Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Appalachian Power Company
(Exact name of registrant as specified in its charter)
Virginia 54-0124790
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
40 Franklin Road, S.W.
Roanoke, Virginia 24011
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 540-985-2300
ARMANDO A. PENA, Treasurer
AMERICAN ELECTRIC POWER SERVICE CORPORATION
1 Riverside Plaza
Columbus, Ohio 43215
614-223-2850
(Name, address and telephone number of agent for service)
It is respectfully requested that the Commission send copies
of all notices, orders and communications to:
Simpson Thacher & Bartlett Dewey Ballantine LLP
425 Lexington Avenue 1301 Avenue of the Americas
New York, NY 10017-3909 New York, NY 10019-6092
Attention: James M. Cotter Attention: E. N. Ellis, IV
Approximate date of commencement of proposed sale to the public:
At such time or times after the effective date of the Registra-
tion Statement as the registrant shall determine.
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box. [ ]
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment
plans, please check the following box. [X]
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
[ ]
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
Each Class of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Unit* Price* Fee
Debt
Securities $146,000,000 100% $146,000,000 $43,070
*Estimated solely for purpose of calculating the registration
fee.
The registrant hereby amends this registration statement on
such date or dates as may be necessary to delay its effective
date until the registrant shall file a further amendment which
specifically states that this registration statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, or until the registration statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
The within Prospectus contains the information required by
Rule 429 of the Commission under the Securities Act of 1933 with
respect to $4,000,000 of Debt Securities of the registrant
remaining unsold under Registration Statement No. 333-20305,
declared effective January 28, 1997.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR
AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES
HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE
ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL
OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY
SALE OF THESE SECURITIES IN ANY JURISDICTION IN WHICH SUCH OFFER,
SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH JURISDICTION.
SUBJECT TO COMPLETION, DATED DECEMBER 17, 1997
PROSPECTUS
APPALACHIAN POWER COMPANY
$150,000,000
Debt Securities
Appalachian Power Company (the "Company") intends to offer,
from time to time, up to $150,000,000 aggregate principal amount
of its unsecured debt securities, consisting of debentures, notes
or other unsecured evidences of indebtedness (collectively, the
"New Notes"). The New Notes will be offered in one or more
series in amounts, at prices and on terms to be determined at the
time or times of sale. The title, aggregate principal amount,
denomination, interest rate or rates (or manner of calculation
thereof), maturity or maturities, initial public offering price,
if any, redemption provisions, if any, any listing on a national
securities exchange and other specific terms of each series of
New Notes in respect of which this Prospectus is being delivered
will be set forth in an accompanying prospectus supplement and/or
pricing supplement thereto ("Prospectus Supplement").
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The Company may sell the New Notes through underwriters,
dealers or agents, or directly to one or more institutional
purchasers. A Prospectus Supplement will set forth the names of
underwriters or agents, if any, any applicable commissions or
discounts and the net proceeds to the Company from any such sale.
See "Plan of Distribution" herein.
The date of this Prospectus is December __, 1997.
No dealer, salesperson or other person has been authorized
to give any information or to make any representation not
contained in this Prospectus in connection with the offer made by
this Prospectus or any Prospectus Supplement relating hereto,
and, if given or made, such information or representation must
not be relied upon as having been authorized by the Company or
any underwriter, agent or dealer. Neither this Prospectus nor
this Prospectus as supplemented by any Prospectus Supplement
constitutes an offer to sell, or a solicitation of an offer to
buy, by any underwriter, agent or dealer in any jurisdiction in
which it is unlawful for such underwriter, agent or dealer to
make such an offer or solicitation. Neither the delivery of this
Prospectus or this Prospectus as supplemented by any Prospectus
Supplement nor any sale made thereunder shall, under any
circumstances, create any implication that there has been no
change in the affairs of the Company since the date hereof or
thereof.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934 (the "1934 Act") and in
accordance therewith files reports and other information with the
Securities and Exchange Commission (the "SEC"). Such reports and
other infor-mation may be inspected and copied at the public
reference facilities maintained by the SEC at 450 Fifth Street,
N.W., Washington, D.C., 20549; Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois, 60661; and 7 World Trade
Center, 13th Floor, New York, New York 10048. Copies of such
material can be obtained from the Public Reference Section of the
SEC, 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. The SEC maintains a Web site at http://www.sec.gov
containing reports, proxy statements and information statements
and other information regarding registrants that file electroni-
cally with the SEC, including the Company. Certain of the
Company's securities are listed on the New York Stock Exchange
and on the Philadelphia Stock Exchange, where reports and other
information concerning the Company may also be inspected.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company with the SEC
are incorporated in this Prospectus by reference:
-- The Company's Annual Report on Form 10-K for the year
ended December 31, 1996; and
-- The Company's Quarterly Reports on Form 10-Q for the
periods ended March 31, 1997, June 30, 1997 and
September 30, 1997.
All documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date
of this Prospectus and prior to the termination of the offering
made by this Prospectus shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the
date of filing of such documents.
Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other
subsequently filed document which is deemed to be incorporated by
reference herein or in a Prospectus Supplement modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to
whom a copy of this Prospectus has been delivered, on the written
or oral request of any such person, a copy of any or all of the
documents described above which have been incorporated by
reference in this Prospectus, other than exhibits to such
documents. Written requests for copies of such documents should
be addressed to Mr. G. C. Dean, American Electric Power Service
Corporation, 1 Riverside Plaza, Columbus, Ohio 43215 (telephone
number: 614-223-1000). The information relating to the Company
contained in this Prospectus or any Prospectus Supplement
relating hereto does not purport to be comprehensive and should
be read together with the information contained in the documents
incorporated by reference.
TABLE OF CONTENTS
Page
Available Information . . . . . . . . . . . . . . . . . . . . . 2
Documents Incorporated by Reference . . . . . . . . . . . . . . 2
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . 3
The Company . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . 4
Ratio of Earnings to Fixed Charges . . . . . . . . . . . . . . 4
Description of New Notes . . . . . . . . . . . . . . . . . . . 4
Legal Opinions . . . . . . . . . . . . . . . . . . . . . . . . 9
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Plan of Distribution . . . . . . . . . . . . . . . . . . . . 10
THE COMPANY
The Company is engaged in the generation, purchase,
transmission and distribution of electric power to approximately
873,000 customers in southwestern Virginia and southern West
Virginia, and in supplying electric power at wholesale to other
electric utility companies, municipalities and non-utility
entities engaged in the wholesale power market. Its principal
executive offices are located at 40 Franklin Road, S.W., Roanoke,
Virginia 24011 (telephone number: 540-985-2300). The Company is
a subsidiary of American Electric Power Company, Inc. ("AEP") and
is a part of the American Electric Power integrated utility
system (the "AEP System"). The executive offices of AEP are
located at 1 Riverside Plaza, Columbus, Ohio 43215 (telephone
number: 614-223-1000).
USE OF PROCEEDS
The Company proposes to use the net proceeds from the sale
of the New Notes to redeem or repurchase certain of its
outstanding debt and/or preferred stock, to fund its construction
program, to repay short-term indebtedness incurred in connection
with such purchase or its construction program and for other
corporate purposes. Proceeds may be temporarily invested in
short-term instruments pending their application to the foregoing
purposes.
The Company has estimated that its consolidated construction
costs (inclusive of allowance for funds used during construction)
for 1998 will be approximately $206,000,000. At November 30,
1997, the Company had approximately $88,500,000 of short-term
unsecured indebtedness outstanding.
RATIO OF EARNINGS TO FIXED CHARGES
Below is set forth the ratio of earnings to fixed charges
for each of the twelve month periods ended December 31, 1992
through 1996 and September 30, 1997:
12-Month
Period Ended Ratio
December 31, 1992 2.58
December 31, 1993 2.69
December 31, 1994 2.37
December 31, 1995 2.54
December 31, 1996 2.78
September 30, 1997 2.45
DESCRIPTION OF NEW NOTES
The New Notes will be issued in one or more series under an
Indenture to be entered into between the Company and The Bank of
New York, as Trustee (the "Trustee"), as may be supplemented and
amended from time to time by one or more supplemental indentures
(the "Indenture"). Section and Article references used herein
are references to provisions of the Indenture unless otherwise
noted.
All Notes (including the New Notes) to be issued under the
Indenture are herein sometimes referred to as "Notes". Copies of
the Indenture, including the form of supplemental indenture and
Company Order pursuant to which each series of the New Notes may
be issued, are filed as exhibits to the Registration Statement.
The following statements include brief summaries of certain
provisions of the Indenture under which Notes will be issued.
Such summaries do not purport to be complete and reference is
made to the Indenture for complete statements of such provisions.
Such summaries are qualified in their entirety by such reference
and do not relate or give effect to provisions of statutory or
common law.
General
The New Notes will be unsecured obligations of the Company
and will rank pari passu with all other unsecured debt of the
Company, except debt that by its terms is subordinated to the
unsecured debt of the Company. The Indenture provides that Notes
may be issued thereunder without limitation as to aggregate
principal amount and may be issued thereunder from time to time
in one or more series or one or more Tranches thereof, as
authorized by a Board Resolution and as set forth in a Company
Order or one or more supplemental indentures creating such
series. (Section 2.01).
Substantially all of the fixed properties and franchises of
the Company are subject to the lien of its first mortgage bonds
(the "Bonds") issued under and secured by a Mortgage and Deed of
Trust, dated as of December 1, 1940, as previously supplemented
and amended by supplemental indentures, between the Company and
Bankers Trust Company, as trustee.
The New Notes are not convertible into any other security of
the Company. Except as may otherwise be described in a
prospectus supplement, the covenants contained in the Indenture
do not limit the amount of other debt, secured or unsecured,
which may be issued by the Company. In addition, the Indenture
does not contain any provisions that afford holders of Notes
protection in the event of a highly leveraged transaction
involving the Company.
Maturity, Interest, Redemption, Covenants and Restrictions and
Payment
Information concerning the maturity, interest, if any,
redemption provisions, if any, sinking fund, if any, any
covenants or restrictions, such as limitations on liens or
dividend restrictions, and payment with respect to any series of
the New Notes will be contained in a Prospectus Supplement.
Form, Exchange, Registration and Transfer
Unless otherwise specified in a Prospectus Supplement, New
Notes in definitive form will be issued only as registered Notes
without coupons in denominations of $1,000 and in integral
multiples thereof authorized by the Company. New Notes may be
presented for registration of transfer (with the form of transfer
endorsed thereon duly executed) or exchange, at the office of the
Security Registrar, without service charge and upon payment of
any taxes and other governmental charges as described in the
Indenture. Such transfer or exchange will be effected upon the
Company or the Security Registrar being satisfied with the
documents of title and identity of the person making the request.
The Company has appointed the Trustee as Security Registrar with
respect to New Notes. The Company may change the place for
registration of transfer and exchange of the New Notes and may
designate one or more additional places for such registration and
exchange. (Sections 2.05 and 4.02).
The Company shall not be required to (i) issue, register the
transfer of or exchange any New Note 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 New Notes
and ending at the close of business on the day of such mailing or
(ii) register the transfer of or exchange any New Notes or
portions thereof called for redemption in whole or in part.
(Section 2.05).
Payment and Paying Agents
Unless otherwise indicated in a Prospectus Supplement,
payment of principal of and premium, if any, on any New Note will
be made only against surrender to the Paying Agent of such New
Note. Principal of and any premium and interest on New Note will
be payable at the office of such Paying Agent or Paying Agents as
the Company may designate from time to time, except that at the
option of the Company payment of any interest may be made by
check mailed to the address of the person entitled thereto as
such address shall appear in the Security Register with respect
to such New Note.
Unless otherwise indicated in a Prospectus Supplement, the
Trustee initially will act as Paying Agent with respect to New
Notes. The Company may at any time designate additional Paying
Agents or rescind the designation of any Paying Agents or approve
a change in the office through which any Paying Agent acts.
(Sections 4.02 and 4.03).
All moneys paid by the Company to a Paying Agent for the
payment of the principal of and premium, if any, or interest, if
any, on any New Notes that remain unclaimed at the end of two
years after such principal, premium, if any, or interest shall
have become due and payable, subject to applicable law, will be
repaid to the Company and the holder of such New Note will
thereafter look only to the Company for payment thereof. (Section
11.04).
Modification of the Indenture
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less than a
majority in principal amount of Notes of each series that are
affected by the modification, to modify the Indenture or any
supplemental indenture affecting that series or the rights of the
holders of that series of Notes; provided, that no such
modification may, without the consent of the holder of each
outstanding Note affected thereby, (i) extend the fixed maturity
of any Notes of any series, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any premium payable upon the
redemption thereof, or reduce the amount of the principal of a
Discount Security (as defined in the Indenture) that would be due
and payable upon a declaration of acceleration of the maturity
thereof pursuant to the Indenture, (ii) reduce the percentage of
Notes, the holders of which are required to consent to any such
supplemental indenture, or (iii) reduce the percentage of Notes,
the holders of which are required to waive any default and its
consequences. (Section 9.02).
In addition, the Company and the Trustee may execute,
without the consent of any holder of Notes, any supplemental
indenture for certain other usual purposes including the creation
of any new series of Notes. (Sections 2.01, 9.01 and 10.01).
Events of Default
The Indenture provides that any one or more of the following
described events, which has occurred and is continuing,
constitutes an "Event of Default" with respect to each series of
Notes:
(a) failure for 30 days to pay interest on Notes of
that series when due and payable; or
(b) failure for 3 Business Days to pay principal or
premium, if any, on Notes of that series when due and
payable whether at maturity, upon redemption, pursuant to
any sinking fund obligation, by declaration or otherwise; or
(c) failure by the Company to observe or perform any
other covenant (other than those specifically relating to
another series) contained in the Indenture for 90 days after
written notice to the Company from the Trustee or the
holders of at least 33% in principal amount of the
outstanding Notes of that series; or
(d) certain events involving bankruptcy, insolvency or
reorganization of the Company; or
(e) any other event of default provided for in a series
of Notes. (Section 6.01).
The Trustee or the holders of not less than 33% in aggregate
outstanding principal amount of any particular series of Notes
may declare the principal due and payable immediately upon an
Event of Default with respect to such series, but the holders of
a majority in aggregate outstanding principal amount of such
series may annul such declaration and waive the default with
respect to such series if the default has been cured and a sum
sufficient to pay all matured installments of interest and
principal otherwise than by acceleration and any premium has been
deposited with the Trustee. (Sections 6.01 and 6.06).
The holders of a majority in aggregate outstanding principal
amount of any series of Notes have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee for that series. (Section 6.06).
Subject to the provisions of the Indenture relating to the duties
of the Trustee in case an Event of Default shall occur and be
continuing, the Trustee will be under no obligation to exercise
any of its rights or powers under the Indenture at the request or
direction of any of the holders of the Notes, unless such holders
shall have offered to the Trustee indemnity satisfactory to it.
(Section 7.02).
The holders of a majority in aggregate outstanding principal
amount of any series of Notes affected thereby may, on behalf of
the holders of all Notes of such series, waive any past default,
except a default in the payment of principal, premium, if any, or
interest when due otherwise than by acceleration (unless such
default has been cured and a sum sufficient to pay all matured
installments of interest and principal otherwise than by
acceleration and any premium has been deposited with the Trustee)
or a call for redemption of Notes of such series. (Section
6.06). The Company is required to file annually with the Trustee
a certificate as to whether or not the Company is in compliance
with all the conditions and covenants under the Indenture.
(Section 5.03(d)).
Consolidation, Merger and Sale
The Indenture does not contain any covenant that restricts
the Company's ability to merge or consolidate with or into any
other corporation, sell or convey all or substantially all of its
assets to any person, firm or corporation or otherwise engage in
restructuring transactions, provided that the successor
corporation assumes due and punctual payment of principal or
premium, if any, and interest on the Notes. (Section 10.01).
Legal Defeasance and Covenant Defeasance
Notes of any series may be defeased in accordance with their
terms and, unless the supplemental indenture or Company Order
establishing the terms of such series otherwise provides, as set
forth below. The Company at any time may terminate as to a
series all of its obligations (except for certain obligations,
including obligations with respect to the defeasance trust and
obligations to register the transfer or exchange of a Note, to
replace destroyed, lost or stolen Notes and to maintain agencies
in respect of the Notes) with respect to the Notes of such series
and the Indenture ("legal defeasance"). The Company at any time
also may terminate as to a series its obligations with respect to
the Notes of that series under any restrictive covenant which may
be applicable to that particular series ("covenant defeasance").
The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance
option. If the Company exercises its legal defeasance option,
the particular 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 that particular
series.
To exercise either of its defeasance options as to a series,
the Company must deposit with the Trustee or any paying agent, in
trust: moneys or Eligible Obligations, or a combination thereof,
in an amount sufficient to pay when due the principal of and
premium, if any, and interest, if any, due and to become due on
the Notes of such series that are Outstanding (as defined in the
Indenture). Such defeasance or discharge may occur only if,
among other things, the Company has delivered to the Trustee an
Opinion of Counsel to the effect that the holders of such Notes
will not recognize gain, loss or income for federal income tax
purposes as a result of the satisfaction and discharge of the
Indenture with respect to such series and that such holders will
realize gain, loss or income on such Notes, 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 satisfaction
and discharge had not occurred. (Section 11.01).
In the event the Company exercises its option to effect a
covenant defeasance with respect to the Notes of any series and
the Notes of that series are thereafter declared due and payable
because of the occurrence of any Event of Default other than an
Event of Default caused by failing to comply with the covenants
which are defeased, the amount of money and Eligible Obligations
on deposit with the Trustee may not be sufficient to pay amounts
due on the Notes of that series at the time of the acceleration
resulting from such Event of Default. However, the Company would
remain liable for such payments. (Section 11.01).
Governing Law
The Indenture and Notes will be governed by, and construed
in accordance with, the laws of the State of New York. (Section
13.05).
Concerning the Trustee
AEP System companies, including the Company, utilize or may
utilize some of the banking services offered by The Bank of New
York in the normal course of their businesses. Among such
services are the making of short-term loans, generally at rates
related to the prime commercial interest rate.
LEGAL OPINIONS
Opinions with respect to the legality of the Notes will be
rendered by Simpson Thacher & Bartlett (a partnership which
includes professional corporations), 425 Lexington Avenue, New
York, New York and 1 Riverside Plaza, Columbus, Ohio, counsel for
the Company, and by Dewey Ballantine LLP, 1301 Avenue of the
Americas, New York, New York, counsel for any underwriters or
agents. Additional legal opinions in connection with the
offering of the Notes may be given by John M. Adams, Jr. or David
C. House, counsel for the Company. Mr. Adams is Assistant
General Counsel, and Mr. House is an Attorney, in the Legal
Department of American Electric Power Service Corporation, a
wholly owned subsidiary of AEP. From time to time, Dewey
Ballantine LLP acts as counsel to affiliates of the Company in
connection with certain matters.
EXPERTS
The financial statements and related financial statement
schedule incorporated in this prospectus by reference from the
Company's Annual Report on Form 10-K have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their
reports, which are incorporated herein by reference, and have
been so incorporated in reliance upon the reports of such firm
given upon their authority as experts in accounting and auditing.
PLAN OF DISTRIBUTION
The Company may sell the New Notes in any of three ways or
in any combination of such ways: (i) through underwriters or
dealers; (ii) directly to a limited number of purchasers or to a
single purchaser; or (iii) through agents. The Prospectus
Supplement relating to a series of the New Notes will set forth
the terms of the offering of the New Notes, including the name or
names of any underwriters, dealers or agents, the purchase price
of such New Notes and the proceeds to the Company from such sale,
any underwriting discounts or agency fees and other items
constituting underwriters' or agents' compensation, any initial
public offering price and any discounts or concessions allowed or
reallowed or paid to dealers. Any initial public offering price
and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time after the initial public
offering.
If underwriters are used in the sale, the New Notes will be
acquired by the underwriters for their own account and may be
resold from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of the sale. The
underwriters with respect to a particular underwritten offering
of New Notes will be named in the Prospectus Supplement relating
to such offering and, if an underwriting syndicate is used, the
managing underwriters will be set forth on the cover page of such
Prospectus Supplement. Unless otherwise set forth in the
Prospectus Supplement, the several obligations of the
underwriters to purchase the New Notes will be subject to certain
conditions precedent, and the underwriters will be obligated to
purchase all such New Notes if any are purchased.
New Notes may be sold directly by the Company or through
agents designated by the Company from time to time. The
Prospectus Supplement will set forth the name of any agent
involved in the offer or sale of the New Notes in respect of
which the Prospectus Supplement is delivered as well as any
commissions payable by the Company to such agent. Unless
otherwise indicated in the Prospectus Supplement, any such agent
will be acting on a reasonable best efforts basis for the period
of its appointment.
If so indicated in the Prospectus Supplement, the Company
will authorize agents, underwriters or dealers to solicit offers
by certain specified institutions to purchase New Notes from the
Company at the public offering price set forth in the Prospectus
Supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. Such
contracts will be subject to those conditions set forth in the
Prospectus Supplement, and the Prospectus Supplement will set
forth the commission payable for solicitation of such contracts.
Subject to certain conditions, the Company may agree to
indemnify any underwriters, dealers, agents or purchasers and
their controlling persons against certain civil liabilities,
including certain liabilities under the Securities Act of 1933,
as amended.
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
Estimation based upon the issuance of all of the New
Notes in one issuance:
Securities and Exchange Commission
Filing Fees $ 43,070
Printing Registration Statement,
Prospectus, etc. 25,000
Printing and Engraving New Notes 10,000
Independent Auditors' fees 15,000
Charges of Trustee (including counsel fees) 16,000
Legal fees 65,000
Rating Agency fees 80,000
Miscellaneous expenses $ 20,000
Total $274,070
* Estimated, except for filing fees.
Item 15. Indemnification of Directors and Officers.
The Bylaws of the Company provide that the Company shall
indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal because such person
is or was a director, officer or employee of the Company or is or
was serving at the request of the Company as a director, officer,
partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, against any obligations to pay judgments,
settlements, penalties, fines (including any excise tax) or
reasonable expenses (including attorneys' fees) incurred by such
person in connection with such action, suit or proceeding if (a)
such person conducted him or herself in good faith, (b) such
person believed in the case of conduct in such person's official
capacity with the Company (as defined) that his or her conduct
was in the best interests of the Company, and, in all other
cases, that his or her conduct was at least not opposed to its
best interests, (c) with respect to any criminal action or
proceeding, such person had no reasonable cause to believe his or
her conduct was unlawful and (d) such person was not grossly
negligent or guilty of willful misconduct. Such indemni-fication
in connection with a proceeding by or in the right of the Company
is limited to reasonable expenses incurred in connection with the
proceeding. Any such indemnification (unless ordered by a court)
shall be made by the Company only as authorized in the specific
case upon a determination that indemnification of the director is
proper in the circumstances because such person has met the
applicable standard of conduct.
Section 13.1-698 of the Code of Virginia provides that
unless limited by the articles of incorporation, a corporation
shall indemnify a director who entirely prevails in the defense
of any proceeding to which such person was a party because such
person is or was a director of the corporation against reasonable
expenses incurred in connection with such proceeding. Section
13.1-699 provides that a corporation may pay for or reimburse
reasonable expenses incurred by a director who is a party to such
a proceeding in advance of final disposition of such proceeding
if (a) the director furnishes a written statement of his or her
good faith belief that the standard of conduct described in
Section 13.1-697 has been met; (b) the director furnishes the
corporation a written undertaking by or on behalf of the director
to repay the advance if it is ultimately determined that such
person did not meet the standard of conduct; and (c) a
determination is made that the facts then known to those making
the determination would not preclude indemnification. Section
13.1-700.1 provides procedures which allow directors to apply to
a court for an order directing advances or indemnification.
Section 13.1-702 provides that unless limited by the
articles of incorporation, (a) officers are entitled to mandatory
indemni-fication under Section 13.1-698 and to apply for court
ordered indemnification under Section 13.1-700.1 to the same
extent as a director, and (b) that a corporation may indemnify
and advance expenses to an officer, employee or agent to the same
extent as to a director. Section 13.1-704 provides that any
corporation shall have the power to make any further indemnity to
any director, officer, employee or agent that may be authorized
by the articles of incorporation or any bylaw made by the
stockholders or any resolution adopted, before or after the
event, by the stockholders, except an indemnity against willful
misconduct or a knowing violation of criminal law.
The above is a general summary of certain provisions of the
Company's Bylaws and the Code of Virginia and is subject in all
respects to the specific and detailed provisions of the Company's
Bylaws and the Code of Virginia.
Reference is made to the Selling Agency Agreement and the
Underwriting Agreement filed as Exhibits 1(a) and 1(b) hereto,
respectively, which provide for indemnification of the Company,
certain of its directors and officers, and persons who control
the Company, under certain circumstances.
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 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 New Notes (if the total
dollar value of New 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 by the
registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of the registrant's
annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference
in the registration statement shall be deemed to be a new
registration statement relating to the New 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 Virginia, the registrant's Bylaws
or otherwise, the registrant has been advised that in the opinion
of the SEC such indemnification is against public policy as
expressed in said Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the New 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.
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 17th day of December, 1997.
APPALACHIAN 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 Executive
E. Linn Draper, Jr.* Officer December 17, 1997
(ii) Principal Financial
Officer:
G. P. Maloney* Vice President December 17, 1997
(iii) Principal Accounting
Officer:
P. J. DeMaria* Controller December 17, 1997
(iv) A Majority of the
Directors:
P. J. DeMaria*
E. Linn Draper, Jr.*
H. W. Fayne*
Wm. J. Lhota*
G. P. Maloney*
James J. Markowsky*
J. H. Vipperman* December 17, 1997
*By_/s/ A. A. Pena_____
(A. A. Pena, Attorney-in-Fact)
EXHIBIT INDEX
Certain of the following exhibits, designated with an
asterisk (*), are filed herewith. The exhibits not so designated
have heretofore been filed with the Commission and, pursuant to
17 C.F.R. Sections 201.24 and 230.411, are incorporated herein by
reference to the documents indicated following the descriptions
of such exhibits.
Exhibit No. Description
* 1(a) - Copy of proposed form of Selling Agency Agreement
for the New Notes.
* 1(b) - Copy of proposed form of Underwriting Agreement
for the New Notes.
* 4(a) - Copy of proposed form of Indenture to be entered
into between the Company and The Bank of New York,
as Trustee, for the Notes.
* 4(b) - Copy of proposed form of Company Order for the New
Notes.
* 5 - Opinion of Simpson Thacher & Bartlett with respect
to the New Notes.
12 - Statement re Computations of Ratios [Quarterly
Report on Form 10-Q of the Company for the period
ended September 30, 1997, File No. 1-3457, Exhibit
12].
*23(a) - Consent of Deloitte & Touche LLP.
23(b) - Consent of Simpson Thacher & Bartlett (included in
Exhibit 5 filed herewith).
*24 - Powers of Attorney and resolutions of the Board of
Directors of the Company.
*25 - Form T-1 re eligibility of The Bank of New York to
act as Trustee under the Indenture.<PAGE>
Exhibit 1(a)
APPALACHIAN POWER COMPANY
$150,000,000 Unsecured Medium Term Notes, Series A
Due From Nine Months to Forty-Two Years From Date of Issue
Selling Agency Agreement
________ __, ____
______________________________
______________________________
______________________________
______________________________
______________________________
______________________________
______________________________
______________________________
Dear Sirs:
Appalachian Power Company, a Virginia corporation (the
"Company"), confirms its agreement with each of you with respect to
the issue and sale by the Company of up to $150,000,000 aggregate
principal amount of its Unsecured Medium Term Notes (the "Notes").
The Notes will be issued under the Indenture dated as of ________
__, 19__, between the Company and The Bank of New York, as trustee
(the "Trustee"), as it may be from time to time supplemented by one
or more supplemental indentures (said Indenture, as it may be so
supplemented, being hereafter referred to as the "Indenture"). The
Notes will be issued in minimum denominations of $1,000 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 Medium
Term 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 debt securities
(the "Securities"), including the Notes. Such registration
statement meets the requirements set forth in Rule
415(a)(1)(ix) or (x) under the Act and complies in all other
material respects with said Rule. The Company will file with
the Commission pursuant to the applicable paragraph of Rule
424(b) under the Act a supplement to the form of prospectus
included in such registration statement relating to the Notes
and the plan of distribution thereof (the "Prospectus
Supplement"). In connection with the sale of Notes the
Company proposes to file with the Commission pursuant to the
applicable paragraph of Rule 424(b) under the Act further
supplements to the Prospectus Supplement specifying the
interest rates, maturity dates and, if appropriate, other
terms of the Notes sold pursuant hereto or the offering
thereof.
(b) As of the Execution Time, on the Effective Date,
when any supplement to the Prospectus is filed with the
Commission, as of the date of any Terms Agreement (as defined
in Section 2(b)) and at the date of delivery by the Company of
any Notes sold hereunder (a "Closing Date"), (i) the
Registration Statement, as amended as of any such time, and
the Prospectus, as supplemented as of any such time, will
comply in all material respects with the applicable require-
ments 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 state-
ments 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.
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 discre-
tion, 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 ("Addi-
tional 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 pay-
ment 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 the 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 informa-
tion; (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that
purpose; and (v) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
The Company will use every reasonable effort to prevent the
issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Notes is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then
supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, or if it shall be
necessary to amend the Registration Statement or to supplement
the Prospectus to comply with the Act or the Exchange Act or
the respective rules thereunder, the Company promptly will (i)
notify each of you to suspend solicitation of offers to
purchase Notes (and, if so notified by the Company, each of
you shall forthwith suspend such solicitation and cease using
the Prospectus as then supplemented); (ii) prepare and file
with the Commission, subject to the first sentence of
paragraph (a) of this Section 4, an amendment or supplement
which will correct such statement or omission or effect such
compliance and (iii) supply any supplemented Prospectus to
each of you in such quantities as you may reasonably request.
If such amendment or supplement, and any documents,
certificates and opinions furnished to each of you pursuant to
paragraph (g) of this Section 4 in connection with the
preparation or filing of such amendment or supplement are
satisfactory in all respects to you, you will, upon the filing
of such amendment or supplement with the Commission and upon
the effectiveness of an amendment to the Registration
Statement, if such an amendment is required, resume your
obligation to use your reasonable best efforts to solicit
offers to purchase Notes hereunder.
(c) The Company, during the period when a prospectus
relating to the Notes is required to be delivered under the
Act, will file promptly all documents required to be filed
with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act and will furnish to each of you
copies of such documents. In addition, on or prior to the
date on which the Company makes any announcement to the
general public concerning earnings or concerning any other
event which is required to be described, or which the Company
proposes to describe, in a document filed pursuant to the
Exchange Act, the Company will furnish to each of you the
information contained or to be contained in such announcement.
The Company also will furnish to each of you copies of all
other press releases or announcements to the general public.
The Company will immediately notify each of you of any
downgrading in the rating of the Notes or any other debt
securities of the Company, or any proposal to downgrade the
rating of the Notes or any other debt securities of the
Company, by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under
the Act), as soon as the Company learns of any such downgrad-
ing 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 infor-
mation, 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 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 accep-
tance 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 amend-
ment or supplement (i) relating to any offering of Securities
other than the Notes, (ii) incorporating by reference
information contained in a Current Report on Form 8-K filed by
the Company under the Exchange Act that is (A) filed solely
under Item 5 of Form 8-K and (B) not required to be filed to
comply with Section 4(b), or (iii) providing solely for the
specification of or a change in the maturity dates, the
interest rates, the issuance prices or other similar terms of
any Notes sold pursuant hereto, unless, in the case of clause
(ii) above, in the reasonable judgment of any of you, such
information is of such a nature that a certificate of the
Company should be delivered), the Company will deliver or
cause to be delivered promptly to each of you a certificate of
the Company, signed by a Vice President, Treasurer or
Assistant Treasurer of the Company, dated the date of the
effectiveness of such amendment or the date of the filing of
such supplement, in form reasonably satisfactory to you, of
the same tenor as the certificate referred to in Section 5(c)
but modified to relate to the last day of the fiscal quarter
for which financial state-ments 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 amend-
ment 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 State-
ment or the Prospectus is amended or supplemented to include
or incorporate amended or supplemental financial information,
the Company shall cause its independent public accountants
promptly to furnish each of you a letter, dated the date of
the effectiveness of such amendment or the date of the filing
of such supplement, in form satisfactory to each of you, of
the same tenor as the letter referred to in Section 5(d) with
such changes as may be necessary to reflect the amended and
supplemental financial information included or incorporated by
reference in the Registration Statement and the Prospectus, as
amended or supplemented to the date of such letter; provided,
however, that, if the Registration Statement or the Prospectus
is amended or supplemented solely to include or incorporate by
reference financial information as of and for a fiscal
quarter, the Company's independent public accountants may
limit the scope of such letter, which shall be satisfactory in
form to each of you, to the unaudited financial statements,
the related "Management's Discussion and Analysis of Results
of Operations and Financial Condition" and any other
information of an accounting, financial or statistical nature
included in such amendment or supplement, unless, in the
reasonable judgment of any of you, such letter should cover
other information or changes in specified financial statement
line items.
(m) During the period, if any, which shall not exceed
ten days, specified in any Terms Agreement, the Company shall
not, without the prior consent of the Purchaser thereunder,
issue or announce the proposed issuance of any of its debt
securities, including Notes, with terms substantially similar
to the Notes being purchased pursuant to such Terms Agreement,
other than borrowings under its revolving credit agreements
and lines of credit, issuances of its commercial paper, and
other forms of unsecured borrowings from banks or other
financial institutions.
5. Conditions to the Obligations of the Agents. The
obligations of each Agent to use its reasonable best efforts to
solicit offers to purchase the Notes shall be subject to the
accuracy of the representations and warranties on the part of the
Company contained herein as of the Execution Time, on the Effective
Date, when any supplement to the Prospectus is filed with the
Commission and as of each Closing Date, to the accuracy of the
statements of the Company made in any certificates pursuant to the
provisions hereof at each such time or date, to the performance by
the Company of its obligations hereunder and to the following
additional conditions:
(a) If filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Prospectus,
and any such supplement, shall have been filed in the manner
and within the time period required by Rule 424(b); and no
stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) That, at the Execution Time, each Agent shall be
furnished with the following opinions, dated the date thereof,
with such changes therein as may be agreed upon by the Company
and the Agents with the approval of Dewey Ballantine LLP,
counsel to the Agents:
(1) Opinion of Simpson Thacher & Bartlett, of New
York, New York, counsel to the Company, substantially in
the form heretofore made available to the Agents;
(2) Opinion of Dewey Ballantine LLP, of New York,
New York, counsel to the Agents, substantially in the
form heretofore made available to the Agents;
(3) Opinion of an attorney employed by American
Electric Power Service Corporation, substantially in the
form heretofore made available to the Agents.
(c) The Company shall have furnished to each Agent a
certificate of the Company, signed by a Vice President,
Treasurer or Assistant Treasurer of the Company, dated the
Execution Time, to the effect that the signer of such certifi-
cate 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, certifi-
cates and documents as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6
shall not have been fulfilled in all material respects when and as
provided in this Agreement and any Terms Agreement, or if any of
the opinions and certificates mentioned above or elsewhere in this
Agreement or such Terms Agreement shall not be in all material
respects reasonably satisfactory in form and substance to the
Purchaser and its counsel, such Terms Agreement and all obligations
of the Purchaser thereunder and with respect to the Notes subject
thereto may be canceled at, or at any time prior to, the respective
Closing Date by the Purchaser without any liability whatsoever.
Notice of such cancellation shall be given to the Company in
writing or by telephone or telex or facsimile transmission
confirmed in writing.
7. Right of Person Who Agreed to Purchase to Refuse to
Purchase. The Company agrees that any person who has agreed to
purchase and pay for any Note, including a Purchaser and any person
who purchases pursuant to a solicitation by any of the Agents,
shall have the right to refuse to purchase such Note if (a) at the
Closing Date therefor, any condition set forth in Section 5 or 6,
as applicable, shall not be satisfied or (b) subsequent to the
agreement to purchase such Note, there shall have been any decrease
in the ratings of any of the Company's debt securities by Moody's
Investors Service, Inc. ("Moody's") or Standard & Poor's Ratings
Group ("S&P") or either Moody's or S&P shall publicly announce that
it has any of such debt securities under consideration for possible
downgrade. Notwithstanding the foregoing, no Agent shall have any
obligation to exercise its judgment on behalf of any purchaser.
8. Indemnification.
(a) The Company agrees, to the extent permitted by law,
to indemnify and hold you harmless and each person, if any,
who controls you within the meaning of Section 15 of the Act,
against any and all losses, claims, damages or liabilities,
joint or several, to which you, they or any of you or them may
become subject under the Act or otherwise, and to reimburse
you and such controlling person or persons, if any, for any
legal or other expenses incurred by you or them in connection
with defending any action, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon
any alleged untrue statement or untrue statement of a material
fact contained in the Registration Statement, or in the
Prospectus, or if the Company shall furnish or cause to be
furnished to you any amendments or any supplemental
information, in the Prospectus as so amended or supplemented
other than amendments or supplements relating solely to
securities other than the Notes (provided that if such
Prospectus or such Prospectus, as amended or supplemented, is
used after the period of time referred to in Section 4(b)
hereof, it shall contain such amendments or supplements as the
Company deems necessary to comply with Section 10(a) of the
Act), or arise out of or are based upon any alleged omission
or omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any such
alleged untrue statement or omission, or untrue statement or
omission which was made in such Registration Statement or in
the Prospectus, or in the Prospectus as so amended or supple-
mented, in reliance upon and in conformity with information
furnished in writing to the Company by or through you
expressly for use therein or with any statements in or
omissions from that part of the Registration Statement that
shall constitute the Statement of Eligibility under the Trust
Indenture Act, of any indenture trustee under an indenture of
the Company, and except that this indemnity shall not inure to
your benefit (or of any person controlling you) on account of
any losses, claims, damages, liabilities or actions arising
from the sale of the Notes to any person if such loss arises
from the fact that a copy of the Prospectus, as the same may
then be supplemented or amended to the extent such Prospectus
was provided to you by the Company (excluding, however, any
document then incorporated or deemed incorporated therein by
reference), was not sent or given by you to such person with
or prior to the written confirmation of the sale involved and
the alleged omission or alleged untrue statement or omission
or untrue statement was corrected in the Prospectus as
supplemented or amended at the time of such confirmation. You
agree promptly after the receipt by you of written notice of
the commencement of any action in respect to which indemnity
from the Company on account of its agreement contained in this
Section 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 with such advice) and for this reason it is not
desirable for the Company's counsel to represent both the
indemnifying party and the indemnified party (it being
understood, however, that the Company shall not, in connection
with any one such action or separate but substantially similar
or related actions in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of
attorneys for you or any controlling person (plus any local
counsel retained by you or any controlling person in their
reasonable judgment), which firm (or firms) shall be
designated in writing by you or any controlling person). The
Company shall not be liable in the event of any settlement of
any such action effected without its consent.
(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.
9. Termination.
(a) This Agreement will continue in effect until termi-
nated as provided in this Section 9. This Agreement may be
terminated by either the Company as to any of you or by any of
you insofar as this Agreement relates to such of you, by
giving written notice of such termination to such of you or
the Company, as the case may be. This Agreement shall so
terminate at the close of business on the first business day
following the receipt of such notice by the party to whom such
notice is given. In the event of such termination, no party
shall have any liability to the other party hereto, except as
provided in the fifth paragraph of Section 2(a), Section 4(h),
Section 8 and Section 10. The provisions of this Agreement
(including without limitation Section 7 hereof) applicable to
any purchase of a Note for which an agreement to purchase
exists prior to the termination hereof shall survive any
termination of this Agreement. If, at the time of any such
termination, (i) any Purchaser shall own any Notes purchased
pursuant to a Terms Agreement with the intention of reselling
them or (ii) an offer to purchase any of the Notes has been
accepted by the Company but the time of delivery to the
purchaser or its agent of such Notes has not occurred, the
covenants set forth in Sections 4 and 6 hereof shall remain in
effect for such period of time (not exceeding nine months)
until such Notes are so resold or delivered, as the case may
be.
(b) Each Terms Agreement shall be subject to termination
if, in the Purchaser's reasonable judgment, the Purchaser's
ability to market the Notes shall have been materially
adversely affected because: (i) trading in securities on the
New York Stock Exchange shall have been generally suspended by
the Commission or by the New York Stock Exchange, (ii) a
general banking moratorium shall have been declared by Federal
or New York state authorities, (iii) there shall have been a
decrease in the ratings of any of the Company's debt
securities by Moody's or S&P or either Moody's or S&P shall
have publicly announced that it has any of such debt
securities under consideration for possible downgrade or
(iv)(A) a war involving the United States of America shall
have been declared, (B) any other national calamity shall have
occurred, or (C) any conflict involving the armed forces of
the United States of America shall have commenced or
escalated.
10. Representations and Indemnities to Survive. The re-
spective 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 sur-
vive 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 bene-
fit 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,
APPALACHIAN POWER COMPANY
By:___________________________
A. A. Pena
Treasurer
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
______________________________
By:___________________________
Its:__________________________
______________________________
By:___________________________
Its:__________________________
SCHEDULE I
Commissions:
The Company agrees to pay each Agent a commission equal to the
following percentage of the principal amount of each Note sold on
an agency basis by such Agent:
Term Commission Rate
From 9 months to less than 1 year
From 1 year to less than 18 months
From 18 months to less than 2 years
From 2 years to less than 3 years
From 3 years to less than 4 years
From 4 years to less than 5 years
From 5 years to less than 6 years
From 6 years to less than 7 years
From 7 years to less than 10 years
From 10 years to less than 15 years
From 15 years to less than 20 years
From 20 years up to and including 42 years
Unless otherwise specified in the applicable Terms Agreement,
the discount or commission payable to a Purchaser shall be
determined on the basis of the commission schedule set forth above.
Address for Notice to you:
Notices to __________________________________ shall be
directed to it at ________________________________, Attention:
____________________, telephone: ___/___-____, telecopy: ___/___-
____.
Notices to __________________________________ shall be
directed to it at ________________________________, Attention:
____________________, telephone: ___/___-____, telecopy: ___/___-
____.
Exhibit 1(b)
APPALACHIAN POWER COMPANY
Underwriting Agreement
Dated ____________________
AGREEMENT made between APPALACHIAN POWER COMPANY, a
corporation organized and existing under the laws of the
Commonwealth of Virginia (the Company), and the several persons,
firms and corporations (the Underwriters) named in Exhibit 1
hereto.
WITNESSETH:
WHEREAS, the Company proposes to issue and sell $__________
principal amount of its [Debt Securities] to be issued pursuant to
the Indenture dated as of _______________, between the Company and
The Bank of New York, as trustee (the Trustee), as supplemented by
the Supplemental Indenture dated as of _______________ between the
Company and the Trustee (said Indenture as so supplemented being
hereafter referred to as the Indenture); and
WHEREAS, the Underwriters have designated the person signing
this Agreement (the Representative) to execute this Agreement on
behalf of the respective Underwriters and to act for the respective
Underwriters in the manner provided in this Agreement; and
WHEREAS, the Company has prepared and filed, in accordance
with the provisions of the Securities Act of 1933 (the Act), with
the Securities and Exchange Commission (the Commission), a
registration statement and prospectus or prospectuses relating to
the [Debt Securities] and such registration statement has become
effective; and
WHEREAS, such registration statement, as it may have been
amended to the date hereof, including the financial statements, the
documents incorporated or deemed incorporated therein by reference
and the exhibits, being herein called the Registration Statement,
and the prospectus, as included or referred to in the Registration
Statement to become effective, as it may be last amended or
supplemented prior to the effectiveness of the agreement (the Basic
Prospectus), and the Basic Prospectus, as supplemented by a
prospectus supplement which includes certain information relating
to the Underwriters, the principal amount, price and terms of
offering, the interest rate and redemption prices of the [Debt
Securities], first filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) of the Commission's General
Rules and Regulations under the Act (the Rules), including all
documents then incorporated or deemed to have been incorporated
therein by reference, being herein call the Prospectus.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, it is agreed between the parties
as follows:
1. Purchase and Sale: Upon the basis of the warranties and
representations and on the terms and subject to the conditions
herein set forth, the Company agrees to sell to the respective
Underwriters named in Exhibit 1 hereto, severally and not jointly,
and the respective Underwriters, severally and not jointly, agree
to purchase from the Company, the respective principal amounts of
the [Debt Securities] set opposite their names in Exhibit 1 hereto,
together aggregating all of the [Debt Securities], at a price equal
to ______% of the principal amount thereof.
2. Payment and Delivery: Payment for the [Debt Securities]
shall be made to the Company or its order by certified or bank
check or checks, payable in New York Clearing House funds, at the
office of Simpson Thacher & Bartlett, 425 Lexington Avenue, New
York, New York 10017-3909, or at such other place as the Company
and the Representative shall mutually agree in writing, upon the
delivery of the [Debt Securities] to the Representative for the
respective accounts of the Underwriters against receipt therefor
signed by the Representative on behalf of itself and for the other
Underwriters. Such payments and delivery shall be made at 10:00
A.M., New York Time, on _______________ (or on such later business
day, not more than five business days subsequent to such day, as
may be designated by the Company), unless postponed in accordance
with the provisions of Section 7 hereof. The time at which payment
and delivery are to be made is herein called the Time of Purchase.
[The delivery of the [Debt Securities] shall be made in fully
registered form, registered in the name of CEDE & CO., to the
offices of The Depository Trust Company in New York, New York and
the Underwriters shall accept such delivery.]
3. Conditions of Underwriters' Obligations: The several
obligations of the Underwriters hereunder are subject to the
accuracy of the warranties and representations on the part of the
Company and to the following other conditions:
(a) That all legal proceedings to be taken and all
legal opinions to be rendered in connection with
the issue and sale of the [Debt Securities] shall
be satisfactory in form and substance to Dewey
Ballantine 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
either of John M. Adams, Jr., Esq. or David C.
House, Esq., counsel to the Company,
substantially in the forms attached hereto as
Exhibits A and B;
(2) Opinion of Dewey Ballantine LLP, counsel to
the Underwriters, substantially in the form
attached hereto as Exhibit C.
(c) That the Representative shall have received a
letter from Deloitte & Touche LLP in form and
substance satisfactory to the Representative, dated
as of the day of the Time of Purchase, (i)
confirming that they are independent public
accountants within the meaning of the Act and the
applicable published rules and regulations of the
Commission thereunder, (ii) stating that in their
opinion the financial statements audited by them
and included or incorporated by reference in the
Registration Statement complied as to form in all
material respects with the then applicable
accounting requirements of the Commission,
including the applicable published rules and
regulations of the Commission and (iii) covering as
of a date not more than five business days prior to
the day of the Time of Purchase such other matters
as the Representative reasonably requests.
(d) That no amendment to the Registration Statement and
that no prospectus or prospectus supplement of the
Company relating to the [Debt Securities] and no
document which would be deemed incorporated in the
Prospectus by reference filed subsequent to the
date hereof and prior to the Time of Purchase shall
contain material information substantially
different from that contained in the Registration
Statement which is unsatisfactory in substance to
the Representative or unsatisfactory in form to
Dewey Ballantine LLP, counsel to the Underwriters.
(e) That, at the Time of Purchase, appropriate orders
of the Virginia State Corporation Commission and
the Tennessee Regulatory Authority, necessary to
permit the sale of the [Debt Securities] to the
Underwriters, shall be in effect; and that, prior
to the Time of Purchase, no stop order with respect
to the effectiveness of the Registration Statement
shall have been issued under the Act by the
Commission or proceedings therefor initiated.
(f) That, at the Time of Purchase, there shall not have
been any material adverse change in the business,
properties or financial condition of the Company
from that set forth in the Prospectus (other than
changes referred to in or contemplated by the
Prospectus), except changes arising from
transactions in the ordinary course of business,
none of which individually has, or in the aggregate
have, had a material adverse effect on the
business, properties or financial condition of the
Company, and that the Company shall, at the Time of
Purchase, have delivered to the Representative a
certificate of an executive officer of the Company
to the effect that, to the best of his knowledge,
information and belief, there has been no such
change.
(g) That the Company shall have performed such of its
obligations under this Agreement as are to be
performed at or before the Time of Purchase by the
terms hereof.
4. Certain Covenants of the Company: In further
consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the
time prescribed by Rule 424 under the Act, to file
any Prospectus Supplement relating to the [Debt
Securities] with the Commission; as soon as the
Company is advised thereof, to advise the
Representative and confirm the advice in writing of
any request made by the Commission for amendments
to the Registration Statement or the Prospectus or
for additional information with respect thereto or
of the entry of a stop order suspending the
effectiveness of the Registration Statement or of
the initiation or threat of any proceedings for
that purpose and, if such a stop order should be
entered by the Commission, to make every reasonable
effort to obtain the prompt lifting or removal
thereof.
(b) To deliver to the Underwriters, without charge, as
soon as practicable (and in any event within 24
hours after the date hereof), and from time to time
thereafter during such period of time (not
exceeding nine months) after the date hereof as
they are required by law to deliver a prospectus,
as many copies of the Prospectus (as supplemented
or amended if the Company shall have made any
supplements or amendments thereto) as the
Representative may reasonably request; and in case
any Underwriter is required to deliver a prospectus
after the expiration of nine months after the date
hereof, to furnish to any Underwriter, upon
request, at the expense of such Underwriter, a
reasonable quantity of a supplemental prospectus or
of supplements to the Prospectus complying with
Section 10(a)(3) of the Act.
(c) To furnish to the Representative a copy, certified
by the Secretary or an Assistant Secretary of the
Company, of the Registration Statement as initially
filed with the Commission and of all amendments
thereto (exclusive of exhibits), and, upon request,
to furnish to the Representative sufficient plain
copies thereof (exclusive of exhibits) for
distribution of one to the other Underwriters.
(d) For such period of time (not exceeding nine months)
after the date hereof as they are required by law
to deliver a prospectus, if any event shall have
occurred as a result of which it is necessary to
amend or supplement the Prospectus in order to make
the statements therein, in the light of the
circumstances when the Prospectus is delivered to a
purchaser, not misleading, forthwith to prepare and
furnish, at its own expense, to the Underwriters
and to dealers (whose names and addresses are
furnished to the Company by the Representative) to
whom principal amounts of the [Debt Securities] may
have been sold by the Representative for the
accounts of the Underwriters and, upon request, to
any other dealers making such request, copies of
such amendments to the Prospectus or supplements to
the Prospectus.
(e) As soon as practicable, the Company will make
generally available to its security holders and to
the Underwriters an earnings statement or statement
of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act
and Rule 158 under the Act.
(f) To use its best efforts to qualify the [Debt
Securities] for offer and sale under the securities
or "blue sky" laws of such jurisdictions as the
Representative may designate within six months
after the date hereof and itself to pay, or to
reimburse the Underwriters and their counsel for,
reasonable filing fees and expenses in connection
therewith in an amount not exceeding $3,500 in the
aggregate (including filing fees and expenses paid
and incurred prior to the effective date hereof),
provided, however, that the Company shall not be
required to qualify as a foreign corporation or to
file a consent to service of process or to file
annual reports or to comply with any other
requirements deemed by the Company to be unduly
burdensome.
(g) To pay all expenses, fees and taxes (other than
transfer taxes on resales of the [Debt Securities]
by the respective Underwriters) in connection with
the issuance and delivery of the [Debt Securities],
except that the Company shall be required to pay
the fees and disbursements (other than
disbursements referred to in paragraph (f) of this
Section 4) of Dewey Ballantine LLP, counsel to the
Underwriters, only in the events provided in
paragraph (h) of this Section 4, the Underwriters
hereby agreeing to pay such fees and disbursements
in any other event.
(h) If the Underwriters shall not take up and pay for
the [Debt Securities] due to the failure of the
Company to comply with any of the conditions
specified in Section 3 hereof, or, if this
Agreement shall be terminated in accordance with
the provisions of Section 7 or 8 hereof, to pay the
fees and disbursements of Dewey Ballantine LLP,
counsel to the Underwriters, and, if the Under-
writers shall not take up and pay for the [Debt
Securities] due to the failure of the Company to
comply with any of the conditions specified in
Section 3 hereof, to reimburse the Underwriters for
their reasonable out-of-pocket expenses, in an
aggregate amount not exceeding a total of $10,000,
incurred in connection with the financing
contemplated by this Agreement.
(i) The Company will timely file any certificate
required by Rule 52 under the Public Utility
Holding Company Act of 1935 in connection with the
sale of the [Debt Securities].
[(j) During the period from the date hereof and
continuing to and including the earlier of (i) the
date which is after the Time of Purchase on which
the distribution of the [Debt Securities] ceases,
as determined by the Representative in its sole
discretion, and (ii) the date which is 30 days
after the Time of Purchase, the Company agrees not
to offer, sell, contract to sell or otherwise
dispose of any [Debt Securities] of the Company or
any substantially similar securities of the Company
without the consent of the Representative.]
5. Warranties of and Indemnity by the Company: The Company
represents and warrants to, and agrees with you, as set forth
below:
(a) the Registration Statement on its effective date
complied, or was deemed to comply, with the
applicable provisions of the Act and the rules and
regulations of the Commission and the Registration
Statement at its effective date did not, and at the
Time of Purchase will not, contain any untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, and the Basic Prospectus at the time
that the Registration Statement became effective,
and the Prospectus when first filed in accordance
with Rule 424(b) complies, and at the Time of
Purchase the Prospectus will comply with the
applicable provisions of the Act and the rules and
regulations of the Commission, the Basic Prospectus
at the time that the Registration Statement became
effective, and the Prospectus when first filed in
accordance with Rule 424(b) did not, and the
Prospectus at the Time of Purchase will not,
contain any untrue statement of a material fact or
omit to state a material fact required to be stated
therein or necessary to make the statements
therein, in the light of the circumstances under
which they were made, not misleading, except that
the Company makes no warranty or representation to
the Underwriters with respect to any statements or
omissions made in the Registration Statement or
Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by,
or through the Representative on behalf of, any
Underwriter expressly for use in the Registration
Statement, the Basic Prospectus or Prospectus, or
to any statements in or omissions from that part of
the Registration Statement that shall constitute
the Statement of Eligibility under the Trust
Indenture Act of 1939 of any indenture trustee
under an indenture of the Company.
(b) As of the Time of Purchase, the Indenture will have
been duly authorized by the Company and duly
qualified under the Trust Indenture Act of 1939, as
amended, and, when executed and delivered by the
Trustee and the Company, will constitute a legal,
valid and binding instrument enforceable against
the Company in accordance with its terms and such
[Debt Securities] will have been duly authorized,
executed, authenticated and, when paid for by the
purchasers thereof, will constitute legal, valid
and binding obligations of the Company entitled to
the benefits of the Indenture, except as the
enforceability thereof may be limited by
bankruptcy, insolvency, or other similar laws
affecting the enforcement of creditors' rights in
general, and except as the availability of the
remedy of specific performance is subject to
general principles of equity (regardless of whether
such remedy is sought in a proceeding in equity or
at law), and by an implied covenant of good faith
and fair dealing.
(c) To the extent permitted by law, to indemnify and
hold you harmless and each person, if any, who
controls you within the meaning of Section 15 of
the Act, against any and all losses, claims,
damages or liabilities, joint or several, to which
you, they or any of you or them may become subject
under the Act or otherwise, and to reimburse you
and such controlling person or persons, if any, for
any legal or other expenses incurred by you or them
in connection with defending any action, insofar as
such losses, claims, damages, liabilities or
actions arise out of or are based upon any alleged
untrue statement or untrue statement of a material
fact contained in either Registration Statement, in
the Basic Prospectus, or in the Prospectus, or if
the Company shall furnish or cause to be furnished
to you any amendments or any supplemental
information, in the Prospectus as so amended or
supplemented other than amendments or supplements
relating solely to securities other than the Notes
(provided that if such Prospectus or such
Prospectus, as amended or supplemented, is used
after the period of time referred to in Section
4(b) hereof, it shall contain such amendments or
supplements as the Company deems necessary to
comply with Section 10(a) of the Act), or arise out
of or are based upon any alleged omission or
omission to state therein a material fact required
to be stated therein or necessary to make the
statements therein not misleading, except insofar
as such losses, claims, damages, liabilities or
actions arise out of or are based upon any such
alleged untrue statement or omission, or untrue
statement or omission which was made in either
Registration Statement, in the Basic Prospectus or
in the Prospectus, or in the Prospectus as so
amended or supplemented, in reliance upon and in
conformity with information furnished in writing to
the Company by or through you expressly for use
therein or with any statements in or omissions from
that part of the Registration Statement that shall
constitute the Statement of Eligibility under the
Trust Indenture Act, of any indenture trustee under
an indenture of the Company, and except that this
indemnity shall not inure to your benefit (or of
any person controlling you) on account of any
losses, claims, damages, liabilities or actions
arising from the sale of the Notes to any person if
such loss arises from the fact that a copy of the
Prospectus, as the same may then be supplemented or
amended to the extent such Prospectus was provided
to you by the Company (excluding, however, any
document then incorporated or deemed incorporated
therein by reference), was not sent or given by you
to such person with or prior to the written
confirmation of the sale involved and the alleged
omission or alleged untrue statement or omission or
untrue statement was corrected in the Prospectus as
supplemented or amended at the time of such
confirmation. You agree promptly after the receipt
by you of written notice of the commencement of any
action in respect to which indemnity from the
Company on account of its agreement contained in
this Section 5(c) may be sought by you, or by any
person controlling you, to notify the Company in
writing of the commencement thereof, but your
omission so to notify the Company of any such
action shall not release the Company from any
liability which it may have to you or to such
controlling person otherwise than on account of the
indemnity agreement contained in this Section 8(a).
In case any such action shall be brought against
you or any such person controlling you and you
shall notify the Company of the commencement
thereof, as above provided, the Company shall be
entitled to participate in, and, to the extent that
it shall wish, including the selection of counsel
(such counsel to be reasonably acceptable to the
indemnified party), to direct the defense thereof
at its own expense. In case the Company elects to
direct such defense and select such counsel
(hereinafter, "Company's counsel"), you or any
controlling person shall have the right to employ
your own counsel, but, in any such case, the fees
and expenses of such counsel shall be at your
expense unless (i) the Company has agreed in
writing to pay such fees and expenses or (ii) the
named parties to any such action (including any
impleaded parties) include both you or any
controlling person and the Company and you or any
controlling person shall have been advised by your
counsel that a conflict of interest between the
Company and you or any controlling person may arise
(and the Company's counsel shall have concurred
with such advice) and for this reason it is not
desirable for the Company's counsel to represent
both the indemnifying party and the indemnified
party (it being understood, however, that the
Company shall not, in connection with any one such
action or separate but substantially similar or
related actions in the same jurisdiction arising
out of the same general allegations or circum-
stances, be liable for the reasonable fees and
expenses of more than one separate firm of
attorneys for you or any controlling person (plus
any local counsel retained by you or any
controlling person in their reasonable judgment),
which firm (or firms) shall be designated in
writing by you or any controlling person). The
Company shall not be liable in the event of any
settlement of any such action effected without its
consent.
The Company's indemnity agreement contained in Section 5(c)
hereof, and its covenants, warranties and representations contained
in this Agreement, shall remain in full force and effect regardless
of any investigation made by or on behalf of any person, and shall
survive the delivery of and payment for the [Debt Securities]
hereunder.
6. Warranties of and Indemnity by Underwriters:
(a) Each Underwriter warrants and represents that the
information furnished in writing to the Company
through the Representative for use in the
Registration 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 indemnity agreement on the part of each Underwriter
contained in Section 6(b) hereof, and the warranties and
representations of such Underwriter contained in this Agreement,
shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or other person,
and shall survive the delivery of and payment for the [Debt
Securities] hereunder.
7. Default of Underwriters: If any Underwriter under this
Agreement shall fail or refuse (otherwise than for some reason
sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligations hereunder) to
purchase and pay for the principal amount of [Debt Securities]
which it has agreed to purchase and pay for hereunder, and the
aggregate principal amount of [Debt Securities] which such
defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate principal
amount of the [Debt Securities], the other Underwriters shall be
obligated severally in the proportions which the amounts of [Debt
Securities] set forth opposite their names in Exhibit 1 hereto bear
to the aggregate principal amount of [Debt Securities] set forth
opposite the names of all such non-defaulting Underwriters, to
purchase the [Debt Securities] which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on the terms
set forth herein; provided that in no event shall the principal
amount of [Debt Securities] which any Underwriter has agreed to
purchase pursuant to Section 1 hereof be increased pursuant to this
Section 7 by an amount in excess of one-ninth of such principal
amount of [Debt Securities] without the written consent of such
Underwriter. If any Underwriter or Underwriters shall fail or
refuse to purchase [Debt Securities] and the aggregate principal
amount of [Debt Securities] with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of
the [Debt Securities] then the Company shall have the right (a) to
require such non-defaulting Underwriters to purchase and pay for
the respective principal amounts of [Debt Securities] that they had
severally agreed to purchase hereunder, as hereinabove provided,
and, in addition, the principal amount of [Debt Securities] that
the defaulting Underwriter or Underwriters shall have so failed to
purchase up to a principal amount thereof equal to one-ninth of the
respective principal amounts of [Debt Securities] that such non-
defaulting Underwriters have otherwise agreed to purchase
hereunder, and/or (b) to procure one or more others, members of the
National Association of Securities Dealers (NASD) (or, if not
members of the NASD, who are foreign banks, dealers or institutions
not registered under the Securities Exchange Act of 1934 and who
agree in making sales to comply with the NASD's Rules of Fair
Practice), to purchase or agree to purchase, upon the terms herein
set forth, the principal amount of such [Debt Securities] that such
defaulting Underwriter or Underwriters had agreed to purchase, or
that portion thereof that the remaining Underwriters shall not be
obligated to purchase pursuant to the foregoing clause (a). In the
event the Company shall exercise its rights under clause (a) and/or
(b) above, the Company shall give written notice thereof to the
Underwriters within 24 hours (excluding any Saturday, Sunday or
legal holiday) of the time when the Company learns of the failure
or refusal of any Underwriter or Underwriters to purchase and pay
for its respective principal amount of [Debt Securities], and
thereupon the Time of Purchase shall be postponed for a period not
to exceed five full business days, as the Company shall determine.
In the event the Company shall be entitled to but shall not elect
(within the time period specified above) to exercise its rights
under clause (a) and/or (b), then this Agreement shall terminate.
In the event of any such termination, the Company shall not be
under any liability to any Underwriter (except to the extent, if
any, provided in Section 4(h) hereof), nor shall any Underwriter
(other than an Underwriter who shall have failed or refused to
purchase the [Debt Securities] without some reason sufficient to
justify, in accordance with the terms hereof, its termination of
its obligations hereunder) be under any liability to the Company or
any other Underwriter.
Nothing herein contained shall release any defaulting Under-
writer 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 Repre-
sentative's reasonable judgment, the Underwriters' ability to
market the [Debt Securities] shall have been materially adversely
affected because:
(i) trading in securities on the New York Stock Exchange
shall have been generally suspended by the Commission or by
the New York Stock Exchange, or
(ii) (A) a war involving the United States of America
shall have been declared, (B) any other national calamity
shall have occurred, or (C) any conflict involving the armed
services of the United States of America shall have escalated,
or
(iii) a general banking moratorium shall have been
declared by Federal or New York State authorities, or
(iv) there shall have been any decrease in the ratings of
the Company's first mortgage bonds by Moody's Investors
Services, Inc. (Moody's) or Standard & Poor's Ratings Group
(S&P) or either Moody's or S&P shall publicly announce that it
has such first mortgage bonds under consideration for possible
downgrade.
If the Representative elects to terminate this Agreement,
as provided in this Section 8, the Representative will promptly
notify the Company by telephone or by telex or facsimile transmis-
sion, confirmed in writing. If this Agreement shall not be carried
out by any Underwriter for any reason permitted hereunder, or if
the sale of the [Debt Securities] to the Underwriters as herein
contemplated shall not be carried out because the Company is not
able to comply with the terms hereof, the Company shall not be
under any obligation under this Agreement and shall not be liable
to any Underwriter or to any member of any selling group for the
loss of anticipated profits from the transactions contemplated by
this Agreement (except that the Company shall remain liable to the
extent provided in Section 4(h) hereof) and the Underwriters shall
be under no liability to the Company nor be under any liability
under this Agreement to one another.
9. Notices: All notices hereunder shall, unless otherwise
expressly provided, be in writing and be delivered at or mailed to
the following addresses or by telex or facsimile transmission con-
firmed in writing to the following addresses: if to the Under-
writers, to _______________________________________________, as
Representative, _____________________________________________, and,
if to the Company, to Appalachian Power Company, c/o American
Electric Power Service Corporation, 1 Riverside Plaza, Columbus,
Ohio 43215, attention of A. A. Pena, Treasurer, (fax 614/223-1687).
10. Parties in Interest: The agreement herein set forth has
been and is made solely for the benefit of the Underwriters, the
Company (including the directors thereof and such of the officers
thereof as shall have signed the Registration Statement), the
controlling persons, if any, referred to in Sections 5 and 6
hereof, and their respective successors, assigns, executors and
administrators, and, except as expressly otherwise provided in
Section 7 hereof, no other person shall acquire or have any right
under or by the virtue of this Agreement.
11. Definition of Certain Terms: If there be two or more
persons, firms or corporations named in Exhibit 1 hereto, the term
"Underwriters", as used herein, shall be deemed to mean the several
persons, firms or corporations, so named (including the
Representative herein mentioned, if so named) and any party or
parties substituted pursuant to Section 7 hereof, and the term
"Representative", as used herein, shall be deemed to mean the
representative or representatives designated by, or in the manner
authorized by, the Underwriters. All obligations of the
Underwriters hereunder are several and not joint. If there shall
be only one person, firm or corporation named in Exhibit 1 hereto,
the term "Underwriters" and the term "Representative", as used
herein, shall mean such person, firm or corporation. The term
"successors" as used in this Agreement shall not include any
purchaser, as such purchaser, of any of the [Debt Securities] from
any of the respective Underwriters.
12. Conditions of the Company's Obligations: The obligations
of the Company hereunder are subject to the Underwriters'
performance of their obligations hereunder, and the further
condition that at the Time of Purchase the Virginia State
Corporation Commission and the Tennessee Regulatory Authority shall
have issued appropriate orders, and such orders 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.
APPALACHIAN POWER COMPANY
By:____________________________
A. A. Pena
Treasurer
___________________________________
as Representative
and on behalf of the Underwriters
named in Exhibit 1 hereto
By:____________________________
EXHIBIT 1
Name Principal Amount
Exhibit 4(a)
APPALACHIAN POWER COMPANY
AND
THE BANK OF NEW YORK,
AS TRUSTEE
--------------------
INDENTURE
Dated as of ________ __, ____
--------------------
CROSS-REFERENCE TABLE
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
310(a) 7.09
310(b) 7.08
7.10
310(c) Inapplicable
311(a) 7.13
311(b) 7.13
311(c) Inapplicable
312(a) 5.01
5.02(a)
312(b) 5.02(c)
5.02(d)
312(c) 5.02(e)
313(a) 5.04(a)
313(b) 5.04(b)
313(c) 5.04(a)
5.04(b)
313(d) 5.04(c)
314(a) 5.03
314(b) Inapplicable
314(c) 13.06(a)
314(d) Inapplicable
314(e) 13.06(b)
314(f) Inapplicable
315(a) 7.01(a)
7.02
315(b) 6.07
315(c) 7.01(a)
315(d) 7.01(b)
315(e) 6.08
316(a) 6.06
8.04
316(b) 6.04
316(c) 8.01
317(a) 6.02
317(b) 4.03
318(a) 13.08
TABLE OF CONTENTS
This Table of Contents does not constitute part of the
Indenture and should not have any bearing upon the
interpretation of any of its terms or provisions
RECITALS:
Purpose of Indenture. . . . . . . . . . . . . . . . . . . .1
Compliance with legal requirements. . . . . . . . . . . . .1
Purpose of and consideration for Indenture. . . . . . . . .1
ARTICLE ONE - DEFINITIONS
Section 1.01
Certain terms defined, other terms defined in the
Trust Indenture Act of 1939, as amended, or by
reference therein in the Securities Act of 1933, as
amended, to have the meanings assigned therein
Affiliate. . . . . . . . . . . . . . . . . . . . . . .2
Authenticating Agent . . . . . . . . . . . . . . . . .2
Authorized Officer . . . . . . . . . . . . . . . . . .2
Board of Directors . . . . . . . . . . . . . . . . . .3
Board Resolution . . . . . . . . . . . . . . . . . . .3
Business Day . . . . . . . . . . . . . . . . . . . . .3
Certificate. . . . . . . . . . . . . . . . . . . . . .3
Commission . . . . . . . . . . . . . . . . . . . . . .3
Company. . . . . . . . . . . . . . . . . . . . . . . .3
Company Order. . . . . . . . . . . . . . . . . . . . .3
Corporate Trust Office . . . . . . . . . . . . . . . .4
Default. . . . . . . . . . . . . . . . . . . . . . . .4
Depository . . . . . . . . . . . . . . . . . . . . . .4
Discount Security. . . . . . . . . . . . . . . . . . .4
Dollar . . . . . . . . . . . . . . . . . . . . . . . .4
Eligible Obligations . . . . . . . . . . . . . . . . .4
Event of Default . . . . . . . . . . . . . . . . . . .4
Global Security. . . . . . . . . . . . . . . . . . . .5
Governmental Obligations . . . . . . . . . . . . . . .5
Governmental Authority . . . . . . . . . . . . . . . .5
Indenture. . . . . . . . . . . . . . . . . . . . . . .5
Instructions . . . . . . . . . . . . . . . . . . . . .6
Interest . . . . . . . . . . . . . . . . . . . . . . .6
Interest Payment Date. . . . . . . . . . . . . . . . .6
Officers' Certificate. . . . . . . . . . . . . . . . .6
Opinion of Counsel . . . . . . . . . . . . . . . . . .6
Outstanding. . . . . . . . . . . . . . . . . . . . . .6
Periodic Offering. . . . . . . . . . . . . . . . . . .7
Person . . . . . . . . . . . . . . . . . . . . . . . .7
Place of Payment . . . . . . . . . . . . . . . . . . .7
Predecessor Security . . . . . . . . . . . . . . . . .7
Responsible Officer. . . . . . . . . . . . . . . . . .7
Security . . . . . . . . . . . . . . . . . . . . . . .8
Securityholder . . . . . . . . . . . . . . . . . . . .8
Series . . . . . . . . . . . . . . . . . . . . . . . .8
Tranche. . . . . . . . . . . . . . . . . . . . . . . .8
Trustee. . . . . . . . . . . . . . . . . . . . . . . .8
Trust Indenture Act. . . . . . . . . . . . . . . . . .8
United States. . . . . . . . . . . . . . . . . . . . .9
ARTICLE TWO - ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.01
Designation, terms, amount, authentication
and delivery of Securities . . . . . . . . . . . . . .9
Section 2.02
Form of Security and Trustee's certificate . . . . . 10
Section 2.03
Date and denominations of Securities,
and provisions for payment of principal,
premium and interest . . . . . . . . . . . . . . . . 11
Section 2.04
Execution of Securities. . . . . . . . . . . . . . . 13
Section 2.05
Exchange of Securities . . . . . . . . . . . . . . . 15
(a) Registration and transfer
of Securities . . . . . . . . . . . . . . . . . 15
(b) Security Register; Securities to be accompanied
by proper instruments of transfer . . . . . . . 15
(c) Charges upon exchange, transfer or
registration of Securities. . . . . . . . . . . 15
(d) Restrictions on transfer or
exchange at time of redemption. . . . . . . . . 16
Section 2.06
Temporary Securities . . . . . . . . . . . . . . . . 16
Section 2.07
Mutilated, destroyed, lost or
stolen Securities. . . . . . . . . . . . . . . . . . 16
Section 2.08
Cancellation of surrendered Securities . . . . . . . 17
Section 2.09
Provisions of Indenture and Securities
for sole benefit of parties and
Securityholders. . . . . . . . . . . . . . . . . . . 18
Section 2.10
Appointment of Authenticating Agent. . . . . . . . . 18
Section 2.11
Global Security. . . . . . . . . . . . . . . . . . . 19
(a) Authentication and Delivery;
Legend. . . . . . . . . . . . . . . . . . . . . 19
(b) Transfer of Global Security . . . . . . . . . . 19
(c) Issuance of Securities in
Definitive Form . . . . . . . . . . . . . . . . 19
Section 2.12
Payment in Proper Currency . . . . . . . . . . . . . 20
Section 2.13
Identification of Securities . . . . . . . . . . . . 20
ARTICLE THREE - REDEMPTION OF SECURITIES AND
SINKING FUND PROVISIONS
Section 3.01
Redemption of Securities . . . . . . . . . . . . . . 20
Section 3.02
(a) Notice of redemption. . . . . . . . . . . . . . 21
(b) Selection of Securities in case
less than all Securities to be
redeemed. . . . . . . . . . . . . . . . . . . . 22
Section 3.03
(a) When Securities called for
redemption become due and payable . . . . . . . 22
(b) Receipt of new Security upon
partial payment . . . . . . . . . . . . . . . . 23
Section 3.04
Sinking Fund for Securities. . . . . . . . . . . . . 23
Section 3.05
Satisfaction of Sinking Fund
Payments with Securities . . . . . . . . . . . . . . 23
Section 3.06
Redemption of Securities for
Sinking Fund . . . . . . . . . . . . . . . . . . . . 23
ARTICLE FOUR - PARTICULAR COVENANTS OF THE COMPANY
Section 4.01
Payment of principal (and premium
if any) and interest on Securities . . . . . . . . . 24
Section 4.02
Maintenance of office or agency for
payment of Securities, designation of
office or agency for payment,
registration, transfer and exchange
of Securities. . . . . . . . . . . . . . . . . . . . 24
Section 4.03
(a) Duties of paying agent. . . . . . . . . . . . . 25
(b) Company as paying agent . . . . . . . . . . . . 25
(c) Holding sums in trust . . . . . . . . . . . . . 26
Section 4.04
Appointment to fill vacancy in
office of Trustee. . . . . . . . . . . . . . . . . . 26
Section 4.05
Restriction on consolidation,
merger or sale . . . . . . . . . . . . . . . . . . . 26
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
Securityholders on certain
conditions. . . . . . . . . . . . . . . . . . . 27
(c) Trustee to make information as to
names and addresses of Securityholders
available to "applicants" to mail
communications to Securityholders in
certain circumstances . . . . . . . . . . . . . 27
(d) Procedure if Trustee elects not to
make information available to
applicants. . . . . . . . . . . . . . . . . . . 27
(e) Company and Trustee not accountable
for disclosure of information . . . . . . . . . 28
Section 5.03
(a) Annual and other reports to be filed
by Company with Trustee . . . . . . . . . . . . 28
(b) Additional information and reports
to be filed with Trustee and
Securities and Exchange Commission. . . . . . . 28
(c) Summaries of information and reports
to be transmitted by Company to
Securityholders . . . . . . . . . . . . . . . . 29
(d) Annual Certificate to be furnished
to Trustee. . . . . . . . . . . . . . . . . . . 29
(e) Effect of Delivery to Trustee . . . . . . . . . 29
Section 5.04
(a) Trustee to transmit annual report
to Securityholders. . . . . . . . . . . . . . . 29
(b) Trustee to transmit certain further
reports to Securityholders. . . . . . . . . . . 30
(c) Copies of reports to be filed with
stock exchanges and Securities and
Exchange Commission . . . . . . . . . . . . . . 31
ARTICLE SIX - REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.01
(a) Events of default defined . . . . . . . . . . . 31
(b) Acceleration of maturity
upon Event of Default . . . . . . . . . . . . . 32
(c) Waiver of default and rescission
of declaration of maturity. . . . . . . . . . . 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 ___ day of ________, ____,
between APPALACHIAN POWER COMPANY, a corporation duly organized and
existing under the laws of the Commonweatlh of Virginia
(hereinafter sometimes referred to as the "Company"), and THE BANK
OF NEW YORK, 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 Appalachian Power Company, a
corporation duly organized and existing under the laws of Virginia,
and, subject to the provisions of Article Ten, shall also include
its successors and assigns.
Company Order:
The term "Company Order" shall mean a written order signed in the
name of the Company by an Authorized Officer and the Secretary or
an Assistant Secretary of the Company, pursuant to a Board
Resolution establishing a series of Securities.
Corporate Trust Office:
The term "Corporate Trust Office" shall mean the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the
date of the execution of this Indenture is located at 101 Barclay
Street, 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 The Bank of New York, and, subject to
the provisions of Article Seven, shall also include its successors
and assigns, and, if at any time there is more than one person
acting in such capacity hereunder, "Trustee" shall mean each such
person. The term "Trustee" as used with respect to a particular
series of the Securities shall mean the trustee with respect to
that series.
Trust Indenture Act:
The term "Trust Indenture Act", subject to the provisions of
Sections 9.01, 9.02, and 10.01, shall mean the Trust Indenture Act
of 1939, as amended and in effect at the date of execution of this
Indenture.
United States:
The term "United States" means the United States of America, its
Territories, its possessions and other areas subject to its
political jurisdiction.
ARTICLE TWO
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01. The aggregate principal amount of Securities
which may be authenticated and delivered under this Indenture is
unlimited.
The Securities may be issued from time to time in one or more
series and in one or more Tranches thereof. Each series shall be
authorized by a Company Order or Orders or one or more indentures
supplemental hereto, which shall specify whether the Securities of
such series shall be subject to a Periodic Offering. The Company
Order or Orders or supplemental indenture and, in the case of a
Periodic Offering, Instructions or other procedures acceptable to
the Trustee specified in such Company Order or Orders, shall
establish the terms of the series, which may include the following:
(i) any limitations on the aggregate principal amount of the
Securities to be authenticated and delivered under this Indenture
as part of such series (except for Securities authenticated and
delivered upon registration of transfer of, in exchange for or in
lieu of other Securities of that series); (ii) the stated maturity
or maturities of such series; (iii) the date or dates from which
interest shall accrue, the Interest Payment Dates on which such
interest will be payable or the manner of determination of such
Interest Payment Dates and the record date for the determination of
holders to whom interest is payable on any such Interest Payment
Date; (iv) the interest rate or rates (which may be fixed or
variable), or method of calculation of such rate or rates, for such
series; (v) the terms, if any, regarding the redemption, purchase
or repayment of such series (whether at the option of the Company
or a holder of the Securities of such series and whether pursuant
to a sinking fund or analogous provisions, including payments made
in cash in anticipation of future sinking fund obligations),
including redemption, purchase or repayment date or dates of such
series, if any, and the price or prices and other terms and
conditions applicable to such redemption, purchase or repayment
(including any premium); (vi) whether or not the Securities of such
series shall be issued in whole or in part in the form of a Global
Security and, if so, the Depositary for such Global Security and
the related procedures with respect to transfer and exchange of
such Global Security; (vii) the designation of such series; (viii)
the form of the Securities of such series; (ix) the maximum annual
interest rate, if any, of the Securities permitted for such series;
(x) whether the Securities of such series shall be subject to
Periodic Offering; (xi) the currency or currencies, including
composite currencies, in which payment of the principal of (and
premium, if any) and interest on the Securities of such series
shall be payable, if other than Dollars; (xii) any other
information necessary to complete the Securities of such series;
(xiii) the establishment of any office or agency pursuant to
Section 4.02 hereof and any other place or places which the
principal of and interest, if any, on Securities of that series
shall be payable; (xiv) if other than denominations of $1,000 or
any integral multiple thereof, the denominations in which the
Securities of the series shall be issuable; (xv) the obligations or
instruments, if any, which shall be considered to be Eligible
Obligations in respect of the Securities of such series denominated
in a currency other than Dollars or in a composite currency; (xvi)
whether or not the Securities of such series shall be issued as
Discount Securities and the terms thereof, including the portion of
the principal amount thereof which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to
Section 6.01(b); (xvii) if the principal of and premium, if any, or
interest, if any, on such Securities are to be payable, at the
election of the Company or the holder thereof, in coin or currency,
including composite currencies, other than that in which the
Securities are stated to be payable, the period or periods within
which, and the terms and conditions upon which, such election shall
be made; (xviii) if the amount of payment of principal of and
premium, if any, or interest, if any, on such Securities may be
determined with reference to an index, formula or other method, or
based on a coin or currency other than that in which the Securities
are stated to be payable, the manner in which such amount shall be
determined; and (xix) any other terms of such series not
inconsistent with this Indenture.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be
provided in or pursuant to any such Company Order or in any
indentures supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Company Order, a copy of an appropriate record
of the applicable Board Resolution shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to
the Trustee at or prior to the delivery of the Company Order
setting forth the terms of that series.
SECTION 2.02. The Securities of any series shall be
substantially of the tenor and purport (i) as set forth in one or
more indentures supplemental hereto or as provided in a Company
Order, or (ii) with respect to any Tranche of Securities of a
series subject to Periodic Offering, to the extent permitted by any
of the documents referred to in clause (i) above, in Instructions,
or by other procedures acceptable to the Trustee specified in such
Company Order or Orders, in each case with such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon
as the Company may deem appropriate and as are not inconsistent
with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on
which Securities of that series may be listed or of the Depository,
or to conform to usage.
The Trustee's Certificate of Authentication shall be in
substantially the following form:
"This is one of the Securities of the series designated
in accordance with, and referred to in, the within-
mentioned Indenture.
Dated:
THE BANK OF NEW YORK
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) an Officers' Certificate, each stating that the form and
terms thereof have been established in conformity with the
provisions of this Indenture; provided, however, that, with respect
to Securities of a series subject to a Periodic Offering, the
Trustee shall be entitled to receive such Opinion of Counsel and
Officers' Certificate only once at or prior to the time of the
first authentication of Securities of such series and that, in such
opinion or certificate, the opinion or certificate described above
may state that when the terms of such Securities, or each Tranche
thereof, shall have been established pursuant to a Company Order or
Orders or pursuant to such procedures acceptable to the Trustee, as
may be specified by a Company Order, such terms will have been
established in conformity with the provisions of this Indenture.
Each Opinion of Counsel and Officers' Certificate delivered
pursuant to this Section 2.04 shall include all statements
prescribed in Section 13.06(b). Such Opinion of Counsel shall also
be to the effect that when such Securities have been executed by
the Company and authenticated by the Trustee in accordance with the
provisions of this Indenture and delivered to and duly paid for by
the purchasers thereof, they will be valid and legally binding
obligations of the Company, enforceable in accordance with their
terms (subject to customary exceptions) and will be entitled to the
benefits of this Indenture.
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the
authorization by the Company of any of such Securities, the forms
and terms thereof and the legality, validity, binding effect and
enforceability thereof, upon the Company Order, Opinion of Counsel,
Officers' Certificate and other documents delivered pursuant to
Sections 2.01 and this Section, as applicable, at or prior to the
time of the first authentication of Securities of such series
unless and until such Company Order, Opinion of Counsel, Officers'
Certificate or other documents have been superseded or revoked or
expire by their terms.
The Trustee shall not be required to authenticate such
Securities if the issue of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in
a manner which is not reasonably acceptable to the Trustee.
SECTION 2.05. (a) Securities of any series may be exchanged
upon presentation thereof at the office or agency of the Company
designated for such purpose, for other Securities of such series of
authorized denominations, and for a like aggregate principal
amount, upon payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, all as provided in this
Section. In respect of any Securities so surrendered for exchange,
the Company shall execute, the Trustee shall authenticate and such
office or agency shall deliver in exchange therefor the Security or
Securities of the same series which the Securityholder making the
exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its
office or agency designated for such purpose in the Borough of
Manhattan, the City and State of New York, or such other location
designated by the Company a register or registers (herein referred
to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall register the
Securities and the transfers of Securities as in this Article
provided and which at all reasonable times shall be open for
inspection by the Trustee. The registrar for the purpose of
registering Securities and transfer of Securities as herein
provided shall be appointed as authorized by Board Resolution or
Company Order (the "Security Registrar").
Upon surrender for transfer of any Security at the office or
agency of the Company designated for such purpose in the Borough of
Manhattan, the City and State of New York, or other location as
aforesaid, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in the name of
the transferee or transferees a new Security or Securities of the
same series as the Security presented for a like aggregate
principal amount.
All Securities presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be
accompanied (if so required by the Company or the Security
Registrar) by a written instrument or instruments of transfer, in
form satisfactory to the Company or the Security Registrar, duly
executed by the registered holder or by his duly authorized
attorney in writing.
(c) Except as provided in the first paragraph of Section
2.07, no service charge shall be made for any exchange or
registration of transfer of Securities, or issue of new Securities
in case of partial redemption of any series, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, other than exchanges
pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not
involving any transfer.
(d) The Company shall neither be required (i) to issue,
exchange or register the transfer of any Securities during a period
beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of less than all the outstanding
Securities of the same series and ending at the close of business
on the day of such mailing, nor (ii) to register the transfer of or
exchange any Securities of any series or portions thereof called
for redemption or as to which the holder thereof has exercised its
right, if any, to require the Company to repurchase such Security
in whole or in part, except that portion of such Security not
required to be repurchased. The provisions of this Section 2.05
are, with respect to any Global Security, subject to Section 2.11
hereof.
SECTION 2.06. Pending the preparation of definitive
Securities of any series, the Company may execute, and the Trustee
shall authenticate and deliver, temporary Securities (printed,
lithographed or typewritten) of any authorized denomination, and
substantially in the form of the definitive Securities in lieu of
which they are issued, but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as
may be determined by the Company. Every temporary Security of any
series shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same
manner, and with like effect, as the definitive Securities of such
series in accordance with Section 2.04. Without unnecessary delay
the Company will execute and will furnish definitive Securities of
such series and thereupon any or all temporary Securities of such
series may be surrendered in exchange therefor (without charge to
the holders thereof), at the office or agency of the Company
designated for the purpose, and the Trustee shall authenticate and
such office or agency shall deliver in exchange for such temporary
Securities an equal aggregate principal amount of definitive
Securities of such series, unless the Company advises the Trustee
to the effect that definitive Securities need not be executed and
furnished until further notice from the Company. Until so
exchanged, the temporary Securities of such series shall be
entitled to the same benefits under this Indenture as definitive
Securities of such series authenticated and delivered hereunder.
SECTION 2.07. In case any temporary or definitive Security
shall become mutilated or be destroyed, lost or stolen, the Company
(subject to the next succeeding sentence) shall execute, and upon
its request the Trustee (subject as aforesaid) shall authenticate
and deliver, a new Security of the same series bearing a number not
contemporaneously outstanding, in exchange and substitution for the
mutilated Security, or in lieu of and in substitution for the
Security so destroyed, lost or stolen. In every case the applicant
for a substituted Security shall furnish to the Company and to the
Trustee such security or indemnity as may be required by them to
save each of them harmless, and, in every case of destruction, loss
or theft, the applicant shall also furnish to the Company and to
the Trustee evidence to their satisfaction of the destruction, loss
or theft of the applicant's Security and of the ownership thereof.
The Trustee may authenticate any such substituted Security and
deliver the same upon the written request or authorization of any
officer of the Company. Upon the issuance of any substituted
Security, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. In case any Security
which has matured or is about to mature shall become mutilated or
be destroyed, lost or stolen, the Company may, instead of issuing
a substitute Security, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the
Company and to the Trustee such security or indemnity as they may
require to save them harmless, and, in case of destruction, loss or
theft, evidence to the satisfaction of the Company and the Trustee
of the destruction, loss or theft of such Security and of the
ownership thereof.
Every Security issued pursuant to the provisions of this
Section in substitution for any Security which is mutilated,
destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Security shall be found at any
time, or be enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and
all other Securities of the same series duly issued hereunder. All
Securities shall be held and owned upon the express condition that
the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities, and shall preclude (to the extent lawful) any and all
other rights or remedies, notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other
securities without their surrender.
SECTION 2.08. All Securities surrendered for the purpose of
payment, redemption, exchange or registration of transfer, or for
credit against a sinking fund, shall, if surrendered to the Company
or any paying agent, be delivered to the Trustee for cancellation,
or, if surrendered to the Trustee, shall be canceled by it, and no
Securities shall be issued in lieu thereof except as expressly
required or permitted by any of the provisions of this Indenture.
On request of the Company, the Trustee shall deliver to the Company
canceled Securities held by the Trustee. In the absence of such
request the Trustee may dispose of canceled Securities in
accordance with its standard procedures. If the Company shall
otherwise acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the
same are delivered to the Trustee for cancellation.
SECTION 2.09. Nothing in this Indenture or in the Securities,
express or implied, shall give or be construed to give to any
person, firm or corporation, other than the parties hereto and the
holders of the Securities, any legal or equitable right, remedy or
claim under or in respect of this Indenture, or 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: Appalachian
Power Company, 40 Franklin Road, S.W., Roanoke, Virginia 24011,
with a copy to the Company in care of American Electric Power
Service Corporation, 1 Riverside Plaza, Columbus, Ohio 43215,
Attention: Treasurer. Any notice, election, request or demand by
the Company or any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes,
if given or made in writing at the Corporate Trust Office of the
Trustee.
SECTION 13.05. This Indenture and each Security shall be
deemed to be a contract made under the laws of the State of New
York, and for all purposes shall be construed in accordance with
the laws of said State.
SECTION 13.06. (a) Upon any application or demand by the
Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent
have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents
is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional
certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant in this Indenture (other than the
certificate provided pursuant to Section 5.03(d) of this Indenture)
shall include (1) a statement that the person making such
certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based; (3) a statement that, in the
opinion of such person, he or she has made such examination or
investigation as is necessary to enable him or her to express an
informed opinion as to whether or not such covenant or condition
has been complied with; and (4) a statement as to whether or not,
in the opinion of such person, such condition or covenant has been
complied with.
SECTION 13.07. Except as provided pursuant to Section 2.01
pursuant to a Company Order, or established in one or more
indentures supplemental to this Indenture, in any case where the
date of maturity of principal or an Interest Payment Date of any
Security or the date of redemption, purchase or repayment of any
Security shall not be a Business Day then payment of interest or
principal (and premium, if any) may be made on the next succeeding
Business Day with the same force and effect as if made on the
nominal date of maturity or redemption, and no interest shall
accrue for the period after such nominal date.
SECTION 13.08. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by
the Trust Indenture Act, such imposed duties shall control.
SECTION 13.09. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same
instrument.
SECTION 13.10. In case any one or more of the provisions
contained in this Indenture or in the Securities of any series
shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this
Indenture or of such Securities, but this Indenture and such
Securities shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 13.11. The Company will have the right at all times to
assign any of its rights or obligations under the Indenture to a
direct or indirect wholly owned subsidiary of the Company; provided
that, in the event of any such assignment, the Company will remain
liable for all such obligations. Subject to the foregoing, this
Indenture is binding upon and inures to the benefit of the parties
thereto and their respective successors and assigns. This
Indenture may not otherwise be assigned by the parties thereto.
SECTION 13.12. The Article and Section Headings in this
Indenture and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 13.13. Whenever this Indenture provides for any
action by, or the determination of any rights of, holders of
Securities of any series in which not all of such Securities are
denominated in the same currency, in the absence of any provision
to the contrary in the form of Security of any particular series,
any amount in respect of any Security denominated in a currency
other than Dollars shall be treated for any such action or
determination of rights as that amount of Dollars that could be
obtained for such amount on such reasonable basis of exchange and
as of the record date with respect to Securities of such series (if
any) for such action or determination of rights (or, if there shall
be no applicable record date, such other date reasonably proximate
to the date of such action or determination of rights) as the
Company may specify in a written notice to the Trustee or, in the
absence of such written notice, as the Trustee may determine.
The Bank of New York, as Trustee, hereby accepts the trusts in
this Indenture declared and provided, upon the terms and conditions
hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year
first above written.
APPALACHIAN POWER COMPANY
By___________________
Treasurer
Attest:
By_____________________
Assistant Secretary
THE BANK OF NEW YORK,
as Trustee
By________________________
Vice President
Attest:
By_____________________
Trust Officer
State of Ohio }
} ss:
County of Franklin }
On this ____ day of ________ __, ____, 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 APPALACHIAN POWER COMPANY, one of the corporations
named in and which executed the foregoing instrument, who severally
acknowledged that they did sign and seal said instrument as such
Treasurer and Assistant Secretary for and on behalf of said
corporation and that the same is their free act and deed as such
Treasurer and Assistant Secretary, respectively, and the free and
corporate act and deed of said corporation.
In Witness Whereof, I have hereunto set my hand and notarial
seal this ____ day of ________, ____.
[Notarial Seal]
____________________________
Notary Public, State of Ohio
My Commission Expires: ________
State of ________ }
} ss:
County of _______ }
Be it remembered, that on this ____ day of ________, ____,
personally appeared before me the undersigned, a Notary Public
within and for said County and State, The Bank of New York, one of
the corporations named in and which executed the foregoing
instrument, by _____________ one of its Vice Presidents, and by
________________, one of its Trust Officers, to me known and known
by me to be such Vice President and Trust Officer, respectively,
who severally duly acknowledged the signing and sealing of the
foregoing instrument to be their free act and voluntary deed, and
the free act and voluntary deed of each of them as such Vice
President and Trust Officer, respectively, and the free act and
voluntary deed of said corporation, for the uses and purposes
therein expressed and mentioned.
In Witness Whereof, I have hereunto set my hand and notarial
seal this ____ day of ________, ____.
[Notarial Seal]
____________________________________
Notary Public, State of ________
My Commission Expires: ________
________ __, ____
Company Order and Officers' Certificate
Unsecured Medium Term Notes, Series A
The Bank of New York, as Trustee
101 Barclay Street
New York, New York 10286
Attn: Corporate Trust Division
Ladies and Gentlemen:
Pursuant to Article Two of the Indenture, dated as of ________ __,
19__ (as it may be amended or supplemented, the "Indenture"), from
Appalachian Power Company (the "Company") to The Bank of New York,
as trustee (the "Trustee"), and the Board Resolutions dated
________ __, _____, 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):
[Insert applicable terms]
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 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 ________ __,
____, 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.
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,
APPALACHIAN POWER COMPANY
By: __________________________
Treasurer
And: _________________________
Assistant Secretary
Acknowledged by Trustee:
By: _____________________
_____________________
Exhibit 1
[Unless this certificate is presented by an authorized representa-
tive 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.
APPALACHIAN POWER COMPANY
Unsecured Medium Term Note, Series A
CUSIP: Original Issue Date:
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:
APPALACHIAN POWER COMPANY, a corporation duly organized and
existing under the laws of the Commonwealth of Virginia (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 Prin-
cipal 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 ________ __, ____
duly executed and delivered between the Company and The Bank of New
York, 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 herein-
after 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 ____________________
APPALACHIAN 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:_______________
THE BANK OF NEW YORK
By:___________________________
Authorized Signatory
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
(PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE)
_______________________________________
________________________________________________________________
________________________________________________________________
(PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
________________________________________________________________
ASSIGNEE) the within Note and all rights thereunder, hereby
________________________________________________________________
irrevocably constituting and appointing such person attorney to
________________________________________________________________
transfer such Note on the books of the Issuer, with full
________________________________________________________________
power of substitution in the premises.
Dated:________________________ _________________________
NOTICE: The signature to this assignment must correspond with the
name as written upon the face of the within Note in every
particular, without alteration or enlargement or any
change whatever and NOTICE: Signature(s) must be
guaranteed by a financial institution that is a member of
the Securities Transfer Agents Medallion Program
("STAMP"), the Stock Exchange Medallion Program ("SEMP")
or the New York Stock Exchange, Inc. Medallion Signature
Program ("MSP").
Exhibit 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):
APPALACHIAN POWER COMPANY
By:___________________________
(President, Vice President, or
Treasurer)
Exhibit 5
December 17, 1997
Appalachian Power Company
40 Franklin Road, S.W.
Roanoke, Virginia 24011
Dear Sirs:
With respect to the Registration Statement on Form S-3 of
Appalachian Power Company (the "Company") relating to the
issuance and sale by the Company in one or more transactions from
time to time of its Debt Securities (the "Debt Securities") under
an Indenture to be entered into between the Company and The Bank
of New York, as Trustee (the "Indenture"), we wish to advise you
as follows:
We are of the opinion that, when the steps mentioned in the
next paragraph below have been taken, the Debt Securities 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
transaction set forth in said Registration Statement;
(2) Appropriate action by and before the Virginia
State Corporation Commission and the Tennessee Regulatory
Authority in respect of the proposed transaction set forth
in said Registration Statement;
(3) Compliance with the Securities Act of 1933, as
amended, and with the Trust Indenture Act of 1939, as
amended;
(4) Execution and delivery of the Indenture; and
(5) Issuance and sale of the Debt Securities 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 Debt Securities.
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 Appalachian Power Company on Form S-3 of
our reports dated February 25, 1997, appearing in and incorporated
by reference in the Annual Report on Form 10-K of Appalachian Power
Company for the year ended December 31, 1996 and to the reference
to us under the heading "Experts" in the Prospectus, which is part
of this Registration Statement.
Deloitte & Touche LLP
Columbus, Ohio
December 17, 1997
Exhibit 24
APPALACHIAN POWER COMPANY
I, John M. Adams, Jr., Assistant Secretary of APPALACHIAN
POWER COMPANY, HEREBY CERTIFY that the following constitutes a true
and exact copy of the resolutions duly adopted by the affirmative
vote of a majority of the Board of Directors of said Company at a
meeting of said Board duly and legally held on December 17, 1997,
at which meeting a quorum of the Board of Directors of said Company
was present and voting throughout. I further certify that said
resolutions have not been altered, amended or rescinded, and that
they are presently in full force and effect.
GIVEN under my hand this 17th day of December, 1997.
_/s/ John M. Adams, Jr._______
Assistant Secretary
APPALACHIAN POWER COMPANY
December 17, 1997
The Chairman outlined a proposed financing program through
December 31, 1998 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 $250,000,000 aggregate principal amount of Debt Securities
comprised of first mortgage bonds or secured or unsecured 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 ("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 $250,000,000.
The Chairman then stated that it was proposed that the
proceeds to be received in connection with the proposed sale of Debt
Securities 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 reminded the meeting that the Company has in
place orders of the Virginia State Corporation Commission and the
Tennessee Regulatory Authority authorizing the issuance of
$250,000,000 of Debt Securities through December 31, 1998. 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, that with respect to the proposed financing
program approved at this meeting, the actions taken by the
officers of this Company in connection with the execution
and filing on behalf of the Company of the necessary
applications with the Virginia State Corporation
Commission and the Tennessee Regulatory Authority be, and
they hereby are, ratified, confirmed and approved in all
respects; and further
RESOLVED, that the proper officers of this Company
be, and they hereby are, authorized to execute and file
with the Securities and Exchange Commission ("SEC") on
behalf of the Company one or more Registration Statements
pursuant to the applicable provisions of the Securities
Act of 1933, as amended; and further
RESOLVED, that it is desirable and in the best
interest of the Company that the Debt Securities be
qualified or registered for sale in various jurisdictions;
that the Chairman of the Board, the President, any Vice
President or the Treasurer and the Secretary or an
Assistant Secretary hereby are authorized to determine the
jurisdictions in which appropriate action shall be taken
to qualify or register for sale all or such part of the
Debt Securities of the Company as said officers may deem
advisable; that said officers are hereby authorized to
perform on behalf of the Company any and all such acts as
they may deem necessary or advisable in order to comply
with the applicable laws of any such jurisdictions, and
in connection therewith to execute and file all requisite
papers and documents, including, but not limited to,
applications, reports, surety bonds, irrevocable consents
and appointments of attorneys for service of process; and
the execution by such officers of any such paper or
document or the doing by them of any act in connection
with the foregoing matters shall conclusively establish
their authority therefor from the Company and the approval
and ratification by the Company of the papers and
documents so executed and the action so taken; and further
RESOLVED, that the proper officers of this Company
be, and they hereby are, authorized and directed to take
any and all further action in connection therewith,
including the execution and filing of such amendment or
amendments, supplement or supplements and exhibit or
exhibits thereto as the officers of this Company may deem
necessary or desirable.
The Chairman 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 $250,000,000 of Debt
Securities, there was to be filed with the SEC a Power of Attorney,
dated December 17, 1997, 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, Appalachian 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 $250,000,000
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 42 years; and
WHEREAS, in connection with said Registration
Statement(s), there is to be filed with the SEC a Power
of Attorney, dated December 17, 1997, executed by certain
of the officers and directors of this Company appointing
E. Linn Draper, Jr., G. P. Maloney, 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 explained that it may be desirable to enter
into a treasury hedge agreement, such as a treasury lock agreement,
treasury put option or interest rate collar agreement ("Treasury
Hedge Agreement") to protect against future interest rate movements
in connection with the issuance of the Debt Securities. He
recommended that the Board authorize the appropriate officers of the
Company to enter into a Treasury Hedge Agreement, provided that the
amount covered by such Agreement would not exceed the principal
amount of Debt Securities the Company anticipates offering and that
the term of such Agreement will not exceed 90 days.
Thereupon, it was, on motion duly made and seconded,
unanimously
RESOLVED, that the Chairman of the Board, the
President, any Vice President or the Treasurer of this
Company be, and each of them hereby is, authorized to
execute and deliver in the name and on behalf of this
Company, a Treasury Hedge Agreement in such form as shall
be approved by the officer executing the same, such
execution to be conclusive evidence of such approval,
provided that the amount covered by such Agreement would
not exceed the principal amount of Debt Securities the
Company anticipates offering and that the term of such
Agreement will not exceed 90 days; and further
RESOLVED, that the proper officers of the Company be,
and they hereby are, authorized to execute and deliver
such other documents and instruments, and to do such other
acts and things, that in their judgment may be necessary
or desirable in connection with the transactions
authorized in the foregoing resolutions.
The Chairman stated that, with respect to the issuance of
up to $250,000,000 of Debt Securities through one or more agents
under a medium term note program, the Company could enter into a
Selling Agency Agreement. He 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 further stated that the Company could also
enter into an Underwriting Agreement ("Underwriting Agreement") with
certain underwriters, under which the underwriters may purchase up
to $250,000,000 aggregate principal amount of Debt Securities having
an interest rate and maturity to be determined, such interest rate
not to exceed 11% per annum and the maturity thereof to be not less
than nine months nor more than 42 years. He recommended that the
Board authorize the appropriate officers of the Company to enter into
an Underwriting Agreement and determine the purchase price of the
Debt Securities, provided that the price shall not be less than 95%,
including compensation to the underwriters of no more than 3.5%, 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 no more than 3.5%, 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 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 $250,000,000 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 December 1, 1940, 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, the
maturity to be not less than nine months nor more than 42 years.
Any fixed rate of interest applicable to the First Mortgage Bonds
will not exceed by more than 3% the yield to maturity of United
States Treasury Bonds of comparable maturity at the time of pricing
of the First Mortgage Bonds. Any initial interest rate on any
variable rate First Mortgage Bonds will not exceed 10% per annum.
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 $250,000,000
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 December 1, 1940,
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 substantially the form presented to
this meeting, 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 applicable to the First Mortgage Bonds will not
exceed by more than 3% 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 10% per annum; and further
RESOLVED, that the officers of this Company
(including the Chairman of the Board, the President, any
Vice President, the Treasurer, any Assistant Treasurer,
the Secretary or any Assistant Secretary) be, and they
hereby are, authorized and directed to execute and
deliver, under the seal of and on behalf of this Company,
one or more additional Supplemental Indentures, specifying
the designation, terms, redemption provisions and other
provisions of the bonds of each New Series and providing
for the creation of the bonds of each New Series and
effecting the amendments to the Mortgage described
therein, such instrument to be substantially in the form
presented to this meeting and ordered to be filed with the
records of this Company, with such changes therein as the
officers executing the same may, upon the advice of
counsel, approve at the time of execution (such approval
to be conclusively evidenced by their execution thereof);
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 $250,000,000 as definitive fully registered bonds
without coupons in denominations of $1,000 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 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 signature of an authorized
officer of such Trustee, bonds of each New Series and to
deliver the same from time to time in accordance with the
written order of this Company signed in the name of this
Company by its Chairman, President or one of its Vice
Presidents and its Treasurer or one of its Assistant
Treasurers; and further
RESOLVED, that the Chairman of the Board, the
President, any Vice President, the Treasurer or any
Assistant Treasurer of the Company be, and they hereby
are, authorized to execute any Treasurer's Certificate
required by Section 29(2) of Article VI and Section 30(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 Hunton & Williams and
that John F. Di Lorenzo, Jr. of Upper Arlington, Ohio,
John M. Adams, Jr. of Worthington, 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 29(8) or
Article VII, Section 30(3) of said Mortgage in connection
with the authentication and delivery of the bonds of each
New Series; and further
RESOLVED, that James J. Markowsky of
Worthington, Ohio, John R. Jones, III of Dublin, Ohio or
Bruce A. Renz of Worthington, Ohio, engineers and officers
of American Electric Power Service Corporation, an
affiliate of this Company, be, and each of them hereby is,
appointed the Engineer to make with the President, any
Vice President, the Treasurer or an Assistant Treasurer
of this Company any Engineer's Certificate required by
Article VI of the Mortgage, in connection with the
authentication and delivery of the bonds of each New
Series; and further
RESOLVED, that the office of 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 certificates with the Federal
Government which it may be permitted or required to make
or file as such agent under any such revenue act and/or
Treasury Department regulation pertaining thereto; and
further
RESOLVED, that, until further action by this Board,
the officers of this Company be, and they hereby are,
authorized and directed to effect transfers and exchanges
of bonds of each New Series, pursuant to Section 12 of the
Mortgage without charging a sum for any bond of the New
Series issued upon any such transfer or exchange other
than a charge in connection with each such transfer or
exchange sufficient to reimburse the Company for any tax
or other governmental charge required to be paid by the
Company in connection therewith; and further
RESOLVED, that the firm of Deloitte & Touche LLP be,
and they hereby are, appointed as independent accountants
to render any independent public accountant's certificate
required under Section 29 of the Mortgage; and further
RESOLVED, that the officers of the Company be, and
they hereby are, authorized and directed to execute such
instruments and papers and to do any and all acts as to
them may seem necessary or desirable to carry out the
purposes of the foregoing resolutions.
The Chairman noted that as an alternative to the issuance
of First Mortgage Bonds, the Company may issue and sell unsecured
notes pursuant to the Selling Agency Agreement or the Underwriting
Agreement. He stated to the meeting that it would be necessary that
the Board authorize the execution and delivery of an Indenture to
be entered into between the Company and The Bank of New York or any
successor trustee ("Indenture") to provide for the issuance of
unsecured notes, in an unlimited aggregate principal amount to be
issued from time to time in one or more series ("Notes").
Thereupon, it was, on motion duly made and seconded,
unanimously
RESOLVED, that the Chairman of the Board, the
President, any Vice President or the Treasurer, and the
Secretary or any Assistant Secretary be, and they hereby
are, authorized to execute and deliver the Indenture in
substantially the form of such Indenture submitted 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;
and that The Bank of New York is hereby approved and
appointed as trustee under such Indenture.
The Chairman then stated to the meeting that, in order to
enable the Company to perform its obligations under the Selling
Agency Agreement or the Underwriting Agreement approved at this
meeting providing for the sale of up to $250,000,000 aggregate
principal amount of the Notes, it was necessary that the Board
authorize the execution and delivery of one or more Company Orders
or Supplemental Indentures to the Indenture between the Company and
The Bank of New York ("Supplemental Indenture"), forms of which were
presented to the meeting. 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 be greater than 300
basis points above 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
10% 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 $250,000,000 aggregate principal amount of Notes to
be issued under the Indenture and one or more Supplemental
Indentures or Company Orders, in substantially the form
presented to this meeting, 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 be greater than
300 basis points above 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 10%, 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 issuance
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 The Bank
of New York 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, to the extent not determined in a Supplemental
Indenture or Company Order, a certificate requesting the
authentication and delivery of any such Notes and
establishing the terms of any tranche of such series or
specifying procedures for doing so in accordance with the
procedures established in the Indenture; and further
RESOLVED, that the Chairman of the Board, the
President, any Vice President or the Treasurer and the
Secretary or any Assistant Secretary of this Company be,
and they hereby are, authorized and directed to execute
in accordance with the provisions of the Indenture (the
signatures of such officers to be effected either manually
or by facsimile, in which case such facsimile is hereby
adopted as the signature of such officer thereon), and to
deliver to The Bank of New York, as Trustee under the
Indenture, the Notes in the aggregate principal amount of
up to $250,000,000 as definitive fully registered notes
without coupons in denominations of $1,000 or integral
multiples thereof or such other denominations as may be
permitted under the Indenture; and further
RESOLVED, that if any authorized officer of this
Company who signs, or whose facsimile signature appears
upon, any of the Notes ceases to be such an officer prior
to their issuance, the Notes so signed or bearing such
facsimile signature shall nevertheless be valid; and
further
RESOLVED, that, subject as aforesaid, The Bank of New
York, as such Trustee, be, and it hereby is, requested to
authenticate, by the manual signature of an authorized
officer of such Trustee, the Notes and to deliver the same
from time to time in accordance with the written order of
this Company signed in the name of this Company by its
Chairman, President, any Vice President, the Treasurer or
any Assistant Treasurer; and further
RESOLVED, that John F. Di Lorenzo, Jr. of Upper
Arlington, Ohio, John M. Adams, Jr. of Worthington, 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 any
Opinion of Counsel required by the Indenture in connection
with the authentication and delivery of the Notes; and
further
RESOLVED, that the office of The Bank of New York,
at 101 Barclay Street, in the Borough of Manhattan, The
City of New York, be, and it hereby is, designated as the
office or agency of this Company, in accordance with the
Indenture, for the payment of the principal of and the
interest on the Notes, for the registration, transfer and
exchange of Notes and for notices or demands to be served
on the Company with respect to the Notes; and further
RESOLVED, that said The Bank of New York be, and it
hereby is, appointed the withholding agent and attorney
of this Company for the purpose of withholding any and all
taxes required to be withheld by the Company under the
Federal revenue acts from time to time in force and the
Treasury Department regulations pertaining thereto, from
interest paid from time to time on the Notes, and is
hereby authorized and directed to make any and all
payments and reports and to file any and all returns and
accompanying certificates with the Federal Government
which it may be permitted or required to make or file as
such agent under any such revenue act and/or Treasury
Department regulation pertaining thereto; and further
RESOLVED, that the officers of this Company be, and
they hereby are, authorized and directed to effect
transfers and exchanges of the Notes, pursuant to the
Indenture without charging a sum for any Note issued upon
any such transfer or exchange other than a charge in
connection with each such transfer or exchange sufficient
to cover any tax or other governmental charge in relation
thereto; and further
RESOLVED, that The Bank of New York be, and it hereby
is, appointed as Note Registrar in accordance with the
Indenture; and further
RESOLVED, that the officers of the Company be, and
they hereby are, authorized and directed to execute such
instruments and papers and to do any and all acts as to
them may seem necessary or desirable to carry out the
purposes of the foregoing resolutions.
The Chairman 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 with terms similar to those contained in the
representative forms presented to the meeting ("Proposed 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 $250,000,000. Such borrowings would
be evidenced by an unsecured promissory note or notes ("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 be greater than 300 basis points
above 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 10% at the time of issuance.
The Chairman explained that, although the Proposed
Agreement does not represent a definitive agreement with any
commercial bank, financial institution or other institutional
investor, it is believed, on the basis of discussions with certain
of such entities, that one or more of them would enter into an
agreement on terms substantially similar to those in the Proposed
Agreement. Accordingly, the Chairman recommended to the Board that
it authorize the proper officers of the Company to enter into one
or more new term loan agreements on terms substantially similar to
those in the Proposed Agreement.
Thereupon, upon motion duly made and seconded, it was
unanimously
RESOLVED, that the form, terms and provisions of the
Proposed Agreement between the Company and one or more as
yet unspecified commercial banks, financial institutions
or other institutional investors, a copy of which has been
submitted to this meeting, including the forms, terms and
provisions of the Note of the Company appended thereto,
be, and the same hereby are, in all respects approved; 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 to
execute and deliver in the name and on behalf of this
Company, the Proposed Agreement in substantially the form
of such agreement submitted to this meeting, at either a
fixed rate of interest which shall not be greater than 300
basis points 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 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 such initial fluctuation rate
of interest exceed 10%, or at a combination of such
described fixed or fluctuating rates, 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; 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 $250,000,000, upon the
terms and subject to the conditions of the Proposed
Agreement as executed and delivered; and in connection
therewith, to execute and deliver a promissory note in the
form appended to the Proposed Agreement, with such
insertions therein and changes thereto consistent with
such Proposed 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.
APPALACHIAN POWER COMPANY
POWER OF ATTORNEY
Each of the undersigned directors or officers of
APPALACHIAN POWER COMPANY, a Virginia 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 $250,000,000 aggregate principal amount of its Debt Securities
comprising first mortgage bonds or secured or unsecured promissory
notes, or a combination of each, in one or more new series, each
series to have a maturity not exceeding 42 years, does hereby appoint
E. LINN DRAPER, JR., G. P. MALONEY, 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 17th day of December, 1997.
/s/ E. Linn Draper, Jr._____ /s/ G. P. Maloney___________
E. Linn Draper, Jr. L.S. G. P. Maloney L.S.
/s/ P. J. DeMaria___________ /s/ James J. Markowsky______
P. J. DeMaria L.S. James J. Markowsky L.S.
/s/ Henry Fayne_____________ /s/ J. H. Vipperman_________
Henry Fayne L.S. J. H. Vipperman L.S.
/s/ Wm. J. Lhota____________
Wm. J. Lhota L.S.
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) ____________
______________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip Code)
APPALACHIAN POWER COMPANY
(Exact name of obligor as specified in its charter)
Virginia 54-0124790
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
40 Franklin Road, S.W.
Roanoke, VA 24011
(Address of principal executive offices) (Zip Code)
_________________________
Debt Securities
(Title of the indenture securities)
*Specific title(s) to be determined in connection with sale(s) of Debt
Securities
<PAGE>
GENERAL
ITEM 1. General Information.
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Superintendent of Banks of the State of 2 Rector Street, New York, N.Y. 10006,
New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20549
New York Clearing House Association New York, N.Y.
(b) Whether it is authorized to exercise corporate trust powers:
Yes.
ITEM 2. Affiliations with Obligor
If the obligor is an affiliate of the trustee, describe each such affiliation.
None. (See Note on page 2.)
_____________________________
ITEM 16. List of Exhibits:
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29
under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of the
Commission's Rules of Practice.
1. - A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (See Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. - A copy of the existing By-laws of the Trustee. (See Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. - The consent of the Trustee required by Section 321(b) of the Act.
(See Exhibit 6 to Form T-1, Registration Statement No. 33-44051.)
7. - A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority. (See Exhibit 7 to Form T-1, Registration Statement No. 33-
55379.)
1
<PAGE>
NOTE
----
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base responsive answer to Item 2, the answer to
said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
__________________________
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York, a
corporation organized and existing under the laws of the State of New York, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 17th day of December, 1997.
The Bank of New York
By: /s Paul J. Schmalzel
___________________________
Paul J. Schmalzel
Assistant Vice President
<PAGE>
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1997,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin..................... $ 7,769,502
Interest-bearing balances............. 1,472,524
Securities:
Held-to-maturity securities........... 1,080,234
Available-for-sale securities......... 3,046,199
Federal funds sold and Securities pur-
chased under agreements to resell....... 3,193,800
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................35,352,045
LESS: Allowance for loan and
lease losses ..............625,042
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 34,726,574
Assets held in trading accounts......... 1,611,096
Premises and fixed assets (including
capitalized leases)................... 676,729
Other real estate owned................. 22,460
Investments in unconsolidated
subsidiaries and associated
companies............................. 209,959
Customers' liability to this bank on
acceptances outstanding............... 1,357,731
Intangible assets....................... 720,883
Other assets............................ 1,627,267
-----------
Total assets............................ $57,514,958
===========
LIABILITIES
Deposits:
In domestic offices................... $26,875,596
Noninterest-bearing ......11,213,657
Interest-bearing .........15,661,939
In foreign offices, Edge and
Agreement subsidiaries, and IBFs...... 16,334,270
Noninterest-bearing .........596,369
Interest-bearing .........15,737,901
<PAGE>
Federal funds purchased and Securities
sold under agreements to repurchase. 1,583,157
Demand notes issued to the U.S.
Treasury.............................. 303,000
Trading liabilities..................... 1,308,173
Other borrowed money:
With remaining maturity of one year
or less............................. 2,383,570
With remaining maturity of more than
one year through three years............ 0
With remaining maturity of more than
three years......................... 20,679
Bank's liability on acceptances exe-
cuted and outstanding................. 1,377,244
Subordinated notes and debentures....... 1,018,940
Other liabilities....................... 1,732,792
-----------
Total liabilities....................... 52,937,421
-----------
EQUITY CAPITAL
Common stock............................ 1,135,284
Surplus................................. 731,319
Undivided profits and capital
reserves.............................. 2,721,258
Net unrealized holding gains
(losses) on available-for-sale
securities............................ 1,948
Cumulative foreign currency transla-
tion adjustments...................... ( 12,272)
-----------
Total equity capital.................... 4,577,537
-----------
Total liabilities and equity
capital ........................... $57,514,958
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Alan R. Griffith
J. Carter Bacot
Thomas A. Renyi Directors
- --------------------------------------------------------------------------------
