UNITED STATES OF AMERICA
before the
SECURITIES AND EXCHANGE COMMISSION
- ---------------------------------------------
In the Matter of :
:
APPALACHIAN POWER COMPANY :
40 Franklin Road : CERTIFICATE OF
Roanoke, Virginia 24022 : NOTIFICATION
:
File No. 70-6171 :
:
(Public Utility Holding Company Act of 1935) :
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APPALACHIAN POWER COMPANY (the "Company") hereby certifies, in connection
with the Application or Declaration on Form U-1 in the above-entitled matter,
that certain of the transactions specified in Post-Effective Amendment No. 26 to
the Application or Declaration have been carried out in accordance with the
terms and conditions of and for the purposes represented by said Post-Effective
Amendment, and the Order of the Securities and Exchange Commission dated
September 10, 1999 HCAR 27072) in said matter, as follows:
1. On December 8, 1999, Mason County, West Virginia (the "County") issued
and sold to Goldman, Sachs & Co. (the "Underwriter") $30,000,000 aggregate
principal amount of its Pollution Control Revenue Bonds (Appalachian Power
Company Project), Series K, dated December 1, 1999 (the "Series K Bonds"). The
Series K Bonds bear interest at a rate of 6.05% per annum and mature by their
terms on December 1, 2024. The Series K Bonds were sold by the County to the
Underwriter at an initial offering price of 100% of the principal amount. The
Company paid $187,500 to the Underwriter as compensation. The Series K Bonds
were issued by the County pursuant to an Indenture of Trust dated as of July 1,
1978 between the County and The Bank of New York, successor to One Valley Bank,
National Association (formerly Kanawha Valley Bank, N.A.), as Trustee, as
supplemented by various supplemental indentures of trust, including a Tenth
Supplemental Indenture of Trust dated as of December 1, 1999 (a copy of which
Tenth Supplemental Indenture is attached hereto as Exhibit B-11-1 to the
Application or Declaration).
2. The transaction described above was not subject to the jurisdiction of
any state commission other than, and was carried out in accordance with the
authorization of, the State Corporation Commission of Virginia.
3. Such transaction was consummated prior to January 1, 2000 as required
by the Order.
APPALACHIAN POWER COMPANY
By _/s/ Thomas G. Berkemeyer__
Assistant Secretary
February 7, 2000
Exhibit B-11-1
TENTH SUPPLEMENTAL INDENTURE OF TRUST
BETWEEN
MASON COUNTY, WEST VIRGINIA
and
THE BANK OF NEW YORK, successor to
ONE VALLEY BANK, NATIONAL ASSOCIATION
(Formerly Kanawha Valley Bank, N.A.)
Trustee
Dated as of December 1, 1999
THIS TENTH SUPPLEMENTAL INDENTURE OF TRUST (the "Tenth Supplemental
Indenture"), made as of the first day of December, 1999, by and between MASON
COUNTY, WEST VIRGINIA, a political subdivision of the State of West Virginia, by
and through its County Commission (the "County"), and THE BANK OF NEW YORK,
successor to One Valley Bank, National Association (formerly Kanawha Valley
Bank, N.A.), a banking corporation of the State of New York, organized, existing
and authorized to accept and execute trusts of the character herein set out
under and by virtue of the laws of the State of New York, with its principal
corporate trust office located in New York, New York, as Trustee (the
"Trustee");
W I T N E S S E T H :
WHEREAS, the County has issued $40,000,000 aggregate principal amount of
its Pollution Control Revenue Bonds (Appalachian Power Company Project), Series
A (the "Series A Bonds"), pursuant to the Industrial Development and Commercial
Development Bond Act, Chapter 13, Article 2C, of the West Virginia Code, as
amended (the "Act"), under the Indenture of Trust dated as of July 1, 1978 (the
"Indenture"), between the County and the Trustee for the purpose of acquiring,
constructing, installing, equipping and financing, in part, certain facilities
designed for the abatement or control of atmospheric and water pollution (the
"Project") at Units 1 and 3 at the Philip Sporn Generating Station (the "Sporn
Plant") of Appalachian Power Company (the "Company") located in the County and
the Company's Mountaineer Generating Station (the "Mountaineer Plant") located
in the County (the Sporn Plant and Mountaineer Plant are herein referred to as
the "Plants"), which were sold to the Company pursuant to an Agreement of Sale
dated as of July 1, 1978 (the "Agreement") between the County and the Company;
and
WHEREAS, the County has issued $50,000,000 aggregate principal amount of
its Pollution Control Revenue Bonds (Appalachian Power Company Project), Series
B (the "Series B Bonds"), as Additional Bonds pursuant to Section 2.10 of the
Indenture and a First Supplemental Indenture of Trust dated as of June 1, 1979
between the County and the Trustee (the "First Supplemental Indenture") to
provide additional funds to finance a portion of the estimated Cost of
Construction of the Project, as defined in the Agreement, not theretofore paid
by the application of the Series A Bonds' proceeds; and
WHEREAS, the County has issued $40,000,000 aggregate principal amount of
its Pollution Control Revenue Bonds (Appalachian Power Company Project), Series
C (the "Series C Bonds"), as Additional Bonds pursuant to Section 2.10 of the
Indenture and a Second Supplemental Indenture of Trust dated as of February 1,
1981 between the County and the Trustee (the "Second Supplemental Indenture") to
provide additional funds to finance a portion of the estimated Cost of
Construction of the Project, as defined in the Agreement, not theretofore paid
by the application of the Series A or Series B Bonds' proceeds; and
WHEREAS, the County has issued $30,000,000 aggregate principal amount of
its Pollution Control Revenue Bonds (Appalachian Power Company Project), Series
D (the "Series D Bonds"), as Refunding Bonds pursuant to Section 2.11 of the
Indenture and a Third Supplemental Indenture of Trust dated as of January 1,
1984 between the County and the Trustee (the "Third Supplemental Indenture") to
refund $30,000,000 aggregate principal amount of Series C Bonds which matured on
February 1, 1984; and
WHEREAS, the County has issued $30,000,000 aggregate principal amount of
its Pollution Control Revenue Bonds (Appalachian Power Company Project), Series
E (the "Series E Bonds"), as Refunding Bonds pursuant to Section 2.11 of the
Indenture and a Fourth Supplemental Indenture of Trust dated as of April 1, 1984
between the County and the Trustee (the "Fourth Supplemental Indenture") to
refund the Series D Bonds which matured on May 1, 1984; and
WHEREAS, the County has issued $30,000,000 aggregate principal amount of
its Pollution Control Revenue Bonds (Appalachian Power Company Project), Series
F (the "Series F Bonds"), as Refunding Bonds pursuant to Section 2.11 of the
Indenture and a Fifth Supplemental Indenture of Trust dated as of March 1, 1985
between the County and the Trustee (the "Fifth Supplemental Indenture") to
refund the Series E Bonds which matured on April 1, 1985; and
WHEREAS, the County has issued $30,000,000 aggregate principal amount of
its Pollution Control Revenue Bonds (Appalachian Power Company Project), Series
G (the "Series G Bonds"), as Refunding Bonds pursuant to Section 2.11 of the
Indenture and a Sixth Supplemental Indenture of Trust dated as of January 1,
1990 between the County and the Trustee (the "Sixth Supplemental Indenture") to
refund the Series F Bonds which matured on March 1, 1990; and
WHEREAS, the County has issued $10,000,000 aggregate principal amount of
its Pollution Control Revenue Bonds (Appalachian Power Company Project), Series
H (the "Series H Bonds"), as Refunding Bonds pursuant to Section 2.11 of the
Indenture and a Seventh Supplemental Indenture of Trust dated as of October 15,
1990 between the County and the Trustee (the "Seventh Supplemental Indenture")
to refund $10,000,000 aggregate principal amount of Series C Bonds at their
redemption on February 1, 1991; and
WHEREAS, the County has issued $40,000,000 aggregate principal amount of
its Pollution Control Revenue Bonds (Appalachian Power Company Project), Series
I (the "Series I Bonds"), as Refunding Bonds pursuant to Section 2.11 of the
Indenture and an Eighth Supplemental Indenture of Trust dated as of May 15, 1992
between the County and the Trustee (the "Eighth Supplemental Indenture") to
refund the Series A Bonds at their redemption on August 1, 1992; and
WHEREAS, the County has issued $50,000,000 aggregate principal amount of
its Pollution Control Revenue Bonds (Appalachian Power Company Project), Series
J (the "Series J Bonds"), as Refunding Bonds pursuant to Section 2.11 of the
Indenture and a Ninth Supplemental Indenture of Trust dated as of September 15,
1992 between the County and the Trustee (the "Ninth Supplemental Indenture") to
refund the Series B Bonds at their redemption on December 1, 1992; and
WHEREAS, the County has determined to issue $30,000,000 aggregate
principal amount of its Pollution Control Revenue Bonds (Appalachian Power
Company Project), Series K (the "Series K Bonds"), as Refunding Bonds pursuant
to Section 2.11 of the Indenture to refund the Series G Bonds at their
redemption on or about January 1, 2000; and
WHEREAS, the County has determined in the resolution authorizing the
issuance of the Series K Bonds that the statutory mortgage lien provided by
Section 13-2C-8 of the Act shall not be applicable to the Project or this
financing; and
WHEREAS, that portion of payments of principal of and interest on the
Series K Bonds which shall become Due for Payment but shall be unpaid by reason
of Nonpayment (as each such term is defined in the Policy, as defined below)
have been insured pursuant to a municipal bond insurance policy (the "Policy")
issued by Ambac Assurance Corporation (the "Insurer") and the Policy has been
delivered to United States Trust Company of New York, as Insurance Trustee (the
"Insurance Trustee"); and
WHEREAS, the County has determined that the Series K Bonds issuable
hereunder, and the certificate of authentication by the Trustee to be endorsed
on all Series K Bonds shall be, respectively, substantially in the following
forms with such variations, omissions and insertions as are required or
permitted by the Indenture or this Tenth Supplemental Indenture:
(FORM OF FRONT OF BOND)
No. R-______ $30,000,000
UNITED STATES OF AMERICA
STATE OF WEST VIRGINIA
MASON COUNTY
POLLUTION CONTROL REVENUE BOND
(APPALACHIAN POWER COMPANY PROJECT)
SERIES K
MATURITY DATE: December 1, 2024 CUSIP: 575200 __ _
REGISTERED OWNER:
PRINCIPAL AMOUNT: THIRTY MILLION DOLLARS
Mason County, a political subdivision of the State of West Virginia, by
and through its County Commission (the "County"), for value received, hereby
promises to pay, solely from the source and as hereinafter provided, to the
registered owner stated above, or registered assigns or legal representatives,
upon presentation and surrender hereof at the principal office of The Bank of
New York, successor to One Valley Bank, National Association (formerly Kanawha
Valley Bank, N.A.), as Trustee, or its successor in trust (the "Trustee"), in
New York, New York, or, at the option of the registered owner hereof, at the
principal office of such paying agent as may be designated pursuant to the
Indenture hereinafter referred to, the principal sum stated above on the
maturity date stated above, subject to prior redemption as hereinafter provided,
and to pay from such source to the registered owner hereof interest hereon by
check or draft mailed to the registered owner at his address as it appears on
the registration books kept by the Trustee, as Bond Registrar, such interest
payable semiannually on June 1 and December 1 of each year, commencing June 1,
2000, from the June 1 or December 1, as the case may be, next preceding the date
on which this Bond is authenticated, unless this Bond is authenticated prior to
June 1, 2000, in which case it will bear interest from December 1, 1999, or
unless this Bond is authenticated on a June 1 or December 1, in which case it
will bear interest from such June 1 or December 1, as the case may be, until
payment of said principal sum at the rate of six and five one-hundredths per
centum (6.05%) per annum. Both principal and interest are payable in lawful
money of the United States of America.
This Bond and the issue of which it is a part and the interest thereon are
limited obligations of the County payable solely from the revenues and receipts
derived from the Agreement of Sale hereinafter referred to (except to the extent
paid from Bond proceeds and income from temporary investments), which revenues
and receipts (except for payments of County expenses under Section 4.3 of the
Agreement of Sale and payments for indemnification under Sections 4.5 and 6.1 of
the Agreement of Sale) have been pledged and assigned to the Trustee to secure
payment thereof. The principal and premium (if any) of the Bonds and the
interest thereon shall never constitute an indebtedness of the County or the
State of West Virginia within the meaning of the Constitution of West Virginia
or of any constitutional provision or statutory limitation and any other
obligation, agreement, covenant or representation contained in the Indenture
hereinafter referred to shall never constitute or give rise to or impose any
pecuniary liability of the County or the State of West Virginia. Neither shall
the principal and premium (if any) of the Bonds, the interest thereon nor the
costs incident thereto be a charge against the general credit or taxing power of
the County or the State of West Virginia. Neither the County, the State of West
Virginia nor any other political subdivision thereof shall be obligated to pay
the principal, and premium (if any) of the Bonds, the interest thereon or other
costs incident thereto except from the revenues and receipts pledged therefor.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS BOND SET FORTH
ON THE REVERSE SIDE HEREOF WHICH, FOR ALL PURPOSES HEREOF, SHALL HAVE THE SAME
FORCE AND EFFECT AS IF PRINTED IN FULL ON THE FRONT HEREOF.
This Bond shall not become obligatory for any purpose or be entitled to
any security or benefit under the Indenture or be valid until the Trustee shall
have manually executed the Certificate of Authentication appearing hereon.
IN WITNESS WHEREOF, Mason County, West Virginia, by and through its County
Commission, has caused this Bond to be signed by the manual or facsimile
signature of the President of its County Commission, the seal, which may be the
facsimile seal, of its County Commission to be printed hereon and attested by
the manual or facsimile signature of the Clerk of its County Commission, and
this Bond to be dated as of December 1, 1999.
THE COUNTY COMMISSION OF MASON COUNTY
By_______________________________
President
(SEAL)
Attest:
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Clerk
(FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
This Bond is one of the Bonds of the Series described in the
within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By_________________________________
Authorized Officer
Date: _______________________
Municipal Bond Insurance Policy No. ______ (the "Policy") with respect to
payments due for the principal of and interest on the Bonds has been issued by
Ambac Assurance Corporation (the "Insurer"). The Policy has been delivered to
United States Trust Company of New York, as the Insurance Trustee under the
Policy and will be held by such Insurance Trustee or any successor insurance
trustee. The Policy is on file and available for inspection at the principal
office of the Insurance Trustee and a copy thereof may be secured from the
Insurer or the Insurance Trustee. All payments required to be made under the
Policy shall be made in accordance with the provisions thereof. The owner of the
Bonds acknowledges and consents to the subrogation rights of the Insurer as more
fully set forth in the Policy. Any provision of the Indenture expressly
recognizing or granting rights in or to the Insurer may not be amended in any
manner which affects the rights of the Insurer thereunder without the prior
consent of the Insurer.
(FORM OF REVERSE OF BOND)
This Bond is one of an issue of $30,000,000 Mason County, West Virginia,
Pollution Control Revenue Bonds (Appalachian Power Company Project), Series K
(the "Bonds"), of like date and tenor, except as to number and principal amount,
authorized and issued pursuant to the Industrial Development and Commercial
Development Bond Act (Chapter 13, Article 2C, of the West Virginia Code, as
amended) for the purpose of refunding certain Pollution Control Revenue Bonds
(Appalachian Power Company Project), Series G, which were previously issued by
the County for the purpose of refunding other bonds previously issued by the
County for the purpose of its acquisition, construction, installation, equipping
and financing of certain facilities for the abatement or control of atmospheric
and water pollution and the disposal of solid waste (the "Project") located
within the County at Units 1 and 3 of Appalachian Power Company, a Virginia
corporation (the "Company"), at the Philip Sporn Generating Station and at the
Company's Mountaineer Generating Station (Units 1 and 3 of the Philip Sporn
Generating Station and the Mountaineer Generating Station being collectively
referred to as the "Plants"), and sale of the same to the Company pursuant to an
Agreement of Sale dated as of July 1, 1978, as amended (the "Agreement of
Sale"), between the County and the Company. The Bonds are issued under and,
together with other series of bonds, are equally and ratably secured by an
Indenture of Trust dated as of July 1, 1978, as supplemented and amended, and as
supplemented and amended by a Tenth Supplemental Indenture of Trust dated as of
December 1, 1999 (the Indenture of Trust as supplemented and amended being
referred to herein as the "Indenture"), between the County and the Trustee which
assigns to the Trustee, as security for the Bonds, the County's rights under the
Agreement of Sale (except for payment of County expenses and for indemnification
of the County). Reference is hereby made to the Indenture, the Agreement of Sale
and to all amendments and supplements thereto for a description of the
provisions, among others, with respect to the nature and extent of the security,
the rights, duties and obligations of the County and the Trustee and the rights
of the owners of the Bonds and the terms upon which the Bonds are issued and
secured. Additional bonds and refunding bonds ranking equally with the Bonds and
other bonds issued under the Indenture may be issued on the terms provided in
the Indenture.
The Bonds may not be called for redemption by the County prior to December
1, 2009, except that in the event of the exercise by the Company of its option
to prepay the entire purchase price of the Project under circumstances involving
(i) the imposition of unreasonable burdens or excessive liabilities on the
Company or the County with respect to the Project or either of the Plants, or
the operation of the Project or either of the Plants, including taxes not
imposed on July 1, 1978, and economic, technological or other changes making the
continued operation of either or both of the Plants uneconomical in the opinion
of the Company's Board of Directors; (ii) damage to or destruction of the
Project or a portion thereof or all or a portion of either or both of the Plants
to such an extent that the Company deems it not practicable and desirable to
rebuild, repair and restore the Project, a Plant, or the Plants, as the case may
be; (iii) condemnation of all or substantially all of the Project or all or a
portion of either or both of the Plants so as to render the Project
unsatisfactory to the Company for its intended use; or (iv) the operation of
either of the Plants being enjoined and the Company decides to discontinue
operation thereof, all as provided in Section 8.1(b)(i) through (iv) of the
Agreement of Sale, the Bonds are subject to redemption in whole, but not in
part, at any time upon payment of 100% of the principal amount thereof plus
interest accrued to the redemption date but without premium.
The Bonds are subject to optional redemption by the County prior to
maturity on or after December 1, 2009, at any time in whole or in part (if less
than all of the Bonds are to be redeemed, such redeemed bonds are to be selected
by lot by the Trustee) upon payment of the following redemption prices
(expressed as a percentage of the principal amount of Bonds to be redeemed) plus
accrued interest to the redemption date:
Redemption Dates Redemption
(Dates Inclusive) Price
December 1, 2009 to November 30, 2010 101.00%
December 1, 2010 to November 30, 2011 100.50%
December 1, 2011 and thereafter 100.00%
If less than all of the Bonds are called for redemption, each $5,000
principal amount of a Bond having a principal amount of more than $5,000 shall
be counted as one Bond for the purpose of selecting by lot.
If any of the Bonds or portions thereof are called for redemption, the
Trustee shall cause a notice thereof to be sent by registered or certified mail
to the registered owner of the Bonds not less than 30 nor more than 60 days
prior to the redemption date. Provided funds for their redemption are on deposit
at the place of payment on the redemption date, all Bonds or portions thereof so
called for redemption shall cease to bear interest on the redemption date, shall
no longer be secured by the Indenture and shall not be deemed to be outstanding
under the provisions of the Indenture. If a portion of this Bond shall be called
for redemption, a new Bond in principal amount equal to the unredeemed portion
hereof will be issued to the registered owner upon the surrender hereof.
The owner of this Bond shall have no right to enforce the provisions of
the Indenture or to institute action to enforce the covenants therein or to take
any action with respect to any Event of Default under the Indenture or to
institute, appear in or defend any suit or other proceeding with respect
thereto, except as provided in the Indenture. In certain events, on conditions,
in the manner and with the effect set forth in the Indenture, the principal of
all the Bonds issued under the Indenture and then outstanding may become or may
be declared due and payable before their stated maturities, together with
interest accrued thereon. Modifications or alterations of the Indenture, or of
any supplements thereto, may be made only to the extent and in the circumstances
permitted by the Indenture.
The Bonds are issuable as registered bonds without coupons in the
denominations of $5,000 and any integral multiple thereof.
The transfer of this Bond may be registered by the registered owner hereof
in person or by his duly authorized attorney or legal representative at the
principal office of the Trustee, but only in the manner and subject to the
limitations and conditions provided in the Indenture and upon surrender and
cancellation of this Bond. Upon any such registration of transfer the County
shall execute and the Trustee shall authenticate and deliver in exchange for
this Bond a new Bond or Bonds, registered in the name of the transferee, of
authorized denominations. The Bond Registrar shall, prior to due presentment for
registration of transfer, treat the registered owner as the person exclusively
entitled to payment of principal and interest and the exercise of all other
rights and powers of the owner.
All acts, conditions and things required to happen, exist or be performed
precedent to the issuance of this Bond have happened, exist and have been
performed.
[FORM OF ABBREVIATIONS]
The following abbreviations, when used in the inscription on the face of
the within Bond, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - Custodian
----------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
(State)
Additional abbreviations may also be used though not in list above.
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto __________________________________
(Please insert Social Security or taxpayer identification number of assignee)
=============================================================
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(Please Print or Typewrite Name and Address of Assignee)
- -------------------------------------------------------------
the within Bond, and all rights thereunder, and hereby does irrevocably
constitute and appoint___________________________ Attorney to transfer the
within Bond on the books kept for the registration thereof, with full power of
substitution in the premises.
Dated:
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NOTICE: The signature to this assignment must correspond
with the name as it appears on the face of the within
Bond in every particular, without alteration or
enlargement or any change whatever.
Signature Guaranteed:
NOTICE: Signature(s) must be guaranteed
by a member firm of the New York Stock
Exchange or a commercial bank or trust
company; and
WHEREAS, all things necessary have been done and performed to make the
Series K Bonds, when issued and authenticated by the Trustee, valid, binding and
legal limited obligations of the County and to constitute this Tenth
Supplemental Indenture a valid and binding agreement securing the payment of the
principal of, premium, if any, and interest on all bonds issued and to be issued
hereunder and under the Indenture (the Indenture, as supplemented by the First
Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth
Supplemental Indenture, the Sixth Supplemental Indenture, the Seventh
Supplemental Indenture, the Eighth Supplemental Indenture, the Ninth
Supplemental Indenture and this Tenth Supplemental Indenture, being referred to
herein as the "Indenture") and the execution and delivery of this Tenth
Supplemental Indenture and the execution and issuance of the Series K Bonds have
in all respects been authorized; and
WHEREAS, the County has requested the Trustee to enter into this Tenth
Supplemental Indenture and the Company has consented to the execution and
delivery of this Tenth Supplemental Indenture;
NOW, THEREFORE, the County hereby agrees and covenants with the Trustee
and with the respective holders and owners, from time to time of the Series H,
Series I, Series J and the Series K Bonds or coupons thereon, or any thereof, as
follows:
ARTICLE I
PURPOSE OF SERIES K BONDS
SECTION 1.01. Purpose of Series K Bonds. The Series K Bonds of the County
are authorized for the purpose of refunding $30,000,000 aggregate principal
amount of the Series G Bonds at their redemption on or about January 1, 2000.
ARTICLE II
THE SERIES K BONDS
SECTION 2.01. Issuance of Series K Bonds. There are hereby authorized to
be issued Pollution Control Revenue Bonds of the County in the aggregate
principal amount of Thirty Million Dollars ($30,000,000) as Refunding Bonds
pursuant to Section 2.11 of the Indenture. Said Bonds shall be designated "Mason
County, West Virginia Pollution Control Revenue Bonds (Appalachian Power Company
Project), Series K", shall be dated as of December 1, 1999, shall bear interest
payable semiannually on the first days of June and December in each year,
commencing June 1, 2000, at the rate of six and five one-hundredths per centum
(6.05%) per annum and shall mature, subject to the right of prior redemption as
hereinafter set forth, on December 1, 2024.
Principal of, premium (if any) and interest on the Series K Bonds shall be
payable in lawful money of the United States of America, but only from the
revenues and receipts pledged to the payment thereof as provided herein and in
the Indenture.
SECTION 2.02. Form of Series K Bonds. The Series K Bonds shall be issued
substantially in the form of the Series K Bond hereinabove set forth, with such
appropriate variations, omissions and insertions as are permitted or required by
the Indenture or this Tenth Supplemental Indenture.
Initially, one certificate for the Series K Bonds will be issued and
registered to the Securities Depository (defined below), or its nominee. The
County and the Trustee may enter into a Letter of Representations (defined
below) relating to a book-entry system to be maintained by the Securities
Depository with respect to the Series K Bonds.
In the event that (a) the Securities Depository determines not to continue
to act as a securities depository for the Series K Bonds by giving notice to the
Trustee and the County discharging its responsibilities hereunder, or (b) the
County determines (at the direction of the Company) (i) that beneficial owners
of Series K Bonds shall be able to obtain certificated Series K Bonds or (ii) to
select a new Securities Depository, then the Trustee shall, at the direction of
the County (at the request of the Company), attempt to locate another qualified
securities depository to serve as Securities Depository or authenticate and
deliver certificated Series K Bonds to the beneficial owners or to the
Securities Depository participants on behalf of beneficial owners substantially
in the form provided for in this Section. In delivering certificated Series K
Bonds, the Trustee shall be entitled to rely on the records of the Securities
Depository as to the beneficial owners or the records of the Securities
Depository participants acting on behalf of beneficial owners. Such certificated
Series K Bonds will then be registrable, transferable and exchangeable as set
forth in this Indenture.
So long as there is a Securities Depository for the Series K Bonds (1) it
or its nominee shall be the registered owner of the Series K Bonds, (2)
notwithstanding anything to the contrary in this Indenture, determinations of
persons entitled to payment of principal, premium, if any, and interest,
transfers of ownership and exchanges and receipt of notices shall be the
responsibility of the Securities Depository and shall be effected pursuant to
rules and procedures established by such Securities Depository, (3) the County,
the Company and the Trustee shall not be responsible or liable for maintaining,
supervising or reviewing the records maintained by the Securities Depository,
its participants or persons acting through such participants, (4) except to the
extent the Insurer is deemed to be the holder of the Series K Bonds, as provided
in Article VI hereof, references in this Indenture to registered owners of the
Series K Bonds shall mean such Securities Depository or its nominee and shall
not mean the beneficial owners of the Series K Bonds and (5) in the event of any
inconsistency between the provisions of this Indenture and the provisions of the
Letter of Representations such provisions of the Letter of Representations,
except to the extent set forth in this paragraph and the next preceding
paragraph, shall control.
For purposes of this Section, the following terms shall have the following
meanings:
"Letter of Representations" means the Letter of Representations dated
December 1, 1999 from the County and the Trustee to the Securities Depository
and any amendments thereto, or successor agreements between the County and the
Trustee and any successor Securities Depository, relating to a book-entry system
to be maintained by the Securities Depository with respect to the Series K
Bonds.
"Securities Depository" means The Depository Trust Company, a corporation
organized and existing under the laws of the State of New York, and any other
securities depository for the Series K Bonds appointed pursuant to this Section,
and their successors.
SECTION 2.03. Execution, Authentication and Delivery of Series K Bonds.
The Series K Bonds shall be executed, authenticated and delivered, and the
proceeds therefrom deposited, as provided in Section 2.11 of the Indenture, as
amended by Section 6.01 of this Tenth Supplemental Indenture, and Section 3.2(c)
of the Agreement. A copy of the Policy, as defined herein, shall be delivered to
the Trustee.
ARTICLE III
REDEMPTION OF SERIES K BONDS BEFORE MATURITY
SECTION 3.01. Redemption. Any and all of the Series K Bonds shall be
redeemable as set forth in the form of the Series K Bond hereinabove set forth.
Reference is hereby further made to Article III of the Indenture for the
provisions describing the methods and effects of redemption.
ARTICLE IV
COVENANTS AND SECURITY
SECTION 4.01. Authority; Compliance with Conditions. The County covenants
that it is duly authorized under the laws of the State of West Virginia,
including particularly and without limitation the Act, to issue the Series K
Bonds, authorized hereby and to execute and deliver this Tenth Supplemental
Indenture, to assign and pledge the Agreement and the revenues and receipts
payable under the Agreement, to grant a security interest therein and to pledge
the revenues and receipts in the manner and to the extent contemplated herein
and in the Indenture; that all of the requirements and conditions for the
issuance of the Series K Bonds and the execution and delivery of this Tenth
Supplemental Indenture have been satisfied and complied with; that all other
action on its part necessary for the issuance of the Series K Bonds and the
execution and delivery of this Tenth Supplemental Indenture has been duly and
effectively taken; and that the Series K Bonds in the hands of the owners
thereof are and will be valid and enforceable obligations of the County
according to the terms thereof and hereof.
SECTION 4.02. Security for Series K Bonds; Confirmation of Indenture. The
Series K Bonds shall be equally and ratably (except insofar as any guaranty,
letters of credit, insurance policy, first mortgage bond or other collateral or
instrument of credit enhancement provided by a person other than the Issuer may
afford additional security from the Bonds of any particular series) secured
under the Indenture with all outstanding bonds, and any other series of bonds
which may be issued pursuant to Section 2.10 or 2.11 of the Indenture, without
preference, priority or distinction of any bonds, as defined therein, over any
other bonds. As supplemented and amended, the Indenture is in all respects
ratified and confirmed, and the Indenture, including each supplemental
indenture, shall be read, taken and construed as one and the same instrument.
All covenants, agreements and provisions of, and all security provided under,
the Indenture shall apply with full force and effect to the Series K Bonds and
to the owners thereof.
ARTICLE V
SPECIAL INSURANCE PROVISIONS
Section 5.01. Concerning the Special Insurance Provisions. The provisions
of this Article V shall apply notwithstanding anything in the Indenture to the
contrary, but only so long as (i) the Policy remains in full force and effect,
(ii) the Insurer is not in default in its obligations under the Policy, and
(iii) the Series K Bonds remain outstanding (as defined in the Indenture and
Section 6.08 hereof).
Section 5.02. Consent of the Insurer in Addition to Bondholder Consent.
Unless otherwise provided in this Section, the Insurer's written consent shall
be required (in addition to bondholder consent, when required) for the following
purposes: (i) execution and delivery of any supplemental indenture or any
amendment, supplement or change to or modification of the Agreement of Sale;
(ii) removal of the Trustee or Paying Agent and selection and appointment of any
successor trustee or paying agent; and (iii) initiation or approval of any
action not described in (i) or (ii) above which requires bondholder consent.
Section 5.03. Insurer's Consent Upon Default. Anything in the Indenture to
the contrary notwithstanding, upon the occurrence and continuance of an Event of
Default under the Indenture, the Insurer shall be entitled to control and direct
the enforcement of all rights and remedies granted to the bondholders or the
Trustee for the benefit of the bondholders under the Indenture, including,
without limitation, (i) the right to accelerate the principal of the Series K
Bonds as described in the Indenture and (ii) the right to annul any declaration
of acceleration, and the Insurer shall also be entitled to approve all waivers
of events of default.
Section 5.04. Acceleration Rights. Upon the occurrence of an Event of
Default, the Trustee may, with the consent of the Insurer, and shall, at the
direction of the Insurer or 25% of the bondholders with the consent of the
Insurer, by written notice to the Issuer and the Insurer, declare the principal
of the Series K Bonds to be immediately due and payable, whereupon that portion
of the principal of the Series K Bonds thereby coming due and the interest
thereon accrued to the date of payment shall, without further action, become and
be immediately due and payable, anything in the Indenture or in the Series K
Bonds to the contrary notwithstanding.
Section 5.05. Amendments. Any provision of the Indenture expressly
recognizing or granting rights in or to the Insurer may not be amended in any
manner which affects the rights of the Insurer hereunder without the prior
written consent of the Insurer.
Section 5.06. Notices and Information.
(a) The Trustee shall furnish to the Insurer a copy of any notice to be
given to the registered owners of the Series K Bonds, including, without
limitation, notice of any redemption of or defeasance of the Series K Bonds, and
any certificate rendered pursuant to the Indenture relating to the security for
the Series K Bonds.
(b) The Trustee or the Issuer shall notify the Insurer of any failure of
the Company to provide relevant notices, certificates, etc.
(c) Notwithstanding any other provision of the Indenture, the Trustee
shall immediately notify the Insurer if at any time there are insufficient
moneys to make any payments of principal and/or interest as required and
immediately upon the occurrence of any Event of Default under the Indenture.
(d) All notice or other communication to be given to the Insurer under
this Second Supplemental Indenture or the Indenture may be given by mailing or
delivering the same in writing to Ambac Assurance Corporation, One State Street
Plaza, New York, New York 10004, Attention:, in the case of subclause (a) above,
The Surveillance Department, and in all other cases, The General Counsel's
Office.
Section 5.07. Payment Procedures; Subrogation. The Issuer, the
Trustee and any Paying Agent agree to comply with the following provisions:
(a) If the Trustee or Paying Agent, if any, determines that there will be
insufficient funds to pay the principal of or interest on the Series K Bonds at
maturity or on any Interest Payment Date, as the case may be, the Trustee or
Paying Agent, if any, shall so notify the Insurer within one business day after
such determination. Such notice shall specify the amount of the anticipated
deficiency, the Series K Bonds to which such deficiency is applicable and
whether such Series K Bonds will be deficient as to principal or interest, or
both. The Insurer will make payments of principal of or interest due on the
Series K Bonds on or before the first business day next following the date on
which the Insurer shall have received notice of nonpayment from the Trustee or
Paying Agent, if any.
(b) The Trustee or Paying Agent, if any, shall, after giving notice to the
Insurer as provided in (a) above, make available to the Insurer and, at the
Insurer's direction, to the Insurance Trustee, the registration books of the
Issuer maintained by the Trustee or Paying Agent, if any, and all records
relating to the Series K Bonds maintained under the Indenture.
(c) The Trustee or Paying Agent, if any, shall provide the Insurer and the
Insurance Trustee with a list of registered owners of Series K Bonds entitled to
receive principal or interest payments from the Insurer under the terms of the
Policy, and shall make arrangements with the Insurance Trustee (i) to mail
checks to or pay by wire transfer the registered owners of the Series K Bonds
entitled to receive full or partial interest payments from the Insurer and (ii)
to pay principal upon Series K Bonds surrendered to the Insurance Trustee by the
registered owners of Series K Bonds entitled to receive full or partial
principal payments from the Insurer.
(d) The Trustee or Paying Agent, if any, shall, at the time it provides
notice to the Insurer pursuant to (a) above, notify registered owners of the
Series K Bonds entitled to receive the payment of principal or interest thereon
from the Insurer (i) as to the fact of such entitlement, (ii) that the Insurer
will remit to them all or a part of the interest payments next coming due upon
proof of a Series K Bond owner's entitlement to interest payments and delivery
to the Insurance Trustee, in form satisfactory to the Insurance Trustee, of an
appropriate assignment of the registered owner's right to payment, (iii) that
should they be entitled to receive full payment of principal from the Insurer,
they must surrender their Series K Bonds (along with an appropriate instrument
of assignment in form satisfactory to the Insurance Trustee to permit ownership
of such Series K Bonds to be registered in the name of the Insurer) for payment
to the Insurance Trustee, and not the Trustee or Paying Agent, if any, and (iv)
that should they be entitled to receive partial payment of principal from the
Insurer, they must surrender their Series K Bonds for payment thereon first to
the Trustee or Paying Agent, if any, who shall note on such Series K Bonds the
portion of the principal paid by the Trustee or Paying Agent, if any, and then,
along with an appropriate instrument of assignment in form satisfactory to the
Insurance Trustee, to the Insurance Trustee, which will then pay the unpaid
portion of principal.
(e) In the event that the Trustee or Paying Agent, if any, has notice that
any payment of principal of or interest on the Series K Bonds which has become
Due for Payment (as defined in the Policy) and which is made to an owner of a
Series K Bond by or on behalf of the Issuer has been deemed a preferential
transfer and theretofore recovered from its registered owner pursuant to the
United States Bankruptcy Code by a trustee in bankruptcy in accordance with the
final, nonappealable order of a court having competent jurisdiction, the Trustee
or Paying Agent, if any, shall, at the time the Insurer is notified pursuant to
(a) above, notify all registered owners that in the event that any registered
owner's payment is so recovered, such registered owner will be entitled to
payment from the Insurer to the extent of such recovery if sufficient funds are
not otherwise available, and the Trustee or Paying Agent, if any, shall furnish
to the Insurer its records evidencing the payments of principal of and interest
on the Series K Bonds which have been made by the Trustee or Paying Agent, if
any, and subsequently recovered from registered owners and the dates on which
such payments were made.
(f) In addition to those rights granted the Insurer under the Indenture,
the Insurer shall, to the extent it makes payment of principal of or interest on
the Series K Bonds, become subrogated to the rights of the recipients of such
payments in accordance with the terms of the Policy, and to evidence such
subrogation (i) in the case of subrogation as to claims for past due interest,
the Trustee or Paying Agent, if any, shall note the Insurer's rights as subrogee
on the registration books of the Issuer maintained by the Trustee or Paying
Agent, if any, upon receipt from the Insurer of proof of the payment of interest
thereon to the registered owners of the Series K Bonds, and (ii) in the case of
subrogation as to claims for past due principal, the Trustee or Paying Agent, if
any, shall note the Insurer's rights as subrogee on the registration books of
the Issuer maintained by the Trustee or Paying Agent, if any, upon surrender of
the Series K Bonds by the registered owners thereof together with proof of the
payment of principal thereof.
Section 5.08. Bonds Outstanding on Payment by Insurer. Notwithstanding
anything in the Indenture to the contrary, in the event that the principal of
and/or interest due on the Series K Bonds shall be paid by the Insurer pursuant
to the Policy, the Series K Bonds shall remain "outstanding" for all purposes
under the Indenture, not be defeased or otherwise satisfied and not be
considered paid by the Issuer, and the assignment and pledge of the trust estate
and all covenants, agreements and other obligations of the Issuer to the
registered owners of the Series K Bonds shall continue to exist and shall run to
the benefit of the Insurer, and the Insurer shall be subrogated to the rights of
such registered owners of the Series K Bonds.
Section 5.09. Insurer's Rights Concerning the Trustee.
(a) The Trustee or Paying Agent may be removed at any time, at the written
request of the Insurer, for any breach by the Trustee or Paying Agent, as the
case may be, of any of the provisions set forth herein or in the Indenture.
(b) The Insurer shall receive prior written notice of any Trustee or
Paying Agent resignation.
(c) Notwithstanding any other provision of the Indenture, in determining
whether the rights of the bondholders will be adversely affected in any material
respect by any action taken pursuant to the terms and provisions of the
Indenture, the Trustee or Paying Agent shall consider the effect on the
bondholders as if there were no Policy. The Trustee shall not consider any
payments made under the Policy in determining whether a default under Section
8.01(a) or (b) of the Indenture shall have occurred.
(d) The Trustee shall be deemed to waive notice of any default under the
Indenture of which it shall be specifically advised in writing by the Insurer.
(e) Notwithstanding any other provision of the Indenture, no removal,
resignation or termination of the Trustee or Paying Agent shall take effect
until a successor, reasonably acceptable to the Insurer, shall be appointed.
Section 5.10. Insurer's Right to Information. The Issuer will permit the
Insurer to discuss the affairs, finances and accounts of the Issuer or any
information the Insurer may reasonably request regarding the security for the
Series K Bonds with appropriate officers of the Issuer. The Trustee or Issuer,
as appropriate, will permit the Insurer to have access to and to make copies of
all books and records relating to the Series K Bonds at any reasonable time.
Section 5.11. Intervention. Intervention by the Trustee in any judicial
proceeding pursuant to Section 9.04 of the Indenture shall be made in accordance
therewith on the request of the Insurer and any intervention based on the
request of the bondholders as provided therein may only be made with the prior
written consent of the Insurer.
Section 5.12. Insurer as Third Party Beneficiary. To the extent that the
Indenture confers upon or gives or grants to the Insurer any right, remedy or
claim, the Insurer is hereby explicitly recognized as being a third-party
beneficiary hereunder and may enforce any such right, remedy or claim conferred,
given or granted thereunder.
Section 5.13. Parties in Interest. Nothing in the Indenture expressed or
implied is intended or shall be construed to confer upon, or to give or grant
to, any person or entity, other than the Issuer, the Trustee, the Insurer, the
Paying Agent, if any, and the registered owners of the Series K Bonds, any
right, remedy or claim under or by reason of the Indenture or any covenant,
condition or stipulation thereof, and all covenants, stipulations, promises and
agreements in the Indenture by and on behalf of the Issuer shall be for the sole
and exclusive benefit of the Issuer, the Trustee, the Insurer, the Paying Agent,
if any, and the registered owners of the Series K Bonds.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Successors and Assigns. This Tenth Supplemental Indenture
shall be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
SECTION 6.02. Applicable Law. This Tenth Supplemental Indenture shall
be governed by the laws of the State of West Virginia.
SECTION 6.03. Counterparts. This Tenth Supplemental Indenture may be
executed in several counterparts, each of which shall be an original, and all
of which together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, MASON COUNTY, WEST VIRGINIA, by and through its County
Commission, has caused this Tenth Supplemental Indenture to be executed by the
President of the Mason County Commission, and the seal of the Mason County
Commission to be hereunto affixed and attested by the Clerk of the Mason County
Commission, and THE BANK OF NEW YORK, has caused this Tenth Supplemental
Indenture to be executed by one of its Vice Presidents and attested by one of
its Assistant Secretaries, all as of the date first above written.
THE COUNTY COMMISSION OF MASON COUNTY
By_/s/ Rick Northup_____________
President
(SEAL)
Attest:
_/s/ Diana N. Cromley_________
Clerk
THE BANK OF NEW YORK, as Trustee
By_/s/ Philip A. Martone________
Vice President
(SEAL)
Attest:
_/s/ Joseph M. Lawlor_________
Assistant Secretary
STATE OF WEST VIRGINIA )
: ss:
COUNTY OF MASON )
I, Rebecca O. Cleveland, a Notary Public in and for the County and State
aforesaid, hereby certify that Rick Northup and Diana N. Cromley, who signed the
writing above and hereto annexed as President and Clerk for THE COUNTY
COMMISSION OF MASON COUNTY, West Virginia, bearing date as of the first day of
December, 1999, have this day in my said County before me acknowledged the said
writing to be the act and deed of said County Commission.
Given under my hand and seal this 2nd day of December, 1999.
(Seal)
_/s/ Rebecca O. Cleveland______
My Commission Expires: 11-12-2007
STATE OF NEW YORK )
: ss:
COUNTY OF NEW YORK )
I, Edward Souter, a Notary Public in and for the County and State
aforesaid, hereby certify that Philip A. Martone and Joseph M. Lawlor, who
signed the writing above and hereto annexed as Vice President and Assistant
Secretary of THE BANK OF NEW YORK, bearing date as of the first day of December,
1999, have this day in my said County before me acknowledged the said writing to
be the act and deed of said Bank.
Given under my hand and seal this 8th day of December, 1999.
(Seal)
_/s/ Edward Souter_____________
My Commission Expires: 7-15-2001
