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Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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) 572-1141
ARMANDO A. PENA, Treasurer
AMERICAN ELECTRIC POWER SERVICE CORPORATION
1 Riverside Plaza
Columbus, Ohio 43215
(614) 223-2850
(Name, address and telephone number, including
area code, of agent for service)
It is respectfully requested that the Commission send copies of
all notices, orders and communications to:
Simpson Thacher & Bartlett Dewey Ballantine LLP
425 Lexington Avenue 301 Avenue of the Americas
New York, NY 10017-3909 New York, NY 10019-6092
Attention: James M. Cotter Attention: E. N. Ellis,IV
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Approximate date of commencement of proposed sale to the public: As soon
as practicable after the effective date of the Registration Statement.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
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If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
==================-------------------------------------------==================
Title of Proposed
Each Class Maximum Proposed
of Offering Maximum
Securities Amount Price Aggregate Amount of
to be to be Per Unit* Offering Registration Fee
Registered Registered Price*
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Unsecured
Notes $28,000,000 100% $28,000,000 $7,784
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*Estimated solely for purpose of calculating the registration fee.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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The within Prospectus contains the information required by Rule 429 of the
Commission under the Securities Act of 1933 with respect to $22,000,000 of Debt
Securities of the registrant remaining unsold under Registration Statement No.
333-35767, and to $100,000,000 of Debt Securities of the registrant unsold under
Registration Statement No. 33-53007, for which an aggregate fee of $40,180 was
paid.
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The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED APRIL 6, 1999
PROSPECTUS
KENTUCKY POWER COMPANY
1701 Central Avenue
Ashland, Kentucky 41101
(800) 572-1141
$150,000,000
UNSECURED NOTES
TERMS OF SALE
The following terms may apply to the notes that we may sell at one or more
times. A pricing supplement will include the final terms for each note. If we
decide to list upon issuance any note or notes on a securities exchange, a
pricing supplement will identify the exchange and state when we expect trading
could begin.
- Mature 9 months to 42 years
- Fixed or floating interest rate. The floating interest rate formula
would be based on:
Commercial paper rate LIBOR
Prime rate Treasury rate
CD rate CMT rate
Federal Funds rate Another interest rate index
- Remarketing features
- Certificate or book-entry form
- Subject to redemption
- Not convertible, amortized or subject to a sinking fund
- Interest paid on fixed rate notes quarterly or semi-annually
- Interest paid on floating rate notes monthly, quarterly,
semi-annually, or annually
- Issued in multiples of a minimum denomination
The notes have not been approved by the SEC or any state securities commission,
nor have these organizations determined that this prospectus is accurate or
complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is _________________, 1999.
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WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement we filed with the SEC.
We also file annual, quarterly and special reports and other information with
the SEC. You may read and copy any document we file at the SEC's Public
Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call
the SEC at 1-800-SEC-0330 for further information on the Public Reference Room.
You may also examine our SEC filings through the SEC's web site at
http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information that we file
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made
with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until we sell all the notes.
- Annual Report on Form 10-K for the year ended December 31, 1998.
You may request a copy of these filings, at no cost, by writing or telephoning
us at the following address:
Mr. G. C. Dean
American Electric Power Service Corporation
1 Riverside Plaza
Columbus, Ohio 43215
614-223-1000
You should rely only on the information incorporated by reference or
provided in this prospectus or any supplement. We have not authorized anyone
else to provide you with different information. We are not making an offer of
these notes in any state where the offer is not permitted. You should not assume
that the information in this prospectus or any supplement is accurate as of any
date other than the date on the front of those documents.
THE COMPANY
We generate, sell, purchase, transmit and distribute electric power. We
serve approximately 170,000 customers in eastern Kentucky. We also sell and
transmit power at wholesale to other electric utilities, municipalities,
electric cooperatives and non-utility entities engaged in the wholesale power
market. Our principal executive offices are located at 1701 Central Avenue,
Ashland, Kentucky 41101 (telephone number 800-572-1141). We are a subsidiary of
American Electric Power Company, Inc., a public utility holding company, and we
are a part of the American Electric Power integrated utility system. The
executive offices of American Electric Power Company, Inc. are located at 1
Riverside Plaza, Columbus, Ohio 43215 (telephone number 614-223-1000).
PROSPECTUS SUPPLEMENTS
We provide information to you about the notes in three separate documents
that progressively provide more detail: (a) this prospectus provides general
information some of which may not apply to your notes, (b) the accompanying
prospectus supplement provides more specific terms of your notes, and (c) the
pricing supplement provides the final terms of your notes. It is important for
you to consider the information contained in this prospectus, the prospectus
supplement
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and the pricing supplement in making your investment decision.
RATIO OF EARNINGS TO FIXED CHARGES
The Ratio of Earnings to Fixed Charges for each of the periods indicated
is as follows:
Twelve Months
Period Ended Ratio
December 31, 1994 2.30
December 31, 1995 2.22
December 31, 1996 1.88
December 31, 1997 2.12
December 31, 1998 2.09
For current information on the Ratio of Earnings to Fixed Charges, please see
our most recent Form 10-K and 10-Q. See Where You Can Find More Information.
USE OF PROCEEDS
The net proceeds from the sale of the notes will be used for general
corporate purposes relating to our utility business. These purposes include
redeeming or repurchasing outstanding debt and other corporate purposes. If we
do not use the net proceeds immediately, we temporarily invest them in
short-term, interest-bearing obligations. We estimate that our construction
costs in 1999 will approximate $42,500,000. At March 24, 1999, our outstanding
short-term debt was $12,000,000.
DESCRIPTION OF THE NOTES
General
We will issue the notes under the Indenture dated September 1, 1997 (as
previously supplemented and amended) entered into between us and the Trustee,
Bankers Trust Company. This prospectus briefly outlines some provisions of the
Indenture. If you would like more information on these provisions, review the
Indenture and any supplemental indentures or company orders that we file with
the SEC. See Where You Can Find More Information on how to locate these
documents. You may also review these documents at the Trustee's offices at Four
Albany Street, New York, New York.
The Indenture does not limit the amount of notes that may be issued. The
Indenture permits us to issue notes in one or more series or tranches upon the
approval of our board of directors and as described in one or more company
orders or supplemental indentures. Each series of notes may differ as to their
terms.
The notes are unsecured and will rank equally with all our unsecured
unsubordinated debt. Substantially all of our fixed properties and franchises
are subject to the lien of our first mortgage bonds issued under and secured by
a Mortgage and Deed of Trust, dated as of May 1, 1949, as previously
supplemented and amended, between us and Bankers Trust Company, as trustee. For
current information on our debt outstanding see our most recent Form 10-K and
10-Q. See Where You Can Find More Information.
The notes will be denominated in U.S. dollars and we will pay principal
and interest in U.S. dollars. Unless an applicable pricing or prospectus
supplement states otherwise, the notes will not be subject to any conversion,
amortization, or sinking fund. We expect that
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the notes will be "book-entry," represented by a permanent global note
registered in the name of The Depository Trust Company, or its nominee. We
reserve the right, however, to issue note certificates registered in the name of
the noteholders.
In the discussion that follows, whenever we talk about paying principal on
the notes, we mean at maturity or redemption. Also, in discussing the time for
notices and how the different interest rates are calculated, all times are New
York City time and all references to New York mean the City of New York, unless
otherwise noted.
The following terms may apply to each note as specified in the applicable
pricing or prospectus supplement and the note.
Redemptions
If we issue redeemable notes, we may redeem such notes at our option
unless an applicable pricing or prospectus supplement states otherwise. The
pricing or prospectus supplement will state the terms of redemption. We may
redeem notes in whole or in part by delivering written notice to the noteholders
no more than 60, and not less than 30, days prior to redemption. If we do not
redeem all the notes of a series at one time, the Trustee selects the notes to
be redeemed in a manner it determines to be fair.
Remarketed Notes
If we issue notes with remarketing features, an applicable pricing or
prospectus supplement will describe the terms for the notes including: interest
rate, remarketing provisions, our right to redeem notes, the holders' right to
tender notes, and any other provisions.
Book-Entry Notes - Registration, Transfer, and Payment of Interest and Principal
Book-entry notes of a series will be issued in the form of a global note
that the Trustee will deposit with The Depository Trust Company, New York, New
York ("DTC"). This means that we will not issue note certificates to each
holder. One or more global notes will be issued to DTC who will keep a
computerized record of its participants (for example, your broker) whose clients
have purchased the notes. The participant will then keep a record of its clients
who purchased the notes. Unless it is exchanged in whole or in part for a note
certificate, a global note may not be transferred; except that DTC, its
nominees, and their successors may transfer a global note as a whole to one
another.
Beneficial interests in global notes will be shown on, and transfers of
global notes will be made only through, records maintained by DTC and its
participants.
DTC has provided us the following information: DTC is a limited-purpose
trust company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the United States
Federal Reserve System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code and a "clearing agency" registered under the
provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds
securities that its participants ("Direct Participants") deposit with DTC. DTC
also records the settlement among Direct Participants of securities
transactions, such as transfers and pledges, in deposited securities through
computerized records for Direct Participant's accounts. This eliminates the need
to exchange note certificates. Direct Participants include securities brokers
and dealers, banks, trust companies, clearing corporations and certain other
organizations.
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Other organizations such as securities brokers and dealers, banks and
trust companies that work through a Direct Participant also use DTC's book-entry
system. The rules that apply to DTC and its participants are on file with the
SEC.
A number of its Direct Participants and the New York Stock Exchange,
Inc., The American Stock Exchange, Inc. and the National Association of
Securities Dealers, Inc. own DTC.
We will wire principal and interest payments to DTC's nominee. We and the
Trustee will treat DTC's nominee as the owner of the global notes for all
purposes. Accordingly, we, the Trustee and any paying agent will have no direct
responsibility or liability to pay amounts due on the global notes to owners of
beneficial interests in the global notes.
It is DTC's current practice, upon receipt of any payment of principal or
interest, to credit Direct Participants' accounts on the payment date according
to their respective holdings of beneficial interests in the global notes as
shown on DTC's records. In addition, it is DTC's current practice to assign any
consenting or voting rights to Direct Participants whose accounts are credited
with notes on a record date. The customary practices between the participants
and owners of beneficial interests will govern payments by participants to
owners of beneficial interests in the global notes and voting by participants,
as is the case with notes held for the account of customers registered in
"street name." However, payments will be the responsibility of the participants
and not of DTC, the Trustee or us.
DTC management is aware that some computer applications, systems, and the
like for processing data ("Systems") that are dependent upon calendar dates,
including dates before, on and after January 1, 2000, may encounter "Year 2000
problems." DTC has informed its Participants and other members of the financial
community (the "Industry") that it has developed and is implementing a program
so that its Systems, as the same relate to the timely payment of distributions
(including principal and income payments) to securityholders, book-entry
deliveries, and settlement of trades within DTC ("DTC Services"), continue to
function appropriately. This program includes a technical assessment and a
remediation plan, each of which is complete. Additionally, DTC's plan includes a
testing phase, which is expected to be completed within appropriate time frames.
However, DTC's ability to perform properly its services is also dependent
upon other parties, including but not limited to issuers and their agents, as
well as third party vendors from whom DTC licenses software and hardware, and
third party vendors on whom DTC relies for information or the provision of
services, including telecommunication and electrical utility service providers,
among others. DTC has informed the Industry that it is contacting (and will
continue to contact) third party vendors from whom DTC acquires services to: (i)
impress upon them the importance of such services being Year 2000 compliant; and
(ii) determine the extent of their efforts for Year 2000 remediation (and, as
appropriate, testing) of their services. In addition, DTC is in the process of
developing such contingency plans as it deems appropriate.
According to DTC, the foregoing information with respect to DTC has been
provided to the Industry for informational purposes only and is not intended to
serve as a representation, warranty, or contract modification of any kind.
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Notes represented by a global note will be exchangeable for note
certificates with the same terms in authorized denominations only if:
- DTC notifies us that it is unwilling or unable to continue as depositary
or if DTC ceases to be a clearing agency registered under applicable law
and a successor depositary is not appointed by us within 90 days; or
- we determine not to require all of the notes of a series to be
represented by a global note and notify the Trustee of our decision.
Note Certificates-Registration, Transfer, and Payment of Interest and Principal
If we issue note certificates, they will be registered in the name of the
noteholder. The notes may be transferred or exchanged, pursuant to
administrative procedures in the indenture, without the payment of any service
charge (other than any tax or other governmental charge) by contacting the
paying agent. Payments on note certificates will be made by check.
Interest Rate
General
We have provided a Glossary at the end of this prospectus to define the
capitalized terms used in discussing the interest rates payable on the notes.
The interest rate on the notes will either be fixed or floating. The
interest paid will include interest accrued to, but excluding, the date of
maturity or redemption. Interest is generally payable to the person in whose
name the note is registered at the close of business on the record date before
each interest payment date. Interest payable at maturity or redemption, however,
will be payable to the person to whom principal is payable.
If we issue a note after a record date but on or prior to the related
interest payment date, we will pay the first interest payment on the interest
payment date after the next record date. We will pay interest payments by check
or wire transfer, at our option.
Fixed Rate Notes
Each pricing or prospectus supplement will designate the record dates,
payment dates and the fixed rate of interest payable on a note. We will pay
interest quarterly or semi-annually, and upon maturity or redemption. Unless an
applicable pricing or prospectus supplement states otherwise, if any payment
date falls on a day that is not a Business Day, we will pay interest on the next
Business Day and no additional interest will be paid. Interest payments will be
the amount of interest accrued to, but excluding, each payment date. Interest
will be computed using a 360-day year of twelve 30-day months.
Floating Rate Notes: General
Each floating rate note will have an interest rate formula. The formula
may be based on:
- the commercial paper rate;
- the prime rate;
- the CD rate;
- the federal funds effective rate;
- the LIBOR;
- the Treasury rate;
- the CMT rate; or
- another interest rate index.
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The applicable pricing supplement will also indicate the Spread and/or
Spread Multiplier, if any. In addition, any floating rate note may have a
maximum or minimum interest rate limitation.
Upon request, the Calculation Agent will provide the current interest rate
and, if different, the interest rate which will become effective on the next
Interest Reset Date.
Floating Rate Notes: Date of Interest Rate Change
The interest rate on each floating rate note may be reset daily, weekly,
monthly, quarterly, semi-annually, or annually. The Interest Reset Date will be:
- for notes which reset daily, each Business Day;
- for notes (other than Treasury rate notes) which reset weekly, the
Wednesday of each week;
- for Treasury rate notes which reset weekly, the Tuesday of each week; for
notes which reset monthly, on the third Wednesday of each month;
- for notes which reset quarterly, the third Wednesday of March, June,
September and December;
- for notes which reset semi-annually, the third Wednesday of the two
months of each year indicated in the applicable pricing supplement; and
- for notes which reset annually, the third Wednesday of the month of each
year indicated in the applicable pricing supplement.
The applicable pricing supplement will state the initial interest rate or
interest rate formula on each note effective until the first Interest Reset
Date. After that, the interest rate will be the rate determined on the next
Interest Determination Date, as explained below. Each time a new interest rate
is determined, it will become effective on the subsequent Interest Reset Date.
If any Interest Reset Date is not a Business Day, then the Interest Reset Date
will be postponed to the next Business Day. However, in the case of a LIBOR
note, if the next Business Day is in the next calendar month, the Interest Reset
Date will be the immediately preceding Business Day.
Floating Rate Notes: When Interest Rate Is Determined
The Interest Determination Date for all notes (except Treasury rate notes)
is the second Business Day before the Interest Reset Date (second London
Business Day before the Interest Reset Date for LIBOR notes).
The Interest Determination Date for Treasury rate notes will be the day of
the week in which the Interest Reset Date falls on which Treasury bills would
normally be auctioned. Treasury bills are usually sold at auction on Monday of
each week, unless that day is a legal holiday, in which case the auction is
usually held on Tuesday. However, the auction may be held on the preceding
Friday. If an auction is held on the preceding Friday, that day will be the
Interest Determination Date pertaining to the Interest Reset Date occurring in
the next week. If an auction date falls on any Interest Reset Date then the
Interest Reset Date will instead be the first Business Day immediately following
the auction date.
Floating Rate Notes: When Interest Is Paid
Interest is paid as follows:
- for notes which reset daily, weekly or monthly, on the third Wednesday
of
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each month or on the third Wednesday of March, June, September and
December (as indicated in the applicable pricing supplement);
- for notes which reset quarterly, on the third Wednesday of March, June,
September, and December;
- for notes which reset semi-annually, on the third Wednesday of the two
months specified in the applicable pricing supplement;
- for notes which reset annually, on the third Wednesday of the month
specified in the applicable pricing supplement; and
- at maturity or redemption .
If interest is payable on a day which is not a Business Day, payment will
be postponed to the next Business Day and no additional interest shall be due.
However, for LIBOR notes, if the next Business Day is in the next calendar
month, interest will be paid on the preceding Business Day.
Unless an applicable pricing supplement states otherwise, the record date
will be 15 calendar days prior to each day interest is paid, whether or not such
day is a Business Day.
The interest payable will be the amount of interest accrued to, but
excluding, the interest payment date. However, for notes on which the interest
resets daily or weekly, the interest payable will include interest accrued to
and including the record date prior to the interest payment date. If the
interest payment date is also a day that principal is due, the interest payable
will include interest accrued to, but excluding, the date of maturity or
redemption.
The accrued interest for any period is calculated by multiplying the
principal amount of a note by an accrued interest factor. The accrued interest
factor is computed by adding the interest factor calculated for each day in the
period to the date for which accrued interest is being calculated. The interest
factor (expressed as a decimal rounded upwards if necessary) is computed by
dividing the interest rate (expressed as a decimal rounded upwards if necessary)
applicable to such date by 360, unless the applicable pricing supplement states
otherwise, or the notes are Treasury rate notes or CMT rate notes, in which case
it will be divided by the actual number of days in the year.
All percentages resulting from any calculation of floating rate notes will
be rounded, if necessary, to the nearest one-hundred thousandth of a percentage
point, with five one-millionths of a percentage point rounded upwards (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or .0987655) and 9.876544%
(or .09876544) being rounded to 9.87654% (or .0987654)), and all dollar amounts
used in or resulting from such calculation will be rounded to the nearest cent
(with one-half cent being rounded upwards).
Floating Rate Notes: Interest Rate Formulas
Commercial Paper Rate Notes. Each commercial paper rate note will bear
interest at the rate (calculated with reference to the Commercial Paper Rate and
the Spread and/or Spread Multiplier, if any) specified on the commercial paper
rate note and in the applicable pricing supplement.
"Commercial Paper Rate" means, with respect to any Commercial Paper Rate
Interest Determination Date, the Money Market Yield (calculated as described
below) of the rate on such date for commercial paper having the
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Index Maturity specified in the applicable pricing supplement as published in
Federal Reserve Statistical Release H.15(519) under the heading "Commercial
Paper--Nonfinancial."
The following procedures will occur if the rate cannot be set as described
above:
(a) If that rate is not published in H.15 (519) prior to 3:00 P.M. on
the Calculation Date, then the Commercial Paper Rate will be the Money
Market Yield of the rate on the Commercial Paper Rate Interest
Determination Date for commercial paper having the Index Maturity specified
in the applicable pricing supplement as published in Composite Quotations
under the heading "Commercial Paper."
(b) If the rate is not published in either H.15 (519) or in Composite
Quotations by 3:00 P.M. on the Calculation Date, the Commercial Paper Rate
for that Commercial Paper Rate Interest Determination Date will then be
calculated by the Calculation Agent in the following manner.
The Commercial Paper Rate will be calculated as the Money Market
Yield of the average for the offered rates, as of 11:00 A.M. on that date,
of three leading dealers of commercial paper in New York selected for
commercial paper having the applicable Index Maturity placed for an
industrial issuer whose bond rating is "Aa," or the equivalent, from a
nationally recognized rating agency.
(c) Finally, if fewer than three dealers are quoting as mentioned,
the rate of interest in effect for the applicable period will be the same
as the rate of interest in effect for the prior interest reset period.
Prime Rate Notes. Each prime rate note will bear interest at the rate
(calculated with reference to the Prime Rate and the Spread and/or Spread
Multiplier, if any) specified on the prime rate note and in the applicable
pricing supplement.
"Prime Rate" means, with respect to any Prime Rate Interest Determination
Date, the rate set forth on such date in H.15(519) under the heading "Bank Prime
Loan."
The following procedures will occur if the rate cannot be set as described
above:
(a) If that rate is not published in H.15(519) prior to 3:00 P.M. on
the Calculation Date, then the Prime Rate will be the average of the rates
of interest publicly announced by each bank that appear on the Reuters
Screen USPRIME1 Page as its prime rate or base lending rate as in effect
for that Prime Rate Interest Determination Date.
(b) If fewer than four rates appear on the Reuters Screen USPRIME1
Page, the Prime Rate will be the average of the prime rates or base lending
rates quoted on the basis of the actual number of days in the year divided
by a 360-day year as of the close of business on the Prime Rate Interest
Determination Date by four major money center banks in New York selected by
the Calculation Agent.
(c) If fewer than four banks are quoting as mentioned, the Prime Rate
shall be determined on the basis of the rates furnished in New York by the
major money center banks, if any, that have provided such quotations, and
by an appropriate number of substitute
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banks or trust companies organized and doing business under the laws of the
United States, or any State thereof, having total equity capital of at
least $500 million and being subject to supervision or examination by a
Federal or State authority, as selected by the Calculation Agent.
(d) Finally, if the banks are not quoting as mentioned above, the rate
of interest in effect for the applicable period will be the same as the
rate of interest in effect for the prior interest reset period.
CD Rate Notes. Each CD rate note will bear interest at the rate
(calculated with reference to the CD Rate and the Spread and/or Spread
Multiplier, if any) specified on the CD rate note and in the applicable pricing
supplement.
"CD Rate" means, with respect to any CD Rate Interest Determination Date,
the rate on that date for negotiable U.S. dollar certificates of deposit having
the Index Maturity specified in the applicable pricing supplement as published
in H.15(519) under the heading "CDs (Secondary Market)."
The following procedures will occur if the rate cannot be set as described
above:
(a) If that rate is not published in H.15(519) prior to 3:00 P.M. on
the Calculation Date, then the CD Rate will be the rate on that CD Rate
Interest Determination Date for negotiable U.S. Dollar certificates of
deposit having the applicable Index Maturity as published in Composite
Quotations under the heading "Certificates of Deposit."
(b) If that rate is not published in either H.15 (519) or in
Composite Quotations by 3:00 P.M. on that Calculation Date, the CD Rate for
that CD Rate Interest Determination Date shall be calculated by the
Calculation Agent as follows:
The CD Rate will be calculated as the average of the secondary market
offered rates, as of 10:00 A.M., of three leading nonbank dealers of
negotiable U.S. dollar certificates of deposit in New York selected by the
Calculation Agent for negotiable U.S. dollar certificates of deposit of
major United States money market banks with a remaining maturity closest to
the Index Maturity specified in the applicable pricing supplement in a
representative amount.
(c) Finally, if fewer than three dealers are quoting as mentioned,
the rate of interest in effect for the applicable period will be the same
as the rate of interest in effect for the prior interest reset period.
Federal Funds Rate Notes. Each federal funds rate note will bear interest
at the rate (calculated with reference to the Federal Funds Rate and the Spread
and/or Spread Multiplier, if any) specified on the federal funds rate note and
in the applicable pricing supplement.
"Federal Funds Rate" means, with respect to any Federal Funds Rate
Interest Determination Date, the rate on such date for U.S. dollar federal funds
as published in H.15(519) under the heading "Federal Funds (Effective)."
The following procedures will occur if the rate cannot be set as described
above:
(a) If that rate is not published in H.15(519) prior to 3:00 P.M. on
the Calculation Date, then the Federal Funds Rate will be the rate on that
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Federal Funds Rate Interest Determination Date as published in Composite
Quotations under the heading "Federal Funds/Effective Rate."
(b) If that rate is not published in either H.15 (519) or in
Composite Quotations by 3:00 P.M. on the Calculation Date, the Federal
Funds Rate for that Federal Funds Rate Interest Determination Date will be
calculated by the Calculation Agent as follows:
The Federal Funds Rate will be the average of the rates, as of 9:00
A.M. on that date, for the last transaction in overnight federal funds
arranged by three leading brokers of federal funds transactions in New York
selected by the Calculation Agent.
(c) Finally, if fewer than three brokers are quoting as mentioned
above, the rate of interest in effect for the applicable period will be the
same as the rate of interest in effect for the prior interest reset period.
LIBOR Notes. Each LIBOR note will bear interest at the rate (calculated
with reference to LIBOR and the Spread and/or Spread Multiplier, if any)
specified on the LIBOR note and in the applicable pricing supplement.
"LIBOR" means the London interbank offered rate for deposits in U.S.
dollars and will be determined by the Calculation Agent as follows:
(a) With respect to any LIBOR Interest Determination Date, LIBOR will
be determined by either:
(1) the average of the offered rates for deposits in U.S. dollars
having the Index Maturity specified in the applicable pricing
supplement, beginning on the second Business Day immediately after that
date, that appear on the Reuters Screen LIBO Page as of 11:00 A.M.,
London time, on that date, if at least two offered rates appear on the
Reuters Screen LIBO Page; or
(2) the rate for deposits in U.S. dollars having the Index
Maturity designated in the applicable pricing supplement, beginning on
the second London Business Day immediately after such date, that appears
on the Telerate Page 3750 as of 11:00 A.M., London time, on that date.
If neither Reuters Screen LIBO Page nor Telerate Page 3750 is
specified in the applicable pricing supplement, LIBOR will be determined as
if Telerate Page 3750 had been specified.
In the case where (1) above applies, if fewer than two offered rates
appear on the Reuters Screen LIBO Page, or, in the case where (2) above
applies, if no rate appears on the Telerate Page 3750, LIBOR for that date
will be determined as follows:
(b) LIBOR will be determined based on the rates at approximately
11:00 A.M., London time, on that LIBOR Interest Determination Date at which
deposits in U.S. dollars having the applicable Index Maturity are offered
to prime banks in the London interbank market by four major banks in the
London interbank market selected by the Calculation Agent that in the
Calculation Agent's judgment is representative for a single transaction in
such market at such time (a "Representative Amount"). The offered
<PAGE>
rates must begin on the second Business Day immediately after that LIBOR
Interest Determination Date.
The Calculation Agent will request the principal London office of
each such bank to provide a quotation of its rate. If at least two such
quotations are provided, LIBOR for such date will be the average of such
quotations.
(c) If fewer than two quotations are provided, LIBOR for that date
will be the average of the rates quoted at approximately 11:00 A.M. on such
date by three major banks in New York, selected by the Calculation Agent.
The rates will be for loans in U.S. dollars to leading European banks
having the specified Index Maturity beginning on the second Business Day
after that date and in a Representative Amount.
(d) Finally, if fewer than three banks are quoting as mentioned, the
rate of interest in effect for the applicable period will be the same as
the rate of interest in effect for the prior interest reset period.
Treasury Rate Notes. Each Treasury rate note will bear interest at the
rate (calculated with reference to the Treasury Rate and the Spread and/or
Spread Multiplier, if any) specified on the Treasury rate note and in the
applicable pricing supplement.
"Treasury Rate" means, with respect to any Treasury Rate Interest
Determination Date, the rate for the most recent auction of direct obligations
of the United States ("Treasury Bills") having the Index Maturity specified in
the applicable pricing supplement as published in H.15(519) under the heading
"U.S. Government Securities/Treasury Bills/Auction Average (Investment)."
The following procedures will occur if the rate cannot be set as described
above:
(a) If that rate is not published in H.15(519) by 3:00 P.M. on the
applicable Calculation Date, the rate will be the auction average rate
(expressed as a bond equivalent, on the basis of a year of 365 or 366 days,
as applicable, and applied on a daily basis) for such auction as otherwise
announced by the United States Department of the Treasury.
(b) If the results of the auction of Treasury Bills having the
applicable Index Maturity are not published in H.15(519) by 3:00 P.M., or
otherwise published or reported as provided above by 3:00 P.M. on the
Calculation Date, or if no auction is held in a particular week, then the
Treasury Rate shall be calculated by the Calculation Agent as follows:
The rate will be calculated as a yield to maturity (expressed as a
bond equivalent, on the basis of a year of 365 or 366 days, as applicable,
and applied on a daily basis) of the average of the secondary market bid
rates as of approximately 3:30 P.M. on the Treasury Rate Interest
Determination Date, of three leading primary United States government
securities dealers in New York selected by the Calculation Agent for the
issue of Treasury Bills with a remaining maturity closest to the specified
Index Maturity.
(c) Finally, if fewer than three dealers are quoting as mentioned,
the rate of interest in effect for the period will be the same as the rate
of interest in effect for the prior interest reset period.
<PAGE>
CMT Rate Notes. Each CMT rate note will bear interest at the rate
(calculated with reference to the CMT Rate and the Spread or Spread Multiplier,
if any) specified on such CMT rate note and in the applicable pricing
supplement.
"CMT Rate" means, with respect to any CMT Rate Interest Determination
Date, the rate displayed on the Designated CMT Telerate Page under the caption
"... Treasury Constant Maturities.. Federal Reserve Board Release H.15...
Mondays Approximately 3:45 P.M.," under the column for the applicable Index
Maturity designated in the applicable pricing supplement for:
(1) if the Designated CMT Telerate Page is 7055, the rate for the
applicable CMT Rate Interest Determination Date; or
(2) if the Designated CMT Telerate Page is 7052, the week, or the month,
as applicable, ended immediately preceding the week in which the CMT Rate
Interest Determination Date occurs.
The following procedures will occur if the rate cannot be set as described
above:
(a) If no page is specified in the applicable pricing supplement and
on the face of such CMT Rate note, the Designated CMT Telerate Page shall
be 7052 for the most recent week. If such rate is no longer displayed on
the relevant page, or if it is not displayed by 3:00 P.M. on the related
Calculation Date, then the CMT Rate will be the Treasury constant maturity
rate for the applicable Index Maturity as published in the relevant H.15
(519).
(b) If that rate is no longer published in H.15(519), or is not
published by 3:00 P.M. on the related Calculation Date, then the CMT Rate
for such CMT Rate Interest Determination Date will be the Treasury constant
maturity rate for the applicable Index Maturity (or other United States
Treasury rate for such Index Maturity for that CMT Rate Interest
Determination Date with respect to such Interest Reset Date) as may then be
published by either the Federal Reserve Board or the United States
Department of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Designated CMT Telerate
Page and published in the relevant H.15(519).
(c) If that information is not provided by 3:00 P.M. on the related
Calculation Date, then the CMT Rate for that CMT Rate Interest
Determination Date will be calculated by the Calculation Agent as follows:
The rate will be calculated as a yield to maturity, based on the
average of the secondary market closing offer side prices as of
approximately 3:30 P.M. on that CMT Rate Interest Determination Date
reported, according to their written records, by three leading primary
United States government securities dealers (each, a "Reference Dealer") in
New York selected by the Calculation Agent. These dealers will be selected
from five such Reference Dealers.
The Calculation Agent will eliminate the highest quotation (or, in
the event of equality, one of the highest) and the lowest quotation (or, in
the event of equality, one of the lowest), for the most recently issued
direct noncallable fixed rate obligations of the
<PAGE>
United States ("Treasury Notes") with an original maturity of approximately
the applicable Index Maturity and a remaining term to maturity of not less
than such Index Maturity minus one year.
If two Treasury Notes with an original maturity as described in the
preceding sentence have remaining terms to maturity equally close to the
applicable Index Maturity, the quotes for the Treasury Note with the
shorter remaining term to maturity will be used.
(d) If the Calculation Agent cannot obtain three such Treasury Note
quotations, the CMT Rate for that CMT Rate Interest Determination Date will
be calculated by the Calculation Agent as follows:
The rate will be calculated as a yield to maturity based on the
average of the secondary market offer side prices as of approximately 3:30
P.M. on that CMT Rate Interest Determination Date of three Reference
Dealers in New York selected by the Calculation Agent using the same method
described above, for Treasury Notes with an original maturity of the number
of years that is the next highest to the applicable Index Maturity with a
remaining term to maturity closest to such Index Maturity and in an amount
of at least $100 million.
If three or four (and not five) of the Reference Dealers are quoting
as described above, then the CMT Rate will be based on the average of the
offer prices obtained and neither the highest nor the lowest of such quotes
will be eliminated.
(e) Finally, if fewer than three Reference Dealers are quoting as
mentioned, the rate of interest in effect for the applicable period will be
the same as the rate of interest in effect for the prior interest reset
period.
Events of Default
"Event of Default" means any of the following:
- failure to pay for three Business Days the principal of (or premium,
if any, on) any note of a series when due and payable;
- failure to pay for 30 days any interest on any note of any series
when due and payable;
- failure to perform any other requirements in such notes, or in the
Indenture in regard to such notes, for 90 days after notice;
- certain events of bankruptcy or insolvency; or
- any other event of default specified in a series of notes.
An Event of Default for a particular series of notes does not necessarily
mean that an Event of Default has occurred for any other series of notes issued
under the Indenture. If an Event of Default occurs and continues, the Trustee or
the holders of at least 33% of the principal amount of the notes of the series
affected may require us to repay the entire principal of the notes of such
series immediately ("Repayment Acceleration"). In most instances, the holders of
at least a majority in aggregate principal amount of the notes of the affected
series may rescind a previously triggered Repayment Acceleration. However, if we
cause an Event of Default because we have failed to pay (unaccelerated)
<PAGE>
principal, premium, if any, or interest, Repayment Acceleration may be
rescinded only if we have first cured our default by depositing with the Trustee
enough money to pay all (unaccelerated) past due amounts and penalties, if any.
The Trustee must within 90 days after a default occurs, notify the holders
of the notes of the series of default unless such default has been cured or
waived. We are required to file an annual certificate with the Trustee, signed
by an officer, concerning any default by us under any provisions of the
Indenture.
Subject to the provisions of the Indenture relating to its duties in case
of default, the Trustee shall be under no obligation to exercise any of its
rights or powers under the Indenture at the request, order or direction of any
holders unless such holders offer the Trustee reasonable indemnity. Subject to
the provisions for indemnification, the holders of a majority in principal
amount of the notes of any series may direct the time, method and place of
conducting any proceedings for any remedy available to, or exercising any trust
or power conferred on, the Trustee with respect to such notes.
Modification of Indenture
Under the Indenture, our rights and obligations and the rights of the
holders of any notes may be changed. Any change affecting the rights of the
holders of any series of notes requires the consent of the holders of not less
than a majority in aggregate principal amount of the outstanding notes of all
series affected by the change, voting as one class. However, we cannot change
the terms of payment of principal or interest, or a reduction in the percentage
required for changes or a waiver of default, unless the holder consents. We may
issue additional series of notes and take other action that does not affect the
rights of holders of any series by executing supplemental indentures without the
consent of any noteholders.
Consolidation, Merger or Sale
We may merge or consolidate with any corporation or sell substantially all
of our assets as an entirety as long as the successor or purchaser expressly
assumes the payment of principal, and premium, if any, and interest on the
notes.
Legal Defeasance
We will be discharged from our obligations on the notes of any series at
any time if:
- we deposit with the Trustee sufficient cash or government securities to
pay the principal, interest, any premium and any other sums due to the
stated maturity date or a redemption date of the note of the series, and
- we deliver to the Trustee an opinion of counsel stating that the federal
income tax obligations of noteholders of that series will not change as a
result of our performing the action described above.
If this happens, the noteholders of the series will not be entitled to the
benefits of the Indenture except for registration of transfer and exchange of
notes and replacement of lost, stolen or mutilated notes.
Covenant Defeasance
We will be discharged from our obligations under any restrictive covenant
applicable to the notes of a particular series if we perform both actions
described above.
<PAGE>
See Legal Defeasance. If this happens, any later breach of
that particular restrictive covenant will not result in Repayment Acceleration.
If we cause an Event of Default apart from breaching that restrictive covenant,
there may not be sufficient money or government obligations on deposit with the
Trustee to pay all amounts due on the notes of that series. In that instance, we
would remain liable for such amounts.
Governing Law
The Indenture and notes of all series will be governed by the laws of the
State of New York.
Concerning the Trustee
We and our affiliates use or will use some of the banking services of the
Trustee in the normal course of business.
PLAN OF DISTRIBUTION
We may sell the notes (a) through agents; (b) through underwriters or
dealers; or (c) directly to one or more purchasers.
By Agents
Notes may be sold on a continuing basis through agents designated by us.
The agents will agree to use their reasonable efforts to solicit purchases for
the period of their appointment.
Unless the pricing supplement states otherwise, the notes will be sold to
the public at 100% of their principal amount. Agents will receive commissions
from .125% to .750% of the principal amount per note depending on the maturity
of the note they sell.
The Agents will not be obligated to make a market in the notes. We cannot
predict the amount of trading or liquidity of the notes.
By Underwriters
If underwriters are used in the sale, the underwriters will acquire the
notes for their own account. The underwriters may resell the notes in one or
more transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. The obligations of
the underwriters to purchase the notes will be subject to certain conditions.
The underwriters will be obligated to purchase all the notes of the series
offered if any of the notes are purchased. Any initial public offering price and
any discounts or concessions allowed or re-allowed or paid to dealers may be
changed from time to time.
Direct Sales
We may also sell notes directly. In this case, no underwriters or agents
would be involved.
General Information
Underwriters, dealers, and agents that participate in the distribution of
the notes may be underwriters as defined in the Securities Act of 1933 (the
"Act"), and any discounts or commissions received by them from us and any profit
on the resale of the notes by them may be treated as underwriting discounts and
commissions under the Act.
We may have agreements with the underwriters, dealers and agents to
indemnify them against certain civil liabilities, including liabilities under
the Act.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, us or our affiliates in the ordinary course of their
businesses.
<PAGE>
LEGAL OPINIONS
Our counsel, Simpson Thacher & Bartlett, New York, NY, and one of our
lawyers will each issue an opinion about the legality of the notes for us. Dewey
Ballantine LLP, New York, NY will issue an opinion for the agents or
underwriters. From time to time, Dewey Ballantine LLP acts as counsel to our
affiliates for some matters.
EXPERTS
The financial statements and the related financial statement schedule
incorporated in this prospectus by reference from the Company's Annual Report on
Form 10-K have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their reports, which are incorporated herein by reference, and have
been so incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
GLOSSARY
Set forth below are definitions of some of the terms used in this
Prospectus.
"Business Day" means any day other than a Saturday or Sunday that (a) is
not a day on which banking institutions in New York, New York, are authorized or
obligated by law or executive order to be closed, and (b) with respect to LIBOR
Notes only, is a day on which dealings in deposits in U.S. dollars are
transacted in the London interbank market.
"Calculation Agent" means the entity we choose to perform the duties
related to interest rate calculation and resets for floating rate notes. The
applicable pricing supplement will identify the Calculation Agent.
"Calculation Date" means the date on which the Calculation Agent
calculates an interest rate for a floating rate note, which will be one of the
following:
"Prime Rate" - tenth day after the related Prime Rate Interest Determination
Date or, if such day is not a Business Day, the next Business Day.
"CD Rate" - tenth day after the related CD Rate Interest Determination Date
or, if such day is not a Business Day, the next Business Day.
"CMT Rate" - tenth day after the related CMT Rate Interest Determination
Date or, if such day is not a Business Day, the next Business Day.
"Commercial Paper Rate" - tenth day after the related Commercial Paper Rate
Interest Determination Date or, if such day is not a Business Day, the next
Business Day.
"LIBOR" - the LIBOR Interest Determination Date.
"Treasury Rate" - tenth day after the related Treasury Rate Interest
Determination Date or, if such day is not a Business Day, the next Day.
"Federal Funds Rate" - tenth day after the related Federal Funds Rate
Interest Determination Date or, if such day is not a Business Day, the next
Business Day.
"Composite Quotations" means the successor publication to the daily
statistical release entitled "Composite 3:30 P.M. Quotations for U.S.
Government Securities,"
<PAGE>
published by The Federal Reserve Bank of New York.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service on the page designated in the applicable pricing supplement and on the
face of such CMT Rate note (or any other page as may replace such page on that
service) for the purpose of displaying Treasury Constant Maturities as reported
in H.15(519).
"H.15 (519)" means the weekly statistical release entitled "Statistical
Release H.15 (519), Selected Interest Rates," or any successor publication,
published by the Board of Governors of the Federal Reserve System.
"Index Maturity" means, with respect to a floating rate note, the period
to maturity of the note on which the interest rate formula is based, as
indicated in the applicable pricing supplement.
"Interest Determination Date" means the date as of which the interest rate
for a floating rate note is to be calculated, to be effective as of the
following Interest Reset Date and calculated on the related Calculation Date
(except in the case of LIBOR which is calculated on the related LIBOR Interest
Determination Date). The Interest Determination Dates will be indicated in the
applicable pricing supplement and in the note.
"Interest Reset Date" means the date on which a floating rate note will
begin to bear interest at the variable interest rate determined on any Interest
Determination Date. The Interest Reset Dates will be indicated in the applicable
pricing supplement and in the note.
"Money Market Yield" is the yield (expressed as a percentage rounded
upwards, if necessary, to the next higher one-hundred thousandth of a percentage
point) calculated in accordance with the following formula:
Money Market Yield = D X 360 X 100
360 - (D X M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the period for which interest is being calculated.
"Reuters Screen LIBO Page" means the display designated as page "LIBO" on
the Reuters Monitor Money Rates Service (or such other page as may replace the
LIBO page on that service for the purpose of displaying London interbank offered
rates of major banks).
"Reuters Screen USPRIME1 Page" means the display designated as page
USPRIME1 on the Reuters Monitor Money Rates Service (or such other page as may
replace the USPRIME1 page on that service for the purpose of displaying prime
rates or base lending rates of major U.S. banks).
"Spread" means the number of basis points specified in the applicable
pricing supplement as being applicable to the interest rate for a floating rate
note.
"Spread Multiplier" means the percentage specified in the applicable
pricing supplement as being applicable to the interest rate for a floating rate
note.
"Telerate Page 3750" means the display designated as page "3750" on the
Dow Jones Telerate Service (or such other page as may replace the 3750 page on
that service or such other service or services as may be nominated by the
British Bankers Association for the purpose of displaying London interbank
offered rates of major banks for U.S. dollar deposits). <PAGE>
Table of Contents
WHERE YOU CAN FIND MORE
INFORMATION ................... 2
THE COMPANY........................ 2
PROSPECTUS SUPPLEMENTS............. 2
RATIO OF EARNINGS TO
FIXED CHARGES................... 3
USE OF PROCEEDS ................... 3
DESCRIPTION OF THE NOTES .......... 3
General ....................... 3
Redemptions .................... 4
Remarketed Notes............. 4
Book-Entry Notes - Registration,
Transfer, and Payment of
Interest and Principal ... 4 $150,000,000 UNSECURED NOTES
Note Certificates- Registration,
Transfer, and Payment of
Interest and Principal .... 6
Interest Rate .................. 6
General ..................... 6
Fixed Rate Notes ............ 6 PROSPECTUS
Floating Rate Notes: General. 6
Floating Rate Notes: Date
of Interest Rate Change... 7
Floating Rate Notes: When The date of this
Interest Rate Is prospectus is ___________, 1999
Determined................ 7
Floating Rate Notes: When
Interest Is Paid.......... 7
Floating Rate Notes:
Interest Rate Formulas.... 8
Events of Default.............14
Modification of Indenture.....15
Consolidation, Merger or Sale.15
Legal Defeasance..............15
Covenant Defeasance...........15
Governing Law.................16
Concerning the Trustee........16
PLAN OF DISTRIBUTION...............16
By Agents.....................16
By Underwriters...............16
Direct Sales..................16
General Information...........16
LEGAL OPINIONS.....................17
EXPERTS............................17
GLOSSARY...........................17
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
Securities and Exchange Commission Filing Fees................... $ 7,784
Printing Registration Statement, Prospectus, etc................. $ 30,000
Independent Auditors' Fees........................................... $ 30,000
Charges of Trustee (including counsel fees)...................... $ 10,000
Legal Fees of Counsel.................................................$.100,000
Rating Agency Fees....................................................$..95,250
Miscellaneous Expenses................................................$..25,000
----------
Total................................................ $ 298,034
==========
*Estimated, except for filing fees.
Item 15. Indemnification of Directors and Officers.
Section 271B.8-510 of the Kentucky Revised Statutes provides that a
Kentucky corporation may indemnify an individual made a party to a proceeding
because the individual is or was a director if (i) the individual's conduct was
in good faith, (ii) the individual reasonably believed that, in the case of
conduct in the individual's official capacity with the corporation, his or her
conduct was in the best interests of the corporation and, in all other cases,
his or her conduct was at least not opposed to the best interests of the
corporation and (iii) in the case of a criminal proceeding, that the individual
had no reasonable cause to believe that such conduct was unlawful. The
termination of a proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent is not, of itself, determinative
that a director did not meet the required standard of conduct. Section
271B.8-520 requires a corporation, unless limited by its articles of
incorporation, to indemnify a director who has been wholly successful in the
defense of a proceeding against reasonable expenses (including counsel fees) so
incurred. Section 271B.8-530 authorizes a corporation to pay for or reimburse
the reasonable expenses (including counsel fees) incurred by a director in
advance of final disposition of a proceeding upon a determination that in light
of the facts then known indemnification is permissible, a written affirmation by
the director of his or her good faith belief that the required standard of
conduct has been met and an undertaking by the director to repay any such
advance if it is ultimately determined that the director did not meet the
required standard of conduct. Unless limited by a corporation's articles of
incorporation, a director may, pursuant to Section 271B.8-540, apply for
indemnification to a court of competent jurisdiction. An officer is entitled to
mandatory indemnification under Section 271B.8-520 and to apply for
court-ordered indemnification under Section 271B.8-540 to the same extent as a
director. A corporation may indemnify and advance expenses to an officer,
employee or agent to the same extent as to a director. A corporation may
purchase and maintain insurance on behalf of an individual who is a director,
officer, employee or agent, whether or not the corporation would have power by
statute to indemnify the individual against the same liability. Section
271B.8-580 provides
<PAGE>
that the statutory provisions do not exclude any other
rights to indemnification and advances for expenses that a person may otherwise
have. The by-laws of the Company provide for the indemnification of directors
and officers of the Company to the full extent permitted by law.
Reference is made to the Selling Agency Agreement and Underwriting
Agreement, filed as Exhibits 1(a) and 1(b) hereto, which provide for
indemnification, under certain circumstances, of the Company, certain of its
directors and officers, and persons who control the Company.
The Company maintains insurance policies insuring its directors and
officers against certain obligations that may be incurred by them.
Item 16. Exhibits.
Reference is made to the information contained in the Exhibit Index filed
as a part of this Registration Statement.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of Notes (if the total dollar value of Notes would not
exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule 424(b) of the
Securities Act of 1933 if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that (i) and (ii) do not apply if the registration
statement is on Form S-3 or Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrant
<PAGE>
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the Notes, and the offering thereof at
that time shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the laws of the Commonwealth of Kentucky,
the registrant's By-laws or otherwise, the registrant has been advised that in
the opinion of the SEC such indemnification is against public policy as
expressed in said Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the notes, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in said Act and will be governed by the final
adjudication of such issue.
(6) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(7) For purposes of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable cause to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Columbus and State of Ohio, on the 6th day of April,
1999.
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
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
(i) Principal Executive
Officer Chairman of the
Board and Chief
E. Linn Draper, Jr.* Executive Officer April 6, 1999
(ii) Principal Financial
Officer: Vice President,
Treasurer and Chief
/s/ A. A. Pena Financial Officer April 6, 1999
--------------------
A. A. Pena
(iii) Principal Accounting
Officer:
Controller and Chief
/s/ L. V. Assante Accounting Officer April 6, 1999
--------------------
L. V. Assante
(iv) A Majority of the Directors:
E. Linn Draper, Jr.*
Henry W. Fayne*
Wm. J. Lhota*
James J. Markowsky*
Armando A. Pena April 6, 1999
J. H. Vipperman*
*By /s/ Armando A. Pena
(Armando 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(a) Proposed Selling Agency Agreement for the unsecured notes.
* 1(b) Proposed form of Underwriting Agreement for the unsecured
notes.
* 4(a) Indenture between the Company and Bankers Trust
Company, as Trustee, dated as of September 1, 1997 for the
notes.
* 4(b) Company Order and Officers' Certificate, dated
September 24, 1997, establishing certain terms of
Unsecured Medium Term Notes, Series A.
* 4(c) Instructions, dated September 26, 1997, from the
Company to Bankers Trust Company, establishing certain
terms of the 6.91% Unsecured Medium Term Notes, Series A,
due 2007.
* 4(d) Instructions, dated November 4, 1998, from the
Company to Bankers Trust Company, establishing certain
terms of the 6.45% Unsecured Medium Term Notes, Series A,
due 2008.
* 4(e) Proposed form of Company Order and Officers' Certificate
establishing certain terms of the notes.
* 5 Opinion of Simpson Thacher & Bartlett as to the legality
of the notes
12 Statement re: Computation of Ratios [Annual Report on
Form 10-K of the Company for the period ended December
31, 1998, File No. 1-3570, Exhibit 12].
*23(a) Consent of Deloitte & Touche LLP.
23(b) Consent of Simpson Thacher & Bartlett (included in
Exhibit 5).
*24 Powers of Attorney and resolutions of the Board of
Directors of the Company.
*25 Form T-1 re: Eligibility of Bankers Trust Company.
Exhibit 1(a)
OHIO POWER COMPANY
Selling Agency Agreement
------------, ----
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====================
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Dear Sirs:
Ohio Power Company, an Ohio corporation (the "Company"), confirms its
agreement with each of you with respect to the issue and sale by the Company of
up to $____________ aggregate principal amount of its [Unsecured Notes] (the
"Notes"). The Notes will be issued under the Indenture dated as of September 1,
1997, between the Company and Bankers Trust Company, as trustee (the "Trustee"),
as previously supplemented and as it may be from time to time further
supplemented by one or more supplemental indentures (said Indenture, as
previously supplemented and as it may be further supplemented, being hereafter
referred to as the "Indenture"). The Notes will be issued in minimum
denominations of [$25] and in integral multiples thereof, will be issued only in
fully registered form and will have the annual interest rates, maturities and,
if appropriate, other terms set forth in a supplement to the Prospectus referred
to below. The Notes will be issued, and the terms thereof established, in
accordance with the Indenture and, in the case of Notes sold pursuant to Section
2(a) hereof, the [Unsecured Notes] Administrative Procedures attached hereto as
Exhibit A (the "Procedures"). The Procedures may only be amended by written
agreement of the Company and you after notice to, and with the approval of, the
Trustee. For purposes of this Agreement, the term "Agent" shall refer to any one
of you and any Additional Agent as defined and as provided for in Section 2(a)
acting solely in the capacity as agent for the Company pursuant to Section 2(a)
and not as principal (collectively, the "Agents"), the term the "Purchaser"
shall refer to one of you acting solely as principal pursuant to Section 2(b)
and not as agent, and the term "you" shall refer to you collectively whether at
any time any of you is acting in both such capacities or in either such
capacity.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, you as set forth below in this Section 1. Certain
terms used in this Section 1 are defined in paragraph (d) hereof.
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form S-3 (File Number: 333-_____), including a basic
prospectus, which has become effective, for the registration under the Act
of $150,000,000 aggregate principal amount of Unsecured Notes (the
"Notes"). Such registration statement meets the requirements set forth in
Rule 415(a)(1)(ix) or (x) under the Act and complies in all other material
respects with said Rule. The Company has included in Registration
Statement 333-_____ a basic Prospectus which, pursuant to Rule 429 under
the Act, is a combined Prospectus also relating to securities included in
Registration Statement No. 333-35585. The Company will file with the
Commission pursuant to the applicable paragraph of Rule 424(b) under the
Act a supplement to the form of prospectus included in such registration
statement relating to the Notes and the plan of distribution thereof (the
"Prospectus Supplement"). In connection with the sale of Notes the Company
proposes to file with the Commission pursuant to the applicable paragraph
of Rule 424(b) under the Act further supplements to the Prospectus
Supplement specifying the interest rates, maturity dates and, if
appropriate, other terms of the Notes sold pursuant hereto or the offering
thereof.
(b) As of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission, as of the date
of any Terms Agreement (as defined in Section 2(b)) and at the date of
delivery by the Company of any Notes sold hereunder (a "Closing Date"),
(i) the Registration Statement, as amended as of any such time, and the
Prospectus, as supplemented as of any such time, will comply in all
material respects with the applicable requirements of the Act, the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the respective rules under the Act, the Exchange Act and the Trust
Indenture Act; (ii) the Registration Statement, as amended as of any such
time, did not or will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and
(iii) the Prospectus, as supplemented as of any such time, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties
as to (i) those parts of the Registration Statement which shall constitute
a Statement of Eligibility (Form T-1) of the Trustee under the Trust
Indenture Act or (ii) the information contained in or omitted from the
Registration Statement or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to
the Company by any of you expressly for use in the Registration Statement
or the Prospectus (or any supplement thereto).
(c) As of the time any Notes are issued and sold hereunder, the
Indenture will constitute a legal, valid and binding instrument
enforceable against the Company in accordance with its terms and such
Notes will have been duly authorized, executed, authenticated and, when
paid for by the purchasers thereof, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
Indenture, except as the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights
generally, or general equitable principles (whether considered in a
proceeding in equity or at law), and an implied covenant of good faith and
fair dealing.
(d) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective. "Execution Time" shall mean
the date and time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the form of basic prospectus
relating to the Securities contained in the Registration Statement at the
Effective Date. "Prospectus" shall mean the Basic Prospectus as
supplemented by the Prospectus Supplement. "Registration Statement" shall
mean the Registration Statement referred to in paragraph (a) above,
including incorporated documents, exhibits and financial statements, as
amended at the Execution Time. "Rule 415" and "Rule 424" refer to such
rules under the Act. Any reference herein to the Registration Statement,
the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date or the issue date of the
Basic Prospectus, the Prospectus Supplement or the Prospectus, as the case
may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic
Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the Effective Date or the issue date of the Basic Prospectus, the
Prospectus Supplement or the Prospectus, as the case may be, deemed to be
incorporated therein by reference.
(e) The documents incorporated by reference in the Registration
Statement or Prospectus, when they were filed with the Commission,
complied in all material respects with the applicable provisions of the
1934 Act and the rules and regulations of the Commission thereunder, and
as of such time of filing, when read together with the Prospectus, none of
such documents contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(f) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, there has been no material adverse change in the business,
properties or financial condition of the Company.
(g) This Agreement has been duly authorized, executed and delivered
by the Company.
(h) The consummation by the Company of the transactions contemplated
herein will not conflict with, or result in a breach of any of the terms
or provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company under any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the
Company is a party or by which it may be bound or to which any of its
properties may be subject (except for conflicts, breaches or defaults
which would not, individually or in the aggregate, be materially adverse
to the Company or materially adverse to the transactions contemplated by
this Agreement.)
(i) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale by the Company of the Notes or the transactions by the
Company contemplated in this Agreement, except (A) such as may be required
under the 1933 Act or the rules and regulations thereunder; (B) such as
may be required under the Public Utility Holding Company Act of 1935, as
amended (the "1935 Act"); (C) the qualification of the Indenture under the
1939 Act; (D) the approval of The Public Utilities Commission of Ohio; and
(E) such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws.
2. Appointment of Agents; Solicitation by the Agents of Offers
to Purchase; Sales of Notes to a Purchaser.
(a) Subject to the terms and conditions set forth herein, the
Company hereby authorizes each of the Agents to act as its agent to
solicit offers for the purchase of all or part of the Notes from the
Company.
On the basis of the representations and warranties, and
subject to the terms and conditions set forth herein, each of the Agents
agrees, as agent of the Company, to use its reasonable best efforts to
solicit offers to purchase the Notes from the Company upon the terms and
conditions set forth in the Prospectus (and any supplement thereto) and in
the Procedures.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Notes. Upon
receipt of instructions from the Company, the Agents will forthwith
suspend solicitation of offers to purchase Notes from the Company until
such time as the Company has advised them that such solicitation may be
resumed.
The Company expressly reserves the right, upon fifteen
business days' prior written notice to each Agent, to appoint other
persons, partnerships or corporations ("Additional Agents") to act as its
agent to solicit offers for the purchase of Notes; provided, each
Additional Agent shall be named in a prospectus supplement or pricing
supplement and shall either execute this Agreement and become a party
hereto or shall enter into an agency agreement with the Company on terms
substantially similar to those contained herein; thereafter the term Agent
as used in this Agreement shall mean each Agent and each such Additional
Agent.
The Company agrees to pay each Agent a commission, on the
Closing Date with respect to each sale of Notes by the Company as a result
of a solicitation made by such Agent, in an amount equal to that
percentage specified in Schedule I hereto of the aggregate principal
amount of the Notes sold by the Company. Such commission shall be payable
as specified in the Procedures.
Subject to the provisions of this Section and to the
Procedures, offers for the purchase of Notes may be solicited by an Agent
as agent for the Company at such time and in such amounts as such Agent
deems advisable. The Company may from time to time offer Notes for sale
otherwise than through an Agent; provided, however, that so long as this
Agreement shall be in effect the Company shall not solicit or accept
offers to purchase Notes through any agent other than an Agent.
(b) Subject to the terms and conditions stated herein, whenever the
Company and any Agent determine that the Company shall sell Notes directly
to such Agent as principal, each such sale of Notes shall be made in
accordance with the terms of this Agreement and, unless otherwise agreed
by the Company and such Agent, any supplemental agreement relating thereto
between the Company and the Purchaser. Each such supplemental agreement
(which may be an oral or written agreement) is herein referred to as a
"Terms Agreement". Each Terms Agreement shall describe (whether orally or
in writing) the Notes to be purchased by the Purchaser pursuant thereto,
and shall specify the aggregate principal amount of such Notes, the
maturity date of such Notes, the rate at which interest will be paid on
such Notes, the dates on which interest will be paid on such Notes and the
record date with respect to each such payment of interest, the Closing
Date for the purchase of such Notes, the place of delivery of the Notes
and payment therefor, the method of payment and any requirements for the
delivery of the opinions of counsel, the certificates from the Company or
its officers, or a letter from the Company's independent public
accountants, pursuant to Section 6(b). Any such Terms Agreement may also
specify the period of time referred to in Section 4(m). Any written Terms
Agreement may be in the form attached hereto as Exhibit B. The Purchaser's
commitment to purchase Notes shall be deemed to have been made on the
basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set
forth.
The Company also may sell Notes to any Agent, acting as principal,
at a discount to be agreed upon at the time of sale, for resale to one or
more investors or to another broker-dealer (acting as principal for
purposes of resale) at varying prices related to prevailing market prices
at the time of such resale as determined by such Agent. An Agent may
resell a Note purchased by it as principal to another broker-dealer at a
discount, provided such discount does not exceed the commission or
discount received by such Agent from the Company in connection with the
original sale of such Note.
(c) The Company, however, expressly reserves the right to place the
Notes itself privately or through a negotiated underwritten transaction
with one or more underwriters without notice to any Agent and without any
opportunity for any Agent to solicit offers for the purchase of the Notes.
In such event, no commission will be payable to the Agents.
Delivery of the Notes sold to the Purchaser pursuant to any
Terms Agreement shall be made not later than the Closing Date agreed to in
such Terms Agreement, against payment of funds to the Company in the net
amount due to the Company for such Notes by the method and in the form set
forth in the Procedures unless otherwise agreed to between the Company and
the Purchaser in such Terms Agreement.
3. Offering and Sale of Notes. Each Agent and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of any offering of the Notes, the
Company will not file any amendment of the Registration Statement or
supplement to the Prospectus (except for (i) periodic or current reports
filed under the Exchange Act; (ii) a supplement relating to any offering
of Notes providing solely for the specification of or a change in the
maturity dates, interest rates, issuance prices or other similar terms of
any Notes or (iii) a supplement relating to an offering of Securities
other than the Notes) unless the Company has furnished each of you a copy
for your review prior to filing and given each of you a reasonable
opportunity to comment on any such proposed amendment or supplement.
Subject to the foregoing sentence, the Company will cause each supplement
to the Prospectus to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to you of such filing. The Company will
promptly advise each of you (i) when the Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to Rule
424(b); (ii) when, prior to the termination of the offering of the Notes,
any amendment of the Registration Statement shall have been filed or
become effective; (iii) of any request by the Commission for any amendment
of the Registration Statement or supplement to the Prospectus or for any
additional information; (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose; and (v) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. The
Company will use every reasonable effort to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it shall be necessary to amend
the Registration Statement or to supplement the Prospectus to comply with
the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (i) notify each of you to suspend solicitation of
offers to purchase Notes (and, if so notified by the Company, each of you
shall forthwith suspend such solicitation and cease using the Prospectus
as then supplemented); (ii) prepare and file with the Commission, subject
to the first sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or effect such
compliance; and (iii) supply any supplemented Prospectus to each of you in
such quantities as you may reasonably request. If such amendment or
supplement, and any documents, certificates and opinions furnished to each
of you pursuant to paragraph (g) of this Section 4 in connection with the
preparation or filing of such amendment or supplement are satisfactory in
all respects to you, you will, upon the filing of such amendment or
supplement with the Commission and upon the effectiveness of an amendment
to the Registration Statement, if such an amendment is required, resume
your obligation to use your reasonable best efforts to solicit offers to
purchase Notes hereunder.
(c) The Company, during the period when a prospectus relating to the
Notes is required to be delivered under the Act, will file promptly all
documents required to be filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act and will furnish to each of
you copies of such documents. In addition, on or prior to the date on
which the Company makes any announcement to the general public concerning
earnings or concerning any other event which is required to be described,
or which the Company proposes to describe, in a document filed pursuant to
the Exchange Act, the Company will furnish to each of you the information
contained or to be contained in such announcement. The Company also will
furnish to each of you copies of all other press releases or announcements
to the general public. The Company will immediately notify each of you of
any downgrading in the rating of the Notes or any other Unsecured Notes of
the Company, or any proposal to downgrade the rating of the Notes or any
other Unsecured Notes of the Company, by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Act), as soon as the Company learns of any such downgrading or
proposal to downgrade.
(d) As soon as practicable, the Company will make generally
available to its security holders and to each of you an earning statement
or statements of the Company which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act.
(e) The Company will furnish to each of you and your counsel,
without charge, copies of the Registration Statement (without exhibits)
and, so long as delivery of a prospectus may be required by the Act, as
many copies of the Prospectus and any supplement thereto as you may
reasonably request.
(f) The Company will use its best efforts to qualify the Notes for
offer and sale under the securities or "blue sky" laws of such
jurisdictions as you may designate within six months after the final sale
of Notes pursuant to this Agreement and agrees to pay, or to reimburse you
and your counsel for, reasonable filing fees and expenses in connection
therewith in an amount not exceeding $5,000 in the aggregate (including
filing fees and expenses paid and incurred prior to the date hereof),
provided, however, that the Company shall not be required to qualify as a
foreign corporation or to file a consent to service of process or to file
annual reports or to comply with any other requirements deemed by the
Company to be unduly burdensome.
(g) The Company shall furnish to each of you such information,
documents, certificates of officers of the Company and opinions of counsel
for the Company relating to the business, operations and affairs of the
Company, the Registration Statement, the Prospectus, and any amendments
thereof or supplements thereto, the Indenture, the Notes, this Agreement,
the Procedures and the performance by the Company and you of its and your
respective obligations hereunder and thereunder as any of you may from
time to time and at any time prior to the termination of this Agreement
reasonably request.
(h) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its
obligations under this Agreement, including the fees and disbursements of
its accountants and counsel, the cost of printing or other production and
delivery of the Registration Statement, the Prospectus, all amendments
thereof and supplements thereto, the Indenture, this Agreement and all
other documents relating to the offering, the cost of preparing, printing,
packaging and delivering the Notes, the fees and disbursements of the
Trustee and the fees of any agency that rates the Notes; (ii) reimburse
each of you on a monthly basis for all out-of-pocket expenses (including
without limitation advertising expenses) incurred with the prior approval
of the Company in connection with this Agreement; and (iii) pay the
reasonable fees and expenses of your counsel incurred in connection with
this Agreement, including fees of counsel incurred in compliance with and
to the extent stated in Section 4(f), including the preparation of a Blue
Sky Survey.
(i) Each acceptance by the Company of an offer to purchase Notes
will be deemed to be an affirmation that its representations and
warranties contained in this Agreement and in any Certificate previously
delivered pursuant hereto are true and correct at the time of such
acceptance, as though made at and as of such time, and a covenant that
such representations and warranties will be true and correct at the time
of delivery to the purchaser of the Notes relating to such acceptance, as
though made at and as of such time (it being understood that for purposes
of the foregoing affirmation and covenant such representations and
warranties shall relate to the Registration Statement and Prospectus as
amended or supplemented at each such time). Each such acceptance by the
Company of an offer for the purchase of Notes shall be deemed to
constitute an additional representation, warranty and agreement by the
Company that, as of the settlement date for the sale of such Notes, after
giving effect to the issuance of such Notes, of any other Notes to be
issued on or prior to such settlement date and of any other Securities to
be issued and sold by the Company on or prior to such settlement date, the
aggregate amount of Securities (including any Notes) which have been
issued and sold by the Company will not exceed the amount of Securities
registered pursuant to the Registration Statement.
(j) Each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement (i)
relating to any offering of Securities other than the Notes; (ii)
incorporating by reference information contained in a Current Report on
Form 8-K filed by the Company under the Exchange Act that is (A) filed
solely under Item 5 of Form 8-K and (B) not required to be filed to comply
with Section 4(b); or (iii) providing solely for the specification of or a
change in the maturity dates, the interest rates, the issuance prices or
other similar terms of any Notes sold pursuant hereto, unless, in the case
of clause (ii) above, in the reasonable judgment of any of you, such
information is of such a nature that a certificate of the Company should
be delivered), the Company will deliver or cause to be delivered promptly
to each of you a certificate of the Company, signed by a Vice President,
Treasurer or Assistant Treasurer of the Company, dated the date of the
effectiveness of such amendment or the date of the filing of such
supplement, in form reasonably satisfactory to you, of the same tenor as
the certificate referred to in Section 5(c) but modified to relate to the
last day of the fiscal quarter for which financial statements of the
Company were last filed with the Commission and to the Registration
Statement and the Prospectus as amended and supplemented to the time of
the effectiveness of such amendment or the filing of such supplement.
(k) Each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement (i)
relating to any offering of Securities other than the Notes; (ii)
incorporating by reference information contained in a Current Report on
Form 8-K filed by the Company under the Exchange Act that is (A) filed
solely under Item 5 of Form 8-K and (B) not required to be filed to comply
with Section 4(b); or (iii) providing solely for the specification of or a
change in the maturity dates, the interest rates, the issuance prices or
other similar terms of any Notes sold pursuant hereto, unless, in the case
of this clause (ii) above, in the reasonable judgment of any of you, such
information is of such a nature that an opinion of counsel should be
furnished), the Company shall furnish or cause to be furnished promptly to
each of you a written opinion or opinions of counsel of the Company
satisfactory to each of you (which may include counsel employed by
American Electric Power Service Corporation, an affiliate of the Company),
dated the date of the effectiveness of such amendment or the date of the
filing of such supplement, substantially in the form delivered pursuant to
Section 5(b)(1) and Section 5(b)(3) hereof or, in lieu of such opinion,
counsel last furnishing such an opinion or opinions to you may furnish
each of you with a letter to the effect that you may rely on such last
opinion to the same extent as though it were dated the date of such letter
authorizing reliance (except that statements in such last opinion will be
deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of the effectiveness of such
amendment or the filing of such supplement).
(l) If requested, each time that the Registration Statement or the
Prospectus is amended or supplemented to include or incorporate amended or
supplemental financial information, the Company shall cause its
independent public accountants promptly to furnish each of you a letter,
dated the date of the effectiveness of such amendment or the date of the
filing of such supplement, in form satisfactory to each of you, of the
same tenor as the letter referred to in Section 5(d) with such changes as
may be necessary to reflect the amended and supplemental financial
information included or incorporated by reference in the Registration
Statement and the Prospectus, as amended or supplemented to the date of
such letter; provided, however, that, if the Registration Statement or the
Prospectus is amended or supplemented solely to include or incorporate by
reference financial information as of and for a fiscal quarter, the
Company's independent public accountants may limit the scope of such
letter, which shall be satisfactory in form to each of you, to the
unaudited financial statements, the related "Management's Discussion and
Analysis of Results of Operations and Financial Condition" and any other
information of an accounting, financial or statistical nature included in
such amendment or supplement, unless, in the reasonable judgment of any of
you, such letter should cover other information or changes in specified
financial statement line items.
(m) During the period, if any, which shall not exceed ten days,
specified in any Terms Agreement, the Company shall not, without the prior
consent of the Purchaser thereunder, issue or announce the proposed
issuance of any of its Unsecured Notes, including Notes, with terms
substantially similar to the Notes being purchased pursuant to such Terms
Agreement, other than borrowings under its revolving credit agreements and
lines of credit, issuances of its commercial paper, and other forms of
unsecured borrowings from banks or other financial institutions.
5. Conditions to the Obligations of the Agents. The obligations of
each Agent to use its reasonable best efforts to solicit offers to purchase the
Notes shall be subject to the accuracy of the representations and warranties on
the part of the Company contained herein as of the Execution Time, on the
Effective Date, when any supplement to the Prospectus is filed with the
Commission and as of each Closing Date, to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions hereof at each such
time or date, to the performance by the Company of its obligations hereunder and
to the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement,
shall have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) That, at the Execution Time, each Agent shall be furnished with
the following opinions, dated the date thereof, with such changes therein
as may be agreed upon by the Company and the Agents with the approval of
Dewey Ballantine LLP, counsel to the Agents:
(1) Opinion of Simpson Thacher & Bartlett, of New York, New
York, counsel to the Company, substantially in the form heretofore
made available to the Agents;
(2) Opinion of Dewey Ballantine LLP, of New York, New York,
counsel to the Agents, substantially in the form heretofore made
available to the Agents;
(3) Opinion of an attorney employed by American Electric Power
Service Corporation, substantially in the form heretofore made
available to the Agents.
(c) The Company shall have furnished to each Agent a certificate of
the Company, signed by a Vice President, Treasurer or Assistant Treasurer
of the Company, dated the Execution Time, to the effect that the signer of
such certificate has carefully examined the Registration Statement, the
Prospectus, any supplement to the Prospectus and this Agreement and that:
(1) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the date hereof with the same effect as if made on the date hereof
and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied as a
condition to the obligation of the Agents to solicit offers to
purchase the Notes;
(2) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(3) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus, there has
been no material adverse change in the condition (financial or
other), earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated
in the Prospectus.
(d) That the Agents shall have received a letter from Deloitte &
Touche LLP in form and substance satisfactory to them, dated as of the
Execution Time, (i) confirming that they are independent public
accountants within the meaning of the Act and the applicable published
rules and regulations of the Commission thereunder; (ii) stating that in
their opinion the financial statements audited by them and included or
incorporated by reference in the Registration Statement complied as to
form in all material respects with the then applicable accounting
requirements of the Commission, including applicable published rules and
regulations of the Commission and (iii) covering as of a date not more
than five business days prior to the date of such letter such other
matters as the Agents reasonably request.
(e) Prior to the Execution Time, the Company shall have furnished to
each Agent such further information, documents, certificates and opinions
of counsel as the Agents may reasonably request.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to such Agents and counsel for the Agents, this Agreement and all
obligations of any Agent hereunder may be canceled at any time by the Agents
without any liability whatsoever. Notice of such cancellation shall be given to
the Company in writing or by telephone or telex or facsimile transmission
confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the offices of American Electric Power Service Corporation, 1
Riverside Plaza, Columbus, Ohio 43215 on the date hereof.
6. Conditions to the Obligations of the Purchaser. The obligations
of the Purchaser to purchase any Notes will be subject to the accuracy of the
representations and warranties on the part of the Company herein as of the date
of any related Terms Agreement and as of the Closing Date for such Notes, to the
performance and observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed and to the following
additional conditions precedent:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement,
shall have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) If specified by any related Terms Agreement and except to the
extent modified by such Terms Agreement, the Purchaser shall have
received, appropriately updated, (i) a certificate of the Company, dated
as of the Closing Date, to the effect set forth in Section 5(c) (except
that references to the Prospectus shall be to the Prospectus as
supplemented at the time of execution of the Terms Agreement); (ii) the
opinion of counsel for the Company (which may be either Simpson Thacher &
Bartlett or an attorney employed by American Electric Power Service
Corporation, an affiliate of the Company), dated as of the Closing Date,
substantially in the form delivered pursuant to Section 5(b)(1) hereof;
(iii) the opinion of Dewey Ballantine LLP, counsel for the Agents, dated
as of the Closing Date, substantially in the form delivered pursuant to
Section 5(b)(2) hereof; (iv) the opinion of an attorney employed by
American Electric Power Service Corporation, dated as of the Closing Date,
substantially in the form delivered pursuant to Section 5(b)(3) hereof;
and (v) the letter of Deloitte & Touche LLP, independent accountants for
the Company, dated as of the Closing Date, substantially in the form
delivered pursuant to Section 5(d) hereof.
(c) Prior to the Closing Date, the Company shall have furnished to
the Purchaser such further information, certificates and documents as the
Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement
and any Terms Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement or such Terms Agreement shall not be in all
material respects reasonably satisfactory in form and substance to the Purchaser
and its counsel, such Terms Agreement and all obligations of the Purchaser
thereunder and with respect to the Notes subject thereto may be canceled at, or
at any time prior to, the respective Closing Date by the Purchaser without any
liability whatsoever. Notice of such cancellation shall be given to the Company
in writing or by telephone or telex or facsimile transmission confirmed in
writing.
7. Right of Person Who Agreed to Purchase to Refuse to Purchase. The
Company agrees that any person who has agreed to purchase and pay for any Note,
including a Purchaser and any person who purchases pursuant to a solicitation by
any of the Agents, shall have the right to refuse to purchase such Note if (a)
at the Closing Date therefor, any condition set forth in Section 5 or 6, as
applicable, shall not be satisfied or (b) subsequent to the agreement to
purchase such Note, there shall have been any decrease in the ratings of any of
the Company's Unsecured Notes by Moody's Investors Service, Inc. ("Moody's") or
Standard & Poor's Ratings Group ("S&P") or either Moody's or S&P shall publicly
announce that it has any of such Unsecured Notes under consideration for
possible downgrade. Notwithstanding the foregoing, no Agent shall have any
obligation to exercise its judgment on behalf of any purchaser.
8. Indemnification.
(a) The Company agrees, to the extent permitted by law, to indemnify
and hold you harmless and each person, if any, who controls you within the
meaning of Section 15 of the Act, against any and all losses, claims,
damages or liabilities, joint or several, to which you, they or any of you
or them may become subject under the Act or otherwise, and to reimburse
you and such controlling person or persons, if any, for any legal or other
expenses incurred by you or them in connection with defending any action,
insofar as such losses, claims, damages, liabilities or actions arise out
of or are based upon any alleged untrue statement or untrue statement of a
material fact contained in the Registration Statement, or in the
Prospectus, or if the Company shall furnish or cause to be furnished to
you any amendments or any supplemental information, in the Prospectus as
so amended or supplemented other than amendments or supplements relating
solely to securities other than the Notes (provided that if such
Prospectus or such Prospectus, as amended or supplemented, is used after
the period of time referred to in Section 4(b) hereof, it shall contain
such amendments or supplements as the Company deems necessary to comply
with Section 10(a) of the Act), or arise out of or are based upon any
alleged omission or omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any such alleged untrue statement
or omission, or untrue statement or omission which was made in such
Registration Statement or in the Prospectus, or in the Prospectus as so
amended or supplemented, in reliance upon and in conformity with
information furnished in writing to the Company by or through you
expressly for use therein or with any statements in or omissions from that
part of the Registration Statement that shall constitute the Statement of
Eligibility under the Trust Indenture Act, of any indenture trustee under
an indenture of the Company, and except that this indemnity shall not
inure to your benefit (or of any person controlling you) on account of any
losses, claims, damages, liabilities or actions arising from the sale of
the Notes to any person if such loss arises from the fact that a copy of
the Prospectus, as the same may then be supplemented or amended to the
extent such Prospectus was provided to you by the Company (excluding,
however, any document then incorporated or deemed incorporated therein by
reference), was not sent or given by you to such person with or prior to
the written confirmation of the sale involved and the alleged omission or
alleged untrue statement or omission or untrue statement was corrected in
the Prospectus as supplemented or amended at the time of such
confirmation, and such Prospectus, as amended or supplemented, was timely
delivered to you by the Company. You agree promptly after the receipt by
you of written notice of the commencement of any action in respect to
which indemnity from the Company on account of its agreement contained in
this Section 8(a) may be sought by you, or by any person controlling you,
to notify the Company in writing of the commencement thereof, but your
omission so to notify the Company of any such action shall not release the
Company from any liability which it may have to you or to such controlling
person otherwise than on account of the indemnity agreement contained in
this Section 8(a). In case any such action shall be brought against you or
any such person controlling you and you shall notify the Company of the
commencement thereof, as above provided, the Company shall be entitled to
participate in, and, to the extent that it shall wish, including the
selection of counsel (such counsel to be reasonably acceptable to the
indemnified party), to direct the defense thereof at its own expense. In
case the Company elects to direct such defense and select such counsel
(hereinafter, "Company's counsel"), you or any controlling person shall
have the right to employ your own counsel, but, in any such case, the fees
and expenses of such counsel shall be at your expense unless (i) the
Company has agreed in writing to pay such fees and expenses or (ii) the
named parties to any such action (including any impleaded parties) include
both you or any controlling person and the Company and you or any
controlling person shall have been advised by your counsel that a conflict
of interest between the Company and you or any controlling person may
arise (and the Company's counsel shall have concurred in good faith with
such advice) and for this reason it is not desirable for the Company's
counsel to represent both the indemnifying party and the indemnified party
(it being understood, however, that the Company shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys for you or any
controlling person (plus any local counsel retained by you or any
controlling person in their reasonable judgment), which firm (or firms)
shall be designated in writing by you or any controlling person). No
indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification could be sought
under this Section 8 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified
party. In no event shall any indemnifying party have any liability or
responsibility in respect of the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or threatened
action or claim effected without its prior written consent.
(b) Each of you agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signs the Registration
Statement and each person who controls the Company within the meaning of
Section 15 of the Act, to the same extent as the foregoing indemnity from
the Company to you, but only with reference to written information
relating to such of you furnished to the Company by such of you
specifically for use in the preparation of the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to
any liability which you may otherwise have. The Company agrees promptly
after the receipt by it of written notice of the commencement of any
action in respect to which indemnity from you on account of your agreement
contained in this Section 8(b) may be sought by the Company, or by any
person controlling the Company, to notify you in writing of the
commencement thereof, but the Company's omission so to notify you of any
such action shall not release you from any liability which you may have to
the Company or to such controlling person otherwise than on account of the
indemnity agreement contained in this Section 8(b).
9. Termination.
(a) This Agreement will continue in effect until terminated as
provided in this Section 9. This Agreement may be terminated by either the
Company as to any of you or by any of you insofar as this Agreement
relates to such of you, by giving written notice of such termination to
such of you or the Company, as the case may be. This Agreement shall so
terminate at the close of business on the first business day following the
receipt of such notice by the party to whom such notice is given. In the
event of such termination, no party shall have any liability to the other
party hereto, except as provided in the fifth paragraph of Section 2(a),
Section 4(h), Section 8 and Section 10. The provisions of this Agreement
(including without limitation Section 7 hereof) applicable to any purchase
of a Note for which an agreement to purchase exists prior to the
termination hereof shall survive any termination of this Agreement. If, at
the time of any such termination, (i) any Purchaser shall own any Notes
purchased pursuant to a Terms Agreement with the intention of reselling
them or (ii) an offer to purchase any of the Notes has been accepted by
the Company but the time of delivery to the purchaser or its agent of such
Notes has not occurred, the covenants set forth in Sections 4 and 6 hereof
shall remain in effect for such period of time (not exceeding nine months)
until such Notes are so resold or delivered, as the case may be.
(b) Each Terms Agreement shall be subject to termination if, in the
Purchaser's reasonable judgment, the Purchaser's ability to market the
Notes shall have been materially adversely affected because: (i) trading
in securities on the New York Stock Exchange shall have been generally
suspended by the Commission or by the New York Stock Exchange; (ii) a
general banking moratorium shall have been declared by Federal or New York
state authorities; (iii) there shall have been a decrease in the ratings
of any of the Company's Unsecured Notes by Moody's or S&P or either
Moody's or S&P shall have publicly announced that it has any of such
Unsecured Notes under consideration for possible downgrade; or (iv)(A) a
war involving the United States of America shall have been declared, (B)
any other national calamity shall have occurred, or (C) any conflict
involving the armed forces of the United States of America shall have
commenced or escalated.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of you set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of you or the Company or any of the officers, directors or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Notes. The provisions of the fifth paragraph of Section
2(a) and Sections 4(h) and 8 hereof shall survive the termination or
cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to any of you, will be delivered
or sent by mail, telex or facsimile transmission to such of you, at the
address specified in Schedule I hereto; or, if sent to the Company, will be
delivered or sent by mail, telex or facsimile transmission to it at 1
Riverside Plaza, Columbus, Ohio 43215, attention of A. A. Pena, Treasurer.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
14. Execution of Counterparts. This Agreement may be executed in
several counterparts, each of which shall be regarded as an original and all of
which shall constitute one and the same document.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and you.
Very truly yours,
OHIO POWER COMPANY
By:___________________________
A. A. Pena
Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date hereof.
- ------------------------------
By:___________________________
Its:__________________________
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By:___________________________
Its:__________________________
SCHEDULE I
Commissions:
The Company agrees to pay each Agent a commission equal to the following
percentage of the principal amount of each Note sold on an agency basis by such
Agent:
Term Commission Rate
From 9 months to less than 1 year
From 1 year to less than 18 months
From 18 months to less than 2 years
From 2 years to less than 3 years
From 3 years to less than 4 years
From 4 years to less than 5 years
From 5 years to less than 6 years
From 6 years to less than 7 years
From 7 years to less than 10 years
From 10 years to less than 15 years
From 15 years to less than 20 years
From 20 years up to and including 42 years
Unless otherwise specified in the applicable Terms Agreement, the discount
or commission payable to a Purchaser shall be determined on the basis of the
commission schedule set forth above.
Address for Notice to you:
Notices to __________________________________ shall be directed to it at
________________________________, Attention: ____________________, telephone:
___/___-____, telecopy: ___/___-____.
Notices to __________________________________ shall be directed to it at
________________________________, Attention: ____________________, telephone:
___/___-____, telecopy: ___/___-____.
EXHIBIT 1(b)
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 [Unsecured Notes] to be issued pursuant to the Indenture dated as
of September 1, 1997, between the Company and Bankers Trust Company, as trustee
(the "Trustee"), as heretofore supplemented and amended and as to be further
supplemented and amended (said Indenture as so supplemented being hereafter
referred to as the Indenture); and
WHEREAS, the Underwriters have designated the person signing this
Agreement (the Representative) to execute this Agreement on behalf of the
respective Underwriters and to act for the respective Underwriters in the manner
provided in this Agreement; and
WHEREAS, the Company has prepared and filed, in accordance with the
provisions of the Securities Act of 1933 (the Act), with the Securities and
Exchange Commission (the Commission), a registration statement and prospectus or
prospectuses relating to the [Unsecured Notes] and such registration statement
has become effective; and
WHEREAS, such registration statement, as it may have been amended to the
date hereof, including the financial statements, the documents incorporated or
deemed incorporated therein by reference and the exhibits, being herein called
the Registration Statement, and the prospectus, as included or referred to in
the Registration Statement to become effective, as it may be last amended or
supplemented prior to the effectiveness of the agreement (the Basic Prospectus),
and the Basic Prospectus, as supplemented by a prospectus supplement which
includes certain information relating to the Underwriters, the principal amount,
price and terms of offering, the interest rate and redemption prices of the
[Unsecured Notes], 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 [Unsecured Notes] set opposite their names in Exhibit 1 hereto, together
aggregating all of the [Unsecured Notes], at a price equal to ______% of the
principal amount thereof.
2. Payment and Delivery: Payment for the [Unsecured Notes] 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 [Unsecured Notes] to the Representative for the respective
accounts of the Underwriters against receipt therefor signed by the
Representative on behalf of itself and for the other Underwriters. Such payments
and delivery shall be made at 10:00 A.M., New York Time, on _______________ (or
on such later business day, not more than five business days subsequent to such
day, as may be mutually agreed upon by the Company and the Underwriters), unless
postponed in accordance with the provisions of Section 7 hereof. The time at
which payment and delivery are to be made is herein called the Time of Purchase.
[The delivery of the [Unsecured Notes] shall be made in fully registered
form, registered in the name of CEDE & CO., to the offices of The Depository
Trust Company in New York, New York and the Underwriters shall accept such
delivery.]
3. Conditions of Underwriters' Obligations: The several obligations of the
Underwriters hereunder are subject to the accuracy of the warranties and
representations on the part of the Company on the date hereof and at the Time of
Purchase and to the following other conditions:
(a) That all legal proceedings to be taken and all legal opinions
to be rendered in connection with the issue and sale of the
[Unsecured Notes] shall be satisfactory in form and substance
to Dewey Ballantine LLP, counsel to the Underwriters.
(b) That, at the Time of Purchase, the Representative shall be
furnished with the following opinions, dated the day of the
Time of Purchase, with conformed copies or signed counterparts
thereof for the other Underwriters, with such changes therein
as may be agreed upon by the Company and the Representative
with the approval of Dewey Ballantine LLP, counsel to the
Underwriters:
(1) Opinion of Simpson Thacher & Bartlett and any of John
F. Di Lorenzo, Jr., Esq., Thomas G. Berkemeyer, Esq.,
Ann B. Graf, Esq., David C. House, Esq., or William
E. Johnson, Esq., counsel to the Company,
substantially in the forms attached hereto as
Exhibits A and B; and
(2) Opinion of Dewey Ballantine LLP, counsel to the
Underwriters, substantially in the form attached hereto
as Exhibit C.
(c) That the Representative shall have received a letter from
Deloitte & Touche LLP in form and substance satisfactory to
the Representative, dated as of the day of the Time of
Purchase, (i) confirming that they are independent public
accountants within the meaning of the Act and the
applicable published rules and regulations of the
Commission thereunder, (ii) stating that in their opinion
the financial statements audited by them and included or
incorporated by reference in the Registration Statement
complied as to form in all material respects with the then
applicable accounting requirements of the Commission,
including the applicable published rules and regulations of
the Commission and (iii) covering as of a date not more
than five business days prior to the day of the Time of
Purchase such other matters as the Representative
reasonably requests.
(d) That no amendment to the Registration Statement and that no
prospectus or prospectus supplement of the Company relating
to the [Unsecured Notes] and no document which would be
deemed incorporated in the Prospectus by reference filed
subsequent to the date hereof and prior to the Time of
Purchase shall contain material information substantially
different from that contained in the Registration Statement
which is unsatisfactory in substance to the Representative
or unsatisfactory in form to Dewey Ballantine LLP, counsel
to the Underwriters.
(e) That, at the Time of Purchase, an appropriate order of the
Kentucky Public Service Commission, necessary to permit the
sale of the [Unsecured Notes] to the Underwriters, shall be in
effect; and that, prior to the Time of Purchase, no stop order
with respect to the effectiveness of the Registration
Statement shall have been issued under the Act by the
Commission or proceedings therefor initiated.
(f) That, at the Time of Purchase, there shall not have been
any material adverse change in the business, properties or
financial condition of the Company from that set forth in
the Prospectus (other than changes referred to in or
contemplated by the Prospectus), and that the Company
shall, at the Time of Purchase, have delivered to the
Representative a certificate of an executive officer of the
Company to the effect that, to the best of his knowledge,
information and belief, there has been no such change.
(g) That the Company shall have performed such of its obligations
under this Agreement as are to be performed at or before the
Time of Purchase by the terms hereof.
4. Certain Covenants of the Company: In further consideration of the
agreements of the Underwriters herein contained, the Company covenants as
follows:
(a) As soon as practicable, and in any event within the time
prescribed by Rule 424 under the Act, to file any
Prospectus Supplement relating to the [Unsecured Notes]
with the Commission; as soon as the Company is advised
thereof, to advise the Representative and confirm the
advice in writing of any request made by the Commission for
amendments to the Registration Statement or the Prospectus
or for additional information with respect thereto or of
the entry of a stop order suspending the effectiveness of
the Registration Statement or of the initiation or threat
of any proceedings for that purpose and, if such a stop
order should be entered by the Commission, to make every
reasonable effort to obtain the prompt lifting or removal
thereof.
(b) To deliver to the Underwriters, without charge, as soon as
practicable (and in any event within 24 hours after the
date hereof), and from time to time thereafter during such
period of time (not exceeding nine months) after the date
hereof as they are required by law to deliver a prospectus,
as many copies of the Prospectus (as supplemented or
amended if the Company shall have made any supplements or
amendments thereto) as the Representative may reasonably
request; and in case any Underwriter is required to deliver
a prospectus after the expiration of nine months after the
date hereof, to furnish to any Underwriter, upon request,
at the expense of such Underwriter, a reasonable quantity
of a supplemental prospectus or of supplements to the
Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representative a copy, certified by the
Secretary or an Assistant Secretary of the Company, of the
Registration Statement as initially filed with the
Commission and of all amendments thereto (exclusive of
exhibits), and, upon request, to furnish to the
Representative sufficient plain copies thereof (exclusive
of exhibits) for distribution of one to the other
Underwriters.
(d) For such period of time (not exceeding nine months) after
the date hereof as they are required by law to deliver a
prospectus, if any event shall have occurred as a result of
which it is necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of
the circumstances when the Prospectus is delivered to a
purchaser, not contain any untrue statement of a material
fact or not omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein not misleading, forthwith to prepare and furnish,
at its own expense, to the Underwriters and to dealers
(whose names and addresses are furnished to the Company by
the Representative) to whom principal amounts of the
[Unsecured Notes] may have been sold by the Representative
for the accounts of the Underwriters and, upon request, to
any other dealers making such request, copies of such
amendments to the Prospectus or supplements to the
Prospectus.
(e) As soon as practicable, the Company will make generally
available to its security holders and to the Underwriters an
earnings statement or statement of the Company and its
subsidiaries which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the [Unsecured Notes]
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 [Unsecured Notes] by the respective
Underwriters) in connection with the issuance and delivery
of the [Unsecured Notes], except that the Company shall be
required to pay the fees and disbursements (other than
disbursements referred to in paragraph (f) of this Section
4) of Dewey Ballantine LLP, counsel to the Underwriters,
only in the events provided in paragraph (h) of this
Section 4, the Underwriters hereby agreeing to pay such
fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the
[Unsecured Notes] due to the failure of the Company to
comply with any of the conditions specified in Section 3
hereof, or, if this Agreement shall be terminated in
accordance with the provisions of Section 7 or 8 hereof, to
pay the fees and disbursements of Dewey Ballantine LLP,
counsel to the Underwriters, and, if the Underwriters shall
not take up and pay for the [Unsecured Notes] due to the
failure of the Company to comply with any of the conditions
specified in Section 3 hereof, to reimburse the
Underwriters for their reasonable out-of-pocket expenses,
in an aggregate amount not exceeding a total of $10,000,
incurred in connection with the financing contemplated by
this Agreement.
(i) The Company will timely file any certificate required by Rule
52 under the Public Utility Holding Company Act of 1935 in
connection with the sale of the [Unsecured Notes].
[(j) The Company will use its best efforts to list, subject to
notice of issuance, the [Unsecured Notes] on the New York
Stock Exchange.]
[(k) During the period from the date hereof and continuing to
and including the earlier of (i) the date which is after
the Time of Purchase on which the distribution of the
[Unsecured Notes] 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 [Unsecured Notes] of the Company or any
substantially similar securities of the Company without the
consent of the Representative.]
5. Warranties of and Indemnity by the Company: The Company represents and
warrants to, and agrees with you, as set forth below:
(a) the Registration Statement on its effective date complied,
or was deemed to comply, with the applicable provisions of
the Act and the rules and regulations of the Commission and
the Registration Statement at its effective date did not,
and at the Time of Purchase will not, contain any untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and the Basic Prospectus
at the time that the Registration Statement became
effective, and the Prospectus when first filed in
accordance with Rule 424(b) complies, and at the Time of
Purchase the Prospectus will comply, with the applicable
provisions of the Act and the Trust Indenture Act of 1939,
as amended, and the rules and regulations of the
Commission, the Basic Prospectus at the time that the
Registration Statement became effective, and the Prospectus
when first filed in accordance with Rule 424(b) did not,
and the Prospectus at the Time of Purchase will not,
contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading, except that the Company makes no warranty or
representation to the Underwriters with respect to any
statements or omissions made in the Registration Statement
or Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by, or
through the Representative on behalf of, any Underwriter
expressly for use in the Registration Statement, the Basic
Prospectus or Prospectus, or to any statements in or
omissions from that part of the Registration Statement that
shall constitute the Statement of Eligibility under the
Trust Indenture Act of 1939 of any indenture trustee under
an indenture of the Company.
(b) As of the Time of Purchase, the Indenture will have been
duly authorized by the Company and duly qualified under the
Trust Indenture Act of 1939, as amended, and, when executed
and delivered by the Trustee and the Company, will
constitute a legal, valid and binding instrument
enforceable against the Company in accordance with its
terms and such [Unsecured Notes] will have been duly
authorized, executed, authenticated and, when paid for by
the purchasers thereof, will constitute legal, valid and
binding obligations of the Company entitled to the benefits
of the Indenture, except as the enforceability thereof may
be limited by bankruptcy, insolvency, or other similar laws
affecting the enforcement of creditors' rights in general,
and except as the availability of the remedy of specific
performance is subject to general principles of equity
(regardless of whether such remedy is sought in a
proceeding in equity or at law), and by an implied covenant
of good faith and fair dealing.
(c) To the extent permitted by law, to indemnify and hold you
harmless and each person, if any, who controls you within
the meaning of Section 15 of the Act, against any and all
losses, claims, damages or liabilities, joint or several,
to which you, they or any of you or them may become subject
under the Act or otherwise, and to reimburse you and such
controlling person or persons, if any, for any legal or
other expenses incurred by you or them in connection with
defending any action, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based
upon any alleged untrue statement or untrue statement of a
material fact contained in the Registration Statement, in
the Basic Prospectus, or in the Prospectus, or if the
Company shall furnish or cause to be furnished to you any
amendments or any supplemental information, in the
Prospectus as so amended or supplemented other than
amendments or supplements relating solely to securities
other than the Notes (provided that if such Prospectus or
such Prospectus, as amended or supplemented, is used after
the period of time referred to in Section 4(b) hereof, it
shall contain such amendments or supplements as the Company
deems necessary to comply with Section 10(a) of the Act),
or arise out of or are based upon any alleged omission or
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein
not misleading, except insofar as such losses, claims,
damages, liabilities or actions arise out of or are based
upon any such alleged untrue statement or omission, or
untrue statement or omission which was made in the
Registration Statement, in the Basic Prospectus or in the
Prospectus, or in the Prospectus as so amended or
supplemented, in reliance upon and in conformity with
information furnished in writing to the Company by or
through you expressly for use therein or with any
statements in or omissions from that part of the
Registration Statement that shall constitute the Statement
of Eligibility under the Trust Indenture Act, of any
indenture trustee under an indenture of the Company, and
except that this indemnity shall not inure to your benefit
(or of any person controlling you) on account of any
losses, claims, damages, liabilities or actions arising
from the sale of the Notes to any person if such loss
arises from the fact that a copy of the Prospectus, as the
same may then be supplemented or amended to the extent such
Prospectus was provided to you by the Company (excluding,
however, any document then incorporated or deemed
incorporated therein by reference), was not sent or given
by you to such person with or prior to the written
confirmation of the sale involved and the alleged omission
or alleged untrue statement or omission or untrue statement
was corrected in the Prospectus as supplemented or amended
at the time of such confirmation, and such Prospectus, as
amended or supplemented, was timely delivered to you by the
Company. You agree promptly after the receipt by you of
written notice of the commencement of any action in respect
to which indemnity from the Company on account of its
agreement contained in this Section 5(c) may be sought by
you, or by any person controlling you, to notify the
Company in writing of the commencement thereof, but your
omission so to notify the Company of any such action shall
not release the Company from any liability which it may
have to you or to such controlling person otherwise than on
account of the indemnity agreement contained in this
Section 8(a). In case any such action shall be brought
against you or any such person controlling you and you
shall notify the Company of the commencement thereof, as
above provided, the Company shall be entitled to
participate in, and, to the extent that it shall wish,
including the selection of counsel (such counsel to be
reasonably acceptable to the indemnified party), to direct
the defense thereof at its own expense. In case the
Company elects to direct such defense and select such
counsel (hereinafter, "Company's counsel"), you or any
controlling person shall have the right to employ your own
counsel, but, in any such case, the fees and expenses of
such counsel shall be at your expense unless (i) the
Company has agreed in writing to pay such fees and expenses
or (ii) the named parties to any such action (including any
impleaded parties) include both you or any controlling
person and the Company and you or any controlling person
shall have been advised by your counsel that a conflict of
interest between the Company and you or any controlling
person may arise (and the Company's counsel shall have
concurred in good faith with such advice) and for this
reason it is not desirable for the Company's counsel to
represent both the indemnifying party and the indemnified
party (it being understood, however, that the Company shall
not, in connection with any one such action or separate but
substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys for
you or any controlling person (plus any local counsel
retained by you or any controlling person in their
reasonable judgment), which firm (or firms) shall be
designated in writing by you or any controlling person).
No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification
could be sought under this Section 5 (whether or not the
indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party
from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any
indemnified party. In no event shall any indemnifying
party have any liability or responsibility in respect of
the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened
action or claim effected without its prior written consent.
(d) The documents incorporated by reference in the Registration
Statement or Prospectus, when they were filed with the
Commission, complied in all material respects with the
applicable provisions of the 1934 Act and the rules and
regulations of the Commission thereunder, and as of such
time of filing, when read together with the Prospectus,
none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(e) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as
otherwise stated therein, there has been no material adverse
change in the business, properties or financial condition of
the Company.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) The consummation by the Company of the transactions
contemplated herein will not conflict with, or result in a
breach of any of the terms or provisions of, or constitute
a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets
of the Company under any contract, indenture, mortgage,
loan agreement, note, lease or other agreement or
instrument to which the Company is a party or by which it
may be bound or to which any of its properties may be
subject (except for conflicts, breaches or defaults which
would not, individually or in the aggregate, be materially
adverse to the Company or materially adverse to the
transactions contemplated by this Agreement.)
(h) No authorization, approval, consent or order of any court
or governmental authority or agency is necessary in
connection with the issuance and sale by the Company of the
Notes or the transactions by the Company contemplated in
this Agreement, except (A) such as may be required under
the 1933 Act or the rules and regulations thereunder; (B)
such as may be required under the Public Utility Holding
Company Act of 1935, as amended (the "1935 Act"); (C) the
qualification of the Indenture under the 1939 Act; (D) the
approval of The Indiana Utility Regulatory Commission; and
(E) such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities
or Blue Sky laws.
The Company's indemnity agreement contained in Section 5(c) hereof, and
its covenants, warranties and representations contained in this Agreement, shall
remain in full force and effect regardless of any investigation made by or on
behalf of any person, and shall survive the delivery of and payment for the
[Unsecured Notes] hereunder.
6. Warranties of and Indemnity by Underwriters:
(a) Each Underwriter warrants and represents that the information
furnished in writing to the Company through the Representative
for use in the Registration Statement, in the Basic
Prospectus, in the Prospectus, or in the Prospectus as amended
or supplemented is correct as to such Underwriter.
(b) Each Underwriter agrees, to the extent permitted by law, to
indemnify, hold harmless and reimburse the Company, its
directors and such of its officers as shall have signed the
Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of
the Act, to the same extent and upon the same terms as the
indemnity agreement of the Company set forth in Section
5(c) hereof, but only with respect to untrue statements or
alleged untrue statements or omissions or alleged omissions
made in the Registration Statement, or in the Basic
Prospectus, or in the Prospectus, or in the Prospectus as
so amended or supplemented, in reliance upon and in
conformity with information furnished in writing to the
Company by the Representative on behalf of such Underwriter
expressly for use therein. The Company agrees promptly
after the receipt by it of written notice of the
commencement of any action in respect to which indemnity
from you on account of your agreement contained in this
Section 6(b) may be sought by the Company, or by any person
controlling the Company, to notify you in writing of the
commencement thereof, but the Company's omission so to
notify you of any such action shall not release you from
any liability which you may have to the Company or to such
controlling person otherwise than on account of the
indemnity agreement contained in this Section 6(b).
The indemnity agreement on the part of each Underwriter contained in
Section 6(b) hereof, and the warranties and representations of such Underwriter
contained in this Agreement, shall remain in full force and effect regardless of
any investigation made by or on behalf of the Company or other person, and shall
survive the delivery of and payment for the [Unsecured Notes] 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
[Unsecured Notes] which it has agreed to purchase and pay for hereunder, and the
aggregate principal amount of [Unsecured Notes] 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 [Unsecured Notes], the
other Underwriters shall be obligated severally in the proportions which the
amounts of [Unsecured Notes] set forth opposite their names in Exhibit 1 hereto
bear to the aggregate principal amount of [Unsecured Notes] set forth opposite
the names of all such non-defaulting Underwriters, to purchase the [Unsecured
Notes] 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 [Unsecured Notes] 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 [Unsecured
Notes] without the written consent of such Underwriter. If any Underwriter or
Underwriters shall fail or refuse to purchase [Unsecured Notes] and the
aggregate principal amount of [Unsecured Notes] with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of the
[Unsecured Notes] then this Agreement shall terminate without liability on the
part of any defaulting Underwriter; provided, however, that the non-defaulting
Underwriters may agree, in their sole discretion, to purchase the [Unsecured
Notes] which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on the terms set forth herein. In the event the Company
shall be entitled to but shall not elect (within the time period specified
above) to exercise its rights under clause (a) and/or (b), then this Agreement
shall terminate. In the event of any such termination, the Company shall not be
under any liability to any Underwriter (except to the extent, if any, provided
in Section 4(h) hereof), nor shall any Underwriter (other than an Underwriter
who shall have failed or refused to purchase the [Unsecured Notes] 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 [Unsecured Notes] shall have been materially adversely affected
because:
(i) trading in securities on the New York Stock Exchange shall
have been generally suspended by the Commission or by the New York Stock
Exchange, 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 [Unsecured Notes] 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 Representative herein mentioned, if so named) and any party or
parties substituted pursuant to Section 7 hereof, and the term "Representative",
as used herein, shall be deemed to mean the representative or representatives
designated by, or in the manner authorized by, the Underwriters. All obligations
of the Underwriters hereunder are several and not joint. If there shall be only
one person, firm or corporation named in Exhibit 1 hereto, the term
"Underwriters" and the term "Representative", as used herein, shall mean such
person, firm or corporation. The term "successors" as used in this Agreement
shall not include any purchaser, as such purchaser, of any of the [Unsecured
Notes] from any of the respective Underwriters.
12. Conditions of the Company's Obligations: The obligations of the
Company hereunder are subject to the Underwriters' performance of their
obligations hereunder, and the further condition that at the Time of Purchase
the 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
EXHIBIT 1
Name Principal Amount
<PAGE>
Exhibit 4(a)
KENTUCKY POWER COMPANY
AND
BANKERS TRUST COMPANY,
AS TRUSTEE
--------------------
INDENTURE
Dated as of September 1, 1997
--------------------
CROSS-REFERENCE TABLE
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
310(a) 7.09
310(b) 7.08
7.10
310(c) Inapplicable
311(a) 7.13
311(b) 7.13
311(c) Inapplicable
312(a) 5.01
5.02(a)
312(b) 5.02(c)
5.02(d)
312(c) 5.02(e)
313(a) 5.04(a)
313(b) 5.04(b)
313(c) 5.04(a)
5.04(b)
313(d) 5.04(c)
314(a) 5.03
314(b) Inapplicable
314(c) 13.06(a)
314(d) Inapplicable
314(e) 13.06(b)
314(f) Inapplicable
315(a) 7.01(a)
7.02
315(b) 6.07
315(c) 7.01(a)
315(d) 7.01(b)
315(e) 6.08
316(a) 6.06
8.04
316(b) 6.04
316(c) 8.01
317(a) 6.02
317(b) 4.03
318(a) 13.08
<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
Authorized Officer................................2
Board of Directors................................3
Board Resolution..................................3
Business Day......................................3
Certificate.......................................3
Commission........................................3
Company...........................................3
Company Order.....................................3
Corporate Trust Office............................4
Default...........................................4
Depository........................................4
Discount Security.................................4
Dollar............................................4
Eligible Obligations..............................4
Event of Default..................................4
Global Security...................................5
Governmental Obligations..........................5
Governmental Authority............................5
Indenture.........................................5
Instructions......................................6
Interest .........................................6
Interest Payment Date.............................6
Officers' Certificate.............................6
Opinion of Counsel................................6
Outstanding.......................................6
Periodic Offering.................................7
Person............................................7
Place of Payment..................................7
Predecessor Security..............................7
Responsible Officer...............................7
Security..........................................8
Securityholder....................................8
Series............................................8
Tranche...........................................8
Trustee...........................................8
Trust Indenture Act...............................8
United States.....................................9
ARTICLE TWO - ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.01
Designation, terms, amount, authentication
and delivery of Securities.............................9
Section 2.02
Form of Security and Trustee's certificate............10
Section 2.03
Date and denominations of Securities, and
provisions for payment of principal,
premium and interest..................................11
Section 2.04
Execution of Securities...............................13
Section 2.05
Exchange of Securities................................15
(a) Registration and transfer of Securities..........15
(b) Security Register; Securities to be accom-
panied by proper instruments of transfer.........15
(c) Charges upon exchange, transfer or
registration of Securities.......................15
(d) Restrictions on transfer or exchange
at time of redemption............................16
Section 2.06
Temporary Securities..................................16
Section 2.07
Mutilated, destroyed, lost or stolen Securities.......16
Section 2.08
Cancellation of surrendered Securities................17
Section 2.09
Provisions of Indenture and Securities for sole
benefit of parties and Securityholders................18
Section 2.10
Appointment of Authenticating Agent...................18
Section 2.11
Global Security.......................................19
(a) Authentication and Delivery; Legend..............19
(b) Transfer of Global Security......................19
(c) Issuance of Securities in Definitive Form........19
Section 2.12
Payment in Proper Currency............................20
Section 2.13
Identification of Securities..........................20
ARTICLE THREE - REDEMPTION OF SECURITIES AND
SINKING FUND PROVISIONS
Section 3.01
Redemption of Securities..............................20
Section 3.02
(a) Notice of redemption.............................21
(b) Selection of Securities in case less than
all Securities to be redeemed....................22
Section 3.03
(a) When Securities called for redemption
become due and payable...........................22
(b) Receipt of new Security upon partial payment.....23
Section 3.04
Sinking Fund for Securities...........................23
Section 3.05
Satisfaction of Sinking Fund Payments with
Securities............................................23
Section 3.06
Redemption of Securities for Sinking Fund.............23
ARTICLE FOUR - PARTICULAR COVENANTS OF THE COMPANY
Section 4.01
Payment of principal (and premium if any)
and interest on Securities............................24
Section 4.02
Maintenance of office or agency for payment of
Securities, designation of office or agency for
payment, registration, transfer and exchange
of Securities.........................................24
Section 4.03
(a) Duties of paying agent...........................25
(b) Company as paying agent..........................25
(c) Holding sums in trust............................26
Section 4.04
Appointment to fill vacancy in office of Trustee......26
Section 4.05
Restriction on consolidation, merger or sale..........26
ARTICLE FIVE - SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 5.01
Company to furnish Trustee information as to
names and addresses of Securityholders................26
Section 5.02
(a)..Trustee to preserve information as to
.....names and addresses of Securityholders
received by it in capacity of paying agent.......26
(b) Trustee may destroy list of Security-
holders on certain conditions....................27
(c) Trustee to make information as to names
and addresses of Securityholders available
to "applicants" to mail communications to
Securityholders in certain circumstances.........27
(d) Procedure if Trustee elects not to make
information available to applicants..............27
(e) Company and Trustee not accountable
for disclosure of information....................28
Section 5.03
(a) Annual and other reports to be filed by
Company with Trustee.............................28
(b) Additional information and reports to be
filed with Trustee and Securities and
Exchange Commission..............................28
(c) Summaries of information and reports to be
transmitted by Company to Securityholders........29
(d) Annual Certificate to be furnished
to Trustee.......................................29
(e) Effect of Delivery to Trustee....................29
Section 5.04
(a) Trustee to transmit annual report
to Securityholders...............................29
(b) Trustee to transmit certain further
reports to Securityholders.......................30
(c) Copies of reports to be file with stock
exchanges and Securities and
Exchange Commission..............................31
ARTICLE SIX - REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.01
(a) Events of default defined........................31
(b) Acceleration of maturity upon
Event of Default.................................32
(c) Waiver of default and rescission of
declaration of maturity..........................32
(d) Restoration of former position and
rights upon curing default.......................33
Section 6.02
(a) Covenant of Company to pay to Trustee
whole amount due on Securities on default
in payment of interest or principal
(and premium, if any)............................33
(b) Trustee may recover judgment for whole
amount due on Securities on failure of
Company to pay...................................33
(c) Billing of proof of claim by Trustee in
bankruptcy, reorganization or receivership
proceeding.......................................34
(d) Rights of action and of asserting claims
may be enforced by Trustee without
possession of Securities.........................34
Section 6.03
Application of monies collected by Trustee............35
Section 6.04
Limitation on suits by holders of Securities..........35
Section 6.05
(a) Remedies Cumulative..............................36
(b) Delay or omission in exercise of rights
not waiver of default............................36
Section 6.06
Rights of holders of majority in principal
amount of Securities to direct trustee and
to waive defaults.....................................36
Section 6.07
Trustees to give notice of defaults known to
it, but may withhold in certain circumstances.........37
Section 6.08
Requirements of an undertaking to pay costs
in certain suits under Indenture or against
Trustee...............................................38
ARTICLE SEVEN - CONCERNING THE TRUSTEE
Section 7.01
(a)..Upon Event of Default occurring and
continuing, Trustee shall exercise powers
vested in it, and use same degree of care
and skill in their exercise, as prudent
individual will use..............................38
(b) Trustee not relieved from liability for
negligence or willful misconduct except
as provided in this section......................39
(1)..Prior to Event of Default and
.....after the curing of all Events of
.....Default which may have occurred
.....(i) Trustee not liable except for
..... performance of duties specifically
..... set forth
.....(ii) In absence of bad faith, Trustee
..... may conclusively rely on
..... certificates or opinions furnished
..... it hereunder,subject to duty to
..... examine the same if specifically
..... required to be furnished to it
(2)..Trustee not liable for error of judgment made
in good faith by Responsible Officer unless
Trustee negligent
(3)..Trustee not liable for action or non-action
in accordance with direction of holders of
majority in principal amount of Securities
(4)..Trustee need not expend own funds without
adequate indemnity
Section 7.02
Subject to provisions of Section 7.01:
(a) Trustee may rely on documents believed
genuine and properly signed or presented.........40
(b) Sufficient evidence by certain
instruments provided for.........................40
(c) Trustee may consult with counsel and act
on advice or Opinion of Counsel..................40
(d) Trustee may require indemnity from
Securityholders..................................40
(e) Trustee not liable for actions in good
faith believed to be authorized..................41
(f) Trustee not bound to investigate facts or
matters stated in certificates, etc. unless
requested in writing by Securityholders..........41
(g) Trustee may perform duties directly or
through agents or attorneys......................41
(h) Permissive rights of Trustee.....................41
Section 7.03
(a) Trustee not liable for recitals in
Indenture or in Securities.......................41
(b) No representations by Trustee as to
validity or Indenture or of Securities...........41
(c) Trustee not accountable for use of
Securities or proceeds...........................41
Section 7.04
Trustee, paying agent or Security
Registrar may own Security............................42
Section 7.05
Monies received by Trustee to be held
in Trust without interest.............................42
Section 7.06
(a)..Trustee entitled to compensation,
reimbursement and indemnity......................42
(b) Obligations to Trustee to be secured by
lien prior to Securities.........................42
(c) Nature of Expenses...............................43
(d) Survival of Obligations..........................43
Section 7.07
Right of Trustee to rely on certificate
of officers of Company where no other
evidence specifically prescribed......................43
Section 7.08
Trustee acquiring conflicting interest
to eliminate conflict or resign.......................43
Section 7.09
Requirements for eligibility of trustee...............43
Section 7.10
(a)..Resignation of Trustee and appointment
of successor.....................................44
(b) Removal of Trustee by Company or by
court on Securityholders' application............45
(c) Removal of Trustee by holders of majority
in principal amount of Securities................45
(d) Time when resignation or removal
of Trustee effective.............................45
(e) One Trustee for each series......................45
Section 7.11
(a) Acceptance by successor Trustee..................45
(b) Trustee with respect to less than all series.....45
(c) Company to confirm Trustee's rights..............46
(d) Successor Trustee to be qualified................46
(e) Notice of succession.............................46
Section 7.12
Successor to Trustee by merger, consolidation
of succession to business.............................47
Section 7.13
Limitations on rights of Trustee as a creditor
to obtain payment of certain claims...................47
ARTICLE EIGHT - CONCERNING THE SECURITYHOLDERS
Section 8.01
Evidence of action by Securityholders.................47
Section 8.02
Proof of execution of instruments and of
holding of Securities.................................48
Section 8.03
Who may be deemed owners of Securities................48
Section 8.04
Securities owned by Company or controlled
or controlling companies disregarded for
certain purposes......................................48
Section 8.05
Instruments executed by Securityholders
bind future holders...................................49
ARTICLE NINE - SUPPLEMENTAL INDENTURES
Section 9.01
Purposes for which supplemental indenture may be
entered into without consent of Securityholders.......49
Section 9.02
Modification of Indenture with consent of
Securityholders.......................................52
Section 9.03
Effect of supplemental indentures.....................53
Section 9.04
Securities may bear notation of changes
by supplemental indentures............................54
Section 9.05
Opinion of Counsel....................................54
ARTICLE TEN - CONSOLIDATION, MERGER AND SALE
Section 10.01
Consolidations or mergers of Company and sales
or conveyances of property of Company permitted.......54
Section 10.02
(a) Rights and duties of successor company...........55
(b) Appropriate changes may be made in
phraseology and form of Securities...............55
(c) Company may consolidate or merge into itself
or acquire properties of other corporations......55
Section 10.03
Opinion of Counsel....................................56
ARTICLE ELEVEN - DEFEASANCE AND CONDITIONS TO DEFEASANCE;
UNCLAIMED MONIES
Section 11.01
Defeasance and conditions to defeasance...............56
Section 11.02
Application by Trustee of funds deposited
for payment of Securities.............................57
Section 11.03
Repayment of monies held by paying agent..............57
Section 11.04
Repayment of monies held by Trustee...................58
Section 11.05
Delivery of Officer's Certificate and Opinion
of Counsel............................................58
ARTICLE TWELVE - IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 12.01
Incorporators, Stockholders, officers and
directors of Company exempt from individual
liability.............................................58
ARTICLE THIRTEEN - MISCELLANEOUS PROVISIONS
Section 13.01
Successors and assigns of Company bound
by Indenture..........................................59
Section 13.02
Acts of board, committee or officer of
successor company valid...............................59
Section 13.03
Surrender of powers by Company........................59
Section 13.04
Required notices or demands may by served
by mail...............................................59
Section 13.05
Indenture and Securities to be construed in
accordance with laws of the State of New York.........59
Section 13.06
(a)..Officers' Certificate and Opinion of
.....Counsel to be furnished upon applications
or demands by company............................60
(b) Statements to be included in each
certificate or opinion with respect
to compliance with condition or covenant.........60
Section 13.07
Payments due on non-Business Days.....................60
Section 13.08
Provisions required by Trust Indenture
Act of 1939 to control................................60
Section 13.09
Indenture may be executed in counterparts.............60
Section 13.10
Separability of Indenture provisions..................60
Section 13.11
Assignment by Company to subsidiary...................61
Section 13.12
Headings..............................................61
Section 13.13
Securities in Foreign Currencies......................61
ACCEPTANCE OF TRUST BY TRUSTEE...................................62
TESTIMONIUM......................................................62
SIGNATURES AND SEALS.............................................62
ACKNOWLEDGEMENTS.................................................63
......THIS INDENTURE, dated as of the 1st day of September, 1997, 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 or other evidences of indebtedness
(hereinafter referred to as the "Securities"), in an unlimited aggregate
principal amount to be issued from time to time in one or more series as in this
Indenture provided, as registered Securities without coupons, to be
authenticated by the certificate of the Trustee, and which will rank pari passu
with all other unsecured and unsubordinated debt of the Company;
......WHEREAS, to provide the terms and conditions upon which the Securities are
to be authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture;
......WHEREAS, the Securities and the certificate of authentication to be borne
by the Securities (the "Certificate of Authentication") are to be substantially
in such forms as may be approved by a Company Order (as defined below), or set
forth in this Indenture or in any indenture supplemental to this Indenture;
......AND WHEREAS, all acts and things necessary to make the Securities issued
pursuant hereto, when executed by the Company and authenticated and delivered by
the Trustee as in this Indenture provided, the valid, binding and legal
obligations of the Company, and to constitute these presents a valid indenture
and agreement according to its terms, have been done and performed or will be
done and performed prior to the issuance of such Securities, and the execution
of this Indenture has been and the issuance hereunder of the Securities has been
or will be prior to issuance in all respects duly authorized, and the Company,
in the exercise of the legal right and power in it vested, executes this
Indenture and proposes to make, execute, issue and deliver the Securities;
......NOW, THEREFORE, THIS INDENTURE WITNESSETH:
......That in order to declare the terms and conditions upon which the
Securities are and are to be authenticated, issued and delivered, and in
consideration of the premises, of the purchase and acceptance of the Securities
by the holders thereof and of the sum of one dollar ($1.00) to it duly paid by
the Trustee at the execution of these presents, the receipt whereof is hereby
acknowledged, the Company covenants and agrees with the Trustee, for the equal
and proportionate benefit (subject to the provisions of this Indenture) of the
respective holders from time to time of the Securities, without any
discrimination, preference or priority of any one Security over any other by
reason of priority in the time of issue, sale or negotiation thereof, or
otherwise, except as provided herein, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01...The terms defined in this Section (except as in this
Indenture otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture, any Company Order, any Board Resolution, and
any indenture supplemental hereto shall have the respective meanings specified
in this Section. All other terms used in this Indenture which are defined in the
Trust Indenture Act of 1939, as amended, or which are by reference in such Act
defined in the Securities Act 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 Securities, as the case may be, appointed with
respect to all or any series of the Securities, as the case may be, by the
Trustee pursuant to Section 2.10.
Authorized Officer:
The term "Authorized Officer" shall mean the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant Treasurer or any
other officer or agent of the Company duly authorized by the Board of Directors
to act in respect of matters relating to this Indenture.
Board of Directors or Board:
The term "Board of Directors" or "Board" shall mean the Board of Directors of
the Company, or any duly authorized committee of such Board.
Board Resolution:
The term "Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification.
Business Day:
The term "Business Day", with respect to any Security, shall mean any day that
(a) in the Place of Payment (or in any of the Places of Payment, if more than
one) in which amounts are payable as specified in the form of such Security and
(b) in the city in which the Trustee administers its corporate trust business,
is not a day on which banking institutions are authorized or required by law or
regulation to close.
Certificate:
The term "Certificate" shall mean a certificate signed by an Authorized Officer.
The Certificate need not comply with the provisions of Section 13.06.
Commission:
The term "Commission" shall mean the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") or if at any time after the execution of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body, if any, performing
such duties on such date.
Company:
The term "Company" shall mean 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 an Authorized Officer and the Secretary or an Assistant Secretary of
the Company, pursuant to a Board Resolution establishing a series of Securities.
Corporate Trust Office:
The term "Corporate Trust Office" shall mean the office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of the execution of this Indenture is
located at 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 Securities of any series, for
which the Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Exchange Act or other applicable statute or regulation, which, in each case,
shall be designated by the Company pursuant to either Section 2.01 or 2.11.
Discount Security:
The term "Discount Security" means any Security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the maturity thereof pursuant to Section 6.01(b).
Dollar:
The term "Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
Eligible Obligations:
The term "Eligible Obligations" means (a) with respect to Securities denominated
in Dollars, Governmental Obligations; or (b) with respect to Securities
denominated in a currency other than Dollars or in a composite currency, such
other obligations or instruments as shall be specified with respect to such
Securities, as contemplated by Section 2.01.
Event of Default:
The term "Event of Default" with respect to Securities of a particular series
shall mean any event specified in Section 6.01, continued for the period of
time, if any, therein designated.
Global Security:
The term "Global Security" shall mean, with respect to any series of Securities,
a Security executed by the Company and authenticated and delivered by the
Trustee to the Depository or pursuant to the Depository's instruction, all in
accordance with the Indenture, which shall be registered in the name of the
Depository or its nominee.
Governmental Authority:
The term "Governmental Authority" means the government of the United States or
of any State or Territory thereof or of the District of Columbia or of any
county, municipality or other political subdivision of any of the foregoing, or
any department, agency, authority or other instrumentality of any of the
foregoing.
Governmental Obligations:
The term "Governmental Obligations" shall mean securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States,
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act of 1933, as amended) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on any
such Governmental Obligation held by such custodian for the account of the
holder of such depository receipt; provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by such
custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depository receipt.
Indenture:
The term "Indenture" shall mean this instrument as originally executed, or, if
amended or supplemented as herein provided, as so amended or supplemented, and
shall include the terms of a particular series of Securities established as
contemplated by Section 2.01.
Instructions:
The term "Instructions" shall mean instructions acceptable to the Trustee issued
pursuant to a Company Order in connection with a Periodic Offering and signed by
an Authorized Officer. Instructions need not comply with the provisions of
Section 13.06.
Interest:
The term "interest" when used with respect to non-interest bearing Securities
shall mean interest payable after maturity (whether at stated maturity, upon
acceleration or redemption or otherwise) or after the date, if any, on which the
Company becomes obligated to acquire a Security, whether by purchase or
otherwise.
Interest Payment Date:
The term "Interest Payment Date" when used with respect to any installment of
interest on a Security of a particular series shall mean the date specified in
such Security or in a Board Resolution, Company Order or an indenture
supplemental hereto with respect to such series as the fixed date on which an
installment of interest with respect to Securities of that series is due and
payable.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by an
Authorized Officer and by the Secretary or Assistant Secretary of the Company.
Each such certificate shall include the statements provided for in Section
13.06, if and to the extent required by the provisions thereof.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed by legal
counsel, who may be an employee of or counsel for the Company. Each such opinion
shall include the statements provided for in Section 13.06, if and to the extent
required by the provisions thereof.
Outstanding:
The term "outstanding", when used with reference to Securities of any series,
shall, subject to the provisions of Section 8.04, mean, as of any particular
time, all Securities of that series theretofore authenticated and delivered by
the Trustee under this Indenture, except (a) Securities theretofore canceled by
the Trustee or any paying agent, or delivered to the Trustee or any paying agent
for cancellation or which have previously been canceled; (b) Securities or
portions thereof for the payment or redemption of which monies or Eligible
Obligations in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been set
aside and segregated in trust by the Company (if the Company shall act as its
own paying agent); provided, however, that if such Securities or portions of
such Securities are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as in Article Three provided, or provision
satisfactory to the Trustee shall have been made for giving such notice; and (c)
Securities in lieu of or in substitution for which other Securities shall have
been authenticated and delivered pursuant to the terms of Section 2.07. The
principal amount of a Discount Security that shall be deemed to be Outstanding
for purposes of this Indenture shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof.
Periodic Offering:
The term "Periodic Offering" means an offering of Securities of a series from
time to time, during which any or all of the specific terms of the Securities,
including without limitation the rate or rates of interest, if any, thereon, the
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents upon the
issuance of such Securities.
Person:
The term "person" means any individual, corporation, partnership, limited
liability company, joint venture, trust or unincorporated organization or any
Governmental Authority.
Place of Payment:
The term "Place of Payment" shall mean the place or places where the principal
of and interest, if any, on the Securities of any series are payable as
specified in accordance with Section 2.01.
Predecessor Security:
The term "Predecessor Security" of any particular Security shall mean every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 2.07 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
Responsible Officer:
The term "Responsible Officer" when used with respect to the Trustee shall mean
the chairman of the board of directors, the president, any vice president, the
secretary, the treasurer, any trust officer, any corporate trust officer or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.
Security or Securities:
The term "Security" or "Securities" shall mean any Security or Securities, as
the case may be, authenticated and delivered under this Indenture.
Securityholder:
The term "Securityholder", "holder of Securities" or "registered holder" shall
mean the person or persons in whose name or names a particular Security shall be
registered on the books of the Company kept for that purpose in accordance with
the terms of this Indenture.
Series:
The term "series" means a series of Securities established pursuant to this
Indenture and includes, if the context so requires, each Tranche thereof.
Tranche:
The term "Tranche" means Securities which (a) are of the same series and (b)
have identical terms except as to principal amount and/or date of issuance.
Trustee:
The term "Trustee" shall mean 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 Securities shall mean the trustee with respect to
that series.
Trust Indenture Act:
The term "Trust Indenture Act", subject to the provisions of Sections 9.01,
9.02, and 10.01, shall mean the Trust Indenture Act of 1939, as amended and in
effect at the date of execution of this Indenture.
United States:
The term "United States" means the United States of America, its Territories,
its possessions and other areas subject to its political jurisdiction.
ARTICLE TWO
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01...The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series and
in one or more Tranches thereof. Each series shall be authorized by a Company
Order or Orders or one or more indentures supplemental hereto, which shall
specify whether the Securities of such series shall be subject to a Periodic
Offering. The Company Order or Orders or supplemental indenture and, in the case
of a Periodic Offering, Instructions or other procedures acceptable to the
Trustee specified in such Company Order or Orders, shall establish the terms of
the series, which may include the following: (i) any limitations on the
aggregate principal amount of the Securities to be authenticated and delivered
under this Indenture as part of such series (except for Securities authenticated
and delivered upon registration of transfer of, in exchange for or in lieu of
other Securities of that series); (ii) the stated maturity or maturities of such
series; (iii) the date or dates from which interest shall accrue, the Interest
Payment Dates on which such interest will be payable or the manner of
determination of such Interest Payment Dates and the record date for the
determination of holders to whom interest is payable on any such Interest
Payment Date; (iv) the interest rate or rates (which may be fixed or variable),
or method of calculation of such rate or rates, for such series; (v) the terms,
if any, regarding the redemption, purchase or repayment of such series (whether
at the option of the Company or a holder of the Securities of such series and
whether pursuant to a sinking fund or analogous provisions, including payments
made in cash in anticipation of future sinking fund obligations), including
redemption, purchase or repayment date or dates of such series, if any, and the
price or prices and other terms and conditions applicable to such redemption,
purchase or repayment (including any premium); (vi) whether or not the
Securities of such series shall be issued in whole or in part in the form of a
Global Security and, if so, the Depositary for such Global Security and the
related procedures with respect to transfer and exchange of such Global
Security; (vii) the designation of such series; (viii) the form of the
Securities of such series; (ix) the maximum annual interest rate, if any, of the
Securities permitted for such series; (x) whether the Securities of such series
shall be subject to Periodic Offering; (xi) the currency or currencies,
including composite currencies, in which payment of the principal of (and
premium, if any) and interest on the Securities of such series shall be payable,
if other than Dollars; (xii) any other information necessary to complete the
Securities of such series; (xiii) the establishment of any office or agency
pursuant to Section 4.02 hereof and any other place or places which the
principal of and interest, if any, on Securities of that series shall be
payable; (xiv) if other than denominations of $1,000 or any integral multiple
thereof, the denominations in which the Securities of the series shall be
issuable; (xv) the obligations or instruments, if any, which shall be considered
to be Eligible Obligations in respect of the Securities of such series
denominated in a currency other than Dollars or in a composite currency; (xvi)
whether or not the Securities of such series shall be issued as Discount
Securities and the terms thereof, including the portion of the principal amount
thereof which shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.01(b); (xvii) if the principal of and premium, if
any, or interest, if any, on such Securities are to be payable, at the election
of the Company or the holder thereof, in coin or currency, including composite
currencies, other than that in which the Securities are stated to be payable,
the period or periods within which, and the terms and conditions upon which,
such election shall be made; (xviii) if the amount of payment of principal of
and premium, if any, or interest, if any, on such Securities may be determined
with reference to an index, formula or other method, or based on a coin or
currency other than that in which the Securities are stated to be payable, the
manner in which such amount shall be determined; and (xix) any other terms of
such series not inconsistent with this Indenture.
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to any
such Company Order or in any indentures supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Company Order, a copy of an appropriate record of the applicable Board
Resolution shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order setting forth the terms of that series.
SECTION 2.02...The Securities of any series shall be substantially of the
tenor and purport (i) as set forth in one or more indentures supplemental hereto
or as provided in a Company Order, or (ii) with respect to any Tranche of
Securities of a series subject to Periodic Offering, to the extent permitted by
any of the documents referred to in clause (i) above, in Instructions, or by
other procedures acceptable to the Trustee specified in such Company Order or
Orders, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved thereon as the
Company may deem appropriate and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which Securities of that series may be listed or of the Depository,
or to conform to usage.
The Trustee's Certificate of Authentication shall be in substantially the
following form:
"This is one of the Securities of the series designated
in accordance with, and referred to in, the
within-mentioned Indenture.
Dated:
BANKERS TRUST COMPANY
By:___________________________
Authorized Signatory"
SECTION 2.03...The Securities shall be issuable as registered Securities
and in the denominations of $1,000 or any integral multiple thereof, subject to
Sections 2.01(xi) and (xiv). The Securities of a particular series shall bear
interest payable on the dates and at the rate or rates specified with respect to
that series. Except as otherwise specified as contemplated by Section 2.01, the
principal of and the interest on the Securities of any series, as well as any
premium thereon in case of redemption thereof prior to maturity, shall be
payable in Dollars at the office or agency of the Company maintained for that
purpose. Each Security shall be dated the date of its authentication.
The interest installment on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for
Securities of that series shall be paid to the person in whose name said
Security (or one or more Predecessor Securities) is registered at the close of
business on the regular record date for such interest installment, except that
interest payable on redemption or maturity shall be payable as set forth in the
Company Order or indenture supplemental hereto establishing the terms of such
series of Securities. Except as otherwise specified as contemplated by Section
2.01, interest on Securities will be computed on the basis of a 360-day year of
twelve 30-day months.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date for Securities of the same
series (herein called "Defaulted Interest") shall forthwith cease to be payable
to the registered holder on the relevant regular record date by virtue of having
been such holder; and such Defaulted Interest shall be paid by the Company, at
its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Securities to the persons in whose names such Securities (or their
respective Predecessor Securities) are registered at the close of business
on a special record date for the payment of such Defaulted Interest, which
shall be fixed in the following manner: the Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each such Security and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a special record date for the payment of such Defaulted
Interest which shall not be more than 15 nor less than 10 days prior to
the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such special record date and, in the
name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the special record date therefor to
be mailed, first class postage prepaid, to each Securityholder at his or
her address as it appears in the Security Register (as hereinafter
defined), not less than 10 days prior to such special record date. Notice
of the proposed payment of such Defaulted Interest and the special record
date therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the persons in whose names such Securities (or their
respective Predecessor Securities) are registered on such special record
date and shall be no longer payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on any
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Unless otherwise set forth in a Company Order or one or more indentures
supplemental hereto establishing the terms of any series of Securities pursuant
to Section 2.01 hereof, the term "regular record date" as used in this Section
with respect to a series of Securities with respect to any Interest Payment Date
for such series shall mean either the fifteenth day of the month immediately
preceding the month in which an Interest Payment Date established for such
series pursuant to Section 2.01 hereof shall occur, if such Interest Payment
Date is the first day of a month, or the last day of the month immediately
preceding the month in which an Interest Payment Date established for such
series pursuant to Section 2.01 hereof shall occur, if such Interest Payment
Date is the fifteenth day of a month, whether or not such date is a Business
Day.
Subject to the foregoing provisions of this Section, each Security of a
series delivered under this Indenture upon transfer of or in exchange for or in
lieu of any other Security of such series shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 2.04...The Securities shall, subject to the provisions of Section
2.06, be printed on steel engraved borders or fully or partially engraved, or
legibly typed, as the proper officer of the Company may determine, and shall be
signed on behalf of the Company by an Authorized Officer. The signature of such
Authorized Officer upon the Securities may be in the form of a facsimile
signature of a present or any future Authorized Officer and may be imprinted or
otherwise reproduced on the Securities and for that purpose the Company may use
the facsimile signature of any person who shall have been an Authorized Officer,
notwithstanding the fact that at the time the Securities shall be authenticated
and delivered or disposed of such person shall have ceased to be an Authorized
Officer.
Only such Securities as shall bear thereon a Certificate of Authentication
substantially in the form established for such Securities, executed manually by
an authorized signatory of the Trustee, or by any Authenticating Agent with
respect to such Securities, shall be entitled to the benefits of this Indenture
or be valid or obligatory for any purpose. Such certificate executed by the
Trustee, or by any Authenticating Agent appointed by the Trustee with respect to
such Securities, upon any Security executed by the Company shall be conclusive
evidence that the Security so authenticated has been duly authenticated and
delivered hereunder and that the registered holder thereof is entitled to the
benefits of this Indenture.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with an indenture
supplemental hereto or a Company Order for the authentication and delivery of
such Securities and the Trustee, in accordance with such supplemental indenture
or Company Order, shall authenticate and deliver such Securities; provided,
however, that in the case of Securities offered in a Periodic Offering, the
Trustee shall authenticate and deliver such Securities from time to time in
accordance with Instructions or such other procedures acceptable to the Trustee
as may be specified by or pursuant to such supplemental indenture or Company
Order delivered to the Trustee prior to the time of the first authentication of
Securities of such series.
In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall receive and (subject to Section 7.01) shall be fully protected in
relying upon, (i) an Opinion of Counsel and (ii) and Officers' Certificate, each
stating that the form and terms thereof have been established in conformity with
the provisions of this Indenture; provided, however, that, with respect to
Securities of a series subject to a Periodic Offering, the Trustee shall be
entitled to receive such Opinion of Counsel and Officers' Certificate only once
at or prior to the time of the first authentication of Securities of such series
and that, in such opinion or certificate, the opinion or certificate described
above may state that when the terms of such Securities, or each Tranche thereof,
shall have been established pursuant to a Company Order or Orders or pursuant to
such procedures acceptable to the Trustee, as may be specified by a Company
Order, such terms will have been established in conformity with the provisions
of this Indenture. Each Opinion of Counsel and Officers' Certificate delivered
pursuant to this Section 2.04 shall include all statements prescribed in Section
13.06(b). Such Opinion of Counsel shall also be to the effect that when such
Securities have been executed by the Company and authenticated by the Trustee in
accordance with the provisions of this Indenture and delivered to and duly paid
for by the purchasers thereof, they will be valid and legally binding
obligations of the Company, enforceable in accordance with their terms (subject
to customary exceptions) and will be entitled to the benefits of this Indenture.
With respect to Securities of a series subject to a Periodic Offering, the
Trustee may conclusively rely, as to the authorization by the Company of any of
such Securities, the forms and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Company Order, Opinion of Counsel,
Officers' Certificate and other documents delivered pursuant to Sections 2.01
and this Section, as applicable, at or prior to the time of the first
authentication of Securities of such series unless and until such Company Order,
Opinion of Counsel, Officers' Certificate or other documents have been
superseded or revoked or expire by their terms.
The Trustee shall not be required to authenticate such Securities if the
issue of such Securities pursuant to this Indenture will affect the Trustee's
own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
SECTION 2.05...(a) Securities of any series may be exchanged upon
presentation thereof at the office or agency of the Company designated for such
purpose, for other Securities of such series of authorized denominations, and
for a like aggregate principal amount, upon payment of a sum sufficient to cover
any tax or other governmental charge in relation thereto, all as provided in
this Section. In respect of any Securities so surrendered for exchange, the
Company shall execute, the Trustee shall authenticate and such office or agency
shall deliver in exchange therefor the Security or Securities of the same series
which the Securityholder making the exchange shall be entitled to receive,
bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or agency
designated for such purpose in the Borough of Manhattan, the City and State of
New York, or such other location designated by the Company a register or
registers (herein referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall register the
Securities and the transfers of Securities as in this Article provided and which
at all reasonable times shall be open for inspection by the Trustee. The
registrar for the purpose of registering Securities and transfer of Securities
as herein provided shall be appointed as authorized by Board Resolution or
Company Order (the "Security Registrar").
Upon surrender for transfer of any Security at the office or agency of the
Company designated for such purpose in the Borough of Manhattan, the City and
State of New York, or other location as aforesaid, the Company shall execute,
the Trustee shall authenticate and such office or agency shall deliver in the
name of the transferee or transferees a new Security or Securities of the same
series as the Security presented for a like aggregate principal amount.
All Securities presented or surrendered for exchange or registration of
transfer, as provided in this Section, shall be accompanied (if so required by
the Company or the Security Registrar) by a written instrument or instruments of
transfer, in form satisfactory to the Company or the Security Registrar, duly
executed by the registered holder or by his duly authorized attorney in writing.
(c) Except as provided in the first paragraph of Section 2.07, no service
charge shall be made for any exchange or registration of transfer of Securities,
or issue of new Securities in case of partial redemption of any series, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, other than exchanges pursuant to
Section 2.06, Section 3.03(b) and Section 9.04 not involving any transfer.
(d) The Company shall neither be required (i) to issue, exchange or
register the transfer of any Securities during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
less than all the outstanding Securities of the same series and ending at the
close of business on the day of such mailing, nor (ii) to register the transfer
of or exchange any Securities of any series or portions thereof called for
redemption or as to which the holder thereof has exercised its right, if any, to
require the Company to repurchase such Security in whole or in part, except that
portion of such Security not required to be repurchased. The provisions of this
Section 2.05 are, with respect to any Global Security, subject to Section 2.11
hereof.
SECTION 2.06...Pending the preparation of definitive Securities of any
series, the Company may execute, and the Trustee shall authenticate and deliver,
temporary Securities (printed, lithographed or typewritten) of any authorized
denomination, and substantially in the form of the definitive Securities in lieu
of which they are issued, but with such omissions, insertions and variations as
may be appropriate for temporary Securities, all as may be determined by the
Company. Every temporary Security of any series shall be executed by the Company
and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities of such series in accordance with Section 2.04. Without unnecessary
delay the Company will execute and will furnish definitive Securities of such
series and thereupon any or all temporary Securities of such series may be
surrendered in exchange therefor (without charge to the holders thereof), at the
office or agency of the Company designated for the purpose, and the Trustee
shall authenticate and such office or agency shall deliver in exchange for such
temporary Securities an equal aggregate principal amount of definitive
Securities of such series, unless the Company advises the Trustee to the effect
that definitive Securities need not be executed and furnished until further
notice from the Company. Until so exchanged, the temporary Securities of such
series shall be entitled to the same benefits under this Indenture as definitive
Securities of such series authenticated and delivered hereunder.
SECTION 2.07...In case any temporary or definitive Security shall become
mutilated or be destroyed, lost or stolen, the Company (subject to the next
succeeding sentence) shall execute, and upon its request the Trustee (subject as
aforesaid) shall authenticate and deliver, a new Security of the same series
bearing a number not contemporaneously outstanding, in exchange and substitution
for the mutilated Security, or in lieu of and in substitution for the Security
so destroyed, lost or stolen. In every case the applicant for a substituted
Security shall furnish to the Company and to the Trustee such security or
indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and to the Trustee evidence to their satisfaction of the
destruction, loss or theft of the applicant's Security and of the ownership
thereof. The Trustee may authenticate any such substituted Security and deliver
the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substituted Security, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith. In case any Security
which has matured or is about to mature shall become mutilated or be destroyed,
lost or stolen, the Company may, instead of issuing a substitute Security, pay
or authorize the payment of the same (without surrender thereof except in the
case of a mutilated Security) if the applicant for such payment shall furnish to
the Company and to the Trustee such security or indemnity as they may require to
save them harmless, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft of
such Security and of the ownership thereof.
Every Security issued pursuant to the provisions of this Section in
substitution for any Security which is mutilated, destroyed, lost or stolen
shall constitute an additional contractual obligation of the Company, whether or
not the mutilated, destroyed, lost or stolen Security shall be found at any
time, or be enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of
the same series duly issued hereunder. All Securities shall be held and owned
upon the express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities, and shall preclude (to the extent lawful) any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.08...All Securities surrendered for the purpose of payment,
redemption, exchange or registration of transfer, or for credit against a
sinking fund, shall, if surrendered to the Company or any paying agent, be
delivered to the Trustee for cancellation, or, if surrendered to the Trustee,
shall be canceled by it, and no Securities shall be issued in lieu thereof
except as expressly required or permitted by any of the provisions of this
Indenture. On request of the Company, the Trustee shall deliver to the Company
canceled Securities held by the Trustee. In the absence of such request the
Trustee may dispose of canceled Securities in accordance with its standard
procedures. If the Company shall otherwise acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.09...Nothing in this Indenture or in the Securities, express or
implied, shall give or be construed to give to any person, firm or corporation,
other than the parties hereto and the holders of the Securities, any legal or
equitable right, remedy or claim under or in respect of this Indenture, or 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 Securities.
SECTION 2.10...So long as any of the Securities of any series remain
outstanding there may be an Authenticating Agent for any or all such series of
Securities which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, transfer or partial
redemption thereof, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. All references in this Indenture to
the authentication of Securities by the Trustee shall be deemed to include
authentication by an Authenticating Agent for such series except for
authentication upon original issuance or pursuant to Section 2.07 hereof. Each
Authenticating Agent shall be acceptable to the Company and shall be a
corporation which has a combined capital and surplus, as most recently reported
or determined by it, sufficient under the laws of any jurisdiction under which
it is organized or in which it is doing business to conduct a trust business,
and which is otherwise authorized under such laws to conduct such business and
is subject to supervision or examination by Federal or State authorities. If at
any time any Authenticating Agent shall cease to be eligible in accordance with
these provisions it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written notice
of resignation to the Trustee and to the Company. The Trustee may at any time
(and upon request by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint an
eligible successor Authenticating Agent acceptable to the Company. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder, shall become
vested with all the rights, powers and duties of its predecessor hereunder as if
originally named as an Authenticating Agent pursuant hereto. The Company agrees
to pay to each Authenticating Agent from time to time reasonable compensation
for its services under this Section.
SECTION 2.11...(a) If the Company shall establish pursuant to Section 2.01
that the Securities of a particular series are to be issued as a Global
Security, then the Company shall execute and the Trustee shall, in accordance
with Section 2.04, authenticate and deliver, a Global Security which (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the Outstanding Securities of such series, (ii)
shall be registered in the name of the Depository or its nominee, (iii) shall be
authenticated and delivered by the Trustee to the Depository or pursuant to the
Depository's instruction and (iv) shall bear a legend substantially to the
following effect: "Except as otherwise provided in Section 2.11 of the
Indenture, this Security may be transferred, in whole but not in part, only to
another nominee of the Depository or to a successor Depository or to a nominee
of such successor Depository."
(b) Notwithstanding the provisions of Section 2.05, the Global Security of
a series may be transferred, in whole but not in part and in the manner provided
in Section 2.05, only to another nominee of the Depository for such series, or
to a successor Depository for such series selected or approved by the Company or
to a nominee of such successor Depository.
(c) If at any time the Depository for a series of Securities notifies the
Company that it is unwilling or unable to continue as Depository for such series
or if at any time the Depository for such series shall no longer be registered
or in good standing under the Exchange Act, or other applicable statute or
regulation and a successor Depository for such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such condition, as the case may be, this Section 2.11 shall no longer be
applicable to the Securities of such series and the Company will execute, and
subject to Section 2.05, the Trustee will authenticate and deliver Securities of
such series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global
Security. In addition, the Company may at any time determine that the Securities
of any series shall no longer be represented by a Global Security and that the
provisions of this Section 2.11 shall no longer apply to the Securities of such
series. In such event the Company will execute, and subject to Section 2.05, the
Trustee, upon receipt of an Officers' Certificate evidencing such determination
by the Company, will authenticate and deliver Securities of such series in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. Upon the exchange
of the Global Security for such Securities in definitive registered form without
coupons, in authorized denominations, the Global Security shall be canceled by
the Trustee. Such Securities in definitive registered form issued in exchange
for the Global Security pursuant to this Section 2.11(c) shall be registered in
such names and in such authorized denominations as the Depository, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Security Registrar. The Trustee shall deliver such Securities to
the Depository for delivery to the persons in whose names such Securities are so
registered.
SECTION 2.12. In the case of the Securities of any series denominated in
any currency other than Dollars or in a composite currency (the "Required
Currency"), except as otherwise specified with respect to such Securities as
contemplated by Section 2.01, the obligation of the Company to make any payment
of the principal thereof, or the premium or interest thereon, shall not be
discharged or satisfied by any tender by the Company, or recovery by the
Trustee, in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the Trustee timely holding the full
amount of the Required Currency then due and payable. If any such tender or
recovery is in a currency other than the Required Currency, the Trustee may take
such actions as it considers appropriate to exchange such currency for the
Required Currency. The costs and risks of any such exchange, including, without
limitation, the risks of delay and exchange rate fluctuation, shall be borne by
the Company, the Company shall remain fully liable for any shortfall or
delinquency in the full amount of Required Currency then due and payable, and in
no circumstances shall the Trustee be liable therefor except in the case of its
negligence or willful misconduct.
SECTION 2.13. The Company in issuing Securities may use "CUSIP" numbers
(if then generally in use) and, if so used, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to holders of Securities;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or contained in
any notice of redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company shall
promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE THREE
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01...The Company may redeem the Securities of any series issued
hereunder on and after the dates and in accordance with the terms established
for such series pursuant to Section 2.01 hereof.
SECTION 3.02...(a) In case the Company shall desire to exercise such right
to redeem all or, as the case may be, a portion of the Securities of any series
in accordance with the right reserved so to do, it shall give notice of such
redemption to holders of the Securities of such series to be redeemed by
mailing, first class postage prepaid, a notice of such redemption not less than
30 days and not more than 60 days before the date fixed for redemption of that
series to such holders at their last addresses as they shall appear upon the
Security Register. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
registered holder receives the notice. In any case, failure duly to give such
notice to the holder of any Security of any series designated for redemption in
whole or in part, or any defect in the notice, shall not affect the validity of
the proceedings for the redemption of any other Securities of such series or any
other series. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption or subject to compliance with
certain conditions provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with any such restriction or condition.
Unless otherwise so provided as to a particular series of Securities, if
at the time of mailing of any notice of redemption the Company shall not have
deposited with the paying agent an amount in cash sufficient to redeem all of
the Securities called for redemption, including accrued interest to the date
fixed for redemption, such notice shall state that it is subject to the receipt
of redemption moneys by the paying agent on or before the date fixed for
redemption (unless such redemption is mandatory) and such notice shall be of no
effect unless such moneys are so received on or before such date.
Each such notice of redemption shall identify the Securities to be
redeemed (including CUSIP numbers, if any), specify the date fixed for
redemption and the redemption price at which Securities of that series are to be
redeemed, and shall state that payment of the redemption price of such
Securities to be redeemed will be made at the office or agency of the Company,
upon presentation and surrender of such Securities, that interest accrued to the
date fixed for redemption will be paid as specified in said notice, that from
and after said date interest will cease to accrue and that the redemption is for
a sinking fund, if such is the case. If less than all the Securities of a series
are to be redeemed, the notice to the holders of Securities of that series to be
redeemed in whole or in part shall specify the particular Securities to be so
redeemed. In case any Security is to be redeemed in part only, the notice which
relates to such Security shall state the portion of the principal amount thereof
to be redeemed, and shall state that on and after the redemption date, upon
surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
(b) If less than all the Securities of a series are to be redeemed, the
Company shall give the Trustee at least 45 days' notice in advance of the date
fixed for redemption (unless the Trustee shall agree to a shorter period) as to
the aggregate principal amount of Securities of the series to be redeemed, and
thereupon the Trustee shall select, by lot or in such other manner as it shall
deem appropriate and fair in its discretion and which may provide for the
selection of a portion or portions (equal to $1,000 or any integral multiple
thereof, subject to Sections 2.01(xi) and (xiv)) of the principal amount of such
Securities of a denomination larger than $1,000 (subject as aforesaid), the
Securities to be redeemed and shall thereafter promptly notify the Company in
writing of the numbers of the Securities to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by an Authorized Officer, instruct the Trustee
or any paying agent to call all or any part of the Securities of a particular
series for redemption and to give notice of redemption in the manner set forth
in this Section, such notice to be in the name of the Company or its own name as
the Trustee or such paying agent may deem advisable. In any case in which notice
of redemption is to be given by the Trustee or any such paying agent, the
Company shall deliver or cause to be delivered to, or permit to remain with, the
Trustee or such paying agent, as the case may be, such Security Register,
transfer books or other records, or suitable copies or extracts therefrom,
sufficient to enable the Trustee or such paying agent to give any notice by mail
that may be required under the provisions of this Section.
SECTION 3.03...(a) If the giving of notice of redemption shall have been
completed as above provided, the Securities or portions of Securities of the
series to be redeemed specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable redemption
price, together with, subject to the Company Order or supplemental indenture
hereto establishing the terms of such series of Securities, interest accrued to
the date fixed for redemption and interest on such Securities or portions of
Securities shall cease to accrue on and after the date fixed for redemption,
unless the Company shall default in the payment of such redemption price and
accrued interest with respect to any such Security or portion thereof. On
presentation and surrender of such Securities on or after the date fixed for
redemption at the place of payment specified in the notice, said Securities
shall be paid and redeemed at the applicable redemption price for such series,
together with, subject to the Company Order or supplemental indenture hereto
establishing the terms of such series of Securities, interest accrued thereon to
the date fixed for redemption.
(b) Upon presentation of any Security of such series which is to be
redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall
deliver to the holder thereof, at the expense of the Company, a new Security or
Securities of the same series, of authorized denominations in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 3.04...The provisions of this Section 3.04 and Sections 3.05 and
3.06 shall be applicable to any sinking fund for the retirement of Securities of
a series, except as otherwise specified as contemplated by Section 2.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 3.05. Each sinking fund payment shall be applied to the redemption of
Securities of such series as provided for by the terms of Securities of such
series.
SECTION 3.05...The Company (i) may deliver Outstanding Securities of a
series (other than any previously called for redemption) and (ii) may apply as a
credit Securities of a series which have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any mandatory
sinking fund payment; provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the redemption price specified in such Securities for redemption
through operation of the mandatory sinking fund and the amount of such mandatory
sinking fund payment shall be reduced accordingly.
SECTION 3.06...Not less than 45 days prior to each sinking fund payment
date for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 3.05 and the basis for such credit and will,
together with such Officers' Certificate, deliver to the Trustee any Securities
to be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 3.02 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 3.02, except that the notice of
redemption shall also state that the Securities of such series are being
redeemed by operation of the sinking fund and the sinking fund payment date.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Section 3.03.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
The Company covenants and agrees for each series of the Securities as
follows:
SECTION 4.01...The Company will duly and punctually pay or cause to be
paid the principal of (and premium, if any) and interest on the Securities of
that series at the time and place and in the manner provided herein and
established with respect to such Securities.
SECTION 4.02...So long as any series of the Securities remain outstanding,
the Company agrees to maintain an office or agency with respect to each such
series, which shall be in the Borough of Manhattan, the City and State of New
York or at such other location or locations as may be designated as provided in
this Section 4.02, where (i) Securities of that series may be presented for
payment, (ii) Securities of that series may be presented as hereinabove
authorized for registration of transfer and exchange, and (iii) notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be given or served, such designation to continue with respect
to such office or agency until the Company shall, by written notice signed by an
Authorized Officer and delivered to the Trustee, designate some other office or
agency for such purposes or any of them. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
notices and demands. The Trustee will initially act as paying agent for the
Securities.
The Company may also from time to time, by written notice signed by an
Authorized Officer and delivered to the Trustee, designate one or more other
offices or agencies for the foregoing purposes within or outside the Borough of
Manhattan, City of New York, and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligations to maintain an office or
agency in the Borough of Manhattan, City of New York for the foregoing purposes.
The Company will give prompt written notice to the Trustee of any change in the
location of any such other office or agency.
SECTION 4.03...(a) If the Company shall appoint one or more paying agents
for all or any series of the Securities, other than the Trustee, the Company
will cause each such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of (and premium, if any) or interest on the
Securities of that series (whether such sums have been paid to it by the
Company or by any other obligor of such Securities) in trust for the
benefit of the persons entitled thereto;
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor of such Securities) to make any payment
of the principal of (and premium, if any) or interest on the Securities of
that series when the same shall be due and payable;
(3) that it will, at any time during the continuance of any failure
referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such paying agent; and
(4) that it will perform all other duties of paying agent as set
forth in this Indenture.
(b) If the Company shall act as its own paying agent with respect to any
series of the Securities, it will on or before each due date of the principal of
(and premium, if any) or interest on Securities of that series, set aside,
segregate and hold in trust for the benefit of the persons entitled thereto a
sum sufficient to pay such principal (and premium, if any) or interest so
becoming due on Securities of that series until such sums shall be paid to such
persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of such action, or any failure (by it or any other obligor on such
Securities) to take such action. Whenever the Company shall have one or more
paying agents for any series of Securities, it will, prior to each due date of
the principal of (and premium, if any) or interest on any Securities of that
series, deposit with the paying agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the persons entitled to such principal, premium or interest, and
(unless such paying agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
(c) Anything in this Section to the contrary notwithstanding, (i) the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 11.04, and (ii) the Company may at any time, for the
purpose of obtaining the satisfaction and discharge of this Indenture or for any
other purpose, pay, or direct any paying agent to pay, to the Trustee all sums
held in trust by the Company or such paying agent, such sums to be held by the
Trustee upon the same terms and conditions as those upon which such sums were
held by the Company or such paying agent; and, upon such payment by any paying
agent to the Trustee, such paying agent shall be released from all further
liability with respect to such money.
SECTION 4.04...The Company, whenever necessary to avoid or fill a vacancy
in the office of Trustee, will appoint, in the manner provided in Section 7.10,
a Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 4.05...The Company will not, while any of the Securities remain
outstanding, consolidate with, or merge into, or merge into itself, or sell or
convey all or substantially all of its property to any other Person unless the
provisions of Article Ten hereof are complied with.
ARTICLE FIVE
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01...The Company will furnish or cause to be furnished to the
Trustee (a) on each regular record date (as defined in Section 2.03) for the
Securities of each Tranche of a series a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of such Tranche of
Securities as of such regular record date, provided, that the Company shall not
be obligated to furnish or cause to be furnished such list at any time that the
list shall not differ in any respect from the most recent list furnished to the
Trustee by the Company and (b) at such other times as the Trustee may request in
writing within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to the
time such list is furnished; provided, however, no such list need be furnished
for any series for which the Trustee shall be the Security Registrar.
SECTION 5.02...(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of Securities contained in the most recent list furnished to it as
provided in Section 5.01 and as to the names and addresses of holders of
Securities received by the Trustee in its capacity as Security Registrar (if
acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided in
Section 5.01 upon receipt of a new list so furnished.
(c) In case three or more holders of Securities of a series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Security for a
period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other holders
of Securities of such series or holders of all Securities with respect to their
rights under this Indenture or under such Securities, and is accompanied by a
copy of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five Business Days after the receipt
of such application, at its election, either:
(1) afford to such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection
(a) of this Section 5.02; or
(2) inform such applicants as to the approximate number of holders of
Securities of such series or of all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a) of this
Section 5.02, and as to the approximate cost of mailing to such
Securityholders the 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 Securities, as the case
may be, whose name and address appears in the information preserved at the time
by the Trustee in accordance with the provisions of subsection (a) of this
Section 5.02, a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the holders of Securities of such series or
of all Securities, as the case may be, or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise, the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(e) Each and every holder of the Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any paying agent nor any Security Registrar shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the holders of Securities in accordance with the provisions of
subsection (c) of this Section, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under said subsection
(c).
SECTION 5.03...(a) The Company covenants and agrees to file with the
Trustee, within 30 days after the Company is required to file the same with the
Commission, a copy of the annual reports and of the information, documents and
other reports (or a copy of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such sections, then to
file with the Trustee and, unless the Commission shall not accept such
information, documents or reports, the Commission, in accordance with the rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act, in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from time to
time by the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants 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 Securityholders, as their names and addresses appear
upon the Security Register, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (b) of this Section as may
be required by rules and regulations prescribed from time to time by the
Commission.
(d) The Company covenants and agrees to furnish to the Trustee, on or
before May 15 in each calendar year in which any of the Securities are
outstanding, or on or before such other day in each calendar year as the Company
and the Trustee may from time to time agree upon, a Certificate as to compliance
with all conditions and covenants under this Indenture. For purposes of this
subsection (d), such compliance shall be determined without regard to any period
of grace or requirement of notice provided under this Indenture.
(e) Delivery of such information, documents or reports to the Trustee
pursuant to Section 5.03(a) or 5.03(b) is for informational purposes only and
the Trustee's receipt thereof shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including, in the case of Section 5.03(b), the Company's compliance
with any of the covenants hereunder.
SECTION 5.04...(a) On or before July 15 in each year in which any of the
Securities are outstanding, the Trustee shall transmit by mail, first class
postage prepaid, to the Securityholders, as their names and addresses appear
upon the Security Register, a brief report dated as of the preceding May 15,
with respect to any of the following events which may have occurred within the
previous twelve months (but if no such event has occurred within such period no
report need be transmitted):
(1) any change to its eligibility under Section 7.09, and its
qualifications under Section 310(b) of the Trust Indenture Act;
(2) the creation of or any material change to a relationship
specified in paragraphs (1) through (10) of Section 310 of the Trust
Indenture Act;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on any property or funds held or
collected by it as trustee if such advances so remaining unpaid aggregate
more than 1/2 of 1% of the principal amount of the Securities outstanding
on the date of such report;
(4) any change to the amount, interest rate, and maturity date of all
other indebtedness owing by the Company, or by any other obligor on the
Securities, to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except any indebtedness based upon a creditor
relationship arising in any manner described in paragraphs (2), (3), (4)
or (6) of Section 311(b) of the Trust Indenture Act;
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any release, or release and substitution, of property subject to
the lien, if any, of this Indenture (and the consideration thereof, if
any) which it has not previously reported;
(7) any additional issue of Securities which the Trustee has not
previously reported; and
(8) any action taken by the Trustee in the performance of its duties
under this Indenture which it has not previously reported and which in its
opinion materially affects the Securities or the Securities of any series,
except any action in respect of a default, notice of which has been or is
to be withheld by it in accordance with the provisions of Section 6.07.
(b) The Trustee shall transmit by mail, first class postage prepaid, to
the Securityholders, as their names and addresses appear upon the Security
Register, a brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee as such since the date of the last
report transmitted pursuant to the provisions of subsection (a) of this Section
(or if no such report has yet been so transmitted, since the date of execution
of this Indenture), for the reimbursement of which it claims or may claim a lien
or charge prior to that of the Securities of any series on property or funds
held or collected by it as Trustee, and which it has not previously reported
pursuant to this subsection if such advances remaining unpaid at any time
aggregate more than 10% of the principal amount of Securities of such series
outstanding at such time, such report to be transmitted within 90 days after
such time.
(c) A copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with the Company, with each stock
exchange upon which any Securities are listed (if so listed) and also with the
Commission. The Company agrees to notify the Trustee when any Securities become
listed on any stock exchange.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01...(a) Whenever used herein with respect to Securities of a
particular series, "Event of Default" means any one or more of the following
events which has occurred and is continuing:
(1) default in the payment of any installment of interest upon any of
the Securities of that series, as and when the same shall become due and
payable, and continuance of such default for a period of 30 days;
(2) default in the payment of the principal of (or premium, if any,
on) any of the Securities of that series as and when the same shall become
due and payable whether at maturity, upon redemption, pursuant to any
sinking fund obligation, by declaration or otherwise, and continuance of
such default for a period of 3 Business Days;
(3) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company with
respect to that series contained in such Securities or otherwise
established with respect to that series of Securities pursuant to Section
2.01 hereof or contained in this Indenture (other than a covenant or
agreement which has been expressly included in this Indenture solely for
the benefit of one or more series of Securities other than such series)
for a period of 90 days after the date on which written notice of such
failure, requiring the same to be remedied and stating that such notice is
a "Notice of Default" hereunder, shall have been given to the Company by
the Trustee, by registered or certified mail, or to the Company and the
Trustee by the holders of at least 33% in principal amount of the
Securities of that series at the time outstanding;
(4) a decree or order by a court having jurisdiction in the premises
shall have been entered adjudging the Company as bankrupt or insolvent, or
approving as properly filed a petition seeking liquidation or
reorganization of the Company under the Federal Bankruptcy Code or any
other similar applicable Federal or State law, and such decree or order
shall have continued unvacated and unstayed for a period of 90 consecutive
days; or an involuntary case shall be commenced under such Code in respect
of the Company and shall continue undismissed for a period of 90
consecutive days or an order for relief in such case shall have been
entered; or a decree or order of a court having jurisdiction in the
premises shall have been entered for the appointment on the ground of
insolvency or bankruptcy of a receiver or custodian or liquidator or
trustee or assignee in bankruptcy or insolvency of the Company or of its
property, or for the winding up or liquidation of its affairs, and such
decree or order shall have remained in force unvacated and unstayed for a
period of 90 consecutive days;
(5) the Company shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking liquidation or reorganization under the Federal Bankruptcy Code or
any other similar applicable Federal or State law, or shall consent to the
filing of any such petition, or shall consent to the appointment on the
ground of insolvency or bankruptcy of a receiver or custodian or
liquidator or trustee or assignee in bankruptcy or insolvency of it or of
its property, or shall make an assignment for the benefit of creditors; or
(6) the occurrence of any other Event of Default with respect to
Securities of such series, as contemplated by Section 2.01 hereof.
(b) The Company shall file with the Trustee written notice of the
occurrence of any Event of Default within five Business Days of the Company's
becoming aware of any such Event of Default. In each and every such case, unless
the principal of all the Securities of that series shall have already become due
and payable, either the Trustee or the holders of not less than 33% in aggregate
principal amount of the Securities of that series then outstanding hereunder, by
notice in writing to the Company (and to the Trustee if given by such
Securityholders), may declare the principal (or, if any of such Securities are
Discount Securities, such portion of the principal amount thereof as may be
specified by their terms as contemplated by Section 2.01) of all the Securities
of that series to be due and payable immediately, and upon any such declaration
the same shall become and shall be immediately due and payable, anything
contained in this Indenture or in the Securities of that series or established
with respect to that series pursuant to Section 2.01 hereof to the contrary
notwithstanding.
(c) Section 6.01(b), however, is subject to the condition that if, at any
time after the principal of the Securities of that series shall have been so
declared due and payable, and before any judgment or decree for the payment of
the monies due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Securities of that series and the
principal of (and premium, if any, on) any and all Securities of that series
which shall have become due otherwise than by acceleration (with interest upon
such principal and premium, if any, and, to the extent that such payment is
enforceable under applicable law, upon overdue installments of interest, at the
rate per annum expressed in the Securities of that series to the date of such
payment or deposit) and the amount payable to the Trustee under Section 7.06,
and any and all defaults under the Indenture, other than the nonpayment of
principal on Securities of that series which shall not have become due by their
terms, shall have been remedied or waived as provided in Section 6.06, then and
in every such case the holders of a majority in aggregate principal amount of
the Securities of that series then outstanding, by written notice to the Company
and to the Trustee, may rescind and annul such declaration and its consequences
with respect to that series of Securities; but no such rescission and annulment
shall extend to or shall affect any subsequent default, or shall impair any
right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right with
respect to Securities of that series under this Indenture and such proceedings
shall have been discontinued or abandoned because of such rescission or
annulment or for any other reason or shall have been determined adversely to the
Trustee, then and in every such case the Company and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company and the Trustee shall continue as
though no such proceedings had been taken.
SECTION 6.02...(a) The Company covenants that in case an Event of Default
described in subsection 6.01(a)(1) or (a)(2) shall have occurred and be
continuing, upon demand of the Trustee, the Company will pay to the Trustee, for
the benefit of the holders of the Securities of that series, the whole amount
that then shall have become due and payable on all such Securities for principal
(and premium, if any) or interest, or both, as the case may be, with interest
upon the overdue principal (and premium, if any) and (to the extent that payment
of such interest is enforceable under applicable law and without duplication of
any other amounts paid by the Company in respect thereof) upon overdue
installments of interest at the rate per annum expressed in the Securities of
that series; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, and the amount payable
to the Trustee under Section 7.06.
(b) In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon the
Securities of that series and collect in the manner provided by law out of the
property of the Company or other obligor upon the Securities of that series
wherever situated the monies adjudged or decreed to be payable.
(c) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or other judicial
proceedings affecting the Company, any other obligor on such Securities, or the
creditors or property of either, the Trustee shall have power to intervene in
such proceedings and take any action therein that may be permitted by the court
and shall (except as may be otherwise provided by law) be entitled to file such
proofs of claim and other papers and documents as may be necessary or advisable
in order to have the claims of the Trustee and of the holders of Securities of
such series allowed for the entire amount due and payable by the Company or such
other obligor under this Indenture at the date of institution of such
proceedings and for any additional amount which may become due and payable by
the Company or such other obligor after such date, and to collect and receive
any monies or other property payable or deliverable on any such claim, and to
distribute the same after the deduction of the amount payable to the Trustee
under Section 7.06; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the holders of Securities of such
series to make such payments to the Trustee, and, in the event that the Trustee
shall consent to the making of such payments directly to such Securityholders,
to pay to the Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this Indenture, or
under any of the terms established with respect to Securities of that series,
may be enforced by the Trustee without the possession of any of such Securities,
or the production thereof at any trial or other proceeding relative thereto, and
any such suit or proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall,
after provision for payment to the Trustee of any amounts due under Section
7.06, be for the ratable benefit of the holders of the Securities of such
series.
In case of an Event of Default hereunder, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in the Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities of that series or the rights of any holder thereof or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
SECTION 6.03...Any monies collected by the Trustee pursuant to Section
6.02 with respect to a particular series of Securities shall be applied in the
order following, at the date or dates fixed by the Trustee and, in case of the
distribution of such monies on account of principal (or premium, if any) or
interest, upon presentation of the several Securities of that series, and
stamping thereon the payment, if only partially paid, and upon surrender thereof
if fully paid:
FIRST: To the payment of costs and expenses of
collection and of all amounts payable to the Trustee under
Section 7.06;
SECOND: To the payment of the amounts then due and unpaid upon
Securities of such series for principal (and premium, if any) and
interest, in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal
(and premium, if any) and interest, respectively; and
THIRD: To the Company.
SECTION 6.04...No holder of any Security of any series shall have any
right by virtue or by availing of any provision of this Indenture to institute
any suit, action or proceeding in equity or at law upon or under or with respect
to this Indenture or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless such holder previously shall have given to the
Trustee written notice of an Event of Default and of the continuance thereof
with respect to Securities of such series specifying such Event of Default, as
hereinbefore provided, and unless also the holders of not less than 33% in
aggregate principal amount of the Securities of such series then outstanding
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
failed to institute any such action, suit or proceeding; it being understood and
intended, and being expressly covenanted by the taker and holder of every
Security of such series with every other such taker and holder and the Trustee,
that no one or more holders of Securities of such series shall have any right in
any manner whatsoever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of the holders of any other
of such Securities, or to obtain or seek to obtain priority over or preference
to any other such holder, or to enforce any right under this Indenture, except
in the manner herein provided and for the equal, ratable and common benefit of
all holders of Securities of such series. For the protection and enforcement of
the provisions of this Section, each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provisions of this Indenture, however, the right
of any holder of any Security to receive payment of the principal of (and
premium, if any) and interest on such Security, as therein provided, on or after
the respective due dates expressed in such Security (or in the case of
redemption, on the redemption date), or to institute suit for the enforcement of
any such payment on or after such respective dates or redemption date, shall not
be impaired or affected without the consent of such holder.
SECTION 6.05...(a) All powers and remedies given by this Article to the
Trustee or to the Securityholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any others thereof or of any other powers
and remedies available to the Trustee or the holders of the Securities, by
judicial proceedings or otherwise, to enforce the performance or observance of
the covenants and agreements contained in this Indenture or otherwise
established with respect to such Securities.
(b) No delay or omission of the Trustee or of any holder of any of the
Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power, or
shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article or by law to the Trustee or to the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders.
SECTION 6.06...The holders of a majority in aggregate principal amount of
the Securities of any series at the time outstanding, determined in accordance
with Section 8.04, shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee with respect to such series;
provided, however, that such direction shall not be in conflict with any rule of
law or with this Indenture or unduly prejudicial to the rights of holders of
Securities of any other series at the time outstanding determined in accordance
with Section 8.04 not parties thereto. Subject to the provisions of Section
7.01, the Trustee shall have the right to decline to follow any such direction
if the Trustee in good faith shall, by a Responsible Officer or Officers of the
Trustee, determine that the proceeding so directed might involve the Trustee in
personal liability. The holders of a majority in aggregate principal amount of
the Securities of any series at the time outstanding affected thereby,
determined in accordance with Section 8.04, may on behalf of the holders of all
of the Securities of such series waive any past default in the performance of
any of the covenants contained herein or established pursuant to Section 2.01
with respect to such series and its consequences, except a default in the
payment of the principal of, or premium, if any, or interest on, any of the
Securities of that series as and when the same shall become due by the terms of
such Securities otherwise than by acceleration (unless such default has been
cured and a sum sufficient to pay all matured installments of interest and
principal otherwise than by acceleration and any premium has been deposited with
the Trustee (in accordance with Section 6.01(c))) or a call for redemption of
Securities of that series. Upon any such waiver, the default covered thereby
shall be deemed to be cured for all purposes of this Indenture and the Company,
the Trustee and the holders of the Securities of such series shall be restored
to their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon.
SECTION 6.07...The Trustee shall, within 90 days after the occurrence of a
default with respect to a particular series, transmit by mail, first class
postage prepaid, to the holders of Securities of that series, as their names and
addresses appear upon the Security Register, notice of all defaults with respect
to that series known to the Trustee, unless such defaults shall have been cured
or waived before the giving of such notice (the term "defaults" for the purposes
of this Section being hereby defined to be the events specified in subsections
(1), (2), (3), (4), (5), (6) and (7) of Section 6.01(a), not including any
periods of grace provided for therein and irrespective of the giving of notice
provided for by subsection (4) of Section 6.01(a)); provided, that, except in
the case of default in the payment of the principal of (or premium, if any) or
interest on any of the Securities of that series or in the payment of any
sinking or analogous fund installment established with respect to that series,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
and/or Responsible Officers, of the Trustee in good faith determine that the
withholding of such notice is in the interests of the holders of Securities of
that series; provided further, that in the case of any default of the character
specified in Section 6.01(a)(4) with respect to Securities of such series no
such notice to the holders of the Securities of that series shall be given until
at least 30 days after the occurrence thereof.
The Trustee shall not be deemed to have knowledge of any default, except
(i) a default under subsection (a)(1), (a)(2) or (a)(3) of Section 6.01 as long
as the Trustee is acting as paying agent for such series of Securities or (ii)
any default as to which the Trustee shall have received written notice or a
Responsible Officer charged with the administration of this Indenture shall have
obtained written notice.
SECTION 6.08...All parties to this Indenture agree, and each holder of any
Securities by his or her acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal amount of the
outstanding Securities of any series, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established pursuant to this
Indenture.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01...(a) The Trustee, prior to the occurrence of an Event of
Default with respect to Securities of a series and after the curing of all
Events of Default with respect to Securities of that series which may have
occurred, shall undertake to perform with respect to Securities of such series
such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee. In case an Event of Default with respect to
Securities of a series has occurred (which has not been cured or waived), the
Trustee shall exercise with respect to Securities of that series such of the
rights and powers vested in it by this Indenture, and use 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
Securities of a series and after the curing or waiving of all such Events
of Default with respect to that series which may have occurred:
(i) the duties and obligations of the Trustee shall with respect
to Securities of such series be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
with respect to Securities of such series except for the performance
of such duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may with respect to Securities of such series conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein);
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal amount
of the Securities of any series at the time outstanding relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee under this Indenture with respect to the Securities of that
series; and
(4) none of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur or risk
personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if the Trustee reasonably
believes that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Indenture or adequate indemnity
against such risk is not reasonably assured to it.
(c) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
7.01.
SECTION 7.02...Except as otherwise provided in Section 7.01:
(a) The Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, demand,
approval, bond, security or other paper or document believed by it (i) to be
genuine and (ii) to have been signed or presented by the proper party or
parties;
(b) Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Board Resolution or an Officers'
Certificate (unless other evidence in respect thereof is specifically prescribed
herein);
(c) The Trustee may consult with counsel 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 Securityholders, pursuant to the provisions of this Indenture, unless
such Securityholders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which may be
incurred therein or thereby; nothing herein contained shall, however, relieve
the Trustee of the obligation, upon the occurrence of an Event of Default with
respect to a series of the Securities (which has not been cured or waived) to
exercise with respect to Securities of that series such of the rights and powers
vested in it by this Indenture, and to use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs;
(e) The Trustee shall not be liable for any action taken or omitted to 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 Securities of the particular series affected thereby (determined as
provided in Section 8.04); provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such costs, expenses or liabilities as a condition to so proceeding. The
reasonable expense of every such examination shall be paid by the Company or, if
paid by the Trustee, shall be repaid by the Company upon demand. Notwithstanding
the foregoing, the Trustee, in its direction, may make such further inquiry or
investigation into such facts or matters as it may see fit. In making any
investigation required or authorized by this subparagraph, the Trustee shall be
entitled to examine books, records and premises of the Company, personally or by
agent or attorney;
(g) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) The permissive right of the Trustee to do things enumerated in this
Indenture shall not be construed as a duty.
SECTION 7.03...(a) The recitals contained herein and in the Securities
(other than the Certificate of Authentication on the Securities) shall be taken
as the statements of the Company, and the Trustee assumes no responsibility for
the correctness of the same.
(b) The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for the use or application by the
Company of any of the Securities or of the proceeds of such Securities, or for
the use or application of any monies paid over by the Trustee in accordance with
any provision of this Indenture or established pursuant to Section 2.01, or for
the use or application of any monies received by any paying agent other than the
Trustee.
SECTION 7.04...The Trustee or any paying agent or Security Registrar, in
its individual or any other capacity, may become the owner or pledgee of
Securities with the same rights it would have if it were not Trustee, paying
agent or Security Registrar.
SECTION 7.05...Subject to the provisions of Section 11.04, all monies
received by the Trustee shall, until used or applied as herein provided, be held
in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any monies received by it hereunder
except such as it may agree in writing with the Company to pay thereon.
SECTION 7.06...(a) The Company covenants and agrees to pay to the Trustee
from time to time, and the Trustee shall be entitled to, reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for all services rendered by it
in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Trustee, and the
Company will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the reasonable expenses and disbursements of its
counsel and agents and of all persons not regularly in its employ) except any
such expense, disbursement or advance as may arise from its negligence, willful
misconduct or bad faith. The Company also covenants to indemnify the Trustee
(and its officers, agents, directors and employees) for, and to hold it harmless
against, any loss, liability or expense incurred without negligence, willful
misconduct or bad faith on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust, including the
reasonable costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder.
(b) The obligations of the Company under this Section to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of particular
Securities.
(c) Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default, the expenses (including reasonable charges
and expenses of its counsel) and compensation for its services are intended to
constitute expenses of administration under applicable federal or state
bankruptcy, insolvency or similar law.
(d) The provisions of this Section 7.06 shall survive the satisfaction and
discharge of this Indenture or the appointment of a successor trustee.
SECTION 7.07...Except as otherwise provided in Section 7.01, whenever in
the administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting to take any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the Trustee and
such certificate, in the absence of bad faith on the part of the Trustee, shall
be full warrant to the Trustee for any action taken, suffered or omitted to be
taken by it under the provisions of this Indenture upon the faith thereof.
SECTION 7.08...If the Trustee has acquired or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 7.09...There shall at all times be a Trustee with respect to the
Securities issued hereunder which shall at all times be a corporation organized
and doing business under the laws of the United States of America or any State
or Territory thereof or of the District of Columbia, or a corporation or other
person permitted to act as trustee by the Commission, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least 50 million dollars, and subject to supervision or examination by Federal,
State, Territorial, or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. The Company may not, nor may any person
directly or indirectly controlling, controlled by, or under common control with
the Company, serve as Trustee. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 7.10.
SECTION 7.10...(a) The Trustee or any successor hereafter appointed, may
at any time resign with respect to the Securities of one or more series by
giving written notice thereof to the Company and by transmitting notice of
resignation by mail, first class postage prepaid, to the Securityholders of such
series, as their names and addresses appear upon the Security Register. Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor trustee with respect to Securities of such series by written
instrument, in duplicate, executed by order of the Board of Directors, one copy
of which instrument shall be delivered to the resigning Trustee and one copy to
the successor trustee. If no successor trustee shall have been so appointed and
have accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee with respect to
Securities of such series, or any Securityholder of that series who has been a
bona fide holder of a Security or Securities for at least six months may,
subject to the provisions of Section 6.08, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of Section
7.08 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Security or Securities
for at least six months; or
(2) The Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder; or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee with respect to all
Securities and appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the successor trustee,
or, subject to the provisions of Section 6.08, unless, with respect to
subsection (b)(1) above, the Trustee's duty to resign is stayed as provided in
Section 310(b) of the Trust Indenture Act, any Securityholder who has been a
bona fide holder of a Security or Securities for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as it may
deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities of any series at the time outstanding may at any time remove the
Trustee with respect to such series and appoint a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Securities of a series pursuant to any of
the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section may be
appointed with respect to the Securities of one or more series or all of such
series, and at any time there shall be only one Trustee with respect to the
Securities of any particular series.
SECTION 7.11...(a) In case of the appointment hereunder of a successor
trustee with respect to all Securities, every such successor trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights, powers, and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
trustee all property and money held by such retiring Trustee hereunder, subject
to any prior lien provided for in Section 7.06(b).
(b) In case of the appointment hereunder of a successor trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor trustee relates, (2)
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust, that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee and that no Trustee shall be responsible for any act or
failure to act on the part of any other Trustee hereunder; and upon the
execution and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein,
such retiring Trustee shall with respect to the Securities of that or those
series to which the appointment of such successor trustee relates have no
further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture, and each such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor trustee relates; but, on request of
the Company or any successor trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor trustee, to the extent contemplated by
such supplemental indenture, the property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless at the time
of such acceptance such successor trustee shall be qualified under the Trust
Indenture Act and eligible under this Article.
(e) Upon acceptance of appointment by a successor trustee as provided in
this Section, the Company shall transmit notice of the succession of such
trustee hereunder by mail, first class postage prepaid, to the Securityholders,
as their names and addresses appear upon the Security Register. If the Company
fails to transmit such notice within ten days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company.
SECTION 7.12...Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be qualified under the provisions of
the Trust Indenture Act and eligible under the provisions of Section 7.09,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding. In
case any Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
SECTION 7.13...If and when the Trustee shall become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding collection of claims
against the Company (or any other obligor upon the Securities).
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Whenever in this Indenture it is provided that the holders
of a majority or specified percentage in aggregate principal amount of the
Securities of a particular series may take any action (including the making of
any demand or request, the giving of any notice, consent or waiver or the taking
of any other action), the fact that at the time of taking any such action the
holders of such majority or specified percentage of that series have joined
therein may be evidenced by any instrument or any number of instruments of
similar tenor executed by such holders of Securities of that series in person or
by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders of any series any
request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Securityholders of record at the
close of business on the record date shall be deemed to be Securityholders for
the purposes of determining whether Securityholders of the requisite proportion
of outstanding Securities of that series have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the outstanding Securities of that series
shall be computed as of the record date; provided that no such authorization,
agreement or consent by such Securityholders on the record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
In determining whether the holders of the requisite aggregate principal
amount of Securities of a particular series have concurred in any direction,
consent or waiver under this Indenture, the principal amount of a Discount
Security that shall be deemed to be outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 6.01.
SECTION 8.02...Subject to the provisions of Section 7.01, proof of the
execution of any instrument by a Securityholder (such proof will not require
notarization) or his agent or proxy and proof of the holding by any person of
any of the Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such person of any
instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Securities shall be proved by the Security Register
of such Securities or by a certificate of the Security Registrar thereof.
(c) The Trustee may require such additional proof of any matter referred
to in this Section as it shall deem necessary.
SECTION 8.03...Prior to the due presentment for registration of transfer
of any Security, the Company, the Trustee, any paying agent and any Security
Registrar may deem and treat the person in whose name such Security shall be
registered upon the books of the Company as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notice of
ownership or writing thereon made by anyone other than the Security Registrar)
for the purpose of receiving payment of or on account of the principal of and
premium, if any, and (subject to Section 2.03) interest on such Security and for
all other purposes; and neither the Company nor the Trustee nor any paying agent
nor any Security Registrar shall be affected by any notice to the contrary.
SECTION 8.04...In determining whether the holders of the requisite
aggregate principal amount of Securities of a particular series have concurred
in any direction, consent or waiver under this Indenture, Securities of that
series which are owned by the Company or any other obligor on the Securities of
that series or by any person directly or indirectly controlling or controlled by
or under common control with the Company or any other obligor on the Securities
of that series shall be disregarded and deemed not to be outstanding for the
purpose of any such determination, except that for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, consent
or waiver, only Securities of such series which the Trustee actually knows are
so owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as outstanding for the purposes of this Section, if
the pledgee shall establish to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is not a
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In case of a
dispute as to such right, any decision by the Trustee taken upon the advice of
counsel shall be full protection to the Trustee.
SECTION 8.05...At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 8.01, of the taking of any action by the holders
of the majority or percentage in aggregate principal amount of the Securities of
a particular series specified in this Indenture in connection with such action,
any holder of a Security of that series which is shown by the evidence to be
included in the Securities the holders of which have consented to such action
may, by filing written notice with the Trustee, and upon proof of holding as
provided in Section 8.02, revoke such action so far as concerns such Security.
Except as aforesaid any such action taken by the holder of any Security shall be
conclusive and binding upon such holder and upon all future holders and owners
of such Security, and of any Security issued in exchange therefor, on
registration of transfer thereof or in place thereof, irrespective of whether or
not any notation in regard thereto is made upon such Security. Any action taken
by the holders of the majority or percentage in aggregate principal amount of
the Securities of a particular series specified in this Indenture in connection
with such action shall be conclusively binding upon the Company, the Trustee and
the holders of all the Securities of that series.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01...In addition to any supplemental indenture otherwise
authorized by this Indenture, the Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as then in effect), without the consent of
the Securityholders, for one or more of the following purposes:
(a) to evidence the succession of another person to the Company, and the
assumption by any such successor of the covenants of the Company contained
herein or otherwise established with respect to the Securities; or
(b) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the holders of the
Securities of all or any series, and to make the occurrence, or the occurrence
and continuance, of a default in any of such additional covenants, restrictions,
conditions or provisions a default or an Event of Default with respect to such
series permitting the enforcement of all or any of the several remedies provided
in this Indenture as herein set forth; provided, however, that in respect of any
such additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default or may limit the right of
the holders of a majority in aggregate principal amount of the Securities of
such series to waive such default; or
(c) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture as shall not be inconsistent with the provisions of
this Indenture and shall not adversely affect the interests of the holders of
the Securities of any series; or
(d) to change or eliminate any of the provisions of this Indenture or to
add any new provision to this Indenture; provided, however, that such change,
elimination or addition shall become effective only when there is no Security
outstanding of any series created prior to the execution of such supplemental
indenture that is entitled to the benefit of such provisions; or
(e) to establish the form or terms of Securities of any series as
permitted by Section 2.01; or
(f) to add any additional Events of Default with respect to all or any
series of outstanding Securities; or
(g) to provide collateral security for the Securities; or
(h) to provide for the authentication and delivery of bearer securities
and coupons appertaining thereto representing interest, if any, thereon and for
the procedures for the registration, exchange and replacement thereof and for
the giving of notice to, and the solicitation of the vote or consent of, the
holders thereof, and for any other matters incidental thereto; or
(i) to evidence and provide for the acceptance of appointment hereunder by
a separate or successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Article
Seven; or
(j) to change any place or places where (1) the principal of and premium,
if any, and interest, if any, on all or any series of Securities shall be
payable, (2) all or any series of Securities may be surrendered for registration
of transfer, (3) all or any series of Securities may be surrendered for exchange
and (4) notices and demands to or upon the Company in respect of all or any
series of Securities and this Indenture may be served; provided, however, that
any such place shall be located in New York, New York or be the principal office
of the Company; or
(k) to provide for the payment by the Company of additional amounts in
respect of certain taxes imposed on certain holders and for the treatment of
such additional amounts as interest and for all matters incidental thereto; or
(l) to provide for the issuance of Securities denominated in a currency
other than Dollars or in a composite currency and for all matters incidental
thereto.
Without limiting the generality of the foregoing, if the Trust Indenture
Act as in effect at the date of the execution and delivery of this Indenture or
at any time thereafter shall be amended and
(x) if any such amendment shall require one or more changes to any
provisions hereof or the inclusion herein of any additional provisions, or
shall by operation of law be deemed to effect such changes or incorporate
such provisions by reference or otherwise, this Indenture shall be deemed
to have been amended so as to conform to such amendment to the Trust
Indenture Act, and the Company and the Trustee may, without the consent of
any Securityholders, enter into a supplemental indenture hereto to effect
or evidence such changes or additional provisions; or
(y) if any such amendment shall permit one or more changes to, or the
elimination of, any provisions hereof which, at the date of the execution
and delivery hereof or at any time thereafter, are required by the Trust
Indenture Act to be contained herein, this Indenture shall be deemed to
have been amended to effect such changes or elimination, and the Company
and the Trustee may, without the consent of any Securityholders, enter
into a supplemental indenture hereto to effect such changes or
elimination; or
(z) if, by reason of any such amendment, one or more provisions
which, at the date of the execution and delivery hereof or at any time
thereafter, are required by the Trust Indenture Act to be contained herein
shall be deemed to be incorporated herein by reference or otherwise, or
otherwise made applicable hereto, and shall no longer be required to be
contained herein, the Company and the Trustee may, without the consent of
any Securityholders, enter into a supplemental indenture hereto to effect
the elimination of such provisions.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, and to make any further appropriate
agreements and stipulations which may be therein contained, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed by the Company and the Trustee without the consent of the
holders of any of the Securities at the time outstanding, notwithstanding any of
the provisions of Section 9.02.
SECTION 9.02...With the consent (evidenced as provided in Section 8.01) of
the holders of not less than a majority in aggregate principal amount of the
Securities of each series affected by such supplemental indenture or indentures
at the time outstanding, the Company, when authorized by a Board Resolution, and
the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner the
rights of the holders of the Securities of such series under this Indenture;
provided, however, that no such supplemental indenture shall (i) extend the
fixed maturity of any Securities of any series, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of interest thereon,
or reduce any premium payable upon the redemption thereof, or reduce the amount
of the principal of a Discount Security that would be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 6.01,
without the consent of the holders of each Security then outstanding and
affected, (ii) reduce the aforesaid percentage of Securities, the holders of
which are required to consent to any such supplemental indenture, or reduce the
percentage of Securities, the holders of which are required to waive any default
and its consequences, without the consent of the holder of each Security then
outstanding and affected thereby, or (iii) modify any provision of Section
6.01(c) (except to increase the percentage of principal amount of securities
required to rescind and annul any declaration of amounts due and payable under
the Securities) without the consent of the holders of each Security then
outstanding and affected thereby.
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders required
to consent thereto as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture that has expressly been included solely for the
benefit of one or more particular series of Securities, or that modifies the
rights of holders of Securities of such series with respect to such covenant or
other provision, shall be deemed not to affect the rights under this Indenture
of the holders of Securities of any other series.
It shall not be necessary for the consent of the Securityholders of any
series affected thereby under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth in
general terms the substance of such supplemental indenture, to the
Securityholders of all series affected thereby as their names and addresses
appear upon the Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 9.03...Upon the execution of any supplemental indenture pursuant
to the provisions of this Article or of Section 10.01, this Indenture shall,
with respect to such series, be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Securities of the series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.04...Securities of any series, affected by a supplemental
indenture, authenticated and delivered after the execution of such supplemental
indenture pursuant to the provisions of this Article, Article Two or Article
Seven or of Section 10.01, may bear a notation in form approved by the Company,
provided such form meets the requirements of any exchange upon which such series
may be listed, as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of that series so modified as to
conform, in the opinion of the Board of Directors, to any modification of this
Indenture contained in any such supplemental indenture may be prepared by the
Company, authenticated by the Trustee and delivered in exchange for the
Securities of that series then outstanding.
SECTION 9.05...The Trustee, subject to the provisions of Section 7.01,
shall be entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article is authorized or permitted by, and conforms
to, the terms of this Article and that it is proper for the Trustee under the
provisions of this Article to join in the execution thereof.
ARTICLE TEN
CONSOLIDATION, MERGER AND SALE
SECTION 10.01..Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the Company with or into
any other corporation or corporations (whether or not affiliated with the
Company), or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any sale,
conveyance, transfer or other disposition of all or substantially all of the
property of the Company or its successor or successors as an entirety, or
substantially as an entirety, to any other corporation (whether or not
affiliated with the Company or its successor or successors) authorized to
acquire and operate the same; provided, however, the Company hereby covenants
and agrees that, upon any such consolidation, merger, sale, conveyance, transfer
or other disposition, the due and punctual payment of the principal of (premium,
if any) and interest on all of the Securities of all series in accordance with
the terms of each series, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of this Indenture
with respect to each series or established with respect to such series pursuant
to Section 2.01 to be kept or performed by the Company, shall be expressly
assumed, by supplemental indenture (which shall conform to the provisions of the
Trust Indenture Act as then in effect) satisfactory in form to the Trustee
executed and delivered to the Trustee by the entity formed by such
consolidation, or into which the Company shall have been merged, or by the
entity which shall have acquired such property.
SECTION 10.02..(a) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual payment
of the principal of and premium, if any, and interest on all of the Securities
of all series outstanding and the due and punctual performance of all of the
covenants and conditions of this Indenture or established with respect to each
series of the Securities pursuant to Section 2.01 to be kept or performed by the
Company with respect to each series, such successor corporation shall succeed to
and be substituted for the Company, with the same effect as if it had been named
herein as the party of the first part, and thereupon (provided, that in the case
of a lease, the term of the lease is at least as long as the longest maturity of
any Securities outstanding at such time) the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the
Securities. Such successor corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company or any other
predecessor obligor on the Securities, any or all of the Securities issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor company, instead
of the Company, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the predecessor Company to the Trustee for authentication, and any Securities
which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities so issued shall in
all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof.
(b) In case of any such consolidation, merger, sale, conveyance, transfer
or other disposition such changes in phraseology and form (but not in substance)
may be made in the Securities thereafter to be issued as may be appropriate.
(c) Nothing contained in this Indenture or in any of the Securities shall
prevent the Company from merging into itself or acquiring by purchase or
otherwise all or any part of the property of any other corporation (whether or
not affiliated with the Company).
SECTION 10.03..The Trustee, subject to the provisions of Section 7.01, may
receive an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, conveyance, transfer or other disposition, and any
such assumption, comply with the provisions of this Article.
ARTICLE ELEVEN
DEFEASANCE AND CONDITIONS TO DEFEASANCE; UNCLAIMED MONIES
SECTION 11.01..Securities of a series may be defeased in accordance with
their terms and, unless the Company Order or supplemental indenture establishing
the series otherwise provides, in accordance with this Article.
The Company at any time may terminate as to a series all of its
obligations for such series under this Indenture ("legal defeasance option").
The Company at any time may terminate as to a series its obligations, if any,
under any restrictive covenant which may be applicable to a particular series
("covenant defeasance option"). However, in the case of the legal defeasance
option, the Company's obligations in Sections 2.05, 2.07, 4.02, 7.06, 7.10 and
11.04 shall survive until the Securities of the series are no longer
outstanding; thereafter the Company's obligations in Sections 7.06, 7.10 and
11.04 shall survive.
The Company may exercise its legal defeasance option notwithstanding its
prior exercise of its covenant defeasance option. If the Company exercises its
legal defeasance option, a series may not be accelerated because of an Event of
Default. If the Company exercises its covenant defeasance option, a series may
not be accelerated by reference to any restrictive covenant which may be
applicable to a particular series so defeased under the terms of the series.
The Trustee, upon request of and at the cost and expense of the Company,
shall, subject to compliance with Section 13.06, 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 (x) money in an amount which shall be sufficient; or (y)
Eligible Obligations the principal of and the interest on which when due,
without regard to reinvestment thereof, will provide moneys, which,
together with the money, if any, deposited or held by the Trustee or such
other trustee, shall be sufficient; or (z) a combination of money and
Eligible Obligations which shall be sufficient, to pay the principal of
and premium, if any, and interest, if any, due and to become due on such
Securities on or prior to maturity;
(2) the Company delivers to the Trustee a Certificate to the effect
that the requirements set forth in clause (1) above have been satisfied;
(3) immediately after the deposit no Default exists; and
(4) the Company delivers to the Trustee an Opinion of Counsel to the
effect that holders of the series will not recognize income, gain or loss
for Federal income tax purposes as a result of the defeasance but will
realize income, gain or loss on the Securities, including payments of
interest thereon, in the same amounts and in the same manner and at the
same time as would have been the case if such defeasance had not occurred
and which, in the case of legal defeasance, shall be (x) accompanied by a
ruling of the Internal Revenue Service issued to the Company or (y) based
on a change in law or regulation occurring after the date hereof; and
(5) the deposit specified in paragraph (1) above shall not result in
the Company, the Trustee or the trust created in connection with such
defeasance being deemed an "investment company" under the Investment
Company Act of 1940, as amended.
In the event the Company exercises its option to effect a covenant
defeasance with respect to the Securities of any series as described above and
the Securities of that series are thereafter declared due and payable because of
the occurrence of any Event of Default other than the Event of Default caused by
failing to comply with the covenants which are defeased, the amount of money and
securities on deposit with the Trustee may not be sufficient to pay amounts due
on the Securities of that series at the time of the acceleration resulting from
such Event of Default. However, the Company shall remain liable for such
payments.
SECTION 11.02..All monies or Eligible Obligations deposited with the
Trustee pursuant to Section 11.01 shall be held in trust and shall be available
for payment as due, either directly or through any paying agent (including the
Company acting as its own paying agent), to the holders of the particular series
of Securities for the payment or redemption of which such monies or Eligible
Obligations have been deposited with the Trustee.
SECTION 11.03..In connection with the satisfaction and discharge of this
Indenture all monies or Eligible Obligations then held by any paying agent under
the provisions of this Indenture shall, upon demand of the Company, be paid to
the Trustee and thereupon such paying agent shall be released from all further
liability with respect to such monies or Eligible Obligations.
SECTION 11.04..Any monies or Eligible Obligations deposited with any
paying agent or the Trustee, or then held by the Company, in trust for payment
of principal of or premium or interest on the Securities of a particular series
that are not applied but remain unclaimed by the holders of such Securities for
at least two years after the date upon which the principal of (and premium, if
any) or interest on such Securities shall have respectively become due and
payable, upon the written request of the Company and unless otherwise required
by mandatory provisions of applicable escheat or abandoned or unclaimed property
law, shall be repaid to the Company on May 31 of each year or (if then held by
the Company) shall be discharged from such trust; and thereupon the paying agent
and the Trustee shall be released from all further liability with respect to
such monies or Eligible Obligations, and the holder of any of the Securities
entitled to receive such payment shall thereafter, as an unsecured general
creditor, look only to the Company for the payment thereof.
SECTION 11.05..In connection with any satisfaction and discharge of this
Indenture pursuant to this Article Eleven, the Company shall deliver to the
Trustee an Officers' Certificate and an Opinion of Counsel to the effect that
all conditions precedent in this Indenture provided for relating to such
satisfaction and discharge have been complied with.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01..No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, past, present or future as such, of the
Company or of any predecessor or successor corporation, either directly or
through the Company or any such predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors as such, of
the Company or of any predecessor or successor corporation, or any of them,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Securities or implied therefrom; and that any and all such
personal liability of every name and nature, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director as such,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Securities or implied therefrom, are hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issuance of such Securities.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01..All the covenants, stipulations, promises and agreements in
this Indenture contained by or on behalf of the Company shall bind its
successors and assigns, whether so expressed or not.
SECTION 13.02..Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the corresponding board, committee or officer of any corporation that
shall at the time be the lawful sole successor of the Company.
SECTION 13.03..The Company by instrument in writing executed by authority
of two-thirds of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company under this Indenture and
thereupon such power so surrendered shall terminate both as to the Company and
as to any successor corporation.
SECTION 13.04..Except as otherwise expressly provided herein any notice or
demand which by any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the holders of Securities to or on the
Company may be given or served by being deposited first class postage prepaid in
a post office letter box addressed (until another address is filed in writing by
the Company with the Trustee), as follows: 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 Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at the
Corporate Trust Office of the Trustee.
SECTION 13.05..This Indenture and each Security shall be deemed to be a
contract made under the laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of said State.
SECTION 13.06..(a) Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
in this Indenture (other than the certificate provided pursuant to Section
5.03(d) of this Indenture) shall include (1) a statement that the person making
such certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such person, he or she has made
such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and (4) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
SECTION 13.07..Except as provided pursuant to Section 2.01 pursuant to a
Company Order, or established in one or more indentures supplemental to this
Indenture, in any case where the date of maturity of principal or an Interest
Payment Date of any Security or the date of redemption, purchase or repayment of
any Security shall not be a Business Day then payment of interest or principal
(and premium, if any) may be made on the next succeeding Business Day with the
same force and effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal date.
SECTION 13.08..If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by the Trust Indenture
Act, such imposed duties shall control.
SECTION 13.09. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 13.10..In case any one or more of the provisions contained in this
Indenture or in the Securities of any series shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Indenture or of
such Securities, but this Indenture and such Securities shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein or therein.
SECTION 13.11..The Company will have the right at all times to assign any
of its rights or obligations under the Indenture to a direct or indirect wholly
owned subsidiary of the Company; provided that, in the event of any such
assignment, the Company will remain liable for all such obligations. Subject to
the foregoing, this Indenture is binding upon and inures to the benefit of the
parties thereto and their respective successors and assigns. This Indenture may
not otherwise be assigned by the parties thereto.
SECTION 13.12. The Article and Section Headings in this Indenture and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
SECTION 13.13. Whenever this Indenture provides for any action by, or the
determination of any rights of, holders of Securities of any series in which not
all of such Securities are denominated in the same currency, in the absence of
any provision to the contrary in the form of Security of any particular series,
any amount in respect of any Security denominated in a currency other than
Dollars shall be treated for any such action or determination of rights as that
amount of Dollars that could be obtained for such amount on such reasonable
basis of exchange and as of the record date with respect to Securities of such
series (if any) for such action or determination of rights (or, if there shall
be no applicable record date, such other date reasonably proximate to the date
of such action or determination of rights) as the Company may specify in a
written notice to the Trustee or, in the absence of such written notice, as the
Trustee may determine.
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:/s/ A. A. Pena
Treasurer
Attest:
By: /s/ John M. Adams, Jr.
Assistant Secretary
BANKERS TRUST COMPANY,
as Trustee
By:/s/ James McDonough
Vice President
Attest:
By: /s/ Jason Theriault
Trust Officer
State of Ohio . ....}
.....} ss:
County of Franklin...}
On this 23rd day of September, 1997, personally appeared before me, a
Notary Public within and for said County in the State aforesaid, Armando A. Pena
and John M. Adams, Jr., 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
23rd day of September, 1997.
[Notarial Seal]
/s/ Mary M. Soltesz
Notary Public, State of Ohio
My Commission Expires: 7-12-99
State of New York....}
.....} ss:
County of New York...}
Be it remembered, that on this 24th day of September, 1997, 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 James McDonough, one of its Vice
Presidents, and by Jason Theriault, 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
24th day of September, 1997.
[Notarial Seal]
/s/ Sharon V. Alston
Notary Public, State of New York
My Commission Expires: 5-7-98
EXHIBIT 4(b)
September 24, 1997
Company Order and Officers' Certificate
Unsecured Medium Term Notes, Series A
Bankers Trust Company, as Trustee
Four Albany Street
New York, New York 10006
Attn: Corporate Trust Division
Ladies and Gentlemen:
Pursuant to Article Two of the Indenture, dated as of September 1, 1997 (as it
may be amended or supplemented, the "Indenture"), from Kentucky Power Company
(the "Company") to Bankers Trust Company, as trustee (the "Trustee"), and the
Board Resolutions dated August 25, 1997, a copy of which certified by the
Secretary or an Assistant Secretary of the Company is being delivered herewith
under Section 2.01 of the Indenture, and unless otherwise provided in a
subsequent Company Order pursuant to Section 2.04 of the Indenture,
1. The Company's Unsecured Medium Term Notes, Series A (the "Notes")
are hereby established and shall be subject to a Periodic Offering. The
Notes shall be in substantially the form attached hereto as Exhibit 1.
2. The terms and characteristics of the Notes shall be as follows
(the numbered clauses set forth below corresponding to the numbered
subsections of Section 2.01 of the Indenture, with terms used and not
defined herein having the meanings specified in the Indenture):
(i) the aggregate principal amount of Notes which may be
authenticated and delivered under the Indenture shall be limited to
$100,000,000, except as contemplated in Section 2.01(i) of the
Indenture;
(ii) the date or dates on which the principal of the Notes shall be
payable shall be determined by an officer of the Company and
communicated to the Trustee by Instructions or otherwise in
accordance with procedures, acceptable to the Trustee, specified in
a Company Order or Orders (both of such methods of determination
being hereinafter referred to as "determined pursuant to
Instructions); provided, however, that no Note shall have a term of
less than nine months or more than 42 years;
(iii) interest shall accrue from the date of authentication of the
Notes; the Interest Payment Dates on which such interest will be
payable shall be April 1 and October 1, and the Regular Record Date
for the determination of holders to whom interest is payable on any
such Interest Payment Date shall be the March 15 or September 15, as
the case may be, next preceding such Interest Payment Date; provided
however that if the Original Issue Date of a Note shall be after a
Regular Record Date and before the corresponding Interest Payment
Date, payment of interest shall commence on the second Interest
Payment Date succeeding such Original Issue Date and shall be paid
to the Person in whose name this Note was registered on the Regular
Record Date for such second Interest Payment Date; and provided
further, that interest payable on the Stated Maturity Date or any
Redemption Date shall be paid to the Person to whom principal shall
be paid;
(iv) the interest rate or rates, if any, at which the Notes, or any
Tranche thereof, shall bear interest shall be determined pursuant to
Instructions;
(v) the terms, if any, regarding the redemption, purchase or
repayment of such series, shall be determined pursuant to
Instructions;
(vi) (a) the Notes shall be issued in the form of a Global Note; (b)
the Depositary for such Global Note shall be The Depository Trust
Company; and (c) the procedures with respect to transfer and
exchange of Global Notes shall be as set forth in the form of Note
attached hereto;
(vii) the title of the Notes shall be "Unsecured Medium Term Notes,
Series A";
(viii) the form of the Notes shall be as set forth in Paragraph 1,
above;
(ix) the maximum interest rate of the Notes shall not exceed by 3.0%
the yield to maturity at the date of pricing on United States
Treasury Bonds of comparable maturity;
(x) the Notes shall be subject to a Periodic Offering;
(xi) not applicable;
(xii) any other information necessary to complete the Notes shall be
determined pursuant to Instructions;
(xiii) not applicable;
(xiv) not applicable;
(xv) not applicable;
(xvi) whether any Notes shall be issued as Discount Securities and
the terms thereof shall be determined pursuant to Instructions;
(xvii) not applicable;
(xviii) not applicable; and
(xix) any other terms of the Notes not inconsistent with the
Indenture may be determined pursuant to Instructions.
3. You are hereby requested to authenticate, from time to time after
the date hereof and in the manner provided by the Indenture, such
aggregate principal amount of the Notes not to exceed $100,000,000
as shall be set forth in Instructions (the "Instructions") in
substantially the form attached hereto as Exhibit 2.
4. You have been furnished with a supply of Notes prepared in
compliance with the Indenture and the Board Resolutions referred to
above. Before authenticating Notes in the aggregate principal amount
specified in any of the Instructions, you are requested to complete
such Notes as directed by such Instructions.
5. You are hereby requested to hold the Notes authenticated pursuant to
each of the Instructions in accordance with the Administrative
Procedures attached as Exhibit A to the Selling Agency Agreement
dated September 24, 1997, between the Company and each of the agents
named therein.
6. Concurrently with this Company Order, an Opinion of Counsel under
Sections 2.04 and 13.06 of the Indenture is being delivered to you
with respect to the issuance and sale of up to $50,000,000 principal
amount of Notes and, prior to issuance thereof, a subsequent Opinion
of Counsel will be delivered to you with respect to the issuance and
sale of Notes in excess of $50,000,000.
7. The undersigned Armando A. Pena and John M. Adams, Jr., the
Treasurer and Assistant Secretary, respectively, of the Company do
hereby certify that:
(i) we have read the relevant portions of the Indenture,
including without limitation the conditions precedent
provided for therein relating to the action proposed to be
taken by the Trustee as requested in this Company Order and
Officers' Certificate, and the definitions in the Indenture
relating thereto;
(ii) we have read the Board Resolutions of the Company and the
Opinion of Counsel referred to above;
(iii) we have conferred with other officers of the Company, have
examined such records of the Company and have made such
other investigation as we deemed relevant for purposes of
this certificate;
(iv) in our opinion, we have made such examination or
investigation as is necessary to enable us to express an
informed opinion as to whether or not such conditions have
been complied with; and
(v) on the basis of the foregoing, we are of the opinion that
all conditions precedent provided for in the Indenture
relating to the action proposed to be taken by the Trustee
as requested herein have been complied with.
Kindly acknowledge receipt of this Company Order and Officers'
Certificate, including the documents listed herein, and confirm the arrangements
set forth herein by signing and returning the copy of this document attached
hereto.
Very truly yours,
KENTUCKY POWER COMPANY
By: /s/ A. A. Pena
Treasurer
And: /s/ John M. Adams, Jr.
Assistant Secretary
Acknowledged by Trustee:
By: /s/ Scott F. Thiel
Assistant Vice President
<PAGE>
Exhibit 1
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment, and any certificate
to be issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.]
No.
KENTUCKY POWER COMPANY
Unsecured Medium Term Note, Series A
CUSIP: Original Issue Date:
Stated Maturity Date: Interest Rate:
Principal Amount:
Redeemable: Yes ____ No ____
In Whole: Yes ____ No ____
In Part: Yes ____ No ____
Initial Redemption Date:
Redemption Limitation Date:
Initial Redemption Price:
Reduction Percentage:
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 CEDE & CO. or
registered assigns, the Principal Amount specified above on the Stated Maturity
Date specified above, and to pay interest on said Principal Amount from the
Original Issue Date specified above or from the most recent interest payment
date (each such date, an "Interest Payment Date") to which interest has been
paid or duly provided for, semi-annually in arrears on April 1 and October 1 in
each year, commencing (except as provided in the following sentence) with the
Interest Payment Date next succeeding the Original Issue Date specified above,
at the Interest Rate per annum specified above, until the Principal Amount shall
have been paid or duly provided for. Interest shall be computed on the basis of
a 360-day year of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date, as provided in the Indenture, as hereinafter defined,
shall be paid to the Person in whose name this Note (or one or more Predecessor
Securities) shall have been registered at the close of business on the Regular
Record Date with respect to such Interest Payment Date, which shall be the March
15 or September 15 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date; provided however that if the Original
Issue Date of this Note shall be after a Regular Record Date and before the
corresponding Interest Payment Date, payment of interest shall commence on the
second Interest Payment Date succeeding such Original Issue Date and shall be
paid to the Person in whose name this Note was registered on the Regular Record
Date for such second Interest Payment Date; and provided further, that interest
payable on the Stated Maturity Date or any Redemption Date shall be paid to the
Person to whom principal shall be paid. Any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and shall be paid as provided in said Indenture.
If any Interest Payment Date, any Redemption Date or the Stated Maturity
Date is not a Business Day, then payment of the amounts due on this Note on such
date will be made on the next succeeding Business Day, and no interest shall
accrue on such amounts for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity Date, as the case may be. The principal of
(and premium, if any) and the interest on this Note shall be payable at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, the City of New York, New York, in any coin or currency of the United
States of America which at the time of payment is legal tender for payment of
public and private debts; provided, however, that payment of interest (other
than interest payable on the Stated Maturity Date or any Redemption Date) may be
made at the option of the Company by check mailed to the registered holder at
such address as shall appear in the Note Register.
This Note is one of a duly authorized series of Notes of the Company
(herein sometimes referred to as the "Notes"), specified in the Indenture, all
issued or to be issued in one or more series under and pursuant to an Indenture
dated as of September 1, 1997 duly executed and delivered between the Company
and Bankers Trust Company, a national banking association organized and existing
under the laws of the United States, as Trustee (herein referred to as the
"Trustee") (such Indenture, as originally executed and delivered and as
thereafter supplemented and amended being hereinafter referred to as the
"Indenture"), to which Indenture and all indentures supplemental thereto or
Company Orders reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders of the Notes. By the terms of the
Indenture, the Notes are issuable in series which may vary as to amount, date of
maturity, rate of interest and in other respects as in the Indenture provided.
This Note is one of the series of Notes designated on the face hereof.
If so specified on the face hereof and subject to the terms of Article
Three of the Indenture, this Note is subject to redemption at any time on or
after the Initial Redemption Date specified on the face hereof, as a whole or,
if specified, in part, at the election of the Company, at the applicable
redemption price (as described below) plus any accrued but unpaid interest to
the date of such redemption. Unless otherwise specified on the face hereof, such
redemption price shall be the Initial Redemption Price specified on the face
hereof for the twelve-month period commencing on the Initial Redemption Date and
shall decline for the twelve-month period commencing on each anniversary of the
Initial Redemption Date by a percentage of principal amount equal to the
Reduction Percentage specified on the face hereof until such redemption price is
100% of the principal amount of this Note to be redeemed.
Notwithstanding the foregoing, the Company may not, prior to the
Redemption Limitation Date, if any, specified on the face hereof, redeem any
Note of this series and Tranche as contemplated above as a part of, or in
anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an effective interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than the effective interest cost the Company (similarly calculated) of this
Note.
This Note shall be redeemable to the extent set forth herein and in the
Indenture upon not less than thirty, but not more than sixty, days previous
notice by mail to the registered owner.
The Company shall not be required to (i) issue, exchange or register the
transfer of any Notes during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of less than all
the outstanding Notes of the same series and Tranche and ending at the close of
business on the day of such mailing, nor (ii) register the transfer of or
exchange of any Notes of any series or portions thereof called for redemption.
This Global Note is exchangeable for Notes in definitive registered form only
under certain limited circumstances set forth in the Indenture.
In the event of redemption of this Note in part only, a new Note or Notes
of this series and Tranche, of like tenor, for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the surrender of this Note.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Notes may be declared,
and upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Note upon compliance by the Company with certain conditions
set forth therein.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Notes of each series affected at the time outstanding,
as defined in the Indenture, to execute supplemental indentures for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Holders of the Notes; provided, however, that no
such supplemental indenture shall (i) extend the fixed maturity of any Notes of
any series, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any premium payable upon the
redemption thereof, or reduce the amount of the principal of a Discount Security
that would be due and payable upon a declaration of acceleration of the maturity
thereof pursuant to the Indenture, without the consent of the holder of each
Note then outstanding and affected; (ii) reduce the aforesaid percentage of
Notes, the holders of which are required to consent to any such supplemental
indenture, or reduce the percentage of Notes, the holders of which are required
to waive any default and its consequences, without the consent of the holder of
each Note then outstanding and affected thereby; or (iii) modify any provision
of Section 6.01(c) of the Indenture (except to increase the percentage of
principal amount of securities required to rescind and annul any declaration of
amounts due and payable under the Notes), without the consent of the holder of
each Note then outstanding and affected thereby. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount of
the Notes of all series at the time outstanding affected thereby, on behalf of
the Holders of the Notes of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture with respect to such series, and its consequences,
except a default in the payment of the principal of or premium, if any, or
interest on any of the Notes of such series. Any such consent or waiver by the
registered Holder of this Note (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders and
owners of this Note and of any Note issued in exchange herefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the time and place and at the rate and in the money
herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, this Note is transferable by the registered holder hereof on the Note
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company as may be designated by the
Company accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the registered
Holder hereof or his or her attorney duly authorized in writing, and thereupon
one or more new Notes of authorized denominations and for the same aggregate
principal amount and series will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any paying agent and any Note Registrar may deem and treat
the registered Holder hereof as the absolute owner hereof (whether or not this
Note shall be overdue and notwithstanding any notice of ownership or writing
hereon made by anyone other than the Note Registrar) for the purpose of
receiving payment of or on account of the principal hereof and premium, if any,
and interest due hereon and for all other purposes, and neither the Company nor
the Trustee nor any paying agent nor any Note Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations, Notes of this
series and Tranche are exchangeable for a like aggregate principal amount of
Notes of this series and Tranche of a different authorized denomination, as
requested by the Holder surrendering the same.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
IN WITNESS WHEREOF, the Company has caused this Instrument to be executed.
Dated ____________________
KENTUCKY POWER COMPANY
By:
Attest:
By:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes designated in accordance
with, and referred to in, the within-mentioned Indenture.
Dated:_______________
BANKERS TRUST COMPANY
By:
Authorized Signatory
<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").
<PAGE>
Exhibit 2
Instruction No.
Unsecured Medium Term Notes, Series A
Instructions
To: _____________________________, as Trustee
Trade or sale date:
Principal Amount: $_____________________
Maturity Date: ____________________________
Interest Rate: ______%
Redemption Provisions:
Redeemable: Yes___ No___
In Whole: Yes___ No___
In Part: Yes___ No___
Initial Redemption Date: ______________________
Redemption Limitation Date: ____________________
Initial Redemption Price: ______%
Reduction Percentage: _______%
Original Issue Date: ____________________________
Public Offering Price: ______%
Presenting Agent's Commission: ______%
Net Proceeds to Company: ______%
CUSIP No.: ___________________
Account number of participant account maintained
by DTC on behalf of Presenting Agent: ___________________________
Account number of participant account maintained
by DTC on behalf of Trustee: ____________________________________
Each Presenting Agent's name and proportionate amount of Global Note:
- ------------------------------------------------------------------
- ------------------------------------------------------------------
Name in which the Note is to be registered (Registered Owner): Cede & Co.
Address and taxpayer identification number of Registered Owner and address for
payment:
The Depository Trust Company
55 Water Street
New York, NY 10041
#13-2555119
Discount Security: Yes___ No___
Yield to Maturity: ________%
Initial Accrual Period: ________________________________________
Account of Company into which net proceeds are to be deposited:
- --------------------------------------------------
Any Other Book-Entry Note represented by Global Security (to the extent known):
KENTUCKY POWER COMPANY
By:___________________________
(President, Vice President, or
Treasurer)
Exhibit 4(c)
Instruction No. 1
Kentucky Power Company
Unsecured Medium Term Notes, Series A
Instructions
To: Bankers Trust Company, as Trustee
Trade or sale date: 9/26/97
Principal Amount: $48,000,000
Maturity Date: 10/1/07
Interest Rate: 6.91%
Redemption Provisions:
Redeemable: Yes___ No X
In Whole: Yes___ No___
In Part: Yes___ No___
Initial Redemption Date: ______________________
Redemption Limitation Date: ____________________
Initial Redemption Price: ______%
Reduction Percentage: _______%
Original Issue Date: 10/1/97
Public Offering Price: 100%
Presenting Agent's Commission: 0.625%
Net Proceeds to Company: 99.375%
CUSIP No.: 49138 Q AA2
Account number of participant account maintained by DTC on behalf of Presenting
Agent:
Merrill Lynch #5132
Morgan Stanley #050
Account number of participant account maintained by DTC on behalf of Trustee:
Each Presenting Agent's name and proportionate amount of Global Note:
Merrill Lynch 57.3%
Morgan Stanley 42.7%
Name in which the Note is to be registered (Registered Owner):
Cede & Co.
Address and taxpayer identification number of Registered Owner and address for
payment:
The Depository Trust Company
55 Water Street
New York, NY 10041
#13-2555119
Discount Security: Yes___ No X
Yield to Maturity: 7.00%
Initial Accrual Period: 10/01/97 - 03/31/98
Account of Company into which net proceeds are to be deposited:
Citibank ABA #021-000-089, Account #4057-2089
Any Other Book-Entry Note represented by Global Security (to the extent known):
KENTUCKY POWER COMPANY
By:_/s/ A. A. Pena_____________
(President, Vice President,
or Treasurer)
EXHIBIT 4(d)
Instruction No. 2
Kentucky Power Company
Unsecured Medium Term Notes, Series A
Instructions
To: Bankers Trust Company, as Trustee
Trade or sale date: 11-04-98
Principal Amount: $30,000,000
Maturity Date: 11-10-2008
Interest Rate: 6.45%
Redemption Provisions:
Redeemable: Yes ___ No X
--
In Whole: Yes ___ No X
--
In Part: Yes ___ No X
--
Original Issue Date: 11-09-98
Public Offering Price: 100%
Presenting Agent's Commission: 0.625%
Net Proceeds to Company: 99.375%
CUSIP No.: 49138Q AB 0
Account number of participant account maintained by DTC on behalf of Presenting
Agent:
Merrill Lynch #5132
Account number of participant account maintained by DTC on behalf of Trustee:
Each Presenting Agent's name and proportionate amount of Global Note:
Merrill Lynch 100%
Name in which the Note is to be registered (Registered Owner):
Cede & Co.
Address and taxpayer identification number of Registered Owner and address for
payment:
The Depository Trust Company
55 Water Street
New York, NY 10041
#13-2555119
Original Issue Discount Security: Yes ___ No x
Yield to Maturity: 6.45%
Initial Accrual Period: 11-09-98 -- 03-31-99
Account of Company into which net proceeds are to be deposited:
Citibank ABA #021-000-089 Account #4057-2089
Any Other Book-Entry Note represented by Global Security (to the extent known):
KENTUCKY POWER COMPANY
By: /s/ A. A. Pena
(President, Vice President, or Treasurer)
________________, 1999 EXHIBIT 4(e)
Company Order and Officers' Certificate
Unsecured Medium Term Notes, Series A
Bankers Trust Company, as Trustee
Four Albany Street
New York, New York 10006
Attn: Corporate Trust Division
Ladies and Gentlemen:
Pursuant to Article Two of the Indenture, dated as of September 1, 1997 (as it
may be amended or supplemented, the "Indenture"), from Kentucky Power Company
(the "Company") to Bankers Trust Company, as trustee (the "Trustee"), and the
Board Resolutions dated __________, 1999, a copy of which certified by the
Secretary or an Assistant Secretary of the Company is being delivered herewith
under Section 2.01 of the Indenture, and unless otherwise provided in a
subsequent Company Order pursuant to Section 2.04 of the Indenture,
1. The Company's Unsecured Notes, Series A (the "Notes") are hereby
established and shall be subject to a Periodic Offering. Fixed Rate Notes
shall be in substantially the form attached hereto as Exhibit 1 and
Floating Rate Notes shall be in substantially the form attached hereto as
Exhibit 2.
2. The terms and characteristics of the Notes shall be as follows
(the numbered clauses set forth below corresponding to the numbered
subsections of Section 2.01 of the Indenture, with terms used and not
defined herein having the meanings specified in the Indenture):
(i) the aggregate principal amount of Notes which may be
authenticated and delivered under the Indenture shall be limited to
$150,000,000, except as contemplated in Section 2.01(i) of the
Indenture;
(ii) the date or dates on which the principal of the Notes shall be
payable shall be determined by an officer of the Company and
communicated to the Trustee by Instructions, as defined below, or
otherwise in accordance with procedures, acceptable to the Trustee,
specified in a Company Order or Orders (both of such methods of
determination being hereinafter referred to as "determined pursuant
to Instructions); provided, however, that no Note shall have a term
of less than nine months or more than 42 years;
(iii) interest shall accrue from the date of authentication of the
Notes; with respect to fixed rate Notes, the Interest Payment Dates
on which such interest will be payable shall be _______ 1 and
_______1 or such other date or dates as determined pursuant to
Instructions, with respect to floating rate Notes, the Interest
Payment Dates shall be as determined pursuant to Instructions; the
Regular Record Date shall be the fifteenth calendar day immediately
preceding the related Interest Payment Date or such other date or
dates as determined pursuant to Instructions; provided however that
if the Original Issue Date of a Note shall be after a Regular Record
Date and before the corresponding Interest Payment Date, payment of
interest shall commence on the second Interest Payment Date
succeeding such Original Issue Date and shall be paid to the Person
in whose name this Note was registered on the Regular Record Date
for such second Interest Payment Date; and provided further, that
interest payable on the Stated Maturity Date or any Redemption Date
shall be paid to the Person to whom principal shall be paid;
(iv) the interest rate or rates, or interest rate formula or
formulas, if any, at which the Notes, or any Tranche thereof, shall
bear interest shall be determined pursuant to Instructions;
(v) the terms, if any, regarding the redemption, purchase or
repayment of such series, shall be determined pursuant to
Instructions;
(vi) (a) the Notes shall be issued in the form of a Global Note; (b)
the Depositary for such Global Note shall be The Depository Trust
Company; and (c) the procedures with respect to transfer and
exchange of Global Notes shall be as set forth in the form of Note
attached hereto;
(vii) the title of the Notes shall be "Unsecured Medium Term Notes,
Series A;
(viii) the form of the Notes shall be as set forth in Paragraph 1
above;
(ix) the maximum interest rate on fixed rate Notes shall not exceed
by 3.5% the yield to maturity at the date of pricing on United
States Treasury Bonds of comparable maturity and the initial
interest rate on any floating rate Note shall not exceed 9%;
(x) the Notes shall be subject to a Periodic Offering;
(xi) not applicable;
(xii) any other information necessary to complete the Notes shall be
determined pursuant to Instructions;
(xiii) not applicable;
(xiv) not applicable;
(xv) not applicable;
(xvi) whether any Notes shall be issued as Discount Securities and
the terms thereof shall be determined pursuant to Instructions;
(xvii) not applicable;
(xviii) not applicable; and
(xix) any other terms of the Notes not inconsistent with the
Indenture may be determined pursuant to Instructions.
3. You are hereby requested to authenticate, from time to time after
the date hereof and in the manner provided by the Indenture, such
aggregate principal amount of the Notes not to exceed $150,000,000 as
shall be set forth in Instructions (the "Instructions") in substantially
the form attached hereto as Exhibit 3 for fixed rate Notes and Exhibit 4
for floating rate Notes.
4. You are hereby requested to hold the Notes authenticated pursuant
to each of the Instructions in accordance with the Administrative
Procedures attached as Exhibit A to the Selling Agency Agreement dated
_______, 1999, between the Company and each of the agents named therein.
5. Concurrently with this Company Order, an Opinion of Counsel under
Sections 2.04 and 13.06 of the Indenture is being delivered to you.
6. The undersigned Armando A. Pena and John F. Di Lorenzo, Jr., the
Treasurer and Secretary, respectively, of the Company do hereby certify
that:
(i) we have read the relevant portions of the Indenture, including
without limitation the conditions precedent provided for therein
relating to the action proposed to be taken by the Trustee as
requested in this Company Order and Officers' Certificate, and the
definitions in the Indenture relating thereto;
(ii) we have read the Board Resolutions of the Company and the
Opinion of Counsel referred to above;
(iii) we have conferred with other officers of the Company, have
examined such records of the Company and have made such other
investigation as we deemed relevant for purposes of this
certificate;
(iv) in our opinion, we have made such examination or investigation
as is necessary to enable us to express an informed opinion as to
whether or not such conditions have been complied with; and
(v) on the basis of the foregoing, we are of the opinion that all
conditions precedent provided for in the Indenture relating to the
action proposed to be taken by the Trustee as requested herein have
been complied with.
Kindly acknowledge receipt of this Company Order and Officers' Certificate,
including the documents listed herein, and confirm the arrangements set forth
herein by signing and returning the copy of this document.
Very truly yours,
KENTUCKY POWER COMPANY
By: __________________________
Treasurer
And: _________________________
Secretary
Acknowledged by Trustee:
By: _____________________
---------------------
Exhibit 1
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment, and any certificate
to be issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.]
No.
KENTUCKY POWER COMPANY
Unsecured Medium Term Note, Series A
(Fixed Rate)
CUSIP: Original Issue Date:
Stated Maturity: Interest Rate:
Principal Amount:
Redeemable: Yes ____ No ____
In Whole: Yes ____ No ____
In Part: Yes ____ No ____
Initial Redemption Date:
Redemption Limitation Date:
Initial Redemption Price:
Reduction Percentage:
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 CEDE & CO. or
registered assigns, the Principal Amount specified above on Stated Maturity
specified above, and to pay interest on said Principal Amount from the Original
Issue Date specified above or from the most recent interest payment date (each
such date, an "Interest Payment Date") to which interest has been paid or duly
provided for, [semi-annually in arrears on __________1 and _______ 1 in each
year,] commencing (except as provided in the following sentence) with the
Interest Payment Date next succeeding the Original Issue Date specified above,
at the Interest Rate per annum specified above, until the Principal Amount shall
have been paid or duly provided for. Interest shall be computed on the basis of
a 360-day year of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date, as provided in the Indenture, as hereinafter defined,
shall be paid to the Person in whose name this Note (or one or more Predecessor
Securities) shall have been registered at the close of business on the Regular
Record Date with respect to such Interest Payment Date, which shall be the
fifteenth calendar day (whether or not a Business Day), as the case may be,
immediately preceding such Interest Payment Date; provided however that if the
Original Issue Date of this Note shall be after a Regular Record Date and before
the corresponding Interest Payment Date, payment of interest shall commence on
the second Interest Payment Date succeeding such Original Issue Date and shall
be paid to the Person in whose name this Note was registered on the Regular
Record Date for such second Interest Payment Date; and provided further, that
interest payable on Stated Maturity or any Redemption Date shall be paid to the
Person to whom principal shall be paid. Any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and shall be paid as provided in said Indenture.
If any Interest Payment Date, any Redemption Date or Stated Maturity is
not a Business Day, then payment of the amounts due on this Note on such date
will be made on the next succeeding Business Day, and no interest shall accrue
on such amounts for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be. The principal of (and
premium, if any) and the interest on this Note shall be payable at the office or
agency of the Company maintained for that purpose in the Borough of Manhattan,
the City of New York, New York, in any coin or currency of the United States of
America which at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest (other than interest
payable on Stated Maturity or any Redemption Date) may be made at the option of
the Company by check mailed to the registered holder at such address as shall
appear in the Note Register.
This Note is one of a duly authorized series of Notes of the Company
(herein sometimes referred to as the "Notes"), specified in the Indenture, all
issued or to be issued in one or more series under and pursuant to an Indenture
dated as of September 1, 1997 duly executed and delivered between the Company
and Bankers Trust Company, a corporation organized and existing under the laws
of the State of New York, as Trustee (herein referred to as the "Trustee") (such
Indenture, as originally executed and delivered and as thereafter supplemented
and amended being hereinafter referred to as the "Indenture"), to which
Indenture and all indentures supplemental thereto or Company Orders reference is
hereby made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the holders of
the Notes. By the terms of the Indenture, the Notes are issuable in series which
may vary as to amount, date of maturity, rate of interest and in other respects
as in the Indenture provided. This Note is one of the series of Notes designated
on the face hereof.
[If so specified on the face hereof and subject to the terms of Article
Three of the Indenture, this Note is subject to redemption at any time on or
after the Initial Redemption Date specified on the face hereof, as a whole or,
if specified, in part, at the election of the Company, at the applicable
redemption price (as described below) plus any accrued but unpaid interest to
the date of such redemption. Unless otherwise specified on the face hereof, such
redemption price shall be the Initial Redemption Price specified on the face
hereof for the twelve-month period commencing on the Initial Redemption Date and
shall decline for the twelve-month period commencing on each anniversary of the
Initial Redemption Date by a percentage of principal amount equal to the
Reduction Percentage specified on the face hereof until such redemption price is
100% of the principal amount of this Note to be redeemed.]
[Notwithstanding the foregoing, the Company may not, prior to the
Redemption Limitation Date, if any, specified on the face hereof, redeem any
Note of this series and Tranche as contemplated above as a part of, or in
anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an effective interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than the effective interest cost the Company (similarly calculated) of this
Note.]
[This Note shall be redeemable to the extent set forth herein and in the
Indenture upon not less than thirty, but not more than sixty, days previous
notice by mail to the registered owner.]
The Company shall not be required to (i) issue, exchange or register the
transfer of any Notes during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of less than all
the outstanding Notes of the same series and Tranche and ending at the close of
business on the day of such mailing, nor (ii) register the transfer of or
exchange of any Notes of any series or portions thereof called for redemption.
This Global Note is exchangeable for Notes in definitive registered form only
under certain limited circumstances set forth in the Indenture.
In the event of redemption of this Note in part only, a new Note or Notes
of this series and Tranche, of like tenor, for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the surrender of this Note.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Notes may be declared,
and upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Note upon compliance by the Company with certain conditions
set forth therein.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Notes of each series affected at the time outstanding,
as defined in the Indenture, to execute supplemental indentures for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Holders of the Notes; provided, however, that no
such supplemental indenture shall (i) extend the fixed maturity of any Notes of
any series, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any premium payable upon the
redemption thereof, or reduce the amount of the principal of a Discount Security
that would be due and payable upon a declaration of acceleration of the maturity
thereof pursuant to the Indenture, without the consent of the holder of each
Note then outstanding and affected; (ii) reduce the aforesaid percentage of
Notes, the holders of which are required to consent to any such supplemental
indenture, or reduce the percentage of Notes, the holders of which are required
to waive any default and its consequences, without the consent of the holder of
each Note then outstanding and affected thereby; or (iii) modify any provision
of Section 6.01(c) of the Indenture (except to increase the percentage of
principal amount of securities required to rescind and annul any declaration of
amounts due and payable under the Notes), without the consent of the holder of
each Note then outstanding and affected thereby. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount of
the Notes of all series at the time outstanding affected thereby, on behalf of
the Holders of the Notes of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture with respect to such series, and its consequences,
except a default in the payment of the principal of or premium, if any, or
interest on any of the Notes of such series. Any such consent or waiver by the
registered Holder of this Note (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders and
owners of this Note and of any Note issued in exchange herefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the time and place and at the rate and in the money
herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, this Note is transferable by the registered holder hereof on the Note
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company as may be designated by the
Company accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the registered
Holder hereof or his or her attorney duly authorized in writing, and thereupon
one or more new Notes of authorized denominations and for the same aggregate
principal amount and series will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any paying agent and any Note Registrar may deem and treat
the registered Holder hereof as the absolute owner hereof (whether or not this
Note shall be overdue and notwithstanding any notice of ownership or writing
hereon made by anyone other than the Note Registrar) for the purpose of
receiving payment of or on account of the principal hereof and premium, if any,
and interest due hereon and for all other purposes, and neither the Company nor
the Trustee nor any paying agent nor any Note Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations, Notes of this
series and Tranche are exchangeable for a like aggregate principal amount of
Notes of this series and Tranche of a different authorized denomination, as
requested by the Holder surrendering the same.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
IN WITNESS WHEREOF, the Company has caused this Instrument to be executed.
Dated ____________________
KENTUCKY POWER COMPANY
By:___________________________
Attest:
By:___________________________
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes designated in accordance
with, and referred to in, the within-mentioned Indenture.
Dated:_______________
BANKERS TRUST COMPANY
By:___________________________
Authorized Signatory
<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").
Exhibit 2
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment, and any certificate
to be issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein. Except as otherwise provided
in Section 2.11 of the Indenture, this Security may be transferred, in whole but
not in part, only to another nominee of the Depository or to a successor
Depository or to a nominee of such successor Depository.]
Registered No. FLR-____
KENTUCKY POWER COMPANY
UNSECURED MEDIUM TERM NOTE, SERIES A
(Floating Rate)
CUSIP No.:
Original Issue Date:
Stated Maturity:
Principal Amount:
INTEREST RATE BASIS OR BASES:
IF LIBOR: IF CMT RATE:
[ ] LIBOR Reuters Designated CMT Telerate Page:
[ ] LIBOR Telerate Designated CMT Maturity Index:
INDEX MATURITY: INITIAL INTEREST RATE: % INTEREST PAYMENT DATE(S):
SPREAD SPREAD MULTIPLIER: INITIAL INTEREST RESET DATE:
(PLUS OR MINUS):
MINIMUM INTEREST RATE: % MAXIMUM INTEREST RATE: % INTEREST RESET
DATE(S):
INITIAL REDEMPTION DATE: INITIAL REDEMPTION ANNUAL REDEMPTION
PERCENTAGE: % PERCENTAGE REDUCTION: %
OPTIONAL REPAYMENT DATE(S): CALCULATION AGENT:
INTEREST CATEGORY: DAY COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] 30/360 for the period
[ ] Floating Rate/Fixed Rate Note from to
Fixed Rate Commencement Date: [ ] Actual/360 for the period
Fixed Interest Rate: % from to
[ ] Inverse Floating Rate Note [ ] Actual/Actual for the period
Fixed Interest Rate: % from to
[ ] Original Issue Discount Note Applicable Interest Rate Basis:
Issue Price: %
AUTHORIZED DENOMINATION:
[ ] $1,000 and integral multiples thereof
[ ] Other
DEFAULT RATE: %
ADDENDUM ATTACHED
[ ] Yes
[ ] No
OTHER/ADDITIONAL PROVISIONS:
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 CEDE & CO., or
registered assigns, the Principal Amount specified above, on the Stated Maturity
specified above (or any Redemption Date or Repayment Date, each as defined
herein) (each such Stated Maturity, Redemption Date or Repayment Date being
hereinafter referred to as the "Maturity Date" with respect to the principal
repayable on such date) and to pay interest thereon, at a rate per annum equal
to the Initial Interest Rate specified above until the Initial Interest Reset
Date specified above and thereafter at a rate determined in accordance with the
provisions specified above and as herein provided with respect to one or more
Interest Rate Bases specified above until the principal hereof is paid or duly
made available for payment, and (to the extent that the payment of such interest
shall be legally enforceable) at the Default Rate per annum specified above on
any overdue principal, premium and/or interest. The Company will pay interest in
arrears on each Interest Payment Date, if any, specified above (each, an
"Interest Payment Date"), commencing with the first Interest Payment Date next
succeeding the Original Issue Date specified above, and on the Maturity Date;
provided, however, that if the Original Issue Date occurs between a Regular
Record Date (as defined below) and the next succeeding Interest Payment Date,
interest payments will commence on the second Interest Payment Date next
succeeding the Original Issue Date to the holder of this Note on the Regular
Record Date with respect to such second Interest Payment Date.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined herein) immediately preceding such Interest
Payment Date (the "Regular Record Date"); provided, however, that interest
payable on the Maturity Date will be payable to the person to whom the principal
hereof and premium, if any, hereon shall be payable. Any such interest not so
punctually paid or duly provided for ("Defaulted Interest") will forthwith cease
to be payable to the holder on any Regular Record Date, and shall be paid to the
person in whose name this Note is registered at the close of business on a
special record date (the "Special Regular Record Date") for the payment of such
Defaulted Interest to be fixed by the Trustee hereinafter referred to, notice
whereof shall be given to the holder of this Note by the Trustee not less than
10 calendar days prior to such Special Regular 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 this note may be listed, and upon such notice as
may be required by such exchange, all as more fully provided for in the
Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, a duly completed election form as contemplated herein)
at the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, The City of New York, New York. Payment of interest due on
any Interest Payment Date other than the Maturity Date will be made by check
mailed to the address of the person entitled thereto as such address shall
appear in the Security Register maintained at the aforementioned office or
agency of the Company; provided, however, that a holder of U.S.$10,000,000 or
more in aggregate principal amount of Notes (whether having identical or
different terms and provisions) will be entitled to receive interest payments on
such Interest Payment Date by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received in writing by the
Company not less than 15 calendar days prior to such Interest Payment Date. Any
such wire transfer instructions received by the Company shall remain in effect
until revoked by such holder.
If any Interest Payment Date other than the Maturity Date would otherwise
be a day that is not a Business Day, such Interest Payment Date shall be
postponed to the next succeeding Business Day, except that if LIBOR is an
applicable Interest Rate Basis and such Business Day falls in the next
succeeding calendar month, such Interest Payment Date shall be the immediately
preceding Business Day. If the Maturity Date falls on a day that is not a
Business Day, the required payment of principal, premium, if any, and interest
shall be made on the next succeeding Business Day with the same force and effect
as if made on the date such payment was due, and no interest shall accrue with
respect to such payment for the period from and after the Maturity Date to the
date of such payment on the next succeeding Business Day.
Reference is hereby made to the further provisions of this Note set forth
herein and, if so specified above, in the Addendum hereto, which further
provisions shall have the same force and effect as if set forth herein.
This Note is one of a duly authorized series of Debt Securities (the "Debt
Securities") of the Company issued and to be issued under an Indenture, dated as
of September 1, 1997, as amended, modified or supplemented from time to time
(the "Indenture"), between the Company and Bankers Trust Company, as Trustee
(the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental and Company Orders thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
holders of the Debt Securities, and of the terms upon which the Debt Securities
are, and are to be, authenticated and delivered. This Note is one of the series
of Debt Securities designated as "Unsecured Medium-Term Notes, Series A" (the
"Notes"). All terms used but not defined in this Note specified herein or in an
Addendum hereto shall have the meanings assigned to such terms in the Indenture.
[This Note is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof or any
Other Authorized Denomination specified herein.]
This Note will not be subject to any sinking fund and, unless otherwise
provided herein in accordance with the provisions of the following two
paragraphs, will not be redeemable or repayable prior to the Stated Maturity.
[If so specified on the face hereof and subject to the terms of Article
Three of the Indenture, this Note is subject to redemption at the option of the
Company on any date on or after the Initial Redemption Date, if any, specified
herein, in whole or from time to time in part in increments of U.S.$1,000 or any
Other Denomination (provided that any remaining principal amount hereof shall be
at least U.S.$1,000 or such Other Denomination), at the Redemption Price (as
defined below), together with unpaid interest accrued thereon to the date fixed
for redemption (each, a "Redemption Date"), on notice given no more than 60 nor
less than 30 calendar days prior to the Redemption Date and in accordance with
the provisions of the Indenture. The "Redemption Price" shall initially be the
Initial Redemption Percentage specified herein multiplied by the unpaid
principal amount of this Note to be redeemed. The Initial Redemption Percentage
shall decline at each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage Reduction, if any, specified herein until the Redemption
Price is 100% of unpaid principal amount to be redeemed. In the event of
redemption of this Note in part only, a new Note of like tenor for the
unredeemed portion hereof and otherwise having the same terms as this Note shall
be issued in the name of the holder hereof upon the presentation and surrender
hereof.]
[This Note is subject to repayment by the Company at the option of the
holder hereof on the Optional Repayment Date(s), if any, specified herein, in
whole or in part in increments of U.S.$1,000 or any Other Denomination (provided
that any remaining principal amount hereof shall be at least U.S.$1,000 or such
Other Denomination), at a repayment price equal to 100% of the unpaid principal
amount to be repaid, together with unpaid interest accrued thereon to the date
fixed for repayment (each, a "Repayment Date"). For this Note to be repaid, this
Note must be received, together with the form hereon entitled "Option to Elect
Repayment" duly completed, by the Trustee at its corporate trust office not more
than 60 nor less than 30 calendar days prior to the Repayment Date. Exercise of
such repayment option by the holder hereof will be irrevocable. In the event of
repayment of this Note in part only, a new Note of like tenor for the unrepaid
portion hereof and otherwise having the same terms as this Note shall be issued
in the name of the holder hereof upon the presentation and surrender hereof.]
[If the Interest Category of this Note is specified herein as an Original
Issue Discount Note, the amount payable to the holder of this Note in the event
of redemption, repayment or acceleration of maturity of this Note will be equal
to the sum of (1) the Issue Price specified herein (increased by any accruals of
the Discount, as defined below) and, in the event of any redemption of this Note
(if applicable), multiplied by the Initial Redemption Percentage (as adjusted by
the Annual Redemption Percentage Reduction, if applicable) and (2) any unpaid
interest on this Note accrued from the Original Issue Date to the Redemption
Date, Repayment Date or date of acceleration of maturity, as the case may be.
The difference between the Issue Price and 100% of the principal amount of this
Note is referred to herein as the "Discount."]
[For purposes of determining the amount of Discount that has accrued as of
any Redemption Date, Repayment Date or date of acceleration of maturity of this
Note, such Discount will be accrued so as to cause an assumed yield on the Note
to be constant. The assumed constant yield will be calculated using a 30-day
month, 360-day year convention, a compounding period that, except for the
Initial Period (as defined below), corresponds to the shortest period between
Interest Payment Dates (with ratable accruals within a compounding period), a
constant coupon rate equal to the initial interest rate applicable to this Note
and an assumption that the maturity of this Note will not be accelerated. If the
period from the Original Issue Date to the initial Interest Payment Date (the
"Initial Period") is shorter than the compounding period for this Note, a
proportionate amount of the yield for an entire compounding period will be
accrued. If the Initial Period is longer than the compounding period, then such
period will be divided into a regular compounding period and a short period,
with the short period being treated as provided in the preceding sentence.]
The interest rate borne by this Note will be determined as follows:
(i) Unless the Interest Category of this Note is specified herein as
a "Floating Rate/Fixed Rate Note" or an "Inverse Floating Rate Note", this Note
shall be designated as a "Regular Floating Rate Note" and, except as set forth
herein, shall bear interest at the rate determined by reference to the
applicable Interest Rate Basis or Bases (a) plus or minus the Spread, if any,
and/or (b) multiplied by the Spread Multiplier, if any, in each case as
specified herein. Commencing on the Initial Interest Reset Date, the rate at
which interest on this Note shall be payable shall be reset as of each Interest
Reset Date specified herein; provided, however, that the interest rate in effect
for the period, if any, from the Original Issue Date to the Initial Interest
Reset Date shall be the Initial Interest Rate.
(ii) If the Interest Category of this Note is specified herein as a
"Floating Rate/Fixed Rate Note", then, except as set forth herein, this Note
shall bear interest at the rate determined by reference to the applicable
Interest Rate Basis or Bases (a) plus or minus the Spread, if any, and/or (b)
multiplied by the Spread Multiplier, if any. Commencing on the Initial Interest
Reset Date, the rate at which interest on this Note shall be payable shall be
reset as of each Interest Reset Date; provided, however, that (y) the interest
rate in effect for the period, if any, from the Original Issue Date to the
Initial Interest Reset Date shall be the Initial Interest Rate and (z) the
interest rate in effect for the period commencing on the Fixed Rate Commencement
Date specified herein to the Maturity Date shall be the Fixed Interest Rate
specified herein or, if no such Fixed Interest Rate is specified, the interest
rate in effect hereon on the day immediately preceding the Fixed Rate
Commencement Date.
(iii) If the Interest Category of this Note is specified herein as
an "Inverse Floating Rate Note", then, except as set forth herein, this Note
shall bear interest at the Fixed Interest Rate minus the rate determined by
reference to the applicable Interest Rate Basis or Bases (a) plus or minus the
Spread, if any, and/or (b) multiplied by the Spread Multiplier, if any;
provided, however, that, unless otherwise specified herein, the interest rate
hereon shall not be less than zero. Commencing on the Initial Interest Reset
Date, the rate at which interest on this Note shall be payable shall be reset as
of each Interest Reset Date; provided, however, that the interest rate in effect
for the period, if any, from the Original Issue Date to the Initial Interest
Reset Date shall be the Initial Interest Rate.
Unless otherwise specified herein, the rate with respect to each Interest
Rate Basis will be determined in accordance with the applicable provisions
below. Except as set forth herein, the interest rate in effect on each day shall
be (i) if such day is an Interest Reset Date, the interest rate determined as of
the Interest Determination Date (as defined below) immediately preceding such
Interest Reset Date or (ii) if such day is not an Interest Reset Date, the
interest rate determined as of the Interest Determination Date immediately
preceding the most recent Interest Reset Date.
If any Interest Reset Date would otherwise be a day that is not a Business
Day, such Interest Reset Date shall be postponed to the next succeeding Business
Day, except that if LIBOR is an applicable Interest Rate Basis and such Business
Day falls in the next succeeding calendar month, such Interest Reset Date shall
be the immediately preceding Business Day. In addition, if the Treasury Rate is
an applicable Interest Rate Basis is an applicable Interest Rate Basis and the
Interest Determination Date would otherwise fall on an Interest Reset Date, then
such Interest Reset Date will be postponed to the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law or executive order to close in The City of New
York or in any Place of Payment; provided that if LIBOR is an applicable
Interest Rate Basis, such day is also a London Business Day (as defined below).
"London Business Day" means any day on which dealings in U.S. Dollars are
transacted in the London interbank market.
The "Interest Determination Date" with respect to the CD Rate, the CMT
Rate, the Commercial Paper Rate, the Federal Funds Rate and the Prime Rate will
be the second Business Day immediately preceding the applicable Interest Reset
Date; and the "Interest Determination Date" with respect to LIBOR shall be the
second London Business Day immediately preceding the applicable Interest Reset
Date. The "Interest Determination Date" with respect to the Treasury Rate shall
be the day in the week in which the applicable Interest Reset Date falls on
which day Treasury Bills (as defined below) are normally auctioned (Treasury
Bills are normally sold at an auction held on Monday of each week, unless that
day is a legal holiday, in which case the auction is normally held on the
following Tuesday, except that such auction may be held on the preceding
Friday); provided, however, that if an auction is held on the Friday of the week
preceding the applicable Interest Reset Date, the Interest Determination Date
shall be such preceding Friday. If the interest rate of this Note is determined
with reference to two or more Interest Rate Bases specified herein, the
"Interest Determination Date" pertaining to this Note shall be the most recent
Business Day which is at least two Business Days prior to the applicable
Interest Reset Date on which each Interest Rate Basis is determinable. Each
Interest Rate Basis shall be determined as of such date, and the applicable
interest rate shall take effect on the related Interest Reset Date.
CD Rate. If an Interest Rate Basis for this Note is specified herein as
the CD Rate, the CD Rate shall be determined as of the applicable Interest
Determination Date (a "CD Rate Interest Determination Date") as the rate on such
date for negotiable United States dollar certificates of deposit having the
Index Maturity specified herein as published by the Board of Governors of the
Federal Reserve System in "Statistical Release H.15(519), Selected Interest
Rates" or any successor publication ("H.15(519)") under the heading "CDs
(Secondary Market)", or, if not published by 3:00 P.M., New York City time, on
the related Calculation Date (as defined below), the rate on such CD Rate
Interest Determination Date for negotiable United States dollar certificates of
deposit of the Index Maturity as published by the Federal Reserve Bank of New
York in its daily statistical release "Composite 3:30 P.M. Quotations for United
States Government Securities" or any successor publication ("Composite
Quotations") under the heading "Certificates of Deposit". If such rate is not
yet published in either H.15(519) or Composite Quotations by 3:00 P.M., New York
City time, on the related Calculation Date, then the CD Rate on such CD Rate
Interest Determination Date will be calculated by the Calculation Agent
specified herein and will be the arithmetic mean of the secondary market offered
rates as of 10:00 A.M., New York City time, on such CD Rate Interest
Determination Date, of three leading nonbank dealers in negotiable United States
dollar certificates of deposit in The City of New York selected by the
Calculation Agent for negotiable United States dollar certificates of deposit of
major United States money center banks for negotiable United States dollar
certificates of deposit with a remaining maturity closest to the Index Maturity
in an amount that is representative for a single transaction in that market at
that time; provided, however, that if the dealers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the CD Rate determined as
of such CD Rate Interest Determination Date will be the CD Rate in effect on
such CD Rate Interest Determination Date.
CMT Rate. If an Interest Rate Basis for this Note is specified herein as
the CMT rate, the CMT Rate shall be determined as of the applicable Interest
Determination Date (a "CMT Rate Interest Determination Date") as the rate
displayed on the Designated CMT Telerate Page (as defined below) under the
caption "...Treasury Constant Maturities...Federal Reserve Board Release
H.15...Mondays Approximately 3:45 P.M.", under the column for the Designated CMT
Maturity Index (as defined below) for (i) if the Designated CMT Telerate Page is
7055, the rate on such CMT Rate Interest Determination Date and (ii) if the
Designated CMT Telerate Page is 7052, the week, or the month, as applicable,
ended immediately preceding the week in which the related CMT Rate Interest
Determination Date occurs. If such rate is no longer displayed on the relevant
page or is not displayed by 3:00 P.M., New York City time, on the related
Calculation Date, then the CMT Rate for such CMT Rate Interest Determination
Date will be such treasury constant maturity rate for the Designated CMT
Maturity Index as published in the relevant H.15(519). If such rate is no longer
published or is not published by 3:00 P.M., New York City time, on the related
Calculation Date, then the CMT Rate on such CMT Rate Interest Determination Date
will be such treasury constant maturity rate for the Designated CMT Maturity
Index (or other United States Treasury rate for the Designated CMT Maturity
Index) for the CMT Rate Interest Determination Date with respect to such
Interest Reset Date as may then be published by either the Board of Governors of
the Federal Reserve System or the United States Department of the Treasury that
the Calculation Agent determines to be comparable to the rate formerly displayed
on the Designated CMT Telerate Page and published in the relevant H.15(519). If
such information is not provided by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate on the CMT Rate Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity, based on the arithmetic mean of the secondary market closing
offer side prices as of approximately 3:30 P.M., New York City time, on such CMT
Rate Interest Determination Date reported, according to their written records,
by three leading primary United States government securities dealers (each, a
"Reference Dealer") in The City of New York selected by the Calculation Agent
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued direct noncallable fixed rate obligations
of the United States ("Treasury Notes") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent is unable to obtain three such Treasury Note quotations, the
CMT Rate on such CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the arithmetic mean
of the secondary market offer side prices as of approximately 3:30 P.M., New
York City time, on such CMT Rate Interest Determination Date of three Reference
Dealers in The City of New York (from five such Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an original maturity of
the number of years that is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the Designated CMT Maturity
Index and in an amount of at least U.S.$100 million. If three or four (and not
five) of such Reference Dealers are quoting as described above, then the CMT
Rate will be based on the arithmetic mean of the offer prices obtained and
neither the highest nor the lowest of such quotes will be eliminated; provided,
however, that if fewer than three Reference Dealers selected by the Calculation
Agent are quoting as mentioned herein, the CMT Rate determined as of such CMT
Rate Interest Determination Date will be the CMT Rate in effect on such CMT Rate
Interest Determination Date. If two Treasury Notes with an original maturity as
described in the second preceding sentence have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the Calculation Agent will
obtain from five Reference Dealers quotations for the Treasury Note with the
shorter remaining term to maturity.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service (or any successor service) on the page specified herein (or any other
page as may replace such page on that service for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519)) for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519). If no such
page is specified herein, the Designated CMT Telerate Page shall be 7052, for
the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the United States Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified herein with respect to which the CMT Rate will be calculated. If no
such maturity is specified herein, the Designated CMT Maturity Index shall be 2
years.
Commercial Paper Rate. If an Interest Rate Basis for this Note is
specified herein as the Commercial Paper Rate, the Commercial Paper Rate shall
be determined as of the applicable Interest Determination Date (a "Commercial
Paper Rate Interest Determination Date") as the Money Market Yield (as defined
below) on such date of the rate for commercial paper having the Index Maturity
as published in H.15(519) under the heading "Commercial Paper-Nonfinancial". In
the event that such rate is not published by 3:00 P.M., New York City time, on
such Calculation Date, then the Commercial Paper Rate on such Commercial Paper
Rate Interest Determination Date will be the Money Market Yield of the rate for
commercial paper having the Index Maturity as published in Composite Quotations
under the heading "Commercial Paper" (with an Index Maturity of one month or
three months being deemed to be equivalent to an Index Maturity of 30 days or 90
days, respectively). If such rate is not yet published in either H.15(519) or
Composite Quotations by 3:00 P.M., New York City time, on such Calculation Date,
then the Commercial Paper Rate on such Commercial Paper Rate Interest
Determination Date will be calculated by the Calculation Agent and shall be the
Money Market Yield of the arithmetic mean of the offered rates at approximately
11:00 A.M., New York City time, on such Commercial Paper Rate Interest
Determination Date of three leading dealers of commercial paper in The City of
New York selected by the Calculation Agent for commercial paper having the Index
Maturity placed for an industrial issuer whose bond rating is "Aa", or the
equivalent from a nationally recognized statistical rating organization;
provided, however, that if the dealers so selected by the Calculation Agent are
not quoting as mentioned in this sentence, the Commercial Paper Rate determined
as of such Commercial Paper Rate Interest Determination Date will be the
Commercial Paper Rate in effect on such Commercial Paper Rate Interest
Determination Date.
"Money Market Yield" means a yield (expressed as a percentage) calculated
in accordance with the following formula:
Money Market Yield = ((D x 360) / (360 - (D x M))) x 100
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the Interest Period for which interest is being calculated.
Federal Funds Rate. If an Interest Rate Basis for this Note is specified
herein as the Federal Funds Rate, the Federal Funds Rate shall be determined as
of the applicable Interest Determination Date (a "Federal Funds Rate Interest
Determination Date") as the rate on such date for United States dollar federal
funds as published in H.15(519) under the heading "Federal Funds (Effective)"
or, if not published by 3:00 P.M., New York City time, on the Calculation Date,
the rate on such Federal Funds Rate Interest Determination Date as published in
Composite Quotations under the heading "Federal Funds/Effective Rate". If such
rate is not published in either H.15(519) or Composite Quotations by 3:00 P.M.,
New York City time, on the related Calculation Date, then the Federal Funds Rate
on such Federal Funds Rate Interest Determination Date shall be calculated by
the Calculation Agent and will be the arithmetic mean of the rates for the last
transaction in overnight United States dollar federal funds arranged by three
leading brokers of federal funds transactions in The City of New York selected
by the Calculation Agent, prior to 9:00 A.M., New York City time, on such
Federal Funds Rate Interest Determination Date; provided, however, that if the
brokers so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the Federal Funds Rate determined as of such Federal Funds Rate
Interest Determination Date will be the Federal Funds Rate in effect on such
Federal Funds Rate Interest Determination Date.
LIBOR. If an Interest Rate Basis for this Note is specified herein as
LIBOR, LIBOR shall be determined by the Calculation Agent as of the applicable
Interest Determination Date (a "LIBOR Interest Determination Date") in
accordance with the following provisions:
(i) if (a) "LIBOR Reuters" is specified herein, the arithmetic mean of
the offered rates (unless the Designated LIBOR Page (as defined below) by its
terms provides only for a single rate, in which case such single rate will be
used) for deposits in U.S. Dollars having the Index Maturity, commencing on the
applicable Interest Reset Date, that appear (or, if only a single rate is
required as aforesaid, appears) on the Designated LIBOR Page (as defined below)
as of 11:00 A.M., London time, on such LIBOR Interest Determination Date, or (b)
"LIBOR Telerate" is specified herein, or if neither "LIBOR Reuters" nor "LIBOR
Telerate" is specified herein as the method for calculating LIBOR, the rate for
deposits in U.S. Dollars having the Index Maturity, commencing on such Interest
Reset Date, that appears on the Designated LIBOR Page as of 11:00 A.M., London
time, on such LIBOR Interest Determination Date. If fewer than two such offered
rates appear, or if no such rate appears, as applicable, LIBOR on such LIBOR
Interest Determination Date shall be determined in accordance with the
provisions described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which fewer
than two offered rates appear, or no rate appears, as the case may be, on the
Designated LIBOR Page as specified in clause (i) above, the Calculation Agent
shall request the principal London offices of each of four major reference banks
in the London interbank market, as selected by the Calculation Agent, to provide
the Calculation Agent with its offered quotation for deposits in U.S. Dollars
for the period of the Index Maturity, commencing on the applicable Interest
Reset Date, to prime banks in the London interbank market at approximately 11:00
A.M., London time, on such LIBOR Interest Determination Date and in a principal
amount that is representative for a single transaction in U.S. Dollars in such
market at such time. If at least two such quotations are so provided, then LIBOR
on such LIBOR Interest Determination Date will be the arithmetic mean of such
quotations. If fewer than two such quotations are so provided, then LIBOR on
such LIBOR Interest Determination Date will be the arithmetic mean of the rates
quoted at approximately 11:00 A.M., New York City Time, on such LIBOR Interest
Determination Date by three major banks in the City of New York selected by the
Calculation Agent for loans in U.S. Dollars to leading European banks, having
the Index Maturity and in a principal amount that is representative for a single
transaction in U.S. Dollars in such market at such time; provided, however, that
if the banks so selected by the Calculation Agent are not quoting as mentioned
in this sentence, LIBOR determined as of such LIBOR Interest Determination Date
shall be LIBOR in effect on such LIBOR Interest Determination Date.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified herein,
the display on the Reuter Monitor Money Rates Service (or any successor service)
for the purpose of displaying the London interbank rates of major banks for U.S.
Dollars, or (b) if "LIBOR Telerate" is specified herein or neither "LIBOR
Reuters" nor "LIBOR Telerate" is specified herein as the method for calculating
LIBOR, the display on the Dow Jones Telerate Service (or any successor service)
for the purpose of displaying the London interbank rates of major banks for U.S.
Dollars.
Prime Rate. If an Interest Rate Basis for this Note is specified on the
face hereto as the Prime Rate, the Prime Rate shall be determined as of the
applicable Interest Determination Date (a "Prime Rate Interest Determination
Date") as the rate on such date as such rate is published in H.15(519) under the
heading "Bank Prime Loan". If such rate is not published prior to 3:00 P.M., New
York City time, on the related Calculation Date, then the Prime Rate shall be
the arithmetic mean of the rates of interest publicly announced by each bank
that appears on the Reuters Screen USPRIME1 Page (as defined below) as such
bank's prime rate or base lending rate as in effect for such Prime Rate Interest
Determination Date. If fewer than four such rates appear on the Reuters Screen
USPRIME1 Page for such Prime Rate Interest Determination Date, the Prime Rate
shall be the arithmetic mean of the prime rates or base leading rates quoted on
the basis of the actual number of days in the year divided by a 360-day year as
of the close of business on such Prime Rate Interest Determination Date by four
major money center banks in The City of New York selected by the Calculation
Agent. If fewer than four such quotations are so provided, the Prime Rate shall
be the arithmetic mean of four prime rates quoted on the basis of the actual
number of days in the year divided by a 360-day year as of the close of business
on such Prime Rate Interest Determination Date as furnished in The City of New
York by the major money center banks, if any, that have provided such quotations
and by as many substitute banks or trust companies as necessary to obtain four
such prime rate quotations, provided such substitute banks or trust companies
are organized and doing business under the laws of the United States, or any
State thereof, each having total equity capital of at least U.S.$500 million and
being subject to supervision or examination by Federal or State authority,
selected by the Calculation Agent to provide such rate or rates; provided,
however, that if the banks or trust companies so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Prime Rate determined
as of such Prime Rate Interest Determination Date will be the Prime Rate in
effect on such Prime Rate Interest Determination Date.
"Reuters Screen USPRIME1 Page" means the display designated as page
"USPRIME1" on the Reuter Monitor Money Rates Service or any successor service
(or such other page as may replace the USPRIME1 page on that service for the
purpose of displaying prime rates or base lending rates of major United States
banks).
Treasury Rate. If an Interest Rate Basis for this Note is specified herein
as the Treasury Rate, the Treasury Rate shall be determined as of the applicable
Interest Determination Date (a "Treasury Rate Interest Determination Date") as
the rate from the auction held on such Treasury Rate Interest Determination Date
(the "Auction") of direct obligations of the United States ("Treasury Bills")
having the Index Maturity, as such rate is published in H.15(519) under the
heading "Treasury Bills-auction average (investment)" or, if not published by
3:00 P.M., New York City time, on the related Calculation Date, the auction
average rate of such Treasury Bills (expressed as a bond equivalent on the basis
of a year of 365 or 366 days, as applicable, and applied on a daily basis) as
otherwise announced by the United States Department of the Treasury. In the
event that the results of the Auction of Treasury Bills having the Index
Maturity are not reported as provided above by 3:00 P.M., New York City time, on
such Calculation Date, or if no such Auction is held, then the Treasury Rate
shall be calculated by the Calculation Agent and shall be a yield to maturity
(expressed as a bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City time,
on such Treasury Rate Interest Determination Date, of three leading primary
United States government securities dealers selected by the Calculation Agent,
for the issue of Treasury Bills with a remaining maturity closest to the Index
Maturity; provided, however, that if the dealers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Treasury Rate
determined as of such Treasury Rate Interest Determination Date will be the
Treasury Rate in effect on such Treasury Rate Interest Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, in each case as specified herein. The interest rate on
this Note will in no event be higher than the maximum rate permitted by New York
law, as the same may be modified by United States law of general application.
The Calculation Agent shall calculate the interest rate hereon on or
before each Calculation Date. The "Calculation Date", if applicable, pertaining
to any Interest Determination Date shall be the earlier of (i) the tenth
calendar day after such Interest Determination Date or, if such day is not a
Business Day, the next succeeding Business Day or (ii) the Business Day
immediately preceding the applicable Interest Payment Date or the Maturity Date,
as the case may be. At the request of the Holder hereof, the Calculation Agent
will provide to the Holder hereof the interest rate hereon then in effect and,
if determined, the interest rate that will become effective as a result of a
determination made for the next succeeding Interest Reset Date.
Accrued interest hereon shall be an amount calculated by multiplying the
principal amount hereof by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
in the applicable Interest Period. Unless otherwise specified as the Day Count
Convention herein, the interest factor for each such date shall be computed by
dividing the interest rate applicable to such day by 360 if the CD Rate, the
Commercial Paper Rate, the Federal Funds Rate, LIBOR or the Prime Rate is an
applicable Interest Rate Basis or by the actual number of days in the year if
the CMT Rate or the Treasury Rate is an applicable Interest Rate Basis. Unless
otherwise specified as the Day Count Convention herein, the interest factor for
this Note, if the interest rate is calculated with reference to two or more
Interest Rate Bases, shall be calculated in each period in the same manner as if
only the Applicable Interest Rate Basis specified herein applied.
All percentages resulting from any calculation on this Note shall be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards, and all amounts used in or
resulting from such calculation on this Note shall be rounded, in the case of
United States dollars, to the nearest cent (with one-half cent being rounded
upwards).
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Notes may be declared,
and upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Note upon compliance by the Company with certain conditions
set forth therein.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Notes of each series affected at the time outstanding,
as defined in the Indenture, to execute supplemental indentures for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Holders of the Notes; provided, however, that no
such supplemental indenture shall (i) extend the fixed maturity of any Notes of
any series, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any premium payable upon the
redemption thereof, or reduce the amount of the principal of a Discount Security
that would be due and payable upon a declaration of acceleration of the maturity
thereof pursuant to the Indenture, without the consent of the holder of each
Note then outstanding and affected; (ii) reduce the aforesaid percentage of
Notes, the holders of which are required to consent to any such supplemental
indenture, or reduce the percentage of Notes, the holders of which are required
to waive any default and its consequences, without the consent of the holder of
each Note then outstanding and affected thereby; or (iii) modify any provision
of Section 6.01(c) of the Indenture (except to increase the percentage of
principal amount of securities required to rescind and annul any declaration of
amounts due and payable under the Notes), without the consent of the holder of
each Note then outstanding and affected thereby. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount of
the Notes of all series at the time outstanding affected thereby, on behalf of
the Holders of the Notes of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture with respect to such series, and its consequences,
except a default in the payment of the principal of or premium, if any, or
interest on any of the Notes of such series. Any such consent or waiver by the
registered Holder of this Note (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders and
owners of this Note and of any Note issued in exchange herefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the time and place and at the rate and in the money
herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, this Note is transferable by the registered holder hereof on the Note
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company as may be designated by the
Company accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the registered
Holder hereof or his or her attorney duly authorized in writing, and thereupon
one or more new Notes of authorized denominations and for the same aggregate
principal amount and series will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any paying agent and any Note Registrar may deem and treat
the registered Holder hereof as the absolute owner hereof (whether or not this
Note shall be overdue and notwithstanding any notice of ownership or writing
hereon made by anyone other than the Note Registrar) for the purpose of
receiving payment of or on account of the principal hereof and premium, if any,
and interest due hereon and for all other purposes, and neither the Company nor
the Trustee nor any paying agent nor any Note Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
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 Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State.
IN WITNESS WHEREOF, the Company has caused this Instrument to be executed.
KENTUCKY POWER COMPANY
By:___________________________
Treasurer
Attest:
By:___________________________
Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes designated in accordance
with, and referred to in, the within-mentioned Indenture.
Dated:
BANKERS TRUST COMPANY, as Trustee
By:___________________________
Authorized Signatory
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
(PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE)
- ---------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
(PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
- ----------------------------------------------------------------
ASSIGNEE) the within Note and all rights thereunder, hereby
- ----------------------------------------------------------------
irrevocably constituting and appointing such person attorney to
- ----------------------------------------------------------------
transfer such Note on the books of the Issuer, with full
- ----------------------------------------------------------------
power of substitution in the premises.
Dated:________________________ _________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular,
without alteration or enlargement or any change whatever and
NOTICE: Signature(s) must be guaranteed by a financial
institution that is a member of the Securities Transfer Agents
Medallion Program ("STAMP"), the Stock Exchange Medallion Program
("SEMP") or the New York Stock Exchange, Inc. Medallion Signature
Program ("MSP").
[FORM OF ABBREVIATIONS]
The following abbreviations, when used in the inscription on the face of
the within Bond, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - Custodian
(Cust) (Minor)
Under Uniform Gifts to Minors Act
(State)
Additional abbreviations may also be used though not in list above.
[OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company
to repay this Note (or portion hereof specified below) pursuant to its terms at
a price equal to 100% of the principal amount to be repaid, together with unpaid
interest accrued hereon to the Repayment Date, to the undersigned, at
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office in the Borough of Manhattan, The City of New York, currently
located at , not more than 60 nor less than 30 calendar days prior to the
Repayment Date, this Note with this "Option to Elect Repayment" form duly
completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified herein)) which the holder elects to have repaid and
specify the denomination or denominations (which shall be an Authorized
Denomination) of the Notes to be issued to the holder for the portion of this
Note not being repaid (in the absence of any such specification, one such Note
will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $
Date:
Notice: The signature(s) on this Option to Elect Repayment must correspond with
the name(s) as written upon the face of this Note in every particular, without
alteration or enlargement or any change whatsoever.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply, this Note shall be subject to the terms set
forth in such Addendum or such "Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by the
Company by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.]
Exhibit 3
Instruction No.
Kentucky Power Company
Unsecured Medium Term Notes, Series A
Instructions
(Fixed Rate)
To: Bankers Trust Company, as Trustee
Trade or sale date:
Principal Amount: $
Maturity Date:
Interest Rate: ______%
Redemption Provisions:
Redeemable: Yes___ No___
In Whole: Yes___ No___
In Part: Yes___ No___
Initial Redemption Date:
Redemption Limitation Date:
Initial Redemption Price:
Reduction Percentage:
Original Issue Date:
Public Offering Price: ______%
Presenting Agent's Commission: ______%
Net Proceeds to Company: ______%
CUSIP No.: _____________________
Account number of participant account maintained by DTC on behalf of Presenting
Agent:
Account number of participant account maintained by DTC on behalf of Trustee:
Each Presenting Agent's name and proportionate amount of Global Note:
Name in which the Note is to be registered (Registered Owner):
Cede & Co.
Address and taxpayer identification number of Registered Owner and address for
payment:
The Depository Trust Company
55 Water Street
New York, NY 10041
#13-2555119
Discount Security: Yes___ No___
Yield to Maturity: ________%
Initial Accrual Period: __________________________________________
Account of Company into which net proceeds are to be deposited:
- --------------------------------------------------
Any Other Book-Entry Note represented by Global Security (to the extent known):
KENTUCKY POWER COMPANY
By:____________________________
(President, Vice President,
or Treasurer)
Exhibit 4
Instruction No.
Kentucky Power Company
Unsecured Medium Term Notes, Series A
Instructions
(Floating Rate)
To: Bankers Trust Company, as Trustee
Trade or sale date:
Principal Amount: $
Maturity Date:
Initial Interest Rate: ______%
Original Issue Date:
Public Offering Price: ______%
Presenting Agent's Commission: ______%
Net Proceeds to Company: ______%
CUSIP No.: _____________________
Calculation Agent:
Interest Calculation:
[ ] Regular Floating Rate Note [ ] Floating Rate/Fixed Rate Note
[ ] Inverse Floating Rate Note (Fixed Rate Commencement
Date):
(Fixed Interest Rate): (Fixed Interest Rate):
[ ] Other Floating Rate Note
[see attached]
Interest Rate Basis:
[ ] CD Rate [ ] Federal Funds Rate [ ] Treasury Rate [ ] Commercial Paper Rate
[ ] LIBOR [ ] Other [ ] CMT Rate [ ] Prime Rate
If LIBOR, Designated LIBOR Page: [ ] LIBOR Reuters, Reuters Page:
[ ] LIBOR Telerate, Telerate Page:
Designated LIBOR Currency:
If CMT Rate, Designated CMT Maturity Index:
Designated LIBOR Currency:
Initial Interest Reset Date: Spread (+/-)
Interest Reset Dates: Spread Multiplier:
Interest Payment Dates: Maximum Interest Rate:
Index Maturity: Minimum Interest Rate:
Day Count Convention:
[ ] Actual/360 for the period from __________ to __________ [ ] Actual/Actual
for the period from __________ to __________ [ ] 30/360 for the period from
__________ to __________
Redemption:
[ ] The Notes cannot be redeemed prior to the Stated Maturity.
[ ] The Notes may be redeemed prior to Stated Maturity.
Initial Redemption Date:
Initial Redemption Percentage: ______%
Annual Redemption Percentage Reduction: ____% until Redemption
Percentage is 100% of the Principal Amount.
Currency
Specified Currency: ________ (If other than U.S. dollars, see attached)
Minimum Denominations: ________ (Applicable only if Specified Currency
is other than U.S. dollars)
Account number of participant account maintained by DTC on behalf of Presenting
Agent:
Account number of participant account maintained by DTC on behalf of Trustee:
Each Presenting Agent's name and proportionate amount of Global Note:
Name in which the Note is to be registered (Registered Owner):
Cede & Co.
Address and taxpayer identification number of Registered Owner and address for
payment:
The Depository Trust Company
55 Water Street
New York, NY 10041
#13-2555119
Yield of U.S. Treasury securities of
comparable maturity maturing at ________%
Discount Security: Yes___ No___
Yield to Maturity: ________%
Initial Accrual Period: __________________________________________
Account of Company into which net proceeds are to be deposited:
- --------------------------------------------------
Any Other Book-Entry Note represented by Global Security (to the extent known):
KENTUCKY POWER COMPANY
By:____________________________
(President, Vice President,
or Treasurer)
Exhibit 5
April 6, 1999
Kentucky Power Company
1701 Central Avenue
Ashland, Kentucky 41101
Dear Sirs:
With respect 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 Unsecured Notes (the
"Unsecured Notes") under an Indenture between the Company and Bankers Trust
Company, as Trustee (the "Indenture"), we wish to advise you as follows.
We are of the opinion that, when the steps mentioned in the next
paragraph below have been taken, the Unsecured Notes will be valid and legally
binding obligations of the Company, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
The steps to be taken which are referred to in the next preceding
paragraph consist of the following:
(1) Appropriate definitive action by the Board of Directors of
the Company with respect to the proposed transactions set forth in said
Registration Statement:
(2) Appropriate action by and before the Kentucky Public
Service Commission in respect of the proposed transactions set forth in
said Registration Statement;
(3) Compliance with the Securities Act of 1933, as amended,
and with the Trust Indenture Act of 1939, as amended; and
(4) Issuance and sale of the Unsecured Notes by the Company in
accordance with the Indenture and the governmental and corporate
authorizations aforesaid.
Insofar as this opinion relates to matters governed by laws other
than the laws of the State of New York and the Federal law of the United States,
this firm has consulted, and may consult further, with counsel in which this
firm has confidence and will rely, as to such matters, upon such opinions or
advice of such counsel which will be delivered to this firm prior to the closing
of the sale of the Unsecured Notes.
We consent to the filing of this opinion as an exhibit to said
Registration Statement and to the use of our name and the inclusion of the
statements in regard to us set forth in said Registration Statement under the
caption "Legal Opinions".
Very truly yours,
/s/ SIMPSON THACHER & BARTLETT
SIMPSON THACHER & BARTLETT
Exhibit 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Kentucky Power Company on Form S-3 of our reports dated February
23, 1999, appearing in and incorporated by reference in the Annual Report on
Form 10-K of Kentucky Power Company for the year ended December 31, 1998 and to
the reference to us under the heading "Experts" in the Prospectus, which is part
of this Registration Statement.
/S/ Deloitte & Touche LLP
Deloitte & Touche LLP
Columbus, Ohio
April 6, 1999
EXHIBIT 24
KENTUCKY POWER COMPANY
POWER OF ATTORNEY
Each of the undersigned directors or officers of KENTUCKY POWER
COMPANY, a Kentucky corporation, which is to file with the Securities and
Exchange Commission, Washington, D.C. 20549, under the provisions of the
Securities Act of 1933, as amended, one or more Registration Statements for the
registration thereunder of up to $150,000,000 aggregate principal amount of its
first mortgage bonds or senior or subordinated debt (including junior
subordinated debentures), or other promissory notes, or a combination of each,
in one or more new series, each series to have a maturity of not more than 42
years, does hereby appoint E. LINN DRAPER, JR., HENRY W. FAYNE, BRUCE M. BARBER
and ARMANDO A. PENA his true and lawful attorneys, and each of them his true and
lawful attorney, with power to act without the others, and with full power of
substitution or resubstitution, to execute for him and in his name said
Registration Statement(s) and any and all amendments thereto, whether said
amendments add to, delete from or otherwise alter the Registration Statement(s)
or the related Prospectus(es) included therein, or add or withdraw any exhibits
or schedules to be filed therewith and any and all instruments necessary or
incidental in connection therewith, hereby granting unto said attorneys and each
of them full power and authority to do and perform in the name and on behalf of
each of the undersigned, and in any and all capacities, every act and thing
whatsoever required or necessary to be done in and about the premises, as fully
and to all intents and purposes as each of the undersigned might or could do in
person, hereby ratifying and approving the acts of said attorneys and each of
them.
IN WITNESS WHEREOF the undersigned have hereunto set their hands and
seals this 24th day of February, 1999.
/s/ E. Linn Draper /s/ H. W. Fayne
E. Linn Draper, Jr. L.S. H. W. Fayne L.S.
/s/ A. A. Pena /s/ J. J. Markowsky
A. A. Pena L.S. J. J. Markowsky L.S.
/S/ Wm. J. Lhota /s/ J. H. Vipperman
Wm. J. Lhota L.S. J. H. Vipperman L.S.
<PAGE>
CERTIFICATE
I, John F. Di Lorenzo, Jr., Secretary of Kentucky Power Company, do hereby
certify that the attached constitutes a true and exact copy of resolutions duly
adopted by the Board of Directors of said Company at a meeting of said Board
duly held on February 24, 1999. I further certify that said resolutions have not
been altered, amended or rescinded, and that they are in full force and effect
at the date hereof.
IN WITNESS WHEREOF, I have hereunto set my hand at Columbus, Ohio this 6th
day of April, 1999.
/S/ John F. Di lorenzo, Jr.
John F. Di Lorenzo, Jr.
Secretary
<PAGE>
KENTUCKY POWER COMPANY
February 24, 1999
The Chairman outlined a proposed financing program through December
31, 2000 of the Company involving the issuance and sale, either at competitive
bidding, through a negotiated public offering with one or more agents or
underwriters or through private placement, of up to $150,000,000 (or its
equivalent in another currency or composite currency)aggregate principal amount
of debt securities comprised of first mortgage bonds or secured or unsecured
promissory notes (including Junior Subordinated Debentures), or a combination of
each, in one or more new series, each series to have a maturity of not more than
forty-two years ("Debt Securities"). The Chairman stated that, as an alternative
to issuing Debt Securities, the Company might enter into a term loan agreement
or note purchase agreement with one or more commercial banks, financial
institutions or other institutional investors, providing for the issuance of
unsecured notes with a maturity in excess of nine months in an aggregate
principal amount of up to $150,000,000 ("Term Notes").
The Chairman then explained that it was proposed that the proceeds
to be received in connection with the proposed sale of Debt Securities and the
Term Notes would be added to the general funds of the Company and used to pay at
maturity, or prepay as may be appropriate and as may then be desirable, or
purchase directly or indirectly, currently outstanding debt or for other
corporate purposes.
Thereupon, on motion duly made and seconded, it was unanimously
RESOLVED, that the proposed financing program of this Company,
as outlined at this meeting, be, and the same hereby is, in all
respects ratified, confirmed and approved; and further
RESOLVED, that the proper officers of this Company be, and
they hereby are, authorized to take all steps necessary, or in their
opinion desirable, to carry out the financing program outlined at
this meeting.
The Chairman informed the meeting that the Company had made an
application to the Kentucky Public Service Commission for authorization to issue
$150,000,000 of Debt Securities through December 31, 2000. The Chairman also
stated that it may be necessary to file one or more Registration Statements
pursuant to the applicable provisions of the Securities Act of 1933, as amended,
and to register or qualify the securities to be sold pursuant to such financing
program under the "blue sky" laws of various jurisdictions.
Thereupon, on motion duly made and seconded, it was unanimously
RESOLVED, in connection with the proposed financing program
approved at this meeting, the actions taken by the proper officers
of this Company be, in executing and filing, an application with the
Kentucky Public Service Commission be, and they hereby are,
ratified, confirmed and approved; and further
RESOLVED, that the proper officers of this Company be, and
they hereby are, authorized to execute and file with the Securities
and Exchange Commission ("SEC") on behalf of the Company one or more
Registration Statements pursuant to the applicable provisions of the
Securities Act of 1933, as amended; and further
RESOLVED, that it is desirable and in the best interest of the
Company that the Debt Securities be qualified or registered for sale
in various jurisdictions; that the Chairman of the Board, the
President, any Vice President or the Treasurer and the Secretary or
an Assistant Secretary hereby are authorized to determine the
jurisdictions in which appropriate action shall be taken to qualify
or register for sale all or such part of the Debt Securities of the
Company as said officers may deem advisable; that said officers are
hereby authorized to perform on behalf of the Company any and all
such acts as they may deem necessary or advisable in order to comply
with the applicable laws of any such jurisdictions, and in
connection therewith to execute and file all requisite papers and
documents, including, but not limited to, applications, reports,
surety bonds, irrevocable consents and appointments of attorneys for
service of process; and the execution by such officers of any such
paper or document or the doing by them of any act in connection with
the foregoing matters shall conclusively establish their authority
therefor from the Company and the approval and ratification by the
Company of the papers and documents so executed and the action so
taken; and further
RESOLVED, that the proper officers of this Company be, and
they hereby are, authorized and directed to take any and all further
action in connection therewith, including the execution and filing
of such amendment or amendments, supplement or supplements and
exhibit or exhibits thereto as the officers of this Company may deem
necessary or desirable.
The Chairman indicated to the meeting that it may be desirable that
the Debt Securities be listed on the New York Stock Exchange and in connection
with any such application, to register the Debt Securities under the Securities
Exchange Act of 1934, as amended.
Thereupon, it was, on motion duly made and seconded, unanimously
RESOLVED, that the officers of this Company be, and they
hereby are, authorized, in their discretion, to make one or more
applications, on behalf of this Company, to the New York Stock
Exchange for the listing of up to $150,000,000 aggregate principal
amount of Debt Securities; and further
RESOLVED, that H. W. Fayne, Bruce M. Barber and Armando A.
Pena, or any one of them, be, and they hereby are, designated to
appear before the New York Stock Exchange with full authority to
make such changes in any such application or any agreements
relating thereto as may be necessary or advisable to conform with
the requirements for listing; and further
RESOLVED, that the proper officers be, and they hereby are,
authorized to execute and file, on behalf of this Company, one or
more applications for the registration of up to $150,000,000
aggregate principal amount of Debt Securities with the Securities
and Exchange Commission pursuant to the provisions of the Securities
Exchange Act of 1934, as amended, in such form as the officers of
this Company executing the same may determine; and further
RESOLVED, that the Chairman of the Board, the President, any
Vice President or the Treasurer and the Secretary or any Assistant
Secretary be, and each of them hereby is, authorized, in the event
any said application for listing is made, to execute and deliver on
behalf of this Company an indemnity agreement in such form, with
such changes therein as the officers executing the same may approve,
their execution to be conclusive evidence of such approval; and
further
RESOLVED, that the Chairman of the Board, the President, any
Vice President or the Treasurer be, and each of them hereby is,
authorized to take any other action and to execute any other
documents that in their judgment may be necessary or desirable in
connection with listing the Debt Securities on the New York Stock
Exchange.
The Chairman further stated that, in connection with the filing with
the SEC of one or more Registration Statements relating to the proposed issuance
and sale of up to $150,000,000 of Debt Securities, there was to be filed with
the SEC a Power of Attorney, dated February 24, 1999, executed by the officers
and directors of this Company appointing true and lawful attorneys to act in
connection with the filing of such Registration Statement(s) and any and all
amendments thereto.
Thereupon, on motion duly made and seconded, the following preambles
and resolutions were unanimously adopted:
WHEREAS, Kentucky Power Company proposes to file with the SEC
one or more Registration Statements for the registration pursuant to
the applicable provisions of the Securities Act of 1933, as amended,
of up to $150,000,000 aggregate principal amount of Debt Securities,
in one or more new series, each series to have a maturity of not
less than nine months and not more than forty-two years; and
WHEREAS, in connection with said Registration Statement(s),
there is to be filed with the SEC a Power of Attorney, dated
February 24, 1999, executed by certain of the officers and directors
of this Company appointing E. Linn Draper, Jr., Henry W. Fayne,
Bruce M. Barber and Armando A. Pena, or any one of them, their true
and lawful attorneys, with the powers and authority set forth in
said Power of Attorney;
NOW, THEREFORE, BE IT
RESOLVED, that each and every one of said officers and
directors be, and they hereby are, authorized to execute said Power
of Attorney; and further
RESOLVED, that any and all action hereafter taken by any of
said named attorneys under said Power of Attorney be, and the same
hereby is, ratified and confirmed and that said attorneys shall have
all the powers conferred upon them and each of them by said Power of
Attorney; and further
RESOLVED, that said Registration Statement(s) and any
amendments thereto, hereafter executed by any of said attorneys
under said Power of Attorney be, and the same hereby are, ratified
and confirmed as legally binding upon this Company to the same
extent as if the same were executed by each said officer and
director of this Company personally and not by any of said
attorneys.
The Chairman advised the meeting that it was proposed to designate
independent counsel for the successful bidder or bidders and/or agents of the
Company for the new series of Debt Securities proposed to be issued and sold in
connection with the proposed financing program of the Company.
Thereupon, on motion duly made and seconded, it was unanimously
RESOLVED, that Dewey Ballantine LLP be, and said firm hereby
is, designated as independent counsel for the successful bidder or
bidders and/or agents of the Company for the new series of Debt
Securities of this Company proposed to be issued and sold in
connection with the proposed financing program of this Company.
The Chairman stated that it may be desirable to enter into a
treasury hedge agreement, such as a treasury lock agreement, treasury put option
or interest rate collar agreement ("Treasury Hedge Agreement") to protect
against future interest rate movements in connection with the issuance of the
Debt Securities or Term Notes. He recommended that the Board authorize the
appropriate officers of the Company to enter into a Treasury Hedge Agreement,
provided that the amount covered by such Agreement would not exceed the
principal amount of Debt Securities or Term Notes the Company anticipates
offering and that the term of such Agreement will not exceed 90 days.
Thereupon, it was, on motion duly made and seconded, unanimously
RESOLVED, that the Chairman of the Board, the President, any
Vice President or the Treasurer of this Company be, and each of them
hereby is, authorized to execute and deliver in the name and on
behalf of this Company, a Treasury Hedge Agreement in such form as
shall be approved by the officer executing the same, such execution
to be conclusive evidence of such approval, provided that the amount
covered by such Agreement would not exceed the principal amount of
Debt Securities or Term Notes the Company anticipates offering and
that the term of such Agreement will not exceed 90 days; and further
RESOLVED, that the proper officers of the Company be, and they
hereby are, authorized to execute and deliver such other documents
and instruments, and to do such other acts and things, that in their
judgment may be necessary or desirable in connection with the
transactions authorized in the foregoing resolutions.
The Chairman explained that, with respect to the issuance of up to
$150,000,000 of Debt Securities through one or more agents under a medium term
note program, the Company could enter into a Selling Agency Agreement. The
Chairman recommended that the Board authorize the appropriate officers of the
Company to enter into one or more Selling Agency Agreements with securities
dealers yet to be determined.
Thereupon, upon motion duly made and seconded, it was unanimously
RESOLVED, that the Chairman of the Board, the President, any
Vice President or the Treasurer of this Company be, and each of them
hereby is, authorized to execute and deliver in the name and on
behalf of this Company, one or more Selling Agency Agreements with
such securities dealers in such form as shall be approved by the
officer executing the same, such execution to be conclusive evidence
of such approval; and further
RESOLVED, that the proper officers of the Company be, and they
hereby are, authorized to execute and deliver such other documents
and instruments, and to do such other acts and things, that in their
judgment may be necessary or desirable, in connection with the
transactions authorized in the foregoing resolutions.
The Chairman next explained that the Company could also enter into
an Underwriting Agreement (the "Underwriting Agreement") with certain
underwriters, under which the underwriters may purchase up to $150,000,000
aggregate principal amount of Debt Securities having an interest rate and
maturity to be determined, such interest rate not to exceed 9% per annum and the
maturity thereof to be not less than nine months nor more than 42 years. Any
initial fluctuating rate of interest on any first mortgage bonds will not exceed
9% per annum at the time of issuance. The Chairman recommended that the Board
authorize the appropriate officers of the Company to enter into an Underwriting
Agreement and determine the purchase price of the Debt Securities, provided that
the price shall not be less than 95%, including compensation to the
underwriters, of the aggregate principal amount of the Debt Securities.
Thereupon, it was, on motion duly made and seconded, unanimously
RESOLVED, that the Chairman of the Board, the President, any
Vice President or the Treasurer of this Company be, and each of them
hereby is, authorized to execute and deliver in the name and on
behalf of this Company, an Underwriting Agreement in such form as
shall be approved by the officer executing the same, such execution
to be conclusive evidence of such approval, provided that the
purchase price of the Debt Securities shall not be less than 95%
(including compensation to the underwriters), of the aggregate
principal amount of the Debt Securities; and further
RESOLVED, that the proper officers of the Company be, and they
hereby are, authorized to execute and deliver such other documents
and instruments, and to do such other acts and things, that in their
judgment may be necessary or desirable in connection with the
transactions authorized in the foregoing resolutions.
The Chairman related to the meeting that any Underwriting Agreement
and any Selling Agency Agreement would be entered into in connection with the
issuance of Debt Securities. He further noted that, in order to enable the
Company to perform its obligations under the Selling Agency Agreement or the
Underwriting Agreement approved at this meeting providing for the sale of up to
$150,000,000 aggregate principal amount of First Mortgage Bonds, it was proposed
that the Board authorize the appropriate officers to create one or more new
series of First Mortgage Bonds, to be issued under the Mortgage and Deed of
Trust, dated May 1, 1949, of the Company to Bankers Trust Company, as Trustee,
as heretofore supplemented and amended, and as to be supplemented and amended by
one or more additional Supplemental Indentures to the Mortgage and Deed of
Trust, each of said new series of First Mortgage Bonds to be entitled and
designated as, in the case of a medium term note program, "First Mortgage Bonds,
Designated Secured Medium Term Notes, ______% Series due ____________", and, in
the case of an Underwriting Agreement, "First Mortgage Bonds, _____% Series due
___________", with the interest rate, maturity and certain other terms of each
such series of First Mortgage Bonds to be designated at the time of creation
thereof, such interest rate not to exceed 9% per annum and the maturity thereof
to be not less than nine months nor more than 42 years.
Thereupon, after full and thorough discussion, it was, on motion
duly made and seconded, unanimously
RESOLVED, that the officers of this Company (including the
Chairman of the Board, the President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary) be, and they hereby are, authorized to create up to
$150,000,000 aggregate principal amount of First Mortgage Bonds in
one or more series, each series to be issued under and secured by
the Mortgage and Deed of Trust, dated May 1, 1949, of the Company to
Bankers Trust Company, as Trustee, and certain indentures
supplemental thereto, including one or more additional Supplemental
Indentures to the Mortgage and Deed of Trust, in such form as shall
be approved by the officer executing the same, such execution to be
conclusive evidence of such approval, to be made by this Company to
Bankers Trust Company, as Trustee (said Mortgage and Deed of Trust
as heretofore supplemented and amended, and as to be supplemented
and amended, being hereinafter called the "Mortgage"), each series
to be designated and to be distinguished from bonds of all other
series by the title, in the case of a medium term note program,
"First Mortgage Bonds, Designated Secured Medium Term Notes, ______%
Series due ____________", and, in the case of an Underwriting
Agreement, "First Mortgage Bonds, ______% Series due ____________",
(hereinafter called "bonds of each New Series"), provided that the
interest rate, maturity and the applicable redemption provisions, if
any, and such other terms, including, but not limited to, interest
payment dates and record payment dates, shall be designated at the
time of creation thereof and such maturity shall not be less than
nine months nor more than 42 years and further provided that any
fixed rate of interest rate applicable to First Mortgage Bonds will
not exceed by more than 3.5% the yield to maturity of United States
Treasury bonds of comparable maturity at the time of pricing of the
First Mortgage Bonds and any initial interest rate on any variable
rate First Mortgage Bonds will not exceed 9% per annum; and further
RESOLVED, that the officers of this Company (including the
Chairman of the Board, the President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary or any Assis-tant
Secretary) be, and they hereby are, autho-rized and directed to
execute and deliver, under the seal of and on behalf of this
Company, one or more additional Supplemental Indentures, specify-ing
the designation, terms, redemption provisions and other provisions
of the bonds of each New Series and providing for the creation of
the bonds of each New Series and effecting the amendments to the
Mortgage described therein, such instrument to be substantially in
such form as shall be approved by the officer executing the same,
such execution to be conclusive evidence of such approval; that
Bankers Trust Company is hereby requested to join in the execution
of said Supplemental Indentures, as Trustee; and that the officers
(including the Chairman of the Board, the President, any Vice
President, the Treasurer, any Assistant Treasurer, the Secretary or
any Assistant Secretary) of this Company be, and they hereby are,
authorized and directed to record and file, or to cause to be
recorded and filed, said Supplemental Indentures in such offices of
record and take such other action as may be deemed necessary or
advisable in the opinion of counsel for the Company; and that such
officers be, and they hereby are, authorized to determine and
establish the basis on which the bonds of each New Series shall be
authenticated under the Mortgage; and further
RESOLVED, that the terms and provisions of the bonds of each
New Series and the forms of the registered bonds of each New Series
and of the Trustee's Authentication Certificate be, and they hereby
are, established as provided in the form of Supplemental Indenture
to the Mortgage hereinbefore authorized, with such changes as may be
required upon the establishment of the further terms thereof by the
appropriate officers of the Company as herein authorized; and
further
RESOLVED, that the registered bonds of each New Series shall
be substantially in the form set forth in the form of Supplemental
Indenture approved at this meeting; and further
RESOLVED, that, subject to compliance with the provisions of
Article VI or VII of the Mortgage, the Chairman of the Board, the
President, any Vice President or the Treasurer and the Secretary or
any Assistant Secretary of this Company be, and they hereby are,
authorized and directed to execute under the seal of this Company in
accordance with the provisions of Section 14 of Article II of the
Mortgage (the signatures of such officers to be effected either
manually or by facsimile, in which case such facsimile is hereby
adopted as the signature of such officer thereon), and to deliver to
Bankers Trust Company, as Trustee under the Mortgage, bonds of each
New Series in the aggregate principal amount of up to $150,000,000
as definitive fully registered bonds without coupons in such
denominations as may be permitted under the Mortgage; and further
RESOLVED, that if any authorized officer of this Company who
signs, or whose facsimile signature appears upon, any of the bonds
of each New Series ceases to be such an officer prior to their
issuance, the bonds of each New Series so signed or bearing such
facsimile signature shall nevertheless be valid; and further
RESOLVED, that, subject as aforesaid, Bankers Trust Company,
as such Trustee, be, and it hereby is, requested to authenticate, by
the manual sig-nature of an authorized officer of such Trustee,
bonds of each New Series and to deliver the same from time to time
in accordance with the written order of this Company signed in the
name of this Company by its Chairman, President or one of its Vice
Presidents and its Treasurer or one of its Assistant Treasurers; and
further
RESOLVED, that the Chairman of the Board, the President, any
Vice President, the Treasurer or any Assistant Treasurer of the
Company be, and they hereby are, authorized to execute any
Trea-surer's Certificate required by Section 28(2) of Article VI and
Section 29(2) of Article VII of the Mortgage, in connection with the
authentication and delivery of the bonds of the New Series, and in
connection with any other actions taken, or to be taken, under the
Mortgage; and further
RESOLVED, that the law firm of Gray, Woods & Cooper and that
John F. DiLorenzo, Jr. of Upper Arlington, Ohio, Thomas G.
Berkemeyer of Hilliard, Ohio, Ann B. Graf of Columbus, Ohio, and
David C. House of Upper Arlington, Ohio, attorneys and employees of
American Electric Power Service Corporation, an affiliate of this
Company, be, and each of them hereby is, appointed Counsel to render
the Opinion of Counsel required by Article VI, Section 28(7) or
Article VII, Section 29(3) of said Mortgage in connection with the
authentica-tion and delivery of the bonds of each New Series; and
further
RESOLVED, that William J. Lhota of Worthing-ton, Ohio, James
J. Markowsky of Worthington, Ohio, John R. Jones, III of Dublin,
Ohio or Bruce A. Renz of Worthington, Ohio, engineers and officers
of American Electric Power Service Corporation, an affiliate of this
Company, be, and each of them hereby is, appointed the Engineer to
make with the President, any Vice President, the Treasurer or an
Assistant Treasurer of this Company any Engineer's Certificate
required by Article VI of the Mortgage, in connection with the
authentication and delivery of the bonds of each New Series; and
further
RESOLVED, that the office of Bankers Trust Company at Four
Albany Street, in the Borough of Manhattan, The City of New York,
be, and it hereby is, fixed as the office or agency of this Company
for the payment of the principal of and the interest on the bonds of
each New Series and as the office or agency of the Company in The
City of New York for the registration, transfer and exchange of
registered bonds of each New Series; and further
RESOLVED, that said Bankers Trust Company, be, and it hereby
is, appointed as the agent of this Company, in the Borough of
Manhattan, The City of New York for the payment of the principal of
and interest on the bonds of each New Series, and for the
registration, transfer and exchange of registered bonds of each New
Series; and further
RESOLVED, that said Bankers Trust Company, be, and it hereby
is, appointed the withholding agent and attorney of this Company for
the purpose of withholding any and all taxes required to be withheld
by the Company under the Federal revenue acts from time to time in
force and the Treasury Department regulations pertaining thereto,
from interest paid from time to time on bonds of each New Series,
and is hereby authorized and directed to make any and all payments
and reports and to file any and all returns and accompanying
certifi-cates with the Federal Government which it may be permitted
or required to make or file as such agent under any such revenue act
and/or Treasury Department regulation pertaining thereto; and
further
RESOLVED, that, until further action by this Board, the
officers of this Company be, and they hereby are, authorized and
directed to effect transfers and exchanges of bonds of each New
Series, pursuant to Section 12 of the Mortgage without charging a
sum for any bond of the New Series issued upon any such transfer or
exchange other than a charge in connection with each such transfer
or exchange sufficient to reimburse the Company for any tax or other
governmental charge required to be paid by the Company in connection
therewith; and further
RESOLVED, that the firm of Deloitte & Touche LLP be, and they
hereby are, appointed as inde-pendent accountants to render any
independent public accountant's certificate required under Section
28 of the Mortgage; and further
RESOLVED, that the officers of the Company be, and they hereby
are, authorized and directed to execute such instruments and papers
and to do any and all acts as to them may seem necessary or
desirable to carry out the purposes of the fore-going resolutions.
The Chairman explained that as an alternative to the issuance of
First Mortgage Bonds, the Company may issue and sell unsecured notes ("Notes")
pursuant to a Selling Agency Agreement or an Underwriting Agreement. He further
noted that, in order to enable the Company to perform its obligations under the
Selling Agency Agreement or the Underwriting Agreement approved at this meeting
providing for the sale of up to $150,000,000 aggregate principal amount of the
Notes, it was necessary that the Board authorize the execution and delivery of
one or more Company Orders or Supplemental Indentures to the Indenture dated
September 1, 1997, between the Company and Bankers Trust Company (the
"Supplemental Indenture"), in such form as shall be approved by the officer
executing the same, such execution to be conclusive evidence of such approval.
The terms of each series of Notes will be established under a Company Order or a
Supplemental Indenture. The interest rate, maturity and certain other terms have
not yet been determined. The Chairman recommended that the Board authorize the
appropriate officers of the Company to determine the financial terms and
conditions of the Notes, including without limitation, (i) the principal amount
of the Notes to be sold in each offering, (ii) the interest or method of
determining the interest on the Notes (iii) the maturity (which shall not exceed
42 years from the date of issuance) and redemption provisions of the Notes and
(iv) such other terms and conditions as are contemplated or permitted by the
Indenture, a Company Order or a Supplemental Indenture. Any fixed interest rate
applicable to the Notes would not exceed by more than 3.5% the yield to maturity
at the date of pricing on United States Treasury Bonds of comparable maturity.
Any initial fluctuating interest rate applicable to the Notes would not exceed
9% at the time of issuance.
Thereupon, it was, on motion duly made and seconded, unanimously
RESOLVED, that the Chairman of the Board, the President, any
Vice President, the Treasurer or any Assistant Treasurer and the
Secretary or any Assistant Secretary be, and they hereby are,
authorized to create up to $150,000,000 aggregate principal amount
of Notes to be issued under the Indenture and one or more
Supplemental Indentures or Company Orders, in such form as shall be
approved by the officer executing the same, such execution to be
conclusive evidence of such approval and with such financial terms
and conditions as determined by appropriate officers of this
Company, pursuant to the Indenture and one or more Supplemental
Indentures or Company Orders, and with either a fixed rate of
interest which shall not exceed by more than 3.5% the yield to
maturity at the date of pricing on United States Treasury bonds of
comparable maturity or at an initial fluctuating rate of interest
which at the time of issuance would not exceed 9%, or at a
combination of such described fixed or fluctuating rates, and to
specify the maturity, redemption or tender provisions and other
terms, at the time of creation thereof with the maturity not to
exceed 42 years; and further
RESOLVED, that the Chairman of the Board, the President, any
Vice President, the Treasurer or any Assistant Treasurer and the
Secretary or any Assistant Secretary be, and they hereby are,
authorized and directed to execute and deliver, on behalf of this
Company, one or more Supplemental Indentures or Company Orders,
specifying the designation, terms, redemption provisions and other
provisions of the Notes and providing for the creation of each
series of Notes, each such instrument to be substantially in the
form presented to this meeting, with such insertions therein and
changes thereto as shall be approved by the officer executing the
same, such execution to be conclusive evidence of such approval;
that Bankers Trust Company is hereby requested to join in the
execution of any Supplemental Indenture, as Trustee; and further
RESOLVED, that the Chairman of the Board, the President, any
Vice President, the Treasurer or any Assistant Treasurer be, and
they hereby are, authorized and directed to execute and deliver, on
behalf of this Company, a certificate requesting the authentication
and delivery of any such Notes and establishing the terms of any
tranche of such series or specifying procedures for doing so; and
further
RESOLVED, that the Chairman of the Board, the President, any
Vice President or the Treasurer and the Secretary or any Assistant
Secretary of this Company be, and they hereby are, authorized and
directed to execute in accordance with the provisions of the
Indenture (the signatures of such officers to be effected either
manually or by facsimile, in which case such facsimile is hereby
adopted as the signature of such officer thereon), and to deliver to
Bankers Trust Company, as Trustee under the Indenture, the Notes in
the aggregate principal amount of up to $150,000,000 as definitive
fully registered bonds without coupons in such denominations as may
be permitted under the Indenture; and further
RESOLVED, that if any authorized officer of this Company who
signs, or whose facsimile signature appears upon, any of the Notes
ceases to be such an officer prior to their issuance, the Notes so
signed or bearing such facsimile signature shall nevertheless be
valid; and further
RESOLVED, that, subject as aforesaid, Bankers Trust Company,
as such Trustee, be, and it hereby is, requested to authenticate, by
the manual signature of an authorized officer of such Trustee, the
Notes and to deliver the same from time to time in accordance with
the written order of this Company signed in the name of this Company
by its Chairman, President, any Vice President, the Treasurer or any
Assistant Treasurer; and further
RESOLVED, that John F. DiLorenzo, Jr. of Upper
Arlington, Ohio, Thomas G. Berkemeyer of Hilliard, Ohio,
Ann B. Graf of Columbus, Ohio, David C. House of Upper
Arlington, Ohio, and William E. Johnson of Dublin, Ohio,
attorneys and employees of American Electric Power Service
Corporation, an affiliate of this Company, be, and each of
them hereby is, appointed Counsel to render any Opinion of
Counsel required by the Indenture in connection with the
authentication and delivery of the Notes; and further
RESOLVED, that the office of Bankers Trust Company, at Four
Albany Street, in the Borough of Manhattan, The City of New York,
be, and it hereby is, designated as the office or agency of this
Company, in accordance with the Indenture, for the payment of the
principal of and the interest on the Notes, for the registration,
transfer and exchange of Notes and for notices or demands to be
served on the Company with respect to the Notes; and further
RESOLVED, that said Bankers Trust Company, be, and it hereby
is, appointed the withholding agent and attorney of this Company for
the purpose of withholding any and all taxes required to be withheld
by the Company under the Federal revenue acts from time to time in
force and the Treasury Department regulations pertaining thereto,
from interest paid from time to time on the Notes, and is hereby
authorized and directed to make any and all payments and reports and
to file any and all returns and accompanying certificates with the
Federal Government which it may be permitted or required to make or
file as such agent under any such revenue act and/or Treasury
Department regulation pertaining thereto; and further
RESOLVED, that the officers of this Company be, and they
hereby are, authorized and directed to effect transfers and
exchanges of the Notes, pursuant to the Indenture without charging a
sum for any Note issued upon any such transfer or exchange other
than a charge in connection with each such transfer or exchange
sufficient to cover any tax or other governmental charge in relation
thereto; and further
RESOLVED, that Bankers Trust Company be, and it hereby is,
appointed as Note Registrar in accordance with the Indenture; and
further
RESOLVED, that the officers of the Company be, and they hereby
are, authorized and directed to execute such instruments and papers
and to do any and all acts as to them may seem necessary or
desirable to carry out the purposes of the foregoing resolutions.
The Chairman then stated that one or more insurance companies may
insure the payment of principal and interest on certain types of Debt Securities
as such payments become due pursuant to a financial guaranty insurance policy
("Insurance Policy"). In this connection, the Company proposes to enter into one
or more Insurance Agreements, in such form as shall be approved by the officer
executing the same, such execution to be conclusive evidence of such approval.
Thereupon, after discussion, on motion duly made and seconded, it
was unanimously
RESOLVED, that the proper officers of the Company be, and they
hereby are, authorized to deliver on behalf of the Company one or
more Insurance Agreements with an insurance company of their choice,
in such form as shall be approved by the officer executing the same,
such execution to be conclusive evidence of such approval; and
further
RESOLVED, that the proper officers of the Company be, and they
hereby are, authorized on behalf of the Company to take such further
action and do all other things that any one of them shall deem
necessary or appropriate in connection with, the Insurance Policy
and the Insurance Agreement.
The Chairman noted that as an additional alternative to the issuance
of First Mortgage Bonds or Notes, the Company may issue and sell Junior
Subordinated Debentures pursuant to an Underwriting Agreement. He then reminded
the Board that the Company has entered into an Indenture with The First National
Bank of Chicago dated as of April 1, 1995 ("Indenture") in connection with the
Company's issuance of junior subordinated debentures ("Debentures"). The
Chairman stated that, in connection with the proposed sale of up to $150,000,000
aggregate principal amount of Debentures, it was necessary that the Board of
Directors of this Company authorize the execution and delivery of one or more
Supplemental Indentures to the Indenture ("Supplemental Indenture"). The
Debentures will be created under the Supplemental Indenture and will also allow
the Company to defer payment of interest for up to five years. The Chairman then
recommended that the Board authorize the appropriate officers of the Company to
create the Debentures and specify the interest rate, maturity, redemption
provisions, and other terms at the time of creation with the maturity not to
exceed 42 years. Any fixed interest rate of the Debentures will exceed by more
than 3.5% the yield to maturity at the time of pricing on United States Treasury
obligations of comparable maturity. Any initial fluctuating rate on the
Debentures will not be greater than 9% at the time of issuance of the
Debentures.
Thereupon, it was, on motion duly made and seconded, unanimously
RESOLVED, that the Chairman of the Board, the President, or
any Vice President, the Treasurer, or any Assistant Treasurer and
the Secretary or any Assistant Secretary be, and they hereby are,
authorized to (i) create up to $150,000,000 aggregate principal
amount of Debentures to be issued under the Indenture and one or
more Supplemental Indentures, in such form as shall be approved by
the officer executing the same, such execution to be conclusive
evidence of such approval, to be designated and to be distinguished
from debentures of all other series by the title "Junior
Subordinated Deferrable Interest Debentures, Series __, Due
____________", and (ii) to specify the interest rate, maturity,
redemption provisions and other terms at the time of creation with
the maturity not to exceed 42 years, and with either a fixed rate of
interest which shall not exceed by more than 3.5% the yield to
maturity at the time of pricing on United States Treasury
obligations of comparable maturity or at an initial fluctuating rate
not to exceed 9% or a combination of such fixed or fluctuating
rates; and further
RESOLVED, that the Chairman of the Board, the President, any
Vice President, the Treasurer or any Assistant Treasurer, the
Secretary or any Assistant Secretary be, and they hereby are,
authorized and directed to execute and deliver, under the seal of
and on behalf of this Company, one or more Supplemental Indentures,
specifying the designation, terms, redemption provisions and other
provisions of the Debentures and providing for the creation of the
Debentures, such instrument to be substantially in such form as
shall be approved by the officer executing the same, such execution
to be conclusive evidence of such approval; that The First National
Bank of Chicago is hereby requested to join in the execution of the
Supplemental Indenture, as Trustee; and further
RESOLVED, that the terms and provisions of the Debentures and
the form of the registered Debentures and of the Trustee's
Authentication Certificate shall be established by the appropriate
officers of the Company as herein authorized; and further
RESOLVED, that the Chairman of the Board, the President, any
Vice President or the Treasurer and the Secretary or any Assistant
Secretary of this Company be, and they hereby are, authorized and
directed to execute under the seal of this Company in accordance
with the provisions of the Indenture (the signatures of such
officers to be effected either manually or by facsimile, in which
case such facsimile is hereby adopted as the signature of such
officer thereon), and to deliver to The First National Bank of
Chicago, as Trustee under the Indenture, the Debentures in the
aggregate principal amount of up to $150,000,000 as definitive fully
registered bonds without coupons in denominations of $25 or integral
multiples thereof; and further
RESOLVED, that if any authorized officer of this Company who
signs, or whose facsimile signature appears upon, any of the
Debentures ceases to be such an officer prior to their issuance, the
Debentures so signed or bearing such facsimile signature shall
nevertheless be valid; and further
RESOLVED, that, subject as aforesaid, The First National Bank
of Chicago, as such Trustee, be, and it hereby is, requested to
authenticate, by the manual signature of an authorized officer of
such Trustee, the Debentures and to deliver the same from time to
time in accordance with the written order of this Company signed in
the name of this Company by its Chairman, President, one of its Vice
Presidents or its Treasurer, and its Secretary or one of its
Assistant Secretaries; and further
RESOLVED, that John F. DiLorenzo, Jr. of Upper
Arlington, Ohio, Thomas G. Berkemeyer of Hilliard, Ohio, Ann
B. Graf of Columbus, Ohio, David C. House of Upper Arlington,
Ohio, and William E. Johnson of Dublin, Ohio, attorneys and
employees of American Electric Power Service Corporation, an
affiliate of this Company, be, and each of them hereby is,
appointed Counsel to render any Opinion of Counsel required
by of the Indenture in connection with the authentication and
delivery of the Debentures; and further
RESOLVED, that the office of The First National Bank of
Chicago, One First National Plaza, Suite 0126, Chicago, Illinois,
be, and it hereby is, designated as the office or agency of this
Company, in accordance with Section 4.02 of the Indenture, for the
payment of the principal of and the interest on the Debentures, for
the registration, transfer and exchange of Debentures and for
notices or demands to be served on the Company with respect to the
Debentures; and further
RESOLVED, that The First National Bank of Chicago, be, and it
hereby is, appointed the withholding agent and attorney of this
Company for the purpose of withholding any and all taxes required to
be withheld by the Company under the Federal revenue acts from time
to time in force and the Treasury Department regulations pertaining
thereto, from interest paid from time to time on the Debentures, and
is hereby authorized and directed to make any and all payments and
reports and to file any and all returns and accompanying
certificates with the Federal Government which it may be permitted
or required to make or file as such agent under any such revenue act
and/or Treasury Department regulation pertaining thereto; and
further
RESOLVED, that the officers of this Company be, and they
hereby are, authorized and directed to effect transfers and
exchanges of the Debentures, pursuant to Section 2.05 of the
Indenture without charging a sum for any Debenture issued upon any
such transfer or exchange other than a charge in connection with
each such transfer or exchange sufficient to cover any tax or other
governmental charge in relation thereto; and further
RESOLVED, that The First National Bank of Chicago be, and it
hereby is, appointed as Debenture Registrar in accordance with
Section 2.05(b) of the Indenture; and further
RESOLVED, that the officers of the Company be, and they hereby
are, authorized and directed to execute such instruments and papers
and to do any and all acts as to them may seem necessary or
desirable to carry out the purposes of the foregoing resolutions.
The Chairman further stated that it would be desirable to authorize
the proper officers of the Company on behalf of the Company, to enter into one
or more term loan or note purchase agreements in such form as shall be approved
by the officer executing the same, such execution to be conclusive evidence of
such approval ("Term Loan Agreement") with one or more as yet unspecified
commercial banks, financial institutions or other institutional investors, which
would provide for the Company to borrow up to $150,000,000. Such borrowings
would be evidenced by an unsecured promissory note or notes (the "Term Note") of
the Company maturing not less than nine months nor more than thirty years after
the date thereof, bearing interest to maturity at either a fixed rate, floating
rate, or combination thereof. Any fixed interest rate of the Note will not
exceed 3.5% of the yield to maturity of United States Treasury obligations that
mature on or about the date of maturity of the note. Any fluctuating rate will
not be greater than 200 basis points above the rate of interest announced
publicly by the lending bank from time to time as its base or prime rate, but in
no event will the initial fluctuating rate of interest exceed 9% at the time of
issuance.
Thereupon, upon motion duly made and seconded, it was unanimously
RESOLVED, that the Chairman of the Board, the President, any
Vice President or the Treasurer of this Company be, and each of them
hereby is, authorized to execute and deliver in the name and on
behalf of this Company, onr or more Term Loan Agreements in such
form as shall be approved by the officer executing the same, such
execution to be conclusive evidence of such approval in
substantially the form of such agreement submitted to this meeting,
at either a fixed rate of interest which shall not be greater than
3.5% above the yield to maturity of United States Treasury
obligations that mature on or about the maturity date of the Note
issued thereunder, or a fluctuating rate of interest which shall not
be greater than 350 basis points above the rate of interest
announced publicly by the lending bank from time to time as its base
or prime rate, but in no event will the initial fluctuating rate of
interest exceed 9%, or at a combination of such described fixed or
fluctuating rates; and further
RESOLVED, that the Chairman of the Board, the President, any
Vice President or the Treasurer of this Company be, and each of them
hereby is, authorized, in the name and on behalf of this Company, to
borrow from one or more commercial banks, financial institutions or
other institutional investors, up to $150,000,000, upon the terms
and subject to the conditions of the Term Loan Agreement as executed
and delivered; and in connection therewith, to execute and deliver a
promissory note, with such insertions therein and changes thereto
consistent with such Term Loan Agreement as shall be approved by the
officer executing the same, such execution to be conclusive evidence
of such approval; and further
RESOLVED, that the proper officers of this Company be, and
they hereby are, authorized to execute and deliver such other
documents and instruments, and to do such other acts and things,
that in their judgment may be necessary or desirable in connection
with the transactions authorized in the foregoing resolutions.
<PAGE>
EXHIBIT 25
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 or (I.R.S. Employer
organization 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 Registrant as specified in its charter)
Kentucky 61-0247775
(State or other jurisdiction of (I.R.S. employer identification no.)
Incorporation or organization)
1701 Central Avenue
Ashland, Kentucky 41101
(800) 572 1141
(Address, including zip code, and telephone
number of principal executive offices)
Unsecured Notes
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(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, 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, Certificate of Amendment of
the Organization Certificate of Bankers Trust Company
dated March 20, 1996, incorporate by referenced to
Exhibit 1 filed with Form T-1 Statement, Registration
No. 333-25843 and Certificate of Amendment of the
Organization Certificate of Bankers Trust Company dated
June 19, 1997, copy attached.
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, as amended on November 18, 1997. Copy
attached.
<PAGE>
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company 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 - The latest report of condition of Bankers
Trust Company dated as of September 30, 1998. Copy
attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
<PAGE>
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 this 30th day
of March, 1999
BANKERS TRUST COMPANY
/s/ Vincent Chorney /s/
By: Vincent Chorney
Assistant Vice President
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF
THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the
Banking Law," dated June 19, 1997, providing for an increase in authorized
capital stock from $1,601,666,670 consisting of 100,166,667 shares with a par
value of $10 each designated as Common Stock and 600 shares with a par value of
$1,000,000 each designated as Series Preferred Stock to $2,001,666,670
consisting of 100,166,667 shares with a par value of $10 each designated as
Common Stock and 1,000 shares with a par value of $1,000,000 each designated as
Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of
New York,
this 27th day of June in the Year of our
Lord one thousand nine hundred and ninety-seven.
Manuel Kursky
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby
certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended to
increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,601,666,670), divided into One
Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 600 shares with a par value of One Million Dollars ($1,000,000)
each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($2,001,666,670), divided into One Hundred
Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 1000 shares with a par value of One Million Dollars ($1,000,000)
each designated as Series Preferred Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 19th
day of June, 1997.
/s/ James T. Byrne, Jr.
James T. Byrne, Jr.
Managing Director
/s/ Lea Lahtinen
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York)
Lea Lahtinen, being fully sworn, deposes and says that she is an Assistant
Secretary of Bankers Trust Company, the corporation described in the foregoing
certificate; that she has read the foregoing certificate and knows the contents
thereof, and that the statements herein contained are true.
/s/ Lea Lahtinen
Lea Lahtinen
Sworn to before me this 19th day of June, 1997.
/s/ Sandra L. West
Notary Public
SANDRA L. WEST
Notary Public State of
New York
No. 31-4942101
Qualified in New York
County
Commission Expires
September 19, 1998
<PAGE>
BY-LAWS
NOVEMBER 18, 1997
Bankers Trust Company
New York
<PAGE>
BY-LAWS
of
Bankers Trust Company
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board of
Directors or any Committee thereof may participate in a meeting of the Board of
Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or
re-elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board of
Directors may be filled by the affirmative vote of a majority of the directors
then in office, and the directors so elected shall hold office for the balance
of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time to
time on the third Tuesday of the month. If the day appointed for holding such
regular meetings shall be a legal holiday, the regular meeting to be held on
such day shall be held on the next business day thereafter. Special meetings of
the Board of Directors may be called upon at least two day's notice whenever it
may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
<PAGE>
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall conduct
the annual directors' examinations of the Company as required by the New York
State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
Committee shall hold regular quarterly meetings and during the intervals thereof
shall meet at other times on call of the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 1. The Board of Directors shall elect from among their number a Chairman
of the Board and a Chief Executive Officer; and shall also elect a President,
and may also elect a Senior Vice Chairman, one or more Vice Chairmen, one or
more Executive Vice Presidents, one or more Senior Managing Directors, one or
more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of Directors
may require any and all officers and employees to give security for the faithful
performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer of
the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these
By-Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
Committee. The General Auditor shall have unrestricted access to all records and
premises of the Company and shall delegate such authority to his subordinates.
He shall have the duty to report to the Audit Committee on all matters
concerning the internal audit program and the adequacy of the system of internal
controls of the Company which he deems advisable or which the Audit Committee
may request. Additionally, the General Auditor shall have the duty of reporting
independently of all officers of the Company to the Audit Committee at least
quarterly on any matters concerning the internal audit program and the adequacy
of the system of internal controls of the Company that should be brought to the
attention of the directors except those matters responsibility for which has
been vested in the General Credit Auditor. Should the General Auditor deem any
matter to be of special immediate importance, he shall report thereon forthwith
to the Audit Committee. The General Auditor shall report to the Chief Financial
Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
<PAGE>
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018 of
the New York Banking Law, indemnify any person who is or was made, or threatened
to be made, a party to an action or proceeding, whether civil or criminal,
whether involving any actual or alleged breach of duty, neglect or error, any
accountability, or any actual or alleged misstatement, misleading statement or
other act or omission and whether brought or threatened in any court or
administrative or legislative body or agency, including an action by or in the
right of the Company to procure a judgment in its favor and an action by or in
the right of any other corporation of any type or kind, domestic or foreign, or
any partnership, joint venture, trust, employee benefit plan or other
enterprise, which any director or officer of the Company is servicing or served
in any capacity at the request of the Company by reason of the fact that he, his
testator or intestate, is or was a director or officer of the Company, or is
serving or served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, amounts paid in settlement, and costs, charges and expenses, including
attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company, evidenced by
a written communication signed by the Chairman of the Board, the Chief Executive
Officer or the President, and (ii) only if and to the extent that, after making
such efforts as the Chairman of the Board, the Chief Executive Officer or the
President shall deem adequate in the circumstances, such person shall be unable
to obtain indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
SECTION 6. The right to be indemnified or to the reimbursement or advancement of
expense pursuant to this Article V (i) is a contract right pursuant to which the
person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 09/30/98 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND STATE-CHARTERED
SAVINGS BANKS FOR SEPTEMBER 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
<TABLE>
SCHEDULE RC--BALANCE SHEET
<CAPTION>
----------
| C400 |
---------------------------
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS |/ / / / / / / / / / / / /|
1. Cash and balances due from depository institutions (from Schedule RC-A): |/ / / / / / / / / / / / /|
a. Noninterest-bearing balances and currency and coin (1) ............................. | 0081 2,291,000 | 1.a.
b. Interest-bearing balances (2) ...................................................... | 0071 2,636,000 | 1.b.
2. Securities: |/ / / / / / / / / / / / /|
a. Held-to-maturity securities (from Schedule RC-B, column A) ......................... | 1754 0 | 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)........................ | 1773 6,617,000 | 2.b.
3. Federal funds sold and securities purchased under agreements to resell................. | 1350 32,734,000 | 3.
4. Loans and lease financing receivables: |/ / / / / / / / / / / / /|
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 20,227,000 |/ / / / / / / / / / / / /| 4.a.
b. LESS: Allowance for loan and lease losses....................RCFD 3123 619,000 |/ / / / / / / / / / / / /| 4.b.
c. LESS: Allocated transfer risk reserve .......................RCFD 3128 0 |/ / / / / / / / / / / / /| 4.c.
d. Loans and leases, net of unearned income, |/ / / / / / / / / / / / /|
allowance, and reserve (item 4.a minus 4.b and 4.c) ................................ | 2125 19,608,000 | 4.d.
5. Trading Assets (from schedule RC-D) .................................................. | 3545 49,545,000 | 5.
6. Premises and fixed assets (including capitalized leases) .............................. | 2145 885,000 | 6.
7. Other real estate owned (from Schedule RC-M) .......................................... | 2150 115,000 | 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) | 2130 391,000 | 8.
9. Customers' liability to this bank on acceptances outstanding .......................... | 2155 392,000 | 9.
10. Intangible assets (from Schedule RC-M) ................................................ | 2143 266,000 | 10.
11. Other assets (from Schedule RC-F) ..................................................... | 2160 5,884,000 | 11.
12. Total assets (sum of items 1 through 11) .............................................. | 2170 121,364,000 | 12.
---------------------------
</TABLE>
- -----------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 09/30/98 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
</TABLE>
<TABLE>
SCHEDULE RC--CONTINUED
<CAPTION>
---------------------------
Dollar Amounts in Thousands | / / / / Bil Mil Thou |
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
LIABILITIES |/ / / / / / / / / / / / /|
13. Deposits: |/ / / / / / / / / / / / /|
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) | RCON 2200 22,231,000 | 13.a.
(1) Noninterest-bearing(1) ..................................RCON 6631 3,040,000 |/ / / / / / / / / / / / /| 13.a.(1)
(2) Interest-bearing ........................................RCON 6636 19,191,000 |/ / / / / / / / / / / / /| 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from
Schedule RC-E |/ / / / / / / / / / / / /| part II) | RCFN 2200 21,932,000
| 13.b.
(1) Noninterest-bearing .....................................RCFN 6631 2,423,000 |/ / / / / / / / / / / / /| 13.b.(1)
(2) Interest-bearing ........................................RCFN 6636 19,509,000 |/ / / / / / / / / / / / /| 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase | RCFD 2800 14,360,000 | 14.
15. a. Demand notes issued to the U.S. Treasury ........................................... | RCON 2840 0 | 15.a.
b. Trading liabilities (from Schedule RC-D)............................................ | RCFD 3548 32,890,000 | 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under |/ / / / / / / / / / / / /|
capitalized leases): |/ / / / / / / / / / / / /|
a. With a remaining maturity of one year or less ...................................... | RCFD 2332 7,653,000 | 16.a.
b. With a remaining maturity of more than one year through three years................ | A547 3,707,000 | 16.b.
c. With a remaining maturity of more than three years.................................. | A548 3,034,000 | 16.c.
17. Not Applicable. |/ / / / / / / / / / / / /| 17.
18. Bank's liability on acceptances executed and outstanding .............................. | RCFD 2920 392,000 | 18.
19. Subordinated notes and debentures (2).................................................. | RCFD 3200 1,533,000 | 19.
20. Other liabilities (from Schedule RC-G) ................................................ | RCFD 2930 6,595,000 | 20.
21. Total liabilities (sum of items 13 through 20) ........................................ | RCFD 2948 114,327,000 | 21.
22. Not Applicable |/ / / / / / / / / / / / /| 22.
|/ / / / / / / / / / / / /|
EQUITY CAPITAL |/ / / / / / / / / / / / /|
23. Perpetual preferred stock and related surplus ......................................... | RCFD 3838 1,500,000 | 23.
24. Common stock .......................................................................... | RCFD 3230 2,002,000 | 24.
25. Surplus (exclude all surplus related to preferred stock) .............................. | RCFD 3839 540,000 | 25.
26. a. Undivided profits and capital reserves ............................................. | RCFD 3632 3,421,000 | 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities ............. | RCFD 8434 (46,000)| 26.b.
27. Cumulative foreign currency translation adjustments ................................... | RCFD 3284 (380,000)| 27.
28. Total equity capital (sum of items 23 through 27) ..................................... | RCFD 3210 7,037,000 | 28.
29. Total liabilities and equity capital (sum of items 21 and 28).......................... | RCFD 3300 121,364,000 | 29
---------------------------
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best Number
describes the most comprehensive level of auditing work performed for the ---------------
bank by independent external auditors as of any date during 1997 ....................... | RCFD 6724 | 1 | M.1
---------------------------
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated holding
company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
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(1) Including total demand deposits and noninterest-bearing time and
savings deposits.
(2) Includes limited-life preferred stock and related surplus.
