Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
Indiana Michigan Power Company
(Exact name of registrant as specified in its charter)
Indiana 35-0410455
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
One Summit Square
Fort Wayne, Indiana 46801
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (219)425-2111
ARMANDO A. PENA, Treasurer
AMERICAN ELECTRIC POWER SERVICE CORPORATION
1 Riverside Plaza
Columbus, Ohio 43215
(614) 223-2850
(Name, address and telephone number, including
area code, of agent for service)
It is respectfully requested that the Commission send copies of all
notices, orders and communications to:
Simpson Thacher & Bartlett Dewey Ballantine LLP
425 Lexington Avenue 1301 Avenue of the Americas
New York, NY 10017-3909 New York, NY 10019-6092
Attention: James M. Cotter Attention:E. N. Ellis, IV
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Approximate date of commencement of proposed sale to the
public: As soon as practicable after the effective date of the
Registration Statement.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please 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. [ ]
CALCULATION OF REGISTRATION FEE
Title of Proposed
Each Class Maximum Proposed
of Offering Maximum
Securities Amount Price Aggregate Amount of
to be to be Per Unit* Offering Registration
Registered Registered Price* Fee
Unsecured
Notes $188,000,000 100% $188,000,000 $55,460
*Estimated solely for purpose of calculating the registration fee.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The within Prospectus contains the information required by Rule 429 of the
Commission under the Securities Act of 1933 with respect to $12,000,000 of Debt
Securities of the registrant remaining unsold under Registration Statement No.
333-50521, declared effective October 8, 1993, for which a filing fee of $59,375
was paid.
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED OCTOBER 2, 1998
PROSPECTUS
$200,000,000
INDIANA MICHIGAN POWER COMPANY
UNSECURED NOTES
TERMS OF SALE
The following terms may apply to the notes that we may sell at one or more
times. A pricing supplement will include the final terms for each note. If we
decide to list upon issuance any note or notes on a securities exchange, a
pricing supplement will identify the exchange and state when we expect trading
could begin.
- Mature 9 months to 50 years
- Fixed or floating interest rate. The floating interest rate formula
would be based on:
Commercial paper rate LIBOR
Prime rate Treasury rate
CD rate CMT rate
Federal Funds rate Another interest rate index
- Remarketing features
- Certificate or book-entry form
- Subject to redemption
- Not convertible, amortized or subject to a sinking fund
- Interest paid on fixed rate notes quarterly or semi-annually
- Interest paid on floating rate notes monthly, quarterly, semi-annually,
or annually
- Issued in multiples of a minimum denomination
The notes have not been approved by the SEC or any state securities commission,
nor have these organizations determined that this prospectus is accurate or
complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is _________________, 1998.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement we filed with the SEC.
We also file annual, quarterly and special reports and other information with
the SEC. You may read and copy any document we file at the SEC's public
reference rooms in Washington, D.C., New York, New York and Chicago, Illinois.
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms. You may also examine our SEC filings through the SEC's web site
at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information that we file
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made
with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until we sell all the notes.
- Annual Report on Form 10-K for the year ended December 31, 1997, and Form
10-K/A dated April 1, 1998;
- Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998, as
amended, and June 30, 1998 and Form 10-Q/A filed May 15, 1998; and
- Current Report on Form 8-K dated May 15, 1998.
You may request a copy of these filings, at no cost, by writing or telephoning
us at the following address:
Mr. G. C. Dean
American Electric Power Service Corporation
1 Riverside Plaza
Columbus, Ohio 43215
614-223-1000
You should rely only on the information incorporated by reference or
provided in this prospectus or any supplement. We have not authorized anyone
else to provide you with different information. We are not making an offer of
these notes in any state where the offer is not permitted. You should not assume
that the information in this prospectus or any supplement is accurate as of any
date other than the date on the front of those documents.
THE COMPANY
We generate, sell, purchase, transmit and distribute electric power. We
serve approximately 549,000 retail customers in northern and eastern Indiana and
a portion of southwestern Michigan. We also sell and transmit power at wholesale
to other electric utilities, municipalities, electric cooperatives and
non-utility entities engaged in the wholesale power market. Our principal
executive offices are located at One Summit Square, Fort Wayne, Indiana 46801
(telephone number 219-425-2111). We are a subsidiary of American Electric Power
Company, Inc., a public utility holding company, and we are a part of the
American Electric Power integrated utility system. The executive offices of
American Electric Power Company, Inc. are located at 1 Riverside Plaza,
Columbus, Ohio 43215 (telephone number 614-223-1000).
PROSPECTUS SUPPLEMENTS
We provide information to you about the notes in three separate documents
that progressively provide more detail: (a) this prospectus provides general
information some of which may not apply to your notes, (b) the accompanying
prospectus supplement provides more specific terms of your notes, and (c) the
pricing supplement provides the final terms of your notes. It is important for
you to consider the information contained in this prospectus, the prospectus
supplement and the pricing supplement in making your investment decision.
RATIO OF EARNINGS TO FIXED CHARGES
The Ratio of Earnings to Fixed Charges for each of the periods indicated
is as follows:
Twelve Months
Period Ended Ratio
----------------- -----
December 31, 1993 2.06
December 31, 1994 2.23
December 31, 1995 2.31
December 31, 1996 2.62
December 31, 1997 2.55
June 30, 1998 2.38
For current information on the Ratio of Earnings to Fixed
Charges, please see our most recent Form 10-K and 10-Q. See Where
You Can Find More Information.
USE OF PROCEEDS
The net proceeds from the sale of the notes will be used for general
corporate purposes relating to our utility business. These purposes include
redeeming or repurchasing outstanding debt or preferred stock and replenishing
working capital. If we do not use the net proceeds immediately, we temporarily
invest them in short-term, interest-bearing obligations. We estimate that our
construction costs in 1998 will approximate $163,000,000. At September 25, 1998,
our outstanding short-term debt was $59,200,000.
DESCRIPTION OF THE NOTES
General
We will issue the notes under an Indenture to be entered into between us
and the Trustee, The Bank of New York. This prospectus briefly outlines some
provisions of the Indenture. If you would like more information on these
provisions, review the Indenture and any supplemental indentures or company
orders that we file with the SEC. See Where You Can Find More Information on how
to locate these documents. You may also review these documents at the Trustee's
offices at 101 Barclay Street, New York, New York.
The Indenture does not limit the amount of notes that may be issued. The
Indenture permits us to issue notes in one or more series or tranches upon the
approval of our board of directors and as described in one or more company
orders or supplemental indentures. Each series of notes may differ as to their
terms.
The notes are unsecured and will rank equally with all our unsecured
unsubordinated debt. Substantially all of our fixed properties and franchises
are subject to the lien of our first mortgage bonds issued under and secured by
an Indenture of Mortgage and Deed of Trust, dated as of June 1, 1939, as
previously supplemented and amended, between us and The Bank of New York,
formerly Irving Trust Company, as trustee. For current information on our debt
outstanding see our most recent Form 10-K and 10-Q. See Where You Can Find More
Information.
The notes will be denominated in U.S. dollars and we will pay principal
and interest in U.S. dollars. Unless an applicable pricing or prospectus
supplement states otherwise, the notes will not be subject to any conversion,
amortization, or sinking fund. We expect that the notes will be "book-entry,"
represented by a permanent global note registered in the name of The Depository
Trust Company, or its nominee. We reserve the right, however, to issue note
certificates registered in the name of the noteholders.
In the discussion that follows, whenever we talk about paying principal on
the notes, we mean at maturity or redemption. Also, in discussing the time for
notices and how the different interest rates are calculated, all times are New
York City time and all references to New York mean the City of New York, unless
otherwise noted.
The following terms may apply to each note as specified in the applicable
pricing or prospectus supplement and the note.
Redemptions
If we issue redeemable notes, we may redeem such notes at our option
unless an applicable pricing or prospectus supplement states otherwise. The
pricing or prospectus supplement will state the terms of redemption. We may
redeem notes in whole or in part by delivering written notice to the noteholders
no more than 60, and not less than 30, days prior to redemption. If we do not
redeem all the notes of a series at one time, the Trustee selects the notes to
be redeemed in a manner it determines to be fair.
Remarketed Notes
If we issue notes with remarketing features, an applicable pricing or
prospectus supplement will describe the terms for the notes including: interest
rate, remarketing provisions, our right to redeem notes, the holders' right to
tender notes, and any other provisions.
Book-Entry Notes - Registration, Transfer, and Payment of Interest
and Principal
Book-entry notes of a series will be issued in the form of a global note
that the Trustee will deposit with The Depository Trust Company, New York, New
York ("DTC"). This means that we will not issue note certificates to each
holder. One or more global notes will be issued to DTC who will keep a
computerized record of its participants (for example, your broker) whose clients
have purchased the notes. The participant will then keep a record of its clients
who purchased the notes. Unless it is exchanged in whole or in part for a note
certificate, a global note may not be transferred; except that DTC, its
nominees, and their successors may transfer a global note as a whole to one
another.
Beneficial interests in global notes will be shown on, and transfers of
global notes will be made only through, records maintained by DTC and its
participants.
DTC has provided us the following information: DTC is a limited-purpose
trust company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the United States
Federal Reserve System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code and a "clearing agency" registered under the
provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds
securities that its participants ("Direct Participants") deposit with DTC. DTC
also records the settlement among Direct Participants of securities
transactions, such as transfers and pledges, in deposited securities through
computerized records for Direct Participant's accounts. This eliminates the need
to exchange note certificates. Direct Participants include securities brokers
and dealers, banks, trust companies, clearing corporations and certain other
organizations.
Other organizations such as securities brokers and dealers, banks and
trust companies that work through a Direct Participant also use DTC's book-entry
system. The rules that apply to DTC and its participants are on file with the
SEC.
A number of its Direct Participants and the New York Stock
Exchange, Inc., The American Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc. own DTC.
We will wire principal and interest payments to DTC's nominee. We and the
Trustee will treat DTC's nominee as the owner of the global notes for all
purposes. Accordingly, we, the Trustee and any paying agent will have no direct
responsibility or liability to pay amounts due on the global notes to owners of
beneficial interests in the global notes.
It is DTC's current practice, upon receipt of any payment of principal or
interest, to credit Direct Participants' accounts on the payment date according
to their respective holdings of beneficial interests in the global notes as
shown on DTC's records. In addition, it is DTC's current practice to assign any
consenting or voting rights to Direct Participants whose accounts are credited
with notes on a record date. The customary practices between the participants
and owners of beneficial interests will govern payments by participants to
owners of beneficial interests in the global notes and voting by participants,
as is the case with notes held for the account of customers registered in
"street name." However, payments will be the responsibility of the participants
and not of DTC, the Trustee or us.
Notes represented by a global note will be exchangeable for note
certificates with the same terms in authorized denominations only if:
- DTC notifies us that it is unwilling or unable to continue as depositary
or if DTC ceases to be a clearing agency registered under applicable law and
a successor depositary is not appointed by us within 90 days; or
- we determine not to require all of the notes of a series to be represented
by a global note and notify the Trustee of our decision.
Note Certificates-Registration, Transfer, and Payment of Interest
and Principal
If we issue note certificates, they will be registered in the name of the
noteholder. The notes may be transferred or exchanged, pursuant to
administrative procedures in the indenture, without the payment of any service
charge (other than any tax or other governmental charge) by contacting the
paying agent. Payments on note certificates will be made by check.
Interest Rate
General
We have provided a Glossary at the end of this prospectus to define the
capitalized terms used in discussing the interest rates payable on the notes.
The interest rate on the notes will either be fixed or floating. The
interest paid will include interest accrued to, but excluding, the date of
maturity or redemption. Interest is generally payable to the person in whose
name the note is registered at the close of business on the record date before
each interest payment date. Interest payable at maturity or redemption, however,
will be payable to the person to whom principal is payable.
If we issue a note after a record date but on or prior to the related
interest payment date, we will pay the first interest payment on the interest
payment date after the next record date. We will pay interest payments by check
or wire transfer, at our option.
Fixed Rate Notes
Each pricing supplement will designate the record dates, payment dates and
the fixed rate of interest payable on a note. We will pay interest quarterly or
semi-annually, and upon maturity or redemption. Unless an applicable pricing or
prospectus supplement states otherwise, if any payment date falls on a day that
is not a Business Day, we will pay interest on the next Business Day and no
additional interest will be paid. Interest payments will be the amount of
interest accrued to, but excluding, each payment date. Interest will be computed
using a 360-day year of twelve 30-day months.
Floating Rate Notes: General
Each floating rate note will have an interest rate formula. The formula
may be based on:
- the commercial paper rate; - the prime rate; - the CD rate; - the
federal funds effective rate; - the LIBOR; - the Treasury rate; - the CMT
rate; or - another interest rate index.
The applicable pricing supplement will also indicate the Spread and/or
Spread Multiplier, if any. In addition, any floating rate note may have a
maximum or minimum interest rate limitation.
Upon request, the Calculation Agent will provide the current interest rate
and, if different, the interest rate which will become effective on the next
Interest Reset Date.
Floating Rate Notes: Date of Interest Rate Change
The interest rate on each floating rate note may be reset
daily, weekly, monthly, quarterly, semi-annually, or annually. The
Interest Reset Date will be:
- for notes which reset daily, each Business Day;
- for notes (other than Treasury rate notes) which reset weekly,
the Wednesday of each week;
- for Treasury rate notes which reset weekly, the Tuesday of each week; for
notes which reset monthly, on the third Wednesday of each month;
- for notes which reset quarterly, the third Wednesday of
March, June, September and December;
- for notes which reset semi-annually, the third Wednesday of the two months
of each year indicated in the applicable pricing supplement; and
- for notes which reset annually, the third Wednesday of the month of each
year indicated in the applicable pricing supplement.
The applicable pricing supplement will state the initial interest rate or
interest rate formula on each note effective until the first Interest Reset
Date. After that, the interest rate will be the rate determined on the next
Interest Determination Date, as explained below. Each time a new interest rate
is determined, it will become effective on the subsequent Interest Reset Date.
If any Interest Reset Date is not a Business Day, then the Interest Reset Date
will be postponed to the next Business Day. However, in the case of a LIBOR
note, if the next Business Day is in the next calendar month, the Interest Reset
Date will be the immediately preceding Business Day.
Floating Rate Notes: When Interest Rate Is Determined
The Interest Determination Date for all notes (except Treasury rate notes)
is the second Business Day before the Interest Reset Date (second London
Business Day before the Interest Reset Date for LIBOR notes).
The Interest Determination Date for Treasury rate notes will be the day of
the week in which the Interest Reset Date falls on which Treasury bills would
normally be auctioned. Treasury bills are usually sold at auction on Monday of
each week, unless that day is a legal holiday, in which case the auction is
usually held on Tuesday. However, the auction may be held on the preceding
Friday. If an auction is held on the preceding Friday, that day will be the
Interest Determination Date pertaining to the Interest Reset Date occurring in
the next week. If an auction date falls on any Interest Reset Date then the
Interest Reset Date will instead be the first Business Day immediately following
the auction date.
Floating Rate Notes: When Interest Is Paid
Interest is paid as follows:
- for notes which reset daily, weekly or monthly, on the third Wednesday
of each month or on the third Wednesday of March, June, September and
December (as indicated in the applicable pricing supplement);
- for notes which reset quarterly, on the third Wednesday of
March, June, September, and December;
- for notes which reset semi-annually, on the third Wednesday
of the two months specified in the applicable pricing
supplement;
- for notes which reset annually, on the third Wednesday of
the month specified in the applicable pricing supplement; and
- at maturity or redemption .
If interest is payable on a day which is not a Business Day, payment will
be postponed to the next Business Day and no additional interest shall be due.
However, for LIBOR notes, if the next Business Day is in the next calendar
month, interest will be paid on the preceding Business Day.
Unless an applicable pricing supplement states otherwise, the record date
will be 15 calendar days prior to each day interest is paid, whether or not such
day is a Business Day.
The interest payable will be the amount of interest accrued to, but
excluding, the interest payment date. However, for notes on which the interest
resets daily or weekly, the interest payable will include interest accrued to
and including the record date prior to the interest payment date. If the
interest payment date is also a day that principal is due, the interest payable
will include interest accrued to, but excluding, the date of maturity or
redemption.
The accrued interest for any period is calculated by multiplying the
principal amount of a note by an accrued interest factor. The accrued interest
factor is computed by adding the interest factor calculated for each day in the
period to the date for which accrued interest is being calculated. The interest
factor (expressed as a decimal rounded upwards if necessary) is computed by
dividing the interest rate (expressed as a decimal rounded upwards if necessary)
applicable to such date by 360, unless the applicable pricing supplement states
otherwise, or the notes are Treasury rate notes or CMT rate notes, in which case
it will be divided by the actual number of days in the year.
All percentages resulting from any calculation of floating rate notes will
be rounded, if necessary, to the nearest one-hundred thousandth of a percentage
point, with five one-millionths of a percentage point rounded upwards (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or .0987655) and 9.876544%
(or .09876544) being rounded to 9.87654% (or .0987654)), and all dollar amounts
used in or resulting from such calculation will be rounded to the nearest cent
(with one-half cent being rounded upwards).
Floating Rate Notes: Interest Rate Formulas
Commercial Paper Rate Notes. Each commercial paper rate note will bear
interest at the rate (calculated with reference to the Commercial Paper Rate and
the Spread and/or Spread Multiplier, if any) specified on the commercial paper
rate note and in the applicable pricing supplement.
"Commercial Paper Rate" means, with respect to any Commercial Paper Rate
Interest Determination Date, the Money Market Yield (calculated as described
below) of the rate on such date for commercial paper having the Index Maturity
specified in the applicable pricing supplement as published in Federal Reserve
Statistical Release H.15(519) under the heading "Commercial
Paper--Nonfinancial."
The following procedures will occur if the rate cannot be set as described
above:
(a) If that rate is not published in H.15 (519) prior to 3:00 P.M. on
the Calculation Date, then the Commercial Paper Rate will be the Money
Market Yield of the rate on the Commercial Paper Rate Interest Determination
Date for commercial paper having the Index Maturity specified in the
applicable pricing supplement as published in Composite Quotations under the
heading "Commercial Paper."
(b) If the rate is not published in either H.15 (519) or in Composite
Quotations by 3:00 P.M. on the Calculation Date, the Commercial Paper Rate
for that Commercial Paper Rate Interest Determination Date will then be
calculated by the Calculation Agent in the following manner.
The Commercial Paper Rate will be calculated as the Money Market Yield
of the average for the offered rates, as of 11:00 A.M. on that date, of
three leading dealers of commercial paper in New York selected for
commercial paper having the applicable Index Maturity placed for an
industrial issuer whose bond rating is "Aa," or the equivalent, from a
nationally recognized rating agency.
(c) Finally, if fewer than three dealers are quoting as mentioned, the
rate of interest in effect for the applicable period will be the same as the
rate of interest in effect for the prior interest reset period.
Prime Rate Notes. Each prime rate note will bear interest at the rate
(calculated with reference to the Prime Rate and the Spread and/or Spread
Multiplier, if any) specified on the prime rate note and in the applicable
pricing supplement.
"Prime Rate" means, with respect to any Prime Rate Interest Determination
Date, the rate set forth on such date in H.15(519) under the heading "Bank Prime
Loan."
The following procedures will occur if the rate cannot be set as described
above:
(a) If that rate is not published in H.15(519) prior to 3:00 P.M. on
the Calculation Date, then the Prime Rate will be the average of the rates
of interest publicly announced by each bank that appear on the Reuters
Screen USPRIME1 Page as its prime rate or base lending rate as in effect for
that Prime Rate Interest Determination Date.
(b) If fewer than four rates appear on the Reuters Screen USPRIME1
Page, the Prime Rate will be the average of the prime rates or base lending
rates quoted on the basis of the actual number of days in the year divided
by a 360-day year as of the close of business on the Prime Rate Interest
Determination Date by four major money center banks in New York selected by
the Calculation Agent.
(c) If fewer than four banks are quoting as mentioned, the Prime Rate
shall be determined on the basis of the rates furnished in New York by the
major money center banks, if any, that have provided such quotations, and by
an appropriate number of substitute banks or trust companies organized and
doing business under the laws of the United States, or any State thereof,
having total equity capital of at least $500 million and being subject to
supervision or examination by a Federal or State authority, as selected by
the Calculation Agent.
(d) Finally, if the banks are not quoting as mentioned above, the rate
of interest in effect for the applicable period will be the same as the rate
of interest in effect for the prior interest reset period.
CD Rate Notes. Each CD rate note will bear interest at the rate
(calculated with reference to the CD Rate and the Spread and/or Spread
Multiplier, if any) specified on the CD rate note and in the applicable pricing
supplement.
"CD Rate" means, with respect to any CD Rate Interest Determination Date,
the rate on that date for negotiable U.S. dollar certificates of deposit having
the Index Maturity specified in the applicable pricing supplement as published
in H.15(519) under the heading "CDs (Secondary Market)."
The following procedures will occur if the rate cannot be set as described
above:
(a) If that rate is not published in H.15(519) prior to 3:00 P.M. on
the Calculation Date, then the CD Rate will be the rate on that CD Rate
Interest Determination Date for negotiable U.S. Dollar certificates of
deposit having the applicable Index Maturity as published in Composite
Quotations under the heading "Certificates of Deposit."
(b) If that rate is not published in either H.15 (519) or in Composite
Quotations by 3:00 P.M. on that Calculation Date, the CD Rate for that CD
Rate Interest Determination Date shall be calculated by the Calculation
Agent as follows:
The CD Rate will be calculated as the average of the secondary market
offered rates, as of 10:00 A.M., of three leading nonbank dealers of
negotiable U.S. dollar certificates of deposit in New York selected by the
Calculation Agent for negotiable U.S. dollar certificates of deposit of
major United States money market banks with a remaining maturity closest to
the Index Maturity specified in the applicable pricing supplement in a
representative amount.
(c) Finally, if fewer than three dealers are quoting as mentioned, the
rate of interest in effect for the applicable period will be the same as the
rate of interest in effect for the prior interest reset period.
Federal Funds Rate Notes. Each federal funds rate note will bear interest
at the rate (calculated with reference to the Federal Funds Rate and the Spread
and/or Spread Multiplier, if any) specified on the federal funds rate note and
in the applicable pricing supplement.
"Federal Funds Rate" means, with respect to any Federal Funds Rate
Interest Determination Date, the rate on such date for U.S. dollar federal funds
as published in H.15(519) under the heading "Federal Funds (Effective)."
The following procedures will occur if the rate cannot be set as described
above:
(a) If that rate is not published in H.15(519) prior to 3:00 P.M. on
the Calculation Date, then the Federal Funds Rate will be the rate on that
Federal Funds Rate Interest Determination Date as published in Composite
Quotations under the heading "Federal Funds/Effective Rate."
(b) If that rate is not published in either H.15 (519) or in Composite
Quotations by 3:00 P.M. on the Calculation Date, the Federal Funds Rate for
that Federal Funds Rate Interest Determination Date will be calculated by
the Calculation Agent as follows:
The Federal Funds Rate will be the average of the rates, as of 9:00
A.M. on that date, for the last transaction in overnight federal funds
arranged by three leading brokers of federal funds transactions in New York
selected by the Calculation Agent.
(c) Finally, if fewer than three brokers are quoting as mentioned
above, the rate of interest in effect for the applicable period will be the
same as the rate of interest in effect for the prior interest reset period.
LIBOR Notes. Each LIBOR note will bear interest at the rate (calculated
with reference to LIBOR and the Spread and/or Spread Multiplier, if any)
specified on the LIBOR note and in the applicable pricing supplement.
"LIBOR" means the London interbank offered rate for deposits
in U.S. dollars and will be determined by the Calculation Agent as
follows:
(a) With respect to any LIBOR Interest Determination Date, LIBOR will
be determined by either:
(1) the average of the offered rates for deposits in U.S. dollars
having the Index Maturity specified in the applicable pricing supplement,
beginning on the second Business Day immediately after that date, that
appear on the Reuters Screen LIBO Page as of 11:00 A.M., London time, on
that date, if at least two offered rates appear on the Reuters Screen
LIBO Page; or
(2) the rate for deposits in U.S. dollars having the Index Maturity
designated in the applicable pricing supplement, beginning on the second
London Business Day immediately after such date, that appears on the
Telerate Page 3750 as of 11:00 A.M., London time, on that date.
If neither Reuters Screen LIBO Page nor Telerate Page 3750 is specified
in the applicable pricing supplement, LIBOR will be determined as if
Telerate Page 3750 had been specified.
In the case where (1) above applies, if fewer than two offered rates
appear on the Reuters Screen LIBO Page, or, in the case where (2) above
applies, if no rate appears on the Telerate Page 3750, LIBOR for that date
will be determined as follows:
(b) LIBOR will be determined based on the rates at approximately
11:00 A.M., London time, on that LIBOR Interest Determination Date at which
deposits in U.S. dollars having the applicable Index Maturity are offered to
prime banks in the London interbank market by four major banks in the London
interbank market selected by the Calculation Agent that in the Calculation
Agent's judgment is representative for a single transaction in such market
at such time (a "Representative Amount"). The offered rates must begin on
the second Business Day immediately after that LIBOR Interest Determination
Date.
The Calculation Agent will request the principal London office of each
such bank to provide a quotation of its rate. If at least two such
quotations are provided, LIBOR for such date will be the average of such
quotations.
(c) If fewer than two quotations are provided, LIBOR for that date will
be the average of the rates quoted at approximately 11:00 A.M. on such date
by three major banks in New York, selected by the Calculation Agent. The
rates will be for loans in U.S. dollars to leading European banks having the
specified Index Maturity beginning on the second Business Day after that
date and in a Representative Amount.
(d) Finally, if fewer than three banks are quoting as mentioned, the
rate of interest in effect for the applicable period will be the same as the
rate of interest in effect for the prior interest reset period.
Treasury Rate Notes. Each Treasury rate note will bear interest at the
rate (calculated with reference to the Treasury Rate and the Spread and/or
Spread Multiplier, if any) specified on the Treasury rate note and in the
applicable pricing supplement.
"Treasury Rate" means, with respect to any Treasury Rate Interest
Determination Date, the rate for the most recent auction of direct obligations
of the United States ("Treasury Bills") having the Index Maturity specified in
the applicable pricing supplement as published in H.15(519) under the heading
"U.S. Government Securities/Treasury Bills/Auction Average (Investment)."
The following procedures will occur if the rate cannot be set as described
above:
(a) If that rate is not published in H.15(519) by 3:00 P.M. on the
applicable Calculation Date, the rate will be the auction average rate
(expressed as a bond equivalent, on the basis of a year of 365 or 366 days,
as applicable, and applied on a daily basis) for such auction as otherwise
announced by the United States Department of the Treasury.
(b) If the results of the auction of Treasury Bills having the
applicable Index Maturity are not published in H.15(519) by 3:00 P.M., or
otherwise published or reported as provided above by 3:00 P.M. on the
Calculation Date, or if no auction is held in a particular week, then the
Treasury Rate shall be calculated by the Calculation Agent as follows:
The rate will be calculated as a yield to maturity (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the average of the secondary market bid rates
as of approximately 3:30 P.M. on the Treasury Rate Interest Determination
Date, of three leading primary United States government securities dealers
in New York selected by the Calculation Agent for the issue of Treasury
Bills with a remaining maturity closest to the specified Index Maturity.
(c) Finally, if fewer than three dealers are quoting as mentioned, the
rate of interest in effect for the period will be the same as the rate of
interest in effect for the prior interest reset period.
CMT Rate Notes. Each CMT rate note will bear interest at the rate
(calculated with reference to the CMT Rate and the Spread or Spread Multiplier,
if any) specified on such CMT rate note and in the applicable pricing
supplement.
"CMT Rate" means, with respect to any CMT Rate Interest Determination
Date, the rate displayed on the Designated CMT Telerate Page under the caption
"... Treasury Constant Maturities.. Federal Reserve Board Release H.15...
Mondays Approximately 3:45 P.M.," under the column for the applicable Index
Maturity designated in the applicable pricing supplement for:
(1) if the Designated CMT Telerate Page is 7055, the rate for the
applicable CMT Rate Interest Determination Date; or
(2) if the Designated CMT Telerate Page is 7052, the week, or the month,
as applicable, ended immediately preceding the week in which the CMT Rate
Interest Determination Date occurs.
The following procedures will occur if the rate cannot be set as described
above:
(a) If no page is specified in the applicable pricing supplement and on
the face of such CMT Rate note, the Designated CMT Telerate Page shall be
7052 for the most recent week. If such rate is no longer displayed on the
relevant page, or if it is not displayed by 3:00 P.M. on the related
Calculation Date, then the CMT Rate will be the Treasury constant maturity
rate for the applicable Index Maturity as published in the relevant H.15
(519).
(b) If that rate is no longer published in H.15(519), or is not
published by 3:00 P.M. on the related Calculation Date, then the CMT Rate
for such CMT Rate Interest Determination Date will be the Treasury constant
maturity rate for the applicable Index Maturity (or other United States
Treasury rate for such Index Maturity for that CMT Rate Interest
Determination Date with respect to such Interest Reset Date) as may then be
published by either the Federal Reserve Board or the United States
Department of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Designated CMT Telerate
Page and published in the relevant H.15(519).
(c) If that information is not provided by 3:00 P.M. on the related
Calculation Date, then the CMT Rate for that CMT Rate Interest Determination
Date will be calculated by the Calculation Agent as follows:
The rate will be calculated as a yield to maturity, based on the
average of the secondary market closing offer side prices as of
approximately 3:30 P.M. on that CMT Rate Interest Determination Date
reported, according to their written records, by three leading primary
United States government securities dealers (each, a "Reference Dealer") in
New York selected by the Calculation Agent. These dealers will be selected
from five such Reference Dealers.
The Calculation Agent will eliminate the highest quotation (or, in the
event of equality, one of the highest) and the lowest quotation (or, in the
event of equality, one of the lowest), for the most recently issued direct
noncallable fixed rate obligations of the United States ("Treasury Notes")
with an original maturity of approximately the applicable Index Maturity and
a remaining term to maturity of not less than such Index Maturity minus one
year.
If two Treasury Notes with an original maturity as described in the
preceding sentence have remaining terms to maturity equally close to the
applicable Index Maturity, the quotes for the Treasury Note with the shorter
remaining term to maturity will be used.
(d) If the Calculation Agent cannot obtain three such Treasury Note
quotations, the CMT Rate for that CMT Rate Interest Determination Date will
be calculated by the Calculation Agent as follows:
The rate will be calculated as a yield to maturity based on the average
of the secondary market offer side prices as of approximately 3:30 P.M. on
that CMT Rate Interest Determination Date of three Reference Dealers in New
York selected by the Calculation Agent using the same method described
above, for Treasury Notes with an original maturity of the number of years
that is the next highest to the applicable Index Maturity with a remaining
term to maturity closest to such Index Maturity and in an amount of at least
$100 million.
If three or four (and not five) of the Reference Dealers are quoting as
described above, then the CMT Rate will be based on the average of the offer
prices obtained and neither the highest nor the lowest of such quotes will
be eliminated.
(e) Finally, if fewer than three Reference Dealers are quoting as
mentioned, the rate of interest in effect for the applicable period will be
the same as the rate of interest in effect for the prior interest reset
period.
Events of Default
"Event of Default" means any of the following:
- failure to pay for three Business Days the principal of
(or premium, if any, on) any note of a series when due and
payable;
- failure to pay for 30 days any interest on any note of
any series when due and payable;
- failure to perform any other requirements in such notes, or in the
Indenture in regard to such notes, for 90 days after notice; - certain
events of bankruptcy or insolvency; or
- any other event of default specified in a series of notes.
An Event of Default for a particular series of notes does not necessarily
mean that an Event of Default has occurred for any other series of notes issued
under the Indenture. If an Event of Default occurs and continues, the Trustee or
the holders of at least 33% of the principal amount of the notes of the series
affected may require us to repay the entire principal of the notes of such
series immediately ("Repayment Acceleration"). In most instances, the holders of
at least a majority in aggregate principal amount of the notes of the affected
series may rescind a previously triggered Repayment Acceleration. However, if we
cause an Event of Default because we have failed to pay (unaccelerated)
principal, premium, if any, or interest, Repayment Acceleration may be rescinded
only if we have first cured our default by depositing with the Trustee enough
money to pay all (unaccelerated) past due amounts and penalties, if any.
The Trustee must within 90 days after a default occurs, notify the holders
of the notes of the series of default unless such default has been cured or
waived. We are required to file an annual certificate with the Trustee, signed
by an officer, concerning any default by us under any provisions of the
Indenture.
Subject to the provisions of the Indenture relating to its duties in case
of default, the Trustee shall be under no obligation to exercise any of its
rights or powers under the Indenture at the request, order or direction of any
holders unless such holders offer the Trustee reasonable indemnity. Subject to
the provisions for indemnification, the holders of a majority in principal
amount of the notes of any series may direct the time, method and place of
conducting any proceedings for any remedy available to, or exercising any trust
or power conferred on, the Trustee with respect to such notes.
Modification of Indenture
Under the Indenture, our rights and obligations and the rights of the
holders of any notes may be changed. Any change affecting the rights of the
holders of any series of notes requires the consent of the holders of not less
than a majority in aggregate principal amount of the outstanding notes of all
series affected by the change, voting as one class. However, we cannot change
the terms of payment of principal or interest, or a reduction in the percentage
required for changes or a waiver of default, unless the holder consents. We may
issue additional series of notes and take other action that does not affect the
rights of holders of any series by executing supplemental indentures without the
consent of any noteholders.
Consolidation, Merger or Sale
We may merge or consolidate with any corporation or sell substantially all
of our assets as an entirety as long as the successor or purchaser expressly
assumes the payment of principal, and premium, if any, and interest on the
notes.
Legal Defeasance
We will be discharged from our obligations on the notes of any series at
any time if:
- we deposit with the Trustee sufficient cash or government securities to
pay the principal, interest, any premium and any other sums due to the
stated maturity date or a redemption date of the note of the series, and
- we deliver to the Trustee an opinion of counsel stating that the federal
income tax obligations of noteholders of that series will not change as a
result of our performing the action described above.
If this happens, the noteholders of the series will not be
entitled to the benefits of the Indenture except for registration
of transfer and exchange of notes and replacement of lost, stolen
or mutilated notes.
Covenant Defeasance
We will be discharged from our obligations under any restrictive covenant
applicable to the notes of a particular series if we perform both actions
described above. See Legal Defeasance. If this happens, any later breach of that
particular restrictive covenant will not result in Repayment Acceleration. If we
cause an Event of Default apart from breaching that restrictive covenant, there
may not be sufficient money or government obligations on deposit with the
Trustee to pay all amounts due on the notes of that series. In that instance, we
would remain liable for such amounts.
Governing Law
The Indenture and notes of all series will be governed by the laws of the
State of New York.
Concerning the Trustee
We and our affiliates use or will use some of the banking services of the
Trustee in the normal course of business.
PLAN OF DISTRIBUTION
We may sell the notes (a) through agents; (b) through underwriters or
dealers; or (c) directly to one or more purchasers.
By Agents
Notes may be sold on a continuing basis through agents designated by us.
The agents will agree to use their reasonable efforts to solicit purchases for
the period of their appointment.
Unless the pricing supplement states otherwise, the notes will be sold to
the public at 100% of their principal amount. Agents will receive commissions
from .125% to .750% of the principal amount per note depending on the maturity
of the note they sell.
The Agents will not be obligated to make a market in the notes. We cannot
predict the amount of trading or liquidity of the notes.
By Underwriters
If underwriters are used in the sale, the underwriters will acquire the
notes for their own account. The underwriters may resell the notes in one or
more transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. The obligations of
the underwriters to purchase the notes will be subject to certain conditions.
The underwriters will be obligated to purchase all the notes of the series
offered if any of the notes are purchased. Any initial public offering price and
any discounts or concessions allowed or re-allowed or paid to dealers may be
changed from time to time.
Direct Sales
We may also sell notes directly. In this case, no underwriters or agents
would be involved.
General Information
Underwriters, dealers, and agents that participate in the distribution of
the notes may be underwriters as defined in the Securities Act of 1933 (the
"Act"), and any discounts or commissions received by them from us and any profit
on the resale of the notes by them may be treated as underwriting discounts and
commissions under the Act.
We may have agreements with the underwriters, dealers and agents to
indemnify them against certain civil liabilities, including liabilities under
the Act.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, us or our affiliates in the ordinary course of their
businesses.
RECENT DEVELOPMENTS
Reference is made to pages 22 and 23 of the Company's Annual Report on
Form 10-K for the year ended December 31, 1997, under the headings NOx SIP Calls
and the Ozone Transport Assessment Group and Section 126 Petitions and to pages
II-1 and II-2 of the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998 for a discussion of proposed nitrogen oxides ("NOx")
emissions reduction rules and related proceedings. On September 24, 1998, the
U.S. Environmental Protection Agency ("Federal EPA") announced the issuance of
final rules (the "Final Rules"), adopted substantially in the form proposed,
requiring reductions in NOx emissions in 22 states in the eastern third of the
country, including the states in which AEP System generating units are located.
It is anticipated that these reductions will be imposed primarily on utility
sources through revisions in state implementation plans ("SIPs") adopted by the
individual states. The Final Rules assume a reduced NOx emission rate for
utility sources of 0.15/MMBtu (approximately an 85% reduction) by May 2003.
Should the states fail to adopt the required revisions to their state plans
within one year of the date of the signing of the Final Rules (September 24,
1999), Federal EPA has proposed to implement a federal plan to accomplish these
NOx reductions. Federal EPA also proposed the approval of portions of petitions
filed by certain northeastern states under Section 126 of the Clean Air Act. The
proposed approval of the Section 126 petitions also would result in imposition
of NOx emission reductions on utility and industrial sources in the states in
which AEP System generating units are located. These reductions are
substantially the same as those required by the Final Rules and could be adopted
by Federal EPA in the event the states fail to implement SIPs in accordance with
the Final Rules. The costs of meeting NOx emissions reduction requirements that
would be imposed as a result of the NOx SIPs or Section 126 petitions cannot be
determined at this time, but such costs are expected to be significant.
LEGAL OPINIONS
Our counsel, Simpson Thacher & Bartlett, New York, NY, and one of our
lawyers will each issue an opinion about the legality of the notes for us. Dewey
Ballantine LLP, New York, NY will issue an opinion for the agents or
underwriters. From time to time, Dewey Ballantine LLP acts as counsel to our
affiliates for some matters.
EXPERTS
The financial statements and related financial statement schedule
incorporated in this prospectus by reference from the Company's Annual Report on
Form 10-K have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their reports, which are incorporated herein by reference, and have
been so incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
GLOSSARY
Set forth below are definitions of some of the terms used in this
Prospectus.
"Business Day" means any day other than a Saturday or Sunday that (a) is
not a day on which banking institutions in New York, New York, are authorized or
obligated by law or executive order to be closed, and (b) with respect to LIBOR
Notes only, is a day on which dealings in deposits in U.S. dollars are
transacted in the London interbank market.
"Calculation Agent" means the entity we choose to perform the duties
related to interest rate calculation and resets for floating rate notes. The
applicable pricing supplement will identify the Calculation Agent.
"Calculation Date" means the date on which the Calculation Agent
calculates an interest rate for a floating rate note, which will be one of the
following:
"Prime Rate" - tenth day after the related Prime Rate Interest Determination
Date or, if such day is not a Business Day, the next Business Day.
"CD Rate" - tenth day after the related CD Rate Interest Determination Date
or, if such day is not a Business Day, the next Business Day.
"CMT Rate" - tenth day after the related CMT Rate Interest Determination
Date or, if such day is not a Business Day, the next Business Day.
"Commercial Paper Rate" - tenth day after the related Commercial Paper Rate
Interest Determination Date or, if such day is not a Business Day, the next
Business Day.
"LIBOR" - the LIBOR Interest Determination Date.
"Treasury Rate" - tenth day after the related Treasury Rate Interest
Determination Date or, if such day is not a Business Day, the next Day.
"Federal Funds Rate" - tenth day after the related Federal Funds Rate
Interest Determination Date or, if such day is not a Business Day, the next
Business Day.
"Composite Quotations" means the daily statistical release
entitled "Composite 3:30 P.M. Quotations for U.S. Government
Securities," or any successor publication, published by The Federal
Reserve Bank of New York.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service on the page designated in the applicable pricing supplement and on the
face of such CMT Rate note (or any other page as may replace such page on that
service) for the purpose of displaying Treasury Constant Maturities as reported
in H.15(519).
"H.15 (519)" means the weekly statistical release entitled "Statistical
Release H.15 (519), Selected Interest Rates," or any successor publication,
published by the Board of Governors of the Federal Reserve System.
"Index Maturity" means, with respect to a floating rate note, the period
to maturity of the note on which the interest rate formula is based, as
indicated in the applicable pricing supplement.
"Interest Determination Date" means the date as of which the interest rate
for a floating rate note is to be calculated, to be effective as of the
following Interest Reset Date and calculated on the related Calculation Date
(except in the case of LIBOR which is calculated on the related LIBOR Interest
Determination Date). The Interest Determination Dates will be indicated in the
applicable pricing supplement and in the note.
"Interest Reset Date" means the date on which a floating rate note will
begin to bear interest at the variable interest rate determined on any Interest
Determination Date. The Interest Reset Dates will be indicated in the applicable
pricing supplement and in the note.
"Money Market Yield" is the yield (expressed as a percentage rounded
upwards, if necessary, to the next higher one-hundred thousandth of a percentage
point) calculated in accordance with the following formula:
Money Market Yield = D X 360 X 100 360 - (D X M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the period for which interest is being calculated.
"Reuters Screen LIBO Page" means the display designated as page "LIBO" on
the Reuters Monitor Money Rates Service (or such other page as may replace the
LIBO page on that service for the purpose of displaying London interbank offered
rates of major banks).
"Reuters Screen USPRIME1 Page" means the display designated as page
USPRIME1 on the Reuters Monitor Money Rates Service (or such other page as may
replace the USPRIME1 page on that service for the purpose of displaying prime
rates or base lending rates of major U.S. banks).
"Spread" means the number of basis points specified in the applicable
pricing supplement as being applicable to the interest rate for a floating rate
note.
"Spread Multiplier" means the percentage specified in the applicable
pricing supplement as being applicable to the interest rate for a floating rate
note.
"Telerate Page 3750" means the display designated as page "3750" on the
Dow Jones Telerate Service (or such other page as may replace the 3750 page on
that service or such other service or services as may be nominated by the
British Bankers Association for the purpose of displaying London interbank
offered rates of major banks for U.S. dollar deposits).
II-1
Table of Contents
WHERE YOU CAN FIND MORE
INFORMATION............................................... 2
THE COMPANY................................................... 2
PROSPECTUS SUPPLEMENTS........................................ 3
RATIO OF EARNINGS TO
FIXED CHARGES.............................................. 3
USE OF PROCEEDS .............................................. 3
DESCRIPTION OF THE NOTES ..................................... 3
General .................................................. 3
Redemptions ................................................4
Remarketed Notes........................................ 4
Book-Entry Notes - Registration,
Transfer, and Payment of
Interest and Principal .............................. 4
Note Certificates- Registration,
Transfer, and Payment of
Interest and Principal ............................... 5
Interest Rate ............................................. 6
General ................................................ 6
Fixed Rate Notes ....................................... 6
Floating Rate Notes: General............................ 6
Floating Rate Notes: Date
of Interest Rate Change.............................. 6
Floating Rate Notes: When
Interest Rate Is Determined.......................... 7
Floating Rate Notes: When
Interest Is Paid..................................... 7
Floating Rate Notes: Interest
Interest Rate Formulas............................... 8
Event of Default.........................................14
Modification of Indenture................................15
Consolidation, Merger or Sale............................15
Legal Defeasance.........................................15
Covenant Defeasance......................................15
Governing Law............................................15
Concerning the Trustee...................................15
PLAN OF DISTRIBUTION..........................................15
RECENT DEVELOPMENTS...........................................16
LEGAL OPINIONS................................................17
EXPERTS.......................................................17
GLOSSARY......................................................17
$200,000,000 UNSECURED NOTES
PROSPECTUS
The date of this prospectus is October _, 1998
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
Securities and Exchange Commission Filing Fees............ $ 55,460
Printing Registration Statement, Prospectus, etc........ $ 30,000
Independent Auditors' Fees .............................. $ 15,000
Charges of Trustee (including counsel fees)............... $ 16,000
Legal Fees of Counsel.........................................$100,000
Rating Agency Fees............................................$.40,000
Miscellaneous Expenses........................................$.25,000
Total.......................................... $281,460
========
*Estimated, except for filing fees.
Item 15. Indemnification of Directors and Officers.
Section 23-1-37-8 of the Indiana Code provides that an Indiana corporation
may indemnify an individual made a party to a proceeding because the individual
is or was a director if (i) the individual's conduct was in good faith, (ii) the
individual reasonably believed that, in the case of conduct in the individual's
official capacity with the corporation, his or her conduct was in the best
interests of the corporation and, in all other cases, his or her conduct was at
least not opposed to the best interests of the corporation and (iii) in the case
of a criminal proceeding, that the director either had reasonable cause to
believe his or her conduct was lawful or had no reasonable cause to believe that
such conduct was unlawful. The termination of a proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent is
not, of itself, determinative that a director did not meet the required standard
of conduct. Section 23-1-37-9 requires a corporation, unless limited by its
articles of incorporation, to indemnify a director who has been wholly
successful in the defense of a proceeding against reasonable expenses (including
counsel fees) so incurred. Section 23-1-37-10 authorizes a corporation to pay
for or reimburse the reasonable expenses (including counsel fees) incurred by a
director in advance of final disposition of a proceeding upon: (1) a
determination that, in light of the facts then known, indemnification is
permissible; (2) receipt by the corporation of a written affirmation by the
director of his or her good faith belief that the required standard of conduct
has been met; and (3) receipt by the corporation of a written undertaking by the
director to repay any such advance if it is ultimately determined that the
director did not meet the required standard of conduct.
Pursuant to Section 23-1-37-11, a director may apply for indemnification
to a court of competent jurisdiction. Pursuant to Section 23-1-37-13, an officer
is entitled to mandatory indemnification under Section 23-1-37-9 and to apply
for court-ordered indemnification under Section 23-1-37-11 to the same extent as
a director. A corporation may indemnify and advance expenses to an officer,
employee or agent to the same extent as to a director. Pursuant to Section
23-1-37-14, a corporation may purchase and maintain insurance on behalf of an
individual who is a director, officer, employee or agent of the corporation,
whether or not the corporation would have power by statute to indemnify the
individual against the same liability. Section 23-1-37-15 provides that the
statutory provisions do not exclude any other rights to indemnification and
advance for expenses that a person may otherwise have. The by-laws of the
Company provide for the indemnification of directors and officers of the Company
to the full extent permitted by the Indiana Code.
The above is a general summary of certain provisions of the Company's
by-laws and of the Indiana Code and is subject in all respects to the specific
and detailed provisions of the Company's by-laws and the Indiana Code.
Reference is made to the Underwriting Agreement, filed as Exhibit 1(b)
hereto, which provides for indemnification, under certain circumstances, of the
Company, certain of its directors and officers, and persons who control the
Company.
The Company maintains insurance policies insuring its directors and
officers against certain obligations that may be incurred by them.
Item 16. Exhibits.
Reference is made to the information contained in the Exhibit Index filed
as a part of this Registration Statement.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, 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 Notes (if the total dollar value of Notes would not
exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule 424(b) of the
Securities Act of 1933 if, in the aggregate, the changes in volume and
price represent no more than a 20% 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 (i) and (ii) do not apply if the registration
statement is on Form S-3 or Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the 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 the registration statement shall be deemed to be a
new registration statement relating to the Notes, and the offering thereof at
that time shall be deemed to be the initial bona fide offering thereof.
(5) 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 laws of the State of Indiana, the
registrant's By-laws or otherwise, the registrant has been advised that in the
opinion of the SEC such indemnification is against public policy as expressed in
said 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 Debt Securities, 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 said Act and will be governed by the
final adjudication of such issue.
(6) For purposes of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable cause 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 Columbus and State of Ohio, on the 2nd day of
October, 1998.
INDIANA MICHIGAN POWER COMPANY
/s/ E. Linn Draper, Jr.*
Chairman of the Board and
Chief Executive Officer
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 on the dates indicated.
Signature Title Date
(i) Principal Executive
Officer Chairman of the
Board and Chief
E. Linn Draper, Jr.* Executive Officer October 2, 1998
(ii) Principal Financial
Officer:
Treasurer and Chief
/s/ A. A. Pena Financial Officer October 2, 1998
A. A. Pena
(iii) Principal Accounting
Officer:
Controller and
/s/ L. V. Assante Accounting Officer October 2, 1998
L. V. Assante
(iv) A Majority of the Directors: October 2 , 1998
K. G. Boyd*
C. R. Boyle, III*
G. A. Clark*
E. Linn Draper, Jr.*
Henry W. Fayne*
James A. Kobyra*
Wm. J. Lhota*
James J. Markowsky*
Armando A. Pena*
D. B. Synowiec*
J. H. Vipperman*
W. E. Walters*
E. H. Wittkamper*
*By /s/ Armando A. Pena
(Armando A. Pena, Attorney-in-Fact)
EXHIBIT INDEX
Certain of the following exhibits, designated with an asterisk (*), are
filed herewith. The exhibits not so designated have heretofore been filed with
the Commission and, pursuant to 17 C.F.R.Section 201.24 and Section 230.411, are
incorporated herein by reference to the documents indicated following the
descriptions of such exhibits.
Exhibit No. Description
*1(a) - Proposed Selling Agency Agreement for the notes.
*1(b) - Proposed form of Underwriting Agreement for the
notes.
*4(a) - Proposed form of Indenture to be entered into between the
Company and The Bank of New York, as Trustee for the notes.
*4(b) - Proposed form of Company Order and Officers' Certificate
establishing certain terms of the notes.
*5 - Opinion of Simpson Thacher & Bartlett as to the
legality of the notes.
12 - Statement re: Computation of Ratios [Quarterly
Report on Form 10-Q of the Company for the period
ended June 30, 1998, File No. 1-3570, Exhibit 12].
*23(a) - Consent of Deloitte & Touche LLP.
23(b) - Consent of Simpson Thacher & Bartlett (included in
Exhibit 5).
*24 - Powers of Attorney and resolutions of the Board of
Directors of the Company.
*25 - Form T-1 re: Eligibility of The Bank of New York.
EXHIBIT 1(a)
INDIANA MICHIGAN POWER COMPANY
Selling Agency Agreement
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Dear Sirs:
Indiana Michigan Power Company, an Indiana corporation (the "Company"),
confirms its agreement with each of you with respect to the issue and sale by
the Company of up to $____________ aggregate principal amount of its [Debt
Securities] (the "Notes"). The Notes will be issued under the Indenture dated as
of _____________ __, 1998, between the Company and The Bank of New York, as
trustee (the "Trustee"), as it may be from time to time supplemented by one or
more supplemental indentures (said Indenture, as it may be so supplemented,
being hereafter referred to as the "Indenture"). The Notes will be issued in
minimum denominations of [$25] and in integral multiples thereof, will be issued
only in fully registered form and will have the annual interest rates,
maturities and, if appropriate, other terms set forth in a supplement to the
Prospectus referred to below. The Notes will be issued, and the terms thereof
established, in accordance with the Indenture and, in the case of Notes sold
pursuant to Section 2(a) hereof, the [Debt Securities] Administrative Procedures
attached hereto as Exhibit A (the "Procedures"). The Procedures may only be
amended by written agreement of the Company and you after notice to, and with
the approval of, the Trustee. For purposes of this Agreement, the term "Agent"
shall refer to any one of you and any Additional Agent as defined and as
provided for in Section 2(a) acting solely in the capacity as agent for the
Company pursuant to Section 2(a) and not as principal (collectively, the
"Agents"), the term the "Purchaser" shall refer to one of you acting solely as
principal pursuant to Section 2(b) and not as agent, and the term "you" shall
refer to you collectively whether at any time any of you is acting in both such
capacities or in either such capacity.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, you as set forth below in this Section 1. Certain
terms used in this Section 1 are defined in paragraph (d) hereof.
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form S-3 (File Number: 333-_____), including a basic
prospectus, which has become effective, for the registration under the Act
of $____________ aggregate principal amount of debt securities (the
"Securities"), including the Notes. Such registration statement meets the
requirements set forth in Rule 415(a)(1)(ix) or (x) under the Act and
complies in all other material respects with said Rule. The Company will
file with the Commission pursuant to the applicable paragraph of Rule
424(b) under the Act a supplement to the form of prospectus included in
such registration statement relating to the Notes and the plan of
distribution thereof (the "Prospectus Supplement"). In connection with the
sale of Notes the Company proposes to file with the Commission pursuant to
the applicable paragraph of Rule 424(b) under the Act further supplements
to the Prospectus Supplement specifying the interest rates, maturity dates
and, if appropriate, other terms of the Notes sold pursuant hereto or the
offering thereof.
(b) As of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission, as of the date
of any Terms Agreement (as defined in Section 2(b)) and at the date of
delivery by the Company of any Notes sold hereunder (a "Closing Date"),
(i) the Registration Statement, as amended as of any such time, and the
Prospectus, as supplemented as of any such time, will comply in all
material respects with the applicable requirements of the Act, the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the respective rules under the Act, the Exchange Act and the Trust
Indenture Act; (ii) the Registration Statement, as amended as of any such
time, did not or will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and
(iii) the Prospectus, as supplemented as of any such time, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties
as to (i) those parts of the Registration Statement which shall constitute
a Statement of Eligibility (Form T-1) of the Trustee under the Trust
Indenture Act or (ii) the information contained in or omitted from the
Registration Statement or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to
the Company by any of you expressly for use in the Registration Statement
or the Prospectus (or any supplement thereto).
(c) As of the time any Notes are issued and sold hereunder, the
Indenture will constitute a legal, valid and binding instrument
enforceable against the Company in accordance with its terms and such
Notes will have been duly authorized, executed, authenticated and, when
paid for by the purchasers thereof, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
Indenture, except as the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights
generally, or general equitable principles (whether considered in a
proceeding in equity or at law), and an implied covenant of good faith and
fair dealing.
(d) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective. "Execution Time" shall mean
the date and time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the form of basic prospectus
relating to the Securities contained in the Registration Statement at the
Effective Date. "Prospectus" shall mean the Basic Prospectus as
supplemented by the Prospectus Supplement. "Registration Statement" shall
mean the Registration Statement referred to in paragraph (a) above,
including incorporated documents, exhibits and financial statements, as
amended at the Execution Time. "Rule 415" and "Rule 424" refer to such
rules under the Act. Any reference herein to the Registration Statement,
the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date or the issue date of the
Basic Prospectus, the Prospectus Supplement or the Prospectus, as the case
may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic
Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the Effective Date or the issue date of the Basic Prospectus, the
Prospectus Supplement or the Prospectus, as the case may be, deemed to be
incorporated therein by reference.
(e) The documents incorporated by reference in the Registration
Statement or Prospectus, when they were filed with the Commission,
complied in all material respects with the applicable provisions of the
1934 Act and the rules and regulations of the Commission thereunder, and
as of such time of filing, when read together with the Prospectus, none of
such documents contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(f) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, there has been no material adverse change in the business,
properties or financial condition of the Company.
(g) This Agreement has been duly authorized, executed and delivered
by the Company.
(h) The consummation by the Company of the transactions contemplated
herein will not conflict with, or result in a breach of any of the terms
or provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company under any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the
Company is a party or by which it may be bound or to which any of its
properties may be subject (except for conflicts, breaches or defaults
which would not, individually or in the aggregate, be materially adverse
to the Company or materially adverse to the transactions contemplated by
this Agreement.)
(i) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale by the Company of the Notes or the transactions by the
Company contemplated in this Agreement, except (A) such as may be required
under the 1933 Act or the rules and regulations thereunder; (B) such as
may be required under the Public Utility Holding Company Act of 1935, as
amended (the "1935 Act"); (C) the qualification of the Indenture under the
1939 Act; (D) the approval of The Indiana Utility Regulatory Commission;
and (E) such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws.
2. Appointment of Agents; Solicitation by the Agents of Offers to
Purchase; Sales of Notes to a Purchaser.
(a) Subject to the terms and conditions set forth herein, the Company
hereby authorizes each of the Agents to act as its agent to solicit offers
for the purchase of all or part of the Notes from the Company.
On the basis of the representations and warranties, and subject
to the terms and conditions set forth herein, each of the Agents agrees,
as agent of the Company, to use its reasonable best efforts to solicit
offers to purchase the Notes from the Company upon the terms and
conditions set forth in the Prospectus (and any supplement thereto) and in
the Procedures.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Notes. Upon
receipt of instructions from the Company, the Agents will forthwith
suspend solicitation of offers to purchase Notes from the Company until
such time as the Company has advised them that such solicitation may be
resumed.
The Company expressly reserves the right, upon fifteen business
days' prior written notice to each Agent, to appoint other persons,
partnerships or corporations ("Additional Agents") to act as its agent to
solicit offers for the purchase of Notes; provided, each Additional Agent
shall be named in a prospectus supplement or pricing supplement and shall
either execute this Agreement and become a party hereto or shall enter
into an agency agreement with the Company on terms substantially similar
to those contained herein; thereafter the term Agent as used in this
Agreement shall mean each Agent and each such Additional Agent.
The Company agrees to pay each Agent a commission, on the
Closing Date with respect to each sale of Notes by the Company as a result
of a solicitation made by such Agent, in an amount equal to that
percentage specified in Schedule I hereto of the aggregate principal
amount of the Notes sold by the Company. Such commission shall be payable
as specified in the Procedures.
Subject to the provisions of this Section and to the Procedures,
offers for the purchase of Notes may be solicited by an Agent as agent for
the Company at such time and in such amounts as such Agent deems
advisable. The Company may from time to time offer Notes for sale
otherwise than through an Agent; provided, however, that so long as this
Agreement shall be in effect the Company shall not solicit or accept
offers to purchase Notes through any agent other than an Agent.
(b) Subject to the terms and conditions stated herein, whenever the
Company and any Agent determine that the Company shall sell Notes directly
to such Agent as principal, each such sale of Notes shall be made in
accordance with the terms of this Agreement and, unless otherwise agreed
by the Company and such Agent, any supplemental agreement relating thereto
between the Company and the Purchaser. Each such supplemental agreement
(which may be an oral or written agreement) is herein referred to as a
"Terms Agreement". Each Terms Agreement shall describe (whether orally or
in writing) the Notes to be purchased by the Purchaser pursuant thereto,
and shall specify the aggregate principal amount of such Notes, the
maturity date of such Notes, the rate at which interest will be paid on
such Notes, the dates on which interest will be paid on such Notes and the
record date with respect to each such payment of interest, the Closing
Date for the purchase of such Notes, the place of delivery of the Notes
and payment therefor, the method of payment and any requirements for the
delivery of the opinions of counsel, the certificates from the Company or
its officers, or a letter from the Company's independent public
accountants, pursuant to Section 6(b). Any such Terms Agreement may also
specify the period of time referred to in Section 4(m). Any written Terms
Agreement may be in the form attached hereto as Exhibit B. The Purchaser's
commitment to purchase Notes shall be deemed to have been made on the
basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set
forth.
The Company also may sell Notes to any Agent, acting as principal, at
a discount to be agreed upon at the time of sale, for resale to one or
more investors or to another broker-dealer (acting as principal for
purposes of resale) at varying prices related to prevailing market prices
at the time of such resale as determined by such Agent. An Agent may
resell a Note purchased by it as principal to another broker-dealer at a
discount, provided such discount does not exceed the commission or
discount received by such Agent from the Company in connection with the
original sale of such Note.
(c) The Company, however, expressly reserves the right to place the
Notes itself privately or through a negotiated underwritten transaction
with one or more underwriters without notice to any Agent and without any
opportunity for any Agent to solicit offers for the purchase of the Notes.
In such event, no commission will be payable to the Agents.
Delivery of the Notes sold to the Purchaser pursuant to any
Terms Agreement shall be made not later than the Closing Date agreed to in
such Terms Agreement, against payment of funds to the Company in the net
amount due to the Company for such Notes by the method and in the form set
forth in the Procedures unless otherwise agreed to between the Company and
the Purchaser in such Terms Agreement.
3. Offering and Sale of Notes. Each Agent and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of any offering of the Notes, the
Company will not file any amendment of the Registration Statement or
supplement to the Prospectus (except for (i) periodic or current reports
filed under the Exchange Act; (ii) a supplement relating to any offering
of Notes providing solely for the specification of or a change in the
maturity dates, interest rates, issuance prices or other similar terms of
any Notes or (iii) a supplement relating to an offering of Securities
other than the Notes) unless the Company has furnished each of you a copy
for your review prior to filing and given each of you a reasonable
opportunity to comment on any such proposed amendment or supplement.
Subject to the foregoing sentence, the Company will cause each supplement
to the Prospectus to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to you of such filing. The Company will
promptly advise each of you (i) when the Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to Rule
424(b); (ii) when, prior to the termination of the offering of the Notes,
any amendment of the Registration Statement shall have been filed or
become effective; (iii) of any request by the Commission for any amendment
of the Registration Statement or supplement to the Prospectus or for any
additional information; (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose; and (v) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. The
Company will use every reasonable effort to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it shall be necessary to amend
the Registration Statement or to supplement the Prospectus to comply with
the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (i) notify each of you to suspend solicitation of
offers to purchase Notes (and, if so notified by the Company, each of you
shall forthwith suspend such solicitation and cease using the Prospectus
as then supplemented); (ii) prepare and file with the Commission, subject
to the first sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or effect such
compliance; and (iii) supply any supplemented Prospectus to each of you in
such quantities as you may reasonably request. If such amendment or
supplement, and any documents, certificates and opinions furnished to each
of you pursuant to paragraph (g) of this Section 4 in connection with the
preparation or filing of such amendment or supplement are satisfactory in
all respects to you, you will, upon the filing of such amendment or
supplement with the Commission and upon the effectiveness of an amendment
to the Registration Statement, if such an amendment is required, resume
your obligation to use your reasonable best efforts to solicit offers to
purchase Notes hereunder.
(c) The Company, during the period when a prospectus relating to the
Notes is required to be delivered under the Act, will file promptly all
documents required to be filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act and will furnish to each of
you copies of such documents. In addition, on or prior to the date on
which the Company makes any announcement to the general public concerning
earnings or concerning any other event which is required to be described,
or which the Company proposes to describe, in a document filed pursuant to
the Exchange Act, the Company will furnish to each of you the information
contained or to be contained in such announcement. The Company also will
furnish to each of you copies of all other press releases or announcements
to the general public. The Company will immediately notify each of you of
any downgrading in the rating of the Notes or any other debt securities of
the Company, or any proposal to downgrade the rating of the Notes or any
other debt securities of the Company, by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Act), as soon as the Company learns of any such downgrading or
proposal to downgrade.
(d) As soon as practicable, the Company will make generally available
to its security holders and to each of you an earning statement or
statements of the Company which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act.
(e) The Company will furnish to each of you and your counsel, without
charge, copies of the Registration Statement (without exhibits) and, so
long as delivery of a prospectus may be required by the Act, as many
copies of the Prospectus and any supplement thereto as you may reasonably
request.
(f) The Company will use its best efforts to qualify the Notes for
offer and sale under the securities or "blue sky" laws of such
jurisdictions as you may designate within six months after the final sale
of Notes pursuant to this Agreement and agrees to pay, or to reimburse you
and your counsel for, reasonable filing fees and expenses in connection
therewith in an amount not exceeding $5,000 in the aggregate (including
filing fees and expenses paid and incurred prior to the date hereof),
provided, however, that the Company shall not be required to qualify as a
foreign corporation or to file a consent to service of process or to file
annual reports or to comply with any other requirements deemed by the
Company to be unduly burdensome.
(g) The Company shall furnish to each of you such information,
documents, certificates of officers of the Company and opinions of counsel
for the Company relating to the business, operations and affairs of the
Company, the Registration Statement, the Prospectus, and any amendments
thereof or supplements thereto, the Indenture, the Notes, this Agreement,
the Procedures and the performance by the Company and you of its and your
respective obligations hereunder and thereunder as any of you may from
time to time and at any time prior to the termination of this Agreement
reasonably request.
(h) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its
obligations under this Agreement, including the fees and disbursements of
its accountants and counsel, the cost of printing or other production and
delivery of the Registration Statement, the Prospectus, all amendments
thereof and supplements thereto, the Indenture, this Agreement and all
other documents relating to the offering, the cost of preparing, printing,
packaging and delivering the Notes, the fees and disbursements of the
Trustee and the fees of any agency that rates the Notes; (ii) reimburse
each of you on a monthly basis for all out-of-pocket expenses (including
without limitation advertising expenses) incurred with the prior approval
of the Company in connection with this Agreement; and (iii) pay the
reasonable fees and expenses of your counsel incurred in connection with
this Agreement, including fees of counsel incurred in compliance with and
to the extent stated in Section 4(f), including the preparation of a Blue
Sky Survey.
(i) Each acceptance by the Company of an offer to purchase Notes will
be deemed to be an affirmation that its representations and warranties
contained in this Agreement and in any Certificate previously delivered
pursuant hereto are true and correct at the time of such acceptance, as
though made at and as of such time, and a covenant that such
representations and warranties will be true and correct at the time of
delivery to the purchaser of the Notes relating to such acceptance, as
though made at and as of such time (it being understood that for purposes
of the foregoing affirmation and covenant such representations and
warranties shall relate to the Registration Statement and Prospectus as
amended or supplemented at each such time). Each such acceptance by the
Company of an offer for the purchase of Notes shall be deemed to
constitute an additional representation, warranty and agreement by the
Company that, as of the settlement date for the sale of such Notes, after
giving effect to the issuance of such Notes, of any other Notes to be
issued on or prior to such settlement date and of any other Securities to
be issued and sold by the Company on or prior to such settlement date, the
aggregate amount of Securities (including any Notes) which have been
issued and sold by the Company will not exceed the amount of Securities
registered pursuant to the Registration Statement.
(j) Each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement (i)
relating to any offering of Securities other than the Notes; (ii)
incorporating by reference information contained in a Current Report on
Form 8-K filed by the Company under the Exchange Act that is (A) filed
solely under Item 5 of Form 8-K and (B) not required to be filed to comply
with Section 4(b); or (iii) providing solely for the specification of or a
change in the maturity dates, the interest rates, the issuance prices or
other similar terms of any Notes sold pursuant hereto, unless, in the case
of clause (ii) above, in the reasonable judgment of any of you, such
information is of such a nature that a certificate of the Company should
be delivered), the Company will deliver or cause to be delivered promptly
to each of you a certificate of the Company, signed by a Vice President,
Treasurer or Assistant Treasurer of the Company, dated the date of the
effectiveness of such amendment or the date of the filing of such
supplement, in form reasonably satisfactory to you, of the same tenor as
the certificate referred to in Section 5(c) but modified to relate to the
last day of the fiscal quarter for which financial state-meanest of the
Company were last filed with the Commission and to the Registration
Statement and the Prospectus as amended and supplemented to the time of
the effectiveness of such amendment or the filing of such supplement.
(k) Each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement (i)
relating to any offering of Securities other than the Notes; (ii)
incorporating by reference information contained in a Current Report on
Form 8-K filed by the Company under the Exchange Act that is (A) filed
solely under Item 5 of Form 8-K and (B) not required to be filed to comply
with Section 4(b); or (iii) providing solely for the specification of or a
change in the maturity dates, the interest rates, the issuance prices or
other similar terms of any Notes sold pursuant hereto, unless, in the case
of this clause (ii) above, in the reasonable judgment of any of you, such
information is of such a nature that an opinion of counsel should be
furnished), the Company shall furnish or cause to be furnished promptly to
each of you a written opinion or opinions of counsel of the Company
satisfactory to each of you (which may include counsel employed by
American Electric Power Service Corporation, an affiliate of the Company),
dated the date of the effectiveness of such amendment or the date of the
filing of such supplement, substantially in the form delivered pursuant to
Section 5(b)(1) and Section 5(b)(3) hereof or, in lieu of such opinion,
counsel last furnishing such an opinion or opinions to you may furnish
each of you with a letter to the effect that you may rely on such last
opinion to the same extent as though it were dated the date of such letter
authorizing reliance (except that statements in such last opinion will be
deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of the effectiveness of such
amendment or the filing of such supplement).
(l) If requested, each time that the Registration Statement or the
Prospectus is amended or supplemented to include or incorporate amended or
supplemental financial information, the Company shall cause its
independent public accountants promptly to furnish each of you a letter,
dated the date of the effectiveness of such amendment or the date of the
filing of such supplement, in form satisfactory to each of you, of the
same tenor as the letter referred to in Section 5(d) with such changes as
may be necessary to reflect the amended and supplemental financial
information included or incorporated by reference in the Registration
Statement and the Prospectus, as amended or supplemented to the date of
such letter; provided, however, that, if the Registration Statement or the
Prospectus is amended or supplemented solely to include or incorporate by
reference financial information as of and for a fiscal quarter, the
Company's independent public accountants may limit the scope of such
letter, which shall be satisfactory in form to each of you, to the
unaudited financial statements, the related "Management's Discussion and
Analysis of Results of Operations and Financial Condition" and any other
information of an accounting, financial or statistical nature included in
such amendment or supplement, unless, in the reasonable judgment of any of
you, such letter should cover other information or changes in specified
financial statement line items.
(m) During the period, if any, which shall not exceed ten days,
specified in any Terms Agreement, the Company shall not, without the prior
consent of the Purchaser thereunder, issue or announce the proposed
issuance of any of its debt securities, including Notes, with terms
substantially similar to the Notes being purchased pursuant to such Terms
Agreement, other than borrowings under its revolving credit agreements and
lines of credit, issuances of its commercial paper, and other forms of
unsecured borrowings from banks or other financial institutions.
5. Conditions to the Obligations of the Agents. The obligations of
each Agent to use its reasonable best efforts to solicit offers to purchase the
Notes shall be subject to the accuracy of the representations and warranties on
the part of the Company contained herein as of the Execution Time, on the
Effective Date, when any supplement to the Prospectus is filed with the
Commission and as of each Closing Date, to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions hereof at each such
time or date, to the performance by the Company of its obligations hereunder and
to the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement,
shall have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) That, at the Execution Time, each Agent shall be furnished with
the following opinions, dated the date thereof, with such changes therein
as may be agreed upon by the Company and the Agents with the approval of
Dewey Ballantine LLP, counsel to the Agents:
(1) Opinion of Simpson Thacher & Bartlett, of New York, New
York, counsel to the Company, substantially in the form heretofore
made available to the Agents;
(2) Opinion of Dewey Ballantine LLP, of New York, New York,
counsel to the Agents, substantially in the form heretofore made
available to the Agents;
(3) Opinion of an attorney employed by American Electric Power
Service Corporation, substantially in the form heretofore made
available to the Agents.
(c) The Company shall have furnished to each Agent a certificate of
the Company, signed by a Vice President, Treasurer or Assistant Treasurer
of the Company, dated the Execution Time, to the effect that the signer of
such certificate has carefully examined the Registration Statement, the
Prospectus, any supplement to the Prospectus and this Agreement and that:
(1) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the date hereof with the same effect as if made on the date hereof
and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied as a
condition to the obligation of the Agents to solicit offers to
purchase the Notes;
(2) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(3) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus, there has
been no material adverse change in the condition (financial or
other), earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated
in the Prospectus.
(d) That the Agents shall have received a letter from Deloitte &
Touche LLP in form and substance satisfactory to them, dated as of the
Execution Time, (i) confirming that they are independent public
accountants within the meaning of the Act and the applicable published
rules and regulations of the Commission thereunder; (ii) stating that in
their opinion the financial statements audited by them and included or
incorporated by reference in the Registration Statement complied as to
form in all material respects with the then applicable accounting
requirements of the Commission, including applicable published rules and
regulations of the Commission and (iii) covering as of a date not more
than five business days prior to the date of such letter such other
matters as the Agents reasonably request.
(e) Prior to the Execution Time, the Company shall have furnished to
each Agent such further information, documents, certificates and opinions
of counsel as the Agents may reasonably request.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to such Agents and counsel for the Agents, this Agreement and all
obligations of any Agent hereunder may be canceled at any time by the Agents
without any liability whatsoever. Notice of such cancellation shall be given to
the Company in writing or by telephone or telex or facsimile transmission
confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the offices of American Electric Power Service Corporation, 1
Riverside Plaza, Columbus, Ohio 43215 on the date hereof.
6. Conditions to the Obligations of the Purchaser. The obligations of
the Purchaser to purchase any Notes will be subject to the accuracy of the
representations and warranties on the part of the Company herein as of the date
of any related Terms Agreement and as of the Closing Date for such Notes, to the
performance and observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed and to the following
additional conditions precedent:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement,
shall have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) If specified by any related Terms Agreement and except to the
extent modified by such Terms Agreement, the Purchaser shall have
received, appropriately updated, (i) a certificate of the Company, dated
as of the Closing Date, to the effect set forth in Section 5(c) (except
that references to the Prospectus shall be to the Prospectus as
supplemented at the time of execution of the Terms Agreement); (ii) the
opinion of counsel for the Company (which may be either Simpson Thacher &
Bartlett or an attorney employed by American Electric Power Service
Corporation, an affiliate of the Company), dated as of the Closing Date,
substantially in the form delivered pursuant to Section 5(b)(1) hereof;
(iii) the opinion of Dewey Ballantine LLP, counsel for the Agents, dated
as of the Closing Date, substantially in the form delivered pursuant to
Section 5(b)(2) hereof; (iv) the opinion of an attorney employed by
American Electric Power Service Corporation, dated as of the Closing Date,
substantially in the form delivered pursuant to Section 5(b)(3) hereof;
and (v) the letter of Deloitte & Touche LLP, independent accountants for
the Company, dated as of the Closing Date, substantially in the form
delivered pursuant to Section 5(d) hereof.
(c) Prior to the Closing Date, the Company shall have furnished to
the Purchaser such further information, certificates and documents as the
Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement
and any Terms Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement or such Terms Agreement shall not be in all
material respects reasonably satisfactory in form and substance to the Purchaser
and its counsel, such Terms Agreement and all obligations of the Purchaser
thereunder and with respect to the Notes subject thereto may be canceled at, or
at any time prior to, the respective Closing Date by the Purchaser without any
liability whatsoever. Notice of such cancellation shall be given to the Company
in writing or by telephone or telex or facsimile transmission confirmed in
writing.
7. Right of Person Who Agreed to Purchase to Refuse to Purchase. The
Company agrees that any person who has agreed to purchase and pay for any Note,
including a Purchaser and any person who purchases pursuant to a solicitation by
any of the Agents, shall have the right to refuse to purchase such Note if (a)
at the Closing Date therefor, any condition set forth in Section 5 or 6, as
applicable, shall not be satisfied or (b) subsequent to the agreement to
purchase such Note, there shall have been any decrease in the ratings of any of
the Company's debt securities by Moody's Investors Service, Inc. ("Moody's") or
Standard & Poor's Ratings Group ("S&P") or either Moody's or S&P shall publicly
announce that it has any of such debt securities under consideration for
possible downgrade. Notwithstanding the foregoing, no Agent shall have any
obligation to exercise its judgment on behalf of any purchaser.
8. Indemnification.
(a) The Company agrees, to the extent permitted by law, to indemnify
and hold you harmless and each person, if any, who controls you within the
meaning of Section 15 of the Act, against any and all losses, claims,
damages or liabilities, joint or several, to which you, they or any of you
or them may become subject under the Act or otherwise, and to reimburse
you and such controlling person or persons, if any, for any legal or other
expenses incurred by you or them in connection with defending any action,
insofar as such losses, claims, damages, liabilities or actions arise out
of or are based upon any alleged untrue statement or untrue statement of a
material fact contained in the Registration Statement, or in the
Prospectus, or if the Company shall furnish or cause to be furnished to
you any amendments or any supplemental information, in the Prospectus as
so amended or supplemented other than amendments or supplements relating
solely to securities other than the Notes (provided that if such
Prospectus or such Prospectus, as amended or supplemented, is used after
the period of time referred to in Section 4(b) hereof, it shall contain
such amendments or supplements as the Company deems necessary to comply
with Section 10(a) of the Act), or arise out of or are based upon any
alleged omission or omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any such alleged untrue statement
or omission, or untrue statement or omission which was made in such
Registration Statement or in the Prospectus, or in the Prospectus as so
amended or supplemented, in reliance upon and in conformity with
information furnished in writing to the Company by or through you
expressly for use therein or with any statements in or omissions from that
part of the Registration Statement that shall constitute the Statement of
Eligibility under the Trust Indenture Act, of any indenture trustee under
an indenture of the Company, and except that this indemnity shall not
inure to your benefit (or of any person controlling you) on account of any
losses, claims, damages, liabilities or actions arising from the sale of
the Notes to any person if such loss arises from the fact that a copy of
the Prospectus, as the same may then be supplemented or amended to the
extent such Prospectus was provided to you by the Company (excluding,
however, any document then incorporated or deemed incorporated therein by
reference), was not sent or given by you to such person with or prior to
the written confirmation of the sale involved and the alleged omission or
alleged untrue statement or omission or untrue statement was corrected in
the Prospectus as supplemented or amended at the time of such
confirmation, and such Prospectus, as amended or supplemented, was timely
delivered to you by the Company. You agree promptly after the receipt by
you of written notice of the commencement of any action in respect to
which indemnity from the Company on account of its agreement contained in
this Section 8(a) may be sought by you, or by any person controlling you,
to notify the Company in writing of the commencement thereof, but your
omission so to notify the Company of any such action shall not release the
Company from any liability which it may have to you or to such controlling
person otherwise than on account of the indemnity agreement contained in
this Section 8(a). In case any such action shall be brought against you or
any such person controlling you and you shall notify the Company of the
commencement thereof, as above provided, the Company shall be entitled to
participate in, and, to the extent that it shall wish, including the
selection of counsel (such counsel to be reasonably acceptable to the
indemnified party), to direct the defense thereof at its own expense. In
case the Company elects to direct such defense and select such counsel
(hereinafter, "Company's counsel"), you or any controlling person shall
have the right to employ your own counsel, but, in any such case, the fees
and expenses of such counsel shall be at your expense unless (i) the
Company has agreed in writing to pay such fees and expenses or (ii) the
named parties to any such action (including any impleaded parties) include
both you or any controlling person and the Company and you or any
controlling person shall have been advised by your counsel that a conflict
of interest between the Company and you or any controlling person may
arise (and the Company's counsel shall have concurred in good faith with
such advice) and for this reason it is not desirable for the Company's
counsel to represent both the indemnifying party and the indemnified party
(it being understood, however, that the Company shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys for you or any
controlling person (plus any local counsel retained by you or any
controlling person in their reasonable judgment), which firm (or firms)
shall be designated in writing by you or any controlling person). No
indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification could be sought
under this Section 8 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified
party. In no event shall any indemnifying party have any liability or
responsibility in respect of the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or threatened
action or claim effected without its prior written consent.
(b) Each of you agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signs the Registration
Statement and each person who controls the Company within the meaning of
Section 15 of the Act, to the same extent as the foregoing indemnity from
the Company to you, but only with reference to written information
relating to such of you furnished to the Company by such of you
specifically for use in the preparation of the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to
any liability which you may otherwise have. The Company agrees promptly
after the receipt by it of written notice of the commencement of any
action in respect to which indemnity from you on account of your agreement
contained in this Section 8(b) may be sought by the Company, or by any
person controlling the Company, to notify you in writing of the
commencement thereof, but the Company's omission so to notify you of any
such action shall not release you from any liability which you may have to
the Company or to such controlling person otherwise than on account of the
indemnity agreement contained in this Section 8(b).
9. Termination.
(a) This Agreement will continue in effect until terminated as
provided in this Section 9. This Agreement may be terminated by either the
Company as to any of you or by any of you insofar as this Agreement
relates to such of you, by giving written notice of such termination to
such of you or the Company, as the case may be. This Agreement shall so
terminate at the close of business on the first business day following the
receipt of such notice by the party to whom such notice is given. In the
event of such termination, no party shall have any liability to the other
party hereto, except as provided in the fifth paragraph of Section 2(a),
Section 4(h), Section 8 and Section 10. The provisions of this Agreement
(including without limitation Section 7 hereof) applicable to any purchase
of a Note for which an agreement to purchase exists prior to the
termination hereof shall survive any termination of this Agreement. If, at
the time of any such termination, (i) any Purchaser shall own any Notes
purchased pursuant to a Terms Agreement with the intention of reselling
them or (ii) an offer to purchase any of the Notes has been accepted by
the Company but the time of delivery to the purchaser or its agent of such
Notes has not occurred, the covenants set forth in Sections 4 and 6 hereof
shall remain in effect for such period of time (not exceeding nine months)
until such Notes are so resold or delivered, as the case may be.
(b) Each Terms Agreement shall be subject to termination if, in the
Purchaser's reasonable judgment, the Purchaser's ability to market the
Notes shall have been materially adversely affected because: (i) trading
in securities on the New York Stock Exchange shall have been generally
suspended by the Commission or by the New York Stock Exchange; (ii) a
general banking moratorium shall have been declared by Federal or New York
state authorities; (iii) there shall have been a decrease in the ratings
of any of the Company's debt securities by Moody's or S&P or either
Moody's or S&P shall have publicly announced that it has any of such debt
securities under consideration for possible downgrade; or (iv)(A) a war
involving the United States of America shall have been declared, (B) any
other national calamity shall have occurred, or (C) any conflict involving
the armed forces of the United States of America shall have commenced or
escalated.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of you set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of you or the Company or any of the officers, directors or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Notes. The provisions of the fifth paragraph of Section
2(a) and Sections 4(h) and 8 hereof shall survive the termination or
cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to any of you, will be delivered or sent
by mail, telex or facsimile transmission to such of you, at the address
specified in Schedule I hereto; or, if sent to the Company, will be delivered or
sent by mail, telex or facsimile transmission to it at 1 Riverside Plaza,
Columbus, Ohio 43215, attention of A. A. Pena, Treasurer.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed
by and construed in accordance with the laws of the State of New
York.
14. Execution of Counterparts. This Agreement may be executed in
several counterparts, each of which shall be regarded as an original and all of
which shall constitute one and the same document.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and you.
Very truly yours,
INDIANA MICHIGAN POWER COMPANY
By:___________________________
A. A. Pena
Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date hereof.
By:___________________________
Its:__________________________
By:___________________________
Its:__________________________
SCHEDULE I
Commissions:
The Company agrees to pay each Agent a commission equal to the following
percentage of the principal amount of each Note sold on an agency basis by such
Agent:
Term Commission Rate
From 9 months to less than 1 year
From 1 year to less than 18 months
From 18 months to less than 2 years
From 2 years to less than 3 years
From 3 years to less than 4 years
From 4 years to less than 5 years
From 5 years to less than 6 years
From 6 years to less than 7 years
From 7 years to less than 10 years
From 10 years to less than 15 years
From 15 years to less than 20 years
From 20 years up to and including 42 years
Unless otherwise specified in the applicable Terms Agreement, the discount
or commission payable to a Purchaser shall be determined on the basis of the
commission schedule set forth above.
Address for Notice to you:
Notices to __________________________________ shall be directed
to it at ________________________________, Attention:
____________________, telephone: ___/___-____, telecopy: ___/___-____.
Notices to __________________________________ shall be directed
to it at ________________________________, Attention:
____________________, telephone: ___/___-____, telecopy: ___/___-____.
EXHIBIT 1(b)
INDIANA MICHIGAN POWER COMPANY
Underwriting Agreement
Dated ____________________
AGREEMENT made between INDIANA MICHIGAN POWER COMPANY, a corporation
organized and existing under the laws of the State of Indiana (the "Company"),
and the several persons, firms and corporations (the "Underwriters") named in
Exhibit 1 hereto.
WITNESSETH:
WHEREAS, the Company proposes to issue and sell $__________ principal
amount of its [Debt Securities] to be issued pursuant to the Indenture dated as
of _______________, 1998, between the Company and The Bank of New York, as
trustee (the "Trustee"), as heretofore supplemented and amended and as to be
further supplemented and amended (said Indenture as so supplemented being
hereafter referred to as the Indenture); and
WHEREAS, the Underwriters have designated the person signing this
Agreement (the Representative) to execute this Agreement on behalf of the
respective Underwriters and to act for the respective Underwriters in the manner
provided in this Agreement; and
WHEREAS, the Company has prepared and filed, in accordance with the
provisions of the Securities Act of 1933 (the Act), with the Securities and
Exchange Commission (the Commission), a registration statement and prospectus or
prospectuses relating to the [Debt Securities] and such registration statement
has become effective; and
WHEREAS, such registration statement, as it may have been amended to the
date hereof, including the financial statements, the documents incorporated or
deemed incorporated therein by reference and the exhibits, being herein called
the Registration Statement, and the prospectus, as included or referred to in
the Registration Statement to become effective, as it may be last amended or
supplemented prior to the effectiveness of the agreement (the Basic Prospectus),
and the Basic Prospectus, as supplemented by a prospectus supplement which
includes certain information relating to the Underwriters, the principal amount,
price and terms of offering, the interest rate and redemption prices of the
[Debt Securities], first filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) of the Commission's General Rules and Regulations under
the Act (the Rules), including all documents then incorporated or deemed to have
been incorporated therein by reference, being herein call the Prospectus.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, it is agreed between the parties as follows:
I. Purchase and Sale: Upon the basis of the warranties and representations
and on the terms and subject to the conditions herein set forth, the Company
agrees to sell to the respective Underwriters named in Exhibit 1 hereto,
severally and not jointly, and the respective Underwriters, severally and not
jointly, agree to purchase from the Company, the respective principal amounts of
the [Debt Securities] set opposite their names in Exhibit 1 hereto, together
aggregating all of the [Debt Securities], at a price equal to ______% of the
principal amount thereof.
2. Payment and Delivery: Payment for the [Debt Securities] shall be made
to the Company or its order by certified or bank check or checks, payable in New
York Clearing House funds, at the office of Simpson Thacher & Bartlett, 425
Lexington Avenue, New York, New York 10017-3909, or at such other place as the
Company and the Representative shall mutually agree in writing, upon the
delivery of the [Debt Securities] to the Representative for the respective
accounts of the Underwriters against receipt therefor signed by the
Representative on behalf of itself and for the other Underwriters. Such payments
and delivery shall be made at 10:00 A.M., New York Time, on _______________ (or
on such later business day, not more than five business days subsequent to such
day, as may be mutually agreed upon by the Company and the Underwriters), unless
postponed in accordance with the provisions of Section 7 hereof. The time at
which payment and delivery are to be made is herein called the Time of Purchase.
[The delivery of the [Debt Securities] shall be made in fully registered
form, registered in the name of CEDE & CO., to the offices of The Depository
Trust Company in New York, New York and the Underwriters shall accept such
delivery.]
3. Conditions of Underwriters' Obligations: The several obligations of the
Underwriters hereunder are subject to the accuracy of the warranties and
representations on the part of the Company on the date hereof and at the Time of
Purchase and to the following other conditions:
(a) That all legal proceedings to be taken and all legal opinions to
be rendered in connection with the issue and sale of the [Debt
Securities] shall be satisfactory in form and substance to Dewey
Ballantine LLP, counsel to the Underwriters.
(b) That, at the Time of Purchase, the Representative
shall be furnished with the following opinions,
dated the day of the Time of Purchase, with
conformed copies or signed counterparts thereof
for the other Underwriters, with such changes
therein as may be agreed upon by the Company and
the Representative with the approval of Dewey
Ballantine LLP, counsel to the Underwriters:
(1) Opinion of Simpson Thacher & Bartlett and any
of John F. Di Lorenzo, Jr., Esq., Thomas G.
Berkemeyer, Esq., Ann B. Graf, Esq., or David
C. House, Esq., counsel to the Company,
substantially in the forms attached hereto as
Exhibits A and B; and
(2) Opinion of Dewey Ballantine LLP, counsel to the
Underwriters, substantially in the form attached hereto as
Exhibit C.
(c) That the Representative shall have received a
letter from Deloitte & Touche LLP in form and
substance satisfactory to the Representative,
dated as of the day of the Time of Purchase, (i)
confirming that they are independent public
accountants within the meaning of the Act and the
applicable published rules and regulations of the
Commission thereunder, (ii) stating that in their
opinion the financial statements audited by them
and included or incorporated by reference in the
Registration Statement complied as to form in all
material respects with the then applicable
accounting requirements of the Commission,
including the applicable published rules and
regulations of the Commission and (iii) covering
as of a date not more than five business days
prior to the day of the Time of Purchase such
other matters as the Representative reasonably
requests.
(d) That no amendment to the Registration Statement
and that no prospectus or prospectus supplement of
the Company relating to the [Debt Securities] and
no document which would be deemed incorporated in
the Prospectus by reference filed subsequent to
the date hereof and prior to the Time of Purchase
shall contain material information substantially
different from that contained in the Registration
Statement which is unsatisfactory in substance to
the Representative or unsatisfactory in form to
Dewey Ballantine LLP, counsel to the Underwriters.
(e) That, at the Time of Purchase, an appropriate
order of The Public Utilities Commission of Ohio,
necessary to permit the sale of the [Debt
Securities] to the Underwriters, shall be in
effect; and that, prior to the Time of Purchase,
no stop order with respect to the effectiveness of
the Registration Statement shall have been issued
under the Act by the Commission or proceedings
therefor initiated.
(f) That, at the Time of Purchase, there shall not
have been any material adverse change in the
business, properties or financial condition of the
Company from that set forth in the Prospectus
(other than changes referred to in or contemplated
by the Prospectus), and that the Company shall, at
the Time of Purchase, have delivered to the
Representative a certificate of an executive
officer of the Company to the effect that, to the
best of his knowledge, information and belief,
there has been no such change.
(g) That the Company shall have performed such of its obligations
under this Agreement as are to be performed at or before the
Time of Purchase by the terms hereof.
4. Certain Covenants of the Company: In further consideration of the
agreements of the Underwriters herein contained, the Company covenants as
follows:
(a) As soon as practicable, and in any event within
the time prescribed by Rule 424 under the Act, to
file any Prospectus Supplement relating to the
[Debt Securities] with the Commission; as soon as
the Company is advised thereof, to advise the
Representative and confirm the advice in writing
of any request made by the Commission for
amendments to the Registration Statement or the
Prospectus or for additional information with
respect thereto or of the entry of a stop order
suspending the effectiveness of the Registration
Statement or of the initiation or threat of any
proceedings for that purpose and, if such a stop
order should be entered by the Commission, to make
every reasonable effort to obtain the prompt
lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as
soon as practicable (and in any event within 24
hours after the date hereof), and from time to
time thereafter during such period of time (not
exceeding nine months) after the date hereof as
they are required by law to deliver a prospectus,
as many copies of the Prospectus (as supplemented
or amended if the Company shall have made any
supplements or amendments thereto) as the
Representative may reasonably request; and in case
any Underwriter is required to deliver a
prospectus after the expiration of nine months
after the date hereof, to furnish to any
Underwriter, upon request, at the expense of such
Underwriter, a reasonable quantity of a
supplemental prospectus or of supplements to the
Prospectus complying with Section 10(a)(3) of the
Act.
(c) To furnish to the Representative a copy, certified
by the Secretary or an Assistant Secretary of the
Company, of the Registration Statement as
initially filed with the Commission and of all
amendments thereto (exclusive of exhibits), and,
upon request, to furnish to the Representative
sufficient plain copies thereof (exclusive of
exhibits) for distribution of one to the other
Underwriters.
(d) For such period of time (not exceeding nine
months) after the date hereof as they are required
by law to deliver a prospectus, if any event shall
have occurred as a result of which it is necessary
to amend or supplement the Prospectus in order to
make the statements therein, in the light of the
circumstances when the Prospectus is delivered to
a purchaser, not contain any untrue statement of a
material fact or not omit to state any material
fact required to be stated therein or necessary in
order to make the statements therein not
misleading, forthwith to prepare and furnish, at
its own expense, to the Underwriters and to
dealers (whose names and addresses are furnished
to the Company by the Representative) to whom
principal amounts of the [Debt Securities] may
have been sold by the Representative for the
accounts of the Underwriters and, upon request, to
any other dealers making such request, copies of
such amendments to the Prospectus or supplements
to the Prospectus.
(e) As soon as practicable, the Company will make generally
available to its security holders and to the Underwriters an
earnings statement or statement of the Company and its
subsidiaries which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the [Debt
Securities] for offer and sale under the
securities or "blue sky" laws of such
jurisdictions as the Representative may designate
within six months after the date hereof and itself
to pay, or to reimburse the Underwriters and their
counsel for, reasonable filing fees and expenses
in connection therewith in an amount not exceeding
$3,500 in the aggregate (including filing fees and
expenses paid and incurred prior to the effective
date hereof), provided, however, that the Company
shall not be required to qualify as a foreign
corporation or to file a consent to service of
process or to file annual reports or to comply
with any other requirements deemed by the Company
to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than
transfer taxes on resales of the [Debt Securities]
by the respective Underwriters) in connection with
the issuance and delivery of the [Debt
Securities], except that the Company shall be
required to pay the fees and disbursements (other
than disbursements referred to in paragraph (f) of
this Section 4) of Dewey Ballantine LLP, counsel
to the Underwriters, only in the events provided
in paragraph (h) of this Section 4, the
Underwriters hereby agreeing to pay such fees and
disbursements in any other event.
(h) If the Underwriters shall not take up and pay for
the [Debt Securities] due to the failure of the
Company to comply with any of the conditions
specified in Section 3 hereof, or, if this
Agreement shall be terminated in accordance with
the provisions of Section 7 or 8 hereof, to pay
the fees and disbursements of Dewey Ballantine
LLP, counsel to the Underwriters, and, if the
Underwriters shall not take up and pay for the
[Debt Securities] due to the failure of the
Company to comply with any of the conditions
specified in Section 3 hereof, to reimburse the
Underwriters for their reasonable out-of-pocket
expenses, in an aggregate amount not exceeding a
total of $10,000, incurred in connection with the
financing contemplated by this Agreement.
(i) The Company will timely file any certificate required by Rule 52
under the Public Utility Holding Company Act of 1935 in
connection with the sale of the [Debt Securities].
[(j) The Company will use its best efforts to list, subject to notice
of issuance, the [Debt Securities] on the New York Stock
Exchange.]
[(k) During the period from the date hereof and continuing to and
including the earlier of (i) the date which is after the Time of
Purchase on which the distribution of the [Debt Securities]
ceases, as determined by the Representative in its sole
discretion, and (ii) the date which is 30 days after the Time of
Purchase, the Company agrees not to offer, sell, contract to
sell or otherwise dispose of any [Debt Securities] of the
Company or any substantially similar securities of the Company
without the consent of the Representative.]
5. Warranties of and Indemnity by the Company: The Company represents and
warrants to, and agrees with you, as set forth below:
(a) the Registration Statement on its effective date
complied, or was deemed to comply, with the
applicable provisions of the Act and the rules and
regulations of the Commission and the Registration
Statement at its effective date did not, and at
the Time of Purchase will not, contain any untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, and the Basic Prospectus at the time
that the Registration Statement became effective,
and the Prospectus when first filed in accordance
with Rule 424(b) complies, and at the Time of
Purchase the Prospectus will comply, with the
applicable provisions of the Act and the Trust
Indenture Act of 1939, as amended, and the rules
and regulations of the Commission, the Basic
Prospectus at the time that the Registration
Statement became effective, and the Prospectus
when first filed in accordance with Rule 424(b)
did not, and the Prospectus at the Time of
Purchase will not, contain any untrue statement of
a material fact or omit to state a material fact
required to be stated therein or necessary to make
the statements therein, in the light of the
circumstances under which they were made, not
misleading, except that the Company makes no
warranty or representation to the Underwriters
with respect to any statements or omissions made
in the Registration Statement or Prospectus in
reliance upon and in conformity with information
furnished in writing to the Company by, or through
the Representative on behalf of, any Underwriter
expressly for use in the Registration Statement,
the Basic Prospectus or Prospectus, or to any
statements in or omissions from that part of the
Registration Statement that shall constitute the
Statement of Eligibility under the Trust Indenture
Act of 1939 of any indenture trustee under an
indenture of the Company.
(b) As of the Time of Purchase, the Indenture will
have been duly authorized by the Company and duly
qualified under the Trust Indenture Act of 1939,
as amended, and, when executed and delivered by
the Trustee and the Company, will constitute a
legal, valid and binding instrument enforceable
against the Company in accordance with its terms
and such [Debt Securities] will have been duly
authorized, executed, authenticated and, when paid
for by the purchasers thereof, will constitute
legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture,
except as the enforceability thereof may be
limited by bankruptcy, insolvency, or other
similar laws affecting the enforcement of
creditors' rights in general, and except as the
availability of the remedy of specific performance
is subject to general principles of equity
(regardless of whether such remedy is sought in a
proceeding in equity or at law), and by an implied
covenant of good faith and fair dealing.
(c) To the extent permitted by law, to indemnify and
hold you harmless and each person, if any, who
controls you within the meaning of Section 15 of
the Act, against any and all losses, claims,
damages or liabilities, joint or several, to which
you, they or any of you or them may become subject
under the Act or otherwise, and to reimburse you
and such controlling person or persons, if any,
for any legal or other expenses incurred by you or
them in connection with defending any action,
insofar as such losses, claims, damages,
liabilities or actions arise out of or are based
upon any alleged untrue statement or untrue
statement of a material fact contained in the
Registration Statement, in the Basic Prospectus,
or in the Prospectus, or if the Company shall
furnish or cause to be furnished to you any
amendments or any supplemental information, in the
Prospectus as so amended or supplemented other
than amendments or supplements relating solely to
securities other than the Notes (provided that if
such Prospectus or such Prospectus, as amended or
supplemented, is used after the period of time
referred to in Section 4(b) hereof, it shall
contain such amendments or supplements as the
Company deems necessary to comply with Section
10(a) of the Act), or arise out of or are based
upon any alleged omission or omission to state
therein a material fact required to be stated
therein or necessary to make the statements
therein not misleading, except insofar as such
losses, claims, damages, liabilities or actions
arise out of or are based upon any such alleged
untrue statement or omission, or untrue statement
or omission which was made in the Registration
Statement, in the Basic Prospectus or in the
Prospectus, or in the Prospectus as so amended or
supplemented, in reliance upon and in conformity
with information furnished in writing to the
Company by or through you expressly for use
therein or with any statements in or omissions
from that part of the Registration Statement that
shall constitute the Statement of Eligibility
under the Trust Indenture Act, of any indenture
trustee under an indenture of the Company, and
except that this indemnity shall not inure to your
benefit (or of any person controlling you) on
account of any losses, claims, damages,
liabilities or actions arising from the sale of
the Notes to any person if such loss arises from
the fact that a copy of the Prospectus, as the
same may then be supplemented or amended to the
extent such Prospectus was provided to you by the
Company (excluding, however, any document then
incorporated or deemed incorporated therein by
reference), was not sent or given by you to such
person with or prior to the written confirmation
of the sale involved and the alleged omission or
alleged untrue statement or omission or untrue
statement was corrected in the Prospectus as
supplemented or amended at the time of such
confirmation, and such Prospectus, as amended or
supplemented, was timely delivered to you by the
Company. You agree promptly after the receipt by
you of written notice of the commencement of any
action in respect to which indemnity from the
Company on account of its agreement contained in
this Section 5(c) may be sought by you, or by any
person controlling you, to notify the Company in
writing of the commencement thereof, but your
omission so to notify the Company of any such
action shall not release the Company from any
liability which it may have to you or to such
controlling person otherwise than on account of
the indemnity agreement contained in this Section
8(a). In case any such action shall be brought
against you or any such person controlling you and
you shall notify the Company of the commencement
thereof, as above provided, the Company shall be
entitled to participate in, and, to the extent
that it shall wish, including the selection of
counsel (such counsel to be reasonably acceptable
to the indemnified party), to direct the defense
thereof at its own expense. In case the Company
elects to direct such defense and select such
counsel (hereinafter, "Company's counsel"), you or
any controlling person shall have the right to
employ your own counsel, but, in any such case,
the fees and expenses of such counsel shall be at
your expense unless (i) the Company has agreed in
writing to pay such fees and expenses or (ii) the
named parties to any such action (including any
impleaded parties) include both you or any
controlling person and the Company and you or any
controlling person shall have been advised by your
counsel that a conflict of interest between the
Company and you or any controlling person may
arise (and the Company's counsel shall have
concurred in good faith with such advice) and for
this reason it is not desirable for the Company's
counsel to represent both the indemnifying party
and the indemnified party (it being understood,
however, that the Company shall not, in connection
with any one such action or separate but
substantially similar or related actions in the
same jurisdiction arising out of the same general
allegations or circumstances, be liable for the
reasonable fees and expenses of more than one
separate firm of attorneys for you or any
controlling person (plus any local counsel
retained by you or any controlling person in their
reasonable judgment), which firm (or firms) shall
be designated in writing by you or any controlling
person). No indemnifying party shall, without the
prior written consent of the indemnified parties,
settle or compromise or consent to the entry of
any judgment with respect to any litigation, or
any investigation or proceeding by any
governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of
which indemnification could be sought under this
Section 5 (whether or not the indemnified parties
are actual or potential parties thereto), unless
such settlement, compromise or consent (i)
includes an unconditional release of each
indemnified party from all liability arising out
of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
In no event shall any indemnifying party have any
liability or responsibility in respect of the
settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending
or threatened action or claim effected without its
prior written consent.
(d) The documents incorporated by reference in the
Registration Statement or Prospectus, when they
were filed with the Commission, complied in all
material respects with the applicable provisions
of the 1934 Act and the rules and regulations of
the Commission thereunder, and as of such time of
filing, when read together with the Prospectus,
none of such documents contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or
necessary to make the statements therein, in the
light of the circumstances under which they were
made, not misleading.
(e) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as
otherwise stated therein, there has been no material adverse
change in the business, properties or financial condition of the
Company.
(f) This Agreement has been duly authorized, executed and delivered
by the Company.
(g) The consummation by the Company of the
transactions contemplated herein will not conflict
with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or
result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets
of the Company under any contract, indenture,
mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company is a
party or by which it may be bound or to which any
of its properties may be subject (except for
conflicts, breaches or defaults which would not,
individually or in the aggregate, be materially
adverse to the Company or materially adverse to
the transactions contemplated by this Agreement.)
(h) No authorization, approval, consent or order of
any court or governmental authority or agency is
necessary in connection with the issuance and sale
by the Company of the Notes or the transactions by
the Company contemplated in this Agreement, except
(A) such as may be required under the 1933 Act or
the rules and regulations thereunder; (B) such as
may be required under the Public Utility Holding
Company Act of 1935, as amended (the "1935 Act");
(C) the qualification of the Indenture under the
1939 Act; (D) the approval of The Indiana Utility
Regulatory Commission; and (E) such consents,
approvals, authorizations, registrations or
qualifications as may be required under state
securities or Blue Sky laws.
The Company's indemnity agreement contained in Section 5(c) hereof, and
its covenants, warranties and representations contained in this Agreement, shall
remain in full force and effect regardless of any investigation made by or on
behalf of any person, and shall survive the delivery of and payment for the
[Debt Securities] hereunder.
6. Warranties of and Indemnity by Underwriters:
(a) Each Underwriter warrants and represents that the information
furnished in writing to the Company through the Representative
for use in the Registration Statement, in the Basic Prospectus,
in the Prospectus, or in the Prospectus as amended or
supplemented is correct as to such Underwriter.
(b) Each Underwriter agrees, to the extent permitted
by law, to indemnify, hold harmless and reimburse
the Company, its directors and such of its
officers as shall have signed the Registration
Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of
the Act, to the same extent and upon the same
terms as the indemnity agreement of the Company
set forth in Section 5(c) hereof, but only with
respect to untrue statements or alleged untrue
statements or omissions or alleged omissions made
in the Registration Statement, or in the Basic
Prospectus, or in the Prospectus, or in the
Prospectus as so amended or supplemented, in
reliance upon and in conformity with information
furnished in writing to the Company by the
Representative on behalf of such Underwriter
expressly for use therein. The Company agrees
promptly after the receipt by it of written notice
of the commencement of any action in respect to
which indemnity from you on account of your
agreement contained in this Section 6(b) may be
sought by the Company, or by any person
controlling the Company, to notify you in writing
of the commencement thereof, but the Company's
omission so to notify you of any such action shall
not release you from any liability which you may
have to the Company or to such controlling person
otherwise than on account of the indemnity
agreement contained in this Section 6(b).
The indemnity agreement on the part of each Underwriter contained in
Section 6(b) hereof, and the warranties and representations of such Underwriter
contained in this Agreement, shall remain in full force and effect regardless of
any investigation made by or on behalf of the Company or other person, and shall
survive the delivery of and payment for the [Debt Securities] hereunder.
7. Default of Underwriters: If any Underwriter under this Agreement shall
fail or refuse (otherwise than for some reason sufficient to justify, in
accordance with the terms hereof, the cancellation or termination of its
obligations hereunder) to purchase and pay for the principal amount of [Debt
Securities] which it has agreed to purchase and pay for hereunder, and the
aggregate principal amount of [Debt Securities] which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate principal amount of the [Debt Securities], the
other Underwriters shall be obligated severally in the proportions which the
amounts of [Debt Securities] set forth opposite their names in Exhibit 1 hereto
bear to the aggregate principal amount of [Debt Securities] set forth opposite
the names of all such non-defaulting Underwriters, to purchase the [Debt
Securities] which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on the terms set forth herein; provided that in no event
shall the principal amount of [Debt Securities] which any Underwriter has agreed
to purchase pursuant to Section 1 hereof be increased pursuant to this Section 7
by an amount in excess of one-ninth of such principal amount of [Debt
Securities] without the written consent of such Underwriter. If any Underwriter
or Underwriters shall fail or refuse to purchase [Debt Securities] and the
aggregate principal amount of [Debt Securities] with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of the
[Debt Securities] then this Agreement shall terminate without liability on the
part of any defaulting Underwriter; provided, however, that the non-defaulting
Underwriters may agree, in their sole discretion, to purchase the [Debt
Securities] which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on the terms set forth herein. In the event the Company
shall be entitled to but shall not elect (within the time period specified
above) to exercise its rights under clause (a) and/or (b), then this Agreement
shall terminate. In the event of any such termination, the Company shall not be
under any liability to any Underwriter (except to the extent, if any, provided
in Section 4(h) hereof), nor shall any Underwriter (other than an Underwriter
who shall have failed or refused to purchase the [Debt Securities] without some
reason sufficient to justify, in accordance with the terms hereof, its
termination of its obligations hereunder) be under any liability to the Company
or any other Underwriter.
Nothing herein contained shall release any defaulting Underwriter from its
liability to the Company or any non-defaulting Underwriter for damages
occasioned by its default hereunder.
8. Termination of Agreement by the Underwriters: This Agreement may be
terminated at any time prior to the Time of Purchase by the Representative if,
after the execution and delivery of this Agreement and prior to the Time of
Purchase, in the Representative's reasonable judgment, the Underwriters' ability
to market the [Debt Securities] shall have been materially adversely affected
because:
(i) trading in securities on the New York Stock Exchange shall have
been generally suspended by the Commission or by the New York Stock
Exchange, or
(ii) (A) a war involving the United States of America shall have been
declared, (B) any other national calamity shall have occurred, or (C) any
conflict involving the armed services of the United States of America
shall have escalated, or
(iii) a general banking moratorium shall have been declared by
Federal or New York State authorities, or
(iv) there shall have been any decrease in the ratings of the
Company's first mortgage bonds by Moody's Investors Services, Inc.
(Moody's) or Standard & Poor's Ratings Group (S&P) or either Moody's or
S&P shall publicly announce that it has such first mortgage bonds under
consideration for possible downgrade.
If the Representative elects to terminate this Agreement, as provided
in this Section 8, the Representative will promptly notify the Company by
telephone or by telex or facsimile transmission, confirmed in writing. If this
Agreement shall not be carried out by any Underwriter for any reason permitted
hereunder, or if the sale of the [Debt Securities] to the Underwriters as herein
contemplated shall not be carried out because the Company is not able to comply
with the terms hereof, the Company shall not be under any obligation under this
Agreement and shall not be liable to any Underwriter or to any member of any
selling group for the loss of anticipated profits from the transactions
contemplated by this Agreement (except that the Company shall remain liable to
the extent provided in Section 4(h) hereof) and the Underwriters shall be under
no liability to the Company nor be under any liability under this Agreement to
one another.
9. Notices: All notices hereunder shall, unless otherwise expressly
provided, be in writing and be delivered at or mailed to the following addresses
or by telex or facsimile transmission confirmed in writing to the following
addresses: if to the Underwriters, to
_______________________________________________, as Representative,
_____________________________________________, and, if to the Company, to
Indiana Michigan Power Company, c/o American Electric Power Service Corporation,
1 Riverside Plaza, Columbus, Ohio 43215, attention of A. A. Pena, Treasurer,
(fax 614/223-1687).
10. Parties in Interest: The agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Company (including the
directors thereof and such of the officers thereof as shall have signed the
Registration Statement), the controlling persons, if any, referred to in
Sections 5 and 6 hereof, and their respective successors, assigns, executors and
administrators, and, except as expressly otherwise provided in Section 7 hereof,
no other person shall acquire or have any right under or by the virtue of this
Agreement.
11. Definition of Certain Terms: If there be two or more persons, firms or
corporations named in Exhibit 1 hereto, the term "Underwriters", as used herein,
shall be deemed to mean the several persons, firms or corporations, so named
(including the Representative herein mentioned, if so named) and any party or
parties substituted pursuant to Section 7 hereof, and the term "Representative",
as used herein, shall be deemed to mean the representative or representatives
designated by, or in the manner authorized by, the Underwriters. All obligations
of the Underwriters hereunder are several and not joint. If there shall be only
one person, firm or corporation named in Exhibit 1 hereto, the term
"Underwriters" and the term "Representative", as used herein, shall mean such
person, firm or corporation. The term "successors" as used in this Agreement
shall not include any purchaser, as such purchaser, of any of the [Debt
Securities] from any of the respective Underwriters.
12. Conditions of the Company's Obligations: The obligations of the
Company hereunder are subject to the Underwriters' performance of their
obligations hereunder, and the further condition that at the Time of Purchase
The Public Utilities Commission of Ohio shall have issued an appropriate order,
and such order shall remain in full force and effect, authorizing the
transactions contemplated hereby.
13. Applicable Law: This Agreement will be governed and construed in
accordance with the laws of the State of New York.
14. Execution of Counterparts: This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, on the date
first above written.
INDIANA MICHIGAN POWER COMPANY
By:____________________________
A. A. Pena
Treasurer
- -------------------------------
as Representative
and on behalf of the Underwriters
named in Exhibit 1 hereto
By:____________________________
EXHIBIT 1
Name Principal Amount
Exhibit 4(a)
INDIANA MICHIGAN POWER COMPANY
AND
THE BANK OF NEW YORK,
AS TRUSTEE
INDENTURE
Dated as of __________ 1, 1998
--------------------
CROSS-REFERENCE TABLE
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
310(a)............................................. 7.09
310(b)............................................. 7.08
............................................. 7.10
310(c)............................................. Inapplicable
311(a)............................................. 7.13
311(b)............................................. 7.13
311(c)............................................. Inapplicable
312(a)............................................. 5.01
............................................. 5.02(a)
312(b)............................................. 5.02(c)
............................................. 5.02(d)
312(c)............................................. 5.02(e)
313(a)............................................. 5.04(a)
313(b)............................................. 5.04(b)
313(c)............................................. 5.04(a)
............................................. 5.04(b)
313(d)............................................. 5.04(c)
314(a)............................................. 5.03
314(b)............................................. Inapplicable
314(c)............................................. 13.06(a)
314(d)............................................. Inapplicable
314(e)............................................. 13.06(b)
314(f)............................................. Inapplicable
315(a)............................................. 7.01(a)
............................................. 7.02
315(b)............................................. 6.07
315(c)............................................. 7.01(a)
315(d)............................................. 7.01(b)
315(e)............................................. 6.08
316(a)............................................. 6.06
............................................. 8.04
316(b)............................................. 6.04
316(c)............................................. 8.01
317(a)............................................. 6.02
317(b)............................................. 4.03
318(a)............................................. 13.08
TABLE OF CONTENTS
This Table of Contents does not constitute part of the Indenture and
should not have any bearing upon the interpretation of any of its terms or
provisions
RECITALS:
Purpose of Indenture.......................................1
Compliance with legal requirements.........................1
Purpose of and consideration for Indenture.................1
ARTICLE ONE - DEFINITIONS
Section 1.01
Certain terms defined, other terms defined in the Trust Indenture Act
of 1939, as amended, or by reference therein in the Securities Act of
1933, as amended, to have the meanings assigned therein
Affiliate.............................................2
Authenticating Agent..................................2
Authorized Officer....................................2
Board of Directors....................................3
Board Resolution......................................3
Business Day..........................................3
Certificate...........................................3
Commission............................................3
Company...............................................3
Company Order.........................................3
Corporate Trust Office................................4
Default...............................................4
Depository............................................4
Discount Security.....................................4
Dollar................................................4
Eligible Obligations..................................4
Event of Default......................................4
Global Security.......................................5
Governmental Obligations..............................5
Governmental Authority................................5
Indenture.............................................5
Instructions..........................................6
Interest .............................................6
Interest Payment Date.................................6
Officers' Certificate.................................6
Opinion of Counsel....................................6
Outstanding...........................................6
Periodic Offering.....................................7
Person................................................7
Place of Payment......................................7
Predecessor Security..................................7
Responsible Officer...................................7
Security..............................................8
Securityholder........................................8
Series................................................8
Tranche...............................................8
Trustee...............................................8
Trust Indenture Act...................................8
United States.........................................9
ARTICLE TWO - ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.01
Designation, terms, amount, authentication
and delivery of Securities............................9
Section 2.02
Form of Security and Trustee's certificate...........10
Section 2.03
Date and denominations of Securities,
and provisions for payment of principal,
premium and interest.................................11
Section 2.04
Execution of Securities..............................13
Section 2.05
Exchange of Securities...............................15
(a) Registration and transfer
of Securities...................................15
(b) Security Register; Securities to be accompanied
by proper instruments of transfer...............15
(c) Charges upon exchange, transfer or
registration of Securities......................15
(d) Restrictions on transfer or
exchange at time of redemption..................16
Section 2.06
Temporary Securities.................................16
Section 2.07
Mutilated, destroyed, lost or
stolen Securities....................................16
Section 2.08
Cancellation of surrendered Securities...............17
Section 2.09
Provisions of Indenture and Securities
for sole benefit of parties and
Securityholders......................................18
Section 2.10
Appointment of Authenticating Agent..................18
Section 2.11
Global Security......................................19
(a) Authentication and Delivery;
Legend..........................................19
(b) Transfer of Global Security.....................19
(c) Issuance of Securities in
Definitive Form.................................19
Section 2.12
Payment in Proper Currency...........................20
Section 2.13
Identification of Securities.........................20
ARTICLE THREE - REDEMPTION OF SECURITIES AND
SINKING FUND PROVISIONS
Section 3.01
Redemption of Securities.............................20
Section 3.02
(a) Notice of redemption............................21
(b) Selection of Securities in case
less than all Securities to be
redeemed........................................22
Section 3.03
(a) When Securities called for
redemption become due and payable...............22
(b) Receipt of new Security upon
partial payment.................................23
Section 3.04
Sinking Fund for Securities..........................23
Section 3.05
Satisfaction of Sinking Fund
Payments with Securities.............................23
Section 3.06
Redemption of Securities for
Sinking Fund.........................................23
ARTICLE FOUR - PARTICULAR COVENANTS OF THE COMPANY
Section 4.01
Payment of principal (and premium
if any) and interest on Securities...................24
Section 4.02
Maintenance of office or agency for payment of Securities,
designation of office or agency for payment, registration, transfer
and exchange
of Securities........................................24
Section 4.03
(a) Duties of paying agent..........................25
(b) Company as paying agent.........................25
(c) Holding sums in trust...........................26
Section 4.04
Appointment to fill vacancy in
office of Trustee....................................26
Section 4.05
Restriction on consolidation,
merger or sale.......................................26
Section 4.06
Calculation of Original Issue Discount...............26
ARTICLE FIVE - SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 5.01
Company to furnish Trustee information
as to names and addresses of
Securityholders......................................26
Section 5.02
(a) Trustee to preserve information
as to names and addresses of
Securityholders received by it
in capacity of paying agent.....................27
(b) Trustee may destroy list of
Securityholders on certain
conditions......................................27
(c) Trustee to make information as to
names and addresses of Securityholders
available to "applicants" to mail
communications to Securityholders in
certain circumstances...........................27
(d) Procedure if Trustee elects not to
make information available to
applicants......................................27
(e) Company and Trustee not accountable
for disclosure of information...................28
Section 5.03
(a) Annual and other reports to be filed
by Company with Trustee.........................28
(b) Additional information and reports to be filed with Trustee and
Securities and Exchange Commission..............28
(c) Summaries of information and reports
to be transmitted by Company to
Securityholders.................................29
(d) Annual Certificate to be furnished
to Trustee......................................29
(e) Effect of Delivery to Trustee...................29
Section 5.04
(a) Trustee to transmit annual report
to Securityholders..............................29
(b) Trustee to transmit certain further
reports to Securityholders......................30
(c) Copies of reports to be filed with stock exchanges and
Securities and
Exchange Commission.............................31
ARTICLE SIX - REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.01
(a) Events of default defined.......................31
(b) Acceleration of maturity
upon Event of Default...........................32
(c) Waiver of default and rescission
of declaration of maturity......................33
(d) Restoration of former position
and rights upon curing default..................33
Section 6.02
(a) Covenant of Company to pay to Trustee whole amount due on
Securities on default in payment of interest or principal (and
premium, if any)................................33
(b) Trustee may recover judgment for whole amount due on Securities
on
failure of Company to pay.......................34
(c) Billing of proof of claim by Trustee
in bankruptcy, reorganization or
receivership proceeding.........................34
(d) Rights of action and of asserting claims may be enforced by
Trustee
without possession of Securities................34
Section 6.03
Application of monies collected by Trustee...........35
Section 6.04
Limitation on suits by holders of Securities.........35
Section 6.05
(a) Remedies Cumulative.............................36
(b) Delay or omission in exercise
of rights not waiver of default.................36
Section 6.06
Rights of holders of majority in
principal amount of Securities to
direct trustee and to waive defaults.................37
Section 6.07
Trustees to give notice of defaults
known to it, but may withhold in
certain circumstances................................37
Section 6.08
Requirements of an undertaking to pay
costs in certain suits under Indenture
or against Trustee...................................38
ARTICLE SEVEN - CONCERNING THE TRUSTEE
Section 7.01
(a) Upon Event of Default occurring and
continuing, Trustee shall exercise powers
vested in it, and use same degree of
care and skill in their exercise, as
prudent individual will use.....................38
(b) Trustee not relieved from liability
for negligence or willful misconduct
except as provided in this section..............39
(1) Prior to Event of Default and after the curing of all
Events of Default which may have occurred (i) Trustee not
liable except for
performance of duties specifically
set forth
(ii) In absence of bad faith, Trustee may conclusively rely
on certificates or opinions furnished it
hereunder,subject to duty to examine the same if
specifically required to be furnished to it
(2) Trustee not liable for error of judgment made in good faith
by Responsible Officer unless Trustee negligent
(3) Trustee not liable for action or non-action in accordance
with direction of holders of majority in principal amount
of Securities
(4) Trustee need not expend own funds without adequate
indemnity
Section 7.02
Subject to provisions of Section 7.01:
(a) Trustee may rely on documents believed
genuine and properly signed or presented........40
(b) Sufficient evidence by certain
instruments provided for........................40
(c) Trustee may consult with counsel and act
on advice or Opinion of Counsel.................40
(d) Trustee may require indemnity from
Securityholders.................................40
(e) Trustee not liable for actions in good
faith believed to be authorized.................41
(f) Trustee not bound to investigate facts or
matters stated in certificates, etc. unless
requested in writing by Securityholders.........41
(g) Trustee may perform duties directly or
through agents or attorneys.....................41
(h) Permissive rights of Trustee....................41
Section 7.03
(a) Trustee not liable for recitals in
Indenture or in Securities......................41
(b) No representations by Trustee as to validity or Indenture or of
Securities..........41
(c) Trustee not accountable for use of
Securities or proceeds..........................42
Section 7.04
Trustee, paying agent or Security
Registrar may own Security...........................42
Section 7.05
Monies received by Trustee to be held
in Trust without interest............................42
Section 7.06
(a) Trustee entitled to compensation,
reimbursement and indemnity.....................42
(b) Obligations to Trustee to be
secured by lien prior to
Securities......................................42
(c) Nature of Expenses..............................43
(d) Survival of Obligations.........................43
Section 7.07
Right of Trustee to rely on certificate
of officers of Company where no other
evidence specifically prescribed.....................43
Section 7.08
Trustee acquiring conflicting interest
to eliminate conflict or resign......................43
Section 7.09
Requirements for eligibility of
trustee..............................................43
Section 7.10
(a) Resignation of Trustee and
appointment of successor........................44
(b) Removal of Trustee by Company
or by court on Securityholders'
application.....................................44
(c) Removal of Trustee by holders
of majority in principal amount
of Securities...................................45
(d) Time when resignation or removal
of Trustee effective............................45
(e) One Trustee for each series.....................45
Section 7.11
(a) Acceptance by successor Trustee.................45
(b) Trustee with respect to less than
all series......................................45
(c) Company to confirm Trustee's rights.............46
(d) Successor Trustee to be qualified...............46
(e) Notice of succession............................46
Section 7.12
Successor to Trustee by merger, consolidation
of succession to business............................47
Section 7.13
Limitations on rights of Trustee as a
creditor to obtain payment of certain
claims...............................................47
ARTICLE EIGHT - CONCERNING THE SECURITYHOLDERS
Section 8.01
Evidence of action by Securityholders................47
Section 8.02
Proof of execution of instruments and of
holding of Securities................................48
Section 8.03
Who may be deemed owners of Securities...............48
Section 8.04
Securities owned by Company or controlled
or controlling companies disregarded for
certain purposes.....................................49
Section 8.05
Instruments executed by Securityholders
bind future holders..................................49
ARTICLE NINE - SUPPLEMENTAL INDENTURES
Section 9.01
Purposes for which supplemental indenture
may be entered into without consent of
Securityholders......................................49
Section 9.02
Modification of Indenture with consent
of Securityholders...................................52
Section 9.03
Effect of supplemental indentures....................54
Section 9.04
Securities may bear notation of changes
by supplemental indentures...........................54
Section 9.05
Opinion of Counsel...................................54
ARTICLE TEN - CONSOLIDATION, MERGER AND SALE
Section 10.01
Consolidations or mergers of Company
and sales or conveyances of property
of Company permitted.................................54
Section 10.02
(a) Rights and duties of successor company..........55
(b) Appropriate changes may be made in
phraseology and form of Securities..............56
(c) Company may consolidate or merge into
itself or acquire properties of other
corporations....................................56
Section 10.03
Opinion of Counsel...................................56
ARTICLE ELEVEN - DEFEASANCE AND CONDITIONS TO DEFEASANCE;
UNCLAIMED MONIES
Section 11.01
Defeasance and conditions to defeasance..............56
Section 11.02
Application by Trustee of funds deposited
for payment of Securities............................57
Section 11.03
Repayment of monies held by paying agent.............58
Section 11.04
Repayment of monies held by Trustee..................58
Section 11.05
Delivery of Officer's Certificate
and Opinion of Counsel...............................58
ARTICLE TWELVE - IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 12.01
Incorporators, Stockholders, officers and
directors of Company exempt from individual
liability............................................58
ARTICLE THIRTEEN - MISCELLANEOUS PROVISIONS
Section 13.01
Successors and assigns of Company
bound by Indenture...................................59
Section 13.02
Acts of board, committee or officer
of successor company valid...........................59
Section 13.03
Surrender of powers by Company.......................59
Section 13.04
Required notices or demands may by
served by mail.......................................59
Section 13.05
Indenture and Securities to be construed
in accordance with laws of the State
of New York..........................................60
Section 13.06
(a) Officers' Certificate and Opinion of
Counsel to be furnished upon applications
or demands by company...........................60
(b) Statements to be included in each certificate or opinion with
respect to compliance with condition or covenant........60
Section 13.07
Payments due on non-Business Days....................60
Section 13.08
Provisions required by Trust Indenture
Act of 1939 to control...............................60
Section 13.09
Indenture may be executed in counterparts............61
Section 13.10
Separability of Indenture provisions.................61
Section 13.11
Assignment by Company to subsidiary..................61
Section 13.12
Headings.............................................61
Section 13.13
Securities in Foreign Currencies.....................61
ACCEPTANCE OF TRUST BY TRUSTEE..................................62
TESTIMONIUM.....................................................62
SIGNATURES AND SEALS............................................62
ACKNOWLEDGEMENTS................................................63
THIS INDENTURE, dated as of the 1st day of _______, 1998, between INDIANA
MICHIGAN POWER COMPANY, a corporation duly organized and existing under the laws
of the State of Indiana (hereinafter sometimes referred to as the "Company"),
and THE BANK OF NEW YORK, a banking corporation of the State of New York, as
trustee (hereinafter sometimes referred to as the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of unsecured promissory notes or other evidences of indebtedness
(hereinafter referred to as the "Securities"), in an unlimited aggregate
principal amount to be issued from time to time in one or more series as in this
Indenture provided, as registered Securities without coupons, to be manually
authenticated by the certificate of the Trustee, and which will rank pari passu
with all other unsecured and unsubordinated debt of the Company;
WHEREAS, to provide the terms and conditions upon which the Securities are
to be authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture;
WHEREAS, the Securities and the certificate of authentication to be borne
by the Securities (the "Certificate of Authentication") are to be substantially
in such forms as may be approved by a Company Order (as defined below), or set
forth in this Indenture or in any indenture supplemental to this Indenture;
AND WHEREAS, all acts and things necessary to make the Securities issued
pursuant hereto, when executed by the Company and authenticated and delivered by
the Trustee as in this Indenture provided, the valid, binding and legal
obligations of the Company, and to constitute these presents a valid indenture
and agreement according to its terms, have been done and performed or will be
done and performed prior to the issuance of such Securities, and the execution
of this Indenture has been and the issuance hereunder of the Securities has been
or will be prior to issuance in all respects duly authorized, and the Company,
in the exercise of the legal right and power in it vested, executes this
Indenture and proposes to make, execute, issue and deliver the Securities;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Securities are and are to be authenticated, issued and delivered, and in
consideration of the premises, of the purchase and acceptance of the Securities
by the holders thereof and of the sum of one dollar ($1.00) to it duly paid by
the Trustee at the execution of these presents, the receipt whereof is hereby
acknowledged, the Company covenants and agrees with the Trustee, for the equal
and proportionate benefit (subject to the provisions of this Indenture) of the
respective holders from time to time of the Securities, without any
discrimination, preference or priority of any one Security over any other by
reason of priority in the time of issue, sale or negotiation thereof, or
otherwise, except as provided herein, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. The terms defined in this Section (except as in this
Indenture otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture, any Company Order, any Board Resolution, and
any indenture supplemental hereto shall have the respective meanings specified
in this Section. All other terms used in this Indenture which are defined in the
Trust Indenture Act of 1939, as amended, or which are by reference in such Act
defined in the Securities Act of1933, as amended (except as herein otherwise
expressly provided or unless the context otherwise requires), shall have the
meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of the execution of this instrument.
Affiliate:
The term "Affiliate" of the Company shall mean any company at least a majority
of whose outstanding voting stock shall at the time be owned by the Company, or
by one or more direct or indirect subsidiaries of or by the Company and one or
more direct or indirect subsidiaries of the Company. For the purposes only of
this definition of the term "Affiliate", the term "voting stock", as applied to
the stock of any company, shall mean stock of any class or classes having
ordinary voting power for the election of a majority of the directors of such
company, other than stock having such power only by reason of the occurrence of
a contingency.
Authenticating Agent:
The term "Authenticating Agent" shall mean an authenticating agent with respect
to all or any of the series of Securities, as the case may be, appointed with
respect to all or any series of the Securities, as the case may be, by the
Trustee pursuant to Section 2.10.
Authorized Officer:
The term "Authorized Officer" shall mean the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant Treasurer or any
other officer or agent of the Company duly authorized by the Board of Directors
to act in respect of matters relating to this Indenture.
Board of Directors or Board:
The term "Board of Directors" or "Board" shall mean the Board of Directors of
the Company, or any duly authorized committee of such Board.
Board Resolution:
The term "Board Resolution" shall mean 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.
Business Day:
The term "Business Day", with respect to any Security, shall mean any day that
(a) in the Place of Payment (or in any of the Places of Payment, if more than
one) in which amounts are payable as specified in the form of such Security and
(b) in the city in which the Trustee administers its corporate trust business,
is not a day on which banking institutions are authorized or required by law or
regulation to close.
Certificate:
The term "Certificate" shall mean a certificate signed by an Authorized Officer.
The Certificate need not comply with the provisions of Section 13.06.
Commission:
The term "Commission" shall mean the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended (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, if any, performing
such duties on such date.
Company:
The term "Company" shall mean Indiana Michigan Power Company, a corporation duly
organized and existing under the laws of Indiana, and, subject to the provisions
of Article Ten, shall also include its successors and assigns.
Company Order:
The term "Company Order" shall mean a written order signed in the name of the
Company by an Authorized Officer and the Secretary or an Assistant Secretary of
the Company, pursuant to a Board Resolution establishing a series of Securities.
Corporate Trust Office:
The term "Corporate Trust Office" shall mean the office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of the execution of this Indenture is
located at 101 Barclay Street, Floor 21W, New York, New York 10286.
Default:
The term "Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
Depository:
The term "Depository" shall mean, with respect to Securities of any series, for
which the Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Exchange Act or other applicable statute or regulation, which, in each case,
shall be designated by the Company pursuant to either Section 2.01 or 2.11.
Discount Security:
The term "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 6.01(b).
Dollar:
The term "Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
Eligible Obligations:
The term "Eligible Obligations" means (a) with respect to Securities denominated
in Dollars, Governmental Obligations; or (b) with respect to Securities
denominated in a currency other than Dollars or in a composite currency, such
other obligations or instruments as shall be specified with respect to such
Securities, as contemplated by Section 2.01.
Event of Default:
The term "Event of Default" with respect to Securities of a particular series
shall mean any event specified in Section 6.01, continued for the period of
time, if any, therein designated.
Global Security:
The term "Global Security" shall mean, with respect to any series of Securities,
a Security executed by the Company and authenticated and delivered by the
Trustee to the Depository or pursuant to the Depository's instruction, all in
accordance with the Indenture, which shall be registered in the name of the
Depository or its nominee.
Governmental Authority:
The term "Governmental Authority" means the government of the United States or
of any State or Territory thereof or of the District of Columbia or of any
county, municipality or other political subdivision of any of the foregoing, or
any department, agency, authority or other instrumentality of any of the
foregoing.
Governmental Obligations:
The term "Governmental Obligations" shall mean securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States,
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act of 1933, as amended) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on any
such Governmental Obligation held by such custodian for the account of the
holder of such depository receipt; 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 depository receipt from any amount received by such
custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depository receipt.
Indenture:
The term "Indenture" shall mean this instrument as originally executed, or, if
amended or supplemented as herein provided, as so amended or supplemented, and
shall include the terms of a particular series of Securities established as
contemplated by Section 2.01.
Instructions:
The term "Instructions" shall mean instructions acceptable to the Trustee issued
pursuant to a Company Order in connection with a Periodic Offering and signed by
an Authorized Officer. Instructions need not comply with the provisions of
Section 13.06.
Interest:
The term "interest" when used with respect to non-interest bearing Securities
shall mean interest payable after maturity (whether at stated maturity, upon
acceleration or redemption or otherwise) or after the date, if any, on which the
Company becomes obligated to acquire a Security, whether by purchase or
otherwise.
Interest Payment Date:
The term "Interest Payment Date" when used with respect to any installment of
interest on a Security of a particular series shall mean the date specified in
such Security or in a Board Resolution, Company Order or an indenture
supplemental hereto with respect to such series as the fixed date on which an
installment of interest with respect to Securities of that series is due and
payable.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by an
Authorized Officer and by the Secretary or Assistant Secretary of the Company.
Each such certificate shall include the statements provided for in Section
13.06, if and to the extent required by the provisions thereof.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed by legal
counsel, who may be an employee of or counsel for the Company. Each such opinion
shall include the statements provided for in Section 13.06, if and to the extent
required by the provisions thereof.
Outstanding:
The term "outstanding", when used with reference to Securities of any series,
shall, subject to the provisions of Section 8.04, mean, as of any particular
time, all Securities of that series theretofore authenticated and delivered by
the Trustee under this Indenture, except (a) Securities theretofore canceled by
the Trustee or any paying agent, or delivered to the Trustee or any paying agent
for cancellation or which have previously been canceled; (b) Securities or
portions thereof for the payment or redemption of which monies or Eligible
Obligations in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been set
aside and segregated in trust by the Company (if the Company shall act as its
own paying agent); provided, however, that if such Securities or portions of
such Securities are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as in Article Three provided, or provision
satisfactory to the Trustee shall have been made for giving such notice; and (c)
Securities in lieu of or in substitution for which other Securities shall have
been authenticated and delivered pursuant to the terms of Section 2.07. The
principal amount of a Discount Security that shall be deemed to be Outstanding
for purposes of this Indenture shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof.
Periodic Offering:
The term "Periodic Offering" means an offering of Securities of a series from
time to time, during which any or all of the specific terms of the Securities,
including without limitation the rate or rates of interest, if any, thereon, the
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents upon the
issuance of such Securities.
Person:
The term "person" means any individual, corporation, partnership, limited
liability company, joint venture, trust or unincorporated organization or any
Governmental Authority.
Place of Payment:
The term "Place of Payment" shall mean the place or places where the principal
of and interest, if any, on the Securities of any series are payable as
specified in accordance with Section 2.01.
Predecessor Security:
The term "Predecessor Security" of any particular Security shall mean 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 2.07 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
Responsible Officer:
The term "Responsible Officer" when used with respect to the Trustee shall mean
the chairman of the board of directors, the president, any vice president, the
secretary, the treasurer, any trust officer, any corporate trust officer or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.
Security or Securities:
The term "Security" or "Securities" shall mean any Security or Securities, as
the case may be, authenticated and delivered under this Indenture.
Securityholder:
The term "Securityholder", "holder of Securities" or "registered holder" shall
mean the person or persons in whose name or names a particular Security shall be
registered on the books of the Company kept for that purpose in accordance with
the terms of this Indenture.
Series:
The term "series" means a series of Securities established pursuant to this
Indenture and includes, if the context so requires, each Tranche thereof.
Tranche:
The term "Tranche" means Securities which (a) are of the same series and (b)
have identical terms except as to principal amount and/or date of issuance.
Trustee:
The term "Trustee" shall mean The Bank of New York, and, subject to the
provisions of Article Seven, shall also include its successors and assigns, and,
if at any time there is more than one person acting in such capacity hereunder,
"Trustee" shall mean each such person. The term "Trustee" as used with respect
to a particular series of the Securities shall mean the trustee with respect to
that series.
Trust Indenture Act:
The term "Trust Indenture Act", subject to the provisions of Sections 9.01,
9.02, and 10.01, shall mean the Trust Indenture Act of 1939, as amended and in
effect at the date of execution of this Indenture.
United States:
The term "United States" means the United States of America, its Territories,
its possessions and other areas subject to its political jurisdiction.
ARTICLE TWO
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01. The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series and
in one or more Tranches thereof. Each series shall be authorized by a Company
Order or Orders or one or more indentures supplemental hereto, which shall
specify whether the Securities of such series shall be subject to a Periodic
Offering. The Company Order or Orders or supplemental indenture and, in the case
of a Periodic Offering, Instructions or other procedures acceptable to the
Trustee specified in such Company Order or Orders, shall establish the terms of
the series, which may include the following: (i) any limitations on the
aggregate principal amount of the Securities to be authenticated and delivered
under this Indenture as part of such series (except for Securities authenticated
and delivered upon registration of transfer of, in exchange for or in lieu of
other Securities of that series); (ii) the stated maturity or maturities of such
series; (iii) the date or dates from which interest shall accrue, the Interest
Payment Dates on which such interest will be payable or the manner of
determination of such Interest Payment Dates and the record date for the
determination of holders to whom interest is payable on any such Interest
Payment Date; (iv) the interest rate or rates (which may be fixed or variable),
or method of calculation of such rate or rates, for such series; (v) the terms,
if any, regarding the redemption, purchase or repayment of such series (whether
at the option of the Company or a holder of the Securities of such series and
whether pursuant to a sinking fund or analogous provisions, including payments
made in cash in anticipation of future sinking fund obligations), including
redemption, purchase or repayment date or dates of such series, if any, and the
price or prices and other terms and conditions applicable to such redemption,
purchase or repayment (including any premium); (vi) whether or not the
Securities of such series shall be issued in whole or in part in the form of a
Global Security and, if so, the Depositary for such Global Security and the
related procedures with respect to transfer and exchange of such Global
Security; (vii) the designation of such series; (viii) the form of the
Securities of such series; (ix) the maximum annual interest rate, if any, of the
Securities permitted for such series; (x) whether the Securities of such series
shall be subject to Periodic Offering; (xi) the currency or currencies,
including composite currencies, in which payment of the principal of (and
premium, if any) and interest on the Securities of such series shall be payable,
if other than Dollars; (xii) any other information necessary to complete the
Securities of such series; (xiii) the establishment of any office or agency
pursuant to Section 4.02 hereof and any other place or places which the
principal of and interest, if any, on Securities of that series shall be
payable; (xiv) if other than denominations of $1,000 or any integral multiple
thereof, the denominations in which the Securities of the series shall be
issuable; (xv) the obligations or instruments, if any, which shall be considered
to be Eligible Obligations in respect of the Securities of such series
denominated in a currency other than Dollars or in a composite currency; (xvi)
whether or not the Securities of such series shall be issued as Discount
Securities and the terms thereof, including the portion of the principal amount
thereof which shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.01(b); (xvii) if the principal of and premium, if
any, or interest, if any, on such Securities are to be payable, at the election
of the Company or the holder thereof, in coin or currency, including composite
currencies, other than that in which the Securities are stated to be payable,
the period or periods within which, and the terms and conditions upon which,
such election shall be made; (xviii) if the amount of payment of principal of
and premium, if any, or interest, if any, on such Securities may be determined
with reference to an index, formula or other method, or based on a coin or
currency other than that in which the Securities are stated to be payable, the
manner in which such amount shall be determined; and (xix) any other terms of
such series not inconsistent with this Indenture.
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 any
such Company Order or in any indentures supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Company Order, a copy of an appropriate record of the applicable Board
Resolution 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 setting forth the terms of that series.
SECTION 2.02. The Securities of any series shall be substantially of the
tenor and purport (i) as set forth in one or more indentures supplemental hereto
or as provided in a Company Order, or (ii) with respect to any Tranche of
Securities of a series subject to Periodic Offering, to the extent permitted by
any of the documents referred to in clause (i) above, in Instructions, or by
other procedures acceptable to the Trustee specified in such Company Order or
Orders, 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 or designation and
such legends or endorsements printed, lithographed or engraved thereon as the
Company may deem appropriate and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which Securities of that series may be listed or of the Depository,
or to conform to usage.
The Trustee's Certificate of Authentication shall be in substantially the
following form:
"This is one of the Securities of the series designated in accordance
with, and referred to in, the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK, as Trustee
By:___________________________
Authorized Signatory"
SECTION 2.03. The Securities shall be issuable as registered Securities
and in the denominations of $1,000 or any integral multiple thereof, subject to
Sections 2.01(xi) and (xiv). The Securities of a particular series shall bear
interest payable on the dates and at the rate or rates specified with respect to
that series. Except as otherwise specified as contemplated by Section 2.01, the
principal of and the interest on the Securities of any series, as well as any
premium thereon in case of redemption thereof prior to maturity, shall be
payable in Dollars at the office or agency of the Company maintained for that
purpose. Each Security shall be dated the date of its authentication.
The interest installment on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for
Securities of that series shall be paid to the person in whose name said
Security (or one or more Predecessor Securities) is registered at the close of
business on the regular record date for such interest installment, except that
interest payable on redemption or maturity shall be payable as set forth in the
Company Order or indenture supplemental hereto establishing the terms of such
series of Securities. Except as otherwise specified as contemplated by Section
2.01, interest on Securities will be computed on the basis of a 360-day year of
twelve 30-day months.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date for Securities of the same
series (herein called "Defaulted Interest") shall forthwith cease to be payable
to the registered holder on the relevant regular record date by virtue of having
been such holder; and such Defaulted Interest shall be paid by the Company, at
its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Securities to the persons in whose names such Securities (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 such Security 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 clause provided. Thereupon the
Trustee shall fix a special record date for the payment of such Defaulted
Interest which shall not be more than 15 nor 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 mailed, first class postage prepaid, to each Securityholder at his or
her address as it appears in the Security Register (as hereinafter
defined), 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 mailed as aforesaid, such Defaulted Interest
shall be paid to the persons in whose names such Securities (or their
respective Predecessor Securities) are registered on such special record
date and shall be no longer payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on any
Securities 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.
Unless otherwise set forth in a Company Order or one or more indentures
supplemental hereto establishing the terms of any series of Securities pursuant
to Section 2.01 hereof, the term "regular record date" as used in this Section
with respect to a series of Securities with respect to any Interest Payment Date
for such series shall mean either the fifteenth day of the month immediately
preceding the month in which an Interest Payment Date established for such
series pursuant to Section 2.01 hereof shall occur, if such Interest Payment
Date is the first day of a month, or the last day of the month immediately
preceding the month in which an Interest Payment Date established for such
series pursuant to Section 2.01 hereof shall occur, if such Interest Payment
Date is the fifteenth day of a month, whether or not such date is a Business
Day.
Subject to the foregoing provisions of this Section, each Security of a
series delivered under this Indenture upon transfer of or in exchange for or in
lieu of any other Security of such series shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 2.04. The Securities shall, subject to the provisions of Section
2.06, be printed on steel engraved borders or fully or partially engraved, or
legibly typed, as the proper officer of the Company may determine, and shall be
signed on behalf of the Company by an Authorized Officer. The signature of such
Authorized Officer upon the Securities may be in the form of a facsimile
signature of a present or any future Authorized Officer and may be imprinted or
otherwise reproduced on the Securities and for that purpose the Company may use
the facsimile signature of any person who shall have been an Authorized Officer
notwithstanding the fact that at the time the Securities shall be authenticated
and delivered or disposed of such person shall have ceased to be an Authorized
Officer.
Only such Securities as shall bear thereon a Certificate of Authenticatio
substantially in the form established for such Securities, executed manually by
an authorized signatory of the Trustee, or by any Authenticating Agent with
respect to such Securities, shall be entitled to the benefits of this Indenture
or be valid or obligatory for any purpose. Such certificate executed by the
Trustee, or by any Authenticating Agent appointed by the Trustee with respect to
such Securities, upon any Security executed by the Company shall be conclusive
evidence that the Security so authenticated has been duly authenticated and
delivered hereunder and that the registered holder thereof is entitled to the
benefits of this Indenture.
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 an indenture
supplemental hereto or a Company Order for the authentication and delivery of
such Securities and the Trustee, in accordance with such supplemental indenture
or Company Order, shall authenticate and deliver such Securities; provided,
however, that in the case of Securities offered in a Periodic Offering, the
Trustee shall authenticate and deliver such Securities from time to time in
accordance with Instructions or such other procedures acceptable to the Trustee
as may be specified by or pursuant to such supplemental indenture or Company
Order delivered to the Trustee prior to the time of the first authentication of
Securities of such series.
In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall receive and (subject to Section 7.01) shall be fully protected in
relying upon, (i) an Opinion of Counsel and (ii) an Officers' Certificate, each
stating that the form and terms thereof have been established in conformity with
the provisions of this Indenture; provided, however, that, with respect to
Securities of a series subject to a Periodic Offering, the Trustee shall be
entitled to receive such Opinion of Counsel and Officers' Certificate only once
at or prior to the time of the first authentication of Securities of such series
and that, in such opinion or certificate, the opinion or certificate described
above may state that when the terms of such Securities, or each Tranche thereof,
shall have been established pursuant to a Company Order or Orders or pursuant to
such procedures acceptable to the Trustee, as may be specified by a Company
Order, such terms will have been established in conformity with the provisions
of this Indenture. Each Opinion of Counsel and Officers' Certificate delivered
pursuant to this Section 2.04 shall include all statements prescribed in Section
13.06(b). Such Opinion of Counsel shall also be to the effect that when such
Securities have been executed by the Company and authenticated by the Trustee in
accordance with the provisions of this Indenture and delivered to and duly paid
for by the purchasers thereof, they will be valid and legally binding
obligations of the Company, enforceable in accordance with their terms (subject
to customary exceptions) and will be entitled to the benefits of this Indenture.
With respect to Securities of a series subject to a Periodic Offering, the
Trustee may conclusively rely, as to the authorization by the Company of any of
such Securities, the forms and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Company Order, Opinion of Counsel,
Officers' Certificate and other documents delivered pursuant to Sections 2.01
and this Section, as applicable, at or prior to the time of the first
authentication of Securities of such series unless and until such Company Order,
Opinion of Counsel, Officers' Certificate or other documents have been
superseded or revoked or expire by their terms.
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.
SECTION 2.05. (a) Securities of any series may be exchanged upon
presentation thereof at the office or agency of the Company designated for such
purpose, for other Securities of such series of authorized denominations, and
for a like aggregate principal amount, upon payment of a sum sufficient to cover
any tax or other governmental charge in relation thereto, all as provided in
this Section. In respect of any Securities so surrendered for exchange, the
Company shall execute, the Trustee shall authenticate and such office or agency
shall deliver in exchange therefor the Security or Securities of the same series
which the Securityholder making the exchange shall be entitled to receive,
bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or agency
designated for such purpose in the Borough of Manhattan, the City and State of
New York, or such other location designated by the Company a register or
registers (herein referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall register the
Securities and the transfers of Securities as in this Article provided and which
at all reasonable times shall be open for inspection by the Trustee. The
registrar for the purpose of registering Securities and transfer of Securities
as herein provided shall be appointed as authorized by Board Resolution or
Company Order (the "Security Registrar").
Upon surrender for transfer of any Security at the office or agency of the
Company designated for such purpose in the Borough of Manhattan, the City and
State of New York, or other location as aforesaid, the Company shall execute,
the Trustee shall authenticate and such office or agency shall deliver in the
name of the transferee or transferees a new Security or Securities of the same
series as the Security presented for a like aggregate principal amount.
All Securities presented or surrendered for exchange or registration of
transfer, as provided in this Section, shall be accompanied (if so required by
the Company or the Security Registrar) by a written instrument or instruments of
transfer, in form satisfactory to the Company or the Security Registrar, duly
executed by the registered holder or by his duly authorized attorney in writing.
(c) Except as provided in the first paragraph of Section 2.07, no service
charge shall be made for any exchange or registration of transfer of Securities,
or issue of new Securities in case of partial redemption of any series, but the
Company may require payment of a sum sufficient to cover any tax
or other governmental charge in relation thereto, other than exchanges pursuant
to Section 2.06, Section 3.03(b) and Section 9.04 not involving any transfer.
(d) The Company shall neither be required (i) to issue, exchange or
register the transfer of any Securities during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
less than all the outstanding Securities of the same series and ending at the
close of business on the day of such mailing, nor (ii) to register the transfer
of or exchange any Securities of any series or portions thereof called for
redemption or as to which the holder thereof has exercised its right, if any, to
require the Company to repurchase such Security in whole or in part, except that
portion of such Security not required to be repurchased. The provisions of this
Section 2.05 are, with respect to any Global Security, subject to Section 2.11
hereof.
SECTION 2.06. Pending the preparation of definitive Securities of any
series, the Company may execute, and the Trustee shall authenticate and deliver,
temporary Securities (printed, lithographed or typewritten) of any authorized
denomination, and substantially in the form of the definitive Securities in lieu
of which they are issued, but with such omissions, insertions and variations as
may be appropriate for temporary Securities, all as may be determined by the
Company. Every temporary Security of any series shall be executed by the Company
and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities of such series in accordance with Section 2.04. Without unnecessary
delay the Company will execute and will furnish definitive Securities of such
series and thereupon any or all temporary Securities of such series may be
surrendered in exchange therefor (without charge to the holders thereof), at the
office or agency of the Company designated for the purpose, and the Trustee
shall authenticate and such office or agency shall deliver in exchange for such
temporary Securities an equal aggregate principal amount of definitive
Securities of such series, unless the Company advises the Trustee to the effect
that definitive Securities need not be executed and furnished until further
notice from the Company. Until so exchanged, the temporary Securities of such
series shall be entitled to the same benefits under this Indenture as definitive
Securities of such series authenticated and delivered hereunder.
SECTION 2.07. In case any temporary or definitive Security shall become
mutilated or be destroyed, lost or stolen, the Company (subject to the next
succeeding sentence) shall execute, and upon its request the Trustee (subject as
aforesaid) shall authenticate and deliver, a new Security of the same series
bearing a number not contemporaneously outstanding, in exchange and substitution
for the mutilated Security, or in lieu of and in substitution for the Security
so destroyed, lost or stolen. In every case the applicant for a substituted
Security shall furnish to the Company and to the Trustee such security or
indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and to the Trustee evidence to their satisfaction of the
destruction, loss or theft of the applicant's Security and of the ownership
thereof. The Trustee may authenticate any such substituted Security and deliver
the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substituted Security, 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. In case any Security
which has matured or is about to mature shall become mutilated or be destroyed,
lost or stolen, the Company may, instead of issuing a substitute Security, pay
or authorize the payment of the same (without surrender thereof except in the
case of a mutilated Security) if the applicant for such payment shall furnish to
the Company and to the Trustee such security or indemnity as they may require to
save them harmless, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft of
such Security and of the ownership thereof.
Every Security issued pursuant to the provisions of this Section in
substitution for any Security which is mutilated, destroyed, lost or stolen
shall constitute an additional contractual obligation of the Company, whether or
not the mutilated, destroyed, lost or stolen Security shall be found at any
time, or be enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of
the same series duly issued hereunder. All Securities shall be held and owned
upon the express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities, and shall preclude (to the extent lawful) any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.08. All Securities surrendered for the purpose of payment,
redemption, exchange or registration of transfer, or for credit against a
sinking fund, shall, if surrendered to the Company or any paying agent, be
delivered to the Trustee for cancellation, or, if surrendered to the Trustee,
shall be canceled by it, and no Securities shall be issued in lieu thereof
except as expressly required or permitted by any of the provisions of this
Indenture. On request of the Company, the Trustee shall deliver to the Company
canceled Securities held by the Trustee. In the absence of such request the
Trustee may dispose of canceled Securities in accordance with its standard
procedures. If the Company shall otherwise acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.09. Nothing in this Indenture or in the Securities, express or
implied, shall give or be construed to give to any person, firm or corporation,
other than the parties hereto and the holders of the Securities, any legal or
equitable right, remedy or claim under or in respect of this Indenture, or unde
r any covenant, condition or provision herein contained; all such covenants,
conditions and provisions being for the sole benefit of the parties hereto and
of the holders of the Securities.
SECTION 2.10. So long as any of the Securities of any series remain
outstanding there may be an Authenticating Agent for any or all such series of
Securities which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, transfer or partial
redemption thereof, 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. All references in this Indenture to
the authentication of Securities by the Trustee shall be deemed to include
authentication by an Authenticating Agent for such series except for
authentication upon original issuance or pursuant to Section 2.07 hereof. Each
Authenticating Agent shall be acceptable to the Company and shall be a
corporation which has a combined capital and surplus, as most recently reported
or determined by it, sufficient under the laws of any jurisdiction under which
it is organized or in which it is doing business to conduct a trust business,
and which is otherwise authorized under such laws to conduct such business and
is subject to supervision or examination by Federal or State authorities. If at
any time any Authenticating Agent shall cease to be eligible in accordance with
these provisions it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written notice
of resignation to the Trustee and to the Company. The Trustee may at any time
(and upon request by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint an
eligible successor Authenticating Agent acceptable to the Company. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder, shall become
vested with all the rights, powers and duties of its predecessor hereunder as if
originally named as an Authenticating Agent pursuant hereto. The Company agrees
to pay to each Authenticating Agent from time to time reasonable compensation
for its services under this Section.
SECTION 2.11. (a) If the Company shall establish pursuant to Section 2.01
that the Securities of a particular series are to be issued as a Global
Security, then the Company shall execute and the Trustee shall, in accordance
with Section 2.04, authenticate and deliver, a Global Security which (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the Outstanding Securities of such series, (ii)
shall be registered in the name of the Depository or its nominee, (iii) shall be
authenticated and delivered by the Trustee to the Depository or pursuant to the
Depository's instruction and (iv) shall bear a legend substantially to the
following effect: "Except as otherwise provided in Section 2.11 of the
Indenture, this Security may be transferred, in whole but not in part, only to
another nominee of the Depository or to a successor Depository or to a nominee
of such successor Depository."
(b) Notwithstanding the provisions of Section 2.05, the Global Security of
a series may be transferred, in whole but not in part and in the manner provided
in Section 2.05, only to another nominee of the Depository for such series, or
to a successor Depository for such series selected or approved by the
Company or to a nominee of such successor Depository.
(c) If at any time the Depository for a series of Securities notifies the
Company that it is unwilling or unable to continue as Depository for such series
or if at any time the Depository for such series shall no longer be registered
or in good standing under the Exchange Act, or other applicable statute or
regulation and a successor Depository for such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such condition, as the case may be, this Section 2.11 shall no longer be
applicable to the Securities of such series and the Company will execute, and
subject to Section 2.05, the Trustee will authenticate and deliver Securities of
such series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global
Security. In addition, the Company may at any time determine that the Securities
of any series shall no longer be represented by a Global Security and that the
provisions of this Section 2.11 shall no longer apply to the Securities of such
series. In such event the Company will execute, and subject to Section 2.05, the
Trustee, upon receipt of an Officers' Certificate evidencing such determination
by the Company, will authenticate and deliver Securities of such series in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. Upon the exchange
of the Global Security for such Securities in definitive registered form without
coupons, in authorized denominations, the Global Security shall be canceled by
the Trustee. Such Securities in definitive registered form issued in exchange
for the Global Security pursuant to this Section 2.11(c) shall be registered in
such names and in such authorized denominations as the Depository, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Security Registrar. The Trustee shall deliver such Securities to
the Depository for delivery to the persons in whose names such Securities are so
registered.
SECTION 2.12. In the case of the Securities of any series denominated in
any currency other than Dollars or in a composite currency (the "Required
Currency"), except as otherwise specified with respect to such Securities as
contemplated by Section 2.01, the obligation of the Company to make any payment
of the principal thereof, or the premium or interest thereon, shall not be
discharged or satisfied by any tender by the Company, or recovery by the
Trustee, in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the Trustee timely holding the full
amount of the Required Currency then due and payable. If any such tender or
recovery is in a currency other than the Required Currency, the Trustee may take
such actions as it considers appropriate to exchange such currency for the
Required Currency. The costs and risks of any such exchange, including, without
limitation, the risks of delay and exchange rate fluctuation, shall be borne by
the Company, the Company shall remain fully liable for any shortfall or
delinquency in the full amount of Required Currency then due and payable, and in
no circumstances shall the Trustee be liable therefor except in the case of its
negligence or willful misconduct.
SECTION 2.13. The Company in issuing Securities may use "CUSIP" numbers
(if then generally in use) and, if so used, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to holders of Securities;
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 contained in
any notice of 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. The Company shall
promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE THREE
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01. The Company may redeem the Securities of any series issued
hereunder on and after the dates and in accordance with the terms established
for such series pursuant to Section 2.01 hereof.
SECTION 3.02. (a) In case the Company shall desire to exercise such right
to redeem all or, as the case may be, a portion of the Securities of any series
in accordance with the right reserved so to do, it shall give notice of such
redemption to holders of the Securities of such series to be redeemed by
mailing, first class postage prepaid, a notice of such redemption not less than
30 days and not more than 60 days before the date fixed for redemption of that
series to such holders at their last addresses as they shall appear upon the
Security Register. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
registered holder receives the notice. In any case, failure duly to give such
notice to the holder of any Security of any series designated for redemption in
whole or in part, or any defect in the notice, shall not affect the validity of
the proceedings for the redemption of any other Securities of such series or any
other series. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption or subject to compliance with
certain conditions 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 any such restriction or condition.
Unless otherwise so provided as to a particular series of Securities, if
at the time of mailing of any notice of redemption the Company shall not have
deposited with the paying agent an amount in cash sufficient to redeem all of
the Securities called for redemption, including accrued interest to the date
fixed for redemption, such notice shall state that it is subject to the receipt
of redemption moneys by the paying agent on or before the date fixed for
redemption (unless such redemption is mandatory) and such notice shall be of no
effect unless such moneys are so received on or before such date.
Each such notice of redemption shall identify the Securities to be
redeemed (including CUSIP numbers, if any), specify the date fixed for
redemption and the redemption price at which Securities of that series are to be
redeemed, and shall state that payment of the redemption price of such
Securities to be redeemed will be made at the office or agency of the Company,
upon presentation and surrender of such Securities, that interest accrued to the
date fixed for redemption will be paid as specified in said notice, that from
and after said date interest will cease to accrue and that the redemption is for
a sinking fund, if such is the case. If less than all the Securities of a series
are to be redeemed, the notice to the holders of Securities of that series to be
redeemed in whole or in part shall specify the particular Securities to be so
redeemed. In case any Security is to be redeemed in part only, the notice which
relates to such Security shall state the portion of the principal amount thereof
to be redeemed, and shall state that on and after the redemption date, upon
surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
(b) If less than all the Securities of a series are to be redeemed, the
Company shall give the Trustee at least 45 days' notice in advance of the date
fixed for redemption (unless the Trustee shall agree to a shorter period) as to
the aggregate principal amount of Securities of the series to be redeemed, and
thereupon the Trustee shall select, by lot or in such other manner as it shall
deem appropriate and fair in its discretion and which may provide for the
selection of a portion or portions (equal to $1,000 or any integral multiple
thereof, subject to Sections 2.01(xi) and (xiv)) of the principal amount of such
Securities of a denomination larger than $1,000 (subject as aforesaid), the
Securities to be redeemed and shall thereafter promptly notify the Company in
writing of the numbers of the Securities to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by an Authorized Officer, instruct the Trustee
or any paying agent to call all or any part of the Securities of a particular
series for redemption and to give notice of redemption in the manner set forth
in this Section, such notice to be in the name of the Company or its own name as
the Trustee or such paying agent may deem advisable. In any case in which notice
of redemption is to be given by the Trustee or any such paying agent, the
Company shall deliver or cause to be delivered to, or permit to remain with, the
Trustee or such paying agent, as the case may be, such Security Register,
transfer books or other records, or suitable copies or extracts therefrom,
sufficient to enable the Trustee or such paying agent to give any notice by mail
that may be required under the provisions of this Section.
SECTION 3.03. (a) If the giving of notice of redemption shall have been
completed as above provided, the Securities or portions of Securities of the
series to be redeemed specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable redemption
price, together with, subject to the Company Order or supplemental indenture
hereto establishing the terms of such series of Securities, interest accrued to
the date fixed for redemption and interest on such Securities or portions of
Securities shall cease to accrue on and after the date fixed for redemption,
unless the Company shall default in the payment of such redemption price and
accrued interest with respect to any such Security or portion thereof. On
presentation and surrender of such Securities on or after the date fixed for
redemption at the place of payment specified in the notice, said Securities
shall be paid and redeemed at the applicable redemption price for such series,
together with, subject to the Company Order or supplemental indenture hereto
establishing the terms of such series of Securities, interest accrued thereon to
the date fixed for redemption.
(b) Upon presentation of any Security of such series which is to be
redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall
deliver to the holder thereof, at the expense of the Company, a new Security or
Securities of the same series, of authorized denominations in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 3.04. The provisions of this Section 3.04 and Sections 3.05 and
3.06 shall be applicable to any sinking fund for the retirement of Securities of
a series, except as otherwise specified as contemplated by Section 2.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series 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 Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 3.05. Each sinking fund payment shall be applied to the redemption of
Securities of such series as provided for by the terms of Securities of such
series.
SECTION 3.05. The Company (i) may deliver Outstanding Securities of a
series (other than any previously called for redemption) and (ii) 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 mandatory
sinking fund payment; provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the redemption price specified in such Securities for redemption
through operation of the mandatory sinking fund and the amount of such mandatory
sinking fund payment shall be reduced accordingly.
SECTION 3.06. Not less than 45 days prior to each sinking fund payment
date for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 3.05 and the basis for such credit and will,
together with such Officers' Certificate, deliver to the Trustee any Securities
to be so delivered. Not less than 30 days before 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 3.02 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 3.02, except that the notice of
redemption shall also state that the Securities of such series are being
redeemed by operation of the sinking fund and the sinking fund payment date.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Section 3.03.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
The Company covenants and agrees for each series of the Securities as
follows:
SECTION 4.01. The Company will duly and punctually pay or cause to be paid
the principal of (and premium, if any) and interest on the Securities of that
series at the time and place and in the manner provided herein and established
with respect to such Securities.
SECTION 4.02. So long as any series of the Securities remain outstanding,
the Company agrees to maintain an office or agency with respect to each such
series, which shall be in the Borough of Manhattan, the City and State of New
York or at such other location or locations as may be designated as provided in
this Section 4.02, where (i) Securities of that series may be presented for
payment, (ii) Securities of that series may be presented as hereinabove
authorized for registration of transfer and exchange, and (iii) notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be given or served, such designation to continue with respect
to such office or agency until the Company shall, by written notice signed by an
Authorized Officer and delivered to the Trustee, designate some other office or
agency for such purposes or any of them. 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, 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,
notices and demands. The Trustee will initially act as paying agent for the
Securities.
The Company may also from time to time, by written notice signed by an
Authorized Officer and delivered to the Trustee, designate one or more other
offices or agencies for the foregoing purposes within or outside the Borough of
Manhattan, City of New York, 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 obligations to maintain an office or
agency in the Borough of Manhattan, City of New York for the foregoing purposes.
The Company will give prompt written notice to the Trustee of any change in the
location of any such other office or agency.
SECTION 4.03. (a) If the Company shall appoint one or more paying agents
for all or any series of the Securities, other than the Trustee, the Company
will cause each such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of (and premium, if any) or interest on the Securities
of that series (whether such sums have been paid to it by the Company or by any
other obligor of such Securities) in trust for the benefit of the persons
entitled thereto;
(2) that it will give the Trustee prompt notice of any failure by the
Company (or by any other obligor of such Securities) to make any payment of the
principal of (and premium, if any) or interest on the Securities of that
series when the same shall be due and payable;
(3) that it will, at any time during the continuance of any failure
referred to in the preceding paragraph (a)(2) above, upon the written request
of the Trustee, forthwith pay to the Trustee all sums so held in trust by such
paying agent; and
(4) that it will perform all other duties of paying agent as set
forth in this Indenture.
(b) If the Company shall act as its own paying agent with respect to any
series of the Securities, it will on or before each due date of the principal of
(and premium, if any) or interest on Securities of that series, set aside,
segregate and hold in trust for the benefit of the persons entitled thereto a
sum sufficient to pay such principal (and premium, if any) or interest so
becoming due on Securities of that series until such sums shall be paid to such
persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of such action, or any failure (by it or any other obligor on such
Securities) to take such action. 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 (and premium, if any) or interest on any Securities of that
series, deposit with the paying agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the persons entitled to such principal, premium or interest, and
(unless such paying agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
(c) Anything in this Section to the contrary notwithstanding, (i) the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 11.04, and (ii) 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 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 terms and conditions 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.
SECTION 4.04. The Company, whenever necessary to avoid or fill a vacancy
in the office of Trustee, will appoint, in the manner provided in Section 7.10,
a Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 4.05. The Company will not, while any of the Securities remain
outstanding, consolidate with, or merge into, or merge into itself, or sell or
convey all or substantially all of its property to any other Person unless the
provisions of Article Ten hereof are complied with.
SECTION 4.06. In the event that the Company issues a Discount Security,
the Company shall file with the Trustee at or prior to the time of the
authentication of such Discount Security a written notice, in such form as
mutually agreed upon by the Company and the Trustee, specifying the amount of
original issue discount that will be accrued on such Discount Security in each
calendar year from the date of issuance to the maturity thereof.
ARTICLE FIVE
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01. The Company will furnish or cause to be furnished to the
Trustee (a) on each regular record date (as defined in Section 2.03) for the
Securities of each Tranche of a series a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of such Tranche of
Securities as of such regular record date, provided, that the Company shall not
be obligated to furnish or cause to be furnished such list at any time that the
list shall not differ in any respect from the most recent list furnished to the
Trustee by the Company and (b) 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; provided, however, no such list need be furnished
for any series for which the Trustee shall be the Security Registrar.
SECTION 5.02. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of Securities contained in the most recent list furnished to it as
provided in Section 5.01 and as to the names and addresses of holders of
Securities received by the Trustee in its capacity as Security Registrar (if
acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided in
Section 5.01 upon receipt of a new list so furnished.
(c) In case three or more holders of Securities of a series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Security for a
period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other holders
of Securities of such series or holders of all Securities with respect to their
rights under this Indenture or under such Securities, and is accompanied by a
copy of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five Business Days after the receipt
of such application, at its election, either:
(1) afford to such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a) of
this Section 5.02; or
(2) inform such applicants as to the approximate number of holders of
Securities of such series or of all Securities, as the case may be, whose names
and addresses appear in the information preserved at the time by the Trustee, in
accordance with the provisions of subsection (a) of this Section 5.02, and as to
the approximate cost of mailing to such Securityholders the for
of proxy or other communication, if any, specified in such application.
(d) If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each holder of such series or of all Securities, as the case
may be, whose name and address appears in the information preserved at the time
by the Trustee in accordance with the provisions of subsection (a) of this
Section 5.02, a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the holders of Securities of such series or
of all Securities, as the case may be, or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise, the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(e) Each and every holder of the Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any paying agent nor any Security Registrar shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the holders of Securities in accordance with the provisions of
subsection (c) of this Section, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under said subsection
(c).
SECTION 5.03. (a) The Company covenants and agrees to file with the
Trustee, within 30 days after the Company is required to file the same with the
Commission, a copy of the annual reports and of the information, documents and
other reports (or a copy of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such sections, then to
file with the Trustee and, unless the Commission shall not accept such
information, documents or reports, the Commission, in accordance with the rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act, in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from time to
time by the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants provide
for in this Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit by mail, first class
postage prepaid, or reputable over-night delivery service which provides for
evidence of receipt, to the Securityholders, as their names and addresses appear
upon the Security Register, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (b) of this Section as may
be required by rules and regulations prescribed from time to time by the
Commission.
(d) The Company covenants and agrees to furnish to the Trustee, on or
before May 15 in each calendar year in which any of the Securities are
outstanding, or on or before such other day in each calendar year as the Company
and the Trustee may from time to time agree upon, a certificate from the
principal executive officer, principal financial officer or principal accounting
officer, as to his or her knowledge, of the Company's compliance with all
conditions and covenants under this Indenture. For purposes of this subsection
(d), such compliance shall be determined without regard to any period of grace
or requirement of notice provided under this Indenture.
(e) Delivery of such information, documents or reports to the Trustee
pursuant to Section 5.03(a) or 5.03(b) is for informational purposes only and
the Trustee's receipt thereof shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including, in the case of Section 5.03(b), the Company's compliance
with any of the covenants hereunder.
SECTION 5.04. (a) On or before July 15 in each year in which any of the
Securities are outstanding, the Trustee shall transmit by mail, first class
postage prepaid, to the Securityholders, as their names and addresses appear
upon the Security Register, a brief report dated as of the preceding May 15,
with respect to any of the following events which may have occurred within the
previous twelve months (but if no such event has occurred within such period no
report need be transmitted):
(1) any change to its eligibility under Section 7.09, and its
qualifications under Section 310 of the Trust Indenture Act;
(2) the creation of or any material change to a relationship
specified in paragraphs (1) through (10) of Section 310(b) of the Trust
Indenture Act;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on any property or funds held or
collected by it as trustee if such advances so remaining unpaid aggregate
more than 1/2 of 1% of the principal amount of the Securities outstanding
on the date of such report;
(4) any change to the amount, interest rate, and maturity date of all
other indebtedness owing by the Company, or by any other obligor on the
Securities, to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral security
therefor, except any indebtedness based upon a creditor relationship arising in
any manner described in paragraphs (2), (3), (4) or (6) of Section 311(b) of the
Trust Indenture Act;
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any release, or release and substitution, of property subject to
the lien, if any, of this Indenture (and the consideration therefor, if any)
which it has not previously reported;
(7) any additional issue of Securities which the Trustee has not
previously reported; and
(8) any action taken by the Trustee in the performance of its duties
under this Indenture which it has not previously reported and which in its
opinion materially affects the Securities or the Securities of any series,
except any action in respect of a default, notice of which has been or is to be
withheld by it in accordance with the provisions of Section 6.07.
(b) The Trustee shall transmit by mail, first class postage prepaid, to
the Securityholders, as their names and addresses appear upon the Security
Register, a brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee as such since the date of the last
report transmitted pursuant to the provisions of subsection (a) of this Section
(or if no such report has yet been so transmitted, since the date of execution
of this Indenture), for the reimbursement of which it claims or may claim a lien
or charge prior to that of the Securities of any series on property or funds
held or collected by it as Trustee, and which it has not previously reported
pursuant to this subsection if such advances remaining unpaid at any time
aggregate more than 10% of the principal amount of Securities of such series
outstanding at such time, such report to be transmitted within 90 days after
such time.
(c) A copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with the Company, with each stock
exchange upon which any Securities are listed (if so listed) and also with the
Commission. The Company agrees to notify the Trustee when any Securities become
listed on any stock exchange.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. (a) Whenever used herein with respect to Securities of a
particular series, "Event of Default" means any one or more of the following
events which has occurred and is continuing:
(1) default in the payment of any installment of interest upon any of
the Securities of that series, as and when the same shall become due and
payable, and continuance of such default for a period of 30 days;
(2) default in the payment of the principal of (or premium, if any, )
any of the Securities of that series as and when the same shall become due and
payable whether at maturity, upon redemption, pursuant to any sinking fund
obligation, by declaration or otherwise, and continuance of such default for a
period of 3 Business Days;
(3) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company with
respect to that series contained in such Securities or otherwise
established with respect to that series of Securities pursuant to Section
2.01 hereof or contained in this Indenture (other than a covenant or
agreement which has been expressly included in this Indenture solely for
the benefit of one or more series of Securities other than such series)
for a period of 90 days after the date on which written notice of such
failure, requiring the same to be remedied and stating that such notice is
a "Notice of Default" hereunder, shall have been given to the Company by
the Trustee, by registered or certified mail, or to the Company and the
Trustee by the holders of at least 33% in principal amount of the
Securities of that series at the time outstanding;
(4) a decree or order by a court having jurisdiction in the premises
shall have been entered adjudging the Company as bankrupt or insolvent, or
approving as properly filed a petition seeking liquidation or
reorganization of the Company under the Federal Bankruptcy Code or any
other similar applicable Federal or State law, and such decree or order
shall have continued unvacated and unstayed for a period of 90 consecutive
days; or an involuntary case shall be commenced under such Code in respect
of the Company and shall continue undismissed for a period of 90
consecutive days or an order for relief in such case shall have been
entered; or a decree or order of a court having jurisdiction in the
premises shall have been entered for the appointment on the ground of
insolvency or bankruptcy of a receiver or custodian or liquidator or
trustee or assignee in bankruptcy or insolvency of the Company or of its
property, or for the winding up or liquidation of its affairs, and such
decree or order shall have remained in force unvacated and unstayed for a
period of 90 consecutive days;
(5) the Company shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy proceeding
against it, or shall file a petition or answer or consent seeking liquidation or
reorganization under the Federal Bankruptcy Code or any other similar
applicable Federal or State law, or shall consent to the filing of any such
petition, or shall consent to the appointment on the ground of insolvency or
bankruptcy of a receiver or custodian or liquidator or trustee or assignee in
bankruptcy or insolvency of it or of its property, or shall make an assignment
for the benefit of creditors; or
(6) the occurrence of any other Event of Default with respect to
Securities of such series, as contemplated by Section 2.01 hereof.
(b) The Company shall file with the Trustee written notice of the
occurrence of any Event of Default within five Business Days of the Company's
becoming aware of any such Event of Default. In each and every such case, unless
the principal of all the Securities of that series shall have already become due
and payable, either the Trustee or the holders of not less than 33% in aggregate
principal amount of the Securities of that series then outstanding hereunder, by
notice in writing to the Company (and to the Trustee if given by such
Securityholders), may declare the principal (or, if any of such Securities are
Discount Securities, such portion of the principal amount thereof as may be
specified by their terms as contemplated by Section 2.01) of all the Securities
of that series to be due and payable immediately, and upon any such declaration
the same shall become and shall be immediately due and payable, anything
contained in this Indenture or in the Securities of that series or established
with respect to that series pursuant to Section 2.01 hereof to the contrary
notwithstanding.
(c) Section 6.01(b), however, is subject to the condition that if, at any
time after the principal of the Securities of that series shall have been so
declared due and payable, and before any judgment or decree for the payment of
the monies due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Securities of that series and the
principal of (and premium, if any, on) any and all Securities of that series
which shall have become due otherwise than by acceleration (with interest upon
such principal and premium, if any, and, to the extent that such payment is
enforceable under applicable law, upon overdue installments of interest, at the
rate per annum expressed in the Securities of that series to the date of such
payment or deposit) and the amount payable to the Trustee under Section 7.06,
and any and all defaults under the Indenture, other than the nonpayment of
principal on Securities of that series which shall not have become due by their
terms, shall have been remedied or waived as provided in Section 6.06, then and
in every such case the holders of a majority in aggregate principal amount of
the Securities of that series then outstanding, by written notice to the Company
and to the Trustee, may rescind and annul such declaration and its consequences
with respect to that series of Securities; but no such rescission and annulment
shall extend to or shall affect any subsequent default, or shall impair any
right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right with
respect to Securities of that series under this Indenture and such proceedings
shall have been discontinued or abandoned because of such rescission or
annulment or for any other reason or shall have been determined adversely to the
Trustee, then and in every such case the Company and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company and the Trustee shall continue as
though no such proceedings had been taken.
SECTION 6.02. (a) The Company covenants that in case an Event of Default
described in subsection 6.01(a)(1) or (a)(2) shall have occurred and be
continuing, upon demand of the Trustee, the Company will pay to the Trustee, for
the benefit of the holders of the Securities of that series, the whole amount
that then shall have become due and payable on all such Securities for principal
(and premium, if any) or interest, or both, as the case may be, with interest
upon the overdue principal (and premium, if any) and (to the extent that payment
of such interest is enforceable under applicable law and without duplication of
any other amounts paid by the Company in respect thereof) upon overdue
installments of interest at the rate per annum expressed in the Securities of
that series; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, and the amount payable
to the Trustee under Section 7.06.
(b) In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon the
Securities of that series and collect in the manner provided by law out of the
property of the Company or other obligor upon the Securities of that series
wherever situated the monies adjudged or decreed to be payable.
(c) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or other judicial
proceedings affecting the Company, any other obligor on such Securities, or the
creditors or property of either, the Trustee shall have power to intervene in
such proceedings and take any action therein that may be permitted by the court
and shall (except as may be otherwise provided by law) be entitled to file such
proofs of claim and other papers and documents as may be necessary or advisable
in order to have the claims of the Trustee and of the holders of Securities of
such series allowed for the entire amount due and payable by the Company or such
other obligor under this Indenture at the date of institution of such
proceedings and for any additional amount which may become due and payable by
the Company or such other obligor after such date, and to collect and receive
any monies or other property payable or deliverable on any such claim, and to
distribute the same after the deduction of the amount payable to the Trustee
under Section 7.06; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the holders of Securities of such
series to make such payments to the Trustee, and, in the event that the Trustee
shall consent to the making of such payments directly to such Securityholders,
to pay to the Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this Indenture, or
under any of the terms established with respect to Securities of that series,
may be enforced by the Trustee without the possession of any of such Securities,
or the production thereof at any trial or other proceeding relative thereto, and
any such suit or 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 payment to the Trustee of any amounts due under Section
7.06, be for the ratable benefit of the holders of the Securities of such
series.
In case of an Event of Default hereunder, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in the Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities of that series or the rights of any holder thereof or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
SECTION 6.03. Any monies collected by the Trustee pursuant to Section 6.02
with respect to a particular series of Securities shall be applied in the order
following, at the date or dates fixed by the Trustee and, in case of the
distribution of such monies on account of principal (or premium, if any) or
interest, upon presentation of the several Securities of that series, and
stamping thereon the payment, if only partially paid, and upon surrender thereof
if fully paid:
FIRST: To the payment of costs and expenses of collection and of
all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of the amounts then due and unpaid upon
Securities of such series for principal (and premium, if any) and interest, 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 premium, if any) and
interest, respectively; and
THIRD: To the Company.
SECTION 6.04. No holder of any Security of any series shall have any right
by virtue or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or with respect to
this Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless such holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance thereof with
respect to Securities of such series specifying such Event of Default, as
hereinbefore provided, and unless also the holders of not less than 33% in
aggregate principal amount of the Securities of such series then outstanding
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
failed to institute any such action, suit or proceeding; it being understood and
intended, and being expressly covenanted by the taker and holder of every
Security of such series with every other such taker and holder and the Trustee,
that no one or more holders of Securities of such series shall have any right in
any manner whatsoever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of the holders of any other
of such Securities, or to obtain or seek to obtain priority over or preference
to any other such holder, or to enforce any right under this Indenture, except
in the manner herein provided and for the equal, ratable and common benefit of
all holders of Securities of such series. For the protection and enforcement of
the provisions of this Section, each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provisions of this Indenture, however, the right
of any holder of any Security to receive payment of the principal of (and
premium, if any) and interest on such Security, as therein provided, on or after
the respective due dates expressed in such Security (or in the case of
redemption, on the redemption date), or to institute suit for the enforcement of
any such payment on or after such respective dates or redemption date, shall not
be impaired or affected without the consent of such holder.
SECTION 6.05. (a) All powers and remedies given by this Article to the
Trustee or to the Securityholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any others thereof or of any other powers
and remedies available to the Trustee or the holders of the Securities, by
judicial proceedings or otherwise, to enforce the performance or observance of
the covenants and agreements contained in this Indenture or otherwise
established with respect to such Securities.
(b) No delay or omission of the Trustee or of any holder of any of the
Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power, or
shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article or by law to the Trustee or to the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders.
SECTION 6.06. The holders of a majority in aggregate principal amount of
the Securities of any series at the time outstanding, determined in accordance
with Section 8.04, 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 such series;
provided, however, that such direction shall not be in conflict with any rule of
law or with this Indenture or unduly prejudicial to the rights of holders of
Securities of any other series at the time outstanding determined in accordance
with Section 8.04 not parties thereto. Subject to the provisions of Section
7.01, the Trustee shall have the right to decline to follow any such direction
if the Trustee in good faith shall, by a Responsible Officer or Officers of the
Trustee, determine that the proceeding so directed might involve the Trustee in
personal liability. The holders of a majority in aggregate principal amount of
the Securities of any series at the time outstanding affected thereby,
determined in accordance with Section 8.04, may on behalf of the holders of all
of the Securities of such series waive any past default in the performance of
any of the covenants contained herein or established pursuant to Section 2.01
with respect to such series and its consequences, except a default in the
payment of the principal of, or premium, if any, or interest on, any of the
Securities of that series as and when the same shall become due by the terms of
such Securities otherwise than by acceleration (unless such default has been
cured and a sum sufficient to pay all matured installments of interest and
principal otherwise than by acceleration and any premium has been deposited with
the Trustee (in accordance with Section 6.01(c))) or a call for redemption of
Securities of that series. Upon any such waiver, the default covered thereby
shall be deemed to be cured for all purposes of this Indenture and the Company,
the Trustee and the holders of the Securities of such series shall be restored
to their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon.
SECTION 6.07. The Trustee shall, within 90 days after the occurrence of a
default with respect to a particular series, transmit by mail, first class
postage prepaid, to the holders of Securities of that series, as their names and
addresses appear upon the Security Register, notice of all defaults with respect
to that series known to the Trustee, unless such defaults shall have been cured
or waived before the giving of such notice (the term "defaults" for the purposes
of this Section being hereby defined to be the events specified in subsections
(1), (2), (3), (4), (5), (6) and (7) of Section 6.01(a), not including any
periods of grace provided for therein and irrespective of the giving of notice
provided for by subsection (4) of Section 6.01(a)); provided, that, except in
the case of default in the payment of the principal of (or premium, if any) or
interest on any of the Securities of that series or in the payment of any
sinking or analogous fund installment established with respect to that series,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
and/or Responsible Officers, of the Trustee in good faith determine that the
withholding of such notice is in the interests of the holders of Securities of
that series; provided further, that in the case of any default of the character
specified in Section 6.01(a)(4) with respect to Securities of such series no
such notice to the holders of the Securities of that series shall be given until
at least 30 days after the occurrence thereof.
The Trustee shall not be deemed to have knowledge of any default, except
(i) a default under subsection (a)(1), (a)(2) or (a)(3) of Section 6.01 as long
as the Trustee is acting as paying agent for such series of Securities or (ii)
any default as to which the Trustee shall have received written notice or a
Responsible Officer charged with the administration of this Indenture shall have
obtained written notice.
SECTION 6.08. All parties to this Indenture agree, and each holder of any
Securities by his or her acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, 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 or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal amount of the
outstanding Securities of any series, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established pursuant to this
Indenture.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. (a) The Trustee, prior to the occurrence of an Event of
Default with respect to Securities of a series and after the curing of all
Events of Default with respect to Securities of that series which may have
occurred, shall undertake to perform with respect to Securities of such series
such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee. In case an Event of Default with respect to
Securities of a series has occurred (which has not been cured or waived), the
Trustee shall exercise with respect to Securities of that series such of the
rights and powers vested in it by this Indenture, and use th
same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with respect to
Securities of a series and after the curing or waiving of all such Events of
Default with respect to that series which may have occurred:
(i) the duties and obligations of the Trustee shall with respect
to Securities of such series be determined solely by the express provisions of
this Indenture, and the Trustee shall not be liable with respect to Securities
of such series except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may with respect to Securities of such series conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein);
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the written
direction of the holders of not less than a majority in principal amount
of the Securities of any series at the time outstanding relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee under this Indenture with respect to the Securities of that
series; and
(4) none of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur or risk personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if the Trustee reasonably believes that the
repayment of such funds or liability is not reasonably assured to it under the
terms of this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
(c) 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
7.01.
SECTION 7.02. Except as otherwise provided in Section 7.01:
(a) The Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, demand,
approval, bond, security or other paper or document believed by it (i) to be
genuine and (ii) to have been signed or presented by the proper party or
parties;
(b) Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Board Resolution or an Officers'
Certificate (unless other evidence in respect thereof is specifically prescribed
herein);
(c) The Trustee may consult with counsel of its selection and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted hereunder in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Securityholders, pursuant to the provisions of this Indenture, unless
such Securityholders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which may be
incurred therein or thereby; nothing herein contained shall, however, relieve
the Trustee of the obligation, upon the occurrence of an Event of Default with
respect to a series of the Securities (which has not been cured or waived) to
exercise with respect to Securities of that series such of the rights and powers
vested in it by this Indenture, and to use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs;
(e) The Trustee shall not be liable for any action taken or omitted to b
taken by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) 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, consent, direction, order, demand, approval,
bond, security, or other papers or documents, unless requested in writing so to
do by the holders of not less than a majority in principal amount of the
outstanding Securities of the particular series affected thereby (determined as
provided in Section 8.04); provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such costs, expenses or liabilities as a condition to so proceeding. The
reasonable expense of every such examination shall be paid by the Company or, if
paid by the Trustee, shall be repaid by the Company upon demand. Notwithstanding
the foregoing, the Trustee, in its direction, may make such further inquiry or
investigation into such facts or matters as it may see fit. In making any
investigation required or authorized by this subparagraph, the Trustee shall be
entitled to examine books, records and premises of the Company, personally or by
agent or attorney;
(g) 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 misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) The permissive right of the Trustee to do things enumerated in this
Indenture shall not be construed as a duty.
SECTION 7.03. (a) The recitals contained herein and in the Securities
(other than the Certificate of Authentication on the Securities) shall be taken
as the statements of the Company, and the Trustee assumes no responsibility for
the correctness of the same.
(b) The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for the use or application by the
Company of any of the Securities or of the proceeds of such Securities, or for
the use or application of any monies paid over by the Trustee in accordance with
any provision of this Indenture or established pursuant to Section 2.01, or for
the use or application of any monies received by any paying agent other than
the Trustee.
SECTION 7.04. The Trustee or any paying agent or Security Registrar, in
its individual or any other capacity, may become the owner or pledgee of
Securities with the same rights it would have if it were not Trustee, paying
agent or Security Registrar.
SECTION 7.05. Subject to the provisions of Section 11.04, all monies
received by the Trustee shall, until used or applied as herein provided, be held
in trust for the purposes for which they were received, but 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 monies received by it hereunder
except such as it may agree in writing with the Company to pay thereon.
SECTION 7.06. (a) The Company covenants and agrees to pay to the Trustee
from time to time, and the Trustee shall be entitled to, reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for all services rendered by it
in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Trustee, and the
Company will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the reasonable expenses and disbursements of its
counsel and agents and of all persons not regularly in its employ) except any
such expense, disbursement or advance as may arise from its negligence, willful
misconduct or bad faith. The Company also covenants to indemnify the Trustee
(and its officers, agents, directors and employees) for, and to hold it harmless
against, any loss, liability or expense incurred without negligence, willful
misconduct or bad faith on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust, including the
reasonable 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.
(b) The obligations of the Company under this Section to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of particular
Securities.
(c) Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default, the expenses (including reasonable charges
and expenses of its counsel) and compensation for its services are intended to
constitute expenses of administration under applicable federal or state
bankruptcy, insolvency or similar law.
(d) The provisions of this Section 7.06 shall survive the satisfaction and
discharge of this Indenture or the appointment of a successor trustee.
SECTION 7.07. Except as otherwise provided in Section 7.01, whenever in
the administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting to take any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the Trustee and
such certificate, in the absence of bad faith on the part of the Trustee, shall
be full warrant to the Trustee for any action taken, suffered or omitted to be
taken by it under the provisions of this Indenture upon the faith thereof.
SECTION 7.08. If the Trustee has acquired 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.
SECTION 7.09. There shall at all times be a Trustee with respect to the
Securities issued hereunder which shall at all times be a corporation organized
and doing business under the laws of the United States of America or any State
or Territory thereof or of the District of Columbia, or a corporation or other
person permitted to act as trustee by the Commission, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least 50 million dollars, and subject to supervision or examination by Federal,
State, Territorial, or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. The Company may not, nor may any person
directly or indirectly controlling, controlled by, or under common control with
the Company, serve as Trustee. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 7.10.
SECTION 7.10. (a) The Trustee or any successor hereafter appointed, may at
any time resign with respect to the Securities of one or more series by giving
written notice thereof to the Company and by transmitting notice of resignation
by mail, first class postage prepaid, to the Securityholders of such series, as
their names and addresses appear upon the Security Register. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee
with respect to Securities of such series by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee shall have been so appointed and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee with respect to Securities of such series, or any
Securityholder of that series who has been a bona fide holder of a Security or
Securities for at least six months may, subject to the provisions of Section
6.08, on behalf of himself and all others similarly situated, petition any such
court for the appointment of a successor trustee. Such court may thereupon after
such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of Section
7.08 after written request therefor by the Company or by any Securityholder who
has been a bona fide holder of a Security or Securities for at least six months;
or
(2) The Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder; 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 control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, the Company may remove the Trustee with respect to all
Securities and appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the successor trustee,
or, subject to the provisions of Section 6.08, unless, with respect to
subsection (b)(1) above, the Trustee's duty to resign is stayed as provided in
Section 310(b) of the Trust Indenture Act, any Securityholder who has been a
bona fide holder of a Security or Securities 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 and the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as it may
deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities of any series at the time outstanding may at any time remove the
Trustee with respect to such series and appoint a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Securities of a series pursuant to any of
the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section may be
appointed with respect to the Securities of one or more series or all of such
series, and at any time there shall be only one Trustee with respect to the
Securities of any particular series.
SECTION 7.11. (a) 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, subject
to any prior lien provided for in Section 7.06(b).
(b) 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)
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, 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 that no Trustee shall be responsible for any act or
failure to act on the part of any other Trustee hereunder; and upon the
execution and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein,
such retiring Trustee shall with respect to the Securities of that or those
series to which the appointment of such successor trustee relates have no
further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture, 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, to the extent contemplated by
such supplemental indenture, the 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.
(c) 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
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless at the time
of such acceptance such successor trustee shall be qualified under the Trust
Indenture Act and eligible under this Article.
(e) Upon acceptance of appointment by a successor trustee as provided in
this Section, the Company shall transmit notice of the succession of such
trustee hereunder by mail, first class postage prepaid, to the Securityholders,
as their names and addresses appear upon the Security Register. If the Company
fails to transmit such notice within ten days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company.
SECTION 7.12. 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 of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be qualified under the provisions of
the Trust Indenture Act and eligible under the provisions of Section 7.09,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding. 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 7.13. If and when the Trustee shall become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be subjec
to the provisions of the Trust Indenture Act regarding collection of claims
against the Company (or any other obligor upon the Securities).
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Whenever in this Indenture it is provided that the holders
of a majority or specified percentage in aggregate principal amount of the
Securities of a particular series may take any action (including the making of
any demand or request, the giving of any notice, consent or waiver or the taking
of any other action), the fact that at the time of taking any such action the
holders of such majority or specified percentage of that series have joined
therein may be evidenced by any instrument or any number of instruments of
similar tenor executed by such holders of Securities of that series in person or
by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders of any series any
request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Securityholders of record at the
close of business on the record date shall be deemed to be Securityholders for
the purposes of determining whether Securityholders of the requisite proportion
of outstanding Securities of that series have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the outstanding Securities of that series
shall be computed as of the record date; provided that no such authorization,
agreement or consent by such Securityholders on the record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
In determining whether the holders of the requisite aggregate principal
amount of Securities of a particular series have concurred in any direction,
consent or waiver under this Indenture, the principal amount of a Discount
Security that shall be deemed to be outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 6.01.
SECTION 8.02. Subject to the provisions of Section 7.01, proof of the
execution of any instrument by a Securityholder (such proof will not require
notarization) or his agent or proxy and proof of the holding by any person of
any of the Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such person of any
instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Securities shall be proved by the Security Register
of such Securities or by a certificate of the Security Registrar thereof.
(c) The Trustee may require such additional proof of any matter referred
to in this Section as it shall deem necessary.
SECTION 8.03. Prior to the due presentment for registration of transfer of
any Security, the Company, the Trustee, any paying agent and any Security
Registrar may deem and treat the person in whose name such Security shall be
registered upon the books of the Company as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notice of
ownership or writing thereon made by anyone other than the Security Registrar)
for the purpose of receiving payment of or on account of the principal of and
premium, if any, and (subject to Section 2.03) interest on such Security and for
all other purposes; and neither the Company nor the Trustee nor any paying agent
nor any Security Registrar shall be affected by any notice to the contrary.
SECTION 8.04. In determining whether the holders of the requisite
aggregate principal amount of Securities of a particular series have concurred
in any direction, consent or waiver under this Indenture, Securities of that
series which are owned by the Company or any other obligor on the Securities of
that series or by any person directly or indirectly controlling or controlled by
or under common control with the Company or any other obligor on the Securities
of that series shall be disregarded and deemed not to be outstanding for the
purpose of any such determination, except that for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, consent
or waiver, only Securities of such series which the Trustee actually knows are
so owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as outstanding for the purposes of this Section, if
the pledgee shall establish to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is not a
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In case of a
dispute as to such right, any decision by the Trustee taken upon the advice of
counsel shall be full protection to the Trustee.
SECTION 8.05. At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 8.01, of the taking of any action by the holders
of the majority or percentage in aggregate principal amount of the Securities of
a particular series specified in this Indenture in connection with such action,
any holder of a Security of that series which is shown by the evidence to be
included in the Securities the holders of which have consented to such action
may, by filing written notice with the Trustee, and upon proof of holding as
provided in Section 8.02, revoke such action so far as concerns such Security.
Except as aforesaid any such action taken by the holder of any Security shall be
conclusive and binding upon such holder and upon all future holders and owners
of such Security, and of any Security issued in exchange therefor, on
registration of transfer thereof or in place thereof, irrespective of whether or
not any notation in regard thereto is made upon such Security. Any action taken
by the holders of the majority or percentage in aggregate principal amount of
the Securities of a particular series specified in this Indenture in connection
with such action shall be conclusively binding upon the Company, the Trustee and
the holders of all the Securities of that series.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. In addition to any supplemental indenture otherwise
authorized by this Indenture, the Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as then in effect), without the consent of
the Securityholders, for one or more of the following purposes:
(a) to evidence the succession of another person to the Company, and the
assumption by any such successor of the covenants of the Company contained
herein or otherwise established with respect to the Securities; or
(b) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the holders of the
Securities of all or any series, and to make the occurrence, or the occurrence
and continuance, of a default in any of such additional covenants, restrictions,
conditions or provisions a default or an Event of Default with respect to such
series permitting the enforcement of all or any of the several remedies provided
in this Indenture as herein set forth; provided, however, that in respect of any
such additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default or may limit the right of
the holders of a majority in aggregate principal amount of the Securities of
such series to waive such default; or
(c) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture as shall not be inconsistent with the provisions of
this Indenture and shall not adversely affect the interests of the holders of
the Securities of any series; or
(d) to change or eliminate any of the provisions of this Indenture or to
add any new provision to this Indenture; provided, however, that such change,
elimination or addition shall become effective only when there is no Security
outstanding of any series created prior to the execution of such supplemental
indenture that is entitled to the benefit of such provisions; or
(e) to establish the form or terms of Securities of any series as
permitted by Section 2.01; or
(f) to add any additional Events of Default with respect to all or any
series of outstanding Securities; or
(g) to provide collateral security for the Securities; or
(h) to provide for the authentication and delivery of bearer securities
and coupons appertaining thereto representing interest, if any, thereon and for
the procedures for the registration, exchange and replacement thereof and for
the giving of notice to, and the solicitation of the vote or consent of, the
holders thereof, and for any other matters incidental thereto; or
(i) to evidence and provide for the acceptance of appointment hereunder by
a separate or 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 Article
Seven; or
(j) to change any place or places where (1) the principal of and premium,
if any, and interest, if any, on all or any series of Securities shall be
payable, (2) all or any series of Securities may be surrendered for registration
of transfer, (3) all or any series of Securities may be surrendered for exchange
and (4) notices and demands to or upon the Company in respect of all or any
series of Securities and this Indenture may be served; provided, however, that
any such place shall be located in New York, New York or be the principal office
of the Company; or
(k) to provide for the payment by the Company of additional amounts in
respect of certain taxes imposed on certain holders and for the treatment of
such additional amounts as interest and for all matters incidental thereto; or
(l) to provide for the issuance of Securities denominated in a currency
other than Dollars or in a composite currency and for all matters incidental
thereto.
Without limiting the generality of the foregoing, if the Trust Indenture
Act as in effect at the date of the execution and delivery of this Indenture or
at any time thereafter shall be amended and
(x) if any such amendment shall require one or more changes to any
provisions hereof or the inclusion herein of any additional provisions, or
shall by operation of law be deemed to effect such changes or incorporate
such provisions by reference or otherwise, this Indenture shall be deemed
to have been amended so as to conform to such amendment to the Trust
Indenture Act, and the Company and the Trustee may, without the consent of
any Securityholders, enter into a supplemental indenture hereto to effect
or evidence such changes or additional provisions; or
(y) if any such amendment shall permit one or more changes to, or the
elimination of, any provisions hereof which, at the date of the execution
and delivery hereof or at any time thereafter, are required by the Trust
Indenture Act to be contained herein, this Indenture shall be deemed to
have been amended to effect such changes or elimination, and the Company
and the Trustee may, without the consent of any Securityholders, enter
into a supplemental indenture hereto to effect such changes or
elimination; or
(z) if, by reason of any such amendment, one or more provisions
which, at the date of the execution and delivery hereof or at any time
thereafter, are required by the Trust Indenture Act to be contained herein
shall be deemed to be incorporated herein by reference or otherwise, or
otherwise made applicable hereto, and shall no longer be required to be
contained herein, the Company and the Trustee may, without the consent of
any Securityholders, enter into a supplemental indenture hereto to effect
the elimination of such provisions.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, and to make any further appropriate
agreements and stipulations which may be therein contained, but the Trustee
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.
Any supplemental indenture authorized by the provisions of this Section
may be executed by the Company and the Trustee without the consent of the
holders of any of the Securities at the time outstanding, notwithstanding any of
the provisions of Section 9.02.
SECTION 9.02. With the consent (evidenced as provided in Section 8.01) of
the holders of not less than a majority in aggregate principal amount of the
Securities of each series affected by such supplemental indenture or indentures
at the time outstanding, the Company, when authorized by a Board Resolution, and
the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner the
rights of the holders of the Securities of such series under this Indenture;
provided, however, that no such supplemental indenture shall (i) extend the
fixed maturity of any Securities of any series, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of interest thereon,
or reduce any premium payable upon the redemption thereof, or reduce the amount
of the principal of a Discount Security that would be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 6.01,
without the consent of the holders of each Security then outstanding and
affected, (ii) reduce the aforesaid percentage of Securities, the holders of
which are required to consent to any such supplemental indenture, or reduce the
percentage of Securities, the holders of which are required to waive any default
and its consequences, without the consent of the holder of each Security then
outstanding and affected thereby, or (iii) modify any provision of Section
6.01(c) (except to increase the percentage of principal amount of securities
required to rescind and annul any declaration of amounts due and payable under
the Securities) without the consent of the holders of each Security then
outstanding and affected thereby.
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders required
to consent thereto as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture that has expressly been included solely for the
benefit of one or more particular series of Securities, or that modifies the
rights of 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 the consent of the Securityholders of any
series affected thereby under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth in
general terms the substance of such supplemental indenture, to the
Securityholders of all series affected thereby as their names and addresses
appear upon the Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 9.03. Upon the execution of any supplemental indenture pursuant to
the provisions of this Article or of Section 10.01, this Indenture shall, with
respect to such series, be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Securities of the series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.04. Securities of any series, affected by a supplemental
indenture, authenticated and delivered after the execution of such supplemental
indenture pursuant to the provisions of this Article, Article Two or Article
Seven or of Section 10.01, may bear a notation in form approved by the Company,
provided such form meets the requirements of any exchange upon which such series
may be listed, as to any matter provided for in such supplemental indenture.
If the Company shall so determine, new
Securities of that series so modified as to conform, in the opinion of the Board
of Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Securities of that series then
outstanding.
SECTION 9.05. The Trustee, subject to the provisions of Section 7.01,
shall be entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article is authorized or permitted by, and conforms
to, the terms of this Article and that it is proper for the Trustee under the
provisions of this Article to join in the execution thereof.
ARTICLE TEN
CONSOLIDATION, MERGER AND SALE
SECTION 10.01. Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the Company with or into
any other corporation or corporations (whether or not affiliated with the
Company), or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any sale,
conveyance, transfer or other disposition of all or substantially all of the
property of the Company or its successor or successors as an entirety, or
substantially as an entirety, to any other corporation (whether or not
affiliated with the Company or its successor or successors) authorized to
acquire and operate the same; provided, however, the Company hereby covenants
and agrees that, upon any such consolidation, merger, sale, conveyance, transfer
or other disposition, the due and punctual payment of the principal of (premium,
if any) and interest on all of the Securities of all series in accordance with
the terms of each series, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of this Indenture
with respect to each series or established with respect to such series pursuant
to Section 2.01 to be kept or performed by the Company, shall be expressly
assumed, by supplemental indenture (which shall conform to the provisions of the
Trust Indenture Act as then in effect) satisfactory in form to the Trustee
executed and delivered to the Trustee by the entity formed by such
consolidation, or into which the Company shall have been merged, or by the
entity which shall have acquired such property.
SECTION 10.02. (a) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual payment
of the principal of and premium, if any, and interest on all of the Securities
of all series outstanding and the due and punctual performance of all of the
covenants and conditions of this Indenture or established with respect to each
series of the Securities pursuant to Section 2.01 to be kept or performed by the
Company with respect to each series, such successor corporation shall succeed to
and be substituted for the Company, with the same effect as if it had been named
herein as the party of the first part, and thereupon (provided, that in the case
of a lease, the term of the lease is at least as long as the longest maturity of
any Securities outstanding at such time) the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the
Securities. Such successor corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company or any other
predecessor obligor on the Securities, any or all of the Securities issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor company, instead
of the Company, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the predecessor Company to the Trustee for authentication, and any Securities
which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities so issued shall in
all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof.
(b) In case of any such consolidation, merger, sale, conveyance, transfer
or other disposition such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued as may be
appropriate.
(c) Nothing contained in this Indenture or in any of the Securities shall
prevent the Company from merging into itself or acquiring by purchase or
otherwise all or any part of the property of any other corporation (whether or
not affiliated with the Company).
SECTION 10.03. The Trustee, subject to the provisions of Section 7.01, may
receive an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, conveyance, transfer or other disposition, and any
such assumption, comply with the provisions of this Article.
ARTICLE ELEVEN
DEFEASANCE AND CONDITIONS TO DEFEASANCE; UNCLAIMED MONIES
SECTION 11.01. Securities of a series may be defeased in accordance with
their terms and, unless the Company Order or supplemental indenture establishing
the series otherwise provides, in accordance with this Article.
The Company at any time may terminate as to a series all of its
obligations for such series under this Indenture ("legal defeasance option").
The Company at any time may terminate as to a series its obligations, if any,
under any restrictive covenant which may be applicable to a particular series
("covenant defeasance option"). However, in the case of the legal defeasance
option, the Company's obligations in Sections 2.05, 2.07, 4.02, 7.06, 7.10 and
11.04 shall survive until the Securities of the series are no longer
outstanding; thereafter the Company's obligations in Sections 7.06, 7.10 and
11.04 shall survive.
The Company may exercise its legal defeasance option notwithstanding its
prior exercise of its covenant defeasance option. If the Company exercises its
legal defeasance option, a series may not be accelerated because of an Event of
Default. If the Company exercises its covenant defeasance option, a series may
not be accelerated by reference to any restrictive covenant which may be
applicable to a particular series so defeased under the terms of the series.
The Company may exercise as to a series its legal defeasance option or its
covenant defeasance option if:
(1) The Company irrevocably deposits in trust with the Trustee or
another trustee (x) money in an amount which shall be sufficient; or (y)
Eligible Obligations the principal of and the interest on which when due,
without regard to reinvestment thereof, will provide moneys, which,
together with the money, if any, deposited or held by the Trustee or such
other trustee, shall be sufficient; or (z) a combination of money and
Eligible Obligations which shall be sufficient, to pay the principal of
and premium, if any, and interest, if any, due and to become due on such
Securities on or prior to maturity;
(2) the Company delivers to the Trustee a Certificate to the effect
that the requirements set forth in clause (1) above have been satisfied;
(3) immediately after the deposit no Default exists; and
(4) the Company delivers to the Trustee an Opinion of Counsel to the
effect that holders of the series will not recognize income, gain or loss
for Federal income tax purposes as a result of the defeasance but will
realize income, gain or loss on the Securities, including payments of
interest thereon, in the same amounts and in the same manner and at the
same time as would have been the case if such defeasance had not occurred
and which, in the case of legal defeasance, shall be (x) accompanied by a
ruling of the Internal Revenue Service issued to the Company or (y) based
on a change in law or regulation occurring after the date hereof; and
(5) the deposit specified in paragraph (1) above shall not result in
the Company, the Trustee or the trust created in connection with such
defeasance being deemed an "investment company" under the Investment Company Act
of 1940, as amended.
In the event the Company exercises its option to effect a covenant
defeasance with respect to the Securities of any series as described above and
the Securities of that series are thereafter declared due and payable because of
the occurrence of any Event of Default other than the Event of Default caused by
failing to comply with the covenants which are defeased, the amount of money and
securities on deposit with the Trustee may not be sufficient to pay amounts due
on the Securities of that series at the time of the acceleration resulting from
such Event of Default. However, the Company shall remain liable for such
payments.
SECTION 11.02. All monies or Eligible Obligations deposited with the
Trustee pursuant to Section 11.01 shall be held in trust and shall be available
for payment as due, either directly or through any paying agent (including the
Company acting as its own paying agent), to the holders of the particular series
of Securities for the payment or redemption of which such monies or Eligible
Obligations have been deposited with the Trustee.
SECTION 11.03. In connection with the satisfaction and discharge of this
Indenture all monies or Eligible Obligations then held by any paying agent under
the provisions of this Indenture shall, upon demand of the Company, be paid to
the Trustee and thereupon such paying agent shall be released from all further
liability with respect to such monies or Eligible Obligations.
SECTION 11.04. Any monies or Eligible Obligations deposited with any
paying agent or the Trustee, or then held by the Company, in trust for payment
of principal of or premium or interest on the Securities of a particular series
that are not applied but remain unclaimed by the holders of such Securities for
at least two years after the date upon which the principal of (and premium, if
any) or interest on such Securities shall have respectively become due and
payable, upon the written request of the Company and unless otherwise required
by mandatory provisions of applicable escheat or abandoned or unclaimed property
law, shall be repaid to the Company on May 31 of each year or (if then held by
the Company) shall be discharged from such trust; and thereupon the paying agent
and the Trustee shall be released from all further liability with respect to
such monies or Eligible Obligations, and the holder of any of the Securities
entitled to receive such payment shall thereafter, as an unsecured general
creditor, look only to the Company for the payment thereof.
SECTION 11.05. In connection with any satisfaction and discharge of this
Indenture pursuant to this Article Eleven, the Company shall deliver to the
Trustee an Officers' Certificate and an Opinion of Counsel to the effect that
all conditions precedent in this Indenture provided for relating to such
satisfaction and discharge have been complied with.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01. No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, past, present or future as such, of the
Company or of any predecessor or successor corporation, either directly or
through the Company or any such predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors as such, of
the Company or of any predecessor or successor corporation, or any of them,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Securities or implied therefrom; and that any and all such
personal liability of every name and nature, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director as such,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Securities or implied therefrom, are hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issuance of such Securities.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01. All the covenants, stipulations, promises and agreements in
this Indenture contained by or on behalf of the Company shall bind its
successors and assigns, whether so expressed or not.
SECTION 13.02. Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the corresponding board, committee or officer of any corporation that
shall at the time be the lawful sole successor of the Company.
SECTION 13.03. The Company by instrument in writing executed by authority
of two-thirds of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company under this Indenture and
thereupon such power so surrendered shall terminate both as to the Company and
as to any successor corporation.
SECTION 13.04. Except as otherwise expressly provided herein any notice or
demand which by any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the holders of Securities to or on the
Company may be given or served by being deposited first class postage prepaid in
a post office letter box addressed (until another address is filed in writing by
the Company with the Trustee), as follows: Indiana Michigan Power Company, One
Summit Square, P.O. Box 60, Fort Wayne, Indiana 46801, with a copy to the
Company in care of American Electric Power Service Corporation, 1 Riverside
Plaza, Columbus, Ohio 43215, Attention: Treasurer. Any notice, election, request
or demand by the Company or any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made in writing at the Corporate Trust Office of the Trustee.
SECTION 13.05. This Indenture and each Security shall be deemed to be a
contract made under the laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of said State.
SECTION 13.06. (a) Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
in this Indenture (other than the certificate provided pursuant to Section
5.03(d) of this Indenture) shall include (1) a statement that the person making
such certificate or opinion has read such covenant or condition; (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 such person, he or she has made
such examination or investigation as is necessary to enable him or her 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 or not, in the opinion of
such person, such condition or covenant has been complied with.
SECTION 13.07. Except as provided pursuant to Section 2.01 pursuant to a
Company Order, or established in one or more indentures supplemental to this
Indenture, in any case where the date of maturity of principal or an Interest
Payment Date of any Security or the date of redemption, purchase or repayment of
any Security shall not be a Business Day then payment of interest or principal
(and premium, if any) may be made on the next succeeding Business Day with the
same force and effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal date.
SECTION 13.08. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by the Trust Indenture
Act, such imposed duties shall control.
SECTION 13.09. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 13.10. In case any one or more of the provisions contained in this
Indenture or in the Securities of any series shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Indenture or of
such Securities, but this Indenture and such Securities shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein or therein.
SECTION 13.11. The Company will have the right at all times to assign any
of its rights or obligations under the Indenture to a direct or indirect wholly
owned subsidiary of the Company; provided that, in the event of any such
assignment, the Company will remain liable for all such obligations. Subject to
the foregoing, this Indenture is binding upon and inures to the benefit of the
parties thereto and their respective successors and assigns. This Indenture may
not otherwise be assigned by the parties thereto.
SECTION 13.12. The Article and Section Headings in this Indenture and the
Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 13.13. Whenever this Indenture provides for any action by, or the
determination of any rights of, holders of Securities of any series in which not
all of such Securities are denominated in the same currency, in the absence of
any provision to the contrary in the form of Security of any particular series,
any amount in respect of any Security denominated in a currency other than
Dollars shall be treated for any such action or determination of rights as that
amount of Dollars that could be obtained for such amount on such reasonable
basis of exchange and as of the record date with respect to Securities of such
series (if any) for such action or determination of rights (or, if there shall
be no applicable record date, such other date reasonably proximate to the date
of such action or determination of rights) as the Company may specify in a
written notice to the Trustee or, in the absence of such written notice, as the
Trustee may determine.
The Bank of New York, as Trustee, hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions hereinabove set
forth.
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.
INDIANA MICHIGAN POWER COMPANY
By___________________
Treasurer
Attest:
By_____________________
Secretary
THE BANK OF NEW YORK,
as Trustee
By________________________
Vice President
Attest:
By_____________________
Trust Officer
State of Ohio }
} ss:
County of Franklin }
On this __st day of ________, 1998, personally appeared before me, a
Notary Public within and for said County in the State aforesaid, Armando A. Pena
and John F. Di Lorenzo, Jr., to me known and known to me to be respectively the
Treasurer and Secretary of INDIANA MICHIGAN POWER COMPANY, one of the
corporations named in and which executed the foregoing instrument, who severally
acknowledged that they did sign and seal said instrument as such Treasurer and
Secretary for and on behalf of said corporation and that the same is their free
act and deed as such Treasurer and Secretary, respectively, and the free and
corporate act and deed of said corporation.
In Witness Whereof, I have hereunto set my hand and notarial seal this __
day of _________, 1998.
[Notarial Seal]
----------------------------
Notary Public, State of Ohio
My Commission Expires: 7-12-99
State of ________ } } ss:
County of _______ }
Be it remembered, that on this ____ day of ________, ____, personally
appeared before me the undersigned, a Notary Public within and for said County
and State, The Bank of New York, one of the corporations named in and which
executed the foregoing instrument, by _____________ one of its Vice Presidents,
and by ________________, one of its Trust Officers, to me known and known by me
to be such Vice President and Trust Officer, respectively, who severally duly
acknowledged the signing and sealing of the foregoing instrument to be their
free act and voluntary deed, and the free act and voluntary deed of each of them
as such Vice President and Trust Officer, respectively, and the free act and
voluntary deed of said corporation, for the uses and purposes therein expressed
and mentioned.
In Witness Whereof, I have hereunto set my hand and notarial seal this
____ day of ________, ____.
[Notarial Seal]
------------------------------------
Notary Public, State of ________
My Commission Expires: ________
Exhibit 4(b)
__________ __, 1998
Company Order and Officers' Certificate
Unsecured Notes, Series _
The Bank of New York, as Trustee
101 Barclay Street, Floor 21W
New York, New York 10286
Attn: Corporate Trust Division
Ladies and Gentlemen:
Pursuant to Article Two of the Indenture, dated as of _________ 1, 1998 (as it
may be amended or supplemented, the "Indenture"), from Indiana Michigan Power
Company (the "Company") to The Bank of New York, as trustee (the "Trustee"), and
the Board Resolutions dated _____ __, 1998, a copy of which certified by the
Secretary or an Assistant Secretary of the Company is being delivered herewith
under Section 2.01 of the Indenture, and unless otherwise provided in a
subsequent Company Order pursuant to Section 2.04 of the Indenture,
1. The Company's Unsecured Notes, Series __ (the "Notes") are hereby
established and shall be subject to a Periodic Offering. Fixed Rate Notes shall
be in substantially the form attached hereto as Exhibit 1 and Floating Rate
Notes shall be in substantially the form attached hereto as Exhibit 2.
2. The terms and characteristics of the Notes shall be as follows
(the numbered clauses set forth below corresponding to the numbered subsections
of Section 2.01 of the Indenture, with terms used and not defined herein having
the meanings specified in the Indenture):
(i) the aggregate principal amount of Notes which may be
authenticated and delivered under the Indenture shall be limited to
$___,000,000, except as contemplated in Section 2.01(i) of the Indenture;
(ii) the date or dates on which the principal of the Notes
shall be payable shall be determined by an officer of the Company and
communicated to the Trustee by Instructions, as defined below, or
otherwise in accordance with procedures, acceptable to the Trustee,
specified in a Company Order or Orders (both of such methods of
determination being hereinafter referred to as "determined pursuant
to Instructions); provided, however, that no Note shall have a term
of less than nine months or more than 50 years;
(iii) interest shall accrue from the date of authentication
of the Notes; with respect to fixed rate Notes, the Interest Payment
Dates on which such interest will be payable shall be _____ 1 and
_________ 1 or such other date or dates as determined pursuant to
Instructions, with respect to floating rate Notes, the Interest
Payment Dates shall be as determined pursuant to Instructions; the
Regular Record Date shall be the fifteenth calendar day immediately
preceding the related Interest Payment Date or such other date or
dates as determined pursuant to Instructions; provided however that
if the Original Issue Date of a Note shall be after a Regular Record
Date and before the corresponding Interest Payment Date, payment of
interest shall commence on the second Interest Payment Date
succeeding such Original Issue Date and shall be paid to the Person
in whose name this Note was registered on the Regular Record Date for
such second Interest Payment Date; and provided further, that
interest payable on Stated Maturity Date or any Redemption Date shall
be paid to the Person to whom principal shall be paid;
(iv) the interest rate or rates, or interest rate formula
or formulas, if any, at which the Notes, or any Tranche thereof, shall bear
interest shall be determined pursuant to Instructions;
(v) the terms, if any, regarding the redemption, purchase
or repayment of such series, shall be determined pursuant to Instructions;
(vi) (a) the Notes shall be issued in the form of a Global
Note; (b) the Depositary for such Global Note shall be The Depository Trust
Company; and (c) the procedures with respect to transfer and exchange of Global
Notes shall be as set forth in the form of Note attached hereto;
(vii) the title of the Notes shall be "Unsecured Medium
Term Notes, Series __;
(viii) the form of the Notes shall be as set forth in
Paragraph 1, above;
(ix) the maximum interest rate on fixed rate Notes shall
not exceed by 3.5% the yield to maturity at the date of pricing on United States
Treasury Bonds of comparable maturity and the initial interest rate on any
floating rate Note shall not exceed 9%;
(x) the Notes shall be subject to a Periodic Offering;
(xi) not applicable;
(xii) any other information necessary to complete the Notes
shall be determined pursuant to Instructions;
(xiii) not applicable;
(xiv) not applicable;
(xv) not applicable;
(xvi) whether any Notes shall be issued as Discount
Securities and the terms thereof shall be determined pursuant to Instructions;
(xvii) not applicable;
(xviii) not applicable; and
(xix) any other terms of the Notes not inconsistent with
the Indenture may be determined pursuant to Instructions.
3. You are hereby requested to authenticate, from time to time after
the date hereof and in the manner provided by the Indenture, such aggregate
principal amount of the Notes not to exceed $___,000,000 as shall be set forth
in Instructions (the "Instructions") in substantially the form attached hereto
as Exhibit 3 for Fixed Rate Notes and Exhibit 4 for Floating Rate Notes.
4. You are hereby requested to hold the Notes authenticated pursuant
to each of the Instructions in accordance with the Administrative Procedures
attached as Exhibit A to the Selling Agency Agreement dated June 18, 1998,
between the Company and each of the agents named therein.
5. Concurrently with this Company Order, an Opinion of Counsel under
Sections 2.04 and 13.06 of the Indenture is being delivered to you.
6. The undersigned Armando A. Pena and John F. Di Lorenzo, Jr., the
Treasurer and Secretary, respectively, of the Company do hereby certify that:
(i) we have read the relevant portions of the Indenture,
including without limitation the conditions precedent provided for therein
relating to the action proposed to be taken by the Trustee as requested in this
Company Order and Officers' Certificate, and the definitions in the Indenture
relating thereto;
(ii) we have read the Board Resolutions of the Company and
the Opinion of Counsel referred to above;
(iii) we have conferred with other officers of the Company,
have examined such records of the Company and have made such other investigation
as we deemed relevant for purposes of this certificate;
(iv) in our opinion, we have made such examination or
investigation as is necessary to enable us to express an informed opinion as to
whether or not such conditions have been complied with; and
(v) on the basis of the foregoing, we are of the opinion
that all conditions precedent provided for in the Indenture relating to the
action proposed to be taken by the Trustee as requested herein have been
complied with.
Kindly acknowledge receipt of this Company Order and Officers' Certificate,
including the documents listed herein, and confirm the arrangements set forth
herein by signing and returning the copy of this document attached hereto.
Very truly yours,
INDIANA MICHIGAN POWER COMPANY
By: __________________________
Treasurer
And: _________________________
Secretary
Acknowledged by Trustee:
By: _____________________
Exhibit 1
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment, and any certificate
to be issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.]
No.
INDIANA MICHIGAN POWER COMPANY
Unsecured Note, Series __
(Fixed Rate)
CUSIP: Original Issue Date:
Stated Maturity: Interest Rate:
Principal Amount:
Redeemable: Yes ____ No ____
In Whole: Yes ____ No ____
In Part: Yes ____ No ____
Initial Redemption Date:
Redemption Limitation Date:
Initial Redemption Price:
Reduction Percentage:
INDIANA MICHIGAN POWER COMPANY, a corporation duly organized and existing
under the laws of the State of Indiana (herein referred to as the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the Principal Amount specified above on Stated Maturity
specified above, and to pay interest on said Principal Amount from the Original
Issue Date specified above or from the most recent interest payment date (each
such date, an "Interest Payment Date") to which interest has been paid or duly
provided for, [semi-annually in arrears on _______ 1 and _________ 1 in each
year,] commencing (except as provided in the following sentence) with the
Interest Payment Date next succeeding the Original Issue Date specified above,
at the Interest Rate per annum specified above, until the Principal Amount shall
have been paid or duly provided for. Interest shall be computed on the basis of
a 36 day year of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date, as provided in the Indenture, as hereinafter defined,
shall be paid to the Person in whose name this Note (or one or more Predecessor
Securities) shall have been registered at the close of business on the Regular
Record Date with respect to such Interest Payment Date, which shall be the
fifteenth calendar day (whether or not a Business Day), as the case may be,
immediately preceding such Interest Payment Date; provided however that if the
Original Issue Date of this Note shall be after a Regular Record Date and before
the corresponding Interest Payment Date, payment of interest shall commence on
the second Interest Payment Date succeeding such Original Issue Date and shall
be paid to the Person in whose name this Note was registered on the Regular
Record Date for such second Interest Payment Date; and provided further, that
interest payable on Stated Maturity or any Redemption Date shall be paid to the
Person to whom principal shall be paid. Any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and shall be paid as provided in said Indenture.
If any Interest Payment Date, any Redemption Date or Stated Maturity is
not a Business Day, then payment of the amounts due on this Note on such date
will be made on the next succeeding Business Day, and no interest shall accrue
on such amounts for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be. The principal of (and
premium, if any) and the interest on this Note shall be payable at the office or
agency of the Company maintained for that purpose in the Borough of Manhattan,
the City of New York, New York, in any coin or currency of the United States of
America which at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest (other than interest
payable on Stated Maturity or any Redemption Date) may be made at the option of
the Company by check mailed to the registered holder at such address as shall
appear in the Note Register.
This Note is one of a duly authorized series of Notes of the Company
(herein sometimes referred to as the "Notes"), specified in the Indenture, all
issued or to be issued in one or more series under and pursuant to an Indenture
dated as of _________ 1, 1998 duly executed and delivered between the Company
and The Bank of New York, a corporation organized and existing under the laws of
the State of New York, as Trustee (herein referred to as the "Trustee") (such
Indenture, as originally executed and delivered and as thereafter supplemented
and amended being hereinafter referred to as the "Indenture"), to which
Indenture and all indentures supplemental thereto or Company Orders reference is
hereby made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the holders of
the Notes. By the terms of the Indenture, the Notes are issuable in series which
may vary as to amount, date of maturity, rate of interest and in other respects
as in the Indenture provided. This Note is one of the series of Notes designated
on the face hereof.
[If so specified on the face hereof and subject to the terms of Article
Three of the Indenture, this Note is subject to redemption at any time on or
after the Initial Redemption Date specified on the face hereof, as a whole or,
if specified, in part, at the election of the Company, at the applicable
redemption price (as described below) plus any accrued but unpaid interest to
the date of such redemption. Unless otherwise specified on the face hereof, such
redemption price shall be the Initial Redemption Price specified on the face
hereof for the twelve-month period commencing on the Initial Redemption Date and
shall decline for the twelve-month period commencing on each anniversary of the
Initial Redemption Date by a percentage of principal amount equal to the
Reduction Percentage specified on the face hereof until such redemption price is
100% of the principal amount of this Note to be redeemed.]
[Notwithstanding the foregoing, the Company may not, prior to the
Redemption Limitation Date, if any, specified on the face hereof, redeem any
Note of this series and Tranche as contemplated above as a part of, or in
anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an effective interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than the effective interest cost the Company (similarly calculated) of this
Note.]
[This Note shall be redeemable to the extent set forth herein and in the
Indenture upon not less than thirty, but not more than sixty, days previous
notice by mail to the registered owner.]
The Company shall not be required to (i) issue, exchange or register the
transfer of any Notes during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of less than all
the outstanding Notes of the same series and Tranche and ending at the close of
business on the day of such mailing, nor (ii) register the transfer of or
exchange of any Notes of any series or portions thereof called for redemption.
This Global Note is exchangeable for Notes in definitive registered form only
under certain limited circumstances set forth in the Indenture.
In the event of redemption of this Note in part only, a new Note or Notes
of this series and Tranche, of like tenor, for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the surrender of this Note.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Notes may be declared,
and upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Note upon compliance by the Company with certain conditions
set forth therein.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Notes of each series affected at the time outstanding,
as defined in the Indenture, to execute supplemental indentures for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Holders of the Notes; provided, however, that no
such supplemental indenture shall (i) extend the fixed maturity of any Notes of
any series, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any premium payable upon the
redemption thereof, or reduce the amount of the principal of a Discount Security
that would be due and payable upon a declaration of acceleration of the maturity
thereof pursuant to the Indenture, without the consent of the holder of each
Note then outstanding and affected; (ii) reduce the aforesaid percentage of
Notes, the holders of which are required to consent to any such supplemental
indenture, or reduce the percentage of Notes, the holders of which are required
to waive any default and its consequences, without the consent of the holder of
each Note then outstanding and affected thereby; or (iii) modify any provision
of Section 6.01(c) of the Indenture (except to increase the percentage of
principal amount of securities required to rescind and annul any declaration of
amounts due and payable under the Notes), without the consent of the holder of
each Note then outstanding and affected thereby. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount of
the Notes of all series at the time outstanding affected thereby, on behalf of
the Holders of the Notes of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture with respect to such series, and its consequences,
except a default in the payment of the principal of or premium, if any, or
interest on any of the Notes of such series. Any such consent or waiver by the
registered Holder of this Note (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders and
owners of this Note and of any Note issued in exchange herefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the time and place and at the rate and in the money
herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, this Note is transferable by the registered holder hereof on the Note
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company as may be designated by the
Company accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the registered
Holder hereof or his or her attorney duly authorized in writing, and thereupon
one or more new Notes of authorized denominations and for the same aggregate
principal amount and series will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any paying agent and any Note Registrar may deem and treat
the registered Holder hereof as the absolute owner hereof (whether or not this
Note shall be overdue and notwithstanding any notice of ownership or writing
hereon made by anyone other than the Note Registrar) for the purpose of
receiving payment of or on account of the principal hereof and premium, if any,
and interest due hereon and for all other purposes, and neither the Company nor
the Trustee nor any paying agent nor any Note Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations, Notes of this
series and Tranche are exchangeable for a like aggregate principal amount of
Notes of this series and Tranche of a different authorized denomination, as
requested by the Holder surrendering the same.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
IN WITNESS WHEREOF, the Company has caused this Instrument to be executed.
Dated ____________________
INDIANA MICHIGAN POWER COMPANY
By:___________________________
Attest:
By:___________________________
This is one of the Notes of the series of Notes designated in accordance
with, and referred to in, the within-mentioned Indenture.
Dated:_______________
THE BANK OF NEW YORK
By:___________________________
Authorized Signatory
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
(PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE)
- ---------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
(PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
- ----------------------------------------------------------------
ASSIGNEE) the within Note and all rights thereunder, hereby
- ----------------------------------------------------------------
irrevocably constituting and appointing such person attorney to
- ----------------------------------------------------------------
transfer such Note on the books of the Issuer, with full
- ----------------------------------------------------------------
power of substitution in the premises.
Dated:________________________ _________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular, without alteration
or enlargement or any change whatever and NOTICE: Signature(s) must be
guaranteed by a financial institution that is a member of the Securities
Transfer Agents Medallion Program ("STAMP"), the Stock Exchange Medallion
Program ("SEMP") or the New York Stock Exchange, Inc. Medallion Signature
Program ("MSP").
Exhibit 5
October 2, 1998
Indiana Michigan Power Company
One Summit Square
Fort Wayne, Indiana 46801
Dear Sirs:
With respect to the Registration Statement on Form S-3 of Indiana Michigan
Power Company (the "Company") relating to the issuance and sale by the Company
in one or more transactions from time to time of its Unsecured Notes (the
"Unsecured Notes") under an Indenture to be entered into between the Company and
The Bank of New York, as Trustee (the "Indenture"), we wish to advise you as
follows.
We are of the Opinion that, when the steps mentioned in the next paragraph
below have been taken, the Unsecured Notes will be valid and legally binding
obligations of the Company, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
The steps to be taken which are referred to in the next preceding
paragraph consist of the following:
(1)Appropriate definitive action by the Board of Directors of the Company
with respect to the proposed transactions set forth in said
Registration Statement;
(2)Appropriate action by and before the Indiana Utility Regulatory
Commission in respect of the proposed transactions set forth in said
Registration Statement;
(3)Compliance with the Securities Act of 1933, as amended, and with the
Trust Indenture Act of 1939, as amended;
(4) Execution and delivery of the Indenture; and
(5)Issuance and sale of the Unsecured Notes by the Company in accordance
with the Indenture and the governmental and corporate authorizations
aforesaid.
Insofar as this opinion relates to matters governed by laws other than the
laws of the State of New York and the Federal law of the United States, this
firm has consulted, and may consult further, with counsel in which this firm has
confidence and will rely, as to such matters, upon such opinions or advice of
such counsel which will be delivered to this firm prior to the closing of the
sale of the Unsecured Notes.
We consent to the filing of this opinion as an exhibit to said
Registration Statement and to the use of our name and the inclusion of the
statements in regard to us set forth in said Registration Statement under the
caption "Legal Opinions".
Very truly yours,
/s/ Simpson Thacher & Bartlett
SIMPSON THACHER & BARTLETT
Exhibit 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Indiana Michigan Power Company on Form S-3 of our reports dated
February 24, 1998, appearing in and incorporated by reference in the Annual
Report on Form 10-K/A of Indiana Michigan Power Company for the year ended
December 31, 1997 and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
Deloitte & Touche LLP
Columbus, Ohio
October 2, 1998
Exhibit 24
INDIANA MICHIGAN POWER COMPANY
POWER OF ATTORNEY
Each of the undersigned directors or officers of INDIANA MICHIGAN
POWER COMPANY, an Indiana corporation, which is to file with the Securities and
Exchange Commission, Washington, D.C. 20549, under the provisions of the
Securities Act of 1933, as amended, one or more Registration Statements for the
registration thereunder of up to $200,000,000 aggregate principal amount of its
first mortgage bonds or senior or subordinated debt (including junior
subordinated debentures), or other promissory notes, or a combination of each,
in one or more new series, each series to have a maturity of not more than 50
years, does hereby appoint E. LINN DRAPER, JR., HENRY W. FAYNE, BRUCE M. BARBER
and ARMANDO A. PENA his true and lawful attorneys, and each of them his true and
lawful attorney, with power to act without the others, and with full power of
substitution or resubstitution, to execute for him and in his name said
Registration Statement(s) and any and all amendments thereto, whether said
amendments add to, delete from or otherwise alter the Registration Statement(s)
or the related Prospectus(es) included therein, or add or withdraw any exhibits
or schedules to be filed therewith and any and all instruments necessary or
incidental in connection therewith, hereby granting unto said attorneys and each
of them full power and authority to do and perform in the name and on behalf of
each of the undersigned, and in any and all capacities, every act and thing
whatsoever required or necessary to be done in and about the premises, as fully
and to all intents and purposes as each of the undersigned might or could do in
person, hereby ratifying and approving the acts of said attorneys and each of
them.
IN WITNESS WHEREOF the undersigned have hereunto set their hands this
27th day of August, 1998.
/s/ E. Linn Draper, Jr. /s/ J. J. Markowsky
E. Linn Draper, Jr. L.S. J. J. Markowsky L.S.
/s/ K. G. Boyd /s/ A. A. Pena
K. G. Boyd L.S. A. A. Pena L.S.
/s/ C. R. Boyle, III /s/ D. B. Synowiec
C. R. Boyle, III L.S. D. B. Synowiec L.S.
/s/ G. A. Clark /s/ J. H. Vipperman
G. A. Clark L.S. J. H. Vipperman L.S.
/s/ H. W. Fayne /s/ W. E. Walters
H. W. Fayne L.S. W. E. Walters L.S.
/s/ J. A. Kobyra /s/ E. H. Wittkamper
J. A. Kobyra L.S. E. H. Wittkamper L.S.
/s/ Wm. J. Lhota
Wm. J. Lhota L.S.
INDIANA MICHIGAN POWER COMPANY
I, Thomas G. Berkemeyer, Assistant Secretary of INDIANA MICHIGAN
POWER COMPANY, HEREBY CERTIFY that the following constitutes a true and exact
copy of resolutions duly adopted by the affirmative vote of a majority of the
Board of Directors of said Company at meetings of said Board duly and legally
held on August 27, 1998, at which meeting a quorum of the Board of Directors of
said Company was present and voting throughout. I further certify that said
resolutions have not been altered, amended or rescinded and that said
resolutions are presently in full force and effect.
Given under my hand this 2nd day of October, 1998.
/s/ Thomas G. Berkemeyer
Assistant Secretary
INDIANA MICHIGAN POWER COMPANY
August 27, 1998
The Chairman outlined a proposed financing program through December
31, 2000 of the Company involving the issuance and sale, either at competitive
bidding, through a negotiated public offering with one or more agents or
underwriters or through private placement, of up to $200,000,000 (or its
equivalent in another currency or composite currency) aggregate principal amount
of debt securities comprised of first mortgage bonds or secured or unsecured
promissory notes (including Junior Subordinated Debentures), or a combination of
each, in one or more new series, each series to have a maturity of not more than
fifty years ("Debt Securities"). The Chairman stated that, as an alternative to
issuing Debt Securities, the Company might enter into a term loan agreement or
note purchase agreement with one or more commercial banks, financial
institutions or other institutional investors, providing for the issuance of
unsecured notes with a maturity in excess of nine months in an aggregate
principal amount of up to $200,000,000 ("Term Notes").
The Chairman explained that it was proposed that the proceeds to be
received in connection with the proposed sale of Debt Securities and the Term
Notes would be added to the general funds of the Company and used to pay at
maturity, or prepay as may be appropriate and as may then be desirable, or
purchase directly or indirectly currently outstanding debt and/or cumulative
preferred stock or for working capital.
Thereupon, on motion duly made and seconded, it was
unanimously
RESOLVED, that the proposed financing program of this Company,
as outlined at this meeting, be, and the same hereby is, in all
respects ratified, confirmed and approved; and further
RESOLVED, that the proper officers of this Company be, and they
hereby are, authorized to take all steps necessary, or in their
opinion desirable, to carry out the financing program outlined at
this meeting.
The Chairman reminded the meeting that the Company has in place an
Order of the Indiana Utility Regulatory Commission ("IURC") authorizing the
issuance of up to $162,000,000 of Debt Securities through December 31, 1998
under which $125,000,000 of Debt Securities has been issued, and that, in
connection with the proposed financing program, an application has been filed
with the IURC to grant $200,000,000 of such authority through December 31, 2000.
The Chairman also stated that it may be necessary to file one or more
Registration Statements pursuant to the applicable provisions of the Securities
Act of 1933, as amended, and to register or qualify the securities to be sold
pursuant to such financing program under the "blue sky" laws of various
jurisdictions.
Thereupon, on motion duly made and seconded, it was unanimously
RESOLVED, in connection with the proposed financing program
approved at this meeting, the actions taken by the proper officers of
this Company in connection with the execution and filing of a
petition with the Indiana Utility Regulatory Commission be, and they
hereby are, ratified, confirmed and approved in all respects; and
further
RESOLVED, that the proper officers of this Company be, and they
hereby are, authorized to execute and file with the Securities and
Exchange Commission ("SEC") on behalf of the Company one or more
Registration Statements pursuant to the applicable provisions of the
Securities Act of 1933, as amended; and further
RESOLVED, that it is desirable and in the best interest of the
Company that the Debt Securities be qualified or registered for sale
in various jurisdictions; that the Chairman of the Board, the
President, any Vice President or the Treasurer and the Secretary or
an Assistant Secretary hereby are authorized to determine the
jurisdictions in which appropriate action shall be taken to qualify
or register for sale all or such part of the Debt Securities of the
Company as said officers may deem advisable; that said officers are
hereby authorized to perform on behalf of the Company any and all
such acts as they may deem necessary or advisable in order to comply
with the applicable laws of any such jurisdictions, and in connection
therewith to execute and file all requisite papers and documents,
including, but not limited to, applications, reports, surety bonds,
irrevocable consents and appointments of attorneys for service of
process; and the execution by such officers of any such paper or
document or the doing by them of any act in connection with the
foregoing matters shall conclusively establish their authority
therefor from the Company and the approval and ratification by the
Company of the papers and documents so executed and the action so
taken; and further
RESOLVED, that the proper officers of this Company be, and they
hereby are, authorized and directed to take any and all further
action in connection therewith, including the execution and filing of
such amendment or amendments, supplement or supplements and exhibit
or exhibits thereto as the officers of this Company may deem
necessary or desirable.
The Chairman indicated to the meeting that it may be desirable that
the Debt Securities be listed on the New York Stock Exchange and in connection
with any such application, to register the Debt Securities under the Securities
Exchange Act of 1934, as amended.
Thereupon, it was, on motion duly made and seconded, unanimously
RESOLVED, that the officers of this Company be, and they hereby
are, authorized, in their discretion, to make one or more
applications, on behalf of this Company, to the New York Stock
Exchange for the listing of up to $200,000,000 aggregate principal
amount of Debt Securities; and further
RESOLVED, that H. W. Fayne, Bruce M. Barber and
Armando A. Pena, or any one of them, be, and they
hereby are, designated to appear before the New York
Stock Exchange with full authority to make such
changes in any such application or any agreements
relating thereto as may be necessary or advisable to
conform with the requirements for listing; and further
RESOLVED, that the proper officers be, and they hereby are,
authorized to execute and file, on behalf of this Company, one or
more applications for the registration of up to $200,000,000
aggregate principal amount of Debt Securities with the Securities and
Exchange Commission pursuant to the provisions of the Securities
Exchange Act of 1934, as amended, in such form as the officers of
this Company executing the same may determine; and further
RESOLVED, that the Chairman of the Board, the President, any
Vice President or the Treasurer and the Secretary or any Assistant
Secretary be, and each of them hereby is, authorized, in the event
any said application for listing is made, to execute and deliver on
behalf of this Company an indemnity agreement in such form, with such
changes therein as the officers executing the same may approve, their
execution to be conclusive evidence of such approval; and further
RESOLVED, that the Chairman of the Board, the President, any
Vice President or the Treasurer be, and each of them hereby is,
authorized to take any other action and to execute any other
documents that in their judgment may be necessary or desirable in
connection with listing the Debt Securities on the New York Stock
Exchange.
The Chairman further stated that, in connection with the filing with
the SEC of one or more Registration Statements relating to the proposed issuance
and sale of up to $200,000,000 of Debt Securities, there was to be filed with
the SEC a Power of Attorney, dated August 27, 1998, executed by the officers and
directors of this Company appointing true and lawful attorneys to act in
connection with the filing of such Registration Statement(s) and any and all
amendments thereto.
Thereupon, on motion duly made and seconded, the following preambles
and resolutions were unanimously adopted:
WHEREAS, Indiana Michigan Power Company proposes to file
with the SEC one or more Registration Statements for the registration
pursuant to the applicable provisions of the Securities Act of 1933,
as amended, of up to $200,000,000 aggregate principal amount of Debt
Securities, in one or more new series, each series to have a maturity
of not less than nine months and not more than fifty years; and
WHEREAS, in connection with said Registration Statement(s),
there is to be filed with the SEC a Power of Attorney, dated August
27, 1998, executed by certain of the officers and directors of this
Company appointing E. Linn Draper, Jr., Bruce M. Barber, Henry W.
Fayne and Armando A. Pena, or any one of them, their true and lawful
attorneys, with the powers and authority set forth in said Power of
Attorney;
NOW, THEREFORE, BE IT
RESOLVED, that each and every one of said officers and
directors be, and they hereby are, authorized to execute said Power
of Attorney; and further
RESOLVED, that any and all action hereafter taken by any of
said named attorneys under said Power of Attorney be, and the same
hereby is, ratified and confirmed and that said attorneys shall have
all the powers conferred upon them and each of them by said Power of
Attorney; and further
RESOLVED, that said Registration Statement(s) and any
amendments thereto, hereafter executed by any of said attorneys under
said Power of Attorney be, and the same hereby are, ratified and
confirmed as legally binding upon this Company to the same extent as
if the same were executed by each said officer and director of this
Company personally and not by any of said attorneys.
The Chairman advised the meeting that it was proposed to designate
independent counsel for the successful bidder or bidders and/or agents of the
Company for the new series of Debt Securities proposed to be issued and sold in
connection with the proposed financing program of the Company.
Thereupon, on motion duly made and seconded, it was unanimously
RESOLVED, that Dewey Ballantine LLP be, and said firm hereby is,
designated as independent counsel for the successful bidder or
bidders and/or agents of the Company for the new series of Debt
Securities of this Company proposed to be issued and sold in
connection with the proposed financing program of this Company.
The Chairman stated that it may be desirable to enter into a treasury
hedge agreement, such as a treasury lock agreement, treasury put option or
interest rate collar agreement ("Treasury Hedge Agreement") to protect against
future interest rate movements in connection with the issuance of the Debt
Securities. He recommended that the Board authorize the appropriate officers of
the Company to enter into a Treasury Hedge Agreement, provided that the amount
covered by such Agreement would not exceed the principal amount of Debt
Securities the Company anticipates offering and that the term of such Agreement
will not exceed 90 days.
Thereupon, it was, on motion duly made and seconded, unanimously
RESOLVED, that the Chairman of the Board, the President, any
Vice President or the Treasurer of this Company be, and each of them
hereby is, authorized to execute and deliver in the name and on
behalf of this Company, a Treasury Hedge Agreement in such form as
shall be approved by the officer executing the same, such execution
to be conclusive evidence of such approval, provided that the amount
covered by such Agreement would not exceed the principal amount of
Debt Securities the Company anticipates offering and that the term of
such Agreement will not exceed 90 days; and further
RESOLVED, that the proper officers of the Company be, and they
hereby are, authorized to execute and deliver such other documents
and instruments, and to do such other acts and things, that in their
judgment may be necessary or desirable in connection with the
transactions authorized in the foregoing resolutions.
The Chairman explained that, with respect to the issuance of up to
$200,000,000 of Debt Securities through one or more agents under a medium term
note program, the Company could enter into a Selling Agency Agreement. The
Chairman recommended that the Board authorize the appropriate officers of the
Company to enter into one or more Selling Agency Agreements with securities
dealers yet to be determined.
Thereupon, upon motion duly made and seconded, it was unanimously
RESOLVED, that the Chairman of the Board, the President, any
Vice President or the Treasurer of this Company be, and each of them
hereby is, authorized to execute and deliver in the name and on
behalf of this Company, one or more Selling Agency Agreements with
such securities dealers in such form as shall be approved by the
officer executing the same, such execution to be conclusive evidence
of such approval; and further
RESOLVED, that the proper officers of the Company be, and they
hereby are, authorized to execute and deliver such other documents
and instruments, and to do such other acts and things, that in their
judgment may be necessary or desirable, in connection with the
transactions authorized in the foregoing resolutions.
The Chairman next explained that the Company could also enter into an
Underwriting Agreement (the "Underwriting Agreement"), with certain
underwriters, under which the underwriters may purchase up to $200,000,000
aggregate principal amount of Debt Securities having an interest rate and
maturity to be determined, such interest rate not to exceed 9% per annum and the
maturity thereof to be not less than nine months nor more than 50 years. Any
initial fluctuating rate of interest on any first mortgage bonds will not exceed
9% per annum at the time of issuance. He recommended that the Board authorize
the appropriate officers of the Company to enter into an Underwriting Agreement
and determine the purchase price of the Debt Securities, provided that the price
shall not be less than 95% (including compensation to the underwriters) of the
aggregate principal amount of the Debt Securities.
Thereupon, it was, on motion duly made and seconded, unanimously
RESOLVED, that the Chairman of the Board, the President,
any Vice President or the Treasurer of this Company be, and each of
them hereby is, authorized to execute and deliver in the name and on
behalf of this Company, an Underwriting Agreement in such form as
shall be approved by the officer executing the same, such execution
to be conclusive evidence of such approval, provided that the
purchase price of the Debt Securities shall not be less than 95%
(including compensation to the underwriters) of the aggregate
principal amount of the Debt Securities; and further
RESOLVED, that the proper officers of the Company be, and
they hereby are, authorized to execute and deliver such other
documents and instruments, and to do such other acts and things, that
in their judgment may be necessary or desirable in connection with
the transactions authorized in the foregoing resolutions.
The Chairman related to the meeting that any Underwriting Agreement
and any Selling Agency Agreement would be entered into in connection with the
issuance of Debt Securities. He further noted that, in order to enable the
Company to perform its obligations under the Selling Agency Agreement or the
Underwriting Agreement approved at this meeting providing for the sale of up to
$200,000,000 aggregate principal amount of First Mortgage Bonds, it was proposed
that the Board authorize the appropriate officers to create one or more new
series of First Mortgage Bonds, to be issued under the Mortgage and Deed of
Trust, dated June 1, 1939, of the Company to Irving Trust Company, now The Bank
of New York, as Trustee, as heretofore supplemented and amended, and as to be
supplemented and amended by one or more additional Supplemental Indentures to
the Mortgage and Deed of Trust, each of said new series of First Mortgage Bonds
to be entitled and designated as, in the case of a medium term note program,
"First Mortgage Bonds, Designated Secured Medium Term Notes, ______% Series due
____________", and, in the case of an Underwriting Agreement, "First Mortgage
Bonds, ______% Series due ____________", with the interest rate, maturity and
certain other terms of each such series of First Mortgage Bonds to be designated
at the time of creation thereof, the maturity thereof to be not less than nine
months nor more than 50 years. Any fixed rate of interest applicable to the
First Mortgage Bonds will not exceed by more than 3.5% the yield to maturity on
United States Treasury bonds of comparable maturity at the time of pricing of
the First Mortgage Bonds. Any initial fluctuating rate of interest on any
variable rate First Mortgage Bonds will not exceed 9% per annum at the time of
issuance.
Thereupon, it was, on motion duly made and seconded, unanimously
RESOLVED, that the officers of this Company (including the
Chairman of the Board, the President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary) be, and they hereby are, authorized to create up to
$200,000,000 aggregate principal amount of First Mortgage Bonds in
one or more series, each series to be issued under and secured by the
Mortgage and Deed of Trust, dated June 1, 1939, of the Company to
Irving Trust Company, now The Bank of New York, as Trustee, and
certain indentures supplemental thereto, including one or more
additional Supplemental Indentures to the Mortgage and Deed of Trust,
in such form as shall be approved by the officer executing the same,
such execution to be conclusive evidence of such approval, to be made
by this Company to The Bank of New York, as Trustee (said Mortgage
and Deed of Trust as heretofore supplemented and amended, and as to
be supplemented and amended, being hereinafter called the
"Mortgage"), each series to be designated and to be distinguished
from bonds of all other series by the title, in the case of a medium
term note program, "First Mortgage Bonds, Designated Secured Medium
Term Notes, ______% Series due __________", and, in the case of an
Underwriting Agreement, "First Mortgage Bonds, ______% Series due
____________", (hereinafter called "bonds of each New Series"),
provided that the interest rate, maturity and the applicable
redemption provisions, if any, and such other terms, including, but
not limited to, interest payment dates and record payment dates,
shall be designated at the time of creation thereof and such maturity
shall not be less than nine months nor more than 50 years and further
provided that any fixed rate of interest rate applicable to First
Mortgage Bonds will not exceed by more than 3.5% the yield to
maturity of United States Treasury bonds of comparable maturity at
the time of pricing of the First Mortgage Bonds and any initial
interest rate on any variable rate First Mortgage Bonds will not
exceed 9% per annum; and further
RESOLVED, that the officers of this Company (including the
Chairman of the Board, the President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary) be, and they hereby are, authorized and directed to
execute and deliver, under the seal of and on behalf of this Company,
one or more additional Supplemental Indentures, specifying the
designation, terms, redemption provisions and other provisions of the
bonds of each New Series and providing for the creation of the bonds
of each New Series and effecting the amendments to the Mortgage
described therein, in such form as shall be approved by the officer
executing the same, such execution to be conclusive evidence of such
approval; that The Bank of New York is hereby requested to join in
the execution of said Supplemental Indentures, as Trustee; and that
the officers (including the Chairman of the Board, the President, any
Vice President, the Treasurer, any Assistant Treasurer, the Secretary
or any Assistant Secretary) of this Company be, and they hereby are,
authorized and directed to record and file, or to cause to be
recorded and filed, said Supplemental Indentures in such offices of
record and take such other action as may be deemed necessary or
advisable in the opinion of counsel for the Company; and that such
officers be, and they hereby are, authorized to determine and
establish the basis on which the bonds of each New Series shall be
authenticated under the Mortgage; and further
RESOLVED, that the terms and provisions of the bonds of
each New Series and the forms of the registered bonds of each New
Series and of the Trustee's Authentication Certificate be, and they
hereby are, established as provided in the form of Supplemental
Indenture to the Mortgage herein before authorized, with such changes
as may be required upon the establishment of the further terms
thereof by the appropriate officers of the Company as herein
authorized; and further
RESOLVED, that the registered bonds of each New Series
shall be substantially in the form set forth in the form of
Supplemental Indenture approved at this meeting; and further
RESOLVED, that, subject to compliance with the provisions
of Article V or VI of the Mortgage, the Chairman of the Board, the
President, any Vice President or the Treasurer and the Secretary or
any Assistant Secretary of this Company be, and they hereby are,
authorized and directed to execute under the seal of this Company in
accordance with the provisions of Section 14 of Article II of the
Mortgage (the signatures of such officers to be effected either
manually or by facsimile, in which case such facsimile is hereby
adopted as the signature of such officer thereon), and to deliver to
The Bank of New York, as Trustee under the Mortgage, bonds of each
New Series in the aggregate principal amount of up to $200,000,000 as
definitive fully registered bonds without coupons in such
denominations as may be permitted under the Mortgage; and further
RESOLVED, that if any authorized officer of this Company
who signs, or whose facsimile signature appears upon, any of the
bonds of each New Series ceases to be such an officer prior to their
issuance, the bonds of each New Series so signed or bearing such
facsimile signature shall nevertheless be valid; and further
RESOLVED, that, subject as aforesaid, The Bank of New York,
as such Trustee, be, and it hereby is, requested to authenticate, by
the manual signature of an authorized officer of such Trustee, bonds
of each New Series and to deliver the same from time to time in
accordance with the written order of this Company signed in the name
of this Company by its Chairman, President or one of its Vice
Presidents and its Treasurer or one of its Assistant Treasurers; and
further
RESOLVED, that the Chairman of the Board, the President,
any Vice President, the Treasurer or any Assistant Treasurer of the
Company be, and they hereby are, authorized to execute any
Treasurer's Certificate required by Section 28(2) of Article V and
Section 29(2) of Article VI of the Mortgage, in connection with the
authentication and delivery of the bonds of the New Series, and in
connection with any other actions taken, or to be taken, under the
Mortgage; and further
RESOLVED, that the law firms of Baker &
Daniels and Mollison Law Offices, P.C. and that
John F. Di Lorenzo, Jr. of Upper Arlington, Ohio,
Thomas G. Berkemeyer of Hilliard, Ohio, Ann B.
Graf of Columbus, Ohio and David C. House, of
Upper Arlington, Ohio, attorneys and employees of
American Electric Power Service Corporation, an
affiliate of this Company, be, and each of them
hereby is, appointed Counsel to render the Opinion
of Counsel required by Article V, Section 28(7) or
Article VI, Section 29(3) of said Mortgage in
connection with the authentication and delivery of
the bonds of each New Series; and further
RESOLVED, that James J. Markowsky of Worthington, Ohio,
John R. Jones, III of Dublin, Ohio or Bruce A. Renz of Worthington,
Ohio, engineers and officers of American Electric Power Service
Corporation, an affiliate of this Company, be, and each of them
hereby is, appointed the Engineer to make with the President, any
Vice President, the Treasurer or an Assistant Treasurer of this
Company any Engineer's Certificate required by Article VI of the
Mortgage, in connection with the authentication and delivery of the
bonds of each New Series; and further
RESOLVED, that the office of The Bank of New York, at 101
Barclay Street, in the Borough of Manhattan, The City of New York,
be, and it hereby is, fixed as the office or agency of this Company
for the payment of the principal of and the interest on the bonds of
each New Series and as the office or agency of the Company in The
City of New York for the registration, transfer and exchange of
registered bonds of each New Series; and further
RESOLVED, that said The Bank of New York, be, and it hereby
is, appointed as the agent of this Company, in the Borough of
Manhattan, The City of New York for the payment of the principal of
and interest on the bonds of each New Series, and for the
registration, transfer and exchange of registered bonds of each New
Series; and further
RESOLVED, that said The Bank of New York, be, and it hereby
is, appointed the withholding agent and attorney of this Company for
the purpose of withholding any and all taxes required to be withheld
by the Company under the Federal revenue acts from time to time in
force and the Treasury Department regulations pertaining thereto,
from interest paid from time to time on bonds of each New Series, and
is hereby authorized and directed to make any and all payments and
reports and to file any and all returns and accompanying certificates
with the Federal Government which it may be permitted or required to
make or file as such agent under any such revenue act and/or Treasury
Department regulation pertaining thereto; and further
RESOLVED, that, until further action by this Board, the
officers of this Company be, and they hereby are, authorized and
directed to effect transfers and exchanges of bonds of each New
Series, pursuant to Section 12 of the Mortgage without charging a sum
for any bond of the New Series issued upon any such transfer or
exchange other than a charge in connection with each such transfer or
exchange sufficient to reimburse the Company for any tax or other
governmental charge required to be paid by the Company in connection
therewith; and further
RESOLVED, that the firm of Deloitte & Touche LLP be, and
they hereby are, appointed as independent accountants to render any
independent public accountant's certificate required under Section 27
of the Mortgage; and further
RESOLVED, that the officers of the Company be, and they
hereby are, authorized and directed to execute such instruments and
papers and to do any and all acts as to them may seem necessary or
desirable to carry out the purposes of the foregoing resolutions.
The Chairman noted that as an alternative to the issuance of First
Mortgage Bonds, the Company may issue and sell unsecured notes ("Notes")
pursuant to a Selling Agency Agreement or an Underwriting Agreement. The
Chairman stated to the meeting that it was necessary that the Board authorize
the execution and delivery of an Indenture to be entered into between the
Company and The Bank of New York or any successor trustee (the "Indenture") to
provide for the issuance of unsecured notes, in an unlimited aggregate principal
amount to be issued from time to time in one or more series ("Notes").
Thereupon, it was, on motion duly made and seconded, unanimously
RESOLVED, that the Chairman of the Board, the President, any
Vice President or the Treasurer, and the Secretary or any Assistant
Secretary be, and they hereby are, authorized to execute and deliver
the Indenture in such form as shall be approved by the officer
executing the same, such execution to be conclusive evidence of such
approval; and that The Bank of New York is hereby approved and
appointed as trustee under such Indenture.
The Chairman then stated to the meeting that, in order to enable the
Company to perform its obligations under the Selling Agency Agreement or the
Underwriting Agreement approved at this meeting providing for the sale of up to
$200,000,000 aggregate principal amount of the Notes, it was necessary that the
Board authorize the execution and delivery of one or more Company Orders or
Supplemental Indentures to the Indenture between the Company and The Bank of New
York ("Supplemental Indenture"), in such form as shall be approved by the
officer executing the same, such execution to be conclusive evidence of such
approval. The terms of each series of Notes will be established under a Company
Order or a Supplemental Indenture. The interest rate, maturity and certain other
terms have not yet been determined. The Chairman recommended that the Board
authorize the appropriate officers of the Company to determine the financial
terms and conditions of the Notes, including without limitation, (i) the
principal amount of the Notes to be sold in each offering, (ii) the interest or
method of determining the interest on the Notes, (iii) the maturity (which shall
not exceed 50 years from the date of issuance) and redemption provisions of the
Notes and (iv) such other terms and conditions as are contemplated or permitted
by the Indenture, a Company Order or a Supplemental Indenture. Any fixed
interest rate applicable to the Notes would not exceed by more than 3.5% the
yield to maturity at the date of pricing on United States Treasury Bonds of
comparable maturity. Any initial fluctuating interest rate applicable to the
Notes would not exceed 9% at the time of issuance.
Thereupon, it was, on motion duly made and seconded, unanimously
RESOLVED, that the Chairman of the Board, the President, any
Vice President, the Treasurer or any Assistant Treasurer and the
Secretary or any Assistant Secretary be, and they hereby are,
authorized to create up to $200,000,000 aggregate principal amount of
Notes to be issued under the Indenture and one or more Supplemental
Indentures or Company Orders, in such form as shall be approved by
the officer executing the same, such execution to be conclusive
evidence of such approval and with such financial terms and
conditions as determined by appropriate officers of this Company,
pursuant to the Indenture and one or more Supplemental Indentures or
Company Orders, and with either a fixed rate of interest which shall
not exceed by more than 3.5% the yield to maturity at the date of
pricing on United States Treasury bonds of comparable maturity or at
an initial fluctuating rate of interest which at the time of issuance
would not exceed 9%, or at a combination of such described fixed or
fluctuating rates, and to specify the maturity, redemption or tender
provisions and other terms, at the time of creation thereof with the
maturity not to exceed 50 years; and further
RESOLVED, that the Chairman of the Board, the President, any
Vice President, the Treasurer or any Assistant Treasurer and the
Secretary or any Assistant Secretary be, and they hereby are,
authorized and directed to execute and deliver, on behalf of this
Company, one or more Supplemental Indentures or Company Orders,
specifying the designation, terms, redemption provisions and other
provisions of the Notes and providing for the creation of each series
of Notes, each such instrument to be substantially in the form
presented to this meeting, with such insertions therein and changes
thereto as shall be approved by the officer executing the same, such
execution to be conclusive evidence of such approval; that Bank of
New York is hereby requested to join in the execution of any
Supplemental Indenture or Company Order, as Trustee; and further
RESOLVED, that the Chairman of the Board, the President, any
Vice President, the Treasurer or any Assistant Treasurer be, and they
hereby are, authorized and directed to execute and deliver, on behalf
of this Company, to the extent not determined in a Supplemental
Indenture or Company Order, a certificate requesting the
authentication and delivery of any such Notes and establishing the
terms of any tranche of such series or specifying procedures for
doing so in accordance with the procedures established in the
Indenture; and further
RESOLVED, that the Chairman of the Board, the President, any
Vice President or the Treasurer and the Secretary or any Assistant
Secretary of this Company be, and they hereby are, authorized and
directed to execute in accordance with the provisions of the
Indenture (the signatures of such officers to be effected either
manually or by facsimile, in which case such facsimile is hereby
adopted as the signature of such officer thereon), and to deliver to
The Bank of New York, as Trustee under the Indenture, the Notes in
the aggregate principal amount of up to $200,000,000 as definitive
fully registered bonds without coupons in such denominations as may
be permitted under the Indenture; and further
RESOLVED, that if any authorized officer of this Company who
signs, or whose facsimile signature appears upon, any of the Notes
ceases to be such an officer prior to their issuance, the Notes so
signed or bearing such facsimile signature shall nevertheless be
valid; and further
RESOLVED, that, subject as aforesaid, The Bank of New York, as
such Trustee, be, and it hereby is, requested to authenticate, by the
manual signature of an authorized officer of such Trustee, the Notes
and to deliver the same from time to time in accordance with the
written order of this Company signed in the name of this Company by
its Chairman, President, any Vice President, the Treasurer or any
Assistant Treasurer; and further
RESOLVED, that John F. Di Lorenzo, Jr. of
Upper Arlington, Ohio, Thomas G. Berkemeyer of
Hilliard, Ohio, Ann B. Graf of Columbus, Ohio,
David C. House of Upper Arlington, Ohio, and
William E. Johnson of Dublin, Ohio, attorneys
and employees of American Electric Power Service
Corporation, an affiliate of this Company, be,
and each of them hereby is, appointed Counsel to
render any Opinion of Counsel required by the
Indenture in connection with the authentication
and delivery of the Notes; and further
RESOLVED, that the office of The Bank of New York, at 101
Barclay Street, in the Borough of Manhattan, The City of New York,
be, and it hereby is, designated as the office or agency of this
Company, in accordance with the Indenture, for the payment of the
principal of and the interest on the Notes, for the registration,
transfer and exchange of Notes and for notices or demands to be
served on the Company with respect to the Notes; and further
RESOLVED, that said The Bank of New York be, and it hereby is,
appointed the withholding agent and attorney of this Company for the
purpose of withholding any and all taxes required to be withheld by
the Company under the Federal revenue acts from time to time in force
and the Treasury Department regulations pertaining thereto, from
interest paid from time to time on the Notes, and is hereby
authorized and directed to make any and all payments and reports and
to file any and all returns and accompanying certificates with the
Federal Government which it may be permitted or required to make or
file as such agent under any such revenue act and/or Treasury
Department regulation pertaining thereto; and further
RESOLVED, that the officers of this Company be, and they hereby
are, authorized and directed to effect transfers and exchanges of the
Notes, pursuant to the Indenture without charging a sum for any Note
issued upon any such transfer or exchange other than a charge in
connection with each such transfer or exchange sufficient to cover
any tax or other governmental charge in relation thereto; and further
RESOLVED, that The Bank of New York be, and it hereby is,
appointed as Note Registrar in accordance with the Indenture; and
further
RESOLVED, that the officers of the Company be, and they hereby
are, authorized and directed to execute such instruments and papers
and to do any and all acts as to them may seem necessary or desirable
to carry out the purposes of the foregoing resolutions.
The Chairman then stated that one or more insurance companies may
insure the payment of principal and interest on certain types of Debt Securities
as such payments become due pursuant to a financial guaranty insurance policy
("Insurance Policy"). In this connection, the Company proposes to enter into one
or more Insurance Agreements, in such form as shall be approved by the officer
executing the same, such execution to be conclusive evidence of such approval.
Thereupon, after discussion, on motion duly made and seconded, it was
unanimously
RESOLVED, that the proper officers of the Company be, and they
hereby are, authorized to deliver on behalf of the Company one or
more Insurance Agreements with an insurance company of their choice,
in such form as shall be approved by the officer executing the same,
such execution to be conclusive evidence of such approval; and
further
RESOLVED, that the proper officers of the Company be, and they
hereby are, authorized on behalf of the Company to take such further
action and do all other things that any one of them shall deem
necessary or appropriate in connection with, the Insurance Policy and
the Insurance Agreement.
The Chairman noted that as an additional alternative to the issuance
of First Mortgage Bonds or Notes, the Company may issue and sell Junior
Subordinated Debentures pursuant to an Underwriting Agreement. He then reminded
the Board that the Company has entered into an Indenture with The First National
Bank of Chicago dated as of March 1, 1996 ("Indenture") in connection with the
Company's issuance of junior subordinated debentures ("Debentures"). The
Chairman stated that, in connection with the proposed sale of up to $200,000,000
aggregate principal amount of Debentures, it was necessary that the Board of
Directors of this Company authorize the execution and delivery of one or more
Supplemental Indentures to the Indenture ("Supplemental Indenture"). The
Debentures will be created under the Supplemental Indenture and will also allow
the Company to defer payment of interest for up to five years. The Chairman then
recommended that the Board authorize the appropriate officers of the Company to
create the Debentures and specify the interest rate, maturity, redemption
provisions, and other terms at the time of creation with the maturity not to
exceed 50 years. Any fixed interest rate of the Debentures will exceed by more
than 3.5% the yield to maturity at the time of pricing on United States Treasury
obligations of comparable maturity. Any initial fluctuating rate on the
Debentures will not be greater than 9% at the time of issuance of the
Debentures.
Thereupon, it was, on motion duly made and seconded, unanimously
RESOLVED, that the Chairman of the Board, the President, or any
Vice President, the Treasurer, or any Assistant Treasurer and the
Secretary or any Assistant Secretary be, and they hereby are,
authorized to (i) create up to $200,000,000 aggregate principal
amount of Debentures to be issued under the Indenture and one or more
Supplemental Indentures, in such form as shall be approved by the
officer executing the same, such execution to be conclusive evidence
of such approval, to be designated and to be distinguished from
debentures of all other series by the title "Junior Subordinated
Deferrable Interest Debentures, Series __, Due ____________", and
(ii) to specify the interest rate, maturity, redemption provisions
and other terms at the time of creation with the maturity not to
exceed 50 years, and with either a fixed rate of interest which shall
not exceed by more than 3.5% the yield to maturity at the time of
pricing on United States Treasury obligations of comparable maturity
or at an initial fluctuating rate not to exceed 9% or a combination
of such fixed or fluctuating rates; and further
RESOLVED, that the Chairman of the Board, the President, any
Vice President, the Treasurer or any Assistant Treasurer, the
Secretary or any Assistant Secretary be, and they hereby are,
authorized and directed to execute and deliver, under the seal of and
on behalf of this Company, one or more Supplemental Indentures,
specifying the designation, terms, redemption provisions and other
provisions of the Debentures and providing for the creation of the
Debentures, such instrument to be substantially in such form as shall
be approved by the officer executing the same, such execution to be
conclusive evidence of such approval; that The First National Bank of
Chicago is hereby requested to join in the execution of the
Supplemental Indenture, as Trustee; and further
RESOLVED, that the terms and provisions of the Debentures and
the form of the registered Debentures and of the Trustee's
Authentication Certificate shall be established by the appropriate
officers of the Company as herein authorized; and further
RESOLVED, that the Chairman of the Board, the President, any
Vice President or the Treasurer and the Secretary or any Assistant
Secretary of this Company be, and they hereby are, authorized and
directed to execute under the seal of this Company in accordance with
the provisions of the Indenture (the signatures of such officers to
be effected either manually or by facsimile, in which case such
facsimile is hereby adopted as the signature of such officer
thereon), and to deliver to The First National Bank of Chicago, as
Trustee under the Indenture, the Debentures in the aggregate
principal amount of up to $200,000,000 as definitive fully registered
bonds without coupons in denominations of $25 or integral multiples
thereof; and further
RESOLVED, that if any authorized officer of this Company who
signs, or whose facsimile signature appears upon, any of the
Debentures ceases to be such an officer prior to their issuance, the
Debentures so signed or bearing such facsimile signature shall
nevertheless be valid; and further
RESOLVED, that, subject as aforesaid, The First National Bank of
Chicago, as such Trustee, be, and it hereby is, requested to
authenticate, by the manual signature of an authorized officer of
such Trustee, the Debentures and to deliver the same from time to
time in accordance with the written order of this Company signed in
the name of this Company by its Chairman, President, one of its Vice
Presidents or its Treasurer, and its Secretary or one of its
Assistant Secretaries; and further
RESOLVED, that John F. Di Lorenzo, Jr. of
Upper Arlington, Ohio, Thomas G. Berkemeyer of
Hilliard, Ohio, Ann B. Graf of Columbus, Ohio,
David C. House of Upper Arlington, Ohio, and
William E. Johnson of Dublin, Ohio, attorneys and
employees of American Electric Power Service
Corporation, an affiliate of this Company, be, and
each of them hereby is, appointed Counsel to
render any Opinion of Counsel required by of the
Indenture in connection with the authentication
and delivery of the Debentures; and further
RESOLVED, that the office of The First National Bank of Chicago,
One First National Plaza, Suite 0126, Chicago, Illinois, be, and it
hereby is, designated as the office or agency of this Company, in
accordance with Section 4.02 of the Indenture, for the payment of the
principal of and the interest on the Debentures, for the
registration, transfer and exchange of Debentures and for notices or
demands to be served on the Company with respect to the Debentures;
and further
RESOLVED, that The First National Bank of Chicago, be, and it
hereby is, appointed the withholding agent and attorney of this
Company for the purpose of withholding any and all taxes required to
be withheld by the Company under the Federal revenue acts from time
to time in force and the Treasury Department regulations pertaining
thereto, from interest paid from time to time on the Debentures, and
is hereby authorized and directed to make any and all payments and
reports and to file any and all returns and accompanying certificates
with the Federal Government which it may be permitted or required to
make or file as such agent under any such revenue act and/or Treasury
Department regulation pertaining thereto; and further
RESOLVED, that the officers of this Company be, and they hereby
are, authorized and directed to effect transfers and exchanges of the
Debentures, pursuant to Section 2.05 of the Indenture without
charging a sum for any Debenture issued upon any such transfer or
exchange other than a charge in connection with each such transfer or
exchange sufficient to cover any tax or other governmental charge in
relation thereto; and further
RESOLVED, that The First National Bank of Chicago be, and it
hereby is, appointed as Debenture Registrar in accordance with
Section 2.05(b) of the Indenture; and further
RESOLVED, that the officers of the Company be, and they hereby
are, authorized and directed to execute such instruments and papers
and to do any and all acts as to them may seem necessary or desirable
to carry out the purposes of the foregoing resolutions.
The Chairman further stated that it would be desirable to authorize
the proper officers of the Company on behalf of the Company, to enter into one
or more term loan or note purchase agreements in such form as shall be approved
by the officer executing the same, such execution to be conclusive evidence of
such approval ("Term Loan Agreement") with one or more as yet unspecified
commercial banks, financial institutions or other institutional investors, which
would provide for the Company to borrow up to $200,000,000. Such borrowings
would be evidenced by an unsecured promissory note or notes ("Term Note") of the
Company maturing not less than nine months nor more than thirty years after the
date thereof, bearing interest to maturity at either a fixed rate, floating
rate, or combination thereof. Any fixed interest rate of the Note will not
exceed 3.5% of the yield to maturity of United States Treasury obligations that
mature on or about the date of maturity of the note. Any fluctuating rate will
not be greater than 200 basis points above the rate of interest announced
publicly by the lending bank from time to time as its base or prime rate, but in
no event with the initial fluctuating interest rate exceed 9% at the time of
issuance.
Thereupon, upon motion duly made and seconded, it was unanimously
RESOLVED, that the Chairman of the Board, the President, any
Vice President or the Treasurer of this Company be, and each of them
hereby is, authorized to execute and deliver in the name and on
behalf of this Company, one or more Term Loan Agreements in such form
as shall be approved by the officer executing the same, such
execution to be conclusive evidence of such approval, at either a
fixed rate of interest which shall not be greater than 3.5% above the
yield to maturity of United States Treasury obligations that mature
on or about the maturity date of the Term Note issued thereunder, or
a fluctuating rate of interest which shall not be greater than 350
basis points above the rate of interest announced publicly by the
lending bank from time to time as its base or prime rate, but in no
event will the initial fluctuating interest rate exceed 9%, or at a
combination of such described fixed or fluctuating rates; and further
RESOLVED, that the Chairman of the Board, the President, any
Vice President or the Treasurer of this Company be, and each of them
hereby is, authorized, in the name and on behalf of this Company, to
borrow from one or more commercial banks, financial institutions or
other institutional investors, up to $200,000,000, upon the terms and
subject to the conditions of the Term Loan Agreement as executed and
delivered; and in connection therewith, to execute and deliver a
promissory note with such insertions therein and changes thereto
consistent with the Term Loan Agreement as shall be approved by the
officer executing the same, such execution to be conclusive evidence
of such approval; and further
RESOLVED, that the proper officers of this Company be, and they
hereby are, authorized to execute and deliver such other documents
and instruments, and to do such other acts and things, that in their
judgment may be necessary or desirable in connection with the
transactions authorized in the foregoing resolutions.
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. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
INDIANA MICHIGAN POWER COMPANY
(Exact name of obligor as specified in its charter)
Indiana 35-0410455
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
One Summit Square
P.O. Box 60
Fort Wayne, Indiana 46801
(Address of principal executive offices) (Zip code)
Debt Securities
(Title of the indenture securities)
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.)
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.
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 28th day of September, 1998.
THE BANK OF NEW YORK
By: /s/ Michael Culhane
Name: Michael Culhane
Title: Vice President
EXHIBIT 7
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, 1998,
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 ................. $ 6,397,993
Interest-bearing balances .......... 1,138,362
Securities:
Held-to-maturity securities ........ 1,062,074
Available-for-sale securities ...... 4,167,240
Federal funds sold and Securities pur-
chased under agreements to resell... 391,650
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................36,538,242
LESS: Allowance for loan and
lease losses ..............631,725
LESS: Allocated transfer risk
reserve..........................0
Loans and leases, net of unearned
income, allowance, and reserve 35,906,517
Assets held in trading accounts ...... 2,145,149
Premises and fixed assets (including
capitalized leases) ................ 663,928
Other real estate owned .............. 10,895
Investments in unconsolidated
subsidiaries and associated
companies .......................... 237,991
Customers' liability to this bank on
acceptances outstanding ............ 992,747
Intangible assets .................... 1,072,517
Other assets ......................... 1,643,173
-----------
Total assets ......................... $55,830,236
===========
LIABILITIES
Deposits:
In domestic offices ................ $24,849,054
Noninterest-bearing ......10,011,422
Interest-bearing .........14,837,632
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 15,319,002
Noninterest-bearing .........707,820
Interest-bearing .........14,611,182
Federal funds purchased and Securities
sold under agreements to repurchase. 1,906,066
Demand notes issued to the U.S.
Treasury ........................... 215,985
Trading liabilities .................. 1,591,288
Other borrowed money:
With remaining maturity of one year
or less .......................... 1,991,119
With remaining maturity of more than
one year through three years...... 0
With remaining maturity of more than
three years ...................... 25,574
Bank's liability on acceptances exe-
cuted and outstanding .............. 998,145
Subordinated notes and debentures .... 1,314,000
Other liabilities .................... 2,421,281
-----------
Total liabilities .................... 50,631,514
-----------
EQUITY CAPITAL
Common stock ......................... 1,135,284
Surplus .............................. 731,319
Undivided profits and capital
reserves ........................... 3,328,050
Net unrealized holding gains
(losses) on available-for-sale
securities ......................... 40,198
Cumulative foreign currency transla-
tion adjustments ................... ( 36,129)
------------
Total equity capital ................. 5,198,722
------------
Total liabilities and equity
capital ............................ $55,830,236
===========
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.
Thomas A. Renyi
Alan R. Griffith Directors
J. Carter Bacot
