Registration No. 33-53007
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Post-Effective Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
Kentucky Power Company
(Exact name of registrant as specified in its charter)
Kentucky 61-0247775
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1701 Central Avenue
Ashland, Kentucky 41101
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 800-572-1113
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
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
Approximate date of commencement of proposed sale to the public: At
such time or times after the effective date of the Registration
Statement as the registrant shall determine.
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
Each Class Proposed Proposed
of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Unit* Price* Fee
Debt
Securities $70,000,000 100% $70,000,000 $24,138**
*Estimated solely for purpose of calculating the registration fee.
**The registration fee for the Debt Securities was previously paid.
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 Prospectus herein also relates to Registration Statement No. 33-
61808 pursuant to Rule 429.<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT.
A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY
NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE
REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY
NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY JURISDICTION
IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY
SUCH JURISDICTION.
SUBJECT TO COMPLETION, DATED FEBRUARY 22, 1996
PROSPECTUS
Kentucky Power Company
$100,000,000
Debt Securities
Kentucky Power Company (the "Company") intends to offer, from
time to time, up to $100,000,000 aggregate principal amount of its
First Mortgage Bonds (the "New Bonds") and/or its unsecured debt
securities (the "Notes"). (The New Bonds and the Notes are
hereinafter collectively referred to as the "Debt Securities"). The
Debt Securities will be offered in one or more series in amounts,
at prices and on terms to be determined at the time or times of sale.
The title, aggregate principal amount, rate and time of payment of
interest, maturity, initial public offering price, if any, redemption
provisions, if any, credit enhancement, if any, improvement fund,
if any, dividend restrictions in addition to those described herein,
if any, and other specific terms of each series of Debt Securities
in respect of which this Prospectus is being delivered will be set
forth in an accompanying prospectus or pricing supplement
("Prospectus Supplement").
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The Company may sell the Debt Securities through underwriters,
dealers or agents, or directly to one or more institutional
purchasers. A Prospectus Supplement will set forth the names of
underwriters or agents, if any, any applicable commissions or
discounts and the net proceeds to the Company from any such sale.
The date of this Prospectus is February , 1996<PAGE>
No dealer, salesperson or other person has been authorized to
give any information or to make any representation not contained in
this Prospectus in connection with the offer made by this Prospectus
or any Prospectus Supplement relating hereto, and, if given or made,
such information or representation must not be relied upon as having
been authorized by the Company or any underwriter, agent or dealer.
Neither this Prospectus nor this Prospectus as supplemented by any
Prospectus Supplement constitutes an offer to sell, or a solicitation
of an offer to buy, by any underwriter, agent or dealer in any
jurisdiction in which it is unlawful for such underwriter, agent or
dealer to make such an offer or solicitation. Neither the delivery
of this Prospectus or this Prospectus as supplemented by any
Prospectus Supplement nor any sale made thereunder shall, under any
circumstances, create any implication that there has been no change
in the affairs of the Company since the date hereof or thereof.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "1934 Act") and in accordance
therewith files reports and other information with the Securities
and Exchange Commission (the "SEC"). Such reports and other
information may be inspected and copied at the public reference
facilities maintained by the SEC at 450 Fifth Street, N.W.,
Washington, D.C., 20549; Northwestern Atrium Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois, 60661; and 7 World Trade
Center, 13th Floor, New York, New York 10048. Copies of such
material can be obtained from the Public Reference Section of the
SEC, 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. Certain of the Company's securities are listed on the New
York Stock Exchange, Inc., where reports and other information
concerning the Company may also be inspected.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company with the SEC are
incorporated in this Prospectus by reference:
-- The Company's Annual Report on Form 10-K for the year
ended December 31, 1994; and
-- The Company's Quarterly Reports on Form 10-Q for the
periods ended March 31, 1995, June 30, 1995 and September
30, 1995.
All documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Prospectus and prior to the termination of the offering made
by this Prospectus shall be deemed to be incorporated by reference
in this Prospectus and to be a part hereof from the date of filing
of such documents.
Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed
document which is deemed to be incorporated by reference herein or
in a Prospectus Supplement modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person to whom
a copy of this Prospectus has been delivered, on the written or oral
request of any such person, a copy of any or all of the documents
described above which have been incorporated by reference in this
Prospectus, other than exhibits to such documents. Written requests
for copies of such documents should be addressed to Mr. G. C. Dean,
American Electric Power Service Corporation, 1 Riverside Plaza,
Columbus, Ohio 43215 (telephone number: 614-223-1000). The
information relating to the Company contained in this Prospectus or
any Prospectus Supplement relating hereto does not purport to be
comprehensive and should be read together with the information
contained in the documents incorporated by reference.
THE COMPANY
The Company is engaged in the generation, purchase, transmission
and distribution of electric power to approximately 163,000 customers
in an area in eastern Kentucky and in supplying electric power at
wholesale to other electric utility companies and municipalities in
Kentucky. Its principal executive offices are located at 1701
Central Avenue, Ashland, Kentucky 41101 (telephone number: 800-572-
1113). The Company is a subsidiary of American Electric Power
Company, Inc. ("AEP") and is a part of the American Electric Power
integrated utility system (the "AEP System"). The executive offices
of AEP are located at 1 Riverside Plaza, Columbus, Ohio 43215
(telephone number: 614-223-1000).
USE OF PROCEEDS
The Company proposes to use the proceeds from the sales of the
Debt Securities to refund long-term debt and to fund its construction
program, or to repay short-term unsecured indebtedness incurred to
refund long-term debt. The Company's First Mortgage Bonds, 7-7/8%
Series due 2002 ($45,000,000 principal amount outstanding) may be
redeemed at their regular redemption price of 100.67%.
The Company has estimated that its construction costs (inclusive
of allowance for funds used during construction) during 1996 will
be approximately $85,000,000. At January 31, 1996, the Company had
approximately $57,725,000 of short-term unsecured indebtedness
outstanding.
RATIO OF EARNINGS TO FIXED CHARGES
Below is set forth the ratio of earnings to fixed charges for
each of the years in the period 1990 through 1994 and for the 12
month period ended September 30, 1995:
12-Month
Period Ended Ratio
December 31, 1990 3.21
December 31, 1991 2.58
December 31, 1992 2.29
December 31, 1993 1.95
December 31, 1994 2.30
September 30, 1995 2.04
DESCRIPTION OF NEW BONDS
The New Bonds will be issued under the Mortgage and Deed of
Trust, dated as of May 1, 1949, made by the Company to Bankers Trust
Company, New York, New York, as Trustee, as heretofore supplemented
and amended and as to be further supplemented (the "Mortgage"). All
First Mortgage Bonds (including the New Bonds) issued and to be
issued under the Mortgage are herein sometimes referred to as
"Bonds". Copies of the Mortgage, including the respective forms of
Supplemental Indenture pursuant to which each series of the New Bonds
will be issued (the "new Supplemental Indenture") are filed as
exhibits to the Registration Statement.
The following statements include a brief summary of certain
provisions of the New Bonds and the Mortgage. Such summary does not
purport to be complete and reference is made to the Mortgage for a
complete statement of such provisions. Such summary is qualified
in its entirety by such reference and does not relate or give effect
to provisions of statutory or common law.
Form and Exchange
Unless otherwise set forth in a Prospectus Supplement, New Bonds
in definitive form will be issued only as registered Bonds without
coupons in denominations of $1,000 and in multiples thereof
authorized by the Company. New Bonds will be exchangeable for a like
aggregate principal amount of the same series of New Bonds of other
authorized denominations, and will be transferable, at the office
or agency of the Company in New York City, and at such other office
or agency of the Company as the Company may from time to time
designate, in either case without payment, until further action by
the Company, of any charge other than for any tax or taxes or other
governmental charge required to be paid by the Company. Bankers
Trust Company is to be designated by the Company to act as agent for
payment, registration, transfer and exchange of the New Bonds in New
York City.
Maturity, Interest, Redemption, Credit Enhancement, Improvement Fund,
Additional Dividend Restrictions and Payment
Information concerning the maturity, interest, redemption
provisions, if any, credit enhancement, if any, improvement fund,
if any, any dividend restrictions in addition to those described
herein and payment with respect to any series of the New Bonds will
be contained in a Prospectus Supplement.
Security
The New Bonds will be secured, pari passu with Bonds of all
other series now or hereafter issued, by the lien of the Mortgage
which constitutes, in the opinion of counsel for the Company, a first
lien on substantially all of the fixed physical property and
franchises of the Company; subject to (i) the conditions and
limitations in the instruments through which the Company claims title
to its properties and (ii) "excepted encumbrances", as defined in
Section 6 of the Mortgage. The Mortgage contains an after-acquired
property clause, but property acquired after the recordation of the
most recent supplemental indenture may be subject to liens, ranking
prior to the Mortgage, existing thereon at the time of acquisition
of such property and, in the case of such after-acquired property,
the lien of the Mortgage may be defeated by the intervention of
bankruptcy proceedings until the recordation of a further
supplemental indenture conveying such property to the Trustee after
its acquisition. The provisions of the Mortgage, in substance,
permit releases of property from the lien and the withdrawal of cash
proceeds of property released from the lien, not only against new
property then becoming subject to the lien, but also against property
already subject to the Mortgage unless such property was owned prior
to April 30, 1949, or has been made the basis of the issue of Bonds
or a credit under Sections 39 or 40 of the Mortgage. Accordingly,
any increase in the amount of the mortgaged and pledged property as
a result of the after-acquired property clause may be eliminated by
means of such releases and withdrawals.
Issuance of Additional Bonds
Additional Bonds of any series may be issued in a principal
amount equal to:
1. 60% of the cost or the then fair value, whichever is
less, of unfunded property additions after deduction for
retirements;
2. The principal amount of Bonds or prior lien bonds
retired or then to be retired; and
3. The amount of cash deposited with the Trustee;
but, except as otherwise provided in the Mortgage, only if the net
earnings (as defined in Section 7 of the Mortgage) are at least twice
the annual interest requirement on all outstanding Bonds and
indebtedness having an equal or prior lien, including the additional
issue. However, no Bonds may be issued against property additions
subject to prior liens, as defined in Section 6 of the Mortgage (a)
if the principal amount of outstanding prior lien bonds secured
thereby exceeds 40% of the cost or fair value (whichever is less)
of such property additions or (b) if the principal amount of all
Bonds theretofore issued on such basis and continuing on such basis,
and the amount of certain other items representing deposited cash
withdrawn or property released on such basis, in the aggregate,
exceeds 15% of the aggregate principal amount of all Bonds
theretofore issued (except Bonds issued under Article VII upon
retirement of Bonds previously outstanding under the Mortgage),
including the additional issue. (See Sections 4, 7, 25, 26, 27, 28,
29 and 30 of the Mortgage.)
The requirement, referred to above, that net earnings be at
least twice the annual interest requirements on all outstanding Bonds
and indebtedness having an equal or prior lien, including a proposed
additional issue of Bonds, is not applicable under certain
circumstances where additional Bonds are issued in a principal amount
equal to the principal amount of Bonds or prior lien bonds retired
or then to be retired (see Sections 26, 27 and 29 of the Mortgage).
In calculating earnings coverages under the provisions of the
Mortgage, the Company includes, as a component of earnings, revenues
being collected subject to refund and, to the extent not limited by
the terms of the Mortgage, an allowance for funds used during
construction, including amounts positioned and classified as an
allowance for borrowed funds used during construction. The coverage
under such requirement, calculated as of December 31, 1995, based
on the amounts then recorded in the accounts of the Company, was at
least 2.86.
It is estimated that as of January 31, 1996, the Company had
available for use in connection with the authentication of Bonds
approximately $197,908,000 of unbonded bondable property additions.
The Company expects that the New Bonds will be authenticated upon
the basis of Bonds previously retired or to be retired and/or
property additions.
The Company believes that its ability to issue short and long-
term debt securities in the amounts required to finance its
construction program may depend upon timely rate recovery. If the
Company is unable to continue the issue and sale of securities on
an orderly basis, the Company will be required to consider the
obtaining of additional amounts of common equity, the use of possibly
more costly alternative financing arrangements, if available, or the
curtailment of its construction program and other outlays.
Other than the security afforded by the lien of the Mortgage
and restrictions on the incurrence of additional debt described above
and under "Description of New Bonds--Issuance of Additional Bonds"
herein, there are no provisions of the Mortgage which afford holders
of New Bonds protection in the event of a highly leveraged
transaction involving the Company. However, such a transaction would
require regulatory approval and management of the Company believes
such approval would be unlikely in a transaction which would result
in the Company having a highly leveraged capital structure.
Maintenance and Replacement Provisions
Section 40 of the Mortgage provides for the annual deposit
(which the Mortgage requires to be made so long as any of the Bonds
(other than Bonds of any Series issued after April 23, 1993, unless
otherwise disclosed in a Prospectus Supplement) are outstanding) by
the Company with the Trustee on or before April 30 of an amount in
cash or principal amount of Bonds of any series equal to the excess
of the product of a specified percentage (currently 2.25% but subject
to change as provided in the Mortgage) and the average of the
Depreciable Property (as defined) of the Company at the first and
the last day of the preceding calendar year over the sum of (i) the
aggregate amount expended during the preceding calendar year for
property substituted for retired property, and (ii) any credit
applicable to prior years. The Company may under this covenant
certify to the Trustee, in lieu of depositing cash or Bonds, property
additions which are not then funded property (which thereupon become
funded property) at cost or fair value, whichever is less.
Release and Substitution of Property
The Mortgage permits property to be released from the lien of
the Mortgage upon compliance with the provisions thereof. Such
provisions require that, in certain specified cases, cash be
deposited with the Trustee in an amount equal to the excess of the
fair value of the property to be released over the aggregate of
certain computations required by the Mortgage. (See Sections 65,
66 and 68 of the Mortgage). The Mortgage also contains certain
requirements relating to the withdrawal of release moneys and other
funds held by the Trustee. (See Sections 67 and 130 of the
Mortgage).
Modification of the Mortgage
Article XX of the Mortgage provides for modifying or altering
the Mortgage with the consent of the Company and by vote of the
holders of at least 75% in principal amount of the outstanding Bonds
which are affected by the proposed modification or alteration. No
modification or alteration, without the consent of the holder of a
Bond, may modify the terms of payment of the principal amount of or
interest on such Bond or create an equal or prior lien or deprive
such holder of a lien on the mortgaged property or reduce the above
percentage.
Restriction on Common Stock Dividends
Various restrictions on the use of retained earnings for cash
dividends on Common Stock and other purposes are contained in or
result from other covenants in the Mortgage relating to certain
series of Bonds. At September 30, 1995, the Company's retained
earnings amounted to $88,345,000, of which approximately $34,200,000
were so restricted. Unless otherwise specified in a Prospectus
Supplement, there will be no additional restrictions on common stock
dividends.
Concerning the Trustee
AEP System companies, including the Company, utilize many of
the banking services offered by Bankers Trust Company in the normal
course of their businesses. Among such services are the making of
short-term loans and in certain cases term loans, generally at rates
related to the prime commercial interest rate, and acting as a
depositary. In addition, Bankers Trust Company will serve as Trustee
under the Company's Indenture for the Notes. (See "Description of
Notes" herein).
The Trustee may, and upon written request of the holders of a
majority in principal amount of the Bonds shall, declare the
principal due upon occurrence of a completed default, but the holders
of a majority in principal amount of the Bonds may annul such
declaration if the default has been cured. (See Sections 71 and 109
of the Mortgage). The holders of a majority in principal amount of
the Bonds may direct the time, method and place of conducting any
proceeding for the enforcement of the Mortgage. (See Section 76 of
the Mortgage). No Bondholder has the right to institute any
proceeding for the enforcement of the Mortgage unless such holder
shall have given the Trustee written notice of a completed default,
the holders of 25% in principal amount of the Bonds shall have
offered to the Trustee indemnity against costs, expenses and
liabilities, requested the Trustee to take action and given the
Trustee reasonable opportunity to take such action. The foregoing
does not affect or impair the right of a holder of a Bond to enforce
the payment of the principal of and interest on such Bond on the
respective due dates. (See Section 86 of the Mortgage). The Trustee
is entitled to be indemnified before taking action to enforce the
lien at the request of such Bondholders. (See Section 75 of the
Mortgage).
Defaults
By Section 71 of the Mortgage, the following are defined as
"completed defaults": default in the payment of principal; default
for 60 days in the payment of interest; default in payment of
principal or interest on outstanding prior lien bonds (none of which
are currently outstanding) in certain cases; certain events of
bankruptcy, insolvency or reorganization; and default continued for
60 days after notice in the performance of any other covenant. By
Section 59 of the Mortgage, a failure to provide money for the
redemption of Bonds called for redemption also constitutes a
completed default. The Company is required to furnish annually to
the Trustee a certificate as to compliance with all conditions and
covenants under the Mortgage.
DESCRIPTION OF NOTES
The Notes will be issued in series under an Indenture to be
entered into between the Company and Bankers Trust Company, as
Trustee (the "Trustee") (the "Indenture"). The following summary
does not purport to be complete and is subject in all respects to
the provisions of, and is qualified in its entirety by reference to,
the form of Indenture, and the form of Supplemental Indenture
thereto, which are filed as exhibits to the Registration Statement
of which this Prospectus forms a part. Whenever particular
provisions or defined terms in the Indenture are referred to herein,
such provisions or defined terms are incorporated by reference
herein. Section and Article references used herein are references
to provisions of the Indenture unless otherwise noted.
General
The Notes will be unsecured obligations of the Company and will
rank pari passu with all other unsecured and unsubordinated debt of
the Company. The Indenture does not limit the aggregate principal
amount of notes that may be issued thereunder and provides that Notes
issued thereunder may be issued thereunder from time to time in one
or more series, as authorized by a Board Resolution, and set forth
in a Company Order (as defined in the Indenture) or one or more
supplemental indentures creating such series.
Substantially all of the fixed properties and franchises of the
Company are subject to the lien of the Mortgage under which the
Company's First Mortgage Bonds are outstanding. See "Description
of New Bonds".
The Notes are not convertible into any other security of the
Company. The Indenture does not contain any provisions that afford
holders of Notes protection in the event of a highly leveraged
transaction involving the Company. Such a transaction would require
regulatory approval, and management of the Company believes such
approval would be unlikely in a transaction which would result in
the Company having a highly leveraged capital structure. The
Indenture also does not contain any provisions that afford holders
of Notes protection against the Company incurring other indebtedness.
Maturity, Interest, Redemption, Credit Enhancement, Covenants and
Restrictions and Payment
Information concerning the maturity, interest, redemption
provisions, if any, sinking fund, if any, credit enhancement, if any,
any covenants or restrictions, such as limitations on liens or
dividend restrictions, and payment with respect to any series of the
Notes will be contained in a Prospectus Supplement.
Form and Exchange
Unless otherwise set forth in a Prospectus Supplement, Notes
in definitive form will be issued only as registered Notes without
coupons in denominations of $1,000 and in integral multiples thereof
authorized by the Company. Notes will be exchangeable for a like
aggregate principal amount of the same series of Notes of other
authorized denominations, and will be transferable, at the office
or agency designated by the Company in New York City, or at such
other office or agency designated by the Company, in either case
without payment, until further action by the Company, of any charge
other than for any tax or taxes or other governmental charge required
to be paid by the Company. Bankers Trust Company is to be designated
by the Company to act as agent for payment, registration, transfer
and exchange of the Notes in New York City.
Payment and Paying Agents
Payment of principal of and premium (if any) on any Note will
be made only against surrender to the Paying Agent of such Note.
Principal of and any premium and interest on Notes will be payable
at the office of such Paying Agent or Paying Agents as the Company
may designate from time to time, except that at the option of the
Company payment of any interest may be made by check mailed to the
address of the person entitled thereto as such address shall appear
in the Note Register with respect to such Notes.
The Trustee will initially act as Paying Agent with respect to
Notes. The Company may at any time designate additional Paying
Agents or rescind the designation of any Paying Agents or approve
a change in the office through which any Paying Agent acts.
(Sections 4.02 and 4.03 of the Indenture).
All moneys paid by the Company to a Paying Agent for the payment
of the principal of or premium or interest, if any, on any Note that
remains unclaimed at the end of two years after such principal,
premium, if any, or interest shall have become due and payable,
subject to applicable law, will be repaid to the Company and the
holder of such Note will thereafter look only to the Company for
payment thereof. (Section 11.04 of the Indenture).
Modification of the Indenture
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less than a
majority in principal amount of Notes of each series that are
affected by the modification, to modify the Indenture or any
supplemental indenture affecting that series or the rights of the
holders of that series of Notes; provided, that no such modification
may, without the consent of the holder of each outstanding Note
affected thereby, (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 (ii) reduce the
percentage of Notes, the holders of which are required to consent
to any such supplemental indenture. (Section 9.02 of the Indenture).
In addition, the Company and the Trustee may execute, without
the consent of any holder of Notes, any supplemental indenture for
certain other usual purposes including the creation of any new series
of notes to be issued under the Indenture. (Sections 2.01, 9.01 and
10.01 of the Indenture).
Events of Default
The Indenture provides that any one or more of the following
described events, which has occurred and is continuing, constitutes
an "Event of Default" with respect to each series of Notes:
(a) failure for 30 days to pay interest on Notes of that
series when due; or
(b) failure to pay principal or premium, if any, on Notes
of that series when due whether at maturity, upon redemption,
by declaration or otherwise; or
(c) failure for 30 days to pay any sinking fund obligation
on Notes of that series; or
(d) failure by the Company to observe or perform any other
covenant (other than those specifically relating to another
series) contained in the Indenture for 90 days after written
notice to the Company from the Trustee or the holders of at
least 25% in principal amount of the outstanding Notes of that
series; or
(e) certain events involving bankruptcy, insolvency or
reorganization of the Company; or
(f) any other event of default provided for in a series
of Notes. (Section 6.01 of the Indenture).
The Trustee or the holders of not less than 25% in aggregate
outstanding principal amount of any particular series of Notes may
declare the principal due and payable immediately upon an Event of
Default with respect to such series, but the holders of a majority
in aggregate outstanding principal amount of such series may annul
such declaration and waive the default with respect to such series
if the 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. (Sections 6.01
and 6.06 of the Indenture).
The holders of a majority in aggregate outstanding principal
amount of any series of Notes have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee for that series. (Section 6.06 of the
Indenture). Subject to the provisions of the Indenture relating to
the duties of the Trustee in case an Event of Default shall occur
and be continuing, the Trustee will be under no obligation to
exercise any of its rights or powers under the Indenture at the
request or direction of any of the holders of the Notes, unless such
holders shall have offered to the Trustee indemnity satisfactory to
it. (Section 7.02 of the Indenture).
The holders of a majority in aggregate outstanding principal
amount of any series of Notes affected thereby may, on behalf of the
holders of all Notes of such series, waive any past default, except
a default in the payment of principal, premium, if any, or interest
when due 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) or a call for redemption of
Notes of such series. (Section 6.06 of the Indenture). The Company
is required to file annually with the Trustee a certificate as to
whether or not the Company is in compliance with all the conditions
and covenants under the Indenture. (Section 5.03(d) of the
Indenture).
Consolidation, Merger and Sale
The Indenture does not contain any covenant that restricts the
Company's ability to merge or consolidate with or into any other
corporation, sell or convey all or substantially all of its assets
to any person, firm or corporation or otherwise engage in
restructuring transactions, provided that the successor corporation
assumes due and punctual payment of principal or premium, if any,
and interest on all notes issued under the Indenture. (Section 10.01
of the Indenture).
Legal Defeasance and Covenant Defeasance Discharge
Notes of a series may be defeased in accordance with their terms
and, unless the Supplemental Indenture or the Company Order
establishing the terms of the series otherwise provides, as set forth
below. The Company at any time may terminate as to a series all of
its obligations (except for certain obligations, including
obligations with respect to the defeasance trust and obligations to
register the transfer or exchange of a Note, to replace destroyed,
lost or stolen Notes and to maintain agencies in respect of the
Notes) with respect to the Notes of the series and the Indenture
("legal defeasance"). The Company at any time may terminate as to
a series its obligations with respect to the Notes of the series
under any restrictive covenant which may be applicable to a
particular series ("covenant defeasance").
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.
To exercise either defeasance option as to a series, the Company
must deposit in trust (the "defeasance trust") with the Trustee,
money or Governmental Obligations, or a combination, for the payment
of principal, premium, if any, and interest on the Notes of the
series to redemption or maturity and must comply with certain other
conditions. In particular, the Company must obtain an opinion of
tax counsel that the defeasance will not result in recognition of
any gain or loss to holders for Federal income tax purposes.
In the event the Company exercises its option to effect a
covenant defeasance with respect to the Notes of any series as
described above and the Notes 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 would be sufficient to pay amounts due on
the Notes of that series at the time of their stated maturity but
may not be sufficient to pay amounts due on the Notes of that series
at the time of the acceleration resulting from such Event of Default.
However, the Company would remain liable for such payments. (Section
11.01 of the Indenture).
Governing Law
The Indenture and Notes will be governed by, and construed in
accordance with, the laws of the State of New York. (Section 13.05
of the Indenture).
Concerning the Trustee
AEP System companies, including the Company, utilize many of
the banking services offered by Bankers Trust Company in the normal
course of their businesses. Among such services are the making of
short-term loans and in certain cases term loans, generally at rates
related to the prime commercial interest rate, and acting as a
depositary. In addition, Bankers Trust Company serves as Trustee
under the Company's Mortgage. (See "Description of New Bonds"
herein).
LEGAL OPINIONS
Opinions with respect to the legality of the New Bonds and/or
Notes will be rendered by Simpson Thacher & Bartlett (a partnership
which includes professional corporations), 425 Lexington Avenue, New
York, New York, and 1 Riverside Plaza, Columbus, Ohio, counsel for
the Company, and by Dewey Ballantine, 1301 Avenue of the Americas,
New York, New York, counsel for any underwriters, dealers or agents.
In connection with the issuance of New Bonds, Simpson Thacher &
Bartlett and Dewey Ballantine will rely as to matters of Kentucky
law, upon the opinion of Gray, Woods & Cooper, counsel for the
Company. Additional legal opinions in connection with the offering
of the Notes may be given by John M. Adams, Jr. or Ann B. Graf,
counsel for the Company. Mr. Adams is Assistant General Counsel,
and Ms. Graf is a Senior Attorney, in the Legal Department of
American Electric Power Service Corporation, a wholly owned
subsidiary of AEP. From time to time, Dewey Ballantine acts as
counsel to affiliates of the Company in connection with certain
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.
The legal conclusions in "Security" under the caption
"Description of New Bonds", as to those matters governed by the laws
of the Commonwealth of Kentucky have been reviewed by Gray, Woods
& Cooper, Ashland, Kentucky. All of said statements are made on the
authority of said firm as experts.
PLAN OF DISTRIBUTION
The Company may sell the New Bonds and/or Notes in any of three
ways: (i) through underwriters or dealers; (ii) directly to a limited
number of purchasers or to a single purchaser; or (iii) through
agents. The Prospectus Supplement relating to a series of the New
Bonds and/or Notes will set forth the terms of the offering of the
New Bonds and/or Notes, including the name or names of any
underwriters, dealers or agents, the purchase price of such New Bonds
and/or Notes and the proceeds to the Company from such sale, any
underwriting discounts or agency fees and other items constituting
underwriters' or agents' compensation, any initial public offering
price and any discounts or concessions allowed or reallowed or paid
to dealers. Any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be changed
from time to time after the initial public offering.
If underwriters are used in the sale, the New Bonds and/or Notes
will be acquired by the underwriters for their own account and may
be resold from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of the sale. The underwriters
with respect to a particular underwritten offering of New Bonds
and/or Notes will be named in the Prospectus Supplement relating to
such offering and, if an underwriting syndicate is used, the managing
underwriters will be set forth on the cover page of such Prospectus
Supplement. Unless otherwise set forth in the Prospectus Supplement,
the obligations of the underwriters to purchase the New Bonds and/or
Notes will be subject to certain conditions precedent, and the
underwriters will be obligated to purchase all such New Bonds and/or
Notes if any are purchased.
New Bonds and/or Notes may be sold directly by the Company or
through agents designated by the Company from time to time. The
Prospectus Supplement will set forth the name of any agent involved
in the offer or sale of the New Bonds and/or Notes in respect of
which the Prospectus Supplement is delivered as well as any
commissions payable by the Company to such agent. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting
on a reasonable best efforts basis for the period of its appointment.
If so indicated in the Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers by
certain specified institutions to purchase New Bonds and/or Notes
from the Company at the public offering price set forth in the
Prospectus Supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future.
Such contracts will be subject to those conditions set forth in the
Prospectus Supplement, and the Prospectus Supplement will set forth
the commission payable for solicitation of such contracts.
Subject to certain conditions, the Company may agree to
indemnify any underwriters, dealers, agents or purchasers and their
controlling persons against certain civil liabilities, including
certain liabilities under the Securities Act of 1933.<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 16. Exhibits.
Reference is made to the information contained in the Exhibit
Index filed as 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 Debt Securities (if the total dollar value of Debt
Securities 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 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 Debt Securities, 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 Commonwealth of Kentucky, the registrant's Bylaws 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.<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant and has duly caused this post-effective amendment to its
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 21st day of February, 1996.
KENTUCKY POWER COMPANY
E. Linn Draper, Jr.*
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
post-effective amendment to the registrant's 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 Executive
E. Linn Draper, Jr.* Officer February 21, 1996
(ii) Principal Financial
Officer:
G. P. Maloney* Vice President February 21, 1996
(iii) Principal Accounting
Officer:
P. J. DeMaria* Controller February 21, 1996
(iv) A Majority of the
Directors:
P. J. DeMaria*
E. Linn Draper, Jr.*
Wm. J. Lhota*
G. P. Maloney* February 21, 1996
*By: /s/ Armando A. Pena
(A. A. Pena, Attorney-in-Fact)<PAGE>
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 - Copy of proposed Form of Selling Agency Agreement for
the Debt Securities [previously filed in this
Registration Statement No. 33-53007].
*1(a) - Copy of the proposed form of Underwriting Agreement for
the Debt Securities.
4(a) - Copy of Mortgage and Deed of Trust, dated May 1, 1949,
of the Company, as supplemented and amended [Registra-
tion Statement No. 2-65820, Exhibits 2(b)(1)-2(b)(6);
Registration Statement No. 33-39394, Exhibits 4(b) and
4(c); Registration Statement No. 33-53226, Exhibits 4(b)
and 4(c); Registration Statement No. 33-61808, Exhibits
4(b) and 4(c).]
4(b) - Copy of Indenture Supplemental, dated May 1, 1993,
between the Company and Bankers Trust Company, as
Trustee, re: $15,000,000 of First Mortgage Bonds,
Designated Secured Medium Term Notes, 6.70% Series due
June 1, 2003 and $15,000,000 of First Mortgage Bonds,
Designated Secured Medium Term Notes, 7.90% Series due
June 1, 2023 [previously filed in this Registration
Statement No. 33-53007].
4(c) - Copy of Indenture Supplemental, dated June 1, 1993,
between the Company and Bankers Trust Company, as
Trustee, re: $25,000,000 of First Mortgage Bonds,
Designated Secured Medium Term Notes, 7.90% Series due
June 1, 2023 [previously filed in this Registration
Statement No. 33-53007].
4(d) - Copy of Indenture Supplemental dated June 15, 1993,
between the Company and Bankers Trust Company, as
Trustee, re: $15,000,000 of First Mortgage Bonds,
Designated Secured Medium Term Notes, 6.70% Series due
July 1, 2003 [previously filed in this Registration
Statement No. 33-53007].
4(e) - Copy of form of Indenture Supplemental to be entered
into between the Company and Bankers Trust Company, as
Trustee, for the New Bonds [previously filed in this
Registration Statement No. 33-53007].
*4(f) - Copy of form of proposed Indenture to be entered into
between the Company and Bankers Trust Company, as
Trustee, for the Notes.
*4(g) - Copy of form of proposed Supplemental Indenture to be
entered into between the Company and Bankers Trust
Company, as Trustee, for the Notes.
5 - Opinion of Simpson Thacher & Bartlett as to the legality
of the Debt Securities [previously filed in this
Registration Statement No. 33-53007].
*5(a) - Opinion of Simpson Thacher & Bartlett as to the legality
of the Debt Securities.
12 - Statement re: Computation of Ratios. [Annual Report on
Form 10-K of the Company for year ended December 31,
1993, File No. 1-6858, Exhibit 12].
12(a) - Statement re Computations of Ratios [Quarterly Report
on Form 10-Q of the Company for the period ended
September 30, 1995, File No. 1-6858, Exhibit 12].
23(a) - Consent of Deloitte & Touche LLP, dated April 5, 1994
[previously filed in this Registration Statement No. 33-
53007].
*23(a)(i)- Consent of Deloitte & Touche LLP, dated February 21,
1996.
23(b) - Consent of Simpson Thacher & Bartlett [previously filed
in this Registration Statement No. 33-53007].
23(b)(i) - Consent of Simpson Thacher & Bartlett (included in
Exhibit 5(a) filed herewith).
23(c) - Consent of Gray, Woods & Cooper, dated April 5, 1994
[previously filed in this Registration Statement No. 33-
53007].
*23(c)(i)- Consent of Gray, Woods & Cooper, dated February 21,
1996.
24 - Powers of Attorney and resolutions of the Board of
Directors of the Company [previously filed in this
Registration Statement No. 33-53007].
25 - Form T-1 re: Eligibility of Bankers Trust Company
[previously filed in this Registration Statement No. 33-
53007].
*25(a) - Form T-1 re eligibility of Bankers Trust Company to act
as Trustee under the First Mortgage Indenture.
*25(b) - Form T-1 re eligibility of Bankers Trust Company to act
as Trustee under the Note Indenture.
[96FN0009.KPC]<PAGE>
Exhibit 23(a)(i)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-
Effective Amendment No. 1 to Registration Statement No. 33-53007 of
Kentucky Power Company on Form S-3 of our reports dated February 21,
1995, appearing in and incorporated by reference in the Annual Report
on Form 10-K of Kentucky Power Company for the year ended December
31, 1994 and to the reference to us under the heading "Experts" in
the Prospectus, which is part of such Registration Statement.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Columbus, Ohio
February 21, 1996
[96FN0009.KPC]
Exhibit 1(a)
KENTUCKY POWER COMPANY
Underwriting Agreement
Dated ____________________
AGREEMENT made between KENTUCKY POWER COMPANY, a corporation
organized and existing under the laws of the Commonwealth of
Kentucky (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 _______________, between the Company and
Bankers Trust Company, as trustee (the Trustee), as supplemented by
the Supplemental Indenture dated as of _______________ between the
Company and the Trustee (said Indenture as so supplemented being
hereafter referred to as the Indenture)] [Mortgage and Deed of
Trust dated December 1, 1940, between the Company and Bankers Trust
Company, as trustee (the Trustee), as heretofore supplemented and
as to be further supplemented by one or more supplemental inden-
tures (said Mortgage, as heretofore supplemented, and as it is to
be supplemented, being hereinafter referred to as the Mortgage)];
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 or statements and prospectus or prospectuses
relating to the [Debt Securities] and such registration statements
have become effective; and
WHEREAS, such registration statements, as they 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 Statements,
and the combined prospectus under Rule 429 under the Act, as
included or referred to in the latest Registration Statement to
become effective, as it may be last amended or supplemented prior
to the effectiveness of the agreement, but excluding any amendment
or supplement relating solely to securities other than the [Debt
Securities] (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:
1. 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 designated by the Company), 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 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, 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, counsel to
the Underwriters:
(1) Opinion of Simpson Thacher & Bartlett and
either of John M. Adams, Jr., Esq. or Thomas
G. Berkemeyer, Esq., counsel to the Company,
substantially in the forms attached hereto as
Exhibits A and B;
(2) Opinion of Dewey Ballantine, 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 Statements 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 Statements
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
Statements which is unsatisfactory in substance to
the Representative or unsatisfactory in form to
Dewey Ballantine, counsel to the Underwriters.
(e) That, at the Time of Purchase, appropriate orders
of the Kentucky Public Service Commission and the
Tennessee Public Service Commission, 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 Statements
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), except changes arising from
transactions in the ordinary course of business,
none of which individually has, or in the aggregate
have, had a material adverse effect on the
business, properties or financial condition of the
Company, 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 consider-
ation 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 either of the Registration Statements or the
Prospectus or for additional information with
respect thereto or of the entry of a stop order
suspending the effectiveness of the either of the
Registration Statements 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 exceed-
ing 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 Statements as
initially filed with the Commission and of all
amendments thereto, other than amendments relating
solely to securities other than the [Debt
Securities] (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 circum-
stances when the Prospectus is delivered to a
purchaser, not misleading, forthwith to prepare and
furnish, at its own expense, to the Underwriters
and to dealers (whose names and addresses are fur-
nished 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 earning 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, counsel to the
Underwriters, only in the events provided in para-
graph (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, 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 connec-
tion 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) 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 Statements on their respective
effective dates complied, or were deemed to comply,
with the applicable provisions of the Act and the
rules and regulations of the Commission and the
Registration Statements at their respective
effective dates 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 latest
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 rules and regulations
of the Commission, the Basic Prospectus at the time
that the latest Registration Statements 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 Statements 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
Statements, the Basic Prospectus or Prospectus, or
to any statements in or omissions from that part of
the Registration Statements 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]
[Mortgage] 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 either 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 either
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. 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
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). The
Company shall not be liable in the event of any
settlement of any such action effected without its
consent.
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 Statements, 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 Statements, 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 indem-
nity 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 Regis-
tration Statements, 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 indemnity agreement on the part of each Underwriter
contained in Section 6(b) hereof, and the warranties and represen-
tations 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 the Company shall have the right (a) to
require such non-defaulting Underwriters to purchase and pay for
the respective principal amounts of [Debt Securities] that they had
severally agreed to purchase hereunder, as hereinabove provided,
and, in addition, the principal amount of [Debt Securities] that
the defaulting Underwriter or Underwriters shall have so failed to
purchase up to a principal amount thereof equal to one-ninth of the
respective principal amounts of [Debt Securities] that such non-
defaulting Underwriters have otherwise agreed to purchase
hereunder, and/or (b) to procure one or more others, members of the
National Association of Securities Dealers (NASD) (or, if not
members of the NASD, who are foreign banks, dealers or institutions
not registered under the Securities Exchange Act of 1934 and who
agree in making sales to comply with the NASD's Rules of Fair
Practice), to purchase or agree to purchase, upon the terms herein
set forth, the principal amount of such [Debt Securities] that such
defaulting Underwriter or Underwriters had agreed to purchase, or
that portion thereof that the remaining Underwriters shall not be
obligated to purchase pursuant to the foregoing clause (a). In the
event the Company shall exercise its rights under clause (a) and/or
(b) above, the Company shall give written notice thereof to the
Underwriters within 24 hours (excluding any Saturday, Sunday or
legal holiday) of the time when the Company learns of the failure
or refusal of any Underwriter or Underwriters to purchase and pay
for its respective principal amount of [Debt Securities], and
thereupon the Time of Purchase shall be postponed for a period not
to exceed five full business days, as the Company shall determine.
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 Kentucky 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 Representa-
tive herein mentioned, if so named) and any party or parties
substituted pursuant to Section 7 hereof, and the term "Representa-
tive", 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 Under-
writers.
12. Conditions of the Company's Obligations: The obligations
of the Company hereunder are subject to the Underwriters' perfor-
mance of their obligations hereunder, and the further condition
that at the Time of Purchase the Kentucky Public Service Commission
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.
KENTUCKY POWER COMPANY
By:
A. A. Pena
Treasurer
as Representative
and on behalf of the Underwriters
named in Exhibit 1 hereto
By: <PAGE>
EXHIBIT 1
Name Principal Amount
<PAGE>
[96FN0018.KPC]
Exhibit 4(f)
KENTUCKY POWER COMPANY
AND
BANKERS TRUST COMPANY,
AS TRUSTEE
--------------------
INDENTURE
Dated as of ______________
--------------------
<PAGE>
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
<PAGE>
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
Board of Directors . . . . . . . . . . . . . . . . . .2
Board Resolution . . . . . . . . . . . . . . . . . . .3
Business Day . . . . . . . . . . . . . . . . . . . . .3
Certificate. . . . . . . . . . . . . . . . . . . . . .3
Commission . . . . . . . . . . . . . . . . . . . . . .3
Company. . . . . . . . . . . . . . . . . . . . . . . .3
Company Order. . . . . . . . . . . . . . . . . . . . .3
Corporate Trust Office . . . . . . . . . . . . . . . .3
Default. . . . . . . . . . . . . . . . . . . . . . . .4
Depository . . . . . . . . . . . . . . . . . . . . . .4
Event of Default . . . . . . . . . . . . . . . . . . .4
Global Note. . . . . . . . . . . . . . . . . . . . . .4
Governmental Obligations . . . . . . . . . . . . . . .4
Indenture. . . . . . . . . . . . . . . . . . . . . . .5
Interest Payment Date. . . . . . . . . . . . . . . . .5
Note . . . . . . . . . . . . . . . . . . . . . . . . .5
Noteholder . . . . . . . . . . . . . . . . . . . . . .5
Officers' Certificate. . . . . . . . . . . . . . . . .5
Opinion of Counsel . . . . . . . . . . . . . . . . . .5
Original Issue Date. . . . . . . . . . . . . . . . . .5
Outstanding. . . . . . . . . . . . . . . . . . . . . .6
Predecessor Note . . . . . . . . . . . . . . . . . . .6
Responsible Officer. . . . . . . . . . . . . . . . . .6
Trustee. . . . . . . . . . . . . . . . . . . . . . . .6
Trust Indenture Act. . . . . . . . . . . . . . . . . .7
<PAGE>
ARTICLE TWO - ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF NOTES
Section 2.01
Designation, terms, amount, authentication
and delivery of Notes. . . . . . . . . . . . . . . . .7
Section 2.02
Form of Note and Trustee's certificate . . . . . . . .8
Section 2.03
Date and denominations of Notes,
and provisions for payment of principal,
premium and interest . . . . . . . . . . . . . . . . .8
Section 2.04
Execution of Notes . . . . . . . . . . . . . . . . . 10
Section 2.05
Exchange of Notes. . . . . . . . . . . . . . . . . . 11
(a) Registration and transfer
of Notes. . . . . . . . . . . . . . . . . . . . 11
(b) Note Register; Notes to be accompanied
by proper instruments of transfer . . . . . . . 11
(c) Charges upon exchange, transfer or
registration of Notes . . . . . . . . . . . . . 12
(d) Restrictions on transfer or
exchange at time of redemption. . . . . . . . . 12
Section 2.06
Temporary Notes. . . . . . . . . . . . . . . . . . . 12
Section 2.07
Mutilated, destroyed, lost or
stolen Notes . . . . . . . . . . . . . . . . . . . . 12
Section 2.08
Cancellation of surrendered Notes. . . . . . . . . . 13
Section 2.09
Provisions of Indenture and Notes
for sole benefit of parties and
Noteholders. . . . . . . . . . . . . . . . . . . . . 14
Section 2.10
Appointment of Authenticating Agent. . . . . . . . . 14
<PAGE>
Section 2.11
Global Note. . . . . . . . . . . . . . . . . . . . . 14
(a) Authentication and Delivery;
Legend. . . . . . . . . . . . . . . . . . . . . 14
(b) Transfer of Global Note . . . . . . . . . . . . 15
(c) Issuance of Notes in
Definitive Form . . . . . . . . . . . . . . . . 15
ARTICLE THREE - REDEMPTION OF NOTES AND
SINKING FUND PROVISIONS
Section 3.01
Redemption of Notes. . . . . . . . . . . . . . . . . 16
Section 3.02
(a) Notice of redemption. . . . . . . . . . . . . . 16
(b) Selection of Notes in case
less than all Notes to be
redeemed. . . . . . . . . . . . . . . . . . . . 16
Section 3.03
(a) When Notes called for
redemption become due and payable . . . . . . . 17
(b) Receipt of new Note upon
partial payment . . . . . . . . . . . . . . . . 17
Section 3.04
Sinking Fund for Notes . . . . . . . . . . . . . . . 18
Section 3.05
Satisfaction of Sinking Fund
Payments with Notes. . . . . . . . . . . . . . . . . 18
Section 3.06
Redemption of Notes for
Sinking Fund . . . . . . . . . . . . . . . . . . . . 18
ARTICLE FOUR - PARTICULAR COVENANTS OF THE COMPANY
Section 4.01
Payment of principal (and premium
if any) and interest on Notes. . . . . . . . . . . . 19
<PAGE>
Section 4.02
Maintenance of office or agency for
payment of Notes, designation of
office or agency for payment,
registration, transfer and exchange
of Notes . . . . . . . . . . . . . . . . . . . . . . 19
Section 4.03
(a) Duties of paying agent. . . . . . . . . . . . . 19
(b) Company as paying agent . . . . . . . . . . . . 20
(c) Holding sums in trust . . . . . . . . . . . . . 20
Section 4.04
Appointment to fill vacancy in
office of Trustee. . . . . . . . . . . . . . . . . . 20
Section 4.05
Restriction on consolidation,
merger or sale . . . . . . . . . . . . . . . . . . . 20
ARTICLE FIVE - NOTEHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 5.01
Company to furnish Trustee information
as to names and addresses of
Noteholders. . . . . . . . . . . . . . . . . . . . . 21
Section 5.02
(a) Trustee to preserve information
as to names and addresses of
Noteholders received by it
in capacity of paying agent . . . . . . . . . . 21
(b) Trustee may destroy list of
Noteholders on certain
conditions. . . . . . . . . . . . . . . . . . . 21
(c) Trustee to make information as to
names and addresses of Noteholders
available to "applicants" to mail
communications to Noteholders in
certain circumstances . . . . . . . . . . . . . 21
(d) Procedure if Trustee elects not to
make information available to
applicants. . . . . . . . . . . . . . . . . . . 22
(e) Company and Trustee not accountable
for disclosure of information . . . . . . . . . 22
<PAGE>
Section 5.03
(a) Annual and other reports to be filed
by Company with Trustee . . . . . . . . . . . . 22
(b) Additional information and reports
to be filed with Trustee and
Securities and Exchange Commission. . . . . . . 23
(c) Summaries of information and reports
to be transmitted by Company to
Noteholders . . . . . . . . . . . . . . . . . . 23
(d) Annual Certificate to be furnished
to Trustee. . . . . . . . . . . . . . . . . . . 23
Section 5.04
(a) Trustee to transmit annual report
to Noteholders. . . . . . . . . . . . . . . . . 23
(b) Trustee to transmit certain further
reports to Noteholders. . . . . . . . . . . . . 24
(c) Copies of reports to be filed with
stock exchanges and Securities and
Exchange Commission . . . . . . . . . . . . . . 25
ARTICLE SIX - REMEDIES OF THE TRUSTEE AND
NOTEHOLDERS ON EVENT OF DEFAULT
Section 6.01
(a) Events of default defined . . . . . . . . . . . 25
(b) Acceleration of maturity
upon Event of Default . . . . . . . . . . . . . 26
(c) Waiver of default and rescission
of declaration of maturity. . . . . . . . . . . 26
(d) Restoration of former position
and rights upon curing default. . . . . . . . . 27
Section 6.02
(a) Covenant of Company to pay to
Trustee whole amount due on
Notes on default in payment
of interest or principal (and
premium, if any). . . . . . . . . . . . . . . . 27
(b) Trustee may recover judgment for
whole amount due on Notes on
failure of Company to pay . . . . . . . . . . . 28
(c) Billing of proof of claim by Trustee
in bankruptcy, reorganization or
receivership proceeding . . . . . . . . . . . . 28
(d) Rights of action and of asserting
claims may be enforced by Trustee
without possession of Notes . . . . . . . . . . 28
<PAGE>
Section 6.03
Application of monies collected by Trustee . . . . . 29
Section 6.04
Limitation on suits by holders of Notes. . . . . . . 29
Section 6.05
(a) Remedies Cumulative . . . . . . . . . . . . . . 30
(b) Delay or omission in exercise
of rights not waiver of default . . . . . . . . 30
Section 6.06
Rights of holders of majority in
principal amount of Notes to
direct trustee and to waive defaults . . . . . . . . 30
Section 6.07
Trustees to give notice of defaults
known to it, but may withhold in
certain circumstances. . . . . . . . . . . . . . . . 31
Section 6.08
Requirements of an undertaking to pay
costs in certain suits under Indenture
or against Trustee . . . . . . . . . . . . . . . . . 32
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 . . . . . . . . . . 32
(b) Trustee not relieved from liability
for negligence or willful misconduct
except as provided in this section. . . . . . . 33
(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
<PAGE>
(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
Notes
(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. . . . 34
(b) Sufficient evidence by certain
instruments provided for. . . . . . . . . . . . 34
(c) Trustee may consult with counsel and act
on advice or Opinion of Counsel . . . . . . . . 34
(d) Trustee may require indemnity from
Noteholders . . . . . . . . . . . . . . . . . . 34
(e) Trustee not liable for actions in good
faith believed to be authorized . . . . . . . . 34
(f) Trustee not bound to investigate facts or
matters stated in certificates, etc. unless
requested in writing by Noteholders . . . . . . 34
(g) Trustee may perform duties directly or
through agents or attorneys . . . . . . . . . . 35
(h) Permissive rights of Trustee. . . . . . . . . . 35
Section 7.03
(a) Trustee not liable for recitals in
Indenture or in Notes . . . . . . . . . . . . . 35
(b) No representations by Trustee as to
validity or Indenture or of Notes . . . . . . . 35
(c) Trustee not accountable for use of
Notes or proceeds . . . . . . . . . . . . . . . 35
Section 7.04
Trustee, paying agent or Note
Registrar may own Notes. . . . . . . . . . . . . . . 35
Section 7.05
Monies received by Trustee to be held
in Trust without interest. . . . . . . . . . . . . . 36
<PAGE>
Section 7.06
(a) Trustee entitled to compensation,
reimbursement and indemnity . . . . . . . . . . 36
(b) Obligations to Trustee to be
secured by lien prior to
Notes . . . . . . . . . . . . . . . . . . . . . 36
(c) Survival of Obligations . . . . . . . . . . . . 36
Section 7.07
Right of Trustee to rely on certificate
of officers of Company where no other
evidence specifically prescribed . . . . . . . . . . 36
Section 7.08
Trustee acquiring conflicting interest
to eliminate conflict or resign. . . . . . . . . . . 37
Section 7.09
Requirements for eligibility of
trustee. . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.10
(a) Resignation of Trustee and
appointment of successor. . . . . . . . . . . . 37
(b) Removal of Trustee by Company
or by court on Noteholders'
application . . . . . . . . . . . . . . . . . . 38
(c) Removal of Trustee by holders
of majority in principal amount
of Notes. . . . . . . . . . . . . . . . . . . . 38
(d) Time when resignation or removal
of Trustee effective. . . . . . . . . . . . . . 38
(e) One Trustee for each series . . . . . . . . . . 39
Section 7.11
(a) Acceptance by successor Trustee . . . . . . . . 39
(b) Trustee with respect to less than
all series. . . . . . . . . . . . . . . . . . . 39
(c) Company to confirm Trustee's rights . . . . . . 40
(d) Successor Trustee to be qualified . . . . . . . 40
(e) Notice of succession. . . . . . . . . . . . . . 40
Section 7.12
Successor to Trustee by merger, consolidation
of succession to business. . . . . . . . . . . . . . 40
Section 7.13
Limitations on rights of Trustee as a
creditor to obtain payment of certain
claims . . . . . . . . . . . . . . . . . . . . . . . 40
<PAGE>
ARTICLE EIGHT - CONCERNING THE NOTEHOLDERS
Section 8.01
Evidence of action by Noteholders. . . . . . . . . . 41
Section 8.02
Proof of execution of instruments and of
holding of Notes . . . . . . . . . . . . . . . . . . 41
Section 8.03
Who may be deemed owners of Notes. . . . . . . . . . 42
Section 8.04
Notes owned by Company or controlled
or controlling companies disregarded for
certain purposes . . . . . . . . . . . . . . . . . . 42
Section 8.05
Instruments executed by Noteholders
bind future holders. . . . . . . . . . . . . . . . . 42
ARTICLE NINE - SUPPLEMENTAL INDENTURES
Section 9.01
Purposes for which supplemental indenture
may be entered into without consent of
Noteholders. . . . . . . . . . . . . . . . . . . . . 43
Section 9.02
Modification of Indenture with consent
of Noteholders . . . . . . . . . . . . . . . . . . . 44
Section 9.03
Effect of supplemental indentures. . . . . . . . . . 45
Section 9.04
Notes may bear notation of changes
by supplemental indentures . . . . . . . . . . . . . 45
Section 9.05
Opinion of Counsel . . . . . . . . . . . . . . . . . 45
ARTICLE TEN - CONSOLIDATION, MERGER AND SALE
Section 10.01
Consolidations or mergers of Company
and sales or conveyances of property
of Company permitted . . . . . . . . . . . . . . . . 46
<PAGE>
Section 10.02
(a) Rights and duties of successor company. . . . . 46
(b) Appropriate changes may be made in
phraseology and form of Notes . . . . . . . . . 47
(c) Company may consolidate or merge into
itself or acquire properties of other
corporations. . . . . . . . . . . . . . . . . . 47
Section 10.03
Opinion of Counsel . . . . . . . . . . . . . . . . . 47
ARTICLE ELEVEN - SATISFACTION AND DISCHARGE OF INDENTURE:
UNCLAIMED MONIES
Section 11.01
Defeasance and conditions to defeasance. . . . . . . 47
Section 11.02
Application by Trustee of funds deposited
for payment of Notes . . . . . . . . . . . . . . . . 48
Section 11.03
Repayment of monies held by paying agent . . . . . . 49
Section 11.04
Repayment of monies held by Trustee. . . . . . . . . 49
Section 11.05
Delivery of Officer's Certificate
and Opinion of Counsel . . . . . . . . . . . . . . . 49
ARTICLE TWELVE - IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 12.01
Incorporators, Stockholders, officers and
directors of Company exempt from individual
liability. . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE THIRTEEN - MISCELLANEOUS PROVISIONS
Section 13.01
Successors and assigns of Company
bound by Indenture . . . . . . . . . . . . . . . . . 50
<PAGE>
Section 13.02
Acts of board, committee or officer
of successor company valid . . . . . . . . . . . . . 50
Section 13.03
Surrender of powers by Company . . . . . . . . . . . 50
Section 13.04
Required notices or demands may by
served by mail . . . . . . . . . . . . . . . . . . . 50
Section 13.05
Indenture and Notes to be construed
in accordance with laws of the State
of New York. . . . . . . . . . . . . . . . . . . . . 51
Section 13.06
(a) Officers' Certificate and Opinion of
Counsel to be furnished upon applications
or demands by company . . . . . . . . . . . . . 51
(b) Statements to be included in each
certificate or opinion with respect
to compliance with condition or covenant. . . . 51
Section 13.07
Payments due on non-business days. . . . . . . . . . 51
Section 13.08
Provisions required by Trust Indenture
Act of 1939 to control . . . . . . . . . . . . . . . 51
Section 13.09
Indenture may be executed in counterparts. . . . . . 51
Section 13.10
Separability of Indenture provisions . . . . . . . . 52
Section 13.11
Assignment by Company to subsidiary. . . . . . . . . 52
ACCEPTANCE OF TRUST BY TRUSTEE . . . . . . . . . . . . . . . . 52
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . . . 52
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . 52
ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . 53<PAGE>
THIS INDENTURE, dated as of the ___ day of _________, 199_,
between KENTUCKY POWER COMPANY, a corporation duly organized and
existing under the laws of the Commonwealth of Kentucky
(hereinafter sometimes referred to as the "Company"), and BANKERS
TRUST COMPANY, a 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 (hereinafter
referred to as the "Notes"), 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 Notes without coupons, to be
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
Notes are to be authenticated, issued and delivered, the Company
has duly authorized the execution of this Indenture;
WHEREAS, the Notes and the certificate of authentication to be
borne by the Notes (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 any indenture supplemental to
this Indenture;
AND WHEREAS, all acts and things necessary to make the Notes
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 Notes, and the
execution of this Indenture has been and the issuance hereunder of
the Notes 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 Notes;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Notes are and are to be authenticated, issued and delivered,
and in consideration of the premises, of the purchase and
acceptance of the Notes 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 Notes, without
any discrimination, preference or priority of any one Note 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
resolution of the Board of Directors of the Company and of 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
of 1933, 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 Notes, as the case may
be, appointed with respect to all or any series of the Notes, as
the case may be, by the Trustee pursuant to Section 2.10.
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 series of Notes, shall
mean any day other than a day on which banking institutions in the
Borough of Manhattan, the City and State of New York, are
authorized or obligated by law or executive order to close.
Certificate:
The term "Certificate" shall mean a certificate signed by the
Chairman of the Board, the President, any Vice President, the
Treasurer or any Assistant Treasurer of the Company. 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, or if at any time after the
execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
Company:
The term "Company" shall mean Kentucky Power Company, a corporation
duly organized and existing under the laws of Kentucky, 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 the Chairman, the President, any Vice
President, the Treasurer or any Assistant Treasurer, and the
Secretary or an Assistant Secretary of the Company, pursuant to
Board delegation establishing a series of Notes.
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 Four Albany
Street, New York, New York.
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 Notes of any
series, for which the Company shall determine that such Notes will
be issued as a Global Note, The Depository Trust Company, New York,
New York, another clearing agency, or any successor registered as
a clearing agency under the Securities Exchange Act of 1934, as
amended (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.
Event of Default:
The term "Event of Default" with respect to Notes of a particular
series shall mean any event specified in Section 6.01, continued
for the period of time, if any, therein designated.
Global Note:
The term "Global Note" shall mean, with respect to any series of
Notes, a Note executed by the Company 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 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 of America, the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
case, 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 the 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.
Interest Payment Date:
The term "Interest Payment Date" when used with respect to any
installment of interest on a Note of a particular series shall mean
the date specified in such Note 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 Notes of that series is due and payable.
Note or Notes:
The term "Note" or "Notes" shall mean any Note or Notes, as the
case may be, authenticated and delivered under this Indenture.
Noteholder:
The term "Noteholder", "holder of Notes" or "registered holder"
shall mean the person or persons in whose name or names a
particular Note shall be registered on the books of the Company
kept for that purpose in accordance with the terms of this
Indenture.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by
the Chairman of the Board, the President, a Vice President, the
Treasurer or an Assistant Treasurer 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.
Original Issue Date:
The term "Original Issue Date" shall mean for a Note, or portions
thereof, the date upon which it, or such portion, was issued by the
Company pursuant to this Indenture and authenticated by the Trustee
(other than in connection with a transfer, exchange or
substitution).
Outstanding:
The term "outstanding", when used with reference to Notes of any
series, shall, subject to the provisions of Section 8.04, mean, as
of any particular time, all Notes of that series theretofore
authenticated and delivered by the Trustee under this Indenture,
except (a) Notes 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) Notes or
portions thereof for the payment or redemption of which monies or
Governmental 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 Notes or portions of such
Notes 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) Notes in lieu of or in substitution for
which other Notes shall have been authenticated and delivered
pursuant to the terms of Section 2.07.
Predecessor Note:
The term "Predecessor Note" of any particular Note shall mean every
previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section 2.07
in lieu of a lost, destroyed or stolen Note shall be deemed to
evidence the same debt as the lost, destroyed or stolen Note.
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.
Trustee:
The term "Trustee" shall mean Bankers Trust Company, 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 Notes 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.
ARTICLE TWO
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF NOTES
SECTION 2.01. The aggregate principal amount of Notes which
may be authenticated and delivered under this Indenture is
unlimited.
The Notes may be issued from time to time in one or more
series. Each series shall be authorized by a Company Order
pursuant to Board delegation or one or more indentures supplemental
hereto, that establishes the terms of the series, which may include
the following: (i) any limitations on the aggregate principal
amount of the Notes to be issued as part of such series; (ii) the
Original Issue Date or Dates for such series; (iii) the stated
maturity of such series; (iv) the Interest Payment Dates for such
series of Notes; (v) the interest rate or rates, or method of
calculation of such rate or rates, for such series; (vi) the terms,
if any, regarding the optional or mandatory redemption of such
series, including redemption date or dates of such series, if any,
and the price or prices applicable to such redemption (including
any premium); (vii) whether or not the Notes of such series shall
be issued in whole or in part in the form of a Global Note and, if
so, the Depositary for such Global Note; (viii) the designation of
such series; (ix) the form of the Notes of such series; (x) the
maximum annual interest rate, if any, of the Notes permitted for
such series; (xi) any other information necessary to complete the
Notes of such series; (xii) the establishment of any office or
agency pursuant to Section 4.02 hereof; (xiii) if other than
denominations of $1,000 or any integral multiple thereof, the
denominations in which the Notes of the series shall be issuable;
and (xiv) any other terms of such series not inconsistent with this
Indenture.
All Notes 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 Board action shall be certified by the Secretary or an Assistant
Secretary of the Company.
SECTION 2.02. The Notes of any series and the Trustee's
certificate of authentication to be borne by such Notes shall be
substantially of the tenor and purport as set forth in one or more
indentures supplemental hereto or as provided in a Company Order,
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 Notes of that series may
be listed or of the Depository, or to conform to usage.
SECTION 2.03. The Notes shall be issuable as registered Notes
and in the denominations of $1,000 or any integral multiple
thereof, subject to Section 2.01(xiii). The Notes of a particular
series shall bear interest payable on the dates and at the rate or
rates specified with respect to that series. The principal of and
the interest on the Notes of any series, as well as any premium
thereon in case of redemption thereof prior to maturity, shall be
payable in the coin or currency of the United States of America
which at the time is legal tender for public and private debt, at
the office or agency of the Company maintained for that purpose.
Each Note shall be dated the date of its authentication.
The interest installment on any Note which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date
for Notes of that series shall be paid to the person in whose name
said Note (or one or more Predecessor Notes) 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 Notes.
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date
for Notes 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 Notes to the persons in whose names such Notes (or
their respective Predecessor Notes) 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
Note 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 Noteholder at his or her address as it
appears in the Note 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 Notes (or their respective Predecessor Notes) 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 Notes in any other lawful manner not
inconsistent with the requirements of any securities exchange
on which such Notes 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 Notes pursuant to Section 2.01 hereof, the term "regular record
date" as used in this Section with respect to a series of Notes
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 Note
of a series delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Note of such series shall
carry the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Note.
SECTION 2.04. The Notes 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 its Chairman of the Board, its President, its Treasurer or one
of its Vice Presidents. The signature of the Chairman of the
Board, the President, Treasurer or a Vice President upon the Notes,
may be in the form of a facsimile signature of a present or any
future Chairman of the Board, President, Treasurer or Vice
President and may be imprinted or otherwise reproduced on the Notes
and for that purpose the Company may use the facsimile signature of
any person who shall have been a Chairman of the Board, President,
Treasurer or Vice President, notwithstanding the fact that at the
time the Notes shall be authenticated and delivered or disposed of
such person shall have ceased to be the Chairman of the Board,
President, Treasurer or a Vice President of the Company, as the
case may be.
Only such Notes as shall bear thereon a Certificate of
Authentication substantially in the form established for such
Notes, executed manually by an authorized signatory of the Trustee,
or by any Authenticating Agent with respect to such Notes, 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 Notes, upon any Note executed by the Company
shall be conclusive evidence that the Note so authenticated has
been duly authenticated and delivered hereunder and that the holder
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 Notes of any
series executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery
of such Notes, and the Trustee in accordance with such Company
Order shall authenticate and deliver such Notes.
In authenticating such Notes and accepting the additional
responsibilities under this Indenture in relation to such Notes,
the Trustee shall be entitled to receive, and (subject to Section
7.01) shall be fully protected in relying upon, an Opinion of
Counsel stating that the form and terms thereof have been
established in conformity with the provisions of this Indenture.
The Trustee shall not be required to authenticate such Notes
if the issue of such Notes pursuant to this Indenture will affect
the Trustee's own rights, duties or immunities under the Notes and
this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
SECTION 2.05. (a) Notes of any series may be exchanged upon
presentation thereof at the office or agency of the Company
designated for such purpose, for other Notes 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 Notes so surrendered for exchange, the
Company shall execute, the Trustee shall authenticate and such
office or agency shall deliver in exchange therefor the Note or
Notes of the same series which the Noteholder 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 "Note Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall register the
Notes and the transfers of Notes 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 Notes and
transfer of Notes as herein provided shall be appointed as
authorized by Board Resolution or Company Order (the "Note
Registrar").
Upon surrender for transfer of any Note 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 Note or Notes of the same
series as the Note presented for a like aggregate principal amount.
All Notes 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 Note Registrar)
by a written instrument or instruments of transfer, in form
satisfactory to the Company or the Note Registrar, duly executed by
the registered holder or by his duly authorized attorney in
writing.
(c) No service charge shall be made for any exchange or
registration of transfer of Notes, or issue of new Notes 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 not be required (i) to 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 ending at the close of business on the day of such
mailing, nor (ii) to register the transfer of or exchange any Notes
of any series or portions thereof called for redemption. The
provisions of this Section 2.05 are, with respect to any Global
Note, subject to Section 2.11 hereof.
SECTION 2.06. Pending the preparation of definitive Notes of
any series, the Company may execute, and the Trustee shall
authenticate and deliver, temporary Notes (printed, lithographed or
typewritten) of any authorized denomination, and substantially in
the form of the definitive Notes in lieu of which they are issued,
but with such omissions, insertions and variations as may be
appropriate for temporary Notes, all as may be determined by the
Company. Every temporary Note 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 Notes of such series. Without
unnecessary delay the Company will execute and will furnish
definitive Notes of such series and thereupon any or all temporary
Notes of such series may be surrendered in exchange therefor
(without charge to the holders), 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 Notes an equal aggregate principal amount of
definitive Notes of such series, unless the Company advises the
Trustee to the effect that definitive Notes need not be executed
and furnished until further notice from the Company. Until so
exchanged, the temporary Notes of such series shall be entitled to
the same benefits under this Indenture as definitive Notes of such
series authenticated and delivered hereunder.
SECTION 2.07. In case any temporary or definitive Note 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 Note of the same series bearing a number not
contemporaneously outstanding, in exchange and substitution for the
mutilated Note, or in lieu of and in substitution for the Note so
destroyed, lost or stolen. In every case the applicant for a
substituted Note 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 Note and of the ownership thereof. The Trustee may
authenticate any such substituted Note and deliver the same upon
the written request or authorization of any officer of the Company.
Upon the issuance of any substituted Note, 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 Note 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 Note, pay
or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Note) 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 Note and of the ownership thereof.
Every Note issued pursuant to the provisions of this Section
in substitution for any Note 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
Note 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 Notes of the same series
duly issued hereunder. All Notes 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 Notes, 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 Notes surrendered for the purpose of
payment, redemption, exchange or registration of transfer 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 Notes 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 Notes held by the Trustee. In the
absence of such request the Trustee may dispose of canceled Notes
in accordance with its standard procedures and deliver a
certificate of disposition to the Company. If the Company shall
otherwise acquire any of the Notes, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness
represented by such Notes unless and until the same are delivered
to the Trustee for cancellation.
SECTION 2.09. Nothing in this Indenture or in the Notes,
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 Notes, any legal or equitable right, remedy or claim
under or in respect of this Indenture, or under 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 Notes.
SECTION 2.10. So long as any of the Notes of any series
remain outstanding there may be an Authenticating Agent for any or
all such series of Notes which the Trustee shall have the right to
appoint. Said Authenticating Agent shall be authorized to act on
behalf of the Trustee to authenticate Notes of such series issued
upon exchange, transfer or partial redemption thereof, and Notes 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 Notes 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.
SECTION 2.11. (a) If the Company shall establish pursuant to
Section 2.01 that the Notes of a particular series are to be issued
as a Global Note, then the Company shall execute and the Trustee
shall, in accordance with Section 2.04, authenticate and deliver,
a Global Note which (i) shall represent, and shall be denominated
in an amount equal to the aggregate principal amount of, all of the
Outstanding Notes of such series, (ii) shall be registered in the
name of the Depository or its nominee, (iii) shall be 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 Note 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 Note 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 Notes
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 Notes of such series and
the Company will execute, and subject to Section 2.05, the Trustee
will authenticate and deliver Notes 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 Note of such series in exchange for such Global Note.
In addition, the Company may at any time determine that the Notes
of any series shall no longer be represented by a Global Note and
that the provisions of this Section 2.11 shall no longer apply to
the Notes 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 Notes 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 Note of such series in exchange for such Global Note.
Upon the exchange of the Global Note for such Notes in definitive
registered form without coupons, in authorized denominations, the
Global Note shall be canceled by the Trustee. Such Notes in
definitive registered form issued in exchange for the Global Note
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 Note Registrar. The Trustee shall deliver such
Notes to the Depository for delivery to the persons in whose names
such Notes are so registered.
ARTICLE THREE
REDEMPTION OF NOTES AND SINKING FUND PROVISIONS
SECTION 3.01. The Company may redeem the Notes 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 Notes of any series in accordance with the right reserved so
to do, it shall give notice of such redemption to holders of the
Notes 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 Note 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
Note 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 Notes of such series or
any other series. In the case of any redemption of Notes prior to
the expiration of any restriction on such redemption provided in
the terms of such Notes or elsewhere in this Indenture, the Company
shall furnish the Trustee with an Officers' Certificate evidencing
compliance with any such restriction.
Each such notice of redemption shall specify the date fixed
for redemption and the redemption price at which Notes of that
series are to be redeemed, and shall state that payment of the
redemption price of such Notes to be redeemed will be made at the
office or agency of the Company, upon presentation and surrender of
such Notes, 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 Notes of
a series are to be redeemed, the notice to the holders of Notes of
that series to be redeemed in whole or in part shall specify the
particular Notes to be so redeemed. In case any Note is to be
redeemed in part only, the notice which relates to such Note 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 Note, a new Note or Notes of such series in
principal amount equal to the unredeemed portion thereof will be
issued.
(b) If less than all the Notes of a series are to be
redeemed, the Company shall give the Trustee at least 35 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 Notes 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 Section
2.01(xiii)) of the principal amount of such Notes of a denomination
larger than $1,000 (subject as aforesaid), the Notes to be redeemed
and shall thereafter promptly notify the Company in writing of the
numbers of the Notes 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 its Chairman of
the Board, its President, any Vice President, or Treasurer,
instruct the Trustee or any paying agent to call all or any part of
the Notes 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 Note 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 Notes or portions
of Notes 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
interest accrued to the date fixed for redemption and interest on
such Notes or portions of Notes 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 Note or portion thereof. On presentation and
surrender of such Notes on or after the date fixed for redemption
at the place of payment specified in the notice, said Notes shall
be paid and redeemed at the applicable redemption price for such
series, together with interest accrued thereon to the date fixed
for redemption (but if the date fixed for redemption is an interest
payment date, the interest installment payable on such date shall
be payable to the registered holder at the close of business on the
applicable record date pursuant to Section 2.03).
(b) Upon presentation of any Note 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 Note is
presented shall deliver to the holder thereof, at the expense of
the Company, a new Note or Notes of the same series, of authorized
denominations in principal amount equal to the unredeemed portion
of the Note so presented.
SECTION 3.04. The provisions of Sections 3.04, 3.05 and 3.06
shall be applicable to any sinking fund for the retirement of Notes
of a series, except as otherwise specified as contemplated by
Section 2.01 for Notes of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Notes 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 Notes of any series is
herein referred to as an "optional sinking fund payment". If
provided for by the terms of Notes 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 Notes of such series as provided for by the terms of
Notes of such series.
SECTION 3.05. The Company (i) may deliver Outstanding Notes
of a series (other than any previously called for redemption) and
(ii) may apply as a credit Notes of a series which have been
redeemed either at the election of the Company pursuant to the
terms of such Notes or through the application of permitted
optional sinking fund payments pursuant to the terms of such Notes,
in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Notes of such series required to be
made pursuant to the terms of such Notes as provided for by the
terms of such series; provided that such Notes have not been
previously so credited. Such Notes shall be received and credited
for such purpose by the Trustee at the redemption price specified
in such Notes for redemption through operation of the sinking fund
and the amount of such 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 Notes, 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 Notes 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 Notes to be so delivered. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Notes
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 Notes 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 Notes 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 Notes
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 Notes of that series at the time and place and in
the manner provided herein and established with respect to such
Notes.
SECTION 4.02. So long as any series of the Notes 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) Notes of that series may be presented for payment, (ii)
Notes 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 Notes 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 its Chairman of the Board, its
President, a Vice President or its Treasurer 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 Notes.
SECTION 4.03. (a) If the Company shall appoint one or more
paying agents for all or any series of the Notes, 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 Notes of that series (whether such sums have
been paid to it by the Company or by any other obligor of such
Notes) in trust for the benefit of the persons entitled
thereto;
(2) that it will give the Trustee notice of any failure
by the Company (or by any other obligor of such Notes) to make
any payment of the principal of (and premium, if any) or
interest on the Notes 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 Notes, it will on or before each due
date of the principal of (and premium, if any) or interest on Notes
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
Notes 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 Notes) to take such action. Whenever the
Company shall have one or more paying agents for any series of
Notes, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Notes 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 Notes
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 company unless the provisions of Article Ten hereof
are complied with.
ARTICLE FIVE
NOTEHOLDERS' 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) a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of
each series of Notes 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 Note 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 Notes 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 Notes received by the Trustee
in its capacity as Note 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 Notes 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 Note 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
Notes of such series or holders of all Notes with respect to their
rights under this Indenture or under such Notes, 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 Notes of such series or of all Notes, 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 Noteholders the form 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 Notes, 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 Securities and Exchange Commission
(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 Notes of such series or of all Notes, 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 Noteholders 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 Notes, 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
Note Registrar shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of
the holders of Notes 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 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 provided 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 Noteholders,
as their names and addresses appear upon the Note 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 Notes 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 of the
Company 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.
SECTION 5.04. (a) On or before July 15 in each year in which
any of the Notes are outstanding, the Trustee shall transmit by
mail, first class postage prepaid, to the Noteholders, as their
names and addresses appear upon the Note 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 7.08;
(2) the creation of or any material change to a
relationship specified in paragraphs (1) through (10) of
Subsection 310 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 Notes, 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
Notes 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 Notes, 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 Section 7.13;
(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 of this Indenture (and the
consideration thereof, if any) which it has not previously
reported;
(7) any additional issue of Notes 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 Notes
or the Notes 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 Noteholders, as their names and addresses appear
upon the Note 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 Notes 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 Notes 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 Noteholders, be filed by the Trustee with the
Company, with each stock exchange upon which any Notes are listed
(if so listed) and also with the Commission. The Company agrees to
notify the Trustee when any Notes become listed on any stock
exchange.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. (a) Whenever used herein with respect to Notes
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 Notes 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, on) any of the Notes of that series as and
when the same shall become due and payable whether at
maturity, upon redemption, by declaration or otherwise;
(3) default in the payment of any sinking fund
obligation with respect to any of the Notes of that series
established with respect to that series, and continuance of
such default for a period of 30 days;
(4) 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 Notes or otherwise established with respect to that
series of Notes 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 Notes 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 25% in principal amount of the Notes of
that series at the time outstanding;
(5) 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;
(6) 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
(7) the occurrence of any other Event of Default with
respect to Notes of such series, as contemplated by Section
2.01 hereof.
(b) In each and every such case, unless the principal of all
the Notes of that series shall have already become due and payable,
either the Trustee or the holders of not less than 25% in aggregate
principal amount of the Notes of that series then outstanding
hereunder, by notice in writing to the Company (and to the Trustee
if given by such Noteholders), may declare the principal of all the
Notes 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
Notes 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 Notes 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 Notes of that series
and the principal of (and premium, if any, on) any and all Notes 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 Notes 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 Notes 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
Notes 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 Notes; 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 Notes 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 (1) in case
default shall be made in the payment of any installment of interest
on any of the Notes of a series, or any payment required by any
sinking or analogous fund established with respect to that series
as and when the same shall have become due and payable, and such
default shall have continued for a period of 30 days, or (2) in
case default shall be made in the payment of the principal of (or
premium, if any, on) any of the Notes of a series when the same
shall have become due and payable, whether upon maturity of the
Notes of a series or upon redemption or upon declaration or
otherwise, then, upon demand of the Trustee, the Company will pay
to the Trustee, for the benefit of the holders of the Notes of that
series, the whole amount that then shall have become due and
payable on all such Notes 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 Notes 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 Notes of that series and collect in the
manner provided by law out of the property of the Company or other
obligor upon the Notes 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 Notes, 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 Notes of such series allowed for the entire
amount due and payable by the Company or such other obligor under
the 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 Notes 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
Noteholders, 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
Notes of that series, may be enforced by the Trustee without the
possession of any of such Notes, 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 Notes 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 Noteholder any plan of reorganization, arrangement, adjustment
or composition affecting the Notes of that series or the rights of
any holder thereof or to authorize the Trustee to vote in respect
of the claim of any Noteholder 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 Notes 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 Notes 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 Notes 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 Notes for principal (and premium, if
any) and interest, respectively; and
THIRD: To the Company.
SECTION 6.04. No holder of any Note 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 Notes of such series specifying
such Event of Default, as hereinbefore provided, and unless also
the holders of not less than 25% in aggregate principal amount of
the Notes 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 Note of such series with every other such taker and
holder and the Trustee, that no one or more holders of Notes 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
Notes, 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 Notes of such series.
For the protection and enforcement of the provisions of this
Section, each and every Noteholder 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 Note to receive payment of
the principal of (and premium, if any) and interest on such Note,
as therein provided, on or after the respective due dates expressed
in such Note (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 Noteholders 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 Notes, 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 Notes.
(b) No delay or omission of the Trustee or of any holder of
any of the Notes 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 Noteholders may be
exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Noteholders.
SECTION 6.06. The holders of a majority in aggregate
principal amount of the Notes 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 Notes 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 would involve the Trustee in personal liability. The
holders of a majority in aggregate principal amount of the Notes 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 Notes 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 Notes of that series
as and when the same shall become due by the terms of such Notes
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 Notes 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 Notes 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
Notes of that series, as their names and addresses appear upon the
Note 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 Notes 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 Notes 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 Notes of such series no such notice to the holders of
the Notes 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 Notes 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 Notes 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
Noteholder, or group of Noteholders, holding more than 10% in
aggregate principal amount of the outstanding Notes of any series,
or to any suit instituted by any Noteholder for the enforcement of
the payment of the principal of (or premium, if any) or interest on
any Note of such series, on or after the respective due dates
expressed in such Note 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 Notes of a series and after the
curing of all Events of Default with respect to Notes of that
series which may have occurred, shall undertake to perform with
respect to Notes 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 Notes of
a series has occurred (which has not been cured or waived), the
Trustee shall exercise with respect to Notes of that series such of
the rights and powers vested in it by this Indenture, and 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.
(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 Notes 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 Notes of such series be determined solely
by the express provisions of this Indenture, and the
Trustee shall not be liable with respect to Notes 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 Notes 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;
(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 direction of the holders of not less than
a majority in principal amount of the Notes 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 Notes 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 any 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.
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 instrument signed in the name of the Company by
the Chairman of the Board, the President, any Vice President or the
Treasurer and by the Secretary or an Assistant Secretary (unless
other evidence in respect thereof is specifically prescribed
herein);
(c) The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken 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 Noteholders, pursuant to
the provisions of this Indenture, unless such Noteholders 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 Notes (which
has not been cured or waived) to exercise with respect to Notes 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 be 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
Notes 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
Notes (other than the Certificate of Authentication on the Notes)
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 Notes.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Notes or of the proceeds
of such Notes, 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 Note
Registrar, in its individual or any other capacity, may become the
owner or pledgee of Notes with the same rights it would have if it
were not Trustee, paying agent or Note 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 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 Notes 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
Notes.
(c) 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 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 Notes 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 Notes 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 Noteholders of such series, as their names and
addresses appear upon the Note Register. Upon receiving such
notice of resignation, the Company shall promptly appoint a
successor trustee with respect to Notes 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 Notes of such series, or any Noteholder of that
series who has been a bona fide holder of a Note or Notes 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 Noteholder who has been a bona fide holder of a Note
or Notes 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
Noteholder; 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 Notes 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 the Trustee's
duty to resign is stayed as provided herein, any Noteholder who has
been a bona fide holder of a Note or Notes 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 Notes 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 Notes 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 Notes of one or more series or
all of such series, and at any time there shall be only one Trustee
with respect to the Notes of any particular series.
SECTION 7.11. (a) In case of the appointment hereunder of a
successor trustee with respect to all Notes, 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.
(b) In case of the appointment hereunder of a successor
trustee with respect to the Notes of one or more (but not all)
series, the Company, the retiring Trustee and each successor
trustee with respect to the Notes 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 Notes 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 Notes 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 Notes 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 Notes 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 Notes 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 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 Noteholders, as their names and addresses appear
upon the Note 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 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 Section 7.08 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 Notes 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 Notes so
authenticated with the same effect as if such successor Trustee had
itself authenticated such Notes.
SECTION 7.13. If and when the Trustee shall become a creditor
of the Company (or any other obligor upon the Notes), the Trustee
shall be subject to the provisions of the Trust Indenture Act
regarding collection of claims against the Company (or any obligor
upon the Notes).
ARTICLE EIGHT
CONCERNING THE NOTEHOLDERS
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 Notes 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
Notes of that series in person or by agent or proxy appointed in
writing.
If the Company shall solicit from the Noteholders 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 Noteholders 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
Noteholders of record at the close of business on the record date
shall be deemed to be Noteholders for the purposes of determining
whether Noteholders of the requisite proportion of outstanding
Notes 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 Notes of that
series shall be computed as of the record date; provided that no
such authorization, agreement or consent by such Noteholders 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.
SECTION 8.02. Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a Noteholder (such
proof will not require notarization) or his agent or proxy and
proof of the holding by any person of any of the Notes 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 Notes shall be proved by the Note
Register of such Notes or by a certificate of the Note 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 Note, the Company, the Trustee, any paying agent
and any Note Registrar may deem and treat the person in whose name
such Note shall be registered upon the books of the Company as the
absolute owner of such Note (whether or not such Note shall be
overdue and notwithstanding any notice of ownership or writing
thereon made by anyone other than the Note Registrar) for the
purpose of receiving payment of or on account of the principal of,
premium, if any, and (subject to Section 2.03) interest on such
Note 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.
SECTION 8.04. In determining whether the holders of the
requisite aggregate principal amount of Notes of a particular
series have concurred in any direction, consent or waiver under
this Indenture, Notes of that series which are owned by the Company
or any other obligor on the Notes 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 Notes 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 Notes of such series
which the Trustee actually knows are so owned shall be so
disregarded. Notes 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 Notes 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 Notes of a particular series
specified in this Indenture in connection with such action, any
holder of a Note of that series which is shown by the evidence to
be included in the Notes 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 Note. Except as aforesaid any such
action taken by the holder of any Note shall be conclusive and
binding upon such holder and upon all future holders and owners of
such Note, and of any Note 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
Note. Any action taken by the holders of the majority or
percentage in aggregate principal amount of the Notes 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 Notes of that series.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. In addition to any supplemental indenture
otherwise authorized by this Indenture, the Company, 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 Noteholders, for one or more of the
following purposes:
(a) to evidence the succession of another corporation 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 Notes; 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 Notes 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 Notes 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 Notes of any series; or
(d) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall
become effective only when there is no Note outstanding of any
series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision; or
(e) to establish the form or terms of Notes of any series as
permitted by Section 2.01.
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 Notes 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 Notes of each series affected by
such supplemental indenture or indentures at the time outstanding,
the Company 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 Notes of such series under
this Indenture; 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, without the consent of
the holder of each Note so affected or (ii) reduce the aforesaid
percentage of Notes, the holders of which are required to consent
to any such supplemental indenture, without the consent of the
holders of each Note then outstanding and affected thereby.
Upon the request of the Company, and upon the filing with the
Trustee of evidence of the consent of Noteholders 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.
It shall not be necessary for the consent of the Noteholders
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 Noteholders of all series
affected thereby as their names and addresses appear upon the Note
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 Notes 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. Notes 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
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 Notes 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 Notes 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 Notes 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 Notes 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,
premium, if any, and interest on all of the Notes 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 Notes pursuant to Section 2.01 to be
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 the predecessor corporation
shall be relieved of all obligations and covenants under this
Indenture and the Notes. 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 Notes,
any or all of the Notes 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 Notes which previously shall have been signed and
delivered by the officers of the predecessor Company to the Trustee
for authentication, and any Notes which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee
for that purpose. All the Notes so issued shall in all respects
have the same legal rank and benefit under this Indenture as the
Notes theretofore or thereafter issued in accordance with the terms
of this Indenture as though all of such Notes 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
Notes thereafter to be issued as may be appropriate.
(c) Nothing contained in this Indenture or in any of the
Notes 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
SECTION 11.01. Notes 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 Notes of the series
are no longer outstanding; thereafter the Company's obligations in
Section 7.10 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 Trustee upon request shall acknowledge in writing the
discharge of those obligations that the Company terminates.
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 money or Governmental Obligations
or a combination of money and Governmental Obligations;
(2) The Company delivers to the Trustee a certificate
from a nationally recognized firm of independent accountants
expressing their opinion that the payments of principal and
interest when due on the deposited Governmental Obligations
with out reinvestment plus any deposited money without
investment will provide cash at such times and in such amounts
as will be sufficient to pay principal and interest when due
on all the Notes of the series to maturity or redemption, as
the case may be;
(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.
In the event the Company exercises its option to effect a
covenant defeasance with respect to the Notes of any series as
described above and the Notes 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 would be sufficient to pay
amounts due on the Notes of that series at the time of their stated
maturity but may not be sufficient to pay amounts due on the Notes
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 Governmental 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 Notes
for the payment or redemption of which such monies or Governmental
Obligations have been deposited with the Trustee.
SECTION 11.03. In connection with the satisfaction and
discharge of this Indenture all monies or Governmental 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 Governmental Obligations.
SECTION 11.04. Any monies or Governmental 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 Notes of a particular series that are not applied
but remain unclaimed by the holders of such Notes for at least two
years after the date upon which the principal of (and premium, if
any) or interest on such Notes 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 Governmental Obligations, and the holder of any
of the Notes 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 Note, 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 Notes 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 Notes 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 Notes.
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 Notes 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: Kentucky Power Company,
1701 Central Avenue, Ashland, Kentucky 41101, 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
Noteholder 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 Note 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 has made such examination or
investigation as is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether 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 interest or principal of any Note or the date
of redemption of any Note 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 Notes 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 Notes, but
this Indenture and such Notes 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.
Bankers Trust Company, 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.
KENTUCKY POWER COMPANY
By:
Treasurer
Attest:
By:
Assistant Secretary
BANKERS TRUST COMPANY,
as Trustee
By:
Vice President
Attest:
By:
Trust Officer<PAGE>
State of Ohio }
} ss:
County of Franklin }
On this ____ day of __________, 1996, personally appeared
before me, a Notary Public within and for said County in the State
aforesaid, ______________ and ________________, to me known and
known to me to be respectively the Treasurer and an Assistant
Secretary of KENTUCKY 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 Assistant Secretary for and on behalf of said
corporation and that the same is their free act and deed as such
Treasurer and Assistant 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 __________, 1996.
[Notarial Seal]
Notary Public, State of
My Commission Expires: <PAGE>
State of ________ }
} ss:
County of ________ }
Be it remembered, that on this ____ day of __________, 1996,
personally appeared before me the undersigned, a Notary Public
within and for said County and State, Bankers Trust Company, 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 __________, 1996.
[Notarial Seal]
Notary Public, State of
My Commission Expires:
[96FN0015.KPC]
Exhibit 4(g)
KENTUCKY POWER COMPANY
AND
BANKERS TRUST COMPANY,
as Trustee
-----------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of ____________, 1996
TO
INDENTURE
Dated as of ____________, 1996
-----------------------
<PAGE>
FIRST SUPPLEMENTAL INDENTURE, dated as of the ______ day of
__________, 1996 (the "First Supplemental Indenture"), between
KENTUCKY POWER COMPANY, a corporation duly organized and existing
under the laws of the Commonwealth of Kentucky (hereinafter
sometimes referred to as the "Company"), and BANKERS TRUST COMPANY,
a New York corporation, as trustee (hereinafter sometimes referred
to as the "Trustee") under the Indenture dated as of ____________,
1996 between the Company and the Trustee (the "Indenture"); all
terms used and not defined herein are used as defined in the
Indenture.
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the future issuance of its Notes (the
"Notes"), said Notes to be issued from time to time in series as
might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and
delivered thereunder as in the Indenture provided; and
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its
Notes to be known as its ______% Senior Notes, Series A, Due ______
(said series being hereinafter referred to as the "Series A Senior
Notes"), the form and substance of such Series A Senior Notes and
the terms, provisions and conditions thereof to be set forth as
provided in the Indenture and this First Supplemental Indenture;
and
WHEREAS, the Company desires and has requested the Trustee to
join with it in the execution and delivery of this First
Supplemental Indenture, and all requirements necessary to make this
First Supplemental Indenture a valid instrument, in accordance with
its terms, and to make the Series A Senior Notes, when executed by
the Company and authenticated and delivered by the Trustee, the
valid obligations of the Company, have been performed and
fulfilled, and the execution and delivery hereof have been in all
respects duly authorized;
NOW THEREFORE, in consideration of the purchase and acceptance
of the Series A Senior Notes by the holders thereof, and for the
purpose of setting forth, as provided in the Indenture, the form
and substance of the Series A Senior Notes and the terms,
provisions and conditions thereof, the Company covenants and agrees
with the Trustee as follows:
<PAGE>
ARTICLE ONE
GENERAL TERMS AND CONDITIONS OF
THE SERIES A SENIOR NOTES
SECTION 1.01. There shall be and is hereby authorized a
series of Notes designated the "______% Senior Notes, Series A, Due
______", limited in aggregate principal amount to $____________,
which amount shall be as set forth in any written order of the
Company for the authentication and delivery of Series A Senior
Notes pursuant to Section 2.01 of the Indenture. The Series A
Senior Notes shall mature and the principal shall be due and
payable together with all accrued and unpaid interest thereon on
____________, ____, and shall be issued in the form of registered
Series A Senior Notes without coupons.
SECTION 1.02. Except as provided in Section 2.11(c) of the
Indenture, the Series A Senior Notes shall be issued initially in
the form of a Global Note in an aggregate principal amount equal to
all outstanding Series A Senior Notes, to be registered in the name
of the Depository, or its nominee, and delivered by the Trustee to
the Depository for crediting to the accounts of its participants
pursuant to the instructions of the Company. The Company shall
execute a Global Note in such aggregate principal amount and
deliver the same to the Trustee for authentication and delivery as
hereinabove and in the Indenture provided. Payments on the Series
A Senior Notes issued as a Global Note will be made to the
Depository. The Depository for the Series A Senior Notes shall be
The Depository Trust Company, New York, New York.
SECTION 1.03. If, pursuant to the provisions of Section
2.11(c) of the Indenture, the Series A Senior Notes are issued in
certificated form, principal, premium, if any, and interest on the
Series A Senior Notes will be payable, the transfer of such Series
A Senior Notes will be registrable and such Series A Senior Notes
will be exchangeable for Series A Senior Notes bearing identical
terms and provisions at the office or agency of the Company only
upon surrender of such certificated Series A Senior Note and such
other documents as required by the Indenture; provided, however,
that payment of interest may be made at the option of the Company
by check mailed to the registered holder at such address as shall
appear in the Senior Note Register.
SECTION 1.04. Each Series A Senior Note shall bear interest
at the rate of ______% per annum from the original date of issuance
until the principal thereof becomes due and payable, and on any
overdue principal and (to the extent that payment of such interest
is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum, payable semi-annually in
arrears on each March 1 and September 1 (each, an "Interest Payment
Date"), commencing on ____________, 1996. Interest (other than
interest payable on redemption or maturity) shall be payable to the
person in whose name such Series A Senior Note or any predecessor
Series A Senior Note is registered at the close of business on the
regular record date for such interest installment. The regular
record date for such interest installment shall be the close of
business on the business day next preceding that Interest Payment
Date; except that if, pursuant to the provisions of Section 2.11(c)
of the Indenture, the Series A Senior Notes are no longer
represented by a Global Note, the regular record date for such
interest installment shall be the close of business on the February
15 or August 15 (whether or not a business day) next preceding the
Interest Payment Date. Interest payable on redemption or maturity
shall be payable to the person to whom the principal is paid. Any
such interest installment not punctually paid or duly provided for
shall forthwith cease to be payable to the registered holders on
such regular record date, and may be paid to the person in whose
name the Series A Senior Note (or one or more Predecessor Senior
Notes) is registered at the close of business on a special record
date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the registered holders
of the Series A Senior Notes not less than 10 days prior to such
special record date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the Series A Senior Notes may be listed, and upon
such notice as may be required by such exchange, all as more fully
provided in the Indenture.
The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months. In the
event that any date on which interest is payable on the Series A
Senior Notes is not a business day, then payment of interest
payable on such date will be made on the next succeeding day which
is a business day (and without any interest or other payment in
respect of any such delay), except that, if such business day is in
the next succeeding calendar year, such payment shall be made on
the immediately preceding business day, in each case with the same
force and effect as if made on such date.
ARTICLE TWO
REDEMPTION OF THE SERIES A SENIOR NOTES
SECTION 2.01. The Company shall have the right to redeem the
Series A Senior Notes, in whole or in part, from time to time, at
the time and redemption price set forth in the form of Senior Note
contained in Exhibit A hereto. Any redemption pursuant to this
Section will be made upon not less than 30 nor more than 60 days'
notice. If the Series A Senior Notes are only partially redeemed
pursuant to this Section, the Notes will be redeemed pro rata or by
lot or by any other method utilized by the Trustee; provided, that
if at the time of redemption, the Series A Senior Notes are
registered as a Global Note, the Depository shall determine by lot
the principal amount of such Series A Senior Notes held by each
Series A Senior Noteholder to be redeemed.
ARTICLE THREE
FORM OF SERIES A SENIOR NOTE
SECTION 3.01. The Series A Senior Notes and the Trustee's
Certificate of Authentication to be endorsed thereon are to be
substantially in the form of Exhibit A hereto.
ARTICLE FOUR
LIMITATIONS ON LIENS
So long as there remain outstanding any Series A Senior Notes,
the Company will not create or suffer to be created or to exist any
Lien on any of its properties or assets now owned or hereafter
acquired to secure any indebtedness for borrowed money, without
making effective provision whereby the Series A Senior Notes shall
be equally and ratably secured with any and all such indebtedness
for borrowed money and with any other indebtedness for borrowed
money similarly entitled to be equally and ratably secured.
However, this restriction shall not apply to or prevent the
creation or existence of:
(1) the Mortgage securing the Company's First Mortgage
Bonds or any indenture supplemental thereto subjecting any
property to the Lien thereof or confirming the Lien thereof
upon any property, whether now owned or hereafter acquired;
(2) Liens on property existing at the time of
acquisition or construction of such property (or created
within one year after completion of such acquisition or
construction), whether by purchase, merger, consolidation,
construction or otherwise, or Liens to secure the payment of
all or any part of the purchase price or construction cost
thereof, including the extension of any such Liens to repairs,
renewals, replacements, substitutions, betterments, additions,
extensions and improvements then or thereafter made on the
property subject thereto;
(3) any extensions, renewals or replacements (or
successive extensions, renewals or replacements), in whole or
in part of Liens permitted by the foregoing clauses (1) and
(2);
(4) the pledge of any bonds or other securities at any
time issued under any of the Liens permitted by clauses (1),
(2) or (3);
(5) Permitted Encumbrances; or
(6) Liens on any goods, wares, merchandise, equipment,
materials or supplies acquired for the purpose of sale or
resale in the usual course of business or for consumption in
the operation of any properties of the Company.
"Lien" means any mortgage, pledge, security interest or other
lien.
"Mortgage" means the Company's Mortgage and Deed of Trust
dated May 1, 1949, as heretofore or hereafter amended,
modified and supplemented, to Bankers Trust Company, as
Trustee, providing for the Company's First Mortgage Bonds.
"Permitted Encumbrances" means any of the following:
(1) Liens of taxes, assessments or governmental charges
for the then current year and taxes, assessments or
governmental charges not then delinquent; Liens for workers'
compensation awards and similar obligations not then
delinquent; mechanics', laborers', materialmen's and similar
Liens not then delinquent; and any of such Liens, whether or
not delinquent, whose validity is at the time being contested
in good faith by the Company;
(2) Liens and charges incidental to construction or
current operations which have not at the time been filed or
asserted or the payment of which has been adequately secured
or which are not material in amount;
(3) Liens, securing obligations neither assumed by the
Company nor on account of which it customarily pays interest
directly or indirectly, existing, either at the date hereof,
or, as to property hereafter acquired, at the time of
acquisition by the Company;
(4) Any right which any municipal or governmental body
or agency may have by virtue of any franchise, license,
contract or statute to purchase, or designate a purchaser of
or order the sale of, any property of the Company upon payment
of reasonable compensation therefor, or to terminate any
franchise, license or other rights or to regulate the property
and business of the Company;
(5) The Lien of judgments covered by insurance, or upon
appeal and covered, if necessary, by the filing of an appeal
bond, or if not so covered not exceeding at any one time
$10,000,000 in aggregate amount;
(6) Liens incidental to the conduct of the Company's
business or the ownership of its property and assets, which
were not incurred in connection with the borrowing of money or
the obtaining of credit, none of which materially interferes
with the Company's use and operation of its properties and
assets or detracts from the value thereof;
(7) Any Lien or encumbrance, moneys sufficient for the
discharge of which have been deposited in trust with the
Trustee hereunder or with the trustee or mortgagee under the
instrument evidencing such Lien or encumbrance, with
irrevocable authority to the Trustee hereunder or to such
other trustee or mortgagee to apply such moneys to the
discharge of such Lien or encumbrance to the extent required
for such purpose;
(8) Any defects of title and any terms, conditions,
agreements, covenants, exceptions and reservations expressed
or provided in deeds or other instruments, respectively, under
and by virtue of which the Company has acquired any property
or shall hereafter acquire any property, none of which
materially adversely affects the operation of the properties
of the Company;
(9) The pledge of cash or marketable securities for the
purpose of obtaining any indemnity, performance or other
similar bonds in the ordinary course of business, or as
security for the payment of taxes or other assessments being
contested in good faith, or for the purpose of obtaining a
stay or discharge in the course of any legal proceedings;
(10) The pledge or assignment in the ordinary course of
business of electricity, gas (either natural or artificial) or
steam, fuel, accounts receivable or customers' installment
paper;
(11) Rights reserved to or vested in others to take or
receive any part of the electricity, gas (either natural or
artificial), steam or any by-products thereof generated or
produced by or from any properties of the Company or with
respect to any other rights concerning electricity, gas
(either natural or artificial), fuel or steam supply,
transportation, or storage which are in use in the ordinary
course of the electricity, gas (either natural or artificial)
or steam business;
(12) Any landlord's Lien;
(13) Liens created or assumed by the Company in
connection with the issuance of debt securities, the interest
on which is excludable from the gross income of the holders of
such securities pursuant to Section 103 of the Internal
Revenue Code of 1986, or any successor section, for purposes
of financing, in whole or in part, the acquisition or
construction of property to be used by the Company, but such
Liens shall be limited to the property so financed (and the
real estate on which such property is to be located);
(14) Liens incurred pursuant to Section 7.06;
(15) Liens affixing to property of the Company at the
time a Person consolidates with or merges into, or transfers
all or substantially all of its assets to, the Company,
provided that in the opinion of the Board or Company
management (evidenced by a Board Resolution or an Officers'
Certificate delivered to the Trustee) the property acquired
pursuant to the consolidation, merger or asset transfer is
adequate security for the Lien; and
(16) Liens or encumbrances not otherwise permitted if, at
the time of incurrence and after giving effect thereto, the
aggregate of all obligations of the Company secured thereby
does not exceed 10% of Tangible Net Worth.
"Tangible Net Worth" means (i) common stockholders' equity
appearing on the most recent balance sheet of the Company
prepared in accordance with generally accepted accounting
principles less (ii) intangible assets (excluding intangible
assets recoverable through rates as prescribed by applicable
regulatory authorities).
ARTICLE FIVE
ORIGINAL ISSUE OF SERIES A SENIOR NOTES
SECTION 5.01. Series A Senior Notes in the aggregate
principal amount of $____________ may, upon execution of this First
Supplemental Indenture, or from time to time thereafter, be
executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and
deliver said Notes to or upon the written order of the Company,
signed by its Chairman of the Board, its President, any Vice
President or its Treasurer and its Secretary or Assistant
Secretary, without any further action by the Company.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
SECTION 6.01. Except as otherwise expressly provided in this
First Supplemental Indenture or in the form of Series A Senior Note
or otherwise clearly required by the context hereof or thereof, all
terms used herein or in said form of Series A Senior Note that are
defined in the Indenture shall have the several meanings
respectively assigned to them thereby.
SECTION 6.02. The Indenture, as supplemented by this First
Supplemental Indenture, is in all respects ratified and confirmed,
and this First Supplemental Indenture shall be deemed part of the
Indenture in the manner and to the extent herein and therein
provided.
SECTION 6.03. The recitals herein contained are made by the
Company and not by the Trustee, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no
representation as to the validity or sufficiency of this First
Supplemental Indenture.
SECTION 6.04. This First Supplemental 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.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, on the date or
dates indicated in the acknowledgments and as of the day and year
first above written.
KENTUCKY POWER COMPANY
By:
Treasurer
Attest:
Secretary
BANKERS TRUST COMPANY,
as Trustee
By:
Vice President
Attest:
Trust Officer<PAGE>
State of Ohio }
} ss:
County of Franklin }
On this ______ day of __________, 1996, personally appeared
before me, a Notary Public within and for said County in the State
aforesaid, A. A. Pena and John F. Di Lorenzo, Jr., to me known and
known to me to be respectively Treasurer and Secretary of KENTUCKY
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 __________, 1996.
[Notarial Seal]
Name: Mary M. Soltesz
Notary Public, State of Ohio
My Commission Expires 7-12-99<PAGE>
State of }
} ss:
County of }
Be it remembered, that on this ______ day of __________, 1996,
personally appeared before me the undersigned, a Notary Public
within and for said County and State, BANKERS TRUST COMPANY, 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 __________, 1996.
[Notarial Seal]
Name:
Notary Public, State of
My Commission Expires <PAGE>
Exhibit A
(FORM OF FACE OF NOTE)
[IF THE SERIES A NOTE IS TO BE A GLOBAL NOTE, INSERT - This
Note is a Global Note within the meaning of the Indenture
hereinafter referred to and is registered in the name of a
Depository or a nominee of a Depository. This Note is exchangeable
for Notes registered in the name of a person other than the
Depository or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Note (other
than a transfer of this Note as a whole by the Depository to a
nominee of the Depository or by a nominee of the Depository to the
Depository or another nominee of the Depository) may be registered
except in limited circumstances.
Unless this Note is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
the issuer or its agent for registration of transfer, exchange or
payment, and any Note issued is registered in the name of Cede &
Co. or in such other name as is requested by an authorized
representative of DTC and any payment hereon is made to Cede & Co.,
or to such other entity as is requested by an authorized
representative of DTC, 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. ____________ $___________
CUSIP No.
KENTUCKY POWER COMPANY
SENIOR NOTE
SERIES A, DUE ____
KENTUCKY POWER COMPANY, a corporation duly organized and
existing under the laws of the Commonwealth of Kentucky (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 ______________ or registered
assigns, the principal sum of ______________ Dollars on
____________, ____, and to pay interest on said principal sum from
____________, ____ 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 (subject to deferral
as set forth herein) in arrears on each March 1 and September 1
commencing ____________, ____ at the rate of ______% per annum
until the principal hereof shall have become due and payable, and
on any overdue principal and premium, if any, and (without
duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of
interest at the same rate per annum during such overdue period.
Interest shall be computed on the basis of a 360-day year of twelve
30-day months. In the event that any date on which interest is
payable on this Note is not a business day, then payment of
interest payable on such date will be made on the next succeeding
day which is a business day (and without any interest or other
payment in respect of any such delay). The interest installment so
payable, and punctually paid or duly provided for, on any Interest
Payment Date (other than interest payable on redemption or
maturity) will, as provided in the Indenture, be paid to the person
in whose name this Note (or one or more Predecessor Notes, as
defined in said Indenture) is registered at the close of business
on the regular record date for such interest installment, [which
shall be the close of business on the business day next preceding
such Interest Payment Date.] [IF PURSUANT TO THE PROVISIONS OF
SECTION 2.11(C) OF THE INDENTURE THE SERIES A NOTES ARE NO LONGER
REPRESENTED BY A GLOBAL NOTE -- which shall be the close of
business on the February 15 or August 15 (whether or not a business
day) next preceding such Interest Payment Date.] Interest payable
on redemption or maturity shall be payable to the person to whom
the principal is paid. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be
payable to the registered holders on such regular record date, and
may be paid to the person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on a
special record date to be fixed by the Trustee for the payment of
such defaulted interest, notice whereof shall be given to the
registered holders of this series of Notes not less than 10 days
prior to such special record date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed, and upon
such notice as may be required by such exchange, all as more fully
provided in the Indenture. 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 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 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 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.
The provisions of this Note are continued on the reverse side
hereof and such continued provisions shall for all purposes have
the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to
be executed.
Dated
KENTUCKY POWER COMPANY
By:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in
the within-mentioned Indenture.
BANKERS TRUST COMPANY
as Trustee or as Authentication Agent
By:
Authorized Signatory
(FORM OF REVERSE OF NOTE)
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 ____________, ____
duly executed and delivered between the Company and Bankers Trust
Company, a New York corporation, as Trustee (herein referred to as
the "Trustee"), as supplemented by the First Supplemental Indenture
dated as of ____________, ____ between the Company and the Trustee
(said Indenture as so supplemented being hereinafter referred to as
the "Indenture"), to which Indenture and all indentures
supplemental thereto 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 series of Notes is limited in aggregate principal
amount as specified in said First Supplemental Indenture.
Subject to the terms of Article Three of the Indenture, the
Company shall have the right to redeem this Note at the option of
the Company, without premium or penalty, in whole or in part at any
time on or after ____________, ____ (an "Optional Redemption"), at
a redemption price equal to 100% of the principal amount plus any
accrued but unpaid interest to the date of such redemption (the
"Optional Redemption Price"). Any redemption pursuant to this
paragraph will be made upon not less than 30 nor more than 60 days'
notice, at the Optional Redemption Price. If the Notes are only
partially redeemed by the Company pursuant to an Optional
Redemption, the Notes will be redeemed pro rata or by lot or by any
other method utilized by the Trustee; provided that if at the time
of redemption, the Notes are registered as a Global Note, the
Depository shall determine by lot the principal amount of such
Notes held by each Noteholder to be redeemed.
In the event of redemption of this Note in part only, a new
Note or Notes of this series for the unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancellation
hereof.
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 legal or covenant
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, without the consent of the holder of each Note
so affected or (ii) reduce the aforesaid percentage of Notes, the
holders of which are required to consent to any such supplemental
indenture, without the consent of the holders 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 as and when the
same shall become due by the terms of such Notes otherwise than by
acceleration or a call for redemption. 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 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.] [This Global Note is exchangeable for Notes in
definitive form only under certain limited circumstances set forth
in the Indenture. Notes of this series so issued 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 [herein and] therein set forth,
Notes of this series [so issued] are exchangeable for a like
aggregate principal amount of Notes of this series 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.
<PAGE>
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").
[96FN0017.KPC]
Exhibit 5(a)
February 21, 1996
Kentucky Power Company
1701 Central Avenue
AShland, Kentucky 41101
Dear Sirs:
With respect to Post-Effective Amendment No. 1 to the Registration
Statement on Form S-3 of Kentucky Power Company (the "Company") relating to
the issuance and sale by the Company in one or more transactions from time
to time of its First Mortgage Bonds (the "Bonds") and its unsecured debt
securities (the "Notes") (the Bonds and the Notes being collectively called
the "Debt Securities"), 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 Debt Securities will be valid and
legally binding obligations of the Company, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratoriums
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 Post-Effective Amendment No. 1;
(2) Appropriate action by and before the Public Service
Commission of Kentucky in respect of the proposed transactions
set forth in said Post-Effective Amendment No. 1;
(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 one or more proposed Indentures
Supplemental to Mortgage and Deed of Trust of the Company dated as
of May 1, 1949, as amended and supplemented, under which the Bonds
will be issued, and the recording and filing thereof in all
required offices of record in Kentucky;
(5) Issuance and sale of the Bonds by the Company in accordance
with the above-mentioned Mortgage and Deed of Trust and with the
governmental and corporate authorizations aforesaid; and
(6) Issuance and sale of the Notes by the Company in accordance
with the governmental and corporate authorizations aforesaid.
Insofar as this opinion relates to matters governed by laws of the
Commonwealth of Kentucky, this firm has consulted, and may consult further,
with local 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 Debt
Securities. This opinion does not purport, and it is not intended, to
cover any questions relating to property titles, franchises or the lien
of the above-mentioned Mortgage and Deed of Trust.
We consent to the filing of this opinion as an exhibit to said Post-
Effective Amendment No. 1 and to the use of our name and the inclusion of
the statements in regard to us set forth in said Post-Effective Amendment
No. 1 under the caption "Legal Opinions".
Very truly yours,
/s/ Simpson Thacher & Bartlett
SIMPSON THACHER & BARTLETT
Exhibit 23(a)(i)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-
Effective Amendment No. 1 to Registration Statement No. 33-53007
of Kentucky Power Company on Form S-3 of our reports dated
February 21, 1995, appearing in and incorporated by reference in
the Annual Report on Form 10-K of Kentucky Power Company for the
year ended December 31, 1994 and to the reference to us under the
heading "Experts" in the Prospectus, which is part of such
Registration Statement.
/s/ Deloitte & Touche
Deloitte & Touche LLP
Columbus, Ohio
February 21, 1996
[96FN0009.KPC]
Exhibit 23(c)(i)
[Letterhead of Gray, Woods & Cooper]
February 21, 1996
Kentucky Power Company
c/o American Electric Power
Service Corporation
1 Riverside Plaza
Columbus, OH 43215
Dear Sirs:
We hereby consent to the use of our firm name in the Post-
Effective Amendment to its Registration Statement No. 33-53007
currently being filed by Kentucky Power Company with the Securities
and Exchange Commission under the provisions of the Securities Act
of 1933, as amended, for the registration thereunder of
$100,000,000.00 aggregate principal amount of the Debt Securities.
We further consent to the making of the statements with
respect to our firm under the captions "Legal Opinions" and
"Experts", appearing in the Post-Effective Amendment to its
Registration Statement, and we further consent to the use of our
name in the opinion of the law firm of Simpson Thacher & Bartlett,
which is to be filed as an exhibit to said Post-Effective Amendment
to its Registration Statement.
Very truly yours,
/s/ Gray, Woods & Cooper
GRAY, WOODS & COOPER
[96FN0013.KPC]
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ______
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification no.)
Four Albany Street
New York, New York 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
KENTUCKY POWER COMPANY
(Exact name of obligor as specified in the charter)
KENTUCKY 61-0247775
(State or other jurisdiction (I.R.S. employer
of Incorporation or organization) Identification no.)
1701 Central Avenue
Ashland, Kentucky 41101
(Address of principal (Zip Code)
executive offices)
FIRST MORTGAGE BONDS
(Title of the indenture securities)
Item 1. General Information.
Furnish the following information as to the Trustee.
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
Federal Reserve Bank (2nd District) New York, N.Y.
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, N.Y.
(b) Whether it is authorized to exercise corporate
trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe
each such affiliation.
None.
Item 3.-15. Not Applicable.
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of
Bankers Trust Company dated August 7,
1990 and Certificate of Amendment of the
Organization Certificate of Bankers Trust
Company dated June 21, 1995.
Incorporated herein by reference to
Exhibit 1 filed with Form T-1 Statement,
Registration No. 33-65171.
Exhibit 2 - Certificate of authority to commence
business. Incorporated herein by
reference to Exhibit 2 filed with Form T-
1 Statement, Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise
corporate trust powers. Incorporated
herein by reference to Exhibit 2 filed
with Form T-1 Statement, Registration No.
33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust
Company, dated as amended on October 19,
1995. Incorporated herein by reference
to Exhibit 4 filed with Form T-1
Statement, Registration No. 33-65171.
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust required by
Section 321(b) of the Act. Incorporated
herein by reference to Exhibit 4 filed
with Form T-1 Statement, Registration No.
22-18864.
Exhibit 7 - A copy of the latest report of condition
of Bankers Trust Company dated as of
September 30, 1995. Incorporated herein
by reference to Exhibit 7 to Form T-1
filed with Registration Statement No. 33-
65171.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the trustee, Bankers Trust Company, 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 16th day of
February, 1996.
BANKERS TRUST COMPANY
By: /s/ Scott Thiel
Scott Thiel
Assistant Treasurer
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ______
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification no.)
Four Albany Street
New York, New York 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
KENTUCKY POWER COMPANY
(Exact name of obligor as specified in its charter)
KENTUCKY 61-0247775
(State or other jurisdiction (I.R.S. employer
of Incorporation or organization) Identification no.)
1701 Central Avenue
Ashland, Kentucky 41101
(Address of principal (Zip Code)
executive offices)
NOTES
(Title of the indenture securities)
Item 1. General Information.
Furnish the following information as to the Trustee.
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
Federal Reserve Bank (2nd District) New York, N.Y.
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, N.Y.
(b) Whether it is authorized to exercise corporate
trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe
each such affiliation.
None.
Item 3.-15. Not Applicable.
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of
Bankers Trust Company dated August 7,
1990 and Certificate of Amendment of the
Organization Certificate of Bankers Trust
Company dated June 21, 1995.
Incorporated herein by reference to
Exhibit 1 filed with Form T-1 Statement,
Registration No. 33-65171.
Exhibit 2 - Certificate of authority to commence
business. Incorporated herein by
reference to Exhibit 2 filed with Form T-
1 Statement, Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise
corporate trust powers. Incorporated
herein by reference to Exhibit 2 filed
with Form T-1 Statement, Registration No.
33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust
Company, dated as amended on October 19,
1995. Incorporated herein by reference
to Exhibit 4 filed with Form T-1
Statement, Registration No. 33-65171.
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust required by
Section 321(b) of the Act. Incorporated
herein by reference to Exhibit 4 filed
with Form T-1 Statement, Registration No.
22-18864.
Exhibit 7 - A copy of the latest report of condition
of Bankers Trust Company dated as of
September 30, 1995. Incorporated herein
by reference to Exhibit 7 filed with Form
T-1 Statement, Registration Statement No.
33-65171.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the trustee, Bankers Trust Company, 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 16th day of
February, 1996.
BANKERS TRUST COMPANY
By: /s/ Scott Thiel
Scott Thiel
Assistant Treasurer
