting power by reason of any contingency.
Trust Indenture Act means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such
date, Trust Indenture Act means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
Trustee means the Person named as the Trustee in the first paragraph
of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
Trustee shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person,
Trustee as used with respect to the Securities of any series shall mean the
Trustee with respect to Securities of that series.
<PAGE>
U.S. Government Obligation has the meaning specified in
Section 1304.
Vice President, when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title vice president.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be required
under the Trust Indenture Act. Each such certificate or opinion shall be
given in the form of an Officers' Certificate, if to be given by an officer
of the Company, or an Opinion of Counsel, if to be given by counsel,
and shall comply with the requirements of the Trust Indenture Act and
any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for
certificates provided for in Section 1004) shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other
<PAGE>
matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of
counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual
matters is in the possession of the Company, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given, made
or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the Act of the Holders signing such
instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose
of this Indenture and (subject to Section 601) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this
Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other
than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the
<PAGE>
Person executing the same, may also be proved in any other manner
which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled
to give, make or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders of Securities of such
series, provided that the Company may not set a record date for, and the
provisions of this paragraph shall not apply with respect to, the giving
or making of any notice, declaration, request or direction referred to in
the next paragraph. If any record date is set pursuant to this paragraph,
the Holders of Outstanding Securities of the relevant series on such
record date, and no other Holders, shall be entitled to take the relevant
action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the
requisite principal amount of Outstanding Securities of such series on
such record date. Nothing in this paragraph shall be construed to prevent
the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action taken
by Holders of the requisite principal amount of Outstanding Securities of
the relevant series on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Trustee in
writing and to each Holder of Securities of the relevant series in the
manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled
to join in the giving or making of (i) any Notice of Default, (ii) any
declaration of acceleration referred to in Section 502, (iii) any request to
institute proceedings referred to in Section 507(2) or (iv) any direction
referred to in Section 512, in each case with respect to Securities of such
series. If any record date is set pursuant to this paragraph, the Holders
<PAGE>
of Outstanding Securities of such series on such record date, and no
other Holders, shall be entitled to join in such notice, declaration,
request or direction, whether or not such Holders remain Holders after
such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by
Holders of the requisite principal amount of Outstanding Securities of
such series on such record date. Nothing in this paragraph shall be
construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically
and with no action by any Person be cancelled and of no effect), and
nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the
Trustee, at the Company's expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date
to be given to the Company in writing and to each Holder of Securities
of the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the
Expiration Date and from time to time may change the Expiration Date
to any earlier or later day; provided that no such change shall be
effective unless notice of the proposed new Expiration Date is given to
the other party hereto in writing, and to each Holder of Securities of the
relevant series in the manner set forth in Section 106, on or prior to the
existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section, the party hereto
which set such record date shall be deemed to have initially designated
the 180th day after such record date as the Expiration Date with respect
thereto, subject to its right to change the Expiration Date as provided in
this paragraph. Notwithstanding the foregoing, no Expiration Date shall
be later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so
with regard to all or any part of the principal amount of such Security or
by one or more duly appointed agents each of which may do so pursuant
to such appointment with regard to all or any part of such principal
amount.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
<PAGE>
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the
Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any
case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act which is required under such Act to be a part
of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the
Trust Indenture Act which may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to
be excluded, as the case may be.
<PAGE>
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Debt and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the law of the State of New York, without regard to
conflicts of laws principles.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place
of Payment, then (notwithstanding any other provision of this Indenture
or of the Securities (other than a provision of any Security which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made
at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date or Redemption Date,
or at the Stated Maturity.
<PAGE>
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted
by this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange or
Depositary therefor or as may, consistently herewith, be determined by
the officers executing such Securities, as evidenced by their execution
thereof. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary
of the Company and delivered to the Trustee at or prior to the delivery
of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by
their execution of such Securities.
Section 202. Form of Face of Security.
Insert any legend required by the Internal Revenue Code and the
regulations thereunder.
WEST PENN POWER COMPANY
..........................................................................
No. ......... $ ........
CUSIP No.______
WEST PENN POWER COMPANY, a corporation duly organized
and existing under the laws of Pennsylvania (herein called the Company,
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
................................, or registered assigns, the principal sum of
............................. Dollars on .................................
<PAGE>
[if the Security is to bear interest prior to Maturity, insert - , and to pay
interest thereon from ............. or from the most recent Interest
Payment Date to which interest has been paid or duly provided for,
[monthly][quarterly][semi-annually] on ................... in
each year, commencing ........., at the rate of ....% per annum, until the
principal hereof is paid or made available for payment [if applicable,
insert - , provided that any principal and premium, and any such
instalment of interest, which is overdue shall bear interest at the rate of
...% per annum (to the extent that the payment of such interest shall be
legally enforceable), from the dates such amounts are due until they are
paid or made available for payment, and such interest shall be payable
on demand]. The interest so payable, and punctually paid or duly pro-
vided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the .............
(whether or not a Business Day)[, as the case may be,] next preceding
such Interest Payment Date. Any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall
be given to Holders of Securities of this series not less than 10 days prior
to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture].
[If the Security is not to bear interest prior to Maturity, insert - The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at
Stated Maturity and in such case the overdue principal and any overdue
premium shall bear interest at the rate of ....% per annum (to the extent
that the payment of such interest shall be legally enforceable), from the
dates such amounts are due until they are paid or made available for
payment. Interest on any overdue principal or premium shall be payable
on demand. [Any such interest on overdue principal or premium which
is not paid on demand shall bear interest at the rate of ......% per annum
(to the extent that the payment of such interest on interest shall be legally
enforceable), from the date of such demand until the amount so
demanded is paid or made available for payment. Interest on any overdue
interest shall be payable on demand.]]
Payment of the principal of (and premium, if any) and [if
applicable, insert - any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in New
<PAGE>
York, New York, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public
and private debts [if applicable, insert - ; provided, however, that at the
option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register].
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
In Witness Whereof, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
WEST PENN POWER COMPANY
By...................................................
Attest:
.........................................
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the Securities), issued and to be issued in one or
more series under an Indenture, dated as of ............., 1995 (herein
called the Indenture, which term shall have the meaning assigned to it in
such instrument), between the Company and The Bank of New York, as
Trustee (herein called the Trustee, which term includes any successor
trustee under the Indenture), and reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee, the
holders of Senior Debt and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the series designated on the face hereof [if
applicable, insert - , limited in aggregate principal amount to $...........].
<PAGE>
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable,
insert - (1) on ........... in any year commencing with the year ...... and
ending with the year ...... through operation of the sinking fund for this
series at a Redemption Price equal to 100% of the principal amount, and
(2)] at any time [if applicable, insert - on or after .........., ....], as a
whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount):
If redeemed [if applicable, insert - on or before ..............., ...%, and
if redeemed] during the 12-month period beginning ............. of the
years indicated,
Redemption Redemption
Year Price Year Price
and thereafter at a Redemption Price equal to .....% of the principal
amount, together in the case of any such redemption [if applicable,
insert - (whether through operation of the sinking fund or otherwise)]
with accrued interest to the Redemption Date, but interest installments
whose Stated Maturity is on or prior to such Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ............
in any year commencing with the year .... and ending with the year ....
through operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund (expressed
as percentages of the principal amount) set forth in the table below, and
(2) at any time [if applicable, insert - on or after ............], as a whole
or in part, at the election of the Company, at the Redemption Prices for
redemption otherwise than through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table
below: If redeemed during the 12-month period beginning ............ of
the years indicated,
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
<PAGE>
and thereafter at a Redemption Price equal to .....% of the principal
amount, together in the case of any such redemption (whether through
operation of the sinking fund or otherwise) with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity is on
or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close
of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.]
[If applicable, insert - Notwithstanding the foregoing, the Company
may not, prior to ............., redeem any Securities of this series as
contemplated by [if applicable, insert - Clause (2) of] the preceding
paragraph as a part of, or in anticipation of, any refunding operation by
the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than .....% per annum.]
[If applicable, insert - The sinking fund for this series provides for the
redemption on ............ in each year beginning with the year ....... and
ending with the year ...... of [if applicable, insert - not less than
$.......... (mandatory sinking fund) and not more than] $.........
aggregate principal amount of Securities of this series. Securities of this
series acquired or redeemed by the Company otherwise than through [if
applicable, insert - mandatory] sinking fund payments may be credited
against subsequent [if applicable, insert - mandatory] sinking fund
payments otherwise required to be made [if applicable, insert - , in the
inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert - In the
event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the cancella-
tion hereof.]
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinated and subject in right of payment to the
prior payment in full of all Senior Debt, and this Security is issued
subject to the provisions of the Indenture with respect thereto. Each
Holder of this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints
the Trustee his attorney-in-fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Debt, whether now outstanding or
<PAGE>
hereafter incurred, and waives reliance by each such Holder upon said
provisions.
[If applicable, insert - The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set
forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert - If
an Event of Default with respect to Securities of this series shall occur
and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in
the Indenture.]
[If the Security is an Original Issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and
be continuing, an amount of principal of the Securities of this series may
be declared due and payable in the manner and with the effect provided
in the Indenture. Such amount shall be equal to insert formula for
determining the amount. Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue principal,
premium and interest (in each case to the extent that the payment of such
interest shall be legally enforceable), all of the Company's obligations in
respect of the payment of the principal of and premium and interest, if
any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Holders of the Securities of each
series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal
amount of the Securities at the time Outstanding of each series to be
affected. The Indenture also contains provisions permitting the Holders
of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities
of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon
all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or
<PAGE>
trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event
of Default with respect to the Securities of this series, the Holders of not
less than 25% in principal amount of the Securities of this series at the
time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and
offered the Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in principal amount of Securities
of this series at the time Outstanding a direction inconsistent with such
request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this
Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at
the office or agency of the Company in any place where the principal of
and any premium and interest on this Security are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $....... and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection
therewith.
Interest on the Security shall be computed on the basis of a 360-day
year of twelve 30-day months.
<PAGE>
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security be overdue,
and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
This Security shall be governed by and construed in accordance with
the laws of the State of New York, without regard to conflicts of laws
principles.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Section 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and
delivered hereunder shall bear a legend in substantially the following
form:
This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the
name of a Depositary or a nominee thereof. This Security may
not be exchanged in whole or in part for a Security
registered, and no transfer of this Security in whole or in
part may be registered, in the name of any Person other than
such Depositary or a nominee thereof, except in the limited
circumstances described in the Indenture.
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
As Trustee
By.........................................
Authorized Signatory
<PAGE>
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to
Section 303, set forth, or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of
the series is payable;
(5) the rate or rates at which any Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any such interest payable on
any Interest Payment Date;
(6) the right, if any, to extend the interest payment periods, and
the duration and other terms and conditions of any such extension;
(7) the place or places where the principal of and any premium
and interest on any Securities of the series shall be payable;
<PAGE>
(8) the period or periods within which, the price or prices at
which and the terms and conditions upon which any Securities of the
series may be redeemed, in whole or in part, at the option of the
Company and, if other than by a Board Resolution, the manner in
which any election by the Company to redeem the Securities shall be
evidenced;
(9) the obligation, if any, of the Company to redeem or purchase
any Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof and the period or
periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the series shall be redeemed
or purchased, in whole or in part, pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Securities of the
series shall be issuable;
(11) if the amount of principal of or any premium or interest on
any Securities of the series may be determined with reference to an
index or pursuant to a formula, the manner in which such amounts
shall be determined;
(12) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable
and the manner of determining the equivalent thereof in the currency
of the United States of America for any purpose, including for
purposes of the definition of Outstanding in Section 101;
(13) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or the
Holder thereof, in one or more currencies or currency units other than
that or those in which such Securities are stated to be payable, the
currency, currencies or currency units in which the principal of or any
premium or interest on such Securities as to which such election is
made shall be payable, the periods within which and the terms and
conditions upon which such election is to be made and the amount so
payable (or the manner in which such amount shall be determined);
(14) if other than the entire principal amount thereof, the portion
of the principal amount of any Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(15) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed
to be the principal amount of such Securities as of any such date for
<PAGE>
any purpose thereunder or hereunder, including the principal amount
thereof which shall be due and payable upon any Maturity other than
the Stated Maturity or which shall be deemed to be Outstanding as of
any date prior to the Stated Maturity (or, in any such case, the manner
in which such amount deemed to be the principal amount shall be
determined);
(16) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1302 or
Section 1303 or both such Sections and, if other than by a Board
Resolution, the manner in which any election by the Company to
defease such Securities shall be evidenced;
(17) if applicable, that any Securities of the series shall be issuable
in whole or in part in the form of one or more Global Securities and,
in such case, the respective Depositaries for such Global Securities,
the form of any legend or legends which shall be borne by any such
Global Security in addition to or in lieu of that set forth in Section 204
and any circumstances in addition to or in lieu of those set forth in
Clause (2) of the last paragraph of Section 305 in which any such
Global Security may be exchanged in whole or in part for Securities
registered, and any transfer of such Global Security in whole or in
part may be registered, in the name or names of Persons other than
the Depositary for such Global Security or a nominee thereof;
(18) any addition to or change in the Events of Default which
applies to any Securities of the series and any change in the right of
the Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section 502;
(19) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 901(5)).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or
pursuant to the Board Resolution referred to above and (subject to
Section 303) set forth, or determined in the manner provided, in the
Officers' Certificate referred to above or in any such indenture
supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
<PAGE>
The Securities shall be subordinated in right of payment to Senior
Debt as provided in Article Fourteen.
Section 302. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified
denomination with respect to the Securities of any series, the Securities
of such series shall be issuable in denominations of $1,000 and any
integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or
one of its Vice Presidents, under its corporate seal reproduced thereon
attested by its Secretary or one of its Assistant Secretaries. The signature
of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with
a Company Order for the authentication and delivery of such Securities,
and the Trustee in accordance with the Company Order shall authenticate
and make available for delivery such Securities. If the form or terms of
the Securities of the series have been established by or pursuant to one
or more Board Resolutions as permitted by Sections 201 and 301, in
authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such
<PAGE>
terms have been established in conformity with the provisions of this
Indenture;
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and
(4) that the approval of all regulatory authorities required under
the Federal laws of the United States and the laws of the
Commonwealth of Pennsylvania in connection with the issuance of
such Securities has been obtained and such Securities are being issued
in conformity with such approvals.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to such preceding
paragraph at or prior to the authentication of each Security of such series
if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence,
that such Security has been duly authenticated and delivered hereunder.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee
for cancellation as provided in Section 309, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
<PAGE>
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall
authenticate and make available for delivery, temporary Securities which
are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of
the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of
any series, the Company shall execute and the Trustee shall authenticate
and make available for delivery in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations
and of like tenor and aggregate principal amount. Until so exchanged,
the temporary Securities of any series shall in all respects be entitled to
the same benefits under this Indenture as definitive Securities of such
series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any
other office or agency of the Company in a Place of Payment being
herein sometimes collectively referred to as the Security Register) in
which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Securities and of transfers
of Securities. The Trustee is hereby appointed Security Registrar for the
purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of a series
at the office or agency of the Company in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and
make available for delivery, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any
authorized denominations and of like tenor and aggregate principal
amount.
<PAGE>
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations
and of like tenor and aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute,
and the Trustee shall authenticate and make available for delivery, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906 or 1107
not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required (A) to issue,
register the transfer of or exchange any Securities of that series (or of
that series and specified tenor, as the case may be) during a period
beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of any such Securities selected for
redemption under Section 1103 and ending at the close of business on the
day of such mailing, or (B) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
(1) Each Global Security authenticated under this Indenture shall
be registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security
shall constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
<PAGE>
registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless (A)
such Depositary (i) has notified the Company that it is unwilling or
unable to continue as Depositary for such Global Security or (ii) has
ceased to be a clearing agency registered under the Exchange Act,
(B) there shall have occurred and be continuing an Event of Default
with respect to such Global Security or (C) there shall exist such
circumstances, if any, in addition to or in lieu of the foregoing as have
been specified for this purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion
thereof shall be registered in such names as the Depositary for such
Global Security shall direct.
(4) Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Security or
any portion thereof, whether pursuant to this Section, Section 304,
306, 906 or 1107 or otherwise, shall be authenticated and delivered
in the form of, and shall be, a Global Security, unless such Security
is registered in the name of a Person other than the Depositary for
such Global Security or a nominee thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and make available for
delivery in exchange therefor a new Security of the same series and of
like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and
(ii) such security or indemnity as may be required by them to save each
of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and the
Trustee shall authenticate and make available for delivery, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same series
and of like tenor and principal amount and bearing a number not con-
temporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
<PAGE>
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date
(herein called Defaulted Interest) shall forthwith cease to be payable to
the Holder on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
<PAGE>
Clause provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be given to each Holder of Securities of
such series in the manner set forth in Section 106, not less than
10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close
of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest
on the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Security is registered as the owner
of such Security for the purpose of receiving payment of principal of and
any premium and (subject to Section 307) any interest on such Security
and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
<PAGE>
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall,
if surrendered to any Person other than the Trustee, be delivered to the
Trustee and shall be promptly cancelled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Company has not
issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of
or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities
held by the Trustee shall be disposed of as directed by a Company
Order; provided, however, that the Trustee shall not be required to
destroy such cancelled securities.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
The Company in issuing the Securities may use CUSIP numbers (if
then generally in use), and, if so, the Trustee shall use CUSIP numbers
in notices of redemption as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee,
<PAGE>
at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such trust,
as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose money in an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal and any
premium and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the
obligations of the Company to any Authenticating Agent under
Section 614 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of Clause (1) of this Section, the obligations of
<PAGE>
the Trustee under Section 402 and the last paragraph of Section 1003
shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal and any premium and interest for whose payment such
money has been deposited with the Trustee.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
Event of Default, wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason
for such Event of Default and whether it shall be occasioned by the
provisions of Article Fourteen or be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative
or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on
any Security of that series at its Maturity; provided that the failure to
redeem any Security subject to a Conditional Redemption shall not be
an Event of Default if any event on which such redemption is so
conditioned does not occur before the Redemption Date; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of Securities
<PAGE>
other than that series), and continuance of such default or breach for
a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 10% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a Notice of Default hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company a bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
the Company or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any
such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent
by it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of such petition
or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
the Company or of any substantial part of its property, or the making
by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company in furtherance
of any such action; or
(7) any other Event of Default provided with respect to Securities
of that series.
<PAGE>
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(5) or 501(6)) with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount of
all the Securities of that series (or, if any Securities of that series are
Original Issue Discount Securities, such portion of the principal amount
of such Securities as may be specified by the terms thereof) to be due
and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount) shall become immediately due
and payable. If an Event of Default specified in Section 501(5) or 501(6)
with respect to Securities of any series at the time Outstanding occurs,
the principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such
portion of the principal amount of such Securities as may be specified by
the terms thereof) shall automatically, and without any declaration or
other action on the part of the Trustee or any Holder, become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to
the Company and the Trustee, may rescind and annul such declaration
and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate or
rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel;
and
<PAGE>
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal and any premium and interest
and, to the extent that payment of such interest shall be legally en-
forceable, interest on any overdue principal and premium and on any
overdue interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or
in aid of the exercise of any power granted herein, or to enforce any
other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the
<PAGE>
Trustee allowed in any such proceeding. In particular, the Trustee shall
be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof
or to authorize the Trustee to vote in respect of the claim of any Holder
in any such proceeding; provided, however, that the Trustee may, on
behalf of the Holders, vote for the election of a trustee in bankruptcy or
similar official and be a member of a creditors' or other similar
committee.
Section 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall
be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or
any premium or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 607; and
<PAGE>
Second: Subject to Article Fourteen, to the payment of the
amounts then due and unpaid for principal of and any premium and
interest on the Securities in respect of which or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on
such Securities for principal and any premium and interest,
respectively.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by availing
of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other of such Holders, or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all of such Holders.
<PAGE>
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to
Section 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of
such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the
Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding
had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or
in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
<PAGE>
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive any past default hereunder with
respect to such series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest
on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of such suit,
and may assess costs against any such party litigant, in the manner and
to the extent provided in the Trust Indenture Act; provided that neither
this Section nor the Trust Indenture Act shall be deemed to authorize any
court to require such an undertaking or to make such an assessment in
any suit instituted by the Company or the Trustee.
<PAGE>
Section 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any usury, stay or extension
law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it will
not hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of
this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably
assured to it. Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of
such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character
specified in Section 501(4) with respect to Securities of such series, no
such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term default
means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to Securities of such series.
<PAGE>
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper
or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order, and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and the
written advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper
or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
<PAGE>
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(8) the Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements
of the Company, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or
the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual
or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 608 and 613, may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other
agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall
be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as
the Company and the Trustee shall from time to time agree in writing
for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
<PAGE>
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify each of the Trustee or any predecessor Trustee
for, and to hold it harmless against, any and all loss, damage, claims,
liability or expense including taxes (other than taxes based upon the
income of the Trustee) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or admini-
stration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties
hereunder.
The Trustee shall have a lien prior to the Securities as to all property
and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 607, except with respect to
funds held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(5) or Section 501(6),
the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or State
bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture.
To the extent permitted by such Act, the Trustee shall not be deemed to
have a conflicting interest by virtue of being a trustee under this
Indenture with respect to Securities of more than one series.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder
<PAGE>
for Securities of one or more other series. Each Trustee shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such, and has
a combined capital and surplus of at least $50,000,000. If any such
Person publishes reports of condition at least annually, pursuant to law
or to the requirements of its supervising or examining authority, then for
the purposes of this Section and to the extent permitted by the Trust
Indenture Act, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee with
respect to the Securities of any series shall cease to be eligible in accor-
dance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with
the applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company.
The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of
the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation or removal, the Trustee
resigning or being removed may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
<PAGE>
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (B) subject to
Section 514, any Holder who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of
the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 611.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appoint-
ment in the manner required by Section 611, any Holder who has been
a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series to all Holders of Securities of such series in the manner provided
in Section 106. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of
its Corporate Trust Office.
<PAGE>
Section 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect
to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in,
each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities, shall contain
such provisions as shall be deemed necessary or desirable to confirm that
all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee,
and (3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon the
execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent pro-
vided therein and each such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
<PAGE>
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case
may be.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corpo-
rate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of
claims against the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to
act on behalf of the Trustee to authenticate Securities of such series
issued upon original issue and upon exchange, registration of transfer or
partial redemption thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authen-
tication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
<PAGE>
authentication and delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the
Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to
the corporate agency or corporate trust business of an Authenticating
Agent, shall continue to be an Authenticating Agent, provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent which shall be acceptable
to the Company and shall give notice of such appointment in the manner
provided in Section 106 to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall
become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating
Agent. No successor Authenticating Agent shall be appointed unless
eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section.
<PAGE>
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon,
in addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
As Trustee
By......................................,
As Authenticating Agent
By.......................................
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) monthly, quarterly or semi-annually, as the case may, be on
each Regular Record Date, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of
Securities of each series as of such Regular Record Date, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee
in its capacity as Security Registrar.
<PAGE>
Section 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity
as Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided
by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by
reason of any disclosure of information as to names and addresses of
Holders made pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided
pursuant thereto. If required by Section 313(a) of the Trust Indenture
Act, the Trustee shall, within sixty days after each May 15 following the
date of this Indenture deliver to Holders a brief report, dated as of such
May 15, which complies with the provisions of such Section 313(a).
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which
any Securities are listed, with the Commission and with the Company.
The Company will promptly notify the Trustee when any Securities are
listed on any stock exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such
Act; provided that any such information, documents or reports required
to be filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days after the
same is so required to be filed with the Commission.
<PAGE>
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, and the Company shall not permit any
Person to consolidate with or merge into the Company or convey, trans-
fer or lease its properties and assets substantially as an entirety to the
Company, unless:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety shall
be a corporation, partnership, unincorporated organization or trust,
shall be organized and validly existing under the laws of the United
States of America, any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of and any premium and
interest on all the Securities and the performance or observance of
every covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or any
Subsidiary as a result of such transaction as having been incurred by
the Company or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers' Certifi-
cate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture
is required in connection with such transaction, such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
<PAGE>
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of
the properties and assets of the Company substantially as an entirety in
accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been
named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being
included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
<PAGE>
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that
any such addition, change or elimination (A) shall neither (i) apply to
any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision
nor (ii) modify the rights of the Holder of any such Security with
respect to such provision or (B) shall become effective only when
there is no such Security Outstanding; or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611; or
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this Clause (8) shall not adversely affect the interests of
the Holders of Securities of any series in any material respect.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding
Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
instalment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount
of the principal of an Original Issue Discount Security or any other
Security which would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or change
any Place of Payment where, or the coin or currency in which, any
<PAGE>
Security or any premium or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or modify the provisions of this Indenture
with respect to the subordination of the Securities in a manner adverse
to the Holders, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes
in the references to the Trustee and concomitant changes in this
Section and Section 1008, or the deletion of this proviso, in
accordance with the requirements of Sections 611 and 901(7).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or
which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of any other
series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
<PAGE>
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee
as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as
to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company
and authenticated and made available for delivery by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with
the terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series
may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served. The Company will give
<PAGE>
prompt written notice to the Trustee of the location, and any change in
the location, of such office or agency. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as
its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of
the principal of or any premium or interest on any of the Securities of
that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal and any premium
and interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or
any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held
as provided by the Trust Indenture Act, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will
(1) comply with the provisions of the Trust Indenture Act applicable to
it as a Paying Agent and (2) during the continuance of any default by the
Company (or any other obligor upon the Securities of that series) in the
making of any payment in respect of the Securities of that series, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
<PAGE>
held in trust by such Paying Agent for payment in respect of the
Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of or any
premium or interest on any Security of any series and remaining
unclaimed for two years after such principal, premium or interest has
become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying
Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan,
The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and
observance of any of the terms, provisions and conditions of this
Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company shall be in default, specifying
all such defaults and the nature and status thereof of which they may
have knowledge.
In addition, the Company shall file with the Trustee written notice of
the occurrence of any Event of Default within ten Business Days of its
becoming aware of any such Event of Default.
<PAGE>
Section 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any such
right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of the Company and that the loss thereof is not disadvantageous in any
material respect to the Holders.
Section 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct
of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in
the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section
shall prevent the Company from discontinuing the operation or main-
tenance of any of such properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material
respect to the Holders.
Section 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any
Subsidiary or upon the income, profits or property of the Company or
any Subsidiary, and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property of the
Company or any Subsidiary; provided, however, that the Company shall
not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate proceedings.
Section 1008. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series, the Company may, with respect to the
Securities of any series, omit in any particular instance to comply with
<PAGE>
any term, provision or condition set forth in any covenant provided
pursuant to Section 301(19), 901(2) or 901(6) for the benefit of the
Holders of such series if before the time for such compliance the Holders
of at least a majority in principal amount of the Outstanding Securities
of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
Section 1009. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on
Outstanding Securities as of the end of such year.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 301 for such
Securities) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or in another manner specified as
contemplated by Section 301 for such Securities. In case of any
redemption at the election of the Company of the Securities of any series
(including any such redemption affecting only a single Security), the
Company shall, at least (a) 40 days prior to the Redemption Date fixed
by the Company in the case of a redemption of all of the Securities of
any series or (b) 45 days prior to the Redemption Date fixed by the
Company in the case of a redemption of less than all of the Securities of
any series (in each case unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal
amount of Securities of such series to be redeemed and, if applicable, of
the tenor of the Securities to be redeemed. In the case of any redemption
<PAGE>
of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture,
the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than
60 days prior to the Redemption Date by the Trustee, from the Outstand-
ing Securities of such series not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which
may provide for the selection for redemption of a portion of the principal
amount of any Security of such series, provided that the unredeemed
portion of the principal amount of any Security shall be in an authorized
denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such
series and of a specified tenor are to be redeemed (unless such
redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such
series and specified tenor not previously called for redemption in
accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in case of any
Securities selected for partial redemption as aforesaid, the principal
amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of
the Security shall be in an authorized denomination (which shall not be
less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has
been or is to be redeemed.
<PAGE>
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his
address appearing in the Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP number, if applicable) and state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series con-
sisting of more than a single Security are to be redeemed, the identifi-
cation (and, in the case of partial redemption of any such Securities,
the principal amounts) of the particular Securities to be redeemed and,
if less than all the Outstanding Securities of any series consisting of
a single Security are to be redeemed, the principal amount of the
particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and,
if applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where each such Security is to be
surrendered for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case,
and
(7) if a notice of redemption relates to a Conditional Redemption
(as defined below), the event or events the occurrence of which is a
condition to such redemption.
Except as provided below, notice of redemption of Securities to be
redeemed at the election of the Company shall be given by the Company
or, at the Company's written request, by the Trustee in the name and at
the expense of the Company and shall be irrevocable.
A notice of redemption may provide that it is subject to the occurrence
of any event before the Redemption Date specified in such notice
(Conditional Redemption) and such notice of Conditional Redemption
shall be of no effect unless all such conditions to the redemption have
occurred before the Redemption Date or have been waived by the
Company.
<PAGE>
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that
date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption
Price and accrued interest) such Securities shall cease to bear interest.
Upon surrender of any such Security for redemption in accordance with
said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption
Date; provided, however, that, unless otherwise specified as contemplated
by Section 301, installments of interest whose Stated Maturity is on or
prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder of such
Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for
the unredeemed portion of the principal of the Security so surrendered.
<PAGE>
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of any series except as otherwise
specified as contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by
the terms of any Securities is herein referred to as a mandatory sinking
fund payment, and any payment in excess of such minimum amount
provided for by the terms of such Securities is herein referred to as an
optional sinking fund payment. If provided for by the terms of any
Securities, the cash amount of any sinking fund payment may be subject
to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities as provided for by the
terms of such Securities.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to any Securities of such series
required to be made pursuant to the terms of such Securities as and to the
extent provided for by the terms of such Securities; provided that the
Securities to be so credited have not been previously so credited. The
Securities to be so credited shall be received and credited for such pur-
pose by the Trustee at the Redemption Price, as specified in the
Securities so to be redeemed, for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be
reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 35 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund
payment for such Securities pursuant to the terms of such Securities, the
portion thereof, if any, which is to be satisfied by payment of cash and
the portion thereof, if any, which is to be satisfied by delivering and
<PAGE>
crediting Securities pursuant to Section 1202 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 32 days prior to
each such sinking fund payment date, the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in
the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may elect, at its option at any time, to have
Section 1302 or Section 1303 applied to any Securities or any series of
Securities, as the case may be, designated pursuant to Section 301 as
being defeasible pursuant to such Section 1302 or 1303, in accordance
with any applicable requirements provided pursuant to Section 301 and
upon compliance with the conditions set forth below in this Article. Any
such election shall be evidenced by a Board Resolution or in another
manner specified as contemplated by Section 301 for such Securities.
Section 1302. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this
Section applied to any Securities or any series of Securities, as the case
may be, the Company shall be deemed to have been discharged from its
obligations, and the provisions of Article Fourteen shall cease to be
effective, with respect to such Securities as provided in this Section on
and after the date the conditions set forth in Section 1304 are satisfied
(hereinafter called Defeasance). For this purpose, such Defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and to have satisfied all its
other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same),
subject to the following which shall survive until otherwise terminated or
discharged hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1304 and as more
fully set forth in such Section, payments in respect of the principal of
and any premium and interest on such Securities when payments are due,
(2) the Company's obligations with respect to such Securities under
<PAGE>
Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (4) this Article.
Subject to compliance with this Article, the Company may exercise its
option (if any) to have this Section applied to any Securities
notwithstanding the prior exercise of its option (if any) to have
Section 1303 applied to such Securities.
Section 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this
Section applied to any Securities or any series of Securities, as the case
may be, (1) the Company shall be released from its obligations under
Section 801(3), Sections 1006 through 1007, inclusive, and any
covenants provided pursuant to Section 301(19), 901(2) or 901(6) for the
benefit of the Holders of such Securities, (2) the occurrence of any event
specified in Sections 501(4) (with respect to any of Section 801(3),
Sections 1006 through 1007, inclusive, and any such covenants provided
pursuant to Section 301(19), 901(2) or 901(6)) and 501(7) shall be
deemed not to be or result in an Event of Default and (3) the provisions
of Article Fourteen shall cease to be effective, in each case with respect
to such Securities as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter called
Covenant Defeasance). For this purpose, such Covenant Defeasance
means that, with respect to such Securities, the Company may omit to
comply with and shall have no liability in respect of any term, condition
or limitation set forth in any such specified Section (to the extent so
specified in the case of Section 501(4)) or Article Fourteen, whether
directly or indirectly by reason of any reference elsewhere herein to any
such Section or Article or by reason of any reference in any such Section
or Article to any other provision herein or in any other document, but
the remainder of this Indenture and such Securities shall be unaffected
thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of
Section 1302 or Section 1303 to any Securities or any series of
Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with
the provisions of this Article applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the Holders of
such Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and
<PAGE>
interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, money in
an amount, or (C) a combination thereof, in each case sufficient, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the
Trustee (or any such other qualifying trustee) to pay and discharge,
the principal of and any premium and interest on such Securities on
the respective Stated Maturities, in accordance with the terms of this
Indenture and such Securities. As used herein, U.S. Government
Obligation means (x) any security which is (i) a direct obligation of
the United States of America for the payment of which the full faith
and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment
of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case (i)
or (ii), is not callable or redeemable at the option of the issuer thereof,
and (y) any depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to any
U.S. Government Obligation which is specified in Clause (x) above
and held by such bank for the account of the holder of such depositary
receipt, or with respect to any specific payment of principal of or
interest on any U.S. Government Obligation which is so specified and
held, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the
holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific
payment of principal or interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 1302 apply to any
Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the
date of this instrument, there has been a change in the applicable
Federal income tax law, in either case (A) or (B) to the effect that,
and based thereon such opinion shall confirm that, the Holders of such
Securities will not recognize gain or loss for Federal income tax
purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same
times as would be the case if such deposit, Defeasance and discharge
were not to occur.
(3) In the event of an election to have Section 1303 apply to any
Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of such Securities will not recognize gain
<PAGE>
or loss for Federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such Securities and
will be subject to Federal income tax on the same amount, in the same
manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to such Securities or
any other Securities shall have occurred and be continuing at the time
of such deposit or, with regard to any such event specified in
Sections 501(5) and (6), at any time on or prior to the 90th day after
the date of such deposit (it being understood that this condition shall
not be deemed satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the
meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which
it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act unless such trust
shall be registered under such Act or exempt from registration
thereunder.
(9) At the time of such deposit, (A) no default in the payment of
any principal of or premium or interest on any Senior Debt shall have
occurred and be continuing, (B) no event of default with respect to
any Senior Debt shall have resulted in such Senior Debt becoming,
and continuing to be, due and payable prior to the date on which it
would otherwise have become due and payable (unless payment of
such Senior Debt has been made or duly provided for), and (C) no
other event of default with respect to any Senior Debt shall have
occurred and be continuing permitting (after notice or lapse of time or
both) the holders of such Senior Debt (or a trustee on behalf of such
holders) to declare such Senior Debt due and payable prior to the date
on which it would otherwise have become due and payable.
<PAGE>
(10) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance
have been complied with.
Section 1305. Deposited Money and U.S. Government Obligations to
Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee or other qualifying trustee (solely for
purposes of this Section, the Trustee and any such other trustee are
referred to collectively as the Trustee) pursuant to Section 1304 in
respect of any Securities shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and this Indenture,
to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Holders of such Securities, of all sums due and to
become due thereon in respect of principal and any premium and
interest, but money so held in trust need not be segregated from other
funds except to the extent required by law. Money and U.S. Government
Obligations so held in trust shall not be subject to the provisions of
Article Fourteen.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1304 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of Outstanding
Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as
provided in Section 1304 with respect to any Securities which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are
in excess of the amount thereof which would then be required to be
deposited to effect the Defeasance or Covenant Defeasance, as the case
may be, with respect to such Securities.
ARTICLE FOURTEEN
Subordination of Securities
Section 1401. Securities Subordinate to Senior Debt.
<PAGE>
The Company covenants and agrees, and each Holder of Securities
issued hereunder by his acceptance thereof likewise covenants and
agrees, that all Securities shall be issued subject to the provisions of this
Article Fourteen; and each Holder of a Security, whether upon original
issue or upon transfer or assignment thereof, accepts and agrees to be
bound by such provisions.
The payment of the principal of, premium, if any and interest on all
Securities issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinate and subject in right of payment to
the prior payment in full of all Senior Debt, whether outstanding at the
date of this Indenture or thereafter incurred.
No provision of this Article Fourteen shall prevent the occurrence of
any default or Event of Default hereunder.
Section 1402. Payment Over of Proceeds Upon Default.
In the event and during the continuation of any default in the payment
of principal, premium, interest or any other payment due on any Senior
Debt continuing beyond the period of grace, if any, specified in the
instrument evidencing such Senior Debt, unless and until such default
shall have been cured or waived or shall have ceased to exist, and in the
event that the maturity of any Senior Debt has been accelerated because
of a default, then no payment shall be made by the Company with
respect to the principal (including redemption and sinking fund payments)
of, or premium, if any, or interest on the Securities.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee or any holder when such payment is prohibited
by the preceding paragraph of this Section 1402, such payment shall be
held in trust for the benefit of, and shall be paid over or delivered to, the
holders of Senior Debt or their respective representatives, or to the
trustee or trustees under any indenture pursuant to which any of such
Senior Debt may have been issued, as their respective interests may
appear, but only to the extent that the holders of the Senior Debt (or
their representative or representatives or a trustee) notify the Trustee
within 90 days of such payment of the amounts then due and owing on
the Senior Debt and only the amounts specified in such notice to the
Trustee shall be paid to the holders of Senior Debt.
Section 1403. Payment Over of Proceeds Upon Dissolution, Etc.
Upon any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding-up or liquidation
or reorganization of the Company, whether voluntary or involuntary or
<PAGE>
in bankruptcy, insolvency, receivership or other proceedings, all amounts
due or to become due upon all Senior Debt shall first be paid in full, or
payment thereof provided for in money in accordance with its terms,
before any payment is made on account of the principal (and premium,
if any) or interest on the Securities; and upon any such dissolution or
winding-up or liquidation or reorganization any payment by the
Company, or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which the Holders
of the Securities or the Trustee would be entitled, except for the
provisions of this Article Fourteen, shall be paid by the Company or by
any receiver, trustee in bankruptcy, liquidating trustee, agent or other
person making such payment or distribution, or by the Holders of the
Securities or by the Trustee under this Indenture if received by them or
it, directly to the holders of Senior Debt (pro rata to such holders on the
basis of the respective amounts of Senior Debt held by such holders, as
calculated by the Company) or their representative or representatives, or
to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any Senior Debt may have been issued, as their
respective interests may appear, to the extent necessary to pay all Senior
Debt in full, in money or money's worth, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Debt,
before any payment or distribution is made to the holders of Securities
or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether
in cash, property or securities, prohibited by the foregoing, shall be
received by the Trustee or the holders of the Securities before all Senior
Debt is paid in full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be held in
trust for the benefit of and shall be paid over or delivered to the holders
of Senior Debt or their representative or representatives, or to the trustee
or trustees under any indenture pursuant to which any instruments
evidencing any Senior Debt may have been issued, as their respective
interests may appear, as calculated by the Company, for application to
the payment of all Senior Debt remaining unpaid to the extent necessary
to pay all Senior Debt in full in money in accordance with its terms,
after giving effect to any concurrent payment or distribution to or for the
holders of such Senior Debt.
For purposes of this Article Fourteen, the words, cash, property or
securities shall not be deemed to include shares of stock of the Company
as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article Fourteen with respect to the Securities to the payment of all
Senior Debt which may at the time be outstanding; provided that (i) the
Senior Debt is assumed by the new corporation, if any, resulting from
any such reorganization or readjustment, and (ii) the rights of the holders
<PAGE>
of the Senior Debt are not, without the consent of such holders, altered
by such reorganization or readjustment. The consolidation of the
Company with, or the merger of the Company into, another corporation
or the liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or substantially as
an entirety, to another corporation upon the terms and conditions
provided for in Article Eight hereof shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this
Section 1403 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article Eight hereof. Nothing in Section 1402 or in
this Section 1403 shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 607.
Section 1404. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all Senior Debt, the rights of the
holders of the Securities shall be subrogated to the rights of the holders
of Senior Debt to receive payments or distributions of cash, property or
securities of the Company applicable to the Senior Debt until the
principal (and premium, if any) and interest on the Securities shall be
paid in full; and, for the purposes of such subrogation, no payment or
distributions to the holders of the Senior Debt of any cash, property or
securities to which the holders of the Securities or the Trustee would be
entitled except for the provisions of this Article Fourteen, and no
payment over pursuant to the provisions of this Article Fourteen, to or
for the benefit of the holders of Senior Debt by holders of the Securities
or the Trustee, shall, as between the Company, its creditors other than
holders of Senior Debt, and the Holders of the Securities, be deemed to
be a payment by the Company to or on account of the Senior Debt. It is
understood that the provisions of this Article Fourteen are and are
intended solely for the purposes of defining the relative rights of the
holders of the Securities, on the one hand, and the holders of the Senior
Debt on the other hand.
Nothing contained in this Article Fourteen or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between
the Company, its creditors other than the holders of Senior Debt, and the
holders of the Securities, the obligation of the Company, which is
absolute and unconditional, to pay to the holders of the Securities the
principal of (and premium, if any) and interest on the Securities as and
when the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of the holders
of the Securities and creditors of the Company other than the holders of
Senior Debt, nor shall anything herein or therein prevent the Trustee or
the holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to
the rights, if any, under this Article Fourteen of the holders of Senior
<PAGE>
Debt in respect of cash, property or securities of the Company received
upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred
to in this Article Fourteen, the Trustee, subject to the provision of
Article Six, and the holders of the Securities shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding-up, liquidation or reorganization
proceedings are pending, or a certificate of the receiver, trustee in
bankruptcy, liquidation trustee, agent or other person making such
payment or distribution, delivered to the Trustee or to the Holders of the
Securities, for the purposes of ascertaining the persons entitled to
participate in such distribution, the holders of the Senior Debt and other
indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Fourteen.
Section 1405. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee in his behalf to take such action as may be necessary
or appropriate to effectuate the subordination provided in this Article
Fourteen and appoints the Trustee his attorney-in-fact for any and all
such purposes.
Section 1406. Notice to Trustee.
The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company which would
prohibit the making of any payment of monies to or by the Trustee in
respect of the Securities pursuant to the provisions of this Article
Fourteen. Notwithstanding the provisions of this Article Fourteen or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making
of any payment of monies to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article Fourteen, unless and
until a Responsible Officer of the Trustee shall have received written
notice thereof at the Principal Office of the Trustee from the Company
or a holder or holders of Senior Debt or from any trustee therefor; and
before the receipt of any such written notice, the Trustee, subject to the
provisions of Article Six, shall be entitled in all respects to assume that
no such facts exist; provided, however, that if the Trustee shall not have
received the notice provided for in this Section 1406 at least two
Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any) or
interest on any Security), then, anything herein contained to the contrary
<PAGE>
notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purposes for which they
were received, and shall not be affected by any notice to the contrary
which may be received by it within two Business Days prior to such
date.
The Trustee, subject to the provisions of Article Six, shall be entitled
to rely on the delivery to it of a written notice by a person representing
himself to be a holder of Senior Debt (or a trustee on behalf of such
holder) to establish that such notice has been given by a holder of Senior
Debt or a trustee on behalf of any such holder or holders. In the event
that the Trustee determines in good faith that further evidence is required
with respect to the right of any person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this Article
Fourteen, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt
held by such Person, the extent to which such person is entitled to
participate in such payment or distribution and any other facts pertinent
to the right of such person under this Article Fourteen, and if such
evidence is not furnished the Trustee may defer any payment to such
person pending judicial determination as to the right of such person to
receive such payment.
Section 1407. Rights of Trustee as Holder of Senior Debt; Preservation
of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article Fourteen in respect of any Senior Debt at any
time held by it, to the same extent as any other holder of Senior Debt,
and nothing in this Indenture shall deprive the Trustee of any of its rights
as such holder.
Nothing in this Article Fourteen shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 607.
Section 1408. Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and, subject to the provisions of Article Six, the
Trustee shall not be liable to any holder of Senior Debt if it shall in good
faith mistakenly pay over or deliver to holders of Securities, the
Company or any other person money or assets to which any holder of
Senior Debt shall be entitled by virtue of this Article Fourteen or
otherwise. With respect to the holders of Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants or
obligations as are specifically set forth in this Article Fourteen and no
<PAGE>
implied covenants or obligations with respect to holders of Senior Debt
shall be read into this Indenture against the Trustee.
Section 1409. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt may, at any time and from time to time,
without the consent of or notice to the Trustee or the holders of the
Securities, without incurring responsibility to the holders of the Securities
and without impairing or releasing the subordination provided in this
Article or the obligations hereunder of the holders of the Securities to the
holders of Senior Debt, do any one or more of the following: (i) change
the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Senior Debt, or otherwise amend or supplement in any
manner Senior Debt or any instrument evidencing the same or any
agreement under which Senior Debt is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt; (iii) release any person liable in any
manner for the collection of Senior Debt; and (iv) exercise or refrain
from exercising any rights against the Company and any other person.
Section 1410. Defeasance of this Article Fourteen.
The subordination of the securities provided by this Article Fourteen
is expressly made subject to the provisions for Defeasance or Covenant
Defeasance in Article Thirteen hereof and, anything herein to the
contrary notwithstanding, upon the effectiveness of any such Defeasance
or Covenant Defeasance, the Securities then outstanding shall thereupon
cease to be subordinated pursuant to this Article Fourteen.
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
In Witness Whereof, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
<PAGE>
WEST PENN POWER
COMPANY
By /s/ C. S. Ault
Attest: [SEAL]
/s/ K. D. Mowl
THE BANK OF NEW YORK,
as Trustee
By /s/ Mary LaGumina
Assistant Vice President
Attest: [SEAL]
/s/ Paul J. Schmalzel
Assistant Treasurer
<PAGE>
Commonwealth of Pennsylvania)
) ss.:
County of Westmoreland )
On the 12 day of June, 1995, before me personally came C. S. Ault, to
me known, who, being by me duly sworn, did depose and say that he is
Vice President of WEST PENN POWER COMPANY, one of the corporations
described in and which executed the foregoing instrument; that he knows
the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board
of Directors of said corporation; and that he signed his name thereto
by like authority.
/s/ Kathryn L. Hibbert
Notarial Seal
Kathryn L. Hibbert, Notary Public
Greensburg, Westmoreland County
My Commission Expires June 23, 1998
State of New York )
) ss.:
County of New York )
On the 12th day of June, 1995, before me personally came Mary LaGumina
to me known, who, being by me duly sworn, did depose and say that he is
Asst. Vice Pres. of THE BANK OF NEW YORK, one of the corporations
described in and which executed the foregoing instrument; that he knows
the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board
of Directors of said corporation; and that he signed his name thereto by
like authority.
/s/ William J. Cassels
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate Filed in New York County
Commission Expires May 16, 1996
<PAGE>
EXHIBIT 4(e)
WEST PENN POWER COMPANY
TO
THE CHASE MANHATTAN BANK
(National Association),
as Trustee
_____________
Supplemental Indenture
Dated as of _____________
First Mortgage Bonds, Series _____________
_____________
Supplemental to First Mortgage
Dated March 1, 1916
<PAGE>
SUPPLEMENTAL INDENTURE, dated as of _______________,
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, 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 450 West 33rd Street, 15th Floor, New York, New
York 10001-2697, 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,
February 1, 1991, December 1, 1991, August 1, 1992,
September 1, 1992, June 1, 1993, June 1, 1993, August 1,
1994, and May 1, 1995 (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 $_______ principal amount of First
Mortgage Bonds consisting of:
Principal Amount Series Maturing
$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% Aug. 1, 2024
30,000,000 Series MM, 7-3-4% May 1, 1025
The Company proposes to issue and sell for cash
$________________ principal amount of a new series of First
Mortgage Bonds, to mature ___________, to bear interest from
_______________, 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.
The Company, pursuant to resolutions ofits Board of Directors,
has duly resolved and determined to execute this
Supplemental Indenture for the purpose
<PAGE>
3
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,
February 1, 1991, December 1, 1991, August 1, 1992, September 1,
1992, June 1, 1993, June 1, 1993, August 1, 1994, and May 1,
1995. 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>
4
SECTION 1. Whether or not the Bonds of Series FF, GG, HH,
II, JJ, KK, LL, and MM 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 ______
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>
5
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
___________________., and ___________________., 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 does hereby constitute and appoint
_________________ 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
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
<PAGE>
6
Attest: By /s/
Vice President
/s/ ________________
Assistant Secretary
Signed, sealed and delivered by
West Penn Power Company in the
presence of:
/s/ _______________
/s/ _______________
[CORPORATE SEAL] THE CHASE MANHATTAN BANK
Attest: By /s/
Vice President
/s/ ________________________
Assistant Secretary
Signed, sealed and delivered by
The Chase Manhattan Bank
in the presence of:
/s/ ______________________
/s/ ______________________
STATE OF NEW YORK
COUNTY OF NEW YORK ss.:
I HEREBY CERTIFY that on this ___th day of ____, 199_,
before me, the subscriber, a Notary Public in and for the State
and County aforesaid, personally appeared _________________, 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.
/s/______________
Notary Public
[NOTARIAL SEAL]
<PAGE>
7
STATE OF NEW YORK
COUNTY OF ______________ ss.:
I HEREBY CERTIFY that on this __th day of ___________, 199_,
before me, the subscriber, a Notary Public in and for the State
and County aforesaid, personally appeared _____________________,
the attorney for THE CHASE MANHATTAN BANK 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.
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.
/s/_______________________
Notary Public
[NOTARIAL SEAL]
<PAGE>
8
CERTIFICATE OF RESIDENCE
The Chase Manhattan Bank, mortgagee and Trustee within
named, HEREBY CERTIFIES that its official name and its address
are: The Chase Manhattan Bank, 450 West 33rd Street, 15th Floor,
New York, New York 10001-2697.
THE CHASE MANHATTAN BANK
By /s/
Vice President
STATE OF NEW YORK )
COUNTY OF NEW YORK) ss.:
I, ________________, a Notary Public in and for the State
and County of New York, do certify that ____________________
signed the writing above, bearing date the ____ day of
______________, ____, 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
_____th day of ____________.
/s/
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK)
COUNTY OF KINGS ) ss.:
I _________________, Notary Public in and for the State
and County of New York, do certify that __________________ who
signed the writing above, bearing date the ___ day of _________,
for The Chase Manhattan Bank, 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 ___th day of
________________.
/s/
Notary Public
[NOTARlAL SEAL]
<PAGE>
EXHIBIT 5
[LETTERHEAD OF SULLIVAN & CROMWELL]
August 28, 1997
West Penn Power Company
800 Cabin Hill Drive
Greensburg, PA 15601
Dear Sirs:
In connection with the registration under the Securities Act
of 1933 (the "Act") of unsecured debt securities (the "New Debt
Securities") and first mortgage bonds (the "First Mortgage Bonds" and
together with the New Debt Securities, the "Securities") of West Penn
Power Company, a corporation incorporated in the Commonwealth of
Pennsylvania (the "Company"), with an aggregate principal amount or, if
issued at a discount, an aggregate initial offering price, of up to
$200,000,000, 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,
(i) when the Registration Statement has become effective
under the Act, the terms of the New Debt Securities and of their
issuance and sale have been duly established in conformity with the
Indenture, dated May 15, 1995, between the Company and The Bank of
New York, as Trustee, so as not to violate any applicable law or
agreement or result in a default under or breach of any agreement or
instrument then binding upon the Company or of the Company's
articles of incorporation and so as to comply with any applicable
requirement or restriction imposed by any court or governmental body
having jurisdiction over the Company, the issuance and sale of the
New Debt Securities by the Company has received the necessary state
regulatory approval and the New Debt Securities have been duly
executed and authenticated in accordance with such Indenture and
issued and sold as contemplated in the Registration Statement and in
conformity with any orders under the Public Utility Holding Company
Act of 1935 and of the Pennsylvania Public Utility Commission
relating to the New Debt Securities, the New Debt Securities will
constitute valid and legally binding obligations of the Company,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and
<PAGE>
West Penn Power Company
(ii) when the Registration Statement has become effective
under the Act, the Supplemental Indenture relating to the First
Mortgage Bonds, supplementing the Indenture, dated as of March 1,
1916, between the Company and The Chase Manhattan Bank, as Trustee,
has been duly authorized, executed and delivered, the terms of the
First Mortgage Bonds and of their issuance and sale have been duly
established in conformity with such Indenture so as not to violate
any applicable law or agreement or result in a default under or
breach of any agreement or instrument then binding upon the Company
or of the Company's articles of incorporation and so as to comply
with any applicable requirement or restriction imposed by any court
or governmental body having jurisdiction over the Company, the
issuance and sale of the First Mortgage Bonds by the Company has
received the necessary state regulatory approval, and the First
Mortgage Bonds have been duly executed and authenticated in
accordance with such Supplemental Indenture and Indenture and issued
and sold as contemplated in the Registration Statement and in
conformity with any orders under the Public Utility Holding Company
Act of 1935 and of the Pennsylvania Public Utility Commission
relating to the First Mortgage Bonds, the First Mortgage Bonds will
constitute valid and legally binding obligations of the Company,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
We note that, as of the date of this opinion, a judgment for
money in an action based on a Security denominated in a foreign currency
or currency unit in a Federal or state court in the United States
ordinarily would be enforced in the United States only in United States
dollars. The date used to determine the rate of conversion of the foreign
currency or currency unit in which a particular Security is denominated
into United States dollars will depend upon various factors, including
which court renders the judgment. In the case of a Security denominated
in a foreign currency, a state court in the State of New York rendering a
judgment on such Security would be required under Section 27 of the New
York Judiciary Law to render such judgment in the foreign currency in
which the Security is denominated, and such judgment would be converted
into United States dollars at the exchange rate prevailing on the date of
entry of the judgment.
In rendering the foregoing opinion, we have relied as to
certain matters on information obtained from public officials, officers of
the Company and others sources believed by us to be responsible.
2
<PAGE>
West Penn Power Company
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,
/s/ Sullivan & Cromwell
SULLIVAN & CROMWELL
3
<PAGE>
EXHIBIT 12(a)
WEST PENN POWER COMPANY
(THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
COMPUTATION IN SUPPORT OF RATIO OF EARNINGS TO FIXED CHARGES
12 Months 12 Months Years Ended December 31,
Ended Ended
6/30/97 6/30/96 1996 1995 1994 1993 1992
Earnings:
<S> <C> <C> <C> <C> <C> <C> <C>
Net income $107,508 $95,695 $88,485 $117,879 $101,015 $102,061 $98,156
Fixed charges
(see below) 71,937 72,384 72,314 69,520 61,583 61,845 56,835
Income taxes 55,902 51,261 47,775 61,636 47,085 51,958 44,658
Total Earnings $235,347 $219,340 $208,574 $249,035 $209,683 $215,864 $199,649
Fixed Charges:
Interest on
long-term debt $64,988 $65,676 $64,988 $64,571 $58,102 $58,857 $53,768
Other interest 5,320 5,208 6,084 3,331 2,172 1,728 1,824
Estimated interest
component of rentals 1,629 1,500 1,242 1,618 1,309 1,260 1,243
Total Fixed Charges $71,937 $72,384 $72,314 $69,520 $61,583 $61,845 $56,835
Ratio of Earnings
to Fixed Charges 3.27 3.03 2.88 3.58 3.40 3.49 3.51
</TABLE>
<PAGE>
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 5, 1997, on the financial
statements of West Penn Power Company appearing on page 49 in the
Combined 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, 1996. We also consent to the reference to us under the
heading "EXPERTS" in such Prospectus.
PRICE WATERHOUSE LLP
August 28, 1997
Pittsburgh, Pennsylvania
<PAGE>
===========================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S.
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
WEST PENN POWER COMPANY
(Exact name of obligor as specified in its charter)
Pennsylvania 13-5480882
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
800 Cabin Hill Drive
Greensburg, Pennsylvania 15601
(Address of principal executive offices) (Zip code)
______________________
Debt Securities
(Title of the indenture securities)
===========================================================================
<PAGE>
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.
- ---------------------------------------------------------------------------
Name Address
- ---------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of
New York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of powers
to exercise corporate trust powers. (Exhibit 1 to Amendment
No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement
No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit
4 to Form T-1 filed with Registration Statement No. 33-31019.)
-2 -
<PAGE>
6. The consent of the Trustee required by Section 321(b) of
the Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
- 3 -
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of
New York, 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 State of New York, on the 8th day of August, 1997.
THE BANK OF NEW YORK
By: /s/ Thomas E. Tabor
Name: Thomas E. Tabor
Title: Assistant Treasurer
<PAGE>
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31,
1997, published in accordance with a call made by the Federal Reserve Bank
of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 8,249,820
Interest-bearing balances .......... 1,031,026
Securities:
Held-to-maturity securities ........ 1,118,463
Available-for-sale securities ...... 3,005,838
Federal funds sold and Securities pur-
chased under agreements to resell...... 3,100,281
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................32,895,077
LESS: Allowance for loan and
lease losses ..............633,877
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 32,260,771
Assets held in trading accounts ...... 1,715,214
Premises and fixed assets (including
capitalized leases) ................ 684,704
Other real estate owned .............. 21,738
Investments in unconsolidated
subsidiaries and associated
companies .......................... 195,761
Customers' liability to this bank on
acceptances outstanding ............ 1,152,899
Intangible assets .................... 683,503
Other assets ......................... 1,526,113
Total assets ......................... $54,746,131
LIABILITIES
Deposits:
In domestic offices ................ $25,614,961
Noninterest-bearing ......10,564,652
Interest-bearing .........15,050,309
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 15,103,615
Noninterest-bearing .........560,944
Interest-bearing .........14,542,671
Federal funds purchased and Securities
sold under agreements to repurchase. 2,093,286
Demand notes issued to the U.S.
Treasury ........................... 239,354
Trading liabilities .................. 1,399,064
Other borrowed money:
With remaining maturity of one year
or less .......................... 2,075,092
With remaining maturity of more than
one year ......................... 20,679
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,160,012
Subordinated notes and debentures .... 1,014,400
Other liabilities .................... 1,840,245
Total liabilities .................... 50,560,708
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 731,319
Undivided profits and capital
reserves .......................... 2,544,303
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 19,449)
Cumulative foreign currency transla-
tion adjustments .................. ( 13,034)
Total equity capital ................ 4,185,423
Total liabilities and equity
capital ........................... $54,746,131
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and 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 issued by the Board of Governors of the Federal Reserve System
and is true and correct.
)
Alan R. Griffith )
J. Carter Bacot )
Thomas A. Renyi ) Directors
)
_______________________________________________________________
____
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
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_____________________________________________
WEST PENN POWER COMPANY
(Exact name of obligor as specified in its charter)
Pennsylvania 13-5480882
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
800 Cabin Hill Drive
Greensburg, Pennsylvania 15601
(Address of principal executive offices) (Zip Code)
First Mortgage Bonds, Series ____, _____% Due ________
(Title of the indenture securities)
<PAGE>
GENERAL
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.
New York State Banking Department, State House, Albany,
New York 12110.
Board of Governors of the Federal Reserve System,
Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33
Liberty Street, New York,
N.Y.
Federal Deposit Insurance Corporation, Washington, D.C.,
20429.
(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.
None.
- 2 -
<PAGE>
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, including the Organization Certificate and
the Certificates of Amendment dated February 17, 1969, August
31, 1977, December 31, 1980, September 9, 1982, February 28,
1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form
T-1 filed in connection with Registration Statement No. 333-
06249, which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee
to Commence Business (see Exhibit 2 to Form T-1 filed in
connection with Registration Statement No. 33-50010, which is
incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving
corporation, was renamed The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust
powers being contained in the documents identified above as
Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see
Exhibit 4 to Form T-1 filed in connection with Registration
Statement No. 333-06249, which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b)
of the Act (see Exhibit 6 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by
reference. On July 14, 1996, in connection with the merger of
Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was
renamed The Chase Manhattan Bank).
7. A copy of the latest report of condition of the
Trustee, published pursuant to law or the requirements of its
supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939 the Trustee, The Chase Manhattan Bank, a corporation
organized and existing under the laws of the State of New York,
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 State of New York, on the 28th day
of July, 1997.
THE CHASE MANHATTAN BANK
By /s/ Charles J. Heinzelmann
Charles J. Heinzelmann
Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1997, in
accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of
the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository
institutions:
Noninterest-bearing balances and
currency and coin......................................... $ 11,721
Interest-bearing balances .... .......................... 3,473
Securities: ...............................................
Held to maturity securities................................. 2,965
Available for sale securities............................... 35,903
Federal Funds sold and securities purchased under
agreements to resell...................................... 24,025
Loans and lease financing receivables:
Loans and leases, net of unearned income $123,957
Less: Allowance for loan and lease losses 2,853
Less: Allocated transfer risk reserve 13
Loans and leases, net of unearned income,
allowance, and reserve.................................... 121,091
Trading Assets.............................................. 54,340
Premises and fixed assets (including capitalized
leases)................................................. 2,875
Other real estate owned..................................... 302
Investments in unconsolidated subsidiaries and
associated companies....................................... 139
Customers' liability to this bank on acceptances
outstanding................................................ 2,270
Intangible assets............................................ 1,535
Other assets................................................. 10,283
TOTAL ASSETS................................................. _______
$270,922
=========
- 4 -
<PAGE>
LIABILITIES
Deposits
In domestic offices........................................ $84,776
Noninterest-bearing.........................$32,492
Interest-bearing.............................52,284
In foreign offices, Edge and Agreement subsidiaries,
and IBF's.................................................. 69,171
Noninterest-bearing...........................$ 4,181
Interest-bearing.............................64,990
Federal funds purchased and securities sold under agree-
ments to repurchase......................................... 32,885
Demand notes issued to the U.S. Treasury.................... 1,000
Trading liabilities......................................... 42,538
Other Borrowed money (includes mortgage indebtedness
and obligations under calitalized leases):
With a remaining maturity of one year or less............. 4,431
With a remaining maturity of more than one year............. 466
Bank's liability on acceptances executed and outstanding 2,270
Subordinated notes and debentures........................... 5,911
Other liabilities........................................... 11,575
TOTAL LIABILITIES........................................... 255,023
_______
EQUITY CAPITAL
Perpetual Preferred stock and related surplus 0
Common stock................................................ 1,211
Surplus (exclude all surplus related to preferred stock)... 10,283
Undivided profits and capital reserves ..................... 4,941
Net unrealized holding gains (Losses)
on available-for-sale securities............................. (552
Cumulative foreign currency translation adjustments ......... 16
TOTAL EQUITY CAPITAL......................................... 15,899
______
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL.................................. $270,922
=========
I, Joseph L. Sclafani, E.V.P. & Controller of the
above-named bank, do hereby declare that this Report
ofCondition has been prepared in conformance with the
instructions issued by the appropriate Federal
regulatory authority and is true to the best of my
knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the
correctness of this Report of Condition and 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 issued by the
appropriate Federal regulatory authority and is true
and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
- 5 -
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<CURRENCY> U.S.DOLLARS
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JUL-01-1996
<PERIOD-END> JUN-30-1997
<EXCHANGE-RATE> 1
<CASH> 6,455
<SECURITIES> 1,107
<RECEIVABLES> 134,772
<ALLOWANCES> 11,521
<INVENTORY> 70,717
<CURRENT-ASSETS> 256,565
<PP&E> 3,226,648
<DEPRECIATION> 1,212,610
<TOTAL-ASSETS> 2,680,126
<CURRENT-LIABILITIES> 328,301
<BONDS> 803,532
0
79,708
<COMMON> 465,994
<OTHER-SE> 456,961
<TOTAL-LIABILITY-AND-EQUITY> 2,680,126
<SALES> 1,069,509
<TOTAL-REVENUES> 1,069,509
<CGS> 647,853
<TOTAL-COSTS> 856,601
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 68,594
<INCOME-PRETAX> 163,396
<INCOME-TAX> 55,888
<INCOME-CONTINUING> 107,508
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 107,508
<EPS-PRIMARY> 0.00<F1>
<EPS-DILUTED> 0.00<F1>
<FN>
<F1>*All common stock is owned by parent, no EPS required.
</FN>
</TABLE>
