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
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
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
of Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Unit* Price* Fee
Debt
Securities $75,000,000 100% $75,000,000 $22,728
*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 $25,000,000 of Debt Securities of the registrant
remaining unsold under Registration Statement No. 333-01049,
declared effective February 27, 1996.
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 JANUARY 23, 1997
PROSPECTUS
Appalachian Power Company
$100,000,000
Debt Securities
Appalachian Power Company (the "Company") intends to offer,
from time to time, up to $100,000,000 aggregate principal amount
of its Debt Securities, consisting of First Mortgage Bonds (the
"First Mortgage Bonds"), First Mortgage Bonds, Designated Secured
Medium Term Notes (the "Notes") and/or its unsecured debt
securities (the "Unsecured Notes"). (The First Mortgage Bonds
and the Notes are hereinafter collectively referred to as the
"New Bonds"). (The First Mortgage Bonds, the Notes and the
Unsecured Notes are hereinafter collectively referred to as the
"Debt Securities"). The Debt Securities will be offered in one
or more series in amounts, at prices and on terms to be
determined at the time or times of sale. The title, aggregate
principal amount, rate and time of payment of interest, maturity,
initial public offering price, if any, redemption provisions, if
any, credit enhancement, if any, improvement fund, if any,
dividend restrictions in addition to those described herein, if
any, and other specific terms of each series of Debt Securities
in respect of which this Prospectus is being delivered will be
set forth in an accompanying prospectus or pricing supplement
("Prospectus Supplement").
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The Company may sell the Debt Securities through underwrit-
ers, dealers or agents, or directly to one or more institutional
purchasers. A Prospectus Supplement will set forth the names of
underwriters or agents, if any, any applicable commissions or
discounts and the net proceeds to the Company from any such sale.
The date of this Prospectus is January , 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 information may be inspected and copied at the public
reference facilities maintained by the SEC at 450 Fifth Street,
N.W., Washington, D.C., 20549; 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 and information statements and other
information regarding registrants that file electronically 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, 1995;
-- The Company's Quarterly Reports on Form 10-Q for the
periods ended March 31, 1996, June 30, 1996 and
September 30, 1996;
-- The Company's Current Report on Form 8-K dated March
19, 1996; and
-- The Company's Current Report on Form 8-K dated December
23, 1996.
All documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date
of this Prospectus and prior to the termination of the offering
made by this Prospectus shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the
date of filing of such documents.
Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other
subsequently filed document which is deemed to be incorporated by
reference herein or in a Prospectus Supplement modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to
whom a copy of this Prospectus has been delivered, on the written
or oral request of any such person, a copy of any or all of the
documents described above which have been incorporated by
reference in this Prospectus, other than exhibits to such
documents. Written requests for copies of such documents should
be addressed to Mr. G. C. Dean, American Electric Power Service
Corporation, 1 Riverside Plaza, Columbus, Ohio 43215 (telephone
number: 614-223-1000). The information relating to the Company
contained in this Prospectus or any Prospectus Supplement
relating hereto does not purport to be comprehensive and should
be read together with the information contained in the documents
incorporated by reference.
THE COMPANY
The Company is engaged in the generation, purchase,
transmission and distribution of electric power to approximately
865,000 customers in Virginia and West Virginia, and in supplying
electric power at wholesale to other electric utility companies
and municipalities in those states and in Tennessee. 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 proceeds from the sales of
the Debt Securities to refund long-term debt, to fund its
construction program, or to repay short-term unsecured
indebtedness incurred in connection with its construction
program. The Company's First Mortgage Bonds, 9.35% Series due
2021 ($43,250,000 principal amount outstanding) may be redeemed
at their regular redemption price of 107.02%. Such Bonds may
also be redeemed at a lower special redemption price (but not
lower than 100% of the principal amount thereof) through the
application of cash deposited with the Trustee (as defined
below), pursuant to certain provisions of the Mortgage (as
defined below).
The Company has estimated that its consolidated construction
costs (inclusive of allowance for funds used during construction)
during 1997 will be approximately $229,000,000. At January 6,
1997, the Company had approximately $61,000,000 of short-term
unsecured indebtedness outstanding.
RATIO OF EARNINGS TO FIXED CHARGES
Below is set forth the ratio of earnings to fixed charges
for each of the years in the period 1991 through 1995 and for the
12 month period ended September 30, 1996:
12-Month
Period Ended Ratio
December 31, 1991 2.85
December 31, 1992 2.58
December 31, 1993 2.69
December 31, 1994 2.37
December 31, 1995 2.54
September 30, 1996 2.84
DESCRIPTION OF NEW BONDS
The New Bonds will be issued under the Mortgage and Deed of
Trust, dated as of December 1, 1940, made by the Company to
Bankers Trust Company, New York City, as Trustee, as heretofore
supplemented and amended and as to be further supplemented (the
"Mortgage"). All First Mortgage Bonds (including the New Bonds)
issued and to be issued under the Mortgage are herein sometimes
referred to as "Bonds". Copies of the Mortgage, including the
respective forms of Supplemental Indenture pursuant to which each
series of the New Bonds will be issued (the "new Supplemental
Indenture") are filed as exhibits to the Registration Statement.
The following statements include brief summaries of certain
provisions of instruments under which securities of the Company,
including Bonds, have been issued. Certain of these instruments
apply to the issuance of New Bonds. Such instruments, including
amendments and supplements thereto, have been filed by the
Company as exhibits to the Registration Statement. Such
summaries do not purport to be complete and reference is made to
such instruments 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.
Form and Exchange
Unless otherwise set forth in a Prospectus Supplement, New
Bonds in definitive form will be issued only as registered Bonds
without coupons in denominations of $1,000 and in multiples
thereof authorized by the Company. New Bonds will be
exchangeable for a like aggregate principal amount of the same
series of New Bonds of other authorized denominations, and will
be transferable, at the office or agency of the Company in New
York City, and at such other office or agency of the Company as
the Company may from time to time designate, in either case
without payment, until further action by the Company, of any
charge other than for any tax or taxes or other governmental
charge required to be paid by the Company. Bankers Trust Company
is to be designated by the Company to act as agent for payment,
registration, transfer and exchange of the New Bonds in New York
City.
Maturity, Interest, Redemption, Credit Enhancement, Improvement
Fund, Additional Dividend Restrictions and Payment
Information concerning the maturity, interest, redemption
provisions, if any, credit enhancement, if any, improvement fund,
if any, any dividend restrictions in addition to those described
herein and payment with respect to any series of the New Bonds
will be contained in a Prospectus Supplement.
Security
The New Bonds will be secured, pari passu with Bonds of all
other series now or hereafter issued, by the lien of the Mortgage
which, except as provided in the following paragraph,
constitutes, in the opinion of counsel for the Company, a first
lien on substantially all of the fixed physical property and
franchises of the Company, subject only to (a) the conditions and
limitations in the instruments through which the Company claims
title to its properties, (b) "excepted encumbrances" as defined
in Section 6 of the Mortgage, including claims later perfected
into statutory liens or equitable priorities for taxes, services,
materials and supplies, (c) the prior lien of the Trustee for its
compensation, expenses and liabilities, and (d) in the case of
property acquired of record by the Company since the recordation
of the supplemental indenture dated as of March 1, 1996 (not
affixed to other property so as thereby to become subject to the
Mortgage), recordation of a supplemental indenture conveying such
property to the Trustee.
Property acquired after the recordation of the most recent
supplemental indenture may be subject to liens, ranking prior to
the lien of the Mortgage, existing thereon at the time of
acquisition of such property, and the lien thereon of the
Mortgage may be subject to the rights of others which may attach
prior to recordation of a supplemental indenture conveying such
property to the Trustee after its acquisition. The provisions of
the Mortgage, in substance, permit releases of property from the
lien and the withdrawal of cash proceeds of property released
from the lien, not only against new property then becoming
subject to the lien, but also against property already subject to
the lien of the Mortgage, unless such property was owned at
August 31, 1940, or has been made the basis of the issue of Bonds
or a credit under Sections 20 or 40 of the Mortgage.
Accordingly, any increase in the amount of the mortgaged and
pledged property as a result of the after-acquired property
clause may be eliminated by means of such releases and
withdrawals.
Issuance of Additional Bonds
Additional Bonds of any series may be issued in a principal
amount equal to:
1. 60% of the cost or the then fair value, whichever
is less, of unfunded property additions after deduction for
retirements;
2. The principal amount of Bonds or prior lien bonds
retired or then to be retired; and
3. The amount of cash deposited with the Trustee;
but, except as otherwise provided in the Mortgage, only if the
net earnings (as defined in Section 7 of the Mortgage) are at
least twice the annual interest requirement on all outstanding
Bonds and indebtedness having an equal or prior lien, including
the additional issue. However, no Bonds may be issued against
property additions subject to prior liens, as defined in Section
6 of the Mortgage (a) if the principal amount of outstanding
prior lien bonds secured thereby exceeds 40% of the cost or fair
value (whichever is less) of such property additions or (b) if
the principal amount of all Bonds theretofore issued on such
basis and continuing on such basis, and the amount of certain
other items representing deposited cash withdrawn or property
released on such basis, in the aggregate, exceeds 15% of the
aggregate principal amount of all Bonds theretofore issued
(except Bonds issued under Article VII upon retirement of Bonds
previously outstanding under the Mortgage), including the
additional issue. (See Sections 4, 7, 24, 26, 27, 28, 29, 30, 31
and 40 of the Mortgage and "Description of New Bonds--Maintenance
and Replacement Provisions" below.)
The requirement, referred to above, that net earnings be at
least twice the annual interest requirements on all outstanding
Bonds and indebtedness having an equal or prior lien, including a
proposed additional issue of Bonds, is not applicable under
certain circumstances where additional Bonds are issued in a
principal amount equal to the principal amount of Bonds or prior
lien bonds retired or then to be retired (see Section 30 of the
Mortgage). In calculating earnings coverages under the
provisions of the Mortgage, the Company includes, as a component
of earnings, revenues being collected subject to refund and, to
the extent not limited by the terms of the Mortgage, an allowance
for funds used during construction, including amounts positioned
and classified as an allowance for borrowed funds used during
construction. The coverage under such requirement calculated as
of September 30, 1996 based on the amounts then recorded in the
accounts of the Company, was at least 4.06.
It is estimated that as of January 7, 1997, the Company had
available for use in connection with the authentication of Bonds
approximately $950,000,000 of unbonded bondable property
additions. The Company expects that the New Bonds will be
authenticated upon the basis of Bonds previously retired or to be
retired and/or property additions.
Other Restrictions Upon Creation and/or Issuance of New Bonds and
Other Senior Securities
There are, in addition to the foregoing restrictions,
additional limitations upon the creation and/or issuance by the
Company of long-term debt securities and of shares of stock
ranking, as to dividends and distributions of assets, prior to
the common stock equity of the Company.
The issuance of additional securities is limited by
provisions of the Restated Articles of Incorporation of the
Company which require the consent of the holders of the
Cumulative Preferred Stock then outstanding prior to certain
corporate actions.
The favorable vote of holders of at least two-thirds of the
total voting power of the Cumulative Preferred Stock then
outstanding is required (see Restated Articles of Incorporation,
Article V, Paragraph (7)(A)) (a) to increase the total authorized
amount of the Cumulative Preferred Stock; (b) to create or
authorize any series of stock (other than a series of the
Cumulative Preferred Stock) ranking prior to or on a parity with
the Cumulative Preferred Stock as to assets or dividends, or to
create or authorize any obligation or security convertible into
shares of any such stock, or to issue any such prior ranking
stock or security more than twelve months after the date as of
which the Company was empowered to create or authorize such stock
or security; or (c) to change any of the express terms of the
Cumulative Preferred Stock or of any outstanding series thereof
in a manner prejudicial to the holders thereof. Under Paragraph
(7)(A)(c) of Article V of the Restated Articles of Incorporation,
if less than all series are prejudicially affected, only the
consent of the holders of two-thirds of the total number of votes
which holders of the shares of each series so affected are
entitled to cast is required.
The favorable vote of the holders of a majority of the total
voting power of the Cumulative Preferred Stock then outstanding
is required before the Company may (see Restated Articles of
Incorporation, Article V, Paragraph (7)(B)):
(a) merge or consolidate with or into any other
corporation or corporations, or sell all or substantially
all of its assets, unless such action has been approved by
the SEC or by a successor regulatory authority;
(b) issue or assume any evidences of indebtedness,
secured or unsecured (other than (i) Bonds issued under the
Company's Mortgage, (ii) bonds issued under a new mortgage
replacing the Mortgage, (iii) bonds issued under any other
new mortgage, provided the Mortgage shall have been
irrevocably closed against the authentication of additional
Bonds thereunder, (iv) indebtedness secured by bonds of the
Company or by bonds issued under any such new mortgage, (v)
indebtedness secured by bonds issued under a mortgage
existing at the time of acquisition of property acquired by
the Company, provided such mortgage, or any mortgage
replacing it, is irrevocably closed against authentication
of additional bonds thereunder, or (vi) obligations to pay
the purchase price of materials or equipment made in the
ordinary course of the Company's business), for purposes
other than the refunding or renewing of evidences of
indebtedness previously issued or assumed by the Company
resulting in equal or longer maturities or redeeming or
otherwise retiring all outstanding shares of the Cumulative
Preferred Stock, if immediately after such issue or
assumption, (x) the total principal amount of all such
indebtedness (other than those referred to in (i) through
(vi) above) issued or assumed by the Company and then
outstanding (including the evidences of indebtedness then to
be issued or assumed) would exceed 20% of the sum of (1) the
total principal amount of all debt securities of the
character hereinbefore described in (i) through (vi) above,
issued or assumed by the Company and then to be outstanding,
and (2) the stated capital and surplus of the Company, or
(y) the total outstanding principal amount of all unsecured
debt securities of the Company (other than obligations of
the character described in (vi) above) would exceed 20% of
the sum of (1) the total outstanding principal amount of all
bonds or other secured debt of the Company, and (2) the
stated capital and surplus of the Company, or (z) the total
outstanding principal amount of all unsecured debt
securities of the Company (other than obligations of the
character described in (vi) above) of maturities of less
than 10 years would exceed 10% of the sum of (1) the total
principal amount of all bonds or other secured debt of the
Company, and (2) the stated capital and surplus of the
Company; provided that the payment due upon the maturity of
unsecured debt having an original single maturity of 10 or
more years or the payment due upon the final maturity of any
unsecured serial debt which had original maturities of 10 or
more years is not regarded for purposes of this subparagraph
(b) as unsecured debt of a maturity of less than 10 years
until payment thereof is required within 3 years;
(c) issue or reissue any shares of the Cumulative
Preferred Stock or of any other class of stock ranking on a
parity with the outstanding shares of Cumulative Preferred
Stock as to dividends or assets for any purpose other than
to refinance an amount of outstanding Cumulative Preferred
Stock, or stock ranking prior to or on a parity with the
Cumulative Preferred Stock as to dividends or assets, having
an aggregate involuntary liquidation amount equal to the
aggregate involuntary liquidation amount of such issued or
reissued shares, unless (i) the net income of the Company,
determined in accordance with generally accepted accounting
principles to be available for the payment of dividends for
a period of 12 consecutive calendar months within the 15
calendar months immediately preceding the calendar month of
such issuance, is equal to at least twice the annual
dividend requirements on the Cumulative Preferred Stock
(including dividend requirements on such prior or parity
stock), which will be outstanding immediately after such
issuance; (ii) the gross income of the Company for the same
period determined in accordance with generally accepted
accounting principles (but in any event after all taxes
including taxes based on income) is equal to at least one
and one-half times the aggregate of annual interest charges
on indebtedness (excluding interest charges on indebtedness
to be retired by the application of the proceeds from the
issuance of such shares) and the annual dividend
requirements on the Cumulative Preferred Stock (including
dividend requirements on such prior or parity stock), which
will be outstanding immediately after such issuance; and
(iii) the aggregate of the Common Stock Equity, as defined,
is at least equal to the aggregate amount payable in
connection with an involuntary liquidation of the Company
with respect to all shares of Cumulative Preferred Stock and
all shares of such prior or parity stock, if any, which will
be outstanding immediately after such issuance. No
dividends may be paid on Common Stock which would result in
the reduction of the Common Stock Equity, as defined, below
the requirements of clause (iii).
The restrictions and limitations described or referred to
above, which are designed to protect the relative positions of
the holders of outstanding senior securities of the Company, can
operate in such manner as to limit substantially the additional
amounts of senior securities which can be issued by the Company.
The Company believes that its ability to issue short and long-
term debt securities and preferred stock in the amounts required
to finance its operations and construction program may depend
upon timely rate recovery. If the Company is unable to continue
the issue and sale of securities on an orderly basis, the Company
will be required to consider the obtaining of additional amounts
of common equity, the use of possibly more costly alternative
financing arrangements, if available, or the curtailment of its
construction program and other outlays.
Other than the security afforded by the lien of the Mortgage
and restrictions on the incurrence of additional debt described
above and under "Description of New Bonds--Issuance of Additional
Bonds" herein, there are no provisions of the Mortgage which
afford holders of New Bonds protection in the event of a highly
leveraged transaction involving the Company. However, such a
transaction would require regulatory approval and management of
the Company believes such approval would be unlikely in a
transaction which would result in the Company having a highly
leveraged capital structure.
Maintenance and Replacement Provisions
Section 40 of the Mortgage provides (A) in Part I thereof
for the annual deposit by the Company with the Trustee on or
before April 30 of an amount in cash or principal amount of Bonds
of any series equal to the amount by which a defined percentage
(currently 15%) of the base operating revenues, as defined in
Section 40, less the cost of purchased power during the preceding
calendar year exceeds the aggregate amounts expended during such
period by the Company for repairs and maintenance and for
property substituted for property retired since August 31, 1940;
and (B) in Part II thereof for the annual deposit (which the
Mortgage requires to be made so long as any of the Bonds of any
series issued prior to December 31, 1992 are outstanding and
which, except as disclosed in a Prospectus Supplement, the new
Supplemental Indenture will not require to be made so long as any
of the New Bonds are outstanding) by the Company with the Trustee
on or before April 30 of an amount in cash or principal amount of
Bonds of any series equal to the excess of the product of a
specified percentage (currently 2.25% but subject to change as
provided in the Mortgage) and the average of the Depreciable
Property (as defined) of the Company at the first and the last
day of the preceding calendar year over the sum of (i) the
aggregate amount expended during the preceding calendar year for
property substituted for retired property, (ii) the aggregate of
the property additions certified, and the cash and/or Bonds
deposited pursuant to the requirements of Part I of Section 40
with respect to such year, and (iii) any credit applicable to
prior years. The Company may under this covenant certify to the
Trustee, in lieu of depositing cash or Bonds, property additions
which are not then funded property (which thereupon become funded
property) at cost or fair value, whichever is less.
The Supplemental Indenture dated as of May 1, 1979 amended
Article XX to provide that the Mortgage may at a future date be
amended (i) to delete the requirement for annual deposits
pursuant to Part I of Section 40 of the Mortgage and/or (ii) to
delete the 15% limit on Bonds issued on the basis of property
additions subject to prior liens, upon compliance with the
provisions of the Mortgage but without the favorable vote or
consent of the holder of any new Bond or any other Bond issued
after April 30, 1979 or including any such new Bond or other such
Bond in determining whether a quorum exists or a specified
percentage of holders of Bonds participated in action on any such
amendment. The Company, in its application to the SEC with
respect to the issuance of $70,000,000 principal amount of First
Mortgage Bonds, 11% Series due 1987, proposed, and the SEC
approved, a change in the specified percentage in Part II of
Section 40 of the Mortgage from 2.25% to 2.90%, such change to
become effective on the date the Mortgage is amended as
contemplated in clause (i) above and to continue at 2.90% until
another change in such percentage shall be authorized or approved
upon application by the Company to the SEC. In connection with
the amendment contemplated by the next two sentences, the Company
has elected, and the SEC has authorized the Company to retain,
the applicable percentage at 2.25%. Since all Bonds issued prior
to April 30, 1979 have matured or been redeemed, the Company may
now amend the Mortgage to make such changes described above. The
Company proposes to amend the Mortgage to delete (i) the
requirement for annual deposits pursuant to Part I of Section 40
of the Mortgage and (ii) the 15% limit on Bonds issued on the
basis of property additions subject to prior liens.
Release and Substitution of Property
The Mortgage permits property to be released from the lien
of the Mortgage upon compliance with the provisions thereof.
Such provisions require that, in certain specified cases, cash be
deposited with the Trustee in an amount equal to the excess of
the fair value of the property to be released over the aggregate
of certain computations required by the Mortgage. (See Sections
65 and 69 of the Mortgage.) The Mortgage also contains certain
requirements relating to the withdrawal of release moneys. (See
Section 67 of the Mortgage.)
Modification of the Mortgage
Article XX of the Mortgage provides for modifying or
altering the Mortgage with the consent of the Company and by vote
of the holders of at least 75% in principal amount of the
outstanding Bonds which are affected by the proposed modification
or alteration. No modification or alteration, without the
consent of the holder of a Bond, may modify the terms of payment
of the principal amount of or interest on such Bond or create an
equal or prior lien or deprive such holder of a lien on the
mortgaged property or reduce the above percentage.
Restriction on Common Stock Dividends
Various restrictions on the use of retained earnings for
cash dividends on Common Stock and other purposes are contained
in or result from other covenants in the charter. At September
30, 1996, the Company's consolidated unrestricted retained
earnings amounted to $211,865,000. Unless otherwise specified in
a Prospectus Supplement, there will be no additional restrictions
on common stock dividends.
Concerning the Trustee
AEP System companies, including the Company, utilize many of
the banking services offered by Bankers Trust Company in the
normal course of their businesses. Among such services are the
making of short-term loans and in certain cases term loans,
generally at rates related to the prime commercial interest rate,
and acting as a depositary. In addition, Bankers Trust Company
will serve as Trustee under the Company's Indenture for the
Unsecured Notes. (See "Description of Unsecured Notes" herein.)
The Trustee may, and upon written request of the holders of
a majority in principal amount of the Bonds shall, declare the
principal due upon occurrence of a completed default, but the
holders of a majority in principal amount of the Bonds may annul
such declaration if the default has been cured. (See Section 71
of the Mortgage.) The holders of a majority in principal amount
of the Bonds may direct the time, method and place of conducting
any proceeding for the enforcement of the Mortgage. (See Section
76 of the Mortgage.) No Bondholder has the right to institute
any proceeding for the enforcement of the Mortgage unless such
holder shall have given the Trustee written notice of a completed
default, the holders of 25% in principal amount of the Bonds
shall have offered to the Trustee indemnity against costs,
expenses and liabilities, requested the Trustee to take action
and given the Trustee reasonable opportunity to take such action.
The foregoing does not affect or impair the right of a holder of
a Bond to enforce the payment of the principal of and interest on
such Bond on the respective due dates. (See Section 86 of the
Mortgage.) The Trustee is entitled to be indemnified before
taking action to enforce the lien at the request of such
Bondholders. (See Section 75 of the Mortgage.)
Defaults
By Section 71 of the Mortgage, the following are defined as
"completed defaults": default in the payment of principal;
default for 60 days in the payment of interest; default in
payment of principal or interest on outstanding prior lien bonds
in certain cases; certain events of bankruptcy, insolvency or
reorganization; and default continued for 60 days after notice in
the performance of any other covenant. By Section 59 of the
Mortgage, a failure to provide money for the redemption of Bonds
called for redemption also constitutes a completed default. The
Company is required to furnish annually to the Trustee a
certificate as to compliance with all conditions and covenants
under the Mortgage.
DESCRIPTION OF UNSECURED NOTES
The Unsecured Notes will be issued in series under an
Indenture to be entered into between the Company and Bankers
Trust Company, as Trustee (the "Trustee") (the "Indenture"). The
following summary does not purport to be complete and is subject
in all respects to the provisions of, and is qualified in its
entirety by reference to, the form of Indenture, and the form of
Supplemental Indenture thereto, which are filed as exhibits to
the Registration Statement of which this Prospectus forms a part.
Whenever particular provisions or defined terms in the Indenture
are referred to herein, such provisions or defined terms are
incorporated by reference herein. Section and Article references
used herein are references to provisions of the Indenture unless
otherwise noted.
General
The Unsecured Notes will be unsecured obligations of the
Company and will rank pari passu with all other unsecured and
unsubordinated debt of the Company. The Indenture does not limit
the aggregate principal amount of notes that may be issued
thereunder and provides that Unsecured Notes issued thereunder
may be issued thereunder from time to time in one or more series,
as authorized by a Board Resolution, and set forth in a Company
Order (as defined in the Indenture) or one or more supplemental
indentures creating such series. The Restated Articles of
Incorporation of the Company, however, limit the issuance of
long-term securities. (See "Description of New Bonds--Other
Restrictions Upon Creation and/or Issuance of New Bonds and Other
Senior Securities" above.)
Substantially all of the fixed properties and franchises of
the Company are subject to the lien of the Mortgage under which
the Company's First Mortgage Bonds are outstanding. See
"Description of New Bonds".
The Unsecured Notes are not convertible into any other
security of the Company. The Indenture does not contain any
provisions that afford holders of Unsecured Notes protection in
the event of a highly leveraged transaction involving the
Company. Such a transaction would require regulatory approval,
and management of the Company believes such approval would be
unlikely in a transaction which would result in the Company
having a highly leveraged capital structure. The Indenture also
does not contain any provisions that afford holders of Unsecured
Notes protection against the Company incurring other
indebtedness.
Maturity, Interest, Redemption, Credit Enhancement, Covenants and
Restrictions and Payment
Information concerning the maturity, interest, redemption
provisions, if any, sinking fund, if any, credit enhancement, if
any, any covenants or restrictions, such as limitations on liens
or dividend restrictions, and payment with respect to any series
of the Unsecured Notes will be contained in a Prospectus
Supplement.
Form and Exchange
Unless otherwise set forth in a Prospectus Supplement,
Unsecured Notes in definitive form will be issued only as
registered Unsecured Notes without coupons in denominations of
$1,000 and in integral multiples thereof authorized by the
Company. Unsecured Notes will be exchangeable for a like
aggregate principal amount of the same series of Unsecured Notes
of other authorized denominations, and will be transferable, at
the office or agency designated by the Company in New York City,
or at such other office or agency designated by the Company, in
either case without payment, until further action by the Company,
of any charge other than for any tax or taxes or other
governmental charge required to be paid by the Company. Bankers
Trust Company is to be designated by the Company to act as agent
for payment, registration, transfer and exchange of the Unsecured
Notes in New York City.
Payment and Paying Agents
Payment of principal of and premium (if any) on any
Unsecured Note will be made only against surrender to the Paying
Agent of such Unsecured Note. Principal of and any premium and
interest on Unsecured Notes will be payable at the office of such
Paying Agent or Paying Agents as the Company may designate from
time to time, except that at the option of the Company payment of
any interest may be made by check mailed to the address of the
person entitled thereto as such address shall appear in the Note
Register with respect to such Unsecured Notes.
The Trustee will initially act as Paying Agent with respect
to Unsecured Notes. The Company may at any time designate
additional Paying Agents or rescind the designation of any Paying
Agents or approve a change in the office through which any Paying
Agent acts. (Sections 4.02 and 4.03 of the Indenture).
All moneys paid by the Company to a Paying Agent for the
payment of the principal of or premium or interest, if any, on
any Unsecured Note that remains unclaimed at the end of two years
after such principal, premium, if any, or interest shall have
become due and payable, subject to applicable law, will be repaid
to the Company and the holder of such Unsecured Note will
thereafter look only to the Company for payment thereof. (Section
11.04 of the Indenture).
Modification of the Indenture
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less than a
majority in principal amount of Unsecured 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 Unsecured Notes; provided, that no
such modification may, without the consent of the holder of each
outstanding Unsecured Note affected thereby, (i) extend the fixed
maturity of any Unsecured Notes of any series, or reduce the
principal amount thereof, or reduce the rate or extend the time
of payment of interest thereon, or reduce any premium payable
upon the redemption thereof or (ii) reduce the percentage of
Unsecured Notes, the holders of which are required to consent to
any such supplemental indenture. (Section 9.02 of the
Indenture).
In addition, the Company and the Trustee may execute,
without the consent of any holder of Unsecured Notes, any
supplemental indenture for certain other usual purposes including
the creation of any new series of notes to be issued under the
Indenture. (Sections 2.01, 9.01 and 10.01 of the Indenture).
Events of Default
The Indenture provides that any one or more of the following
described events, which has occurred and is continuing,
constitutes an "Event of Default" with respect to each series of
Unsecured Notes:
(a) failure for 30 days to pay interest on Unsecured
Notes of that series when due; or
(b) failure to pay principal or premium, if any, on
Unsecured Notes of that series when due whether at maturity,
upon redemption, by declaration or otherwise; or
(c) failure for 30 days to pay any sinking fund
obligation on Unsecured Notes of that series; or
(d) failure by the Company to observe or perform any
other covenant (other than those specifically relating to
another series) contained in the Indenture for 90 days after
written notice to the Company from the Trustee or the
holders of at least 25% in principal amount of the
outstanding Unsecured Notes of that series; or
(e) certain events involving bankruptcy, insolvency or
reorganization of the Company; or
(f) any other event of default provided for in a
series of Unsecured Notes. (Section 6.01 of the Indenture).
The Trustee or the holders of not less than 25% in aggregate
outstanding principal amount of any particular series of
Unsecured Notes may declare the principal due and payable
immediately upon an Event of Default with respect to such series,
but the holders of a majority in aggregate outstanding principal
amount of such series may annul such declaration and waive the
default with respect to such series if the default has been cured
and a sum sufficient to pay all matured installments of interest
and principal otherwise than by acceleration and any premium has
been deposited with the Trustee. (Sections 6.01 and 6.06 of the
Indenture).
The holders of a majority in aggregate outstanding principal
amount of any series of Unsecured Notes have the right to direct
the time, method and place of conducting any proceeding for any
remedy available to the Trustee for that series. (Section 6.06
of the Indenture). Subject to the provisions of the Indenture
relating to the duties of the Trustee in case an Event of Default
shall occur and be continuing, the Trustee will be under no
obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the holders of
the Unsecured Notes, unless such holders shall have offered to
the Trustee indemnity satisfactory to it. (Section 7.02 of the
Indenture).
The holders of a majority in aggregate outstanding principal
amount of any series of Unsecured Notes affected thereby may, on
behalf of the holders of all Unsecured 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 Unsecured
Notes of such series. (Section 6.06 of the Indenture). The
Company is required to file annually with the Trustee a
certificate as to whether or not the Company is in compliance
with all the conditions and covenants under the Indenture.
(Section 5.03(d) of the Indenture).
Consolidation, Merger and Sale
The Indenture does not contain any covenant that restricts
the Company's ability to merge or consolidate with or into any
other corporation, sell or convey all or substantially all of its
assets to any person, firm or corporation or otherwise engage in
restructuring transactions, provided that the successor
corporation assumes due and punctual payment of principal or
premium, if any, and interest on all notes issued under the
Indenture. (Section 10.01 of the Indenture).
Legal Defeasance and Covenant Defeasance Discharge
Unsecured Notes of a series may be defeased in accordance
with their terms and, unless the Supplemental Indenture or the
Company Order establishing the terms of the series otherwise
provides, as set forth below. The Company at any time may
terminate as to a series all of its obligations (except for
certain obligations, including obligations with respect to the
defeasance trust and obligations to register the transfer or
exchange of an Unsecured Note, to replace destroyed, lost or
stolen Unsecured Notes and to maintain agencies in respect of the
Unsecured Notes) with respect to the Unsecured Notes of the
series and the Indenture ("legal defeasance"). The Company at
any time may terminate as to a series its obligations with
respect to the Unsecured Notes of the series under any
restrictive covenant which may be applicable to a particular
series ("covenant defeasance").
The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance
option. If the Company exercises its legal defeasance option, a
series may not be accelerated because of an Event of Default. If
the Company exercises its covenant defeasance option, a series
may not be accelerated by reference to any restrictive covenant
which may be applicable to a particular series.
To exercise either defeasance option as to a series, the
Company must deposit in trust (the "defeasance trust") with the
Trustee, money or Governmental Obligations, or a combination, for
the payment of principal, premium, if any, and interest on the
Unsecured Notes of the series to redemption or maturity and must
comply with certain other conditions. In particular, the Company
must obtain an opinion of tax counsel that the defeasance will
not result in recognition of any gain or loss to holders for
Federal income tax purposes.
In the event the Company exercises its option to effect a
covenant defeasance with respect to the Unsecured Notes of any
series as described above and the Unsecured Notes of that series
are thereafter declared due and payable because of the occurrence
of any Event of Default other than the Event of Default caused by
failing to comply with the covenants which are defeased, the
amount of money and securities on deposit with the Trustee would
be sufficient to pay amounts due on the Unsecured Notes of that
series at the time of their stated maturity but may not be
sufficient to pay amounts due on the Unsecured Notes of that
series at the time of the acceleration resulting from such Event
of Default. However, the Company would remain liable for such
payments. (Section 11.01 of the Indenture).
Governing Law
The Indenture and Unsecured Notes will be governed by, and
construed in accordance with, the laws of the State of New York.
(Section 13.05 of the Indenture).
Concerning the Trustee
AEP System companies, including the Company, utilize many of
the banking services offered by Bankers Trust Company in the
normal course of their businesses. Among such services are the
making of short-term loans and in certain cases term loans,
generally at rates related to the prime commercial interest rate,
and acting as a depositary. In addition, Bankers Trust Company
serves as Trustee under the Company's Mortgage. (See
"Description of New Bonds" herein.)
RECENT DEVELOPMENTS
Reference is made to page C-5 of the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30, 1996, for
a discussion of a settlement agreement filed with the Public
Service Commission of West Virginia ("WVPSC") on November 12,
1996, regarding the Company's rates in West Virginia. The WVPSC
on December 27, 1996, approved the settlement agreement with
certain minor exceptions.
LEGAL OPINIONS
Opinions with respect to the legality of the New Bonds
and/or Unsecured Notes will be rendered by Simpson Thacher &
Bartlett (a partnership which includes professional
corporations), 425 Lexington Avenue, New York, New York, and 1
Riverside Plaza, Columbus, Ohio, counsel for the Company, and by
Dewey Ballantine, 1301 Avenue of the Americas, New York, New
York, counsel for any underwriters, dealers or agents. In
connection with the issuance of New Bonds, Simpson Thacher &
Bartlett and Dewey Ballantine will rely as to matters of Virginia
law, upon the opinion of Hunton & Williams, as to matters of West
Virginia law, upon the opinion of Robinson & McElwee and as to
matters of Tennessee law, upon the opinion of Hunter, Smith &
Davis, LLP, all counsel for the Company. Additional legal
opinions in connection with the offering of the Unsecured Notes
may be given by John M. Adams, Jr. or Thomas G. Berkemeyer,
counsel for the Company. Mr. Adams is Assistant General Counsel,
and Mr. Berkemeyer is a Senior Attorney, in the Legal Department
of American Electric Power Service Corporation, a wholly owned
subsidiary of AEP. From time to time, Dewey Ballantine acts as
counsel to affiliates of the Company in connection with certain
matters.
EXPERTS
The financial statements and related financial statement
schedule incorporated in this prospectus by reference from the
Company's Annual Report on Form 10-K have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their
reports, which are incorporated herein by reference, and have
been so incorporated in reliance upon the reports of such firm
given upon their authority as experts in accounting and auditing.
The legal conclusions in "Security" under the caption
"Description of New Bonds", as to those matters governed by the
laws of the Commonwealth of Virginia have been reviewed by Hunton
& Williams, Richmond, Virginia; as to those matters governed by
the laws of the State of West Virginia by Robinson & McElwee,
Charleston, West Virginia; and as to those matters governed by
the laws of the State of Tennessee by Hunter, Smith & Davis, LLP,
Kingsport, Tennessee, all counsel for the Company. All of said
statements are made on the authority of said firms as experts.
PLAN OF DISTRIBUTION
The Company may sell the New Bonds and/or Unsecured Notes in
any of three ways: (i) through underwriters or dealers; (ii)
directly to a limited number of purchasers or to a single
purchaser; or (iii) through agents. The Prospectus Supplement
relating to a series of the New Bonds and/or Unsecured Notes will
set forth the terms of the offering of the New Bonds and/or
Unsecured Notes, including the name or names of any underwriters,
dealers or agents, the purchase price of such New Bonds and/or
Unsecured Notes and the proceeds to the Company from such sale,
any underwriting discounts or agency fees and other items
constituting underwriters' or agents' compensation, any initial
public offering price and any discounts or concessions allowed or
reallowed or paid to dealers. Any initial public offering price
and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time after the initial public
offering.
If underwriters are used in the sale, the New Bonds and/or
Unsecured Notes will be acquired by the underwriters for their
own account and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time
of the sale. The underwriters with respect to a particular
underwritten offering of New Bonds and/or Unsecured Notes will be
named in the Prospectus Supplement relating to such offering and,
if an underwriting syndicate is used, the managing underwriters
will be set forth on the cover page of such Prospectus
Supplement. Unless otherwise set forth in the Prospectus
Supplement, the obligations of the underwriters to purchase the
New Bonds and/or Unsecured Notes will be subject to certain
conditions precedent, and the underwriters will be obligated to
purchase all such New Bonds and/or Unsecured Notes if any are
purchased.
New Bonds and/or Unsecured Notes may be sold directly by the
Company or through agents designated by the Company from time to
time. The Prospectus Supplement will set forth the name of any
agent involved in the offer or sale of the New Bonds and/or
Unsecured Notes in respect of which the Prospectus Supplement is
delivered as well as any commissions payable by the Company to
such agent. Unless otherwise indicated in the Prospectus
Supplement, any such agent will be acting on a reasonable best
efforts basis for the period of its appointment.
If so indicated in the Prospectus Supplement, the Company
will authorize agents, underwriters or dealers to solicit offers
by certain specified institutions to purchase New Bonds and/or
Unsecured 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.
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
Estimation based upon the issuance of all of the Debt
Securities in one issuance:
Securities and Exchange Commission
Filing Fees $ 22,728
State Filing and Recordation fees and
expenses 40,000
Printing Registration Statement,
Prospectus, etc. 25,000
Printing and Engraving Debt Securities 10,000
Independent Auditors' fees 15,000
Charges of Trustee (including counsel fees) 17,500
Legal fees 103,500
Rating Agency fees 57,500
Miscellaneous expenses 20,000
Total $311,228
* 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
indemnification 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 filed as
Exhibit 1(a) hereto and to the Underwriting Agreement filed as
Exhibit 1(b) hereto, 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 Debt Securities (if the
total dollar value of Debt Securities would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) of the Securities Act of 1933 if, in the
aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that (i) and (ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of the registrant's
annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference
in the registration statement shall be deemed to be a new
registration statement relating to the Debt Securities, and the
offering thereof at that time shall be deemed to be the initial
bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the laws of the Commonwealth of 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 Debt Securities, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
said Act and will be governed by the final adjudication of such
issue.
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 23rd day of January, 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 January 23, 1997
(ii) Principal Financial
Officer:
G. P. Maloney* Vice President January 23, 1997
(iii) Principal Accounting
Officer:
P. J. DeMaria* Controller January 23, 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* January 23, 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 Debt Securities.
* 1(b) - Copy of proposed form of Underwriting Agreement
for the Debt Securities.
4(a) - Copy of Mortgage and Deed of Trust, dated as of
December 1, 1940, between the Company and Bankers
Trust Company and R. Gregory Page, as Trustees, as
amended and supplemented [Registration Statement
No. 2-7289, Exhibit 7(b); Registration Statement
No. 2-19884, Exhibit 2(1); Registration Statement
No.2-24453, Exhibit 2(n); Registration Statement
No. 2-60015, Exhibits 2(b)(2), 2(b)(3), 2(b)(4),
2(b)(5), 2(b)(6), 2(b)(7), 2(b)(8), 2(b)(9),
2(b)(10), 2(b)(12), 2(b)(14), 2(b)(15), 2(b)(16),
2(b)(17), 2(b)(18), 2(b)(19), 2(b)(20), 2(b)(21),
2(b)(22), 2(b)(23), 2(b)(24), 2(b)(25), 2(b)(26),
2(b)(27) and 2(b)(28); Registration Statement No.
2-64102, Exhibit 2(b)(29); Registration Statement
No. 2-66457, Exhibits 2(b)(30) and 2(b)(31);
Registration Statement No. 2-69217, Exhibit
2(b)(32); Registration Statement No. 2-86237,
Exhibit 4(b); Registration Statement No. 33-11723,
Exhibit 4(b); Registration Statement No. 33-17003,
Exhibit 4(a)(ii); Registration Statement No. 33-
30964, Exhibit 4(b); Registration Statement No.
33-40720, Exhibit 4(b); Registration Statement No.
33-45219, Exhibit 4(b); Registration Statement No.
33-50112, Exhibits 4(b) and 4(c); Registration
Statement No. 33-53410, Exhibit 4(b); Registration
Statement No. 33-59834, Exhibit 4(b); Registration
Statement No. 33-50229, Exhibits 4(b) and 4(c);
Registration Statement No. 33-58431, Exhibits
4(b), 4(c), 4(d) and 4(e); Registration Statement
No. 333-01049, Exhibits 4(b) and 4(c)].
* 4(b) - Copy of Supplemental Indenture, dated as of March
1, 1996, between the Company and Bankers Trust
Company, providing for the issuance of
$100,000,000 principal amount of First Mortgage
Bonds, 6-3/8% Series due March 1, 2001 and
$100,000,000 principal amount of First Mortgage
Bonds, 6.80% Series due March 1, 2006.
* 4(c) - Copy of form of proposed Supplemental Indenture to
be entered into between the Company and Bankers
Trust Company, as Trustee, for the New Bonds.
* 4(d) - Copy of form of proposed Indenture to be entered
into between the Company and Bankers Trust
Company, as Trustee, for the Unsecured Notes.
* 4(e) - Copy of form of proposed Supplemental Indenture to
be entered into between the Company and Bankers
Trust Company, as Trustee, for the Unsecured
Notes.
* 5 - Opinion of Simpson Thacher & Bartlett with respect
to the Debt Securities.
12 - Statement re Computations of Ratios [Quarterly
Report on Form 10-Q of the Company for the period
ended September 30, 1996, 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).
*23(c) - Consent of Hunton & Williams.
*23(d) - Consent of Robinson & McElwee.
*23(e) - Consent of Hunter, Smith & Davis, LLP.
*24 - Powers of Attorney and resolutions of the Board of
Directors of the Company.
*25(a) - Form T-1 re eligibility of Bankers Trust Company
to act as Trustee under the First Mortgage Bond
Indenture.
*25(b) - Form T-1 re eligibility of Bankers Trust Company
to act as Trustee under the Unsecured Note
Indenture.
Exhibit 1(a)
APPALACHIAN POWER COMPANY
$100,000,000 [Debt Securities]
Selling Agency Agreement
__________ __, 1997
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 $100,000,000 aggregate
principal amount of its [Debt Securities] (the "Notes"). The Notes
will be issued under the [Indenture dated as of _______________,
between the Company and Bankers Trust Company, as trustee (the
"Trustee"), as supplemented by the Supplemental Indenture dated as
of _______________ between the Company and the Trustee (said
Indenture as so supplemented being hereafter referred to as the
"Indenture")] [Mortgage and Deed of Trust dated December 1, 1940
between the Company and Bankers Trust Company, as trustee (the
"Trustee"), as heretofore supplemented and as to be further
supplemented by one or more supplemental indentures (said Mortgage,
as heretofore supplemented, and as it is to be supplemented, being
hereinafter referred to as the "Mortgage")]. 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] [Mortgage] and, in
the case of Notes sold pursuant to Section 2(a), 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 the 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") two registration statements on such Form S-3
(File Numbers: 333-01049 and 333-_____), which have become
effective, for the registration under the Act of $100,000,000
aggregate principal amount of debt securities (the "Securi-
ties"), including the Notes. Such registration statements
meet the requirements set forth in Rule 415(a)(1)(ix) or (x)
under the Act and comply in all other material respects with
said Rule. The Company has included in Registration Statement
No. 333-_____ a basic prospectus which, pursuant to Rule 429
under the Act, is a combined prospectus, also relating to
Securities included in Registration Statement No. 333-01049.
The Company has included in such registration statements, as
amended at the date of this Agreement, or has filed or 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 statements 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 Statements, 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 Statements, 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 Statements 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 Statements 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 Statements or the
Prospectus (or any supplement thereto).
(c) As of the time any Notes are issued and sold
hereunder, the [Indenture] [Mortgage] 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] [Mortgage], 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 Registration Statement No.
333-_____ 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 combined basic prospectus relating to the
Securities contained in Registration Statement No. 333-_____
at the Effective Date. "Prospectus" shall mean the Basic
Prospectus as supplemented by the Prospectus Supplement.
"Registration Statements" shall mean the Registration
Statements referred to in paragraph (a) above and
"Registration Statement" shall mean either of such
Registration Statements, including in each case incorporated
documents, exhibits and financial statements, as amended at
the Execution Time, but excluding any portions of the
Registration Statements, amendments or supplements thereto,
incorporated documents, exhibits or financial statements that
relate solely to securities other than the Notes. "Rule 415"
and "Rule 424" refer to such rules under the Act. Any
reference herein to either 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 Statements, 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
discretion, to instruct the Agents to suspend at any time, for
any period of time or permanently, the solicitation of offers
to purchase the Notes. Upon receipt of instructions from the
Company, the Agents will forthwith suspend solicitation of
offers to purchase Notes from the Company until such time as
the Company has advised them that such solicitation may be
resumed.
The Company expressly reserves the right, upon
fifteen business days' prior written notice to each Agent, to
appoint other persons, partnerships or corporations
("Additional Agents") to act as its agent to solicit offers
for the purchase of Notes; provided, each Additional Agent
shall be named in a prospectus supplement and shall either
execute this Agreement and become a party hereto or shall
enter into an agency agreement with the Company on terms
substantially similar to those contained herein; thereafter
the term Agent as used in this Agreement shall mean each Agent
and each such Additional Agent.
The Company agrees to pay each Agent a commission,
on the Closing Date with respect to each sale of Notes by the
Company as a result of a solicitation made by such Agent, in
an amount equal to that percentage specified in Schedule I
hereto of the aggregate principal amount of the Notes sold by
the Company. Such commission shall be payable as specified in
the Procedures.
Subject to the provisions of this Section and to the
Procedures, offers for the purchase of Notes may be solicited
by an Agent as agent for the Company at such time and in such
amounts as such Agent deems advisable. The Company may from
time to time offer Notes for sale otherwise than through an
Agent; provided, however, that so long as this Agreement shall
be in effect the Company shall not solicit or accept offers to
purchase Notes through any agent other than an Agent.
(b) Subject to the terms and conditions stated herein,
whenever the Company and any Agent determine that the Company
shall sell Notes directly to such Agent as principal, each
such sale of Notes shall be made in accordance with the terms
of this Agreement and, unless otherwise agreed by the Company
and such Agent, any supplemental agreement relating thereto
between the Company and the Purchaser. Each such supplemental
agreement (which may be an oral or written agreement) is
herein referred to as a "Terms Agreement". Each Terms
Agreement shall describe (whether orally or in writing) the
Notes to be purchased by the Purchaser pursuant thereto, and
shall specify the aggregate principal amount of such Notes,
the maturity date of such Notes, the rate at which interest
will be paid on such Notes, the dates on which interest will
be paid on such Notes and the record date with respect to each
such payment of interest, the Closing Date for the purchase of
such Notes, the place of delivery of the Notes and payment
therefor, the method of payment and any requirements for the
delivery of the opinions of counsel, the certificates from the
Company or its officers, or a letter from the Company's
independent public accountants, pursuant to Section 6(b). Any
such Terms Agreement may also specify the period of time
referred to in Section 4(m). Any written Terms Agreement may
be in the form attached hereto as Exhibit B. The Purchaser's
commitment to purchase Notes shall be deemed to have been made
on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and
conditions herein set forth.
The Company also may sell Notes to any Agent, acting as
principal, at a discount to be agreed upon at the time of
sale, for resale to one or more investors or to another
broker-dealer (acting as principal for purposes of resale) at
varying prices related to prevailing market prices at the time
of such resale as determined by such Agent. An Agent may
resell a Note purchased by it as principal to another broker-
dealer at a discount, provided such discount does not exceed
the commission or discount received by such Agent from the
Company in connection with the original sale of such Note.
(c) The Company, however, expressly reserves the right
to place the Notes itself privately or through a negotiated
underwritten transaction with one or more underwriters without
notice to any Agent and without any opportunity for any Agent
to solicit offers for the purchase of the Notes. In such
event, no commission will be payable to the Agents.
Delivery of the Notes sold to the Purchaser pursuant
to any Terms Agreement shall be made not later than the
Closing Date agreed to in such Terms Agreement, against
payment of funds to the Company in the net amount due to the
Company for such Notes by the method and in the form set forth
in the Procedures unless otherwise agreed to between the
Company and the Purchaser in such Terms Agreement.
3. Offering and Sale of Notes. Each Agent and the
Company agree to perform the respective duties and obligations
specifically provided to be performed by them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the
Notes, the Company will not file any amendment of either
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 either Registration Statement
shall have been filed or become effective; (iii) of any
request by the Commission for any amendment of either
Registration Statement or supplement to the Prospectus or for
any additional information; (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of
either 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 supple-
mented 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 either 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 either 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 and its
subsidiaries 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 Statements
(without exhibits) and, so long as delivery of a prospectus
may be required by the Act, as many copies of the Prospectus
and any supplement thereto as you may reasonably request.
(f) The Company will use its best efforts to qualify the
Notes for offer and sale under the securities or "blue sky"
laws of such jurisdictions as you may designate within six
months after the final sale of Notes pursuant to this
Agreement and agrees to pay, or to reimburse you and your
counsel for, reasonable filing fees and expenses in connection
therewith in an amount not exceeding $5,000 in the aggregate
(including filing fees and expenses paid and incurred prior to
the date hereof), provided, however, that the Company shall
not be required to qualify as a foreign corporation or to file
a consent to service of process or to file annual reports or
to comply with any other requirements deemed by the Company to
be unduly burdensome.
(g) The Company shall furnish to each of you such
information, documents, certificates of officers of the
Company and opinions of counsel for the Company relating to
the business, operations and affairs of the Company, the
Registration Statements, the Prospectus, and any amendments
thereof or supplements thereto, the [Indenture] [Mortgage],
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 Statements, the Prospectus, all amendments
thereof and supplements thereto, the [Indenture] [Mortgage],
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 Statements and Prospectus as
amended or supplemented at each such time). Each such
acceptance by the Company of an offer for the purchase of
Notes shall be deemed to constitute an additional representa-
tion, 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 Statements.
(j) Each time that either Registration Statement or the
Prospectus is amended or supplemented (other than by an
amendment or supplement (i) relating to any offering of
Securities other than the Notes, (ii) incorporating by
reference information contained in a Current Report on Form 8-
K filed by the Company under the Exchange Act that is (A)
filed solely under Item 5 of Form 8-K and (B) not required to
be filed to comply with Section 4(b), or (iii) providing
solely for the specification of or a change in the maturity
dates, the interest rates, the issuance prices or other
similar terms of any Notes sold pursuant hereto, unless, in
the case of clause (ii) above, in the reasonable judgment of
any of you, such information is of such a nature that a
certificate of the Company should be delivered), the Company
will deliver or cause to be delivered promptly to each of you
a certificate of the Company, signed by a Vice President,
Treasurer or Assistant Treasurer of the Company, dated the
date of the effectiveness of such amendment or the date of the
filing of such supplement, in form reasonably satisfactory to
you, of the same tenor as the certificate referred to in
Section 5(c) but modified to relate to the last day of the
fiscal quarter for which financial statements of the Company
were last filed with the Commission and to the Registration
Statements 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 either Registration Statement or the
Prospectus is amended or supplemented (other than by an
amendment or supplement (i) relating to any offering of
Securities other than the Notes, (ii) incorporating by
reference information contained in a Current Report on Form 8-
K filed by the Company under the Exchange Act that is (A)
filed solely under Item 5 of Form 8-K and (B) not required to
be filed to comply with Section 4(b), or (iii) providing
solely for the specification of or a change in the maturity
dates, the interest rates, the issuance prices or other
similar terms of any Notes sold pursuant hereto, unless, in
the case of this clause (ii) above, in the reasonable judgment
of any of you, such information is of such a nature that an
opinion of counsel should be furnished), the Company shall
furnish or cause to be furnished promptly to each of you a
written opinion 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) hereto or, in lieu of such opinion, counsel last
furnishing such an opinion 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
Statements 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 either Registration
Statement or the Prospectus is amended or supplemented to
include or incorporate amended or supplemental financial
information, the Company shall cause its independent public
accountants promptly to furnish each of you a letter, dated
the date of the effectiveness of such amendment or the date of
the filing of such supplement, in form satisfactory to each of
you, of the same tenor as the letter referred to in Section
5(d) with such changes as may be necessary to reflect the
amended and supplemental financial information included or
incorporated by reference in the Registration Statements and
the Prospectus, as amended or supplemented to the date of such
letter; provided, however, that, if either 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 either 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, 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, of New York, New
York, counsel to the Agents, substantially in the form
heretofore made available to the Agents.
(c) The Company shall have furnished to each Agent a
certificate of the Company, signed by a Vice President,
Treasurer or Assistant Treasurer of the Company, dated the
Execution Time, to the effect that the signer of such
certificate has carefully examined the Registration
Statements, 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
either 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 Statements
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 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 either 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, counsel for the Agents, dated as
of the Closing Date, substantially in the form delivered
pursuant to Section 5(b)(2) hereof, and (iv) 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, certif-
icates 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 either 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 either 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
signed either 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
terminated as provided in this Section 9. This Agreement may
be terminated by either the Company as to any of you or by any
of you insofar as this Agreement relates to such of you, by
giving written notice of such termination to such of you or
the Company, as the case may be. This Agreement shall so
terminate at the close of business on the first business day
following the receipt of such notice by the party to whom such
notice is given. In the event of such termination, no party
shall have any liability to the other party hereto, except as
provided in the fifth paragraph of Section 2(a), Section 4(h),
Section 8 and Section 10. The provisions of this Agreement
(including without limitation Section 7 hereof) applicable to
any purchase of a Note for which an agreement to purchase
exists prior to the termination hereof shall survive any
termination of this Agreement. If, at the time of any such
termination, (i) any Purchaser shall own any Notes purchased
pursuant to a Terms Agreement with the intention of reselling
them or (ii) an offer to purchase any of the Notes has been
accepted by the Company but the time of delivery to the
purchaser or its agent of such Notes has not occurred, the
covenants set forth in Sections 4 and 6 hereof shall remain in
effect for such period of time (not exceeding nine months)
until such Notes are so resold or delivered, as the case may
be.
(b) Each Terms Agreement shall be subject to termination
if, in the Purchaser's reasonable judgment, the Purchaser's
ability to market the Notes shall have been materially
adversely affected because: (i) trading in securities on the
New York Stock Exchange shall have been generally suspended by
the Commission or by the New York Stock Exchange, (ii) a
general banking moratorium shall have been declared by Federal
or New York state authorities, (iii) there shall have been a
decrease in the ratings of any of the Company's debt
securities by Moody's or S&P or either Moody's or S&P shall
have publicly announced that it has any of such debt
securities under consideration for possible downgrade or
(iv)(A) a war involving the United States of America shall
have been declared, (B) any other national calamity shall have
occurred, or (C) any conflict involving the armed forces of
the United States of America shall have commenced or
escalated.
10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and
other statements of the Company or its officers and of you set
forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on
behalf of you or the Company or any of the officers, directors or
controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Notes. The provisions of
the fifth paragraph of Section 2(a) and Sections 4(h) and 8 hereof
shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to any of you,
will be delivered or sent by mail, telex or facsimile transmission
to such of you, at the address specified in Schedule I hereto; or,
if sent to the Company, will be delivered or sent by mail, telex or
facsimile transmission to it at 1 Riverside Plaza, Columbus, Ohio
43215, attention of A. A. Pena, Treasurer.
12. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and
controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New York.
14. Execution of Counterparts. This Agreement may be
executed in several counterparts, each of which shall be regarded
as an original and all of which shall constitute one and the same
document.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate
hereof, whereupon this letter and your acceptance shall represent
a binding agreement among the Company and you.
Very truly yours,
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 .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years up to and including 50 years .750%
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
________________________________________________________________
________________________________________________________________.
Notices to ____________________ shall be directed to it at
________________________________________________________________
________________________________________________________________.
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
Bankers Trust Company, as trustee (the Trustee), as supplemented by
the Supplemental Indenture dated as of _______________ between the
Company and the Trustee (said Indenture as so supplemented being
hereafter referred to as the Indenture)] [Mortgage and Deed of
Trust dated December 1, 1940, between the Company and Bankers Trust
Company, as trustee (the Trustee), as heretofore supplemented and
as to be further supplemented by one or more supplemental inden-
tures (said Mortgage, as heretofore supplemented, and as it is to
be supplemented, being hereinafter referred to as the Mortgage)];
and
WHEREAS, the Underwriters have designated the person signing
this Agreement (the Representative) to execute this Agreement on
behalf of the respective Underwriters and to act for the respective
Underwriters in the manner provided in this Agreement; and
WHEREAS, the Company has prepared and filed, in accordance
with the provisions of the Securities Act of 1933 (the Act), with
the Securities and Exchange Commission (the Commission), a
registration statement or statements and prospectus or prospectuses
relating to the [Debt Securities] and such registration statements
have become effective; and
WHEREAS, such registration statements, as they may have been
amended to the date hereof, including the financial statements, the
documents incorporated or deemed incorporated therein by reference
and the exhibits, being herein called the Registration Statements,
and the combined prospectus under Rule 429 under the Act, as
included or referred to in the latest Registration Statement to
become effective, as it may be last amended or supplemented prior
to the effectiveness of the agreement, but excluding any amendment
or supplement relating solely to securities other than the [Debt
Securities] (the Basic Prospectus), and the Basic Prospectus, as
supplemented by a prospectus supplement which includes certain
information relating to the Underwriters, the principal amount,
price and terms of offering, the interest rate and redemption
prices of the [Debt Securities], first filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) of the
Commission's General Rules and Regulations under the Act (the
Rules), including all documents then incorporated or deemed to have
been incorporated therein by reference, being herein call the
Prospectus.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, it is agreed between the parties
as follows:
1. Purchase and Sale: Upon the basis of the warranties and
representations and on the terms and subject to the conditions
herein set forth, the Company agrees to sell to the respective
Underwriters named in Exhibit 1 hereto, severally and not jointly,
and the respective Underwriters, severally and not jointly, agree
to purchase from the Company, the respective principal amounts of
the [Debt Securities] set opposite their names in Exhibit 1 hereto,
together aggregating all of the [Debt Securities], at a price equal
to ______% of the principal amount thereof.
2. Payment and Delivery: Payment for the [Debt Securities]
shall be made to the Company or its order by certified or bank
check or checks, payable in New York Clearing House funds, at the
office of Simpson Thacher & Bartlett, 425 Lexington Avenue, New
York, New York 10017-3909, or at such other place as the Company
and the Representative shall mutually agree in writing, upon the
delivery of the [Debt Securities] to the Representative for the
respective accounts of the Underwriters against receipt therefor
signed by the Representative on behalf of itself and for the other
Underwriters. Such payments and delivery shall be made at 10:00
A.M., New York Time, on _______________ (or on such later business
day, not more than five business days subsequent to such day, as
may be designated by the Company), unless postponed in accordance
with the provisions of Section 7 hereof. The time at which payment
and delivery are to be made is herein called the Time of Purchase.
[The delivery of the [Debt Securities] shall be made in fully
registered form, registered in the name of CEDE & CO., to the
offices of The Depository Trust Company in New York, New York and
the Underwriters shall accept such delivery.]
3. Conditions of Underwriters' Obligations: The several
obligations of the Underwriters hereunder are subject to the
accuracy of the warranties and representations on the part of the
Company and to the following other conditions:
(a) That all legal proceedings to be taken and all
legal opinions to be rendered in connection with
the issue and sale of the [Debt Securities] shall
be satisfactory in form and substance to Dewey
Ballantine, counsel to the Underwriters.
(b) That, at the Time of Purchase, the Representative
shall be furnished with the following opinions,
dated the day of the Time of Purchase, with con-
formed copies or signed counterparts thereof for
the other Underwriters, with such changes therein
as may be agreed upon by the Company and the
Representative with the approval of Dewey
Ballantine, counsel to the Underwriters:
(1) Opinion of Simpson Thacher & Bartlett and
either of John M. Adams, Jr., Esq. or Thomas
G. Berkemeyer, Esq., counsel to the Company,
substantially in the forms attached hereto as
Exhibits A and B;
(2) Opinion of Dewey Ballantine, counsel to the
Underwriters, substantially in the form
attached hereto as Exhibit C.
(c) That the Representative shall have received a
letter from Deloitte & Touche LLP in form and
substance satisfactory to the Representative, dated
as of the day of the Time of Purchase, (i)
confirming that they are independent public
accountants within the meaning of the Act and the
applicable published rules and regulations of the
Commission thereunder, (ii) stating that in their
opinion the financial statements audited by them
and included or incorporated by reference in the
Registration Statements complied as to form in all
material respects with the then applicable
accounting requirements of the Commission,
including the applicable published rules and
regulations of the Commission and (iii) covering as
of a date not more than five business days prior to
the day of the Time of Purchase such other matters
as the Representative reasonably requests.
(d) That no amendment to the Registration Statements
and that no prospectus or prospectus supplement of
the Company relating to the [Debt Securities] and
no document which would be deemed incorporated in
the Prospectus by reference filed subsequent to the
date hereof and prior to the Time of Purchase shall
contain material information substantially
different from that contained in the Registration
Statements which is unsatisfactory in substance to
the Representative or unsatisfactory in form to
Dewey Ballantine, counsel to the Underwriters.
(e) That, at the Time of Purchase, appropriate orders
of the State Corporation Commission of Virginia 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 Statements
shall have been issued under the Act by the
Commission or proceedings therefor initiated.
(f) That, at the Time of Purchase, there shall not have
been any material adverse change in the business,
properties or financial condition of the Company
from that set forth in the Prospectus (other than
changes referred to in or contemplated by the
Prospectus), except changes arising from
transactions in the ordinary course of business,
none of which individually has, or in the aggregate
have, had a material adverse effect on the
business, properties or financial condition of the
Company, and that the Company shall, at the Time of
Purchase, have delivered to the Representative a
certificate of an executive officer of the Company
to the effect that, to the best of his knowledge,
information and belief, there has been no such
change.
(g) That the Company shall have performed such of its
obligations under this Agreement as are to be
performed at or before the Time of Purchase by the
terms hereof.
4. Certain Covenants of the Company: In further consider-
ation of the agreements of the Underwriters herein contained, the
Company covenants as follows:
(a) As soon as practicable, and in any event within the
time prescribed by Rule 424 under the Act, to file
any Prospectus Supplement relating to the [Debt
Securities] with the Commission; as soon as the
Company is advised thereof, to advise the
Representative and confirm the advice in writing of
any request made by the Commission for amendments
to either of the Registration Statements or the
Prospectus or for additional information with
respect thereto or of the entry of a stop order
suspending the effectiveness of the either of the
Registration Statements or of the initiation or
threat of any proceedings for that purpose and, if
such a stop order should be entered by the
Commission, to make every reasonable effort to
obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as
soon as practicable (and in any event within 24
hours after the date hereof), and from time to time
thereafter during such period of time (not exceed-
ing nine months) after the date hereof as they are
required by law to deliver a prospectus, as many
copies of the Prospectus (as supplemented or
amended if the Company shall have made any
supplements or amendments thereto) as the
Representative may reasonably request; and in case
any Underwriter is required to deliver a prospectus
after the expiration of nine months after the date
hereof, to furnish to any Underwriter, upon
request, at the expense of such Underwriter, a
reasonable quantity of a supplemental prospectus or
of supplements to the Prospectus complying with
Section 10(a)(3) of the Act.
(c) To furnish to the Representative a copy, certified
by the Secretary or an Assistant Secretary of the
Company, of the Registration Statements as
initially filed with the Commission and of all
amendments thereto, other than amendments relating
solely to securities other than the [Debt
Securities] (exclusive of exhibits), and, upon
request, to furnish to the Representative
sufficient plain copies thereof (exclusive of
exhibits) for distribution of one to the other
Underwriters.
(d) For such period of time (not exceeding nine months)
after the date hereof as they are required by law
to deliver a prospectus, if any event shall have
occurred as a result of which it is necessary to
amend or supplement the Prospectus in order to make
the statements therein, in the light of the circum-
stances when the Prospectus is delivered to a
purchaser, not misleading, forthwith to prepare and
furnish, at its own expense, to the Underwriters
and to dealers (whose names and addresses are fur-
nished to the Company by the Representative) to
whom principal amounts of the [Debt Securities] may
have been sold by the Representative for the
accounts of the Underwriters and, upon request, to
any other dealers making such request, copies of
such amendments to the Prospectus or supplements to
the Prospectus.
(e) As soon as practicable, the Company will make
generally available to its security holders and to
the Underwriters an earning statement or statement
of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act
and Rule 158 under the Act.
(f) To use its best efforts to qualify the [Debt
Securities] for offer and sale under the securities
or "blue sky" laws of such jurisdictions as the
Representative may designate within six months
after the date hereof and itself to pay, or to
reimburse the Underwriters and their counsel for,
reasonable filing fees and expenses in connection
therewith in an amount not exceeding $3,500 in the
aggregate (including filing fees and expenses paid
and incurred prior to the effective date hereof),
provided, however, that the Company shall not be
required to qualify as a foreign corporation or to
file a consent to service of process or to file
annual reports or to comply with any other
requirements deemed by the Company to be unduly
burdensome.
(g) To pay all expenses, fees and taxes (other than
transfer taxes on resales of the [Debt Securities]
by the respective Underwriters) in connection with
the issuance and delivery of the [Debt Securities],
except that the Company shall be required to pay
the fees and disbursements (other than
disbursements referred to in paragraph (f) of this
Section 4) of Dewey Ballantine, counsel to the
Underwriters, only in the events provided in para-
graph (h) of this Section 4, the Underwriters
hereby agreeing to pay such fees and disbursements
in any other event.
(h) If the Underwriters shall not take up and pay for
the [Debt Securities] due to the failure of the
Company to comply with any of the conditions
specified in Section 3 hereof, or, if this
Agreement shall be terminated in accordance with
the provisions of Section 7 or 8 hereof, to pay the
fees and disbursements of Dewey Ballantine, counsel
to the Underwriters, and, if the Underwriters shall
not take up and pay for the [Debt Securities] due
to the failure of the Company to comply with any of
the conditions specified in Section 3 hereof, to
reimburse the Underwriters for their reasonable
out-of-pocket expenses, in an aggregate amount not
exceeding a total of $10,000, incurred in connec-
tion with the financing contemplated by this
Agreement.
(i) The Company will timely file any certificate
required by Rule 52 under the Public Utility
Holding Company Act of 1935 in connection with the
sale of the [Debt Securities].
[(j) During the period from the date hereof and
continuing to and including the earlier of (i) the
date which is after the Time of Purchase on which
the distribution of the [Debt Securities] ceases,
as determined by the Representative in its sole
discretion, and (ii) the date which is 30 days
after the Time of Purchase, the Company agrees not
to offer, sell, contract to sell or otherwise
dispose of any [Debt Securities] of the Company or
any substantially similar securities of the Company
without the consent of the Representative.]
5. Warranties of and Indemnity by the Company: The Company
represents and warrants to, and agrees with you, as set forth
below:
(a) the Registration Statements on their respective
effective dates complied, or were deemed to comply,
with the applicable provisions of the Act and the
rules and regulations of the Commission and the
Registration Statements at their respective
effective dates did not, and at the Time of
Purchase will not, contain any untrue statement of
a material fact or omit to state a material fact
required to be stated therein or necessary to make
the statements therein not misleading, and the
Basic Prospectus at the time that the latest
Registration Statement became effective, and the
Prospectus when first filed in accordance with Rule
424(b) complies, and at the Time of Purchase the
Prospectus will comply with the applicable
provisions of the Act and the rules and regulations
of the Commission, the Basic Prospectus at the time
that the latest Registration 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 Statements or
Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by,
or through the Representative on behalf of, any
Underwriter expressly for use in the Registration
Statements, the Basic Prospectus or Prospectus, or
to any statements in or omissions from that part of
the Registration Statements that shall constitute
the Statement of Eligibility under the Trust
Indenture Act of 1939 of any indenture trustee
under an indenture of the Company.
(b) As of the Time of Purchase, the [Indenture]
[Mortgage] will have been duly authorized by the
Company and duly qualified under the Trust
Indenture Act of 1939, as amended, and, when
executed and delivered by the Trustee and the
Company, will constitute a legal, valid and binding
instrument enforceable against the Company in
accordance with its terms and such [Debt
Securities] will have been duly authorized,
executed, authenticated and, when paid for by the
purchasers thereof, will constitute legal, valid
and binding obligations of the Company entitled to
the benefits of the Indenture, except as the
enforceability thereof may be limited by
bankruptcy, insolvency, or other similar laws
affecting the enforcement of creditors' rights in
general, and except as the availability of the
remedy of specific performance is subject to
general principles of equity (regardless of whether
such remedy is sought in a proceeding in equity or
at law), and by an implied covenant of good faith
and fair dealing.
(c) To the extent permitted by law, to indemnify and
hold you harmless and each person, if any, who
controls you within the meaning of Section 15 of
the Act, against any and all losses, claims,
damages or liabilities, joint or several, to which
you, they or any of you or them may become subject
under the Act or otherwise, and to reimburse you
and such controlling person or persons, if any, for
any legal or other expenses incurred by you or them
in connection with defending any action, insofar as
such losses, claims, damages, liabilities or
actions arise out of or are based upon any alleged
untrue statement or untrue statement of a material
fact contained in either Registration Statement, in
the Basic Prospectus, or in the Prospectus, or if
the Company shall furnish or cause to be furnished
to you any amendments or any supplemental
information, in the Prospectus as so amended or
supplemented other than amendments or supplements
relating solely to securities other than the Notes
(provided that if such Prospectus or such
Prospectus, as amended or supplemented, is used
after the period of time referred to in Section
4(b) hereof, it shall contain such amendments or
supplements as the Company deems necessary to
comply with Section 10(a) of the Act), or arise out
of or are based upon any alleged omission or
omission to state therein a material fact required
to be stated therein or necessary to make the
statements therein not misleading, except insofar
as such losses, claims, damages, liabilities or
actions arise out of or are based upon any such
alleged untrue statement or omission, or untrue
statement or omission which was made in either
Registration Statement, in the Basic Prospectus or
in the Prospectus, or in the Prospectus as so
amended or supplemented, in reliance upon and in
conformity with information furnished in writing to
the Company by or through you expressly for use
therein or with any statements in or omissions from
that part of the Registration Statement that shall
constitute the Statement of Eligibility under the
Trust Indenture Act, of any indenture trustee under
an indenture of the Company, and except that this
indemnity shall not inure to your benefit (or of
any person controlling you) on account of any
losses, claims, damages, liabilities or actions
arising from the sale of the Notes to any person if
such loss arises from the fact that a copy of the
Prospectus, as the same may then be supplemented or
amended to the extent such Prospectus was provided
to you by the Company (excluding, however, any
document then incorporated or deemed incorporated
therein by reference), was not sent or given by you
to such person with or prior to the written
confirmation of the sale involved and the alleged
omission or alleged untrue statement or omission or
untrue statement was corrected in the Prospectus as
supplemented or amended at the time of such
confirmation. You agree promptly after the receipt
by you of written notice of the commencement of any
action in respect to which indemnity from the
Company on account of its agreement contained in
this Section 5(c) may be sought by you, or by any
person controlling you, to notify the Company in
writing of the commencement thereof, but your
omission so to notify the Company of any such
action shall not release the Company from any
liability which it may have to you or to such
controlling person otherwise than on account of the
indemnity agreement contained in this Section 8(a).
In case any such action shall be brought against
you or any such person controlling you and you
shall notify the Company of the commencement
thereof, as above provided, the Company shall be
entitled to participate in, and, to the extent that
it shall wish, including the selection of counsel
(such counsel to be reasonably acceptable to the
indemnified party), to direct the defense thereof
at its own expense. In case the Company elects to
direct such defense and select such counsel
(hereinafter, "Company's counsel"), you or any
controlling person shall have the right to employ
your own counsel, but, in any such case, the fees
and expenses of such counsel shall be at your
expense unless (i) the Company has agreed in
writing to pay such fees and expenses or (ii) the
named parties to any such action (including any
impleaded parties) include both you or any
controlling person and the Company and you or any
controlling person shall have been advised by your
counsel that a conflict of interest between the
Company and you or any controlling person may arise
(and the Company's counsel shall have concurred
with such advice) and for this reason it is not
desirable for the Company's counsel to represent
both the indemnifying party and the indemnified
party (it being understood, however, that the
Company shall not, in connection with any one such
action or separate but substantially similar or
related actions in the same jurisdiction arising
out of the same general allegations or
circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of
attorneys for you or any controlling person (plus
any local counsel retained by you or any
controlling person in their reasonable judgment),
which firm (or firms) shall be designated in
writing by you or any controlling person). The
Company shall not be liable in the event of any
settlement of any such action effected without its
consent.
The Company's indemnity agreement contained in Section 5(c)
hereof, and its covenants, warranties and representations contained
in this Agreement, shall remain in full force and effect regardless
of any investigation made by or on behalf of any person, and shall
survive the delivery of and payment for the [Debt Securities]
hereunder.
6. Warranties of and Indemnity by Underwriters:
(a) Each Underwriter warrants and represents that the
information furnished in writing to the Company
through the Representative for use in the
Registration Statements, in the Basic Prospectus,
in the Prospectus, or in the Prospectus as amended
or supplemented is correct as to such Underwriter.
(b) Each Underwriter agrees, to the extent permitted by
law, to indemnify, hold harmless and reimburse the
Company, its directors and such of its officers as
shall have signed the Registration Statements, and
each person, if any, who controls the Company
within the meaning of Section 15 of the Act, to the
same extent and upon the same terms as the indem-
nity agreement of the Company set forth in Section
5(c) hereof, but only with respect to untrue
statements or alleged untrue statements or
omissions or alleged omissions made in the Regis-
tration Statements, or in the Basic Prospectus, or
in the Prospectus, or in the Prospectus as so
amended or supplemented, in reliance upon and in
conformity with information furnished in writing to
the Company by the Representative on behalf of such
Underwriter expressly for use therein.
The indemnity agreement on the part of each Underwriter
contained in Section 6(b) hereof, and the warranties and represen-
tations of such Underwriter contained in this Agreement, shall
remain in full force and effect regardless of any investigation
made by or on behalf of the Company or other person, and shall
survive the delivery of and payment for the [Debt Securities]
hereunder.
7. Default of Underwriters: If any Underwriter under this
Agreement shall fail or refuse (otherwise than for some reason
sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligations hereunder) to
purchase and pay for the principal amount of [Debt Securities]
which it has agreed to purchase and pay for hereunder, and the
aggregate principal amount of [Debt Securities] which such
defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate principal
amount of the [Debt Securities], the other Underwriters shall be
obligated severally in the proportions which the amounts of [Debt
Securities] set forth opposite their names in Exhibit 1 hereto bear
to the aggregate principal amount of [Debt Securities] set forth
opposite the names of all such non-defaulting Underwriters, to
purchase the [Debt Securities] which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on the terms
set forth herein; provided that in no event shall the principal
amount of [Debt Securities] which any Underwriter has agreed to
purchase pursuant to Section 1 hereof be increased pursuant to this
Section 7 by an amount in excess of one-ninth of such principal
amount of [Debt Securities] without the written consent of such
Underwriter. If any Underwriter or Underwriters shall fail or
refuse to purchase [Debt Securities] and the aggregate principal
amount of [Debt Securities] with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of
the [Debt Securities] then the Company shall have the right (a) to
require such non-defaulting Underwriters to purchase and pay for
the respective principal amounts of [Debt Securities] that they had
severally agreed to purchase hereunder, as hereinabove provided,
and, in addition, the principal amount of [Debt Securities] that
the defaulting Underwriter or Underwriters shall have so failed to
purchase up to a principal amount thereof equal to one-ninth of the
respective principal amounts of [Debt Securities] that such non-
defaulting Underwriters have otherwise agreed to purchase
hereunder, and/or (b) to procure one or more others, members of the
National Association of Securities Dealers (NASD) (or, if not
members of the NASD, who are foreign banks, dealers or institutions
not registered under the Securities Exchange Act of 1934 and who
agree in making sales to comply with the NASD's Rules of Fair
Practice), to purchase or agree to purchase, upon the terms herein
set forth, the principal amount of such [Debt Securities] that such
defaulting Underwriter or Underwriters had agreed to purchase, or
that portion thereof that the remaining Underwriters shall not be
obligated to purchase pursuant to the foregoing clause (a). In the
event the Company shall exercise its rights under clause (a) and/or
(b) above, the Company shall give written notice thereof to the
Underwriters within 24 hours (excluding any Saturday, Sunday or
legal holiday) of the time when the Company learns of the failure
or refusal of any Underwriter or Underwriters to purchase and pay
for its respective principal amount of [Debt Securities], and
thereupon the Time of Purchase shall be postponed for a period not
to exceed five full business days, as the Company shall determine.
In the event the Company shall be entitled to but shall not elect
(within the time period specified above) to exercise its rights
under clause (a) and/or (b), then this Agreement shall terminate.
In the event of any such termination, the Company shall not be
under any liability to any Underwriter (except to the extent, if
any, provided in Section 4(h) hereof), nor shall any Underwriter
(other than an Underwriter who shall have failed or refused to
purchase the [Debt Securities] without some reason sufficient to
justify, in accordance with the terms hereof, its termination of
its obligations hereunder) be under any liability to the Company or
any other Underwriter.
Nothing herein contained shall release any defaulting
Underwriter from its liability to the Company or any non-defaulting
Underwriter for damages occasioned by its default hereunder.
8. Termination of Agreement by the Underwriters: This
Agreement may be terminated at any time prior to the Time of
Purchase by the Representative if, after the execution and delivery
of this Agreement and prior to the Time of Purchase, in the
Representative's reasonable judgment, the Underwriters' ability to
market the [Debt Securities] shall have been materially adversely
affected because:
(i) trading in securities on the New York Stock Exchange
shall have been generally suspended by the Commission or by
the New York Stock Exchange, or
(ii) (A) a war involving the United States of America
shall have been declared, (B) any other national calamity
shall have occurred, or (C) any conflict involving the armed
services of the United States of America shall have escalated,
or
(iii) a general banking moratorium shall have been
declared by Federal or New York State authorities, or
(iv) there shall have been any decrease in the ratings of
the Company's first mortgage bonds by Moody's Investors
Services, Inc. (Moody's) or Standard & Poor's Ratings Group
(S&P) or either Moody's or S&P shall publicly announce that it
has such first mortgage bonds under consideration for possible
downgrade.
If the Representative elects to terminate this Agreement,
as provided in this Section 8, the Representative will promptly
notify the Company by telephone or by telex or facsimile
transmission, confirmed in writing. If this Agreement shall not be
carried out by any Underwriter for any reason permitted hereunder,
or if the sale of the [Debt Securities] to the Underwriters as
herein contemplated shall not be carried out because the Company is
not able to comply with the terms hereof, the Company shall not be
under any obligation under this Agreement and shall not be liable
to any Underwriter or to any member of any selling group for the
loss of anticipated profits from the transactions contemplated by
this Agreement (except that the Company shall remain liable to the
extent provided in Section 4(h) hereof) and the Underwriters shall
be under no liability to the Company nor be under any liability
under this Agreement to one another.
9. Notices: All notices hereunder shall, unless otherwise
expressly provided, be in writing and be delivered at or mailed to
the following addresses or by telex or facsimile transmission
confirmed in writing to the following addresses: if to the
Underwriters, to _______________________________________________,
as Representative, _____________________________________________,
and, if to the Company, to 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 Representa-
tive herein mentioned, if so named) and any party or parties
substituted pursuant to Section 7 hereof, and the term "Representa-
tive", as used herein, shall be deemed to mean the representative
or representatives designated by, or in the manner authorized by,
the Underwriters. All obligations of the Underwriters hereunder
are several and not joint. If there shall be only one person, firm
or corporation named in Exhibit 1 hereto, the term "Underwriters"
and the term "Representative", as used herein, shall mean such
person, firm or corporation. The term "successors" as used in this
Agreement shall not include any purchaser, as such purchaser, of
any of the [Debt Securities] from any of the respective Under-
writers.
12. Conditions of the Company's Obligations: The obligations
of the Company hereunder are subject to the Underwriters' perfor-
mance of their obligations hereunder, and the further condition
that at the Time of Purchase the 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(b)
Indenture Supplemental
TO
Mortgage and Deed of Trust
(Dated as of December 1, 1940)
Executed by
APPALACHIAN POWER COMPANY
formerly Appalachian Electric Power Company
TO
BANKERS TRUST COMPANY,
As Trustee
Dated as of March 1, 1996
First Mortgage Bonds, 6-3/8% Series due 2001
First Mortgage Bonds, 6.80% Series due 2006
TABLE OF CONTENTS
The Table of Contents shall not be deemed to be any part
of the Indenture Supplemental to Mortgage and Deed of
Trust.
PAGE
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS
Execution of Mortgage. . . . . . . . . . . . . . . . . . 1
Execution of supplemental indentures . . . . . . . . . . 1
Termination of Individual Trustee. . . . . . . . . . . . 1
Provision for issuance of bonds in one or more series. . 2
Right to execute supplemental indenture. . . . . . . . . 2
First Mortgage Bonds heretofore issued . . . . . . . . . 2
Issue of new First Mortgage Bonds of the 59th Series . . 3
Issue of new First Mortgage Bonds of the 60th Series . . 3
First 1996 Supplemental Indenture . . . . . . . . . . . . . . . . 3
Compliance with legal requirements . . . . . . . . . . . 3
GRANTING CLAUSES. . . . . . . . . . . . . . . . . . . . . . . 4
DESCRIPTION OF PROPERTY . . . . . . . . . . . . . . . . . . . 4
APPURTENANCES, ETC. . . . . . . . . . . . . . . . . . . . . . 4
HABENDUM. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
PRIOR LEASEHOLD ENCUMBRANCES. . . . . . . . . . . . . . . . . 5
GRANT IN TRUST. . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 1. Amendment to Section 14 of Original Indenture
to provide that certain Bonds may be
executed by its Treasurer. . . . . . . . . . . . . . . . 7
SECTION 2. Supplement to Original Indenture by adding
Section 20FFF. . . . . . . . . . . . . . . . . 7
SECTION 3. Supplement to Original Indenture by adding
Section 20GGG. . . . . . . . . . . . . . . . . 10
SECTION 4. Initial Issuance of the Bonds of the 59th Series. 13
SECTION 5. Initial Issuance of the Bonds of the 60th Series. 14
SECTION 6. Provision for record date for meetings
of Bondholders . . . . . . . . . . . . . . . . 14
SECTION 7. Original Indenture and First 1996 Supplemental
Indenture same instrument. . . . . . . . . . . 14
SECTION 8. Limitation of rights. . . . . . . . . . . . . . . 14
SECTION 9. Execution in counterparts . . . . . . . . . . . . 14
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . 15
SIGNATURES AND SEALS. . . . . . . . . . . . . . . . . . . . . 15
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . 17
SCHEDULE I. . . . . . . . . . . . . . . . . . . . . . . . . . I-1
SCHEDULE II. . . . . . . . . . . . . . . . . . . . . . . . . . II-1
SUPPLEMENTAL INDENTURE, dated as of the first day of March in
the year One Thousand Nine Hundred and Ninety-six, made and entered
into by and between APPALACHIAN POWER COMPANY, a corporation of the
Commonwealth of Virginia, the corporate title of which was, prior
to April 17, 1958, APPALACHIAN ELECTRIC POWER COMPANY (hereinafter
sometimes called the "Company"), a transmitting utility (as such
term is defined in Section 46-9-105(1)(n) of the West Virginia
Code), party of the first part, and BANKERS TRUST COMPANY, a
corporation of the State of New York (hereinafter sometimes called
the "Corporate Trustee" or "Trustee"), as Trustee, party of the
second part.
WHEREAS, the Company has heretofore executed and delivered its
Mortgage and Deed of Trust (hereinafter sometimes referred to as
the "Mortgage"), dated as of December 1, 1940, to the Trustee for
the security of all bonds of the Company outstanding thereunder,
and by said Mortgage conveyed to the Trustee, upon certain trusts,
terms and conditions, and with and subject to certain provisos and
covenants therein contained, all and singular the property, rights
and franchises which the Company then owned or should thereafter
acquire, excepting any property expressly excepted by the terms of
the Mortgage; and
WHEREAS, the Company has heretofore executed and delivered to
the Trustee supplements and indentures supplemental to the
Mortgage, dated as of December 1, 1943, December 2, 1946, December
1, 1947, March 1, 1950, June 1, 1951, October 1, 1952, December 1,
1953, March 1, 1957, May 1, 1958, October 2, 1961, April 1, 1962,
June 1, 1965, September 2, 1968, December 1, 1968, October 1, 1969,
June 1, 1970, October 1, 1970, September 1, 1971, February 1, 1972,
December 1, 1972, July 1, 1973, March 1, 1974, April 1, 1975, May
1, 1975, December 1, 1975, April 1, 1976, September 1, 1976,
November 1, 1977, May 1, 1979, August 1, 1979, February 1, 1980,
November 1, 1980, April 1, 1982, October 1, 1983, February 1, 1987,
September 1, 1987, November 1, 1989, December 1, 1990, August 1,
1991, February 1, 1992, May 1, 1992, August 1, 1992, November 15,
1992, April 15, 1993, May 15, 1993, October 1, 1993, November 1,
1993, August 15, 1994, October 1, 1994, March 1, 1995, May 1, 1995
and June 1, 1995 (hereinafter referred to as the "Third 1995
Supplemental Indenture"), respectively, amending and supplementing
the Mortgage in certain respects (the Mortgage, as so amended and
supplemented, being hereinafter called the "Original Indenture")
and conveying to the Trustee, upon certain trusts, terms and
conditions, and with and subject to certain provisos and covenants
therein contained, certain property rights and property therein
described; and
WHEREAS, effective October 7, 1988, pursuant to Section 115 of
the Original Indenture, the Individual Trustee resigned and all
powers of the Individual Trustee then terminated, as did the
Individual Trustee's right, title or interest in and to the trust
estate, and without appointment of a new trustee as successor to
the Individual Trustee, all the right, title and powers of the
Trustee thereupon devolved upon the Corporate Trustee and its
successors alone; and
WHEREAS, the Original Indenture provides that bonds issued
thereunder may be issued in one or more series and further provides
that, with respect to each series, the rate or rates of interest,
the date or dates of maturity, the dates for the payment of
interest, the terms and rates of optional redemption, and other
terms and conditions not inconsistent with the Original Indenture
may be established, prior to the issue of bonds of such series, by
an indenture supplemental to the Original Indenture; and
WHEREAS, Section 132 of the Original Indenture provides that
any power, privilege or right expressly or impliedly reserved to or
in any way conferred upon the Company by any provision of the
Original Indenture, whether such power, privilege or right is in
any way restricted or is unrestricted, may be in whole or in part
waived or surrendered or subjected to any restriction if at the
time unrestricted or to additional restriction if already
restricted, and that the Company may enter into any further
covenants, limitations or restrictions for the benefit of any one
or more series of bonds issued under the Original Indenture and
provide that a breach thereof shall be equivalent to a default
under the Original Indenture, or the Company may cure any ambiguity
or correct or supplement any defective or inconsistent provisions
contained in the Original Indenture or in any indenture
supplemental to the Original Indenture, by an instrument in
writing, executed and acknowledged, and that the Trustee is
authorized to join with the Company in the execution of any such
instrument or instruments; and
WHEREAS, the Company has heretofore issued, in accordance with
the provisions of the Mortgage, as amended and supplemented as of
the respective dates thereof, bonds of the series (which are
outstanding), entitled and designated as hereinafter set forth, in
the respective original aggregate principal amounts indicated:
Series Amount
First Mortgage Bonds, 7-1/2% Series due 1998. . . $45,000,000
First Mortgage Bonds, 7.00% Series due 1999. . . 30,000,000
First Mortgage Bonds, 7-5/8% Series due 2002. . . 50,000,000
First Mortgage Bonds, 7.95% Series due 2002. . . 60,000,000
First Mortgage Bonds, 7.38% Series due 2002. . . 50,000,000
First Mortgage Bonds, 7.40% Series due 2002. . . 30,000,000
First Mortgage Bonds, 7-1/2% Series due 2002. . . 70,000,000
First Mortgage Bonds, 6.65% Series due 2003. . . 40,000,000
First Mortgage Bonds, 6.85% Series due 2003. . . 30,000,000
First Mortgage Bonds, 6.00% Series due 2003. . . 30,000,000
First Mortgage Bonds, 7.70% Series due 2004. . . 21,000,000
First Mortgage Bonds, 7.85% Series due 2004. . . 50,000,000
First Mortgage Bonds, 8.00% Series due 2005. . . 50,000,000
First Mortgage Bonds, 6.89% Series due 2005. . . 30,000,000
First Mortgage Bonds, 9-7/8% Series due 2020. . . 50,000,000
First Mortgage Bonds, 9.35% Series due 2021. . . 50,000,000
First Mortgage Bonds, 8.75% Series due 2022. . . 50,000,000
First Mortgage Bonds, 8.70% Series due 2022. . . 40,000,000
First Mortgage Bonds, 8.43% Series due 2022. . . 50,000,000
First Mortgage Bonds, 8.50% Series due 2022. . . 70,000,000
First Mortgage Bonds, 7.80% Series due 2023. . . 40,000,000
First Mortgage Bonds, 7.90% Series due 2023. . . 30,000,000
First Mortgage Bonds, 7.15% Series due 2023. . . 30,000,000
First Mortgage Bonds, 7.125% Series due 2024. . . 50,000,000
First Mortgage Bonds, 8.00% Series due 2025. . . 50,000,000
and
WHEREAS, the Company, by appropriate corporate action in
conformity with the terms of the Original Indenture, has duly
determined to create a series of bonds under the Original Indenture
to be designated as "First Mortgage Bonds, 6-3/8% Series due 2001"
(hereinafter sometimes referred to as the "bonds of the 59th
Series"); and
WHEREAS, each of the bonds of the 59th Series is to be
substantially in the form set forth in Schedule I to this
Supplemental Indenture (hereinafter sometimes referred to as the
"First 1996 Supplemental Indenture"); and
WHEREAS, the Company, by appropriate corporate action in
conformity with the terms of the Original Indenture, has duly
determined to create a series of bonds under the Original Indenture
to be designated as "First Mortgage Bonds, 6.80% Series due 2006"
(hereinafter sometimes referred to as the "bonds of the 60th
Series"); and
WHEREAS, each of the bonds of the 60th Series is to be
substantially in the form set forth in Schedule II to the First
1996 Supplemental Indenture; and
WHEREAS, the Company, in the exercise of the powers and
authorities conferred upon and reserved to it under and by virtue
of the provisions of the Original Indenture, and pursuant to
resolutions of its Board of Directors, has duly resolved and
determined to make, execute and deliver to the Trustee a
supplemental indenture, in the form hereof, for the purposes herein
provided; and
WHEREAS, all conditions and requirements necessary to make
this First 1996 Supplemental Indenture a valid, binding and legal
instrument in accordance with its terms, have been done, performed
and fulfilled, and the execution and delivery thereof have been in
all respects duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That Appalachian Power Company, in consideration of the
premises and of the purchase and acceptance of the bonds by the
holders thereof and of the sum of One Dollar ($1.00) and other good
and valuable consideration paid to it by the Trustee at or before
the ensealing and delivery of these presents, the receipt whereof
is hereby acknowledged, and in order to secure the payment of both
the principal of and interest and premium, if any, on the bonds
from time to time issued under and secured by the Original
Indenture and this First 1996 Supplemental Indenture, according to
their tenor and effect, and the performance of all the provisions
of the Original Indenture and this First 1996 Supplemental
Indenture (including any further indenture or indentures
supplemental to the Original Indenture and any modification or
alteration made as in the Original Indenture provided) and of said
bonds, has granted, bargained, sold, released, conveyed,
transferred, mortgaged, pledged, set over and confirmed, and by
these presents does grant, bargain, sell, release, convey, assign,
transfer, mortgage, pledge, set over and confirm unto Bankers Trust
Company, as Trustee, and to its respective successor or successors
in the trust hereby created, and to its and their assigns, all the
following described properties of the Company, that is to say:
All property, real, personal and mixed, tangible and
intangible, and all franchises owned by the Company on the date of
the execution hereof, acquired since the execution of the Third
1995 Supplemental Indenture (except any hereinafter expressly
excepted from the lien and operation of this First 1996
Supplemental Indenture).
TOGETHER WITH all and singular the tenements, hereditaments
and appurtenances belonging or in anywise appertaining to the
aforesaid property or any part thereof, with the reversion and
reversions, remainder and remainders and (subject to the provisions
of Section 63 of the Original Indenture) the tolls, rents,
revenues, issues, earnings, income, product and profits thereof and
all the estate, right, title and interest and claim whatsoever, at
law as well as in equity, which the Company now has or may
hereafter acquire in and to the aforesaid property and franchises
and every part and parcel thereof.
Provided that, in addition to the reservations and exceptions
herein elsewhere contained, the following are not and are not
intended to be now or hereafter granted, bargained, sold, released,
conveyed, assigned, transferred, mortgaged, pledged, set over or
confirmed hereunder and are hereby expressly excepted from the lien
and operation of the Original Indenture and this First 1996
Supplemental Indenture, viz.: (1) cash, shares of stock, and
obligations (including bonds, notes and other securities) not
hereinafter or in the Original Indenture specifically pledged,
deposited or delivered hereunder or thereunder or hereinafter or
therein covenanted so to be; (2) any goods, wares, merchandise,
equipment, materials or supplies acquired for the purpose of sale
or resale in the usual course of business or for consumption in the
operation of any properties of the Company and automobiles and
trucks; (3) all judgments, accounts, and choses in action, the
proceeds of which the Company is not obligated as hereinafter
provided or as provided in the Original Indenture to deposit with
the Trustee hereunder and thereunder; provided, however, that the
property and rights expressly excepted from the lien and operation
of the Original Indenture and this First 1996 Supplemental
Indenture in the above subdivisions (2) and (3) shall (to the
extent permitted by law) cease to be so excepted, in the event that
the Trustee or a receiver or trustee shall enter upon and take
possession of the mortgaged and pledged property in the manner
provided in Article XIV of the Original Indenture by reason of the
occurrence of a completed default, as defined in said Article XIV.
TO HAVE AND TO HOLD all such properties, real, personal and
mixed, granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, pledged, set over or confirmed by the
Company as aforesaid, or intended so to be, unto the Trustee and
its successors in the trust;
SUBJECT, HOWEVER, to the reservations, exceptions, conditions,
limitations and restrictions contained in the several deeds,
leases, servitudes, franchises and contracts or other instruments
through which the Company acquired and/or claims title to and/or
enjoys the use of the aforesaid properties; and subject also to
encumbrances of the character defined in Section 6 of the Original
Indenture as "excepted encumbrances" in so far as the same may
attach to any of the property embraced herein.
Inasmuch as the Company holds certain of said lands, rights of
way and other property under leases, power agreements and other
contracts which provide that the Company's interest therein shall
not be mortgaged without the consent of the respective lessors or
other parties to said agreements and contracts, and such lessors
and parties have either given such consent or have waived the
requirement of such consent, it is hereby expressly agreed and made
a condition upon which this First 1996 Supplemental Indenture is
executed and delivered, that the lien of this First 1996
Supplemental Indenture and the estate, rights and remedies of the
Trustee hereunder, and the rights and remedies of the holders of
the bonds secured hereby and by the Original Indenture in so far as
they may affect such lands, rights of way and other property now
held or to be hereafter acquired by the Company under such leases,
contracts or agreements, shall be subject and subordinate in all
respects to the rights and remedies of the respective lessors or
other parties thereto.
And it is hereby expressly covenanted and agreed as follows:
(a) That the rights of the Trustee hereunder, and of
every person or corporation whatsoever claiming by reason of
this First 1996 Supplemental Indenture any right, title or
interest, legal or equitable, in the property covered by any
such lease, power agreement or other contract, are and at all
times hereafter shall be subject in the same manner and degree
as the rights of the Company might or would at all times be
subject, had this First 1996 Supplemental Indenture not been
made, to all terms, provisions, conditions, covenants,
stipulations, and agreements, and to all exceptions,
reservations, limitations, restrictions, and forfeitures
contained in any such lease, power agreement or other
contract;
(b) That any right, claim, condition or forfeiture which
might at any time be asserted against the party in possession
under the provisions of any such lease, power agreement or
other contract, had this First 1996 Supplemental Indenture not
been made, may be asserted with the same force and effect
against any and all persons or corporations at any time
claiming any right, title or interest in any such property
under or by reason of this First 1996 Supplemental Indenture
or of any bond hereby and by the Original Indenture secured;
and
(c) That such consent or waiver of the requirement of
such consent given by the lessor under any such lease or party
to any such power agreement or other contract is intended and
shall be construed to be solely for the purpose of permitting
the Company to mortgage its property generally without
violating the express covenant contained in such lease, power
agreement or other contract, and that such consent or waiver
of the requirement of such consent confers upon the Trustee
hereunder and the holders of bonds secured hereby and by the
Original Indenture no rights in addition to such as they would
have had, respectively, if such consent or waiver of the
requirement of such consent had not been given.
IN TRUST NEVERTHELESS, upon the terms and trusts in the
Original Indenture and this First 1996 Supplemental Indenture set
forth, for the equal and pro rata benefit and security of those who
shall hold the bonds and coupons issued and to be issued hereunder
and under the Original Indenture, in accordance with the terms of
the Original Indenture and of this First 1996 Supplemental
Indenture, without preference, priority or distinction as to lien
of any of said bonds or coupons over any other thereof by reason of
priority in the time of issuance or negotiation thereof, or
otherwise howsoever, subject, however, to the conditions,
provisions and covenants set forth in the Original Indenture and in
this First 1996 Supplemental Indenture.
AND THIS INDENTURE FURTHER WITNESSETH:
That in further consideration of the premises and for the
considerations aforesaid, the Company, for itself and it successors
and assigns, hereby covenants and agrees to and with the Trustee,
and its successor or successors in such trust, under the Original
Indenture, as follows:
Section 1. The second sentence of Section 14 of the Original
Indenture is hereby amended so that said second sentence, as
amended, shall read as follows:
All bonds issued hereunder shall, from time to time, be
executed on behalf of the Company by, in case of all
bonds created prior to the 31st Series, its President or
one of its Vice Presidents, and in the case of bonds of
the 31st Series and subsequent series through the 58th
Series, by its Chairman of the Board, its President, or
one of its Vice Presidents, and in the case of bonds of
the 59th Series and subsequent series, by its Chairman of
the Board, its President, one of its Vice Presidents or
its Treasurer, whose signature, except on bonds of the
1970 Series and bonds of the 1977 Series, may be a
facsimile thereof, shall be thereunto impressed or
imprinted and attested by its Secretary or one of its
Assistant Secretaries, whose attestation, except on bonds
of the 1970 Series and bonds of the 1977 Series, may be
a facsimile.
Section 2. The Original Indenture is hereby supplemented by
adding immediately after Section 20EEE, a new Section 20FFF, as
follows:
SECTION 20FFF. The Company hereby creates a fifty-ninth
series of bonds to be issued under and secured by this
Indenture, to be designated and to be distinguished from the
bonds of all other series by the title "First Mortgage Bonds,
6-3/8% Series due 2001" (herein sometimes referred to as the
"bonds of the 59th Series"). The form of the bonds of the
59th Series shall be substantially as set forth in Schedule I
to the First 1996 Supplemental Indenture.
Bonds of the 59th Series shall mature on March 1, 2001.
Unless otherwise determined by the Company, the bonds of the
59th Series shall be issued in fully registered form without
coupons in denominations of $1,000 and in integral multiples
thereof; the principal of and premium (if any) and interest on
each said bond to be payable at the office or agency of the
Company in the Borough of Manhattan, The City of New York, in
lawful money of the United States of America, provided that at
the option of the Company interest may be mailed to registered
owners of the bonds at their respective addresses that appear
on the register thereof; and the rate of interest shall be the
rate per annum specified in the title thereof, payable semi-
annually on the first days of March and September of each year
(commencing September 1, 1996) and on their maturity date.
The person in whose name any bond of the 59th Series is
registered at the close of business on any record date (as
hereinbelow defined) with respect to any regular semi-annual
interest payment date (other than interest payable upon
redemption or maturity) shall be entitled to receive the
interest payable on such interest payment date notwithstanding
the cancellation of such bond of the 59th Series upon any
registration of transfer or exchange thereof subsequent to the
record date and prior to such interest payment date, except,
if and to the extent that the Company shall default in the
payment of the interest due on such interest payment date,
then the registered owners of bonds of the 59th Series on such
record date shall have no further right to or claim in respect
of such defaulted interest as such registered owners on such
record date, and the persons entitled to receive payment of
any defaulted interest thereafter payable or paid on any bonds
of the 59th Series shall be the registered owners of such
bonds of the 59th Series (or any bond or bonds issued,
directly or after intermediate transactions upon transfer or
exchange or in substitution thereof) on the date of payment of
such defaulted interest. Interest payable upon redemption or
maturity shall be payable to the person to whom the principal
is paid. The term "record date" as used in this Section
20FFF, and in the form of the bonds of the 59th Series, with
respect to any regular semi-annual interest payment date
(other than interest payable upon redemption or maturity)
applicable to the bonds of the 59th Series, shall mean the
February 15 next preceding a March 1 interest payment date or
the August 15 next preceding a September 1 interest payment
date, as the case may be, or, if such February 15 or August 15
is not a Business Day (as defined hereinbelow), the next
preceding Business Day. The term "Business Day" with respect
to any bond of the 59th Series shall mean any day, other than
a Saturday or Sunday, which is not a day on which banking
institutions or trust companies in The City of New York, New
York or the city in which is located any office or agency
maintained for the payment of principal of or premium, if any,
or interest on such bond of the 59th Series are authorized or
required by law, regulation or executive order to remain
closed.
Every registered bond of the 59th Series shall be dated
the date of authentication and shall bear interest computed on
the basis of a 360-day year consisting of twelve 30-day months
from the latest semi-annual interest payment date to which
interest has been paid on the bonds of the 59th Series
preceding the date of authentication, unless such date of
authentication be an interest payment date to which interest
is being paid on the bonds of the 59th Series, in which case
from such date of authentication, provided that any such bonds
of the 59th Series authenticated prior to September 1, 1996
shall bear interest from March 1, 1996. However, so long as
there is no existing default in the payment of interest on
said bonds, the owner of any bond authenticated by the
Corporate Trustee between the record date for any regular
semi-annual interest payment date (other than interest payable
upon redemption or maturity) and such interest payment date
shall not be entitled to the payment of the interest due on
such interest payment date and shall have no claim against the
Company with respect thereto; provided further, that, if and
to the extent the Company shall default in the payment of the
interest due on such interest payment date, then any such bond
shall bear interest from the March 1 or September 1, as the
case may be, next preceding the date of such bond, to which
interest has been paid or, if the Company shall be in default
with respect to the interest due September 1, 1996, then from
March 1, 1996.
If any semi-annual interest payment date, redemption date
or the maturity date is not a Business Day, payment of amounts
due on such date may be made on the next succeeding Business
Day, and, if such payment is made or duly provided for on such
Business Day, no interest shall accrue on such amounts for the
period from and after such interest payment date, redemption
date or the maturity date, as the case may be, to such
Business Day.
Notwithstanding the provisions of Section 14 of this
Indenture, the bonds of the 59th Series shall be executed on
behalf of the Company by its Chairman of the Board, by its
President, by one of its Vice Presidents or by its Treasurer
or by one of its officers designated by the Board of Directors
of the Company for such purpose, whose signature may be a
facsimile, and its corporate seal shall be thereunto affixed
or printed thereon and attested by its Secretary or one of its
Assistant Secretaries, and the provisions of the penultimate
sentence of said Section 14 shall be applicable to such bonds
of the 59th Series.
The bonds of the 59th Series shall be redeemable in
accordance with Article XII of the Original Indenture and as
further set forth in the form of bond of the 59th Series set
forth in Schedule I to this First 1996 Supplemental Indenture.
The Company shall not be required to make transfers or
exchanges of bonds of the 59th Series for a period of fifteen
days next preceding any selection of bonds of the 59th Series
to be redeemed or to make transfers or exchanges of any bonds
of the 59th Series designated in whole or in part for
redemption. Notwithstanding the provisions of Section 12 of
this Indenture, the Company shall not be required to make
transfers or exchanges of bonds of the 59th Series for a
period of fifteen days next preceding any interest payment
date.
Registered bonds of the 59th Series shall be transferable
upon presentation and surrender thereof, for cancellation, at
the office or agency of the Company in the Borough of
Manhattan, The City of New York, and at such other office or
agency of the Company as the Company may from time to time
designate, by the registered owners thereof, in person or by
duly authorized attorney, in the manner and upon payment, if
required by the Company, of the charges prescribed in this
Indenture. In the manner and upon payment, if required by the
Company, of the charges prescribed in this Indenture,
registered bonds of the 59th Series may be exchanged for a
like aggregate principal amount of registered bonds of the
59th Series of other authorized denominations, upon
presentation and surrender thereof, for cancellation, at the
office or agency of the Company in the Borough of Manhattan,
The City of New York, or at such other office or agency of the
Company as the Company may from time to time designate.
Section 3. The Original Indenture is hereby supplemented by
adding immediately after Section 20FFF, a new Section 20GGG, as
follows:
SECTION 20GGG. The Company hereby creates a sixtieth
series of bonds to be issued under and secured by this
Indenture, to be designated and to be distinguished from the
bonds of all other series by the title "First Mortgage Bonds,
6.80% Series due 2006" (herein sometimes referred to as the
"bonds of the 60th Series"). The form of the bonds of the
60th Series shall be substantially as set forth in Schedule II
to the First 1996 Supplemental Indenture.
Bonds of the 60th Series shall mature on March 1, 2006.
Unless otherwise determined by the Company, the bonds of the
60th Series shall be issued in fully registered form without
coupons in denominations of $1,000 and in integral multiples
thereof; the principal of and premium (if any) and interest on
each said bond to be payable at the office or agency of the
Company in the Borough of Manhattan, The City of New York, in
lawful money of the United States of America, provided that at
the option of the Company interest may be mailed to registered
owners of the bonds at their respective addresses that appear
on the register thereof; and the rate of interest shall be the
rate per annum specified in the title thereof, payable semi-
annually on the first days of March and September of each year
(commencing September 1, 1996) and on their maturity date.
The person in whose name any bond of the 60th Series is
registered at the close of business on any record date (as
hereinbelow defined) with respect to any regular semi-annual
interest payment date (other than interest payable upon
redemption or maturity) shall be entitled to receive the
interest payable on such interest payment date notwithstanding
the cancellation of such bond of the 60th Series upon any
registration of transfer or exchange thereof subsequent to the
record date and prior to such interest payment date, except,
if and to the extent that the Company shall default in the
payment of the interest due on such interest payment date,
then the registered owners of bonds of the 60th Series on such
record date shall have no further right to or claim in respect
of such defaulted interest as such registered owners on such
record date, and the persons entitled to receive payment of
any defaulted interest thereafter payable or paid on any bonds
of the 60th Series shall be the registered owners of such
bonds of the 60th Series (or any bond or bonds issued,
directly or after intermediate transactions upon transfer or
exchange or in substitution thereof) on the date of payment of
such defaulted interest. Interest payable upon redemption or
maturity shall be payable to the person to whom the principal
is paid. The term "record date" as used in this Section
20GGG, and in the form of the bonds of the 60th Series, with
respect to any regular semi-annual interest payment date
(other than interest payable upon redemption or maturity)
applicable to the bonds of the 60th Series, shall mean the
February 15 next preceding a March 1 interest payment date or
the August 15 next preceding a September 1 interest payment
date, as the case may be, or, if such February 15 or August 15
is not a Business Day (as defined hereinbelow), the next
preceding Business Day. The term "Business Day" with respect
to any bond of the 60th Series shall mean any day, other than
a Saturday or Sunday, which is not a day on which banking
institutions or trust companies in The City of New York, New
York or the city in which is located any office or agency
maintained for the payment of principal of or premium, if any,
or interest on such bond of the 60th Series are authorized or
required by law, regulation or executive order to remain
closed.
Every registered bond of the 60th Series shall be dated
the date of authentication and shall bear interest computed on
the basis of a 360-day year consisting of twelve 30-day months
from the latest semi-annual interest payment date to which
interest has been paid on the bonds of the 60th Series
preceding the date of authentication, unless such date of
authentication be an interest payment date to which interest
is being paid on the bonds of the 60th Series, in which case
from such date of authentication, provided that any such bonds
of the 60th Series authenticated prior to September 1, 1996
shall bear interest from March 1, 1996. However, so long as
there is no existing default in the payment of interest on
said bonds, the owner of any bond authenticated by the
Corporate Trustee between the record date for any regular
semi-annual interest payment date (other than interest payable
upon redemption or maturity) and such interest payment date
shall not be entitled to the payment of the interest due on
such interest payment date and shall have no claim against the
Company with respect thereto; provided further, that, if and
to the extent the Company shall default in the payment of the
interest due on such interest payment date, then any such bond
shall bear interest from the March 1 or September 1, as the
case may be, next preceding the date of such bond, to which
interest has been paid or, if the Company shall be in default
with respect to the interest due September 1, 1996, then from
March 1, 1996.
If any semi-annual interest payment date, redemption date
or the maturity date is not a Business Day, payment of amounts
due on such date may be made on the next succeeding Business
Day, and, if such payment is made or duly provided for on such
Business Day, no interest shall accrue on such amounts for the
period from and after such interest payment date, redemption
date or the maturity date, as the case may be, to such
Business Day.
Notwithstanding the provisions of Section 14 of this
Indenture, the bonds of the 60th Series shall be executed on
behalf of the Company by its Chairman of the Board, by its
President, by one of its Vice Presidents or by its Treasurer
or by one of its officers designated by the Board of Directors
of the Company for such purpose, whose signature may be a
facsimile, and its corporate seal shall be thereunto affixed
or printed thereon and attested by its Secretary or one of its
Assistant Secretaries, and the provisions of the penultimate
sentence of said Section 14 shall be applicable to such bonds
of the 60th Series.
The bonds of the 60th Series shall be redeemable in
accordance with Article XII of the Original Indenture and as
further set forth in the form of bond of the 60th Series set
forth in Schedule II to this First 1996 Supplemental
Indenture.
The Company shall not be required to make transfers or
exchanges of bonds of the 60th Series for a period of fifteen
days next preceding any selection of bonds of the 60th Series
to be redeemed or to make transfers or exchanges of any bonds
of the 60th Series designated in whole or in part for
redemption. Notwithstanding the provisions of Section 12 of
this Indenture, the Company shall not be required to make
transfers or exchanges of bonds of the 60th Series for a
period of fifteen days next preceding any interest payment
date.
Registered bonds of the 60th Series shall be transferable
upon presentation and surrender thereof, for cancellation, at
the office or agency of the Company in the Borough of
Manhattan, The City of New York, and at such other office or
agency of the Company as the Company may from time to time
designate, by the registered owners thereof, in person or by
duly authorized attorney, in the manner and upon payment, if
required by the Company, of the charges prescribed in this
Indenture. In the manner and upon payment, if required by the
Company, of the charges prescribed in this Indenture,
registered bonds of the 60th Series may be exchanged for a
like aggregate principal amount of registered bonds of the
60th Series of other authorized denominations, upon
presentation and surrender thereof, for cancellation, at the
office or agency of the Company in the Borough of Manhattan,
The City of New York, or at such other office or agency of the
Company as the Company may from time to time designate.
Section 4. Initial Issuance of the Bonds of the 59th Series:
In accordance with and upon compliance with such provisions of
the Original Indenture as shall be selected for such purpose by the
officers of the Company duly authorized to take such action, bonds
of the 59th Series, in an aggregate principal amount not exceeding
$100,000,000, shall forthwith be executed by the Company and
delivered to the Trustee and shall be authenticated by the Trustee
and delivered to or upon the order of the Company (without awaiting
the filing and recording of this First 1996 Supplemental Indenture
except to the extent required by subdivision (10) of Section 29 of
the Original Indenture).
Section 5. Initial Issuance of the Bonds of the 60th Series:
In accordance with and upon compliance with such provisions of
the Original Indenture as shall be selected for such purpose by the
officers of the Company duly authorized to take such action, bonds
of the 60th Series, in an aggregate principal amount not exceeding
$100,000,000, shall forthwith be executed by the Company and
delivered to the Trustee and shall be authenticated by the Trustee
and delivered to or upon the order of the Company (without awaiting
the filing and recording of this First 1996 Supplemental Indenture
except to the extent required by subdivision (10) of Section 29 of
the Original Indenture).
Section 6. At any meeting of bondholders held as provided for
in Article XX of the Original Indenture at which owners of bonds of
the 59th Series or bonds of the 60th Series are entitled to vote,
all owners of bonds of the 59th Series or bonds of the 60th Series
at the time of such meeting shall be entitled to vote thereat;
provided, however, that the Trustee may, and upon request of the
Company or of a majority of the bondowners of the 59th Series or
the 60th Series, shall, fix a day not exceeding ninety days
preceding the date for which the meeting is called as a record date
for the determination of owners of bonds of the 59th Series or of
the 60th Series, entitled to notice of and to vote at such meeting
and any adjournment thereof and only such registered owners who
shall have been such registered owners on the date so fixed, and
who are entitled to vote such bonds of the 59th Series or the 60th
Series at the meeting, shall be entitled to receive notice of such
meeting.
Section 7. As supplemented by this First 1996 Supplemental
Indenture, the Original Indenture is in all respects ratified and
confirmed and the Original Indenture and this First 1996
Supplemental Indenture shall be read, taken and construed as one
and the same instrument. The bonds of the 59th Series and the
bonds of the 60th Series are the original debt secured by this
First 1996 Supplemental Indenture and the Original Indenture, and
this First 1996 Supplemental Indenture and the Original Indenture
shall be, and shall be deemed to be, the original lien instrument
securing the bonds of the 59th Series and the bonds of the 60th
Series.
Section 8. Nothing contained in this First 1996 Supplemental
Indenture shall, or shall be construed to, confer upon any person
other than the owners of bonds issued under the Original Indenture
and this First 1996 Supplemental Indenture, the Company and the
Trustee, any right to avail themselves of any benefit of any
provision of the Original Indenture or of this First 1996
Supplemental Indenture.
Section 9. This First 1996 Supplemental Indenture may be
simultaneously executed in several counterparts and all such
counterparts executed and delivered, each as an original, shall
constitute one and the same instrument.
IN WITNESS WHEREOF, APPALACHIAN POWER COMPANY, party of the
first part, has caused this instrument to be signed in its name and
behalf by its President, a Vice President, its Treasurer or an
Assistant Treasurer, and its corporate seal to be hereunto affixed
and attested by its Secretary or an Assistant Secretary, and
BANKERS TRUST COMPANY, party of the second part, in token of its
acceptance hereof, has caused this instrument to be signed in its
name and behalf by a Vice President or an Assistant Vice President
and its corporate seal to be hereunto affixed and attested by its
Secretary, an Assistant Secretary, Assistant Vice President or
Assistant Treasurer. Executed and delivered as of the date and
year first above written.
APPALACHIAN POWER COMPANY
[SEAL]
By: /s/ A. A. Pena
A. A. Pena
Treasurer
Attest:
/s/ John M. Adams, Jr.
John M. Adams, Jr.
Assistant Secretary
In the presence of:
/s/ T. G. Berkemeyer
T. G. Berkemeyer
/s/ S. T. Haynes
S. T. Haynes
BANKERS TRUST COMPANY
[SEAL]
By /s/ Scott Thiel
Scott Thiel
Assistant Vice President
Attest:
/s/ James McDonough
James McDonough
Assistant Vice President
Executed by BANKERS TRUST COMPANY
in the presence of:
/s/ Jason Theriault
Jason Theriault
/s/ Kerri O'Brien
Kerri O'Brien
STATE OF OHIO )
) SS:
COUNTY OF FRANKLIN )
On this 18th day of March, 1996, personally appeared before
me, a Notary Public within and for said County in the State
aforesaid, A. A. PENA and JOHN M. ADAMS, JR., to me known and known
to me to be respectively the Treasurer and 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 18th day of March, 1996.
[Notarial Seal]
/s/ Mary M. Soltesz
MARY M. SOLTESZ
Notary Public, State of Ohio
My Commission Expires July 12, 1999
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
I, PATRICIA M. CARILLO, a Notary Public, duly qualified,
commissioned and sworn, and acting in and for the County and State
aforesaid, hereby certify that on this 18th day of March, 1996:
SCOTT THIEL and JAMES MC DONOUGH, whose names are signed to
the writing above, bearing a date as of the 1st day of March, 1996,
as Assistant Vice Presidents of BANKERS TRUST COMPANY, have this
day acknowledged the same before me in my County aforesaid.
SCOTT THIEL, who signed the writing above and hereto annexed
for BANKERS TRUST COMPANY, a corporation, bearing a date as of the
1st day of March, 1996, has this day in my said County before me
acknowledged the said writing to be the act and deed of said
corporation.
Before me appeared SCOTT THIEL and JAMES MC DONOUGH to me
personally known, who, being by me duly sworn, did say that they
are Assistant Vice Presidents of BANKERS TRUST COMPANY, and that
the seal affixed to said instrument is the corporate seal of said
corporation, and that said instrument was signed and sealed in
behalf of said corporation, by authority of its Board of Directors
and said SCOTT THIEL acknowledged said instrument to be the free
act and deed of said corporation.
JAMES MC DONOUGH personally came before me this day and
acknowledged that he is an Assistant Vice President of BANKERS
TRUST COMPANY, a corporation, and that by authority duly given and
as the act of the corporation, the foregoing instrument was signed
in its name by an Assistant Vice President, sealed with its
corporate seal, and attested by himself as an Assistant Vice
President.
IN WITNESS WHEREOF, I have hereunto set my hand and official
notarial seal, in the County and State of New York, this 18th day
of March, 1996.
/s/ Patricia M. Carillo
PATRICIA M. CARILLO
Notary Public, State of New York
No. 41-4747732
Qualified in Queens County
Certificate filed in New York County
Commission expires May 31, 1997
[SEAL]
The foregoing instrument was prepared by John M. Adams, Jr., 1 Riverside
Plaza, Columbus, Ohio 43215.
SCHEDULE I
No. ______ $____________
APPALACHIAN POWER COMPANY
FIRST MORTGAGE BOND, 6-3/8% SERIES DUE 2001
APPALACHIAN POWER COMPANY, a corporation of the Commonwealth
of Virginia (hereinafter called the "Company"), for value received,
hereby promises to pay to ____________, or registered assigns,
_______________ Dollars in lawful money of the United States of
America on March 1, 2001, at the office or agency of the Company in
the Borough of Manhattan, The City of New York, and to pay to the
registered owner hereof interest on said sum from the latest semi-
annual interest payment date to which interest has been paid on the
bonds of this series preceding the date hereof, unless the date
hereof be an interest payment date to which interest is being paid,
in which case from the date hereof or unless the date hereof is
prior to September 1, 1996, in which case from March 1, 1996 (or,
if this bond is dated between the record date for any interest
payment date and such interest payment date, then from such
interest payment date; provided, however, that if and to the extent
that the Company shall default in the payment of the interest due
on such interest payment date, then from the next preceding semi-
annual interest payment date to which interest has been paid on the
bonds of this series, or if such interest payment date is September
1, 1996, from March 1, 1996) at the rate per annum, in like money,
payable on March 1 and September 1 of each year at said office or
agency until the principal hereof shall have become due and
payable, specified in the title of this bond; provided that, at the
option of the Company, such interest may be paid by check, mailed
to the registered owner of this bond at such owner's address
appearing on the register hereof.
This bond is one of a duly authorized issue of bonds of the
Company, issuable in series, and is one of a series known as its
First Mortgage Bonds, of the series designated in its title, all
bonds of all series issued and to be issued under and equally
secured (except in so far as any sinking fund, established in
accordance with the provisions of the Mortgage hereinafter
mentioned, may afford additional security for the bonds of any
particular series and except as provided in Section 73 of the
Mortgage) by a Mortgage and Deed of Trust (herein, together with
all indentures supplemental thereto, called the Mortgage), dated as
of December 1, 1940, executed by APPALACHIAN ELECTRIC POWER COMPANY
(the corporate title of which was changed to APPALACHIAN POWER
COMPANY) to BANKERS TRUST COMPANY, as Trustee, to which Mortgage
reference is made for a description of the property mortgaged and
pledged, the nature and extent of the security, the rights of the
holders of the bonds and of the Trustee in respect thereof, the
duties and immunities of the Trustee, and the terms and conditions
upon which the bonds are secured. With the consent of the Company
and to the extent permitted by and as provided in the Mortgage, the
rights and obligations of the Company and/or of the holders of the
bonds and/or coupons and/or the terms and provisions of the
Mortgage and/or of any instruments supplemental thereto may be
modified or altered by affirmative vote of the holders of at least
seventy-five per centum (75%) in principal amount of the bonds
affected by such modification or alteration, then outstanding under
the Mortgage (excluding bonds disqualified from voting by reason of
the Company's interest therein as provided in the Mortgage);
provided that, without the consent of the owner hereof no such
modification or alteration shall permit the extension of the
maturity of the principal of or interest on this bond or the
reduction in the rate of interest hereon or any other modification
in the terms of payment of such principal or interest or the
creation of a lien on the mortgaged and pledged property ranking
prior to or on a parity with the lien of the Mortgage or the
deprivation of the owner hereof of a lien upon such property or
reduce the above percentage.
As provided in said Mortgage, said bonds may be for various
principal sums and are issuable in series, which may mature at
different times, may bear interest at different rates and may
otherwise vary as therein provided, and this bond is one of a
series entitled "First Mortgage Bonds, 6-3/8% Series due 2001
(herein called "bonds of the 59th Series") created by an Indenture
Supplemental to Mortgage and Deed of Trust dated as of March 1,
1996 (the "First 1996 Supplemental Indenture"), as provided for in
said Mortgage.
The interest payable on any March 1 or September 1 (other than
interest payable upon redemption or maturity) will, subject to
certain exceptions provided in said First 1996 Supplemental
Indenture, be paid to the person in whose name this bond is
registered at the close of business on the record date, which shall
be the February 15 or August 15, as the case may be, next preceding
such interest payment date, or, if such February 15 or August 15 is
not a Business Day (as hereinbelow defined), the next preceding
Business Day. Interest payable upon redemption or maturity shall
be payable to the person to whom the principal is paid. The term
"Business Day" means any day, other than a Saturday or Sunday,
which is not a day on which banking institutions or trust companies
in The City of New York, New York or the city in which is located
any office or agency maintained for the payment of principal or
premium, if any, or interest on bonds of the 59th Series are
authorized or required by law, regulation or executive order to
remain closed.
If any semi-annual interest payment date, redemption date or
the maturity date is not a Business Day, payment of amounts due on
such date may be made on the next succeeding Business Day, and, if
such payment is made or duly provided for on such Business Day, no
interest shall accrue on such amounts for the period from and after
such interest payment date, redemption date or the maturity date,
as the case may be, to such Business Day.
The Company and the Trustee may deem and treat the person in
whose name this bond is registered as the absolute owner hereof for
the purpose of receiving payment of or on account of principal or
(subject to the provisions hereof) interest hereon and for all
other purposes and the Company and the Trustee shall not be
affected by any notice to the contrary.
The Company shall not be required to make transfers or
exchanges of bonds of the 59th Series for a period of fifteen days
next preceding any interest payment date, or next preceding any
selection of bonds of the 59th Series to be redeemed, and the
Company shall not be required to make transfers or exchanges of any
bonds of the 59th Series designated for redemption in whole or in
part.
Any or all of the bonds of the 59th Series shall be redeemed
by the Company at its option, or by operation of various provisions
of the Mortgage, in whole at any time or in part from time to time
upon not less than thirty but not more than ninety days' previous
notice given by mail to the registered owners of the bonds to be
redeemed, all as provided in the Mortgage, (a) if redeemed by the
use of proceeds of released property or the proceeds of insurance,
at a special redemption price equal to 100% of the principal amount
thereof together in each case with accrued interest to the date
fixed for redemption; or (b) if redeemed otherwise than by the use
of proceeds of released property or the proceeds of insurance, at
a redemption price equal to the greater of (i) 100% of the
principal amount of the bonds of the 59th Series and (ii) the sum
of the present values of the remaining scheduled payments of
principal and interest thereon discounted to the redemption date on
a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Treasury Rate (as defined below) plus 10
basis points, plus accrued interest thereon to the date of
redemption.
"Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such
redemption date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of the bonds of the 59th
Series to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the bonds of the 59th Series.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) on the third business day
preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the
Federal Reserve Bank of New York and designated "Composite 3:30
p.m. Quotations for U.S. Government Securities" or (ii) if such
release (or any successor release) is not published or does not
contain such prices on such third business day, (A) the average of
the Reference Treasury Dealer Quotations for such redemption date,
after excluding the highest and lowest such Reference Treasury
Dealer Quotations or (B) if the Trustee is unable to obtain four
such Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations so obtained.
"Independent Investment Banker" means one of the Reference
Treasury Dealers appointed by the Company and acceptable to the
Trustee.
"Reference Treasury Dealer" means a primary U.S. Government
Securities Dealer in New York City selected by the Company and
acceptable to the Trustee.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, the
average, as determined by the Trustee, of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the
Trustee by such Treasury Reference Dealer at or before 5:00 p.m.,
New York City time, on the third business day preceding such
redemption date.
The principal hereof may be declared or may become due prior
to the express date of the maturity hereof on the conditions, in
the manner and at the time set forth in the Mortgage, upon the
occurrence of a completed default as in the Mortgage provided.
The bonds of this series are issuable only as registered bonds
without coupons in denominations of $1,000 and authorized multiples
thereof. This bond is transferable as prescribed in the Mortgage
by the registered owner hereof in person, or by his duly authorized
attorney, at the office or agency of the Company in the Borough of
Manhattan, The City of New York, and at such other office or agency
of the Company as the Company may designate, upon surrender and
cancellation of this bond and upon payment, if the Company shall
require it, of the transfer charges prescribed in the Mortgage,
and, thereupon, a new registered bond or bonds of authorized
denominations of the same series for a like principal amount will
be issued to the transferee in exchange herefor as provided in the
Mortgage. In the manner and upon payment, if the Company shall
require it, of the charges prescribed in the Mortgage, registered
bonds of the 59th Series may be exchanged for a like aggregate
principal amount of registered bonds of other authorized
denominations of the same series, upon presentation and surrender
thereof, for cancellation, at the office or agency of the Company
in the Borough of Manhattan, The City of New York, or at such other
office or agency of the Company as the Company may from time to
time designate.
No recourse shall be had for the payment of the principal of
or interest on this bond against any incorporator or any past,
present or future stockholder, officer or director, as such, of the
Company or of any successor corporation, either directly or through
the Company or any successor corporation, under any rule of law,
statute or constitution or by the enforcement of any assessment or
otherwise, all such liability of incorporators, stockholders,
officers and directors, as such, being waived and released by the
holder or owner hereof by the acceptance of this bond and being
likewise waived and released by the terms of the Mortgage.
This bond shall not become valid or obligatory for any purpose
until BANKERS TRUST COMPANY, the Trustee under the Mortgage, or its
successor thereunder, shall have signed the form of Authentication
Certificate endorsed hereon.
In Witness Whereof, Appalachian Power Company has caused this
bond to be executed in its name by the signature of its Chairman of
the Board, its President, one of its Vice Presidents or its
Treasurer and its corporate seal, or a facsimile thereof, to be
impressed or imprinted hereon and attested by the signature of its
Secretary or one of its Assistant Secretaries.
Dated:
APPALACHIAN POWER COMPANY
By________________________
Treasurer
(SEAL)
Attest:___________________
Assistant Secretary
TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds,
of the series herein designated,
described in the within-mentioned
Mortgage.
BANKERS TRUST COMPANY,
as Trustee,
By______________________________
Authorized Officer
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 Bond and all rights thereunder, hereby
________________________________________________________________
irrevocably constituting and appointing such person attorney to
________________________________________________________________
transfer such Bond 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 Bond in every
particular without alteration or enlargement or any
change whatsoever.
SCHEDULE II
No. ______ $____________
APPALACHIAN POWER COMPANY
FIRST MORTGAGE BOND, 6.80% SERIES DUE 2006
APPALACHIAN POWER COMPANY, a corporation of the Commonwealth
of Virginia (hereinafter called the "Company"), for value received,
hereby promises to pay to ____________, or registered assigns,
_______________ Dollars in lawful money of the United States of
America on March 1, 2006, at the office or agency of the Company in
the Borough of Manhattan, The City of New York, and to pay to the
registered owner hereof interest on said sum from the latest semi-
annual interest payment date to which interest has been paid on the
bonds of this series preceding the date hereof, unless the date
hereof be an interest payment date to which interest is being paid,
in which case from the date hereof or unless the date hereof is
prior to September 1, 1996, in which case from March 1, 1996 (or,
if this bond is dated between the record date for any interest
payment date and such interest payment date, then from such
interest payment date; provided, however, that if and to the extent
that the Company shall default in the payment of the interest due
on such interest payment date, then from the next preceding semi-
annual interest payment date to which interest has been paid on the
bonds of this series, or if such interest payment date is September
1, 1996, from March 1, 1996) at the rate per annum, in like money,
payable on March 1 and September 1 of each year at said office or
agency until the principal hereof shall have become due and
payable, specified in the title of this bond; provided that, at the
option of the Company, such interest may be paid by check, mailed
to the registered owner of this bond at such owner's address
appearing on the register hereof.
This bond is one of a duly authorized issue of bonds of the
Company, issuable in series, and is one of a series known as its
First Mortgage Bonds, of the series designated in its title, all
bonds of all series issued and to be issued under and equally
secured (except in so far as any sinking fund, established in
accordance with the provisions of the Mortgage hereinafter
mentioned, may afford additional security for the bonds of any
particular series and except as provided in Section 73 of the
Mortgage) by a Mortgage and Deed of Trust (herein, together with
all indentures supplemental thereto, called the Mortgage), dated as
of December 1, 1940, executed by APPALACHIAN ELECTRIC POWER COMPANY
(the corporate title of which was changed to APPALACHIAN POWER
COMPANY) to BANKERS TRUST COMPANY, as Trustee, to which Mortgage
reference is made for a description of the property mortgaged and
pledged, the nature and extent of the security, the rights of the
holders of the bonds and of the Trustee in respect thereof, the
duties and immunities of the Trustee, and the terms and conditions
upon which the bonds are secured. With the consent of the Company
and to the extent permitted by and as provided in the Mortgage, the
rights and obligations of the Company and/or of the holders of the
bonds and/or coupons and/or the terms and provisions of the
Mortgage and/or of any instruments supplemental thereto may be
modified or altered by affirmative vote of the holders of at least
seventy-five per centum (75%) in principal amount of the bonds
affected by such modification or alteration, then outstanding under
the Mortgage (excluding bonds disqualified from voting by reason of
the Company's interest therein as provided in the Mortgage);
provided that, without the consent of the owner hereof no such
modification or alteration shall permit the extension of the
maturity of the principal of or interest on this bond or the
reduction in the rate of interest hereon or any other modification
in the terms of payment of such principal or interest or the
creation of a lien on the mortgaged and pledged property ranking
prior to or on a parity with the lien of the Mortgage or the
deprivation of the owner hereof of a lien upon such property or
reduce the above percentage.
As provided in said Mortgage, said bonds may be for various
principal sums and are issuable in series, which may mature at
different times, may bear interest at different rates and may
otherwise vary as therein provided, and this bond is one of a
series entitled "First Mortgage Bonds, 6.80% Series due 2006
(herein called "bonds of the 60th Series") created by an Indenture
Supplemental to Mortgage and Deed of Trust dated as of March 1,
1996 (the "First 1996 Supplemental Indenture"), as provided for in
said Mortgage.
The interest payable on any March 1 or September 1 (other than
interest payable upon redemption or maturity) will, subject to
certain exceptions provided in said First 1996 Supplemental
Indenture, be paid to the person in whose name this bond is
registered at the close of business on the record date, which shall
be the February 15 or August 15, as the case may be, next preceding
such interest payment date, or, if such February 15 or August 15 is
not a Business Day (as hereinbelow defined), the next preceding
Business Day. Interest payable upon redemption or maturity shall
be payable to the person to whom the principal is paid. The term
"Business Day" means any day, other than a Saturday or Sunday,
which is not a day on which banking institutions or trust companies
in The City of New York, New York or the city in which is located
any office or agency maintained for the payment of principal or
premium, if any, or interest on bonds of the 60th Series are
authorized or required by law, regulation or executive order to
remain closed.
If any semi-annual interest payment date, redemption date or
the maturity date is not a Business Day, payment of amounts due on
such date may be made on the next succeeding Business Day, and, if
such payment is made or duly provided for on such Business Day, no
interest shall accrue on such amounts for the period from and after
such interest payment date, redemption date or the maturity date,
as the case may be, to such Business Day.
The Company and the Trustee may deem and treat the person in
whose name this bond is registered as the absolute owner hereof for
the purpose of receiving payment of or on account of principal or
(subject to the provisions hereof) interest hereon and for all
other purposes and the Company and the Trustee shall not be
affected by any notice to the contrary.
The Company shall not be required to make transfers or
exchanges of bonds of the 60th Series for a period of fifteen days
next preceding any interest payment date, or next preceding any
selection of bonds of the 60th Series to be redeemed, and the
Company shall not be required to make transfers or exchanges of any
bonds of the 60th Series designated for redemption in whole or in
part.
Any or all of the bonds of the 60th Series shall be redeemed
by the Company at its option, or by operation of various provisions
of the Mortgage, in whole at any time or in part from time to time
upon not less than thirty but not more than ninety days' previous
notice given by mail to the registered owners of the bonds to be
redeemed, all as provided in the Mortgage, (a) if redeemed by the
use of proceeds of released property or the proceeds of insurance,
at a special redemption price equal to 100% of the principal amount
thereof together in each case with accrued interest to the date
fixed for redemption; or (b) if redeemed otherwise than by the use
of proceeds of released property or the proceeds of insurance, at
a redemption price equal to the greater of (i) 100% of the
principal amount of the bonds of the 60th Series and (ii) the sum
of the present values of the remaining scheduled payments of
principal and interest thereon discounted to the redemption date on
a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Treasury Rate (as defined below) plus 10
basis points, plus accrued interest thereon to the date of
redemption.
"Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as percentage of its principal
amount) equal to the Comparable Treasury Price for such redemption
date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of the bonds of the 60th
Series to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the bonds of the 60th Series.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) on the third business day
preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the
Federal Reserve Bank of New York and designated "Composite 3:30
p.m. Quotations for U.S. Government Securities" or (ii) if such
release (or any successor release) is not published or does not
contain such prices on such third business day, (A) the average of
the Reference Treasury Dealer Quotations for such redemption date,
after excluding the highest and lowest such Reference Treasury
Dealer Quotations or (B) if the Trustee is unable to obtain four
such Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations so obtained.
"Independent Investment Banker" means one of the Reference
Treasury Dealers appointed by the Company and acceptable to the
Trustee.
"Reference Treasury Dealer" means a primary U.S. Government
Securities Dealer in New York City selected by the Company and
acceptable to the Trustee.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, the
average, as determined by the Trustee, of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the
Trustee by such Treasury Reference Dealer at or before 5:00 p.m.,
New York City time, on the third business day preceding such
redemption date.
The principal hereof may be declared or may become due prior
to the express date of the maturity hereof on the conditions, in
the manner and at the time set forth in the Mortgage, upon the
occurrence of a completed default as in the Mortgage provided.
The bonds of this series are issuable only as registered bonds
without coupons in denominations of $1,000 and authorized multiples
thereof. This bond is transferable as prescribed in the Mortgage
by the registered owner hereof in person, or by his duly authorized
attorney, at the office or agency of the Company in the Borough of
Manhattan, The City of New York, and at such other office or agency
of the Company as the Company may designate, upon surrender and
cancellation of this bond and upon payment, if the Company shall
require it, of the transfer charges prescribed in the Mortgage,
and, thereupon, a new registered bond or bonds of authorized
denominations of the same series for a like principal amount will
be issued to the transferee in exchange herefor as provided in the
Mortgage. In the manner and upon payment, if the Company shall
require it, of the charges prescribed in the Mortgage, registered
bonds of the 60th Series may be exchanged for a like aggregate
principal amount of registered bonds of other authorized
denominations of the same series, upon presentation and surrender
thereof, for cancellation, at the office or agency of the Company
in the Borough of Manhattan, The City of New York, or at such other
office or agency of the Company as the Company may from time to
time designate.
No recourse shall be had for the payment of the principal of
or interest on this bond against any incorporator or any past,
present or future stockholder, officer or director, as such, of the
Company or of any successor corporation, either directly or through
the Company or any successor corporation, under any rule of law,
statute or constitution or by the enforcement of any assessment or
otherwise, all such liability of incorporators, stockholders,
officers and directors, as such, being waived and released by the
holder or owner hereof by the acceptance of this bond and being
likewise waived and released by the terms of the Mortgage.
This bond shall not become valid or obligatory for any purpose
until BANKERS TRUST COMPANY, the Trustee under the Mortgage, or its
successor thereunder, shall have signed the form of Authentication
Certificate endorsed hereon.
In Witness Whereof, Appalachian Power Company has caused this
bond to be executed in its name by the signature of its Chairman of
the Board, its President, one of its Vice Presidents or its
Treasurer and its corporate seal, or a facsimile thereof, to be
impressed or imprinted hereon and attested by the signature of its
Secretary or one of its Assistant Secretaries.
Dated:
APPALACHIAN POWER COMPANY
By________________________
Treasurer
(SEAL)
Attest:___________________
Assistant Secretary
TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds,
of the series herein designated,
described in the within-mentioned
Mortgage.
BANKERS TRUST COMPANY,
as Trustee,
By______________________________
Authorized Officer
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 Bond and all rights thereunder, hereby
________________________________________________________________
irrevocably constituting and appointing such person attorney to
________________________________________________________________
transfer such Bond 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 Bond in every
particular without alteration or enlargement or any
change whatsoever.
Exhibit 4(c)
Indenture Supplemental
TO
Mortgage and Deed of Trust
(Dated as of December 1, 1940)
Executed by
APPALACHIAN POWER COMPANY
formerly Appalachian Electric Power Company
TO
BANKERS TRUST COMPANY,
As Trustee
Dated as of ____________, ____
$__________ First Mortgage Bonds,
Designated Secured Medium Term Notes,
____% Series due ____________, ____
<PAGE>
TABLE OF CONTENTS
The Table of Contents shall not be deemed to be any part
of the Indenture Supplemental to Mortgage and Deed of
Trust.
PAGE
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS
Execution of Mortgage. . . . . . . . . . . . . . . . . . 1
Execution of supplemental indentures . . . . . . . . . . 1
Termination of Individual Trustee. . . . . . . . . . . . 1
Provision for issuance of bonds in one or more series. . 1
Right to execute supplemental indenture. . . . . . . . . 2
First Mortgage Bonds heretofore issued . . . . . . . . . 2
Issue of new First Mortgage Bonds of the ______ Series . . 3
__________ Supplemental Indenture . . . . . . . . . . . . 3
Compliance with legal requirements . . . . . . . . . . . 4
GRANTING CLAUSES. . . . . . . . . . . . . . . . . . . . . . . 4
DESCRIPTION OF PROPERTY . . . . . . . . . . . . . . . . . . . 4
APPURTENANCES, ETC. . . . . . . . . . . . . . . . . . . . . . 4
HABENDUM. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
PRIOR LEASEHOLD ENCUMBRANCES. . . . . . . . . . . . . . . . . 5
GRANT IN TRUST. . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 1. Supplement to Original Indenture by adding
Section ____ . . . . . . . . . . . . . . . . . 6
SECTION 2. Initial Issuance of the Bonds of the ______ Series.12
SECTION 3. Provision for record date for meetings
of Bondholders . . . . . . . . . . . . . . . . 12
SECTION 4. Original Indenture and __________ Supplemental
Indenture same instrument. . . . . . . . . . . 12
SECTION 5. Limitation of rights. . . . . . . . . . . . . . . 13
SECTION 6. Execution in counterparts . . . . . . . . . . . . 13
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . 13
SIGNATURES AND SEALS. . . . . . . . . . . . . . . . . . . . . 13
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . 15
SCHEDULE I. . . . . . . . . . . . . . . . . . . . . . . . . . I-1
SUPPLEMENTAL INDENTURE, dated as of the __________ day
of____________ in the year ______________________________________,
made and entered into by and between APPALACHIAN POWER COMPANY, a
corporation of the Commonwealth of Virginia, the corporate title of
which was, prior to April 17, 1958, APPALACHIAN ELECTRIC POWER
COMPANY (hereinafter sometimes called the "Company"), a
transmitting utility (as such term is defined in Section 46-9-
105(1)(n) of the West Virginia Code), party of the first part, and
BANKERS TRUST COMPANY, a corporation of the State of New York
(hereinafter sometimes called the "Corporate Trustee" or
"Trustee"), as Trustee, party of the second part.
WHEREAS, the Company has heretofore executed and delivered its
Mortgage and Deed of Trust (hereinafter sometimes referred to as
the "Mortgage"), dated as of December 1, 1940, to the Trustee for
the security of all bonds of the Company outstanding thereunder,
and by said Mortgage conveyed to the Trustee, upon certain trusts,
terms and conditions, and with and subject to certain provisos and
covenants therein contained, all and singular the property, rights
and franchises which the Company then owned or should thereafter
acquire, excepting any property expressly excepted by the terms of
the Mortgage; and
WHEREAS, the Company has heretofore executed and delivered to
the Trustee supplements and indentures supplemental to the
Mortgage, dated as of December 1, 1943, December 2, 1946, December
1, 1947, March 1, 1950, June 1, 1951, October 1, 1952, December 1,
1953, March 1, 1957, May 1, 1958, October 2, 1961, April 1, 1962,
June 1, 1965, September 2, 1968, December 1, 1968, October 1, 1969,
June 1, 1970, October 1, 1970, September 1, 1971, February 1, 1972,
December 1, 1972, July 1, 1973, March 1, 1974, April 1, 1975, May
1, 1975, December 1, 1975, April 1, 1976, September 1, 1976,
November 1, 1977, May 1, 1979, August 1, 1979, February 1, 1980,
November 1, 1980, April 1, 1982, October 1, 1983, February 1, 1987,
September 1, 1987, November 1, 1989, December 1, 1990, August 1,
1991, February 1, 1992, May 1, 1992, August 1, 1992, November 15,
1992 and April 15, 1993 (hereinafter referred to as the "First 1993
Supplemental Indenture"), respectively, amending and supplementing
the Mortgage in certain respects (the Mortgage, as so amended and
supplemented, being hereinafter called the "Original Indenture")
and conveying to the Trustee, upon certain trusts, terms and
conditions, and with and subject to certain provisos and covenants
therein contained, certain property rights and property therein
described; and
WHEREAS, effective October 7, 1988, pursuant to Section 115 of
the Original Indenture, the Individual Trustee resigned and all
powers of the Individual Trustee then terminated, as did the
Individual Trustee's right, title or interest in and to the trust
estate, and without appointment of a new trustee as successor to
the Individual Trustee, all the right, title and powers of the
Trustee thereupon devolved upon the Corporate Trustee and its
successors alone; and
WHEREAS, the Original Indenture provides that bonds issued
thereunder may be issued in one or more series and further provides
that, with respect to each series, the rate or rates of interest,
the date or dates of maturity, the dates for the payment of
interest, the terms and rates of optional redemption, and other
terms and conditions not inconsistent with the Original Indenture
may be established, prior to the issue of bonds of such series, by
an indenture supplemental to the Original Indenture; and
WHEREAS, Section 132 of the Original Indenture provides that
any power, privilege or right expressly or impliedly reserved to or
in any way conferred upon the Company by any provision of the
Original Indenture, whether such power, privilege or right is in
any way restricted or is unrestricted, may be in whole or in part
waived or surrendered or subjected to any restriction if at the
time unrestricted or to additional restriction if already
restricted, and that the Company may enter into any further
covenants, limitations or restrictions for the benefit of any one
or more series of bonds issued under the Original Indenture and
provide that a breach thereof shall be equivalent to a default
under the Original Indenture, or the Company may cure any ambiguity
or correct or supplement any defective or inconsistent provisions
contained in the Original Indenture or in any indenture
supplemental to the Original Indenture, by an instrument in
writing, executed and acknowledged, and that the Trustee is
authorized to join with the Company in the execution of any such
instrument or instruments; and
WHEREAS, the Company has heretofore issued, in accordance with
the provisions of the Mortgage, as amended and supplemented as of
the respective dates thereof, bonds of the series (which are
outstanding), entitled and designated as hereinafter set forth, in
the respective original aggregate principal amounts indicated:
Series Amount
First Mortgage Bonds, 7-1/2% Series due 1998. . . $45,000,000
First Mortgage Bonds, 8-1/2% Series due 1999. . . 60,000,000
First Mortgage Bonds, 7.00% Series due 1999. . . 30,000,000
First Mortgage Bonds, 7-5/8% Series due 2002. . . 50,000,000
First Mortgage Bonds, 7.95% Series due 2002. . . 60,000,000
First Mortgage Bonds, 7.38% Series due 2002. . . 50,000,000
First Mortgage Bonds, 7.40% Series due 2002. . . 30,000,000
First Mortgage Bonds, 7-1/2% Series due 2002. . . 70,000,000
First Mortgage Bonds, 8-1/8% Series due 2003. . . 50,000,000
First Mortgage Bonds, 6.65% Series due 2003. . . 40,000,000
First Mortgage Bonds, 8-1/2% Series due 2004. . . 50,000,000
First Mortgage Bonds, 9-1/4% Series due 2007. . . 26,000,000
First Mortgage Bonds, 8-3/4% Series due 2017. . . 100,000,000
First Mortgage Bonds, 9-1/8% Series due 2019. . . 50,000,000
First Mortgage Bonds, 9-7/8% Series due 2020. . . 50,000,000
First Mortgage Bonds, 9.35% Series due 2021. . . 50,000,000
First Mortgage Bonds, 8.75% Series due 2022. . . 50,000,000
First Mortgage Bonds, 8.70% Series due 2022. . . 40,000,000
First Mortgage Bonds, 8.43% Series due 2022. . . 50,000,000
First Mortgage Bonds, 8.50% Series due 2022. . . 70,000,000
First Mortgage Bonds, 7.80% Series due 2023. . . 40,000,000
and
WHEREAS, the Company, by appropriate corporate action in
conformity with the terms of the Original Indenture, has duly
determined to create a series of bonds under the Original Indenture
to be designated as "First Mortgage Bonds, Designated Secured
Medium Term Notes, ______% Series due ____________, ____"
(hereinafter sometimes referred to as the "bonds of the ______
Series"); and
WHEREAS, each of the bonds of the ______ Series is to be
substantially in the form set forth in Schedule I to this
Supplemental Indenture (hereinafter sometimes referred to as the
"__________ Supplemental Indenture"); and
WHEREAS, the Company, in the exercise of the powers and
authorities conferred upon and reserved to it under and by virtue
of the provisions of the Original Indenture, and pursuant to
resolutions of its Board of Directors, has duly resolved and
determined to make, execute and deliver to the Trustee a
supplemental indenture, in the form hereof, for the purposes herein
provided; and
WHEREAS, all conditions and requirements necessary to make
this __________ Supplemental Indenture a valid, binding and legal
instrument in accordance with its terms, have been done, performed
and fulfilled, and the execution and delivery thereof have been in
all respects duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That Appalachian Power Company, in consideration of the
premises and of the purchase and acceptance of the bonds by the
holders thereof and of the sum of One Dollar ($1.00) and other good
and valuable consideration paid to it by the Trustee at or before
the ensealing and delivery of these presents, the receipt whereof
is hereby acknowledged, and in order to secure the payment of both
the principal of and interest and premium, if any, on the bonds
from time to time issued under and secured by the Original
Indenture and this __________ Supplemental Indenture, according to
their tenor and effect, and the performance of all the provisions
of the Original Indenture and this __________ Supplemental
Indenture (including any further indenture or indentures
supplemental to the Original Indenture and any modification or
alteration made as in the Original Indenture provided) and of said
bonds, has granted, bargained, sold, released, conveyed,
transferred, mortgaged, pledged, set over and confirmed, and by
these presents does grant, bargain, sell, release, convey, assign,
transfer, mortgage, pledge, set over and confirm unto Bankers Trust
Company, as Trustee, and to its respective successor or successors
in the trust hereby created, and to its and their assigns, all the
following described properties of the Company, that is to say:
All property, real, personal and mixed, tangible and
intangible, and all franchises owned by the Company on the date of
the execution hereof, acquired since the execution of the First
1993 Supplemental Indenture (except any hereinafter expressly
excepted from the lien and operation of this __________
Supplemental Indenture).
TOGETHER WITH all and singular the tenements, hereditaments
and appurtenances belonging or in anywise appertaining to the
aforesaid property or any part thereof, with the reversion and
reversions, remainder and remainders and (subject to the provisions
of Section 63 of the Original Indenture) the tolls, rents,
revenues, issues, earnings, income, product and profits thereof and
all the estate, right, title and interest and claim whatsoever, at
law as well as in equity, which the Company now has or may
hereafter acquire in and to the aforesaid property and franchises
and every part and parcel thereof.
Provided that, in addition to the reservations and exceptions
herein elsewhere contained, the following are not and are not
intended to be now or hereafter granted, bargained, sold, released,
conveyed, assigned, transferred, mortgaged, pledged, set over or
confirmed hereunder and are hereby expressly excepted from the lien
and operation of the Original Indenture and this __________
Supplemental Indenture, viz.: (1) cash, shares of stock, and
obligations (including bonds, notes and other securities) not
hereinafter or in the Original Indenture specifically pledged,
deposited or delivered hereunder or thereunder or hereinafter or
therein covenanted so to be; (2) any goods, wares, merchandise,
equipment, materials or supplies acquired for the purpose of sale
or resale in the usual course of business or for consumption in the
operation of any properties of the Company and automobiles and
trucks; (3) all judgments, accounts, and choses in action, the
proceeds of which the Company is not obligated as hereinafter
provided or as provided in the Original Indenture to deposit with
the Trustee hereunder and thereunder; provided, however, that the
property and rights expressly excepted from the lien and operation
of the Original Indenture and this __________ Supplemental
Indenture in the above subdivisions (2) and (3) shall (to the
extent permitted by law) cease to be so excepted, in the event that
the Trustee or a receiver or trustee shall enter upon and take
possession of the mortgaged and pledged property in the manner
provided in Article XIV of the Original Indenture by reason of the
occurrence of a completed default, as defined in said Article XIV.
TO HAVE AND TO HOLD all such properties, real, personal and
mixed, granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, pledged, set over or confirmed by the
Company as aforesaid, or intended so to be, unto the Trustee and
its successors in the trust;
SUBJECT, HOWEVER, to the reservations, exceptions, conditions,
limitations and restrictions contained in the several deeds,
leases, servitudes, franchises and contracts or other instruments
through which the Company acquired and/or claims title to and/or
enjoys the use of the aforesaid properties; and subject also to
encumbrances of the character defined in Section 6 of the Original
Indenture as "excepted encumbrances" in so far as the same may
attach to any of the property embraced herein.
Inasmuch as the Company holds certain of said lands, rights of
way and other property under leases, power agreements and other
contracts which provide that the Company's interest therein shall
not be mortgaged without the consent of the respective lessors or
other parties to said agreements and contracts, and such lessors
and parties have either given such consent or have waived the
requirement of such consent, it is hereby expressly agreed and made
a condition upon which this __________ Supplemental Indenture is
executed and delivered, that the lien of this __________
Supplemental Indenture and the estate, rights and remedies of the
Trustee hereunder, and the rights and remedies of the holders of
the bonds secured hereby and by the Original Indenture in so far as
they may affect such lands, rights of way and other property now
held or to be hereafter acquired by the Company under such leases,
contracts or agreements, shall be subject and subordinate in all
respects to the rights and remedies of the respective lessors or
other parties thereto.
And it is hereby expressly covenanted and agreed as follows:
(a) That the rights of the Trustee hereunder, and of
every person or corporation whatsoever claiming by reason of
this __________ Supplemental Indenture any right, title or
interest, legal or equitable, in the property covered by any
such lease, power agreement or other contract, are and at all
times hereafter shall be subject in the same manner and degree
as the rights of the Company might or would at all times be
subject, had this __________ Supplemental Indenture not been
made, to all terms, provisions, conditions, covenants,
stipulations, and agreements, and to all exceptions,
reservations, limitations, restrictions, and forfeitures
contained in any such lease, power agreement or other
contract;
(b) That any right, claim, condition or forfeiture which
might at any time be asserted against the party in possession
under the provisions of any such lease, power agreement or
other contract, had this __________ Supplemental Indenture not
been made, may be asserted with the same force and effect
against any and all persons or corporations at any time
claiming any right, title or interest in any such property
under or by reason of this __________ Supplemental Indenture
or of any bond hereby and by the Original Indenture secured;
and
(c) That such consent or waiver of the requirement of
such consent given by the lessor under any such lease or party
to any such power agreement or other contract is intended and
shall be construed to be solely for the purpose of permitting
the Company to mortgage its property generally without
violating the express covenant contained in such lease, power
agreement or other contract, and that such consent or waiver
of the requirement of such consent confers upon the Trustee
hereunder and the holders of bonds secured hereby and by the
Original Indenture no rights in addition to such as they would
have had, respectively, if such consent or waiver of the
requirement of such consent had not been given.
IN TRUST NEVERTHELESS, upon the terms and trusts in the
Original Indenture and this __________ Supplemental Indenture set
forth, for the equal and pro rata benefit and security of those who
shall hold the bonds and coupons issued and to be issued hereunder
and under the Original Indenture, in accordance with the terms of
the Original Indenture and of this __________ Supplemental
Indenture, without preference, priority or distinction as to lien
of any of said bonds or coupons over any other thereof by reason of
priority in the time of issuance or negotiation thereof, or
otherwise howsoever, subject, however, to the conditions,
provisions and covenants set forth in the Original Indenture and in
this __________ Supplemental Indenture.
AND THIS INDENTURE FURTHER WITNESSETH:
That in further consideration of the premises and for the
considerations aforesaid, the Company, for itself and it successors
and assigns, hereby covenants and agrees to and with the Trustee,
and its successor or successors in such trust, under the Original
Indenture, as follows:
Section 1. The Original Indenture is hereby supplemented by
adding immediately after Section ______, a new Section ______, as
follows:
SECTION ______. The Company hereby creates a __________
series of bonds to be issued under and secured by this
Indenture, to be designated and to be distinguished from the
bonds of all other series by the title "First Mortgage Bonds,
Designated Secured Medium Term Notes, ______% Series due
____________, ____" (herein sometimes referred to as the
"bonds of the ______ Series"). The form of the bonds of the
______ Series shall be substantially as set forth in Schedule
I to the __________ Supplemental Indenture.
Bonds of the ______ Series shall mature on the date
specified in their title. Unless otherwise determined by the
Company, the bonds of the ______ Series shall be issued in
fully registered form without coupons in denominations of
$1,000 and in integral multiples thereof; the principal of and
premium (if any) and interest on each said bond to be payable
at the office or agency of the Company in the Borough of
Manhattan, The City of New York, in lawful money of the United
States of America, provided that at the option of the Company
interest may be mailed to registered owners of the bonds at
their respective addresses that appear on the register
thereof; and the rate of interest shall be the rate per annum
specified in the title thereof, payable semi-annually on the
first days of __________ and __________ of each year
(commencing ____________, ____) and on their maturity date.
The person in whose name any bond of the ______ Series is
registered at the close of business on any record date (as
hereinbelow defined) with respect to any regular semi-annual
interest payment date (other than interest payable upon
redemption) shall be entitled to receive the interest payable
on such interest payment date notwithstanding the cancellation
of such bond of the ______ Series upon any registration of
transfer or exchange thereof (including any exchange effected
as an incident to a partial redemption thereof) subsequent to
the record date and prior to such interest payment date,
except, if and to the extent that the Company shall default in
the payment of the interest due on such interest payment date,
then the registered owners of bonds of the ______ Series on
such record date shall have no further right to or claim in
respect of such defaulted interest as such registered owners
on such record date, and the persons entitled to receive
payment of any defaulted interest thereafter payable or paid
on any bonds of the ______ Series shall be the registered
owners of such bonds of the ______ Series (or any bond or
bonds issued, directly or after intermediate transactions upon
transfer or exchange or in substitution thereof) on the date
of payment of such defaulted interest. The term "record date"
as used in this Section ______, and in the form of the bonds
of the ______ Series, with respect to any regular semi-annual
interest payment date (other than interest payable upon
redemption) applicable to the bonds of the ______ Series,
shall mean the ____________ next preceding a ____________
interest payment date or the ____________ next preceding a
____________ interest payment date, as the case may be, or, if
such ____________ or ____________ is not a Business Day (as
defined hereinbelow), the next preceding Business Day. The
term "Business Day" with respect to any bond of the ______
Series shall mean any day, other than a Saturday or Sunday,
which is not a day on which banking institutions or trust
companies in The City of New York, New York or the city in
which is located any office or agency maintained for the
payment of principal of or premium, if any, or interest on
such bond of the ______ Series are authorized or required by
law, regulation or executive order to remain closed.
Every registered bond of the ______ Series shall be dated
the date of authentication ("Issue Date") and shall bear
interest computed on the basis of a 360-day year consisting of
twelve 30-day months from its Issue Date or from the latest
semi-annual interest payment date to which interest has been
paid on the bonds of the ______ Series preceding the Issue
Date, unless such Issue Date be an interest payment date to
which interest is being paid on the bonds of the ______
Series, in which case it shall bear interest from its Issue
Date or unless the Issue Date be the record date for the
interest payment date first following the date of original
issuance of bonds of the ______ Series (the "Original Issue
Date"), or a date prior to such record date, then from the
Original Issue Date; provided that, so long as there is no
existing default in the payment of interest on said bonds, the
owner of any bond authenticated by the Corporate Trustee
between the record date for any regular semi-annual interest
payment date and such interest payment date shall not be
entitled to the payment of the interest due on such interest
payment date (other than interest payable upon redemption) and
shall have no claim against the Company with respect thereto;
provided further, that, if and to the extent the Company shall
default in the payment of the interest due on such interest
payment date, then any such bond shall bear interest from the
____________ or _____________, as the case may be, next
preceding its Issue Date, to which interest has been paid or,
if the Company shall be in default with respect to the
interest payment date first following the Original Issue Date,
then from the Original Issue Date.
If any semi-annual interest payment date, redemption
date, or the maturity date is not a Business Day, payment of
amounts due on such date may be made on the next succeeding
Business Day, and, if such payment is made or duly provided
for on such Business Day, no interest shall accrue on such
amounts for the period from and after such interest payment
date, redemption date or the maturity date, as the case may
be, to such Business Day.
Notwithstanding the provisions of Section 14 of this
Indenture, the bonds of the ______ Series shall be executed on
behalf of the Company by its Chairman of the Board, by its
President or by one of its Vice Presidents or by one of its
officers designated by the Board of Directors of the Company
for such purpose, whose signature may be a facsimile, and its
corporate seal shall be thereunto affixed or printed thereon
and attested by its Secretary or one of its Assistant
Secretaries, and the provisions of the penultimate sentence of
said Section 14 shall be applicable to such bonds of the
______ Series.
The bonds of the ______ Series are redeemable in
accordance with Article XII of the Original Indenture and as
further set forth in the form of bond contained in Schedule I
to this __________ Supplemental Indenture.
The Company shall not be required to make transfers or
exchanges of bonds of the ______ Series for a period of
fifteen days next preceding any selection of bonds of the
______ Series to be redeemed or to make transfers or exchanges
of any bonds of the ______ Series designated in whole or in
part for redemption. Notwithstanding the provisions of
Section 12 of this Indenture, the Company shall not be
required to make transfers or exchanges of bonds of the ______
Series for a period of fifteen days next preceding any
interest payment date.
Registered bonds of the ______ Series shall be
transferable upon presentation and surrender thereof, for
cancellation, at the office or agency of the Company in the
Borough of Manhattan, The City of New York, and at such other
office or agency of the Company as the Company may from time
to time designate, by the registered owners thereof, in person
or by duly authorized attorney, in the manner and upon
payment, if required by the Company, of the charges prescribed
in this Indenture. In the manner and upon payment, if
required by the Company, of the charges prescribed in this
Indenture, registered bonds of the ______ Series may be
exchanged for a like aggregate principal amount of registered
bonds of the ______ Series of other authorized denominations,
upon presentation and surrender thereof, for cancellation, at
the office or agency of the Company in the Borough of
Manhattan, The City of New York, or at such other office or
agency of the Company as the Company may from time to time
designate.
Section 2. Initial Issuance of the Bonds of the ______ Series:
In accordance with and upon compliance with such provisions of
the Original Indenture as shall be selected for such purpose by the
officers of the Company duly authorized to take such action, bonds
of the ______ Series in an aggregate principal amount not exceeding
$__________, shall forthwith be executed by the Company and
delivered to the Trustee and shall be authenticated by the Trustee
and delivered to or upon the order of the Company (without awaiting
the filing and recording of this __________ Supplemental Indenture
except to the extent required by subdivision (10) of Section 29 of
the Original Indenture).
Section 3. At any meeting of bondholders held as provided for
in Article XX of the Original Indenture at which owners of bonds of
the ______ Series are entitled to vote, all owners of bonds of the
______ Series at the time of such meeting shall be entitled to vote
thereat; provided, however, that the Trustee may, and upon request
of the Company or of a majority of the bondowners of the ______
Series shall fix a day not exceeding ninety days preceding the date
for which the meeting is called as a record date for the
determination of owners of bonds of the ______ Series entitled to
notice of and to vote at such meeting and any adjournment thereof
and only such registered owners who shall have been such registered
owners on the date so fixed, and who are entitled to vote such
bonds of the ______ Series at the meeting, shall be entitled to
receive notice of such meeting.
Section 4. As supplemented by this __________ Supplemental
Indenture, the Original Indenture is in all respects ratified and
confirmed and the Original Indenture and this __________
Supplemental Indenture shall be read, taken and construed as one
and the same instrument. The bonds of the ______ Series are the
original debt secured by this __________ Supplemental Indenture and
the Original Indenture, and this __________ Supplemental Indenture
and the Original Indenture shall be, and shall be deemed to be, the
original lien instrument securing the bonds of the ______ Series.
Section 5. Nothing contained in this __________ Supplemental
Indenture shall, or shall be construed to, confer upon any person
other than the owners of bonds issued under the Original Indenture
and this __________ Supplemental Indenture, the Company and the
Trustee, any right to avail themselves of any benefit of any
provision of the Original Indenture or of this __________
Supplemental Indenture.
Section 6. This __________ Supplemental Indenture may be
simultaneously executed in several counterparts and all such
counterparts executed and delivered, each as an original, shall
constitute one and the same instrument.
IN WITNESS WHEREOF, APPALACHIAN POWER COMPANY, party of the
first part, has caused this instrument to be signed in its name and
behalf by its President, a Vice President or an Assistant
Treasurer, and its corporate seal to be hereunto affixed and
attested by its Secretary or an Assistant Secretary, and BANKERS
TRUST COMPANY, party of the second part, in token of its acceptance
hereof, has caused this instrument to be signed in its name and
behalf by an Assistant Vice President and its corporate seal to be
hereunto affixed and attested by an Assistant Secretary. Executed
and delivered as of the date and year first above written.
APPALACHIAN POWER COMPANY
[SEAL]
By:
B. M. Barber
Assistant Treasurer
Attest:
John M. Adams, Jr.
Assistant Secretary
In the presence of:
T. G. Berkemeyer
S. T. Haynes
BANKERS TRUST COMPANY
[SEAL]
By
Samir Pandiri
Assistant Vice President
Attest:
Marjorie Stanley
Assistant Secretary
Executed by BANKERS TRUST COMPANY
in the presence of:
Kenwyn Hackshaw
John Florio
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, B. M. BARBER and JEFFREY D. CROSS, to me known and known
to me to be respectively an Assistant Treasurer and 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
Assistant Treasurer and Assistant Secretary for and on behalf of
said corporation and that the same is their free act and deed as
such Assistant 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]
MARY M. SOLTESZ
Notary Public, State of Ohio
My Commission Expires July 13, 1994
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
I, PATRICIA M. CARILLO, a Notary Public, duly qualified,
commissioned and sworn, and acting in and for the County and State
aforesaid, hereby certify that on this ______ day of __________,
____:
SAMIR PANDIRI AND MARJORIE STANLEY, whose names are signed to
the writing above, bearing a date as of the ______ day of
__________, ____, as Assistant Vice President and Assistant
Secretary, respectively, of BANKERS TRUST COMPANY, have this day
acknowledged the same before me in my County aforesaid.
SAMIR PANDIRI, who signed the writing above and hereto annexed
for BANKERS TRUST COMPANY, a corporation, bearing a date as of the
______ day of __________, ____, has this day in my said County
before me acknowledged the said writing to be the act and deed of
said corporation.
Before me appeared SAMIR PANDIRI and MARJORIE STANLEY to me
personally known, who, being by me duly sworn, did say that they
are Assistant Vice President and Assistant Secretary, respectively,
of BANKERS TRUST COMPANY, and that the seal affixed to said
instrument is the corporate seal of said corporation, and that said
instrument was signed and sealed in behalf of said corporation, by
authority of its Board of Directors and said SAMIR PANDIRI
acknowledged said instrument to be the free act and deed of said
corporation.
MARJORIE STANLEY personally came before me this day and
acknowledged that she is an Assistant Secretary of BANKERS TRUST
COMPANY, a corporation, and that by authority duly given and as the
act of the corporation, the foregoing instrument was signed in its
name by an Assistant Secretary, sealed with its corporate seal, and
attested by herself as an Assistant Secretary.
IN WITNESS WHEREOF, I have hereunto set my hand and official
notarial seal, in the County and State of New York, this ______ day
of __________, ____.
PATRICIA M. CARILLO
Notary Public, State of New York
No. 41-4747732
Qualified in Queens County
Certificate filed in New York County
Commission expires May 31, 1993
[SEAL]
SCHEDULE I
APPALACHIAN POWER COMPANY
FIRST MORTGAGE BOND, DESIGNATED
SECURED MEDIUM TERM NOTE, ______%
SERIES DUE ____________, ____
Bond No.
Original Issue Date:
Principal Amount:
Semi-annual Interest Payment Dates:
Record Dates:
CUSIP No:
APPALACHIAN POWER COMPANY, a corporation of the Commonwealth
of Virginia (hereinafter called the "Company"), for value received,
hereby promises to pay to ____________, or registered assigns, the
Principal Amount set forth above on the maturity date specified in
the title of this bond in lawful money of the United States of
America, at the office or agency of the Company in the Borough of
Manhattan, The City of New York, and to pay to the registered owner
hereof interest on said sum from the date of authentication of this
bond (herein called the "Issue Date") or latest semi-annual
interest payment date to which interest has been paid on the bonds
of this series preceding the Issue Date, unless the Issue Date be
an interest payment date to which interest is being paid, in which
case from the Issue Date or unless the Issue Date be the record
date for the interest payment date first following the Original
Issue Date set forth above or a date prior to such record date,
then from the Original Issue Date (or, if the Issue Date is between
the record date for any interest payment date and such interest
payment date, then from such interest payment date, provided,
however, that if and to the extent that the Company shall default
in the payment of the interest due on such interest payment date,
then from the next preceding semi-annual interest payment date to
which interest has been paid on the bonds of this series, or if
such interest payment date is the interest payment date first
following the Original Issue Date set forth above, then from the
Original Issue Date), until the principal hereof shall have become
due and payable, at the rate per annum specified in the title of
this bond, payable on ____________ and ____________ of each year
(commencing ____________, ____) and on the maturity date specified
in the title of this bond; provided that, at the option of the
Company, such interest may be paid by check, mailed to the
registered owner of this bond at such owner's address appearing on
the register hereof.
This bond is one of a duly authorized issue of bonds of the
Company, issuable in series, and is one of a series known as its
First Mortgage Bonds, of the series designated in its title, all
bonds of all series issued and to be issued under and equally
secured (except in so far as any sinking fund, established in
accordance with the provisions of the Mortgage hereinafter
mentioned, may afford additional security for the bonds of any
particular series and except as provided in Section 73 of the
Mortgage) by a Mortgage and Deed of Trust (herein, together with
all indentures supplemental thereto, called the Mortgage), dated as
of December 1, 1940, executed by APPALACHIAN ELECTRIC POWER COMPANY
(the corporate title of which was changed to APPALACHIAN POWER
COMPANY) to BANKERS TRUST COMPANY, as Trustee, to which Mortgage
reference is made for a description of the property mortgaged and
pledged, the nature and extent of the security, the rights of the
holders of the bonds and of the Trustee in respect thereof, the
duties and immunities of the Trustee, and the terms and conditions
upon which the bonds are secured. With the consent of the Company
and to the extent permitted by and as provided in the Mortgage, the
rights and obligations of the Company and/or of the holders of the
bonds and/or coupons and/or the terms and provisions of the
Mortgage and/or of any instruments supplemental thereto may be
modified or altered by affirmative vote of the holders of at least
seventy-five per centum (75%) in principal amount of the bonds
affected by such modification or alteration, then outstanding under
the Mortgage (excluding bonds disqualified from voting by reason of
the Company's interest therein as provided in the Mortgage);
provided that, without the consent of the owner hereof no such
modification or alteration shall permit the extension of the
maturity of the principal of or interest on this bond or the
reduction in the rate of interest hereon or any other modification
in the terms of payment of such principal or interest or the
creation of a lien on the mortgaged and pledged property ranking
prior to or on a parity with the lien of the Mortgage or the
deprivation of the owner hereof of a lien upon such property or
reduce the above percentage.
As provided in said Mortgage, said bonds may be for various
principal sums and are issuable in series, which may mature at
different times, may bear interest at different rates and may
otherwise vary as therein provided, and this bond is one of a
series entitled "First Mortgage Bonds, Designated Secured Medium
Term Notes, ______% Series due ____________, ____ (herein called
"bonds of the ______ Series") created by an Indenture Supplemental
to Mortgage and Deed of Trust dated as of ____________, ____ (the
"__________ Supplemental Indenture"), as provided for in said
Mortgage.
The interest payable on any _____________ or ____________
(other than interest payable upon redemption) will, subject to
certain exceptions provided in said __________ Supplemental
Indenture, be paid to the person in whose name this bond is
registered at the close of business on the record date, which shall
be the ____________ or ____________, as the case may be, next
preceding such interest payment date, or, if such ____________ or
____________ is not a Business Day (as hereinbelow defined), the
next preceding Business Day. The term "Business Day" means any
day, other than a Saturday or Sunday, which is not a day on which
banking institutions or trust companies in The City of New York,
New York or the city in which is located any office or agency
maintained for the payment of principal or premium, if any, or
interest on bonds of the ______ Series are authorized or required
by law, regulation or executive order to remain closed.
If any semi-annual interest payment date, redemption date or
the maturity date is not a Business Day, payment of amounts due on
such date may be made on the next succeeding Business Day, and, if
such payment is made or duly provided for on such Business Day, no
interest shall accrue on such amounts for the period from and after
such interest payment date, redemption date or the maturity date,
as the case may be, to such Business Day.
The Company and the Trustee may deem and treat the person in
whose name this bond is registered as the absolute owner hereof for
the purpose of receiving payment of or on account of principal or
(subject to the provisions hereof) interest hereon and for all
other purposes and the Company and the Trustee shall not be
affected by any notice to the contrary.
The Company shall not be required to make transfers or
exchanges of bonds of the ______ Series for a period of fifteen
days next preceding any interest payment date, or next preceding
any selection of bonds of the ______ Series to be redeemed, and the
Company shall not be required to make transfers or exchanges of any
bonds of the ______ Series designated for redemption in whole or in
part.
Any or all of the bonds of the ______ Series may be redeemed
by the Company on or after ____________, ____, at its option, or by
operation of various provisions of the Mortgage, in whole at any
time or in part from time to time upon not less than thirty but not
more than ninety days' previous notice given by mail to the
registered owners of the bonds to be redeemed, all as provided in
the Mortgage, (a) if redeemed otherwise than by the use or
application of cash deposited pursuant to Section 40 of the
Mortgage and otherwise than by the use of proceeds of released
property or the proceeds of insurance, at an amount equal to a
percentage of the principal amount thereof determined as set forth
in Annex A hereto under the heading "Regular Redemption Price"
together in each case with accrued interest to the date fixed for
redemption, or (b) if redeemed by the use or application of cash
deposited pursuant to Section 40 of the Mortgage or by the use of
proceeds of released property or the proceeds of insurance, at an
amount equal to 100% of the principal amount thereof together in
each case with accrued interest to the date fixed for redemption.
The principal hereof may be declared or may become due prior
to the express date of the maturity hereof on the conditions, in
the manner and at the time set forth in the Mortgage, upon the
occurrence of a completed default as in the Mortgage provided.
This bond is transferable as prescribed in the Mortgage by the
registered owner hereof in person, or by his duly authorized
attorney, at the office or agency of the Company in the Borough of
Manhattan, The City of New York, and at such other office or agency
of the Company as the Company may designate, upon surrender and
cancellation of this bond and upon payment, if the Company shall
require it, of the transfer charges prescribed in the Mortgage,
and, thereupon, a new registered bond or bonds of authorized
denominations of the same series for a like principal amount will
be issued to the transferee in exchange herefor as provided in the
Mortgage. In the manner and upon payment, if the Company shall
require it, of the charges prescribed in the Mortgage, registered
bonds of the ______ Series may be exchanged for a like aggregate
principal amount of registered bonds of other authorized
denominations of the same series, upon presentation and surrender
thereof, for cancellation, at the office or agency of the Company
in the Borough of Manhattan, The City of New York, or at such other
office or agency of the Company as the Company may from time to
time designate.
No recourse shall be had for the payment of the principal of
or interest on this bond against any incorporator or any past,
present or future stockholder, officer or director, as such, of the
Company or of any successor corporation, either directly or through
the Company or any successor corporation, under any rule of law,
statute or constitution or by the enforcement of any assessment or
otherwise, all such liability of incorporators, stockholders,
officers and directors, as such, being waived and released by the
holder or owner hereof by the acceptance of this bond and being
likewise waived and released by the terms of the Mortgage.
This bond shall not become valid or obligatory for any purpose
until BANKERS TRUST COMPANY, the Trustee under the Mortgage, or its
successor thereunder, shall have signed the form of Authentication
Certificate endorsed hereon.
In Witness Whereof, Appalachian Power Company has caused this
bond to be executed in its name by the signature of its Chairman of
the Board, its President or one of its Vice Presidents and its
corporate seal, or a facsimile thereof, to be impressed or
imprinted hereon and attested by the signature of its Secretary or
one of its Assistant Secretaries.
Dated:
APPALACHIAN POWER COMPANY
By________________________
Vice President
(SEAL)
Attest:___________________
Assistant Secretary
TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds,
of the series herein designated,
described in the within-mentioned
Mortgage.
BANKERS TRUST COMPANY,
as Trustee,
By______________________________
Authorized Officer
ANNEX A TO FIRST MORTGAGE BOND,
DESIGNATED SECURED MEDIUM TERM NOTE,
______% SERIES DUE ____________, ____
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 Bond and all rights thereunder, hereby
________________________________________________________________
irrevocably constituting and appointing such person attorney to
________________________________________________________________
transfer such Bond 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 Bond in every
particular without alteration or enlargement or any
change whatsoever.
Exhibit 4(d)
APPALACHIAN POWER COMPANY
AND
BANKERS TRUST COMPANY,
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
Board of Directors . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . 3
Certificate . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . 3
Company Order . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . 3
Default . . . . . . . . . . . . . . . . . . . . . . . 4
Depository . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . 4
Global Note . . . . . . . . . . . . . . . . . . . . . 4
Governmental Obligations . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . 5
Note . . . . . . . . . . . . . . . . . . . . . . . . 5
Noteholder . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . 5
Original Issue Date . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . 6
Predecessor Note . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . 6
Trustee . . . . . . . . . . . . . . . . . . . . . . . 6
Trust Indenture Act . . . . . . . . . . . . . . . . . 7
ARTICLE TWO - ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF NOTES
Section 2.01
Designation, terms, amount, authentication
and delivery of Notes . . . . . . . . . . . . . . . . 7
Section 2.02
Form of Note and Trustee's certificate . . . . . . . 8
Section 2.03
Date and denominations of Notes,
and provisions for payment of principal,
premium and interest . . . . . . . . . . . . . . . . 8
Section 2.04
Execution of Notes . . . . . . . . . . . . . . . . 10
Section 2.05
Exchange of Notes . . . . . . . . . . . . . . . . . 11
(a) Registration and transfer
of Notes . . . . . . . . . . . . . . . . . . . 11
(b) Note Register; Notes to be accompanied
by proper instruments of transfer . . . . . . 11
(c) Charges upon exchange, transfer or
registration of Notes . . . . . . . . . . . . 12
(d) Restrictions on transfer or
exchange at time of redemption . . . . . . . . 12
Section 2.06
Temporary Notes . . . . . . . . . . . . . . . . . . 12
Section 2.07
Mutilated, destroyed, lost or
stolen Notes . . . . . . . . . . . . . . . . . . . 12
Section 2.08
Cancellation of surrendered Notes . . . . . . . . . 13
Section 2.09
Provisions of Indenture and Notes
for sole benefit of parties and
Noteholders . . . . . . . . . . . . . . . . . . . . 14
Section 2.10
Appointment of Authenticating Agent . . . . . . . . 14
Section 2.11
Global Note . . . . . . . . . . . . . . . . . . . . 14
(a) Authentication and Delivery;
Legend . . . . . . . . . . . . . . . . . . . . 14
(b) Transfer of Global Note . . . . . . . . . . . 15
(c) Issuance of Notes in
Definitive Form . . . . . . . . . . . . . . . 15
ARTICLE THREE - REDEMPTION OF NOTES AND
SINKING FUND PROVISIONS
Section 3.01
Redemption of Notes . . . . . . . . . . . . . . . . 16
Section 3.02
(a) Notice of redemption . . . . . . . . . . . . . 16
(b) Selection of Notes in case
less than all Notes to be
redeemed . . . . . . . . . . . . . . . . . . . 16
Section 3.03
(a) When Notes called for
redemption become due and payable . . . . . . 17
(b) Receipt of new Note upon
partial payment . . . . . . . . . . . . . . . 17
Section 3.04
Sinking Fund for Notes . . . . . . . . . . . . . . 18
Section 3.05
Satisfaction of Sinking Fund
Payments with Notes . . . . . . . . . . . . . . . . 18
Section 3.06
Redemption of Notes for
Sinking Fund . . . . . . . . . . . . . . . . . . . 18
ARTICLE FOUR - PARTICULAR COVENANTS OF THE COMPANY
Section 4.01
Payment of principal (and premium
if any) and interest on Notes . . . . . . . . . . . 19
Section 4.02
Maintenance of office or agency for
payment of Notes, designation of
office or agency for payment,
registration, transfer and exchange
of Notes . . . . . . . . . . . . . . . . . . . . . 19
Section 4.03
(a) Duties of paying agent . . . . . . . . . . . . 19
(b) Company as paying agent . . . . . . . . . . . 20
(c) Holding sums in trust . . . . . . . . . . . . 20
Section 4.04
Appointment to fill vacancy in
office of Trustee . . . . . . . . . . . . . . . . . 20
Section 4.05
Restriction on consolidation,
merger or sale . . . . . . . . . . . . . . . . . . 20
ARTICLE FIVE - NOTEHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 5.01
Company to furnish Trustee information
as to names and addresses of
Noteholders . . . . . . . . . . . . . . . . . . . . 21
Section 5.02
(a) Trustee to preserve information
as to names and addresses of
Noteholders received by it
in capacity of paying agent . . . . . . . . . 21
(b) Trustee may destroy list of
Noteholders on certain
conditions . . . . . . . . . . . . . . . . . . 21
(c) Trustee to make information as to
names and addresses of Noteholders
available to "applicants" to mail
communications to Noteholders in
certain circumstances . . . . . . . . . . . . 21
(d) Procedure if Trustee elects not to
make information available to
applicants . . . . . . . . . . . . . . . . . . 22
(e) Company and Trustee not accountable
for disclosure of information . . . . . . . . 22
Section 5.03
(a) Annual and other reports to be filed
by Company with Trustee . . . . . . . . . . . 22
(b) Additional information and reports
to be filed with Trustee and
Securities and Exchange Commission . . . . . . 23
(c) Summaries of information and reports
to be transmitted by Company to
Noteholders . . . . . . . . . . . . . . . . . 23
(d) Annual Certificate to be furnished
to Trustee . . . . . . . . . . . . . . . . . . 23
Section 5.04
(a) Trustee to transmit annual report
to Noteholders . . . . . . . . . . . . . . . . 23
(b) Trustee to transmit certain further
reports to Noteholders . . . . . . . . . . . . 24
(c) Copies of reports to be filed with
stock exchanges and Securities and
Exchange Commission . . . . . . . . . . . . . 25
ARTICLE SIX - REMEDIES OF THE TRUSTEE AND
NOTEHOLDERS ON EVENT OF DEFAULT
Section 6.01
(a) Events of default defined . . . . . . . . . . 25
(b) Acceleration of maturity
upon Event of Default . . . . . . . . . . . . 26
(c) Waiver of default and rescission
of declaration of maturity . . . . . . . . . . 26
(d) Restoration of former position
and rights upon curing default . . . . . . . . 27
Section 6.02
(a) Covenant of Company to pay to
Trustee whole amount due on
Notes on default in payment
of interest or principal (and
premium, if any) . . . . . . . . . . . . . . . 27
(b) Trustee may recover judgment for
whole amount due on Notes on
failure of Company to pay . . . . . . . . . . 28
(c) Billing of proof of claim by Trustee
in bankruptcy, reorganization or
receivership proceeding . . . . . . . . . . . 28
(d) Rights of action and of asserting
claims may be enforced by Trustee
without possession of Notes . . . . . . . . . 28
Section 6.03
Application of monies collected by Trustee . . . . 29
Section 6.04
Limitation on suits by holders of Notes . . . . . . 29
Section 6.05
(a) Remedies Cumulative . . . . . . . . . . . . . 30
(b) Delay or omission in exercise
of rights not waiver of default . . . . . . . 30
Section 6.06
Rights of holders of majority in
principal amount of Notes to
direct trustee and to waive defaults . . . . . . . 30
Section 6.07
Trustees to give notice of defaults
known to it, but may withhold in
certain circumstances . . . . . . . . . . . . . . . 31
Section 6.08
Requirements of an undertaking to pay
costs in certain suits under Indenture
or against Trustee . . . . . . . . . . . . . . . . 32
ARTICLE SEVEN - CONCERNING THE TRUSTEE
Section 7.01
(a) Upon Event of Default occurring and
continuing, Trustee shall exercise powers
vested in it, and use same degree of
care and skill in their exercise, as
prudent individual will use . . . . . . . . . 32
(b) Trustee not relieved from liability
for negligence or willful misconduct
except as provided in this section . . . . . . 33
(1) Prior to Event of Default and
after the curing of all Events of
Default which may have occurred
(i) Trustee not liable except for
performance of duties specifically
set forth
(ii) In absence of bad faith, Trustee
may conclusively rely on
certificates or opinions furnished
it hereunder,subject to duty to
examine the same if specifically
required to be furnished to it
(2) Trustee not liable for error of judgment made
in good faith by Responsible Officer unless
Trustee negligent
(3) Trustee not liable for action or non-action
in accordance with direction of holders
of majority in principal amount of
Notes
(4) Trustee need not expend own funds without
adequate indemnity
Section 7.02
Subject to provisions of Section 7.01:
(a) Trustee may rely on documents believed
genuine and properly signed or presented . . . 34
(b) Sufficient evidence by certain
instruments provided for . . . . . . . . . . . 34
(c) Trustee may consult with counsel and act
on advice or Opinion of Counsel . . . . . . . 34
(d) Trustee may require indemnity from
Noteholders . . . . . . . . . . . . . . . . . 34
(e) Trustee not liable for actions in good
faith believed to be authorized . . . . . . . 34
(f) Trustee not bound to investigate facts or
matters stated in certificates, etc. unless
requested in writing by Noteholders . . . . . 34
(g) Trustee may perform duties directly or
through agents or attorneys . . . . . . . . . 35
(h) Permissive rights of Trustee . . . . . . . . . 35
Section 7.03
(a) Trustee not liable for recitals in
Indenture or in Notes . . . . . . . . . . . . 35
(b) No representations by Trustee as to
validity or Indenture or of Notes . . . . . . 35
(c) Trustee not accountable for use of
Notes or proceeds . . . . . . . . . . . . . . 35
Section 7.04
Trustee, paying agent or Note
Registrar may own Notes . . . . . . . . . . . . . . 35
Section 7.05
Monies received by Trustee to be held
in Trust without interest . . . . . . . . . . . . . 36
Section 7.06
(a) Trustee entitled to compensation,
reimbursement and indemnity . . . . . . . . . 36
(b) Obligations to Trustee to be
secured by lien prior to
Notes . . . . . . . . . . . . . . . . . . . . 36
(c) Survival of Obligations . . . . . . . . . . . 36
Section 7.07
Right of Trustee to rely on certificate
of officers of Company where no other
evidence specifically prescribed . . . . . . . . . 36
Section 7.08
Trustee acquiring conflicting interest
to eliminate conflict or resign . . . . . . . . . . 37
Section 7.09
Requirements for eligibility of
trustee . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.10
(a) Resignation of Trustee and
appointment of successor . . . . . . . . . . . 37
(b) Removal of Trustee by Company
or by court on Noteholders'
application . . . . . . . . . . . . . . . . . 38
(c) Removal of Trustee by holders
of majority in principal amount
of Notes . . . . . . . . . . . . . . . . . . . 38
(d) Time when resignation or removal
of Trustee effective . . . . . . . . . . . . . 38
(e) One Trustee for each series . . . . . . . . . 39
Section 7.11
(a) Acceptance by successor Trustee . . . . . . . 39
(b) Trustee with respect to less than
all series . . . . . . . . . . . . . . . . . . 39
(c) Company to confirm Trustee's rights . . . . . 40
(d) Successor Trustee to be qualified . . . . . . 40
(e) Notice of succession . . . . . . . . . . . . . 40
Section 7.12
Successor to Trustee by merger, consolidation
of succession to business . . . . . . . . . . . . . 40
Section 7.13
Limitations on rights of Trustee as a
creditor to obtain payment of certain
claims . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE EIGHT - CONCERNING THE NOTEHOLDERS
Section 8.01
Evidence of action by Noteholders . . . . . . . . . 41
Section 8.02
Proof of execution of instruments and of
holding of Notes . . . . . . . . . . . . . . . . . 41
Section 8.03
Who may be deemed owners of Notes . . . . . . . . . 42
Section 8.04
Notes owned by Company or controlled
or controlling companies disregarded for
certain purposes . . . . . . . . . . . . . . . . . 42
Section 8.05
Instruments executed by Noteholders
bind future holders . . . . . . . . . . . . . . . . 42
ARTICLE NINE - SUPPLEMENTAL INDENTURES
Section 9.01
Purposes for which supplemental indenture
may be entered into without consent of
Noteholders . . . . . . . . . . . . . . . . . . . . 43
Section 9.02
Modification of Indenture with consent
of Noteholders . . . . . . . . . . . . . . . . . . 44
Section 9.03
Effect of supplemental indentures . . . . . . . . . 45
Section 9.04
Notes may bear notation of changes
by supplemental indentures . . . . . . . . . . . . 45
Section 9.05
Opinion of Counsel . . . . . . . . . . . . . . . . 45
ARTICLE TEN - CONSOLIDATION, MERGER AND SALE
Section 10.01
Consolidations or mergers of Company
and sales or conveyances of property
of Company permitted . . . . . . . . . . . . . . . 46
Section 10.02
(a) Rights and duties of successor company . . . . 46
(b) Appropriate changes may be made in
phraseology and form of Notes . . . . . . . . 47
(c) Company may consolidate or merge into
itself or acquire properties of other
corporations . . . . . . . . . . . . . . . . . 47
Section 10.03
Opinion of Counsel . . . . . . . . . . . . . . . . 47
ARTICLE ELEVEN - SATISFACTION AND DISCHARGE OF INDENTURE:
UNCLAIMED MONIES
Section 11.01
Defeasance and conditions to defeasance . . . . . . 47
Section 11.02
Application by Trustee of funds deposited
for payment of Notes . . . . . . . . . . . . . . . 48
Section 11.03
Repayment of monies held by paying agent . . . . . 49
Section 11.04
Repayment of monies held by Trustee . . . . . . . . 49
Section 11.05
Delivery of Officer's Certificate
and Opinion of Counsel . . . . . . . . . . . . . . 49
ARTICLE TWELVE - IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 12.01
Incorporators, Stockholders, officers and
directors of Company exempt from individual
liability . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE THIRTEEN - MISCELLANEOUS PROVISIONS
Section 13.01
Successors and assigns of Company
bound by Indenture . . . . . . . . . . . . . . . . 50
Section 13.02
Acts of board, committee or officer
of successor company valid . . . . . . . . . . . . 50
Section 13.03
Surrender of powers by Company . . . . . . . . . . 50
Section 13.04
Required notices or demands may by
served by mail . . . . . . . . . . . . . . . . . . 50
Section 13.05
Indenture and Notes to be construed
in accordance with laws of the State
of New York . . . . . . . . . . . . . . . . . . . . 51
Section 13.06
(a) Officers' Certificate and Opinion of
Counsel to be furnished upon applications
or demands by company . . . . . . . . . . . . 51
(b) Statements to be included in each
certificate or opinion with respect
to compliance with condition or covenant . . . 51
Section 13.07
Payments due on non-business days . . . . . . . . . 51
Section 13.08
Provisions required by Trust Indenture
Act of 1939 to control . . . . . . . . . . . . . . 51
Section 13.09
Indenture may be executed in counterparts . . . . . 51
Section 13.10
Separability of Indenture provisions . . . . . . . 52
Section 13.11
Assignment by Company to subsidiary . . . . . . . . 52
ACCEPTANCE OF TRUST BY TRUSTEE . . . . . . . . . . . . . . . 52
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . 52
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . 52
ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . 53
THIS INDENTURE, dated as of the ___ day of _________, 199_,
between APPALACHIAN POWER COMPANY, a corporation duly organized
and existing under the laws of the Commonwealth of Virginia
(hereinafter sometimes referred to as the "Company"), and BANKERS
TRUST COMPANY, a corporation of the State of New York, as trustee
(hereinafter sometimes referred to as the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the execution and delivery of this Indenture to
provide for the issuance of unsecured promissory notes
(hereinafter referred to as the "Notes"), in an unlimited
aggregate principal amount to be issued from time to time in one
or more series as in this Indenture provided, as registered Notes
without coupons, to be authenticated by the certificate of the
Trustee, and which will rank pari passu with all other unsecured
and unsubordinated debt of the Company;
WHEREAS, to provide the terms and conditions upon which the
Notes are to be authenticated, issued and delivered, the Company
has duly authorized the execution of this Indenture;
WHEREAS, the Notes and the certificate of authentication to
be borne by the Notes (the "Certificate of Authentication") are
to be substantially in such forms as may be approved by a Company
Order (as defined below), or set forth in any indenture
supplemental to this Indenture;
AND WHEREAS, all acts and things necessary to make the Notes
issued pursuant hereto, when executed by the Company and
authenticated and delivered by the Trustee as in this Indenture
provided, the valid, binding and legal obligations of the
Company, and to constitute these presents a valid indenture and
agreement according to its terms, have been done and performed or
will be done and performed prior to the issuance of such Notes,
and the execution of this Indenture has been and the issuance
hereunder of the Notes has been or will be prior to issuance in
all respects duly authorized, and the Company, in the exercise of
the legal right and power in it vested, executes this Indenture
and proposes to make, execute, issue and deliver the Notes;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Notes are and are to be authenticated, issued and delivered,
and in consideration of the premises, of the purchase and
acceptance of the Notes by the holders thereof and of the sum of
one dollar ($1.00) to it duly paid by the Trustee at the
execution of these presents, the receipt whereof is hereby
acknowledged, the Company covenants and agrees with the Trustee,
for the equal and proportionate benefit (subject to the
provisions of this Indenture) of the respective holders from time
to time of the Notes, without any discrimination, preference or
priority of any one Note over any other by reason of priority in
the time of issue, sale or negotiation thereof, or otherwise,
except as provided herein, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. The terms defined in this Section (except as
in this Indenture otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture,
any resolution of the Board of Directors of the Company and of
any indenture supplemental hereto shall have the respective
meanings specified in this Section. All other terms used in this
Indenture which are defined in the Trust Indenture Act of 1939,
as amended, or which are by reference in such Act defined in the
Securities Act of 1933, as amended (except as herein otherwise
expressly provided or unless the context otherwise requires),
shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date
of the execution of this instrument.
Affiliate:
The term "Affiliate" of the Company shall mean any company at
least a majority of whose outstanding voting stock shall at the
time be owned by the Company, or by one or more direct or
indirect subsidiaries of or by the Company and one or more direct
or indirect subsidiaries of the Company. For the purposes only
of this definition of the term "Affiliate", the term "voting
stock", as applied to the stock of any company, shall mean stock
of any class or classes having ordinary voting power for the
election of a majority of the directors of such company, other
than stock having such power only by reason of the occurrence of
a contingency.
Authenticating Agent:
The term "Authenticating Agent" shall mean an authenticating
agent with respect to all or any of the series of Notes, as the
case may be, appointed with respect to all or any series of the
Notes, as the case may be, by the Trustee pursuant to Section
2.10.
Board of Directors or Board:
The term "Board of Directors" or "Board" shall mean the Board of
Directors of the Company, or any duly authorized committee of
such Board.
Board Resolution:
The term "Board Resolution" shall mean a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification.
Business Day:
The term "business day", with respect to any series of Notes,
shall mean any day other than a day on which banking institutions
in the Borough of Manhattan, the City and State of New York, are
authorized or obligated by law or executive order to close.
Certificate:
The term "Certificate" shall mean a certificate signed by the
Chairman of the Board, the President, any Vice President, the
Treasurer or any Assistant Treasurer of the Company. The
Certificate need not comply with the provisions of Section 13.06.
Commission:
The term "Commission" shall mean the Securities and Exchange
Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, or if at any time after the
execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
Company:
The term "Company" shall mean 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 the Chairman, the President, any Vice
President, the Treasurer or any Assistant Treasurer, and the
Secretary or an Assistant Secretary of the Company, pursuant to
Board delegation establishing a series of Notes.
Corporate Trust Office:
The term "Corporate Trust Office" shall mean the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the
date of the execution of this Indenture is located at Four Albany
Street, New York, New York.
Default:
The term "Default" shall mean any event, act or condition which
with notice or lapse of time, or both, would constitute an Event
of Default.
Depository:
The term "Depository" shall mean, with respect to Notes of any
series, for which the Company shall determine that such Notes
will be issued as a Global Note, The Depository Trust Company,
New York, New York, another clearing agency, or any successor
registered as a clearing agency under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), or other applicable
statute or regulation, which, in each case, shall be designated
by the Company pursuant to either Section 2.01 or 2.11.
Event of Default:
The term "Event of Default" with respect to Notes of a particular
series shall mean any event specified in Section 6.01, continued
for the period of time, if any, therein designated.
Global Note:
The term "Global Note" shall mean, with respect to any series of
Notes, a Note executed by the Company and delivered by the
Trustee to the Depository or pursuant to the Depository's
instruction, all in accordance with the Indenture, which shall be
registered in the name of the Depository or its nominee.
Governmental Obligations:
The term "Governmental Obligations" shall mean securities that
are (i) direct obligations of the United States of America for
the payment of which its full faith and credit is pledged or (ii)
obligations of a person controlled or supervised by and acting as
an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in
either case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities
Act of 1933, as amended) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or
interest on any such Governmental Obligation held by such
custodian for the account of the holder of such depository
receipt; provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received
by the custodian in respect of the Governmental Obligation or the
specific payment of principal of or interest on the Governmental
Obligation evidenced by such depository receipt.
Indenture:
The term "Indenture" shall mean this instrument as originally
executed, or, if amended or supplemented as herein provided, as
so amended or supplemented.
Interest Payment Date:
The term "Interest Payment Date" when used with respect to any
installment of interest on a Note of a particular series shall
mean the date specified in such Note or in a Board Resolution,
Company Order or an indenture supplemental hereto with respect to
such series as the fixed date on which an installment of interest
with respect to Notes of that series is due and payable.
Note or Notes:
The term "Note" or "Notes" shall mean any Note or Notes, as the
case may be, authenticated and delivered under this Indenture.
Noteholder:
The term "Noteholder", "holder of Notes" or "registered holder"
shall mean the person or persons in whose name or names a
particular Note shall be registered on the books of the Company
kept for that purpose in accordance with the terms of this
Indenture.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed
by the Chairman of the Board, the President, a Vice President,
the Treasurer or an Assistant Treasurer and by the Secretary or
Assistant Secretary of the Company. Each such certificate shall
include the statements provided for in Section 13.06, if and to
the extent required by the provisions thereof.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing
signed by legal counsel, who may be an employee of or counsel for
the Company. Each such opinion shall include the statements
provided for in Section 13.06, if and to the extent required by
the provisions thereof.
Original Issue Date:
The term "Original Issue Date" shall mean for a Note, or portions
thereof, the date upon which it, or such portion, was issued by
the Company pursuant to this Indenture and authenticated by the
Trustee (other than in connection with a transfer, exchange or
substitution).
Outstanding:
The term "outstanding", when used with reference to Notes of any
series, shall, subject to the provisions of Section 8.04, mean,
as of any particular time, all Notes of that series theretofore
authenticated and delivered by the Trustee under this Indenture,
except (a) Notes theretofore canceled by the Trustee or any
paying agent, or delivered to the Trustee or any paying agent for
cancellation or which have previously been canceled; (b) Notes or
portions thereof for the payment or redemption of which monies or
Governmental Obligations in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent
(other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as
its own paying agent); provided, however, that if such Notes or
portions of such Notes are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as in
Article Three provided, or provision satisfactory to the Trustee
shall have been made for giving such notice; and (c) Notes in
lieu of or in substitution for which other Notes shall have been
authenticated and delivered pursuant to the terms of Section
2.07.
Predecessor Note:
The term "Predecessor Note" of any particular Note shall mean
every previous Note evidencing all or a portion of the same debt
as that evidenced by such particular Note; and, for the purposes
of this definition, any Note authenticated and delivered under
Section 2.07 in lieu of a lost, destroyed or stolen Note shall be
deemed to evidence the same debt as the lost, destroyed or stolen
Note.
Responsible Officer:
The term "Responsible Officer" when used with respect to the
Trustee shall mean the chairman of the board of directors, the
president, any vice president, the secretary, the treasurer, any
trust officer, any corporate trust officer or any other officer
or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the
time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.
Trustee:
The term "Trustee" shall mean Bankers Trust Company, and, subject
to the provisions of Article Seven, shall also include its
successors and assigns, and, if at any time there is more than
one person acting in such capacity hereunder, "Trustee" shall
mean each such person. The term "Trustee" as used with respect
to a particular series of the Notes shall mean the trustee with
respect to that series.
Trust Indenture Act:
The term "Trust Indenture Act", subject to the provisions of
Sections 9.01, 9.02, and 10.01, shall mean the Trust Indenture
Act of 1939, as amended and in effect at the date of execution of
this Indenture.
ARTICLE TWO
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF NOTES
SECTION 2.01. The aggregate principal amount of Notes which
may be authenticated and delivered under this Indenture is
unlimited.
The Notes may be issued from time to time in one or more
series. Each series shall be authorized by a Company Order
pursuant to Board delegation or one or more indentures
supplemental hereto, that establishes the terms of the series,
which may include the following: (i) any limitations on the
aggregate principal amount of the Notes to be issued as part of
such series; (ii) the Original Issue Date or Dates for such
series; (iii) the stated maturity of such series; (iv) the
Interest Payment Dates for such series of Notes; (v) the interest
rate or rates, or method of calculation of such rate or rates,
for such series; (vi) the terms, if any, regarding the optional
or mandatory redemption of such series, including redemption date
or dates of such series, if any, and the price or prices
applicable to such redemption (including any premium); (vii)
whether or not the Notes of such series shall be issued in whole
or in part in the form of a Global Note and, if so, the
Depositary for such Global Note; (viii) the designation of such
series; (ix) the form of the Notes of such series; (x) the
maximum annual interest rate, if any, of the Notes permitted for
such series; (xi) any other information necessary to complete the
Notes of such series; (xii) the establishment of any office or
agency pursuant to Section 4.02 hereof; (xiii) if other than
denominations of $1,000 or any integral multiple thereof, the
denominations in which the Notes of the series shall be issuable;
and (xiv) any other terms of such series not inconsistent with
this Indenture.
All Notes of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided
in or pursuant to any such Company Order or in any indentures
supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Company Order, a copy of an appropriate
record of Board action shall be certified by the Secretary or an
Assistant Secretary of the Company.
SECTION 2.02. The Notes of any series and the Trustee's
certificate of authentication to be borne by such Notes shall be
substantially of the tenor and purport as set forth in one or
more indentures supplemental hereto or as provided in a Company
Order, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which Notes of that
series may be listed or of the Depository, or to conform to
usage.
SECTION 2.03. The Notes shall be issuable as registered
Notes and in the denominations of $1,000 or any integral multiple
thereof, subject to Section 2.01(xiii). The Notes of a
particular series shall bear interest payable on the dates and at
the rate or rates specified with respect to that series. The
principal of and the interest on the Notes of any series, as well
as any premium thereon in case of redemption thereof prior to
maturity, shall be payable in the coin or currency of the United
States of America which at the time is legal tender for public
and private debt, at the office or agency of the Company
maintained for that purpose. Each Note shall be dated the date
of its authentication.
The interest installment on any Note which is payable, and
is punctually paid or duly provided for, on any Interest Payment
Date for Notes of that series shall be paid to the person in
whose name said Note (or one or more Predecessor Notes) is
registered at the close of business on the regular record date
for such interest installment, except that interest payable on
redemption or maturity shall be payable as set forth in the
Company Order or indenture supplemental hereto establishing the
terms of such series of Notes.
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment
Date for Notes of the same series (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered
holder on the relevant regular record date by virtue of having
been such holder; and such Defaulted Interest shall be paid by
the Company, at its election, as provided in clause (1) or clause
(2) below:
(1) The Company may make payment of any Defaulted
Interest on Notes to the persons in whose names such Notes
(or their respective Predecessor Notes) are registered at
the close of business on a special record date for the
payment of such Defaulted Interest, which shall be fixed in
the following manner: the Company shall notify the Trustee
in writing of the amount of Defaulted Interest proposed to
be paid on each such Note and the date of the proposed
payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of
the persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a special
record date for the payment of such Defaulted Interest which
shall not be more than 15 nor less than 10 days prior to the
date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of
such special record date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the special record date
therefor to be mailed, first class postage prepaid, to each
Noteholder at his or her address as it appears in the Note
Register (as hereinafter defined), not less than 10 days
prior to such special record date. Notice of the proposed
payment of such Defaulted Interest and the special record
date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the persons in whose
names such Notes (or their respective Predecessor Notes) are
registered on such special record date and shall be no
longer payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest on any Notes in any other lawful manner not
inconsistent with the requirements of any securities
exchange on which such Notes may be listed, and upon such
notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Unless otherwise set forth in a Company Order or one or more
indentures supplemental hereto establishing the terms of any
series of Notes pursuant to Section 2.01 hereof, the term
"regular record date" as used in this Section with respect to a
series of Notes with respect to any Interest Payment Date for
such series shall mean either the fifteenth day of the month
immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall
occur, if such Interest Payment Date is the first day of a month,
or the last day of the month immediately preceding the month in
which an Interest Payment Date established for such series
pursuant to Section 2.01 hereof shall occur, if such Interest
Payment Date is the fifteenth day of a month, whether or not such
date is a business day.
Subject to the foregoing provisions of this Section, each
Note of a series delivered under this Indenture upon transfer of
or in exchange for or in lieu of any other Note of such series
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Note.
SECTION 2.04. The Notes shall, subject to the provisions of
Section 2.06, be printed on steel engraved borders or fully or
partially engraved, or legibly typed, as the proper officer of
the Company may determine, and shall be signed on behalf of the
Company by its Chairman of the Board, its President, its
Treasurer or one of its Vice Presidents. The signature of the
Chairman of the Board, the President, Treasurer or a Vice
President upon the Notes, may be in the form of a facsimile
signature of a present or any future Chairman of the Board,
President, Treasurer or Vice President and may be imprinted or
otherwise reproduced on the Notes and for that purpose the
Company may use the facsimile signature of any person who shall
have been a Chairman of the Board, President, Treasurer or Vice
President, notwithstanding the fact that at the time the Notes
shall be authenticated and delivered or disposed of such person
shall have ceased to be the Chairman of the Board, President,
Treasurer or a Vice President of the Company, as the case may be.
Only such Notes as shall bear thereon a Certificate of
Authentication substantially in the form established for such
Notes, executed manually by an authorized signatory of the
Trustee, or by any Authenticating Agent with respect to such
Notes, shall be entitled to the benefits of this Indenture or be
valid or obligatory for any purpose. Such certificate executed
by the Trustee, or by any Authenticating Agent appointed by the
Trustee with respect to such Notes, upon any Note executed by the
Company shall be conclusive evidence that the Note so
authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this
Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes of any
series executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery
of such Notes, and the Trustee in accordance with such Company
Order shall authenticate and deliver such Notes.
In authenticating such Notes and accepting the additional
responsibilities under this Indenture in relation to such Notes,
the Trustee shall be entitled to receive, and (subject to Section
7.01) shall be fully protected in relying upon, an Opinion of
Counsel stating that the form and terms thereof have been
established in conformity with the provisions of this Indenture.
The Trustee shall not be required to authenticate such Notes
if the issue of such Notes pursuant to this Indenture will affect
the Trustee's own rights, duties or immunities under the Notes
and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
SECTION 2.05. (a) Notes of any series may be exchanged
upon presentation thereof at the office or agency of the Company
designated for such purpose, for other Notes of such series of
authorized denominations, and for a like aggregate principal
amount, upon payment of a sum sufficient to cover any tax or
other governmental charge in relation thereto, all as provided in
this Section. In respect of any Notes so surrendered for
exchange, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in exchange
therefor the Note or Notes of the same series which the
Noteholder making the exchange shall be entitled to receive,
bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its
office or agency designated for such purpose in the Borough of
Manhattan, the City and State of New York, or such other location
designated by the Company a register or registers (herein
referred to as the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall
register the Notes and the transfers of Notes as in this Article
provided and which at all reasonable times shall be open for
inspection by the Trustee. The registrar for the purpose of
registering Notes and transfer of Notes as herein provided shall
be appointed as authorized by Board Resolution or Company Order
(the "Note Registrar").
Upon surrender for transfer of any Note at the office or
agency of the Company designated for such purpose in the Borough
of Manhattan, the City and State of New York, or other location
as aforesaid, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in the name
of the transferee or transferees a new Note or Notes of the same
series as the Note presented for a like aggregate principal
amount.
All Notes presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be
accompanied (if so required by the Company or the Note Registrar)
by a written instrument or instruments of transfer, in form
satisfactory to the Company or the Note Registrar, duly executed
by the registered holder or by his duly authorized attorney in
writing.
(c) No service charge shall be made for any exchange or
registration of transfer of Notes, or issue of new Notes in case
of partial redemption of any series, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, other than exchanges
pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not
involving any transfer.
(d) The Company shall not be required (i) to issue,
exchange or register the transfer of any Notes during a period
beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of less than all the
outstanding Notes of the same series and ending at the close of
business on the day of such mailing, nor (ii) to register the
transfer of or exchange any Notes of any series or portions
thereof called for redemption. The provisions of this Section
2.05 are, with respect to any Global Note, subject to Section
2.11 hereof.
SECTION 2.06. Pending the preparation of definitive Notes
of any series, the Company may execute, and the Trustee shall
authenticate and deliver, temporary Notes (printed, lithographed
or typewritten) of any authorized denomination, and substantially
in the form of the definitive Notes in lieu of which they are
issued, but with such omissions, insertions and variations as may
be appropriate for temporary Notes, all as may be determined by
the Company. Every temporary Note of any series shall be
executed by the Company and be authenticated by the Trustee upon
the same conditions and in substantially the same manner, and
with like effect, as the definitive Notes of such series.
Without unnecessary delay the Company will execute and will
furnish definitive Notes of such series and thereupon any or all
temporary Notes of such series may be surrendered in exchange
therefor (without charge to the holders), at the office or agency
of the Company designated for the purpose, and the Trustee shall
authenticate and such office or agency shall deliver in exchange
for such temporary Notes an equal aggregate principal amount of
definitive Notes of such series, unless the Company advises the
Trustee to the effect that definitive Notes need not be executed
and furnished until further notice from the Company. Until so
exchanged, the temporary Notes of such series shall be entitled
to the same benefits under this Indenture as definitive Notes of
such series authenticated and delivered hereunder.
SECTION 2.07. In case any temporary or definitive Note
shall become mutilated or be destroyed, lost or stolen, the
Company (subject to the next succeeding sentence) shall execute,
and upon its request the Trustee (subject as aforesaid) shall
authenticate and deliver, a new Note of the same series bearing a
number not contemporaneously outstanding, in exchange and
substitution for the mutilated Note, or in lieu of and in
substitution for the Note so destroyed, lost or stolen. In every
case the applicant for a substituted Note shall furnish to the
Company and to the Trustee such security or indemnity as may be
required by them to save each of them harmless, and, in every
case of destruction, loss or theft, the applicant shall also
furnish to the Company and to the Trustee evidence to their
satisfaction of the destruction, loss or theft of the applicant's
Note and of the ownership thereof. The Trustee may authenticate
any such substituted Note and deliver the same upon the written
request or authorization of any officer of the Company. Upon the
issuance of any substituted Note, the Company may require the
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the
Trustee) connected therewith. In case any Note which has matured
or is about to mature shall become mutilated or be destroyed,
lost or stolen, the Company may, instead of issuing a substitute
Note, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated Note) if the applicant
for such payment shall furnish to the Company and to the Trustee
such security or indemnity as they may require to save them
harmless, and, in case of destruction, loss or theft, evidence to
the satisfaction of the Company and the Trustee of the
destruction, loss or theft of such Note and of the ownership
thereof.
Every Note issued pursuant to the provisions of this Section
in substitution for any Note which is mutilated, destroyed, lost
or stolen shall constitute an additional contractual obligation
of the Company, whether or not the mutilated, destroyed, lost or
stolen Note shall be found at any time, or be enforceable by
anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other
Notes of the same series duly issued hereunder. All Notes shall
be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes, and shall
preclude (to the extent lawful) any and all other rights or
remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement
or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.08. All Notes surrendered for the purpose of
payment, redemption, exchange or registration of transfer shall,
if surrendered to the Company or any paying agent, be delivered
to the Trustee for cancellation, or, if surrendered to the
Trustee, shall be canceled by it, and no Notes shall be issued in
lieu thereof except as expressly required or permitted by any of
the provisions of this Indenture. On request of the Company, the
Trustee shall deliver to the Company canceled Notes held by the
Trustee. In the absence of such request the Trustee may dispose
of canceled Notes in accordance with its standard procedures and
deliver a certificate of disposition to the Company. If the
Company shall otherwise acquire any of the Notes, however, such
acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Notes unless and until the
same are delivered to the Trustee for cancellation.
SECTION 2.09. Nothing in this Indenture or in the Notes,
express or implied, shall give or be construed to give to any
person, firm or corporation, other than the parties hereto and
the holders of the Notes, any legal or equitable right, remedy or
claim under or in respect of this Indenture, or under any
covenant, condition or provision herein contained; all such
covenants, conditions and provisions being for the sole benefit
of the parties hereto and of the holders of the Notes.
SECTION 2.10. So long as any of the Notes of any series
remain outstanding there may be an Authenticating Agent for any
or all such series of Notes which the Trustee shall have the
right to appoint. Said Authenticating Agent shall be authorized
to act on behalf of the Trustee to authenticate Notes of such
series issued upon exchange, transfer or partial redemption
thereof, and Notes so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. All
references in this Indenture to the authentication of Notes by
the Trustee shall be deemed to include authentication by an
Authenticating Agent for such series except for authentication
upon original issuance or pursuant to Section 2.07 hereof. Each
Authenticating Agent shall be acceptable to the Company and shall
be a corporation which has a combined capital and surplus, as
most recently reported or determined by it, sufficient under the
laws of any jurisdiction under which it is organized or in which
it is doing business to conduct a trust business, and which is
otherwise authorized under such laws to conduct such business and
is subject to supervision or examination by Federal or State
authorities. If at any time any Authenticating Agent shall cease
to be eligible in accordance with these provisions it shall
resign immediately.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the Company.
The Trustee may at any time (and upon request by the Company
shall) terminate the agency of any Authenticating Agent by giving
written notice of termination to such Authenticating Agent and to
the Company. Upon resignation, termination or cessation of
eligibility of any Authenticating Agent, the Trustee may appoint
an eligible successor Authenticating Agent acceptable to the
Company. Any successor Authenticating Agent, upon acceptance of
its appointment hereunder, shall become vested with all the
rights, powers and duties of its predecessor hereunder as if
originally named as an Authenticating Agent pursuant hereto.
SECTION 2.11. (a) If the Company shall establish pursuant
to Section 2.01 that the Notes of a particular series are to be
issued as a Global Note, then the Company shall execute and the
Trustee shall, in accordance with Section 2.04, authenticate and
deliver, a Global Note which (i) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount
of, all of the Outstanding Notes of such series, (ii) shall be
registered in the name of the Depository or its nominee, (iii)
shall be delivered by the Trustee to the Depository or pursuant
to the Depository's instruction and (iv) shall bear a legend
substantially to the following effect: "Except as otherwise
provided in Section 2.11 of the Indenture, this Note may be
transferred, in whole but not in part, only to another nominee of
the Depository or to a successor Depository or to a nominee of
such successor Depository."
(b) Notwithstanding the provisions of Section 2.05, the
Global Note of a series may be transferred, in whole but not in
part and in the manner provided in Section 2.05, only to another
nominee of the Depository for such series, or to a successor
Depository for such series selected or approved by the Company or
to a nominee of such successor Depository.
(c) If at any time the Depository for a series of Notes
notifies the Company that it is unwilling or unable to continue
as Depository for such series or if at any time the Depository
for such series shall no longer be registered or in good standing
under the Exchange Act, or other applicable statute or regulation
and a successor Depository for such series is not appointed by
the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, this
Section 2.11 shall no longer be applicable to the Notes of such
series and the Company will execute, and subject to Section 2.05,
the Trustee will authenticate and deliver Notes of such series in
definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the
principal amount of the Global Note of such series in exchange
for such Global Note. In addition, the Company may at any time
determine that the Notes of any series shall no longer be
represented by a Global Note and that the provisions of this
Section 2.11 shall no longer apply to the Notes of such series.
In such event the Company will execute, and subject to Section
2.05, the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate
and deliver Notes of such series in definitive registered form
without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Note
of such series in exchange for such Global Note. Upon the
exchange of the Global Note for such Notes in definitive
registered form without coupons, in authorized denominations, the
Global Note shall be canceled by the Trustee. Such Notes in
definitive registered form issued in exchange for the Global Note
pursuant to this Section 2.11(c) shall be registered in such
names and in such authorized denominations as the Depository,
pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Note Registrar. The Trustee
shall deliver such Notes to the Depository for delivery to the
persons in whose names such Notes are so registered.
ARTICLE THREE
REDEMPTION OF NOTES AND SINKING FUND PROVISIONS
SECTION 3.01. The Company may redeem the Notes of any
series issued hereunder on and after the dates and in accordance
with the terms established for such series pursuant to Section
2.01 hereof.
SECTION 3.02. (a) In case the Company shall desire to
exercise such right to redeem all or, as the case may be, a
portion of the Notes of any series in accordance with the right
reserved so to do, it shall give notice of such redemption to
holders of the Notes of such series to be redeemed by mailing,
first class postage prepaid, a notice of such redemption not less
than 30 days and not more than 60 days before the date fixed for
redemption of that series to such holders at their last addresses
as they shall appear upon the Note Register. Any notice which is
mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the registered
holder receives the notice. In any case, failure duly to give
such notice to the holder of any Note of any series designated
for redemption in whole or in part, or any defect in the notice,
shall not affect the validity of the proceedings for the
redemption of any other Notes of such series or any other series.
In the case of any redemption of Notes prior to the expiration of
any restriction on such redemption provided in the terms of such
Notes or elsewhere in this Indenture, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance
with any such restriction.
Each such notice of redemption shall specify the date fixed
for redemption and the redemption price at which Notes of that
series are to be redeemed, and shall state that payment of the
redemption price of such Notes to be redeemed will be made at the
office or agency of the Company, upon presentation and surrender
of such Notes, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, that from
and after said date interest will cease to accrue and that the
redemption is for a sinking fund, if such is the case. If less
than all the Notes of a series are to be redeemed, the notice to
the holders of Notes of that series to be redeemed in whole or in
part shall specify the particular Notes to be so redeemed. In
case any Note is to be redeemed in part only, the notice which
relates to such Note shall state the portion of the principal
amount thereof to be redeemed, and shall state that on and after
the redemption date, upon surrender of such Note, a new Note or
Notes of such series in principal amount equal to the unredeemed
portion thereof will be issued.
(b) If less than all the Notes of a series are to be
redeemed, the Company shall give the Trustee at least 35 days'
notice in advance of the date fixed for redemption (unless the
Trustee shall agree to a shorter period) as to the aggregate
principal amount of Notes of the series to be redeemed, and
thereupon the Trustee shall select, by lot or in such other
manner as it shall deem appropriate and fair in its discretion
and which may provide for the selection of a portion or portions
(equal to $1,000 or any integral multiple thereof, subject to
Section 2.01(xiii)) of the principal amount of such Notes of a
denomination larger than $1,000 (subject as aforesaid), the Notes
to be redeemed and shall thereafter promptly notify the Company
in writing of the numbers of the Notes to be redeemed, in whole
or in part.
The Company may, if and whenever it shall so elect, by
delivery of instructions signed on its behalf by its Chairman of
the Board, its President, any Vice President, or Treasurer,
instruct the Trustee or any paying agent to call all or any part
of the Notes of a particular series for redemption and to give
notice of redemption in the manner set forth in this Section,
such notice to be in the name of the Company or its own name as
the Trustee or such paying agent may deem advisable. In any case
in which notice of redemption is to be given by the Trustee or
any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such
paying agent, as the case may be, such Note Register, transfer
books or other records, or suitable copies or extracts therefrom,
sufficient to enable the Trustee or such paying agent to give any
notice by mail that may be required under the provisions of this
Section.
SECTION 3.03. (a) If the giving of notice of redemption
shall have been completed as above provided, the Notes or
portions of Notes of the series to be redeemed specified in such
notice shall become due and payable on the date and at the place
stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption
and interest on such Notes or portions of Notes shall cease to
accrue on and after the date fixed for redemption, unless the
Company shall default in the payment of such redemption price and
accrued interest with respect to any such Note or portion
thereof. On presentation and surrender of such Notes on or after
the date fixed for redemption at the place of payment specified
in the notice, said Notes shall be paid and redeemed at the
applicable redemption price for such series, together with
interest accrued thereon to the date fixed for redemption (but if
the date fixed for redemption is an interest payment date, the
interest installment payable on such date shall be payable to the
registered holder at the close of business on the applicable
record date pursuant to Section 2.03).
(b) Upon presentation of any Note of such series which is
to be redeemed in part only, the Company shall execute and the
Trustee shall authenticate and the office or agency where the
Note is presented shall deliver to the holder thereof, at the
expense of the Company, a new Note or Notes of the same series,
of authorized denominations in principal amount equal to the
unredeemed portion of the Note so presented.
SECTION 3.04. The provisions of Sections 3.04, 3.05 and
3.06 shall be applicable to any sinking fund for the retirement
of Notes of a series, except as otherwise specified as
contemplated by Section 2.01 for Notes of such series.
The minimum amount of any sinking fund payment provided for
by the terms of Notes of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of
such minimum amount provided for by the terms of Notes of any
series is herein referred to as an "optional sinking fund
payment". If provided for by the terms of Notes of any series,
the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 3.05. Each sinking fund payment
shall be applied to the redemption of Notes of such series as
provided for by the terms of Notes of such series.
SECTION 3.05. The Company (i) may deliver Outstanding Notes
of a series (other than any previously called for redemption) and
(ii) may apply as a credit Notes of a series which have been
redeemed either at the election of the Company pursuant to the
terms of such Notes or through the application of permitted
optional sinking fund payments pursuant to the terms of such
Notes, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Notes of such series
required to be made pursuant to the terms of such Notes as
provided for by the terms of such series; provided that such
Notes have not been previously so credited. Such Notes shall be
received and credited for such purpose by the Trustee at the
redemption price specified in such Notes for redemption through
operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 3.06. Not less than 45 days prior to each sinking
fund payment date for any series of Notes, the Company will
deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if
any, which is to be satisfied by delivering and crediting Notes
of that series pursuant to Section 3.05 and the basis for such
credit and will, together with such Officers' Certificate,
deliver to the Trustee any Notes to be so delivered. Not less
than 30 days before each such sinking fund payment date the
Trustee shall select the Notes to be redeemed upon such sinking
fund payment date in the manner specified in Section 3.02 and
cause notice of the redemption thereof to be given in the name of
and at the expense of the Company in the manner provided in
Section 3.02, except that the notice of redemption shall also
state that the Notes of such series are being redeemed by
operation of the sinking fund and the sinking fund payment date.
Such notice having been duly given, the redemption of such Notes
shall be made upon the terms and in the manner stated in Section
3.03.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
The Company covenants and agrees for each series of the
Notes as follows:
SECTION 4.01. The Company will duly and punctually pay or
cause to be paid the principal of (and premium, if any) and
interest on the Notes of that series at the time and place and in
the manner provided herein and established with respect to such
Notes.
SECTION 4.02. So long as any series of the Notes remain
outstanding, the Company agrees to maintain an office or agency
with respect to each such series, which shall be in the Borough
of Manhattan, the City and State of New York or at such other
location or locations as may be designated as provided in this
Section 4.02, where (i) Notes of that series may be presented for
payment, (ii) Notes of that series may be presented as
hereinabove authorized for registration of transfer and exchange,
and (iii) notices and demands to or upon the Company in respect
of the Notes of that series and this Indenture may be given or
served, such designation to continue with respect to such office
or agency until the Company shall, by written notice signed by
its Chairman of the Board, its President, a Vice President or its
Treasurer and delivered to the Trustee, designate some other
office or agency for such purposes or any of them. If at any
time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all
such presentations, notices and demands. The Trustee will
initially act as Paying Agent for the Notes.
SECTION 4.03. (a) If the Company shall appoint one or more
paying agents for all or any series of the Notes, other than the
Trustee, the Company will cause each such paying agent to execute
and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this
Section:
(1) that it will hold all sums held by it as such
agent for the payment of the principal of (and premium, if
any) or interest on the Notes of that series (whether such
sums have been paid to it by the Company or by any other
obligor of such Notes) in trust for the benefit of the
persons entitled thereto;
(2) that it will give the Trustee notice of any
failure by the Company (or by any other obligor of such
Notes) to make any payment of the principal of (and premium,
if any) or interest on the Notes of that series when the
same shall be due and payable;
(3) that it will, at any time during the continuance
of any failure referred to in the preceding paragraph (a)(2)
above, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such paying
agent; and
(4) that it will perform all other duties of paying
agent as set forth in this Indenture.
(b) If the Company shall act as its own paying agent with
respect to any series of the Notes, it will on or before each due
date of the principal of (and premium, if any) or interest on
Notes of that series, set aside, segregate and hold in trust for
the benefit of the persons entitled thereto a sum sufficient to
pay such principal (and premium, if any) or interest so becoming
due on Notes of that series until such sums shall be paid to such
persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of such action, or any failure (by it
or any other obligor on such Notes) to take such action.
Whenever the Company shall have one or more paying agents for any
series of Notes, it will, prior to each due date of the principal
of (and premium, if any) or interest on any Notes of that series,
deposit with the paying agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such
sum to be held in trust for the benefit of the persons entitled
to such principal, premium or interest, and (unless such paying
agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
(c) Anything in this Section to the contrary
notwithstanding, (i) the agreement to hold sums in trust as
provided in this Section is subject to the provisions of Section
11.04, and (ii) the Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for
any other purpose, pay, or direct any paying agent to pay, to the
Trustee all sums held in trust by the Company or such paying
agent, such sums to be held by the Trustee upon the same terms
and conditions as those upon which such sums were held by the
Company or such paying agent; and, upon such payment by any
paying agent to the Trustee, such paying agent shall be released
from all further liability with respect to such money.
SECTION 4.04. The Company, whenever necessary to avoid or
fill a vacancy in the office of Trustee, will appoint, in the
manner provided in Section 7.10, a Trustee, so that there shall
at all times be a Trustee hereunder.
SECTION 4.05. The Company will not, while any of the Notes
remain outstanding, consolidate with, or merge into, or merge
into itself, or sell or convey all or substantially all of its
property to any other company unless the provisions of Article
Ten hereof are complied with.
ARTICLE FIVE
NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01. The Company will furnish or cause to be
furnished to the Trustee (a) on each regular record date (as
defined in Section 2.03) a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of
each series of Notes as of such regular record date, provided,
that the Company shall not be obligated to furnish or cause to be
furnished such list at any time that the list shall not differ in
any respect from the most recent list furnished to the Trustee by
the Company and (b) at such other times as the Trustee may
request in writing within 30 days after the receipt by the
Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is
furnished; provided, however, no such list need be furnished for
any series for which the Trustee shall be the Note Registrar.
SECTION 5.02. (a) The Trustee shall preserve, in as
current a form as is reasonably practicable, all information as
to the names and addresses of the holders of Notes contained in
the most recent list furnished to it as provided in Section 5.01
and as to the names and addresses of holders of Notes received by
the Trustee in its capacity as Note Registrar (if acting in such
capacity).
(b) The Trustee may destroy any list furnished to it as
provided in Section 5.01 upon receipt of a new list so furnished.
(c) In case three or more holders of Notes of a series
(hereinafter referred to as "applicants") apply in writing to the
Trustee, and furnish to the Trustee reasonable proof that each
such applicant has owned a Note for a period of at least six
months preceding the date of such application, and such
application states that the applicants desire to communicate with
other holders of Notes of such series or holders of all Notes
with respect to their rights under this Indenture or under such
Notes, and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the
Trustee shall, within five business days after the receipt of
such application, at its election, either:
(1) afford to such applicants access to the
information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this
Section 5.02; or
(2) inform such applicants as to the approximate
number of holders of Notes of such series or of all Notes,
as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee, in
accordance with the provisions of subsection (a) of this
Section 5.02, and as to the approximate cost of mailing to
such Noteholders the form of proxy or other communication,
if any, specified in such application.
(d) If the Trustee shall elect not to afford such
applicants access to such information, the Trustee shall, upon
the written request of such applicants, mail to each holder of
such series or of all Notes, as the case may be, whose name and
address appears in the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of
this Section 5.02, a copy of the form of proxy or other
communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file
with the Securities and Exchange Commission (the "Commission"),
together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the holders of
Notes of such series or of all Notes, as the case may be, or
would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission,
after opportunity for a hearing upon the objections specified in
the written statement so filed, shall enter an order refusing to
sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all
such Noteholders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise, the Trustee
shall be relieved of any obligation or duty to such applicants
respecting their application.
(e) Each and every holder of the Notes, by receiving and
holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any paying agent nor any
Note Registrar shall be held accountable by reason of the
disclosure of any such information as to the names and addresses
of the holders of Notes in accordance with the provisions of
subsection (c) of this Section, regardless of the source from
which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material
pursuant to a request made under said subsection (c).
SECTION 5.03. (a) The Company covenants and agrees to file
with the Trustee, within 30 days after the Company is required to
file the same with the Commission, a copy of the annual reports
and of the information, documents and other reports (or a copy of
such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the
Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the
Trustee and the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the
Exchange Act, in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to
time in such rules and regulations.
(b) The Company covenants and agrees to file with the
Trustee and the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants
provided for in this Indenture as may be required from time to
time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail,
first class postage prepaid, or reputable over-night delivery
service which provides for evidence of receipt, to the
Noteholders, as their names and addresses appear upon the Note
Register, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to subsections (a)
and (b) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
(d) The Company covenants and agrees to furnish to the
Trustee, on or before May 15 in each calendar year in which any
of the Notes are outstanding, or on or before such other day in
each calendar year as the Company and the Trustee may from time
to time agree upon, a certificate from the principal executive
officer, principal financial officer or principal accounting
officer of the Company as to his or her knowledge of the
Company's compliance with all conditions and covenants under this
Indenture. For purposes of this subsection (d), such compliance
shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
SECTION 5.04. (a) On or before July 15 in each year in
which any of the Notes are outstanding, the Trustee shall
transmit by mail, first class postage prepaid, to the
Noteholders, as their names and addresses appear upon the Note
Register, a brief report dated as of the preceding May 15, with
respect to any of the following events which may have occurred
within the previous twelve months (but if no such event has
occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 7.09,
and its qualifications under Section 7.08;
(2) the creation of or any material change to a
relationship specified in paragraphs (1) through (10) of
Subsection 310 of the Trust Indenture Act;
(3) the character and amount of any advances (and if
the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as
such) which remain unpaid on the date of such report, and
for the reimbursement of which it claims or may claim a lien
or charge, prior to that of the Notes, on any property or
funds held or collected by it as Trustee if such advances so
remaining unpaid aggregate more than 1/2 of 1% of the
principal amount of the Notes outstanding on the date of
such report;
(4) any change to the amount, interest rate, and
maturity date of all other indebtedness owing by the
Company, or by any other obligor on the Notes, to the
Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as
collateral security therefor, except any indebtedness based
upon a creditor relationship arising in any manner described
in Section 7.13;
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the
date of such report;
(6) any release, or release and substitution, of
property subject to the lien of this Indenture (and the
consideration thereof, if any) which it has not previously
reported;
(7) any additional issue of Notes which the Trustee
has not previously reported; and
(8) any action taken by the Trustee in the performance
of its duties under this Indenture which it has not
previously reported and which in its opinion materially
affects the Notes or the Notes of any series, except any
action in respect of a default, notice of which has been or
is to be withheld by it in accordance with the provisions of
Section 6.07.
(b) The Trustee shall transmit by mail, first class postage
prepaid, to the Noteholders, as their names and addresses appear
upon the Note Register, a brief report with respect to the
character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof)
made by the Trustee as such since the date of the last report
transmitted pursuant to the provisions of subsection (a) of this
Section (or if no such report has yet been so transmitted, since
the date of execution of this Indenture), for the reimbursement
of which it claims or may claim a lien or charge prior to that of
the Notes of any series on property or funds held or collected by
it as Trustee, and which it has not previously reported pursuant
to this subsection if such advances remaining unpaid at any time
aggregate more than 10% of the principal amount of Notes of such
series outstanding at such time, such report to be transmitted
within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Noteholders, be filed by the Trustee with the
Company, with each stock exchange upon which any Notes are listed
(if so listed) and also with the Commission. The Company agrees
to notify the Trustee when any Notes become listed on any stock
exchange.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. (a) Whenever used herein with respect to
Notes of a particular series, "Event of Default" means any one or
more of the following events which has occurred and is
continuing:
(1) default in the payment of any installment of
interest upon any of the Notes of that series, as and when
the same shall become due and payable, and continuance of
such default for a period of 30 days;
(2) default in the payment of the principal of (or
premium, if any, on) any of the Notes of that series as and
when the same shall become due and payable whether at
maturity, upon redemption, by declaration or otherwise;
(3) default in the payment of any sinking fund
obligation with respect to any of the Notes of that series
established with respect to that series, and continuance of
such default for a period of 30 days;
(4) failure on the part of the Company duly to observe
or perform any other of the covenants or agreements on the
part of the Company with respect to that series contained in
such Notes or otherwise established with respect to that
series of Notes pursuant to Section 2.01 hereof or contained
in this Indenture (other than a covenant or agreement which
has been expressly included in this Indenture solely for the
benefit of one or more series of Notes other than such
series) for a period of 90 days after the date on which
written notice of such failure, requiring the same to be
remedied and stating that such notice is a "Notice of
Default" hereunder, shall have been given to the Company by
the Trustee, by registered or certified mail, or to the
Company and the Trustee by the holders of at least 25% in
principal amount of the Notes of that series at the time
outstanding;
(5) a decree or order by a court having jurisdiction
in the premises shall have been entered adjudging the
Company as bankrupt or insolvent, or approving as properly
filed a petition seeking liquidation or reorganization of
the Company under the Federal Bankruptcy Code or any other
similar applicable Federal or State law, and such decree or
order shall have continued unvacated and unstayed for a
period of 90 consecutive days; or an involuntary case shall
be commenced under such Code in respect of the Company and
shall continue undismissed for a period of 90 consecutive
days or an order for relief in such case shall have been
entered; or a decree or order of a court having jurisdiction
in the premises shall have been entered for the appointment
on the ground of insolvency or bankruptcy of a receiver or
custodian or liquidator or trustee or assignee in bankruptcy
or insolvency of the Company or of its property, or for the
winding up or liquidation of its affairs, and such decree or
order shall have remained in force unvacated and unstayed
for a period of 90 consecutive days;
(6) the Company shall institute proceedings to be
adjudicated a voluntary bankrupt, or shall consent to the
filing of a bankruptcy proceeding against it, or shall file
a petition or answer or consent seeking liquidation or
reorganization under the Federal Bankruptcy Code or any
other similar applicable Federal or State law, or shall
consent to the filing of any such petition, or shall consent
to the appointment on the ground of insolvency or bankruptcy
of a receiver or custodian or liquidator or trustee or
assignee in bankruptcy or insolvency of it or of its
property, or shall make an assignment for the benefit of
creditors; or
(7) the occurrence of any other Event of Default with
respect to Notes of such series, as contemplated by Section
2.01 hereof.
(b) In each and every such case, unless the principal of
all the Notes of that series shall have already become due and
payable, either the Trustee or the holders of not less than 25%
in aggregate principal amount of the Notes of that series then
outstanding hereunder, by notice in writing to the Company (and
to the Trustee if given by such Noteholders), may declare the
principal of all the Notes of that series to be due and payable
immediately, and upon any such declaration the same shall become
and shall be immediately due and payable, anything contained in
this Indenture or in the Notes of that series or established with
respect to that series pursuant to Section 2.01 hereof to the
contrary notwithstanding.
(c) Section 6.01(b), however, is subject to the condition
that if, at any time after the principal of the Notes of that
series shall have been so declared due and payable, and before
any judgment or decree for the payment of the monies due shall
have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon all
the Notes of that series and the principal of (and premium, if
any, on) any and all Notes of that series which shall have become
due otherwise than by acceleration (with interest upon such
principal and premium, if any, and, to the extent that such
payment is enforceable under applicable law, upon overdue
installments of interest, at the rate per annum expressed in the
Notes of that series to the date of such payment or deposit) and
the amount payable to the Trustee under Section 7.06, and any and
all defaults under the Indenture, other than the nonpayment of
principal on Notes of that series which shall not have become due
by their terms, shall have been remedied or waived as provided in
Section 6.06, then and in every such case the holders of a
majority in aggregate principal amount of the Notes of that
series then outstanding, by written notice to the Company and to
the Trustee, may rescind and annul such declaration and its
consequences with respect to that series of Notes; but no such
rescission and annulment shall extend to or shall affect any
subsequent default, or shall impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any
right with respect to Notes of that series under this Indenture
and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason
or shall have been determined adversely to the Trustee, then and
in every such case the Company and the Trustee shall be restored
respectively to their former positions and rights hereunder, and
all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceedings had been taken.
SECTION 6.02. (a) The Company covenants that (1) in case
default shall be made in the payment of any installment of
interest on any of the Notes of a series, or any payment required
by any sinking or analogous fund established with respect to that
series as and when the same shall have become due and payable,
and such default shall have continued for a period of 30 days, or
(2) in case default shall be made in the payment of the principal
of (or premium, if any, on) any of the Notes of a series when the
same shall have become due and payable, whether upon maturity of
the Notes of a series or upon redemption or upon declaration or
otherwise, then, upon demand of the Trustee, the Company will pay
to the Trustee, for the benefit of the holders of the Notes of
that series, the whole amount that then shall have become due and
payable on all such Notes for principal (and premium, if any) or
interest, or both, as the case may be, with interest upon the
overdue principal (and premium, if any) and (to the extent that
payment of such interest is enforceable under applicable law and
without duplication of any other amounts paid by the Company in
respect thereof) upon overdue installments of interest at the
rate per annum expressed in the Notes of that series; and, in
addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, and the amount
payable to the Trustee under Section 7.06.
(b) In case the Company shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to
institute any action or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or
other obligor upon the Notes of that series and collect in the
manner provided by law out of the property of the Company or
other obligor upon the Notes of that series wherever situated the
monies adjudged or decreed to be payable.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement,
composition or other judicial proceedings affecting the Company,
any other obligor on such Notes, or the creditors or property of
either, the Trustee shall have power to intervene in such
proceedings and take any action therein that may be permitted by
the court and shall (except as may be otherwise provided by law)
be entitled to file such proofs of claim and other papers and
documents as may be necessary or advisable in order to have the
claims of the Trustee and of the holders of Notes of such series
allowed for the entire amount due and payable by the Company or
such other obligor under the Indenture at the date of institution
of such proceedings and for any additional amount which may
become due and payable by the Company or such other obligor after
such date, and to collect and receive any monies or other
property payable or deliverable on any such claim, and to
distribute the same after the deduction of the amount payable to
the Trustee under Section 7.06; and any receiver, assignee or
trustee in bankruptcy or reorganization is hereby authorized by
each of the holders of Notes of such series to make such payments
to the Trustee, and, in the event that the Trustee shall consent
to the making of such payments directly to such Noteholders, to
pay to the Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to
Notes of that series, may be enforced by the Trustee without the
possession of any of such Notes, or the production thereof at any
trial or other proceeding relative thereto, and any such suit or
proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment
shall, after provision for payment to the Trustee of any amounts
due under Section 7.06, be for the ratable benefit of the holders
of the Notes of such series.
In case of an Event of Default hereunder, the Trustee may in
its discretion proceed to protect and enforce the rights vested
in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce
any of such rights, either at law or in equity or in bankruptcy
or otherwise, whether for the specific enforcement of any
covenant or agreement contained in the Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce
any other legal or equitable right vested in the Trustee by this
Indenture or by law.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf
of any Noteholder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes of that series or
the rights of any holder thereof or to authorize the Trustee to
vote in respect of the claim of any Noteholder in any such
proceeding.
SECTION 6.03. Any monies collected by the Trustee pursuant
to Section 6.02 with respect to a particular series of Notes
shall be applied in the order following, at the date or dates
fixed by the Trustee and, in case of the distribution of such
monies on account of principal (or premium, if any) or interest,
upon presentation of the several Notes of that series, and
stamping thereon the payment, if only partially paid, and upon
surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of
collection and of all amounts payable to the Trustee under
Section 7.06;
SECOND: To the payment of the amounts then due and
unpaid upon Notes of such series for principal (and premium,
if any) and interest, in respect of which or for the benefit
of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts
due and payable on such Notes for principal (and premium, if
any) and interest, respectively; and
THIRD: To the Company.
SECTION 6.04. No holder of any Note of any series shall
have any right by virtue or by availing of any provision of this
Indenture to institute any suit, action or proceeding in equity
or at law upon or under or with respect to this Indenture or for
the appointment of a receiver or trustee, or for any other remedy
hereunder, unless such holder previously shall have given to the
Trustee written notice of an Event of Default and of the
continuance thereof with respect to Notes of such series
specifying such Event of Default, as hereinbefore provided, and
unless also the holders of not less than 25% in aggregate
principal amount of the Notes of such series then outstanding
shall have made written request upon the Trustee to institute
such action, suit or proceeding in its own name as trustee
hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee
for 60 days after its receipt of such notice, request and offer
of indemnity, shall have failed to institute any such action,
suit or proceeding; it being understood and intended, and being
expressly covenanted by the taker and holder of every Note of
such series with every other such taker and holder and the
Trustee, that no one or more holders of Notes of such series
shall have any right in any manner whatsoever by virtue or by
availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such Notes,
or to obtain or seek to obtain priority over or preference to any
other such holder, or to enforce any right under this Indenture,
except in the manner herein provided and for the equal, ratable
and common benefit of all holders of Notes of such series. For
the protection and enforcement of the provisions of this Section,
each and every Noteholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
Notwithstanding any other provisions of this Indenture,
however, the right of any holder of any Note to receive payment
of the principal of (and premium, if any) and interest on such
Note, as therein provided, on or after the respective due dates
expressed in such Note (or in the case of redemption, on the
redemption date), or to institute suit for the enforcement of any
such payment on or after such respective dates or redemption
date, shall not be impaired or affected without the consent of
such holder.
SECTION 6.05. (a) All powers and remedies given by this
Article to the Trustee or to the Noteholders shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any
others thereof or of any other powers and remedies available to
the Trustee or the holders of the Notes, by judicial proceedings
or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or otherwise
established with respect to such Notes.
(b) No delay or omission of the Trustee or of any holder of
any of the Notes to exercise any right or power accruing upon any
Event of Default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and,
subject to the provisions of Section 6.04, every power and remedy
given by this Article or by law to the Trustee or to the
Noteholders may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Noteholders.
SECTION 6.06. The holders of a majority in aggregate
principal amount of the Notes of any series at the time
outstanding, determined in accordance with Section 8.04, shall
have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with
respect to such series; provided, however, that such direction
shall not be in conflict with any rule of law or with this
Indenture or unduly prejudicial to the rights of holders of Notes
of any other series at the time outstanding determined in
accordance with Section 8.04 not parties thereto. Subject to the
provisions of Section 7.01, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee,
determine that the proceeding so directed would involve the
Trustee in personal liability. The holders of a majority in
aggregate principal amount of the Notes of any series at the time
outstanding affected thereby, determined in accordance with
Section 8.04, may on behalf of the holders of all of the Notes of
such series waive any past default in the performance of any of
the covenants contained herein or established pursuant to Section
2.01 with respect to such series and its consequences, except a
default in the payment of the principal of, or premium, if any,
or interest on, any of the Notes of that series as and when the
same shall become due by the terms of such Notes otherwise than
by acceleration (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and
principal otherwise than by acceleration and any premium has been
deposited with the Trustee (in accordance with Section 6.01(c)))
or a call for redemption of Notes of that series. Upon any such
waiver, the default covered thereby shall be deemed to be cured
for all purposes of this Indenture and the Company, the Trustee
and the holders of the Notes of such series shall be restored to
their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
SECTION 6.07. The Trustee shall, within 90 days after the
occurrence of a default with respect to a particular series,
transmit by mail, first class postage prepaid, to the holders of
Notes of that series, as their names and addresses appear upon
the Note Register, notice of all defaults with respect to that
series known to the Trustee, unless such defaults shall have been
cured or waived before the giving of such notice (the term
"defaults" for the purposes of this Section being hereby defined
to be the events specified in subsections (1), (2), (3), (4),
(5), (6) and (7) of Section 6.01(a), not including any periods of
grace provided for therein and irrespective of the giving of
notice provided for by subsection (4) of Section 6.01(a));
provided, that, except in the case of default in the payment of
the principal of (or premium, if any) or interest on any of the
Notes of that series or in the payment of any sinking or
analogous fund installment established with respect to that
series, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive
committee, or a trust committee of directors and/or Responsible
Officers, of the Trustee in good faith determine that the
withholding of such notice is in the interests of the holders of
Notes of that series; provided further, that in the case of any
default of the character specified in Section 6.01(a)(4) with
respect to Notes of such series no such notice to the holders of
the Notes of that series shall be given until at least 30 days
after the occurrence thereof.
The Trustee shall not be deemed to have knowledge of any
default, except (i) a default under subsection (a)(1), (a)(2) or
(a)(3) of Section 6.01 as long as the Trustee is acting as paying
agent for such series of Notes or (ii) any default as to which
the Trustee shall have received written notice or a Responsible
Officer charged with the administration of this Indenture shall
have obtained written notice.
SECTION 6.08. All parties to this Indenture agree, and each
holder of any Notes by his or her acceptance thereof shall be
deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any
Noteholder, or group of Noteholders, holding more than 10% in
aggregate principal amount of the outstanding Notes of any
series, or to any suit instituted by any Noteholder for the
enforcement of the payment of the principal of (or premium, if
any) or interest on any Note of such series, on or after the
respective due dates expressed in such Note or established
pursuant to this Indenture.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. (a) The Trustee, prior to the occurrence of
an Event of Default with respect to Notes of a series and after
the curing of all Events of Default with respect to Notes of that
series which may have occurred, shall undertake to perform with
respect to Notes of such series such duties and only such duties
as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee. In case an Event of Default with respect to
Notes of a series has occurred (which has not been cured or
waived), the Trustee shall exercise with respect to Notes of that
series such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct,
except that:
(1) prior to the occurrence of an Event of Default
with respect to Notes of a series and after the curing or
waiving of all such Events of Default with respect to that
series which may have occurred:
(i) the duties and obligations of the Trustee
shall with respect to Notes of such series be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable with
respect to Notes of such series except for the
performance of such duties and obligations as are
specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of
the Trustee, the Trustee may with respect to Notes of
such series conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any
such certificates or opinions which by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to
the requirements of this Indenture;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith
in accordance with the direction of the holders of not less
than a majority in principal amount of the Notes of any
series at the time outstanding relating to the time, method
and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture with respect
to the Notes of that series; and
(4) none of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance
of any of its duties or in the exercise of any of its rights
or powers, if the Trustee reasonably believes that the
repayment of such funds or liability is not reasonably
assured to it under the terms of this Indenture or adequate
indemnity against such risk is not reasonably assured to it.
SECTION 7.02. Except as otherwise provided in Section 7.01:
(a) The Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, demand, approval,
bond, security or other paper or document believed by it (i) to
be genuine and (ii) to have been signed or presented by the
proper party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board
Resolution or an instrument signed in the name of the Company by
the Chairman of the Board, the President, any Vice President or
the Treasurer and by the Secretary or an Assistant Secretary
(unless other evidence in respect thereof is specifically
prescribed herein);
(c) The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken or suffered or omitted hereunder in good faith and
in reliance thereon;
(d) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Noteholders, pursuant
to the provisions of this Indenture, unless such Noteholders
shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities
which may be incurred therein or thereby; nothing herein
contained shall, however, relieve the Trustee of the obligation,
upon the occurrence of an Event of Default with respect to a
series of the Notes (which has not been cured or waived) to
exercise with respect to Notes of that series such of the rights
and powers vested in it by this Indenture, and to use the same
degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of
his own affairs;
(e) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred
upon it by this Indenture;
(f) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, direction, order, demand, approval, bond,
security, or other papers or documents, unless requested in
writing so to do by the holders of not less than a majority in
principal amount of the outstanding Notes of the particular
series affected thereby (determined as provided in Section 8.04);
provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to so proceeding. The
reasonable expense of every such examination shall be paid by the
Company or, if paid by the Trustee, shall be repaid by the
Company upon demand. Notwithstanding the foregoing, the Trustee,
in its direction, may make such further inquiry or investigation
into such facts or matters as it may see fit. In making any
investigation required or authorized by this subparagraph, the
Trustee shall be entitled to examine books, records and premises
of the Company, personally or by agent or attorney;
(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(h) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty.
SECTION 7.03. (a) The recitals contained herein and in the
Notes (other than the Certificate of Authentication on the Notes)
shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Notes.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Notes or of the proceeds
of such Notes, or for the use or application of any monies paid
over by the Trustee in accordance with any provision of this
Indenture or established pursuant to Section 2.01, or for the use
or application of any monies received by any paying agent other
than the Trustee.
SECTION 7.04. The Trustee or any paying agent or Note
Registrar, in its individual or any other capacity, may become
the owner or pledgee of Notes with the same rights it would have
if it were not Trustee, paying agent or Note Registrar.
SECTION 7.05. Subject to the provisions of Section 11.04,
all monies received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds
except to the extent required by law. The Trustee shall be under
no liability for interest on any monies received by it hereunder
except such as it may agree with the Company to pay thereon.
SECTION 7.06. (a) The Company covenants and agrees to pay
to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation (which shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust) for all services rendered by it in
the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of the
Trustee, and the Company will pay or reimburse the Trustee upon
its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any
of the provisions of this Indenture (including the reasonable
compensation and the reasonable expenses and disbursements of its
counsel and agents and of all persons not regularly in its
employ) except any such expense, disbursement or advance as may
arise from its negligence, willful misconduct or bad faith. The
Company also covenants to indemnify the Trustee (and its
officers, agents, directors and employees) for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence, willful misconduct or bad faith on the part of the
Trustee and arising out of or in connection with the acceptance
or administration of this trust, including the reasonable costs
and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its
powers or duties hereunder.
(b) The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness
shall be secured by a lien prior to that of the Notes upon all
property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of
particular Notes.
(c) The provisions of this Section 7.06 shall survive the
satisfaction and discharge of this Indenture or the appointment
of a successor trustee.
SECTION 7.07. Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or
omitting to take any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed)
may, in the absence of bad faith on the part of the Trustee, be
deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee and such certificate, in the
absence of bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted
to be taken by it under the provisions of this Indenture upon the
faith thereof.
SECTION 7.08. If the Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.
SECTION 7.09. There shall at all times be a Trustee with
respect to the Notes issued hereunder which shall at all times be
a corporation organized and doing business under the laws of the
United States of America or any State or Territory thereof or of
the District of Columbia, or a corporation or other person
permitted to act as trustee by the Commission, authorized under
such laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million dollars, and subject
to supervision or examination by Federal, State, Territorial, or
District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. The Company may not, nor may any person
directly or indirectly controlling, controlled by, or under
common control with the Company, serve as Trustee. In case at
any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in
Section 7.10.
SECTION 7.10. (a) The Trustee or any successor hereafter
appointed, may at any time resign with respect to the Notes of
one or more series by giving written notice thereof to the
Company and by transmitting notice of resignation by mail, first
class postage prepaid, to the Noteholders of such series, as
their names and addresses appear upon the Note Register. Upon
receiving such notice of resignation, the Company shall promptly
appoint a successor trustee with respect to Notes of such series
by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed
and have accepted appointment within 30 days after the mailing of
such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a
successor trustee with respect to Notes of such series, or any
Noteholder of that series who has been a bona fide holder of a
Note or Notes for at least six months may, subject to the
provisions of Section 6.08, on behalf of himself and all others
similarly situated, petition any such court for the appointment
of a successor trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the
provisions of Section 7.08 after written request therefor by
the Company or by any Noteholder who has been a bona fide
holder of a Note or Notes for at least six months; or
(2) The Trustee shall cease to be eligible in
accordance with the provisions of Section 7.09 and shall
fail to resign after written request therefor by the Company
or by any such Noteholder; or
(3) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of
the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee with
respect to all Notes and appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 6.08, unless the Trustee's
duty to resign is stayed as provided herein, any Noteholder who
has been a bona fide holder of a Note or Notes for at least six
months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint
a successor trustee.
(c) The holders of a majority in aggregate principal amount
of the Notes of any series at the time outstanding may at any
time remove the Trustee with respect to such series and appoint a
successor trustee.
(d) Any resignation or removal of the Trustee and
appointment of a successor trustee with respect to the Notes of a
series pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor
trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this
Section may be appointed with respect to the Notes of one or more
series or all of such series, and at any time there shall be only
one Trustee with respect to the Notes of any particular series.
SECTION 7.11. (a) In case of the appointment hereunder of
a successor trustee with respect to all Notes, every such
successor trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such
successor trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the
Company or the successor trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights, powers,
and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor trustee all property and
money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
trustee with respect to the Notes of one or more (but not all)
series, the Company, the retiring Trustee and each successor
trustee with respect to the Notes of one or more series shall
execute and deliver an indenture supplemental hereto wherein each
successor trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor
trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Notes of that or those series to
which the appointment of such successor trustee relates, (2)
shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Notes of that
or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (3)
shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same
trust, that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any act or failure to act on the
part of any other Trustee hereunder; and upon the execution and
delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the
extent provided therein, such retiring Trustee shall with respect
to the Notes of that or those series to which the appointment of
such successor trustee relates have no further responsibility for
the exercise of rights and powers or for the performance of the
duties and obligations vested in the Trustee under this
Indenture, and each such successor trustee, without any further
act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Notes of that or those series to which the appointment of
such successor trustee relates; but, on request of the Company or
any successor trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor trustee, to the extent
contemplated by such supplemental indenture, the property and
money held by such retiring Trustee hereunder with respect to the
Notes of that or those series to which the appointment of such
successor trustee relates.
(c) Upon request of any such successor trustee, the Company
shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor trustee all
such rights, powers and trusts referred to in paragraph (a) or
(b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment
unless at the time of such acceptance such successor trustee
shall be qualified and eligible under this Article.
(e) Upon acceptance of appointment by a successor trustee
as provided in this Section, the Company shall transmit notice of
the succession of such trustee hereunder by mail, first class
postage prepaid, to the Noteholders, as their names and addresses
appear upon the Note Register. If the Company fails to transmit
such notice within ten days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such
notice to be transmitted at the expense of the Company.
SECTION 7.12. Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be qualified under the provisions
of Section 7.08 and eligible under the provisions of Section
7.09, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver
the Notes so authenticated with the same effect as if such
successor Trustee had itself authenticated such Notes.
SECTION 7.13. If and when the Trustee shall become a
creditor of the Company (or any other obligor upon the Notes),
the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding collection of claims against the Company
(or any obligor upon the Notes).
ARTICLE EIGHT
CONCERNING THE NOTEHOLDERS
SECTION 8.01. Whenever in this Indenture it is provided that
the holders of a majority or specified percentage in aggregate
principal amount of the Notes of a particular series may take any
action (including the making of any demand or request, the giving
of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action the
holders of such majority or specified percentage of that series
have joined therein may be evidenced by any instrument or any
number of instruments of similar tenor executed by such holders
of Notes of that series in person or by agent or proxy appointed
in writing.
If the Company shall solicit from the Noteholders of any
series any request, demand, authorization, direction, notice,
consent, waiver or other action, the Company may, at its option,
as evidenced by an Officers' Certificate, fix in advance a record
date for such series for the determination of Noteholders
entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other action, but the Company shall
have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent,
waiver or other action may be given before or after the record
date, but only the Noteholders of record at the close of business
on the record date shall be deemed to be Noteholders for the
purposes of determining whether Noteholders of the requisite
proportion of outstanding Notes of that series have authorized or
agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that
purpose the outstanding Notes of that series shall be computed as
of the record date; provided that no such authorization,
agreement or consent by such Noteholders on the record date shall
be deemed effective unless it shall become effective pursuant to
the provisions of this Indenture not later than six months after
the record date.
SECTION 8.02. Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a Noteholder (such
proof will not require notarization) or his agent or proxy and
proof of the holding by any person of any of the Notes shall be
sufficient if made in the following manner:
(a) The fact and date of the execution by any such person
of any instrument may be proved in any reasonable manner
acceptable to the Trustee.
(b) The ownership of Notes shall be proved by the Note
Register of such Notes or by a certificate of the Note Registrar
thereof.
(c) The Trustee may require such additional proof of any
matter referred to in this Section as it shall deem necessary.
SECTION 8.03. Prior to the due presentment for registration
of transfer of any Note, the Company, the Trustee, any paying
agent and any Note Registrar may deem and treat the person in
whose name such Note shall be registered upon the books of the
Company as the absolute owner of such Note (whether or not such
Note shall be overdue and notwithstanding any notice of ownership
or writing thereon made by anyone other than the Note Registrar)
for the purpose of receiving payment of or on account of the
principal of, premium, if any, and (subject to Section 2.03)
interest on such Note and for all other purposes; and neither the
Company nor the Trustee nor any paying agent nor any Note
Registrar shall be affected by any notice to the contrary.
SECTION 8.04. In determining whether the holders of the
requisite aggregate principal amount of Notes of a particular
series have concurred in any direction, consent or waiver under
this Indenture, Notes of that series which are owned by the
Company or any other obligor on the Notes of that series or by
any person directly or indirectly controlling or controlled by or
under common control with the Company or any other obligor on the
Notes of that series shall be disregarded and deemed not to be
outstanding for the purpose of any such determination, except
that for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, consent or waiver,
only Notes of such series which the Trustee actually knows are so
owned shall be so disregarded. Notes so owned which have been
pledged in good faith may be regarded as outstanding for the
purposes of this Section, if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right so to act with
respect to such Notes and that the pledgee is not a person
directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any such
other obligor. In case of a dispute as to such right, any
decision by the Trustee taken upon the advice of counsel shall be
full protection to the Trustee.
SECTION 8.05. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of the
taking of any action by the holders of the majority or percentage
in aggregate principal amount of the Notes of a particular series
specified in this Indenture in connection with such action, any
holder of a Note of that series which is shown by the evidence to
be included in the Notes the holders of which have consented to
such action may, by filing written notice with the Trustee, and
upon proof of holding as provided in Section 8.02, revoke such
action so far as concerns such Note. Except as aforesaid any
such action taken by the holder of any Note shall be conclusive
and binding upon such holder and upon all future holders and
owners of such Note, and of any Note issued in exchange therefor,
on registration of transfer thereof or in place thereof,
irrespective of whether or not any notation in regard thereto is
made upon such Note. Any action taken by the holders of the
majority or percentage in aggregate principal amount of the Notes
of a particular series specified in this Indenture in connection
with such action shall be conclusively binding upon the Company,
the Trustee and the holders of all the Notes of that series.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. In addition to any supplemental indenture
otherwise authorized by this Indenture, the Company, and the
Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as then in effect),
without the consent of the Noteholders, for one or more of the
following purposes:
(a) to evidence the succession of another corporation to
the Company, and the assumption by any such successor of the
covenants of the Company contained herein or otherwise
established with respect to the Notes; or
(b) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions for the
protection of the holders of the Notes of all or any series, and
to make the occurrence, or the occurrence and continuance, of a
default in any of such additional covenants, restrictions,
conditions or provisions a default or an Event of Default with
respect to such series permitting the enforcement of all or any
of the several remedies provided in this Indenture as herein set
forth; provided, however, that in respect of any such additional
covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available
to the Trustee upon such default or may limit the right of the
holders of a majority in aggregate principal amount of the Notes
of such series to waive such default; or
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which
may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture, or to make
such other provisions in regard to matters or questions arising
under this Indenture as shall not be inconsistent with the
provisions of this Indenture and shall not adversely affect the
interests of the holders of the Notes of any series; or
(d) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall
become effective only when there is no Note outstanding of any
series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision; or
(e) to establish the form or terms of Notes of any series
as permitted by Section 2.01.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, and to make any
further appropriate agreements and stipulations which may be
therein contained, but the Trustee shall not be obligated to
enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture
or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed by the Company and the Trustee
without the consent of the holders of any of the Notes at the
time outstanding, notwithstanding any of the provisions of
Section 9.02.
SECTION 9.02. With the consent (evidenced as provided in
Section 8.01) of the holders of not less than a majority in
aggregate principal amount of the Notes of each series affected
by such supplemental indenture or indentures at the time
outstanding, the Company and the Trustee may from time to time
and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect) for the purpose of adding
any provisions to or changing in any manner or eliminating any of
the provisions of this Indenture or of any supplemental indenture
or of modifying in any manner the rights of the holders of the
Notes of such series under this Indenture; provided, however,
that no such supplemental indenture shall (i) extend the fixed
maturity of any Notes of any series, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment
of interest thereon, or reduce any premium payable upon the
redemption thereof, without the consent of the holder of each
Note so affected or (ii) reduce the aforesaid percentage of
Notes, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holders of
each Note then outstanding and affected thereby.
Upon the request of the Company, and upon the filing with
the Trustee of evidence of the consent of Noteholders required to
consent thereto as aforesaid, the Trustee shall join with the
Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion but shall not be obligated
to enter into such supplemental indenture.
It shall not be necessary for the consent of the Noteholders
of any series affected thereby under this Section to approve the
particular form of any proposed supplemental indenture, but it
shall be sufficient if such consent shall approve the substance
thereof.
Promptly after the execution by the Company and the Trustee
of any supplemental indenture pursuant to the provisions of this
Section, the Trustee shall transmit by mail, first class postage
prepaid, a notice, setting forth in general terms the substance
of such supplemental indenture, to the Noteholders of all series
affected thereby as their names and addresses appear upon the
Note Register. Any failure of the Trustee to mail such notice,
or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
SECTION 9.03. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article or of
Section 10.01, this Indenture shall, with respect to such series,
be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the
Trustee, the Company and the holders of Notes of the series
affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.04. Notes of any series, affected by a
supplemental indenture, authenticated and delivered after the
execution of such supplemental indenture pursuant to the
provisions of this Article or of Section 10.01, may bear a
notation in form approved by the Company, provided such form
meets the requirements of any exchange upon which such series may
be listed, as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Notes of that
series so modified as to conform, in the opinion of the Board of
Directors, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Company,
authenticated by the Trustee and delivered in exchange for the
Notes of that series then outstanding.
SECTION 9.05. The Trustee, subject to the provisions of
Section 7.01, shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to
this Article is authorized or permitted by, and conforms to, the
terms of this Article and that it is proper for the Trustee under
the provisions of this Article to join in the execution thereof.
ARTICLE TEN
CONSOLIDATION, MERGER AND SALE
SECTION 10.01. Nothing contained in this Indenture or in any
of the Notes shall prevent any consolidation or merger of the
Company with or into any other corporation or corporations
(whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor
or successors shall be a party or parties, or shall prevent any
sale, conveyance, transfer or other disposition of all or
substantially all of the property of the Company or its successor
or successors as an entirety, or substantially as an entirety, to
any other corporation (whether or not affiliated with the Company
or its successor or successors) authorized to acquire and operate
the same; provided, however, the Company hereby covenants and
agrees that, upon any such consolidation, merger, sale,
conveyance, transfer or other disposition, the due and punctual
payment of the principal of (premium, if any) and interest on all
of the Notes of all series in accordance with the terms of each
series, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of
this Indenture with respect to each series or established with
respect to such series pursuant to Section 2.01 to be kept or
performed by the Company, shall be expressly assumed, by
supplemental indenture (which shall conform to the provisions of
the Trust Indenture Act as then in effect) satisfactory in form
to the Trustee executed and delivered to the Trustee by the
entity formed by such consolidation, or into which the Company
shall have been merged, or by the entity which shall have
acquired such property.
SECTION 10.02. (a) In case of any such consolidation,
merger, sale, conveyance, transfer or other disposition and upon
the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the due and punctual payment of the
principal of, premium, if any, and interest on all of the Notes
of all series outstanding and the due and punctual performance of
all of the covenants and conditions of this Indenture or
established with respect to each series of the Notes pursuant to
Section 2.01 to be performed by the Company with respect to each
series, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had
been named herein as the party of the first part, and thereupon
the predecessor corporation shall be relieved of all obligations
and covenants under this Indenture and the Notes. Such successor
corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company or any other
predecessor obligor on the Notes, any or all of the Notes
issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee; and, upon the order
of such successor company, instead of the Company, and subject to
all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any
Notes which previously shall have been signed and delivered by
the officers of the predecessor Company to the Trustee for
authentication, and any Notes which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee
for that purpose. All the Notes so issued shall in all respects
have the same legal rank and benefit under this Indenture as the
Notes theretofore or thereafter issued in accordance with the
terms of this Indenture as though all of such Notes had been
issued at the date of the execution hereof.
(b) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition such changes in
phraseology and form (but not in substance) may be made in the
Notes thereafter to be issued as may be appropriate.
(c) Nothing contained in this Indenture or in any of the
Notes shall prevent the Company from merging into itself or
acquiring by purchase or otherwise all or any part of the
property of any other corporation (whether or not affiliated with
the Company).
SECTION 10.03. The Trustee, subject to the provisions of
Section 7.01, may receive an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply
with the provisions of this Article.
ARTICLE ELEVEN
DEFEASANCE AND CONDITIONS TO DEFEASANCE
SECTION 11.01. Notes of a series may be defeased in
accordance with their terms and, unless the Company Order or
supplemental indenture establishing the series otherwise
provides, in accordance with this Article.
The Company at any time may terminate as to a series all of
its obligations for such series under this Indenture ("legal
defeasance option"). The Company at any time may terminate as to
a series its obligations, if any, under any restrictive covenant
which may be applicable to a particular series ("covenant
defeasance option"). However, in the case of the legal
defeasance option, the Company's obligations in Sections 2.05,
2.07, 4.02, 7.06, 7.10 and 11.04 shall survive until the Notes of
the series are no longer outstanding; thereafter the Company's
obligations in Section 7.10 shall survive.
The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance
option. If the Company exercises its legal defeasance option, a
series may not be accelerated because of an Event of Default. If
the Company exercises its covenant defeasance option, a series
may not be accelerated by reference to any restrictive covenant
which may be applicable to a particular series so defeased under
the terms of the series.
The Trustee upon request shall acknowledge in writing the
discharge of those obligations that the Company terminates.
The Company may exercise as to a series its legal defeasance
option or its covenant defeasance option if:
(1) The Company irrevocably deposits in trust with the
Trustee or another trustee money or Governmental Obligations
or a combination of money and Governmental Obligations;
(2) The Company delivers to the Trustee a certificate
from a nationally recognized firm of independent accountants
expressing their opinion that the payments of principal and
interest when due on the deposited Governmental Obligations
with out reinvestment plus any deposited money without
investment will provide cash at such times and in such
amounts as will be sufficient to pay principal and interest
when due on all the Notes of the series to maturity or
redemption, as the case may be;
(3) immediately after the deposit no Default exists;
and
(4) the Company delivers to the Trustee an Opinion of
Counsel to the effect that Holders of the series will not
recognize income, gain or loss for Federal income tax
purposes as a result of the defeasance.
In the event the Company exercises its option to effect a
covenant defeasance with respect to the Notes of any series as
described above and the Notes of that series are thereafter
declared due and payable because of the occurrence of any Event
of Default other than the Event of Default caused by failing to
comply with the covenants which are defeased, the amount of money
and securities on deposit with the Trustee would be sufficient to
pay amounts due on the Notes of that series at the time of their
stated maturity but may not be sufficient to pay amounts due on
the Notes of that series at the time of the acceleration
resulting from such Event of Default. However, the Company shall
remain liable for such payments.
SECTION 11.02. All monies or Governmental Obligations
deposited with the Trustee pursuant to Section 11.01 shall be
held in trust and shall be available for payment as due, either
directly or through any paying agent (including the Company
acting as its own paying agent), to the holders of the particular
series of Notes for the payment or redemption of which such
monies or Governmental Obligations have been deposited with the
Trustee.
SECTION 11.03. In connection with the satisfaction and
discharge of this Indenture all monies or Governmental
Obligations then held by any paying agent under the provisions of
this Indenture shall, upon demand of the Company, be paid to the
Trustee and thereupon such paying agent shall be released from
all further liability with respect to such monies or Governmental
Obligations.
SECTION 11.04. Any monies or Governmental Obligations
deposited with any paying agent or the Trustee, or then held by
the Company, in trust for payment of principal of or premium or
interest on the Notes of a particular series that are not applied
but remain unclaimed by the holders of such Notes for at least
two years after the date upon which the principal of (and
premium, if any) or interest on such Notes shall have
respectively become due and payable, upon the written request of
the Company and unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property law,
shall be repaid to the Company on May 31 of each year or (if then
held by the Company) shall be discharged from such trust; and
thereupon the paying agent and the Trustee shall be released from
all further liability with respect to such monies or Governmental
Obligations, and the holder of any of the Notes entitled to
receive such payment shall thereafter, as an unsecured general
creditor, look only to the Company for the payment thereof.
SECTION 11.05. In connection with any satisfaction and
discharge of this Indenture pursuant to this Article Eleven, the
Company shall deliver to the Trustee an Officers' Certificate and
an Opinion of Counsel to the effect that all conditions precedent
in this Indenture provided for relating to such satisfaction and
discharge have been complied with.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01. No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Note, or for
any claim based thereon or otherwise in respect thereof, shall be
had against any incorporator, stockholder, officer or director,
past, present or future as such, of the Company or of any
predecessor or successor corporation, either directly or through
the Company or any such predecessor or successor corporation,
whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations,
and that no such personal liability whatever shall attach to, or
is or shall be incurred by, the incorporators, stockholders,
officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of
the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained
in this Indenture or in any of the Notes or implied therefrom;
and that any and all such personal liability of every name and
nature, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as
such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants
or agreements contained in this Indenture or in any of the Notes
or implied therefrom, are hereby expressly waived and released as
a condition of, and as a consideration for, the execution of this
Indenture and the issuance of such Notes.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the
Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 13.02. Any act or proceeding by any provision of
this Indenture authorized or required to be done or performed by
any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the
corresponding board, committee or officer of any corporation that
shall at the time be the lawful sole successor of the Company.
SECTION 13.03. The Company by instrument in writing executed
by authority of two-thirds of its Board of Directors and
delivered to the Trustee may surrender any of the powers reserved
to the Company under this Indenture and thereupon such power so
surrendered shall terminate both as to the Company and as to any
successor corporation.
SECTION 13.04. Except as otherwise expressly provided herein
any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by
the holders of Notes to or on the Company may be given or served
by being deposited first class postage prepaid in a post office
letter box addressed (until another address is filed in writing
by the Company with the Trustee), as follows: Appalachian Power
Company, 40 Franklin Road, Roanoke, Virginia 24022, with a copy
to the Company in care of American Electric Power Service
Corporation, 1 Riverside Plaza, Columbus, Ohio 43215, Attention:
Treasurer. Any notice, election, request or demand by the
Company or any Noteholder to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if
given or made in writing at the Corporate Trust Office of the
Trustee.
SECTION 13.05. This Indenture and each Note shall be deemed
to be a contract made under the laws of the State of New York,
and for all purposes shall be construed in accordance with the
laws of said State.
SECTION 13.06. (a) Upon any application or demand by the
Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent
have been complied with, except that in the case of any such
application or demand as to which the furnishing of such
documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant in this Indenture (other than the
certificate provided pursuant to Section 5.03(d) of this
Indenture) shall include (1) a statement that the person making
such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based; (3)
a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to
whether or not, in the opinion of such person, such condition or
covenant has been complied with.
SECTION 13.07. Except as provided pursuant to Section 2.01
pursuant to a Company Order, or established in one or more
indentures supplemental to this Indenture, in any case where the
date of maturity of interest or principal of any Note or the date
of redemption of any Note shall not be a business day then
payment of interest or principal (and premium, if any) may be
made on the next succeeding business day with the same force and
effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal
date.
SECTION 13.08. If and to the extent that any provision of
this Indenture limits, qualifies or conflicts with the duties
imposed by the Trust Indenture Act, such imposed duties shall
control.
SECTION 13.09. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same
instrument.
SECTION 13.10. In case any one or more of the provisions
contained in this Indenture or in the Notes of any series shall
for any reason be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of
such Notes, but this Indenture and such Notes shall be construed
as if such invalid or illegal or unenforceable provision had
never been contained herein or therein.
SECTION 13.11. The Company will have the right at all times
to assign any of its rights or obligations under the Indenture to
a direct or indirect wholly owned subsidiary of the Company;
provided that, in the event of any such assignment, the Company
will remain liable for all such obligations. Subject to the
foregoing, this Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors
and assigns. This Indenture may not otherwise be assigned by the
parties thereto.
Bankers Trust Company, as Trustee, hereby accepts the trusts
in this Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
APPALACHIAN POWER COMPANY
By___________________
Treasurer
Attest:
By_____________________
Assistant Secretary
BANKERS TRUST COMPANY,
as Trustee
By________________________
Vice President
Attest:
By_____________________
Trust Officer
State of Ohio }
County of Franklin, } ss:
On this ____ day of __________, 199_, personally appeared
before me, a Notary Public within and for said County in the
State aforesaid, ______________ and ________________, to me known
and known to me to be respectively the Treasurer and an Assistant
Secretary of 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 __________, 199_.
[Notarial Seal]
____________________________
Notary Public, State of ________
My Commission Expires: ________
State of ________ }
County of _______ } ss:
Be it remembered, that on this ____ day of __________, 199_,
personally appeared before me the undersigned, a Notary Public
within and for said County and State, Bankers Trust Company, one
of the corporations named in and which executed the foregoing
instrument, by _____________ one of its Vice Presidents, and by
________________, one of its Trust Officers, to me known and
known by me to be such Vice President and Trust Officer,
respectively, who severally duly acknowledged the signing and
sealing of the foregoing instrument to be their free act and
voluntary deed, and the free act and voluntary deed of each of
them as such Vice President and Trust Officer, respectively, and
the free act and voluntary deed of said corporation, for the uses
and purposes therein expressed and mentioned.
In Witness Whereof, I have hereunto set my hand and notarial
seal this ____ day of __________, 199_.
[Notarial Seal]
____________________________________
Notary Public, State of ________
My Commission Expires: ________
Exhibit 4(e)
APPALACHIAN POWER COMPANY
AND
BANKERS TRUST COMPANY,
as Trustee
-----------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of ____________, 1997
TO
INDENTURE
Dated as of ____________, 1997
FIRST SUPPLEMENTAL INDENTURE, dated as of the ______ day of
__________, 1997 (the "First Supplemental Indenture"), between
APPALACHIAN POWER COMPANY, a corporation duly organized and
existing under the laws of the Commonwealth of Virginia
(hereinafter sometimes referred to as the "Company"), and BANKERS
TRUST COMPANY, a New York corporation, as trustee (hereinafter
sometimes referred to as the "Trustee") under the Indenture dated
as of ____________, 1997 between the Company and the Trustee (the
"Indenture"); all terms used and not defined herein are used as
defined in the Indenture.
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the future issuance of its Notes (the
"Notes"), said Notes to be issued from time to time in series as
might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and
delivered thereunder as in the Indenture provided; and
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its
Notes to be known as its ______% Senior Notes, Series A, Due ______
(said series being hereinafter referred to as the "Series A Senior
Notes"), the form and substance of such Series A Senior Notes and
the terms, provisions and conditions thereof to be set forth as
provided in the Indenture and this First Supplemental Indenture;
and
WHEREAS, the Company desires and has requested the Trustee to
join with it in the execution and delivery of this First
Supplemental Indenture, and all requirements necessary to make this
First Supplemental Indenture a valid instrument, in accordance with
its terms, and to make the Series A Senior Notes, when executed by
the Company and authenticated and delivered by the Trustee, the
valid obligations of the Company, have been performed and
fulfilled, and the execution and delivery hereof have been in all
respects duly authorized;
NOW THEREFORE, in consideration of the purchase and acceptance
of the Series A Senior Notes by the holders thereof, and for the
purpose of setting forth, as provided in the Indenture, the form
and substance of the Series A Senior Notes and the terms,
provisions and conditions thereof, the Company covenants and agrees
with the Trustee as follows:
ARTICLE ONE
GENERAL TERMS AND CONDITIONS OF
THE SERIES A SENIOR NOTES
SECTION 1.01. There shall be and is hereby authorized a
series of Notes designated the "______% Senior Notes, Series A, Due
______", limited in aggregate principal amount to $____________,
which amount shall be as set forth in any written order of the
Company for the authentication and delivery of Series A Senior
Notes pursuant to Section 2.01 of the Indenture. The Series A
Senior Notes shall mature and the principal shall be due and
payable together with all accrued and unpaid interest thereon on
____________, ____, and shall be issued in the form of registered
Series A Senior Notes without coupons.
SECTION 1.02. Except as provided in Section 2.11(c) of the
Indenture, the Series A Senior Notes shall be issued initially in
the form of a Global Note in an aggregate principal amount equal to
all outstanding Series A Senior Notes, to be registered in the name
of the Depository, or its nominee, and delivered by the Trustee to
the Depository for crediting to the accounts of its participants
pursuant to the instructions of the Company. The Company shall
execute a Global Note in such aggregate principal amount and
deliver the same to the Trustee for authentication and delivery as
hereinabove and in the Indenture provided. Payments on the Series
A Senior Notes issued as a Global Note will be made to the
Depository. The Depository for the Series A Senior Notes shall be
The Depository Trust Company, New York, New York.
SECTION 1.03. If, pursuant to the provisions of Section
2.11(c) of the Indenture, the Series A Senior Notes are issued in
certificated form, principal, premium, if any, and interest on the
Series A Senior Notes will be payable, the transfer of such Series
A Senior Notes will be registrable and such Series A Senior Notes
will be exchangeable for Series A Senior Notes bearing identical
terms and provisions at the office or agency of the Company only
upon surrender of such certificated Series A Senior Note and such
other documents as required by the Indenture; provided, however,
that payment of interest may be made at the option of the Company
by check mailed to the registered holder at such address as shall
appear in the Senior Note Register.
SECTION 1.04. Each Series A Senior Note shall bear interest
at the rate of ______% per annum from the original date of issuance
until the principal thereof becomes due and payable, and on any
overdue principal and (to the extent that payment of such interest
is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum, payable semi-annually in
arrears on each March 1 and September 1 (each, an "Interest Payment
Date"), commencing on ____________, 1997. Interest (other than
interest payable on redemption or maturity) shall be payable to the
person in whose name such Series A Senior Note or any predecessor
Series A Senior Note is registered at the close of business on the
regular record date for such interest installment. The regular
record date for such interest installment shall be the close of
business on the business day next preceding that Interest Payment
Date; except that if, pursuant to the provisions of Section 2.11(c)
of the Indenture, the Series A Senior Notes are no longer
represented by a Global Note, the regular record date for such
interest installment shall be the close of business on the February
15 or August 15 (whether or not a business day) next preceding the
Interest Payment Date. Interest payable on redemption or maturity
shall be payable to the person to whom the principal is paid. Any
such interest installment not punctually paid or duly provided for
shall forthwith cease to be payable to the registered holders on
such regular record date, and may be paid to the person in whose
name the Series A Senior Note (or one or more Predecessor Senior
Notes) is registered at the close of business on a special record
date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the registered holders
of the Series A Senior Notes not less than 10 days prior to such
special record date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the Series A Senior Notes may be listed, and upon
such notice as may be required by such exchange, all as more fully
provided in the Indenture.
The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months. In the
event that any date on which interest is payable on the Series A
Senior Notes is not a business day, then payment of interest
payable on such date will be made on the next succeeding day which
is a business day (and without any interest or other payment in
respect of any such delay), except that, if such business day is in
the next succeeding calendar year, such payment shall be made on
the immediately preceding business day, in each case with the same
force and effect as if made on such date.
ARTICLE TWO
REDEMPTION OF THE SERIES A SENIOR NOTES
SECTION 2.01. The Company shall have the right to redeem the
Series A Senior Notes, in whole or in part, from time to time, at
the time and redemption price set forth in the form of Senior Note
contained in Exhibit A hereto. Any redemption pursuant to this
Section will be made upon not less than 30 nor more than 60 days'
notice. If the Series A Senior Notes are only partially redeemed
pursuant to this Section, the Notes will be redeemed pro rata or by
lot or by any other method utilized by the Trustee; provided, that
if at the time of redemption, the Series A Senior Notes are
registered as a Global Note, the Depository shall determine by lot
the principal amount of such Series A Senior Notes held by each
Series A Senior Noteholder to be redeemed.
ARTICLE THREE
FORM OF SERIES A SENIOR NOTE
SECTION 3.01. The Series A Senior Notes and the Trustee's
Certificate of Authentication to be endorsed thereon are to be
substantially in the form of Exhibit A hereto.
ARTICLE FOUR
LIMITATIONS ON LIENS
So long as there remain outstanding any Series A Senior Notes,
the Company will not create or suffer to be created or to exist any
Lien on any of its properties or assets now owned or hereafter
acquired to secure any indebtedness for borrowed money, without
making effective provision whereby the Series A Senior Notes shall
be equally and ratably secured with any and all such indebtedness
for borrowed money and with any other indebtedness for borrowed
money similarly entitled to be equally and ratably secured.
However, this restriction shall not apply to or prevent the
creation or existence of:
(1) the Mortgage securing the Company's First Mortgage
Bonds or any indenture supplemental thereto subjecting any
property to the Lien thereof or confirming the Lien thereof
upon any property, whether now owned or hereafter acquired;
(2) Liens on property existing at the time of
acquisition or construction of such property (or created
within one year after completion of such acquisition or
construction), whether by purchase, merger, consolidation,
construction or otherwise, or Liens to secure the payment of
all or any part of the purchase price or construction cost
thereof, including the extension of any such Liens to repairs,
renewals, replacements, substitutions, betterments, additions,
extensions and improvements then or thereafter made on the
property subject thereto;
(3) any extensions, renewals or replacements (or
successive extensions, renewals or replacements), in whole or
in part of Liens permitted by the foregoing clauses (1) and
(2);
(4) the pledge of any bonds or other securities at any
time issued under any of the Liens permitted by clauses (1),
(2) or (3);
(5) Permitted Encumbrances; or
(6) Liens on any goods, wares, merchandise, equipment,
materials or supplies acquired for the purpose of sale or
resale in the usual course of business or for consumption in
the operation of any properties of the Company.
"Lien" means any mortgage, pledge, security interest or other
lien.
"Mortgage" means the Company's Mortgage and Deed of Trust
dated December 1, 1940, as heretofore or hereafter amended,
modified and supplemented, to Bankers Trust Company, as
Trustee, providing for the Company's First Mortgage Bonds.
"Permitted Encumbrances" means any of the following:
(1) Liens of taxes, assessments or governmental charges
for the then current year and taxes, assessments or
governmental charges not then delinquent; Liens for workers'
compensation awards and similar obligations not then
delinquent; mechanics', laborers', materialmen's and similar
Liens not then delinquent; and any of such Liens, whether or
not delinquent, whose validity is at the time being contested
in good faith by the Company;
(2) Liens and charges incidental to construction or
current operations which have not at the time been filed or
asserted or the payment of which has been adequately secured
or which are not material in amount;
(3) Liens, securing obligations neither assumed by the
Company nor on account of which it customarily pays interest
directly or indirectly, existing, either at the date hereof,
or, as to property hereafter acquired, at the time of
acquisition by the Company;
(4) Any right which any municipal or governmental body
or agency may have by virtue of any franchise, license,
contract or statute to purchase, or designate a purchaser of
or order the sale of, any property of the Company upon payment
of reasonable compensation therefor, or to terminate any
franchise, license or other rights or to regulate the property
and business of the Company;
(5) The Lien of judgments covered by insurance, or upon
appeal and covered, if necessary, by the filing of an appeal
bond, or if not so covered not exceeding at any one time
$10,000,000 in aggregate amount;
(6) Liens incidental to the conduct of the Company's
business or the ownership of its property and assets, which
were not incurred in connection with the borrowing of money or
the obtaining of credit, none of which materially interferes
with the Company's use and operation of its properties and
assets or detracts from the value thereof;
(7) Any Lien or encumbrance, moneys sufficient for the
discharge of which have been deposited in trust with the
Trustee hereunder or with the trustee or mortgagee under the
instrument evidencing such Lien or encumbrance, with
irrevocable authority to the Trustee hereunder or to such
other trustee or mortgagee to apply such moneys to the
discharge of such Lien or encumbrance to the extent required
for such purpose;
(8) Any defects of title and any terms, conditions,
agreements, covenants, exceptions and reservations expressed
or provided in deeds or other instruments, respectively, under
and by virtue of which the Company has acquired any property
or shall hereafter acquire any property, none of which
materially adversely affects the operation of the properties
of the Company;
(9) The pledge of cash or marketable securities for the
purpose of obtaining any indemnity, performance or other
similar bonds in the ordinary course of business, or as
security for the payment of taxes or other assessments being
contested in good faith, or for the purpose of obtaining a
stay or discharge in the course of any legal proceedings;
(10) The pledge or assignment in the ordinary course of
business of electricity, gas (either natural or artificial) or
steam, fuel, accounts receivable or customers' installment
paper;
(11) Rights reserved to or vested in others to take or
receive any part of the electricity, gas (either natural or
artificial), steam or any by-products thereof generated or
produced by or from any properties of the Company or with
respect to any other rights concerning electricity, gas
(either natural or artificial), fuel or steam supply,
transportation, or storage which are in use in the ordinary
course of the electricity, gas (either natural or artificial)
or steam business;
(12) Any landlord's Lien;
(13) Liens created or assumed by the Company in
connection with the issuance of debt securities, the interest
on which is excludable from the gross income of the holders of
such securities pursuant to Section 103 of the Internal
Revenue Code of 1986, or any successor section, for purposes
of financing, in whole or in part, the acquisition or
construction of property to be used by the Company, but such
Liens shall be limited to the property so financed (and the
real estate on which such property is to be located);
(14) Liens incurred pursuant to Section 7.06;
(15) Liens affixing to property of the Company at the
time a Person consolidates with or merges into, or transfers
all or substantially all of its assets to, the Company,
provided that in the opinion of the Board or Company
management (evidenced by a Board Resolution or an Officers'
Certificate delivered to the Trustee) the property acquired
pursuant to the consolidation, merger or asset transfer is
adequate security for the Lien; and
(16) Liens or encumbrances not otherwise permitted if, at
the time of incurrence and after giving effect thereto, the
aggregate of all obligations of the Company secured thereby
does not exceed 10% of Tangible Net Worth.
"Tangible Net Worth" means (i) common stockholders' equity
appearing on the most recent balance sheet of the Company
prepared in accordance with generally accepted accounting
principles less (ii) intangible assets (excluding intangible
assets recoverable through rates as prescribed by applicable
regulatory authorities).
ARTICLE FIVE
ORIGINAL ISSUE OF SERIES A SENIOR NOTES
SECTION 5.01. Series A Senior Notes in the aggregate
principal amount of $____________ may, upon execution of this First
Supplemental Indenture, or from time to time thereafter, be
executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and
deliver said Notes to or upon the written order of the Company,
signed by its Chairman of the Board, its President, any Vice
President or its Treasurer and its Secretary or Assistant
Secretary, without any further action by the Company.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
SECTION 6.01. Except as otherwise expressly provided in this
First Supplemental Indenture or in the form of Series A Senior Note
or otherwise clearly required by the context hereof or thereof, all
terms used herein or in said form of Series A Senior Note that are
defined in the Indenture shall have the several meanings
respectively assigned to them thereby.
SECTION 6.02. The Indenture, as supplemented by this First
Supplemental Indenture, is in all respects ratified and confirmed,
and this First Supplemental Indenture shall be deemed part of the
Indenture in the manner and to the extent herein and therein
provided.
SECTION 6.03. The recitals herein contained are made by the
Company and not by the Trustee, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no
representation as to the validity or sufficiency of this First
Supplemental Indenture.
SECTION 6.04. This First Supplemental Indenture may be
executed in any number of counterparts each of which shall be an
original; but such counterparts shall together constitute but one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, on the date or
dates indicated in the acknowledgments and as of the day and year
first above written.
APPALACHIAN POWER COMPANY
By: __________________________
Treasurer
Attest:
_________________________
Secretary
BANKERS TRUST COMPANY,
as Trustee
By: __________________________
Vice President
Attest:
_________________________
Trust Officer
State of Ohio }
County of Franklin, } ss:
On this ______ day of __________, 1997, personally appeared
before me, a Notary Public within and for said County in the State
aforesaid, A. A. Pena and John F. Di Lorenzo, Jr., to me known and
known to me to be respectively Treasurer and Secretary of
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
Secretary for and on behalf of said corporation and that the same
is their free act and deed as such Treasurer and Secretary,
respectively, and the free and corporate act and deed of said
corporation.
In Witness Whereof, I have hereunto set my hand and notarial
seal this ____ day of __________, 1997.
[Notarial Seal]
_____________________
Name: Mary M. Soltesz
Notary Public, State of Ohio
My Commission Expires 7-12-99
State of }
County of } ss:
Be it remembered, that on this ______ day of __________, 1997,
personally appeared before me the undersigned, a Notary Public
within and for said County and State, BANKERS TRUST COMPANY, one of
the corporations named in and which executed the foregoing
instrument, by _______________, 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 __________, 1997.
[Notarial Seal]
_____________________
Name:
Notary Public, State of ____________
My Commission Expires_______________
Exhibit 5
January 23, 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 First Mortgage Bonds (the "First
Mortgage Bonds") and First Mortgage Bonds, Designated Medium Term
Notes (the "Notes") the First Mortgage Bonds and the Notes being
collectively called the "New Bonds") and its unsecured debt
securities (the "Unsecured Notes") (the New Bonds and the
Unsecured Notes being collectively called the "Debt Securities"),
we wish to advise you as follows:
We are of the opinion that, when the steps mentioned in the
next paragraph below have been taken, the Debt Securities will be
valid and legally binding obligations of the Company, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
The steps to be taken which are referred to in the next
preceding paragraph consist of the following:
(1) Appropriate definitive action by the Board of
Directors of the Company with respect to the proposed
transactions set forth in said Registration Statement;
(2) Appropriate action by and before the State
Corporation Commission of Virginia and the Tennessee
Regulatory Authority in respect of the proposed transactions
set forth in said Registration Statement;
(3) Compliance with the Securities Act of 1933, as
amended, and with the Trust Indenture Act of 1939, as
amended;
(4) Execution and delivery of one or more proposed
Indentures Supplemental to Mortgage and Deed of Trust of the
Company dated as of December 1, 1940, as amended and
supplemented, under which the New Bonds will be issued, and
the recording and filing thereof in all required offices of
record in Virginia, West Virginia and Tennessee;
(5) Issuance and sale of the New Bonds by the Company
in accordance with the above-mentioned Mortgage and Deed of
Trust and with the governmental and corporate authorizations
aforesaid; and
(6) Issuance and sale of the Unsecured Notes by the
Company in accordance with the governmental and corporate
authorizations aforesaid.
Insofar as this opinion relates to matters governed by laws
of the Commonwealth of Virginia or the States of West Virginia or
Tennessee, this firm has consulted, and may consult further, with
local counsel in which this firm has confidence and will rely, as
to such matters, upon such opinions or advice of such counsel
which will be delivered to this firm prior to the closing of the
sale of the Debt Securities. This opinion does not purport, and
it is not intended, to cover any questions relating to property
titles, franchises or the lien of the above-mentioned Mortgage
and Deed of Trust.
We consent to the filing of this opinion as an exhibit to
said 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 27, 1996, appearing in and incorporated
by reference in the Annual Report on Form 10-K of Appalachian Power
Company for the year ended December 31, 1995 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
January 23, 1997
Exhibit 23(c)
January 23, 1997
Appalachian Power Company
40 Franklin Road, S.W.
Roanoke, Virginia 24011
Appalachian Power Company
First Mortgage Bonds and Medium Term Notes
Dear Sirs:
We hereby consent to the making of the statements in respect
to our firm under the caption "LEGAL OPINIONS" in the
Registration Statement (and in the prospectus included therein)
on Form S-3 of Appalachian Power Company that is being filed on
or about January 23, 1997 with the Securities and Exchange
Commission in regard to the issuance and sale of up to
$100,000,000 aggregate principal amount of its Debt Securities
consisting of First Mortgage Bonds (the "First Mortgage Bonds"),
First Mortgage Bonds, Designated Medium Term Notes (the "Notes"
and together with the First Mortgage Bonds, the "New Bonds")
and/or its unsecured debt securities (the "Unsecured Notes").
The New Bonds shall be issued in one or more series under the
Mortgage and Deed of Trust dated as of December 1, 1940, as
heretofore supplemented and amended and as to be further
supplemented and amended by one or more Indentures Supplemental
to Mortgage and Deed of Trust to be entered into in connection
with the New Bonds. The Unsecured Notes shall be issued in one
or more series under an Indenture to be entered into and to be
supplemented by one or more Supplemental Indentures in connection
with the Notes.
Yours very truly,
/s/ Hunton & Williams
HUNTON & WILLIAMS
Exhibit 23(d)
January 23, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Consent
Gentlemen:
We hereby consent to the use of our name and the statements
with respect to us, as appearing under the heading "Legal
Opinions" and under the heading "Experts" in the Registration
Statement on Form S-3 of Appalachian Power Company to be filed on
or about January 23, 1997 with the Securities and Exchange
Commission in regard to the issuance and sale of up to
$100,000,000 aggregate principal amount of First Mortgage Bonds
and/or its unsecured debt securities.
ROBINSON & MC ELWEE
/s/ Lynn A. Smith
Lynn A. Smith
Exhibit 23(e)
January 21, 1997
Securities and Exchange Commission
Washington, D.C. 20549
Re: Registration Statement on Form S-3 for the registration of
$75,000,000 aggregate principal amount of debt securities of
Appalachian Power Company
Gentlemen:
We hereby consent to the reference to Hunter, Smith & Davis
LLP under the caption "Experts" in the prospectus constituting a
part of the above-referenced Registration Statement.
Sincerely,
HUNTER, SMITH & DAVIS
/s/ T. Arthur Scott, Jr.
T. Arthur Scott, Jr.
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 January 31, 1996, 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 23rd day of January, 1997.
_/s/ John M. Adams, Jr.__
Assistant Secretary
APPALACHIAN POWER COMPANY
December 19, 1996
The Chairman outlined a proposed financing program
through December 31, 1997 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 $390,000,000 aggregate
principal amount of Debt Securities comprising first mortgage
bonds, notes or junior subordinated debentures, or a combination
of each, in one or more new series, each series to have a
maturity of not less than nine months and not more than 50 years
(collectively, the "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 $390,000,000.
The Chairman noted that as an alternative to the
issuance of $200,000,000 of such Debt Securities, the Company may
issue and sell its Cumulative Preferred Stock, without par value,
with an aggregate involuntary liquidation price of up to
$200,000,000, in one or more new series, with an involuntary
liquidation price of $25 or $100 per share. The Chairman
recommended that, if the officers of the Company deemed it
necessary or desirable, a cumulative sinking fund might be
established to retire annually a number of shares of such series
equal to a percentage of the number of shares of such series
initially issued at a price to be determined.
The Chairman then stated that it was proposed that the
proceeds to be received in connection with the proposed sale of
Debt Securities and cumulative preferred stock would be used to
refund directly or indirectly long-term debt, to redeem or
purchase directly or indirectly preferred stock, to repay short-
term debt at or prior to maturity, to fund the Company's
construction program or for other corporate purposes.
Thereupon, on motion duly made and seconded, it was
unanimously
RESOLVED, that the proposed financing program of
this Company, as outlined at this meeting, be, and the
same hereby is, in all respects ratified, confirmed and
approved; and further
RESOLVED, that the proper officers of this Company
be, and they hereby are, authorized to take all steps
necessary, or in their opinion desirable, to carry out
the financing program outlined at this meeting.
The Chairman informed the meeting that it had been
necessary to file applications with the Virginia State
Corporation Commission and the Tennessee Regulatory Authority for
such authority through December 31, 1997. He also reported that
it would be necessary to file one or more Registration Statements
pursuant to the applicable provisions of the Securities Act of
1933, as amended.
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 (the
"Commission") 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 and
cumulative preferred stock 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 of all or such part of the Debt
Securities and cumulative preferred stock 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 stated that, in connection with the filing
with the Securities and Exchange Commission of one or more
Registration Statements relating to the proposed issuance and
sale of up to $390,000,000 of Debt Securities, there was to be
filed with the Commission a Power of Attorney, dated December 19,
1996, 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 Securities and Exchange Commission one or
more Registration Statements for the registration
pursuant to the applicable provisions of the Securities
Act of 1933, as amended, of up to $390,000,000
aggregate principal amount of Debt Securities
comprising first mortgage bonds or notes, or a
combination of each, in one or more new series, each
series to have a maturity of not less than nine months
and not more than 50 years; and
WHEREAS, in connection with said Registration
Statement(s), there is to be filed with the Securities
and Exchange Commission a Power of Attorney, dated
December 19, 1996, 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 then stated that, in connection with the
filing with the Securities and Exchange Commission of one or more
Registration Statements relating to the proposed issuance and
sale of Cumulative Preferred Stock, without par value, with an
aggregate involuntary liquidation price of up to $200,000,000, in
one or more new series, with an involuntary liquidation price of
$25 or $100 per share, there was to be filed with the Commission
a Power of Attorney, dated December 19, 1996, 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 Securities and Exchange Commission one or
more Registration Statements for the registration
pursuant to the applicable provisions of the Securities
Act of 1933, as amended, of Cumulative Preferred Stock,
without par value, with an aggregate involuntary
liquidation price of up to $200,000,000, in one or more
new series, with an involuntary liquidation price of
$25 or $100 per share; and
WHEREAS, in connection with said Registration
Statement(s), there is to be filed with the Securities
and Exchange Commission a Power of Attorney, dated
December 19, 1996, 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 and cumulative preferred stock 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 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 and
cumulative preferred stock of this Company proposed to
be issued and sold in connection with the proposed
financing program of this Company.
The Chairman explained that, with respect to the
issuance of up to $390,000,000 of Debt Securities through one or
more agents under a medium term note program, the Company could
enter into a Selling Agency Agreement. The Chairman recommended
that the Board authorize the appropriate officers of the Company
to enter into such Selling Agency Agreement with securities
dealers 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, a Selling Agency Agreement with such
securities dealers in such form as shall be approved by
the officer executing the same, such execution to be
conclusive evidence of such approval; and further
RESOLVED, that the proper officers of the Company
be, and they hereby are, authorized to execute and
deliver such other documents and instruments, and to do
such other acts and things, that in their judgment may
be necessary or desirable, in connection with the
transactions authorized in the foregoing resolutions.
The Chairman next explained that the Company could also
enter into an Underwriting Agreement (the "Underwriting
Agreement"), under which the underwriters may purchase up to
$390,000,000 aggregate principal amount of Debt Securities having
an interest rate and maturity to be determined. The price at
which the underwriters will purchase the Debt Securities has not
yet been determined, such interest rate not to exceed 11% per
annum and the maturity thereof to be not less than nine months
nor more than 50 years. The Chairman recommended that the Board
authorize the appropriate officers of the Company to enter into
an Underwriting Agreement and determine the purchase price of the
Debt Securities, provided that the price shall not be less than
95%, including compensation to the Underwriters of 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 the
Underwriting Agreement and the Selling Agency Agreement would be
entered into in connection with the issuance of first mortgage
bonds, notes, junior subordinated debentures and the cumulative
preferred stock. He further noted that, in order to enable the
Company to perform its obligations under the Selling Agency
Agreement or the Underwriting Agreement approved at this meeting
providing for the sale of up to $390,000,000 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, such interest rate
not to exceed 11% per annum and the maturity thereof to be not
less than nine months nor more than 50 years.
Thereupon, after full and thorough discussion, it was,
on motion duly made and seconded, unanimously
RESOLVED, that the officers of this Company
(including the Chairman of the Board, the President,
any Vice President, the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary)
be, and they hereby are, authorized to create up to
$390,000,000 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 further provided that such
interest rate shall not exceed 11% per annum and such
maturity shall not be less than nine months nor more
than 50 years; 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 $390,000,000 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 Columbus, 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.
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 $390,000,000 aggregate principal
amount of its Debt Securities comprising First Mortgage Bonds,
Notes or Junior Subordinated Deferrable Interest Debentures, or a
combination of each, in one or more new series, each series to
have a maturity of not less than 9 months and not more than 50
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 19th day of December, 1996.
/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> 1
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2)
----------
------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
BANKERS TRUST COMPANY
LEGAL DEPARTMENT
130 LIBERTY STREET, 31ST FLOOR
NEW YORK, NEW YORK 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
---------------------------------
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
ROANOKE, VIRGINIA 24011
(Address of principal executive offices) (Zip Code)
------------------------------
FIRST MORTGAGE BONDS
(Title of the indenture securities)
- --------------------------------------------------------------------------------
<PAGE> 2
-2-
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising
authority to which it is subject.
NAME ADDRESS
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the Trustee, describe each
such affiliation.
None.
ITEM 3. -15. NOT APPLICABLE
ITEM 16. LIST OF EXHIBITS.
EXHIBIT 1 - Restated Organization Certificate of
Bankers Trust Company dated August 7, 1990
and Certificate of Amendment of the
Organization Certificate of Bankers Trust
Company dated June 21, 1995 Incorporated
herein by reference to Exhibit 1 filed with
Form T-1 Statement, Registration No.
33-65171, and Certificate of Amendment of
the Organization Certificate of Bankers
Trust Company dated March 20, 1996, copy
attached.
EXHIBIT 2 - Certificate of Authority to commence
business - Incorporated herein by reference
to Exhibit 2 filed with Form T-1 Statement,
Registration No. 33-21047.
EXHIBIT 3 - Authorization of the Trustee to exercise
corporate trust powers - Incorporated herein
by reference to Exhibit 2 filed with Form
T-1 Statement, Registration No. 33-21047.
EXHIBIT 4 - Existing By-Laws of Bankers Trust Company,
as amended on September 17, 1996. -
Incorporated herein by reference to Exhibit
4 filed with Form T-1 Statement,
Registration No. 33-15263.
<PAGE> 3
-3-
EXHIBIT 5 - Not applicable.
EXHIBIT 6 - Consent of Bankers Trust Company required by
Section 321(b) of the Act. - Incorporated
herein by reference to Exhibit 4 filed with
Form T-1 Statement, Registration No.
22-18864.
EXHIBIT 7 - A copy of the latest report of condition of
Bankers Trust Company dated as of September
30, 1996.
EXHIBIT 8 - Not Applicable.
EXHIBIT 9 - Not Applicable.
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the 22nd day
of January, 1997.
BANKERS TRUST COMPANY
By: /s/ Scott Thiel
------------------------------------
Scott Thiel
Assistant Vice President
<PAGE> 5
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 9/30/96 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS SEPTEMBER 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
---------------
| C400 |
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
<S> <C>
ASSETS | / / / / / / / / / / / /|
1. Cash and balances due from depository institutions (from Schedule RC-A):| / / / / / / / / / / / /|
a. Noninterest-bearing balances and currency and coin(1) ............| 0081 809,000 |1.a.
b. Interest-bearing balances(2) .....................................| 0071 4,453,000 |1.b.
2. Securities: | / / / / / / / / / / / /|
a. Held-to-maturity securities (from Schedule RC-B, column A) .......| 1754 0 |2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)......| 1773 4,133,000 |2.b.
3 Federal funds sold and securities purchased under agreements to resell
in domestic offices of the bank and of its Edge and Agreement | / / / / / / / / / / / /|
subsidiaries, and in IBFs: | / / / / / / / / / / / /|
a. Federal funds sold ................................................| 0276 5,933,000 |3.a.
b. Securities purchased under agreements to resell ...................| 0277 413,000 |3.b.
4. Loans and lease financing receivables: | / / / / / / / / / / / |
a. Loans and leases, net of unearned income
(from Schedule RC-C) RCFD 2122 27,239,000| / / / / / / / / / / / |4.a.
b. LESS: Allowance for loan and lease losses...RCFD 3123 917,000| / / / / / / / / / / / |4.b.
c. LESS: Allocated transfer risk reserve ......RCFD 3128 0| / / / / / / / / / / / |4.c.
d. Loans and leases, net of unearned income, | / / / / / / / / / / / |
allowance, and reserve (item 4.a minus 4.b and 4.c) ...............| 2125 26,322,000 |4.d.
5. Assets held in trading accounts .........................................| 3545 36,669,000 |5.
6. Premises and fixed assets (including capitalized leases) ................| 2145 870,000 |6.
7. Other real estate owned (from Schedule RC-M) ............................| 2150 215,000 |7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M) | 2130 212,000 |8.
9. Customers' liability to this bank on acceptances outstanding ............| 2155 577,000 |9.
10. Intangible assets (from Schedule RC-M) ..................................| 2143 18,000 |10.
11. Other assets (from Schedule RC-F) .......................................| 2160 8,808,000 |11.
12. Total assets (sum of items 1 through 11) ................................| 2170 89,432,000 |12.
</TABLE>
- --------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
<PAGE> 6
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 9/30/96 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
</TABLE>
<TABLE>
<CAPTION>
<S> <C>
SCHEDULE RC--CONTINUED ___________________________________________
Dollar Amounts in Thousands | / / / / Bil Mil Thou __ __|
LIABILITIES | / / / / / / / / / / / / / / / |
13. Deposits: | / / / / / / / / / / / / / / / |
a. In domestic offices (sum of totals of columns A and C from
Schedule RC-E, part I) | RCON 2200 9,391,000 |13.a.
(1) Noninterest-bearing(1) ................RCON 6631 2,734,000....| / / / / / / / / / / / / / / / / / / / / |13.a.(1)
(2) Interest-bearing .......................RCON 6636 6,657,000....| / / / / / / / / / / / / / / / / / / / / |13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(from Schedule RC-E part II) | RCFN 2200 23,385,000 |13.b.
(1) Noninterest-bearing ...................RCFN 6631 654,000 | / / / / / / / / / / / / / / / / |13.b.(1)
(2) Interest-bearing ......................RCFN 6636 22,731,000 | / / / / / / / / / / / / / / / / / / / / | 13.b.(2)
14. Federal funds purchased and securities sold under agreements to | / / / / / / / / / / / / / / / / / / / / |
repurchase in domestic offices of the bank and of its Edge and | / / / / / / / / / / / / / / / / / / / / |
Agreement subsidiaries, and in IBFs: | / / / / / / / / / / / / / / |
a. Federal funds purchased .........................................| | RCFD 0278 3,090,000 |14.a.
b. Securities sold under agreements to repurchase ..................| RCFD 0279 99,000 |14.b.
15. a. Demand notes issued to the U.S. Treasury .......................... | RCON 2840 0 |15.a.
b. Trading liabilities .............................................| RCFD 3548 18,326,000 |15.b.
16. Other borrowed money: | / / / / / / / / / / / / / / / / / / / / |
a. With original maturity of one year or less ......................| RCFD 2332 17,476,000 |16.a.
b. With original maturity of more than one year ....................| RCFD 2333 2,771,000 |16.b.
17. Mortgage indebtedness and obligations under capitalized leases .........| RCFD 2910 31,000 |17.
18. Bank's liability on acceptances executed and outstanding ............... | RCFD 2920 577,000 |18.
19. Subordinated notes and debentures ...................................... | RCFD 3200 1,228,000 |19.
20. Other liabilities (from Schedule RC-G) ................................. | RCFD 2930 8,398,000 |20.
21. Total liabilities (sum of items 13 through 20) .........................| RCFD 2948 84,772,000 |21.
| / / / / / / / / / / / / / / / / / / / / |
22. Limited-life preferred stock and related surplus ....................... | RCFD 3282 0 |22.
EQUITY CAPITAL | / / / / / / / / / / / / / / / / / / / / |
23. Perpetual preferred stock and related surplus .......................... | RCFD 3838 500,000 |23.
24. Common stock ........................................................... | RCFD 3230 1,002,000 |24.
25. Surplus (exclude all surplus related to preferred stock) ............... | RCFD 3839 527,000 |25.
26. a. Undivided profits and capital reserves ............................ | RCFD 3632 3,017,000 |26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities ................... | RCFD 8434 ( 16,000) |26.b.
27. Cumulative foreign currency translation adjustments ....................| RCFD 3284 ( 370,000) |27.
28. Total equity capital (sum of items 23 through 27) ......................| RCFD 3210 4,660,000 |28.
29. Total liabilities, limited-life preferred stock, and equity capital | / / / / / / / / / / / / / / / / / / / / |
(sum of items 21, 22, and 28) ...........................................| RCFD 3300 89,432,000 |29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1995 ...................................| RCFD 6724 N/A | M.1
</TABLE>
1- Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2- Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated
holding company (but not on the bank separately)
3- Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
4- Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5- Review of the bank's financial statements by external auditors
6- Compilation of the bank's financial statements by external auditors
7- Other audit procedures (excluding tax preparation work)
8- No external audit work
- ----------------------
(1) Including total demand deposits and noninterest-bearing time and
savings deposits.
<PAGE> 7
State of New York,
Banking Department
I, PETER M. PHILBIN, Deputy Superintendent of Bank of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY UNDER SECTION
8005 OF THE BANKING LAW," dated March 20, 1996, providing for an increase in
authorized capital stock from $1,351,666,670 consisting of 85,166,667 shares
with a par value of $10 each designated as Common Stock and 500 shares with a
par value of $1,000,000 each designated as Series Preferred Stock to
$1,501,666,670 consisting of 100,166,667 shares with a par value of $10 each
designated as Common Stock and 500 shares with a par value of $1,000,000 each
designated as Series Preferred Stock.
WITNESS, my hand and official seal of the Banking Department at the City of New
York,
this 21ST day of MARCH in the Year of our Lord one thousand nine
hundred and NINETY- SIX.
Peter M. Philbin
______________________________
Deputy Superintendent of Banks
<PAGE> 8
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Three Hundred Fifty One Million, Six Hundred
Sixty-Six Thousand, Six Hundred Seventy Dollars ($1,351,666,670),
divided into Eighty-Five Million, One Hundred Sixty-Six Thousand, Six
Hundred Sixty-Seven (85,166,667) shares with a par value of $10 each
designated as Common Stock and 500 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Five Hundred One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,501,666,670), divided into
One Hundred Million, One Hundred Sixty Six Thousand, Six Hundred
Sixty-Seven (100,166,667) shares with a par value of $10 each
designated as Common Stock and 500 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
<PAGE> 9
6. The foregoing amendment of the organization certificate was
authorized by unanimous written consent signed by the holder of all outstanding
shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
20th day of March , 1996.
James T. Byrne, Jr.
_________________________
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
_________________________
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an
Assistant Secretary of Bankers Trust Company, the corporation described in the
foregoing certificate; that she has read the foregoing certificate and knows the
contents thereof, and that the statements herein contained are true.
Lea Lahtinen
_____________________
Lea Lahtinen
Sworn to before me this 20th day
of March, 1996.
Sandra L. West
_______________________________
Notary Public
SANDRA L. WEST Counterpart filed in the
Notary Public State of New York Office of the Superintendent of
No. 31-4942101 Banks, State of New York,
Qualified in New York County This 21st day of March, 1996
Commission Expires September 19, 1996
<PAGE> 1
-----------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2) ___________
------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
BANKERS TRUST COMPANY
LEGAL DEPARTMENT
130 LIBERTY STREET, 31ST FLOOR
NEW YORK, NEW YORK 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
---------------------------------
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
ROANOKE, VIRGINIA 24011
(Address of principal executive offices) (Zip Code)
------------------------------
UNSECURED NOTES
(Title of the indenture securities)
------------------------------------------------------------------------------
<PAGE> 2
-2-
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.
<TABLE>
<CAPTION>
NAME ADDRESS
---- -------
<S> <C>
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the Trustee, describe each
such affiliation.
None.
ITEM 3.-15. NOT APPLICABLE
ITEM 16. LIST OF EXHIBITS.
EXHIBIT 1- Restated Organization Certificate of
Bankers Trust Company dated August 7, 1990
and Certificate of Amendment of the
Organization Certificate of Bankers Trust
Company dated June 21, 1995 Incorporated
herein by reference to Exhibit 1 filed with
Form T-1 Statement, Registration No.
33-65171, and Certificate of Amendment of
the Organization Certificate of Bankers
Trust Company dated March 20, 1996, copy
attached.
EXHIBIT 2- Certificate of Authority to commence
business - Incorporated herein by reference
to Exhibit 2 filed with Form T-1 Statement,
Registration No. 33-21047.
EXHIBIT 3- Authorization of the Trustee to exercise
corporate trust powers - Incorporated herein
by reference to Exhibit 2 filed with Form
T-1 Statement, Registration No. 33-21047.
EXHIBIT 4- Existing By-Laws of Bankers Trust Company, as amended
on September 17, 1996. - Incorporated herein by
reference to Exhibit 4 filed with Form T-1 Statement,
Registration No. 33-15263.
<PAGE> 3
-3-
EXHIBIT 5 - Not applicable.
EXHIBIT 6 - Consent of Bankers Trust Company
required by Section 321(b) of the Act. -
Incorporated herein by reference to Exhibit
4 filed with Form T-1 Statement,
Registration No. 22-18864.
EXHIBIT 7 - A copy of the latest report of condition of Bankers
Trust Company dated as of September 30, 1996.
EXHIBIT 8 - Not Applicable.
EXHIBIT 9 - Not Applicable.
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the 22nd day
of January, 1997.
BANKERS TRUST COMPANY
By: /s/ Scott Thiel
---------------------------------------
Scott Thiel
Assistant Vice President
<PAGE> 5
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 9/30/96 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
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CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS SEPTEMBER 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
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--------------
| C400 |
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
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ASSETS | / / / / / / / / / / / / / / / / / / |
1. Cash and balances due from depository institutions
(from Schedule RC-A): | / / / / / / / / / / / / / / / / / / |
a. Noninterest-bearing balances and currency and coin(1) ........... | 0081 809,000 |1.a.
b. Interest-bearing balances(2) .................................... | 0071 4,453,000 |1.b.
2. Securities: | / / / / / / / / / / / / / / / / / / |
a. Held-to-maturity securities (from Schedule RC-B, column A) ...... | 1754 0 |2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)..... | 1773 4,133,000 |2.b.
3 Federal funds sold and securities purchased under agreements to resell
in domestic offices of the bank and of its Edge and Agreement | / / / / / / / / / / / / / / / / / / |
subsidiaries, and in IBFs: | / / / / / / / / / / / / / / / / / / |
a. Federal funds sold .............................................. | 0276 5,933,000 |3.a.
b. Securities purchased under agreements to resell .................. | 0277 413,000 |3.b.
4. Loans and lease financing receivables: | / / / / / / / / / / / / / / / / / / |
a. Loans and leases, net of unearned income
(from Schedule RC-C) RCFD 2122 27,239,000 | / / / / / / / / / / / / / / / / / / |4.a.
b. LESS: Allowance for loan and lease losses
...................... RCFD 3123 917,000 | / / / / / / / / / / / / / / / / / / |4.b.
c. LESS: Allocated transfer risk reserve
...........................RCFD 3128 0 | / / / / / / / / / / / / / / // / / |4.c.
d. Loans and leases, net of unearned income, | / / / / / / / / / / / / / / / / / / |
allowance, and reserve (item 4.a minus 4.b and 4.c) ............... | 2125 26,322,000 |4.d.
5. Assets held in trading accounts ......................................... | 3545 36,669,000 |5.
6. Premises and fixed assets (including capitalized leases) ................ | 2145 870,000 |6.
7. Other real estate owned (from Schedule RC-M) ............................ | 2150 215,000 |7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) | 2130 212,000 |8.
9. Customers' liability to this bank on acceptances outstanding ........... | 2155 577,000 |9.
10. Intangible assets (from Schedule RC-M) .................................. | 2143 18,000 |10.
11. Other assets (from Schedule RC-F) ........................................ | 2160 8,808,000 |11.
12. Total assets (sum of items 1 through 11) ................................ | 2170 89,432,000 |12.
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(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
<PAGE> 6
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Legal Title of Bank: Bankers Trust Company Call Date: 9/30/96 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
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SCHEDULE RC--CONTINUED ___________________________________
Dollar Amounts in Thousands | / / / / / / / / Bil Mil Thou __ __|
- ------------------------------------------------------------------------- ---------------------------------------------------------
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LIABILITIES | / / / / / / / / / / / / / / / // / / / / / / |
13. Deposits: |/ / / / / / / / / / / / / / / / / / / / / / / |
a. In domestic offices (sum of
totals of columns A and C from
Schedule RC-E, part I) | RCON 2200 9,391,000 |13.a.
(1) Noninterest-bearing(1) .........
...................RCON 6631 2,734,000..... | / / / / / / / / / / / / / / / / / / / / / / / |13.a.(1)
(2) Interest-bearing ......RCON 6636 6,657,000..... | / / / / / / / / / / / / / / / / / / / / / / / |13.a.(2)
b. In foreign offices, Edge and
Agreement subsidiaries, and
IBFs (from Schedule RC-E | / / / / / / / / / / / / / / / / / / / / / / / |
part II) | RCFN 2200 23,385,000 |13.b.
(1) Noninterest-bearing ........
..............RCFN 6631 654,000 | / / / / / / / / / / / / / / / / / / / / / / /|13.b.(1)
(2) Interest-bearing ............
..............RCFN 6636 22,731,000 | / / / / / / / / / / / / / / / / / / / / / / |13.b.(2)
14. Federal funds purchased and securities
sold under agreements to repurchase in | / / / / / / / / / / / / / / / / / / / / / / / |
domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs: | / / / / / / / / / / / / / / / / / / / / / / / |
a. Federal funds purchased ......................... | RCFD 0278 3,090,000 |14.a.
b. Securities sold under agreements to repurchase .. | RCFD 0279 99,000 |14.b.
15. a. Demand notes issued to the U.S. Treasury ........ | RCON 2840 0 |15.a.
b. Trading liabilities ............................. | RCFD 3548 18,326,000 |15.b.
16. Other borrowed money: | / / / / / / / / / / / / / / / / / / / / / / |
a. With original maturity of one year or less ...... | RCFD 2332 17,476,000 |16.a.
b. With original maturity of more than one year .... | RCFD 2333 2,771,000 |16.b.
17. Mortgage indebtedness and obligations under
capitalized leases ................................... | RCFD 2910 31,000 |17.
18. Bank's liability on acceptances executed and
outstanding .......................................... | RCFD 2920 577,000 |18.
19. Subordinated notes and debentures ...................... | RCFD 3200 1,228,000 |19.
20. Other liabilities (from Schedule RC-G) ................. | RCFD 2930 8,398,000 |20.
21. Total liabilities (sum of items 13 through 20) ......... | RCFD 2948 84,772,000 |21.
| / / / / / / / / / / / / / / / / / / / / / / / |
22. Limited-life preferred stock and related surplus ....... | RCFD 3282 0 |22.
EQUITY CAPITAL | / / / / / / / / / / / / / / / / / / / / / / /|
23. Perpetual preferred stock and related surplus .......... | RCFD 3838 500,000 |23.
24. Common stock ........................................... | RCFD 3230 1,002,000 |24.
25. Surplus (exclude all surplus related to preferred
stock) ............................................... | RCFD 3839 527,000 |25.
26. a. Undivided profits and capital reserves ............ | RCFD 3632 3,017,000 |26.a.
b. Net unrealized holding gains (losses) on
available-for-sale securities ................... | RCFD 8434 ( 16,000) |26.b.
27. Cumulative foreign currency translation adjustments .... | RCFD 3284 ( 370,000) |27.
28. Total equity capital (sum of items 23 through 27) ...... | RCFD 3210 4,660,000 |28.
29. Total liabilities, limited-life preferred stock,
and equity capital (sum of items 21, 22, | / / / / / / / / / / / / / / / / / / / / / / / |
and 28) .............................................. | RCFD 3300 89,432,000 |29.
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Memorandum
To be reported only with the March Report of Condition.
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1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed
for the bank by independent external auditors as of any date during . Number
1995...................................................................... | RCFD 6724 N/A | M.1
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1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated
holding company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external
auditors (may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
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(1) Including total demand deposits and noninterest-bearing time and
savings deposits.
<PAGE> 7
State of New York,
Banking Department
I, PETER M. PHILBIN, Deputy Superintendent of Bank of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY UNDER SECTION
8005 OF THE BANKING Law," dated March 20, 1996, providing for an increase in
authorized capital stock from $1,351,666,670 consisting of 85,166,667 shares
with a par value of $10 each designated as Common Stock and 500 shares with a
par value of $1,000,000 each designated as Series Preferred Stock to
$1,501,666,670 consisting of 100,166,667 shares with a par value of $10 each
designated as Common Stock and 500 shares with a par value of $1,000,000 each
designated as Series Preferred Stock.
WITNESS, my hand and official seal of the Banking Department at the City of New
York, this 21ST day of MARCH in the Year of our
Lord one thousand nine hundred and
NINETY-SIX.
Peter M. Philbin
------------------------------
Deputy Superintendent of Banks
<PAGE> 8
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Three Hundred Fifty One Million, Six Hundred
Sixty-Six Thousand, Six Hundred Seventy Dollars ($1,351,666,670),
divided into Eighty-Five Million, One Hundred Sixty-Six Thousand, Six
Hundred Sixty-Seven (85,166,667) shares with a par value of $10 each
designated as Common Stock and 500 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Five Hundred One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,501,666,670), divided into
One Hundred Million, One Hundred Sixty Six Thousand, Six Hundred
Sixty-Seven (100,166,667) shares with a par value of $10 each
designated as Common Stock and 500 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
<PAGE> 9
6. The foregoing amendment of the organization certificate was
authorized by unanimous written consent signed by the holder of all outstanding
shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
20th day of March , 1996.
James T. Byrne, Jr.
---------------------------
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
---------------------------
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an
Assistant Secretary of Bankers Trust Company, the corporation described in the
foregoing certificate; that she has read the foregoing certificate and knows the
contents thereof, and that the statements herein contained are true.
Lea Lahtinen
---------------------------
Lea Lahtinen
Sworn to before me this 20th day of March, 1996.
Sandra L. West
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Notary Public
SANDRA L. WEST Counterpart filed in the
Notary Public State of New York Office of the Superintendent of
No. 31-4942101 Banks, State of New York,
Qualified in New York County This 21st day of March, 1996
Commission Expires September 19, 1996
