Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
Ohio Power Company
(Exact name of registrant as specified in its charter)
Ohio 35-4271000
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
301 Cleveland Avenue, S.W. 44702
Canton, Ohio (Zip Code)
(Address of principal executive offices)
Registrant's telephone number, including area code: (330) 456-8173
ARMANDO A. PENA, Treasurer
AMERICAN ELECTRIC POWER SERVICE CORPORATION
1 Riverside Plaza
Columbus, Ohio 43215
(614) 223-2850
(Name, address and telephone number, including
area code, of agent for service)
It is respectfully requested that the Commission send copies of
all notices, orders and communications to:
Simpson Thacher & Bartlett Dewey Ballantine LLP
425 Lexington Avenue 1301 Avenue of the Americas
New York, NY 10017-3909 New York, NY 10019-6092
Attention: James M. Cotter Attention: E. N. Ellis, IV
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Approximate date of commencement of proposed sale to the public: As soon
as practicable after the effective date of the Registration Statement.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
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
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Title of
Each Class Proposed Proposed
Of Maximum Maximum
Securities Amount Offering Aggregate
to be to be Price Offering Amount of
Registered Registered Per Unit* Price* Registration
Fee
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Unsecured
Notes $198,000,000 100% $198,000,000 $55,044
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*Estimated solely for purpose of calculating the registration fee.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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The within Prospectus contains the information required by Rule 429 of the
Commission under the Securities Act of 1933 with respect to $52,000,000 of Debt
Securities of the registrant remaining unsold under Registration Statement No.
333-35585, declared effective September 17, 1997, for which a fee of $15,758 was
paid.
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED APRIL 6, 1999
PROSPECTUS
OHIO POWER COMPANY
301 Cleveland Avenue, S.W.
Canton, Ohio 44702
(330)456-8173
$250,000,000
UNSECURED NOTES
TERMS OF SALE
The following terms may apply to the notes that we may sell at one or more
times. A pricing supplement will include the final terms for each note. If we
decide to list upon issuance any note or notes on a securities exchange, a
pricing supplement will identify the exchange and state when we expect trading
could begin.
- Mature 9 months to 50 years
- Fixed or floating interest rate. The floating interest rate formula
would be based on:
Commercial paper rate LIBOR
Prime rate Treasury rate
CD rate CMT rate
Federal Funds rate Another interest rate index
- Remarketing features
- Certificate or book-entry form
- Subject to redemption
- Not convertible, amortized or subject to a sinking fund
- Interest paid on fixed rate notes quarterly or semi-annually
- Interest paid on floating rate notes monthly, quarterly,
semi-annually, or annually
- Issued in multiples of a minimum denomination
The notes have not been approved by the SEC or any state securities commission,
nor have these organizations determined that this prospectus is accurate or
complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is ____________, 1999.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement we filed with the SEC.
We also file annual, quarterly and special reports and other information with
the SEC. You may read and copy any document we file at the SEC's Public
Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call
the SEC at 1-800-SEC-0330 for further information on the Public Reference Room.
You may also examine our SEC filings through the SEC's web site at
http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information that we file
with the SEC will automatically update and supersede this information. We
incorporate by reference the document listed below and any future filings made
with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until we sell all the notes.
- Annual Report on Form 10-K for the year ended December 31, 1998.
You may request a copy of these filings, at no cost, by writing or telephoning
us at the following address:
Mr. G. C. Dean
American Electric Power Service Corporation
1 Riverside Plaza
Columbus, Ohio 43215
614-223-1000
You should rely only on the information incorporated by reference or
provided in this prospectus or any supplement. We have not authorized anyone
else to provide you with different information. We are not making an offer of
these notes in any state where the offer is not permitted. You should not assume
that the information in this prospectus or any supplement is accurate as of any
date other than the date on the front of those documents.
THE COMPANY
We generate, sell, purchase, transmit and distribute electric power. We
serve approximately 685,000 customers in Ohio. We also sell and transmit power
at wholesale to other electric utilities, municipalities, electric cooperatives
and non-utility entities engaged in the wholesale power market. Our principal
executive offices are located at 301 Cleveland Avenue, S.W., Canton, Ohio 44702
(telephone number 330-456-8173). We are a subsidiary of American Electric Power
Company, Inc., a public utility holding company, and we are a part of the
American Electric Power integrated utility system. The executive offices of
American Electric Power Company, Inc. are located at 1 Riverside Plaza,
Columbus, Ohio 43215 (telephone number 614-223-1000).
PROSPECTUS SUPPLEMENTS
We provide information to you about the notes in three separate documents
that progressively provide more detail: (a) this prospectus provides general
information some of which may not apply to your notes, (b) the accompanying
prospectus supplement provides more specific terms of your notes, and (c) the
pricing supplement provides the final terms of your notes. It is important for
you to consider the information contained in this prospectus, the prospectus
supplement and the pricing supplement in making your investment decision.
RATIO OF EARNINGS TO FIXED CHARGES
The Ratio of Earnings to Fixed Charges for each of the periods indicated
is as follows:
Twelve Months
Period Ended Ratio
December 31, 1994 3.28
December 31, 1995 2.95
December 31, 1996 3.40
December 31, 1997 3.42
December 31, 1998 3.28
For current information on the Ratio of Earnings to Fixed Charges, please
see our most recent Form 10-K and 10-Q. See Where You Can Find More
Information.
USE OF PROCEEDS
The net proceeds from the sale of the notes will be used for general
corporate purposes relating to our utility business. These purposes include
redeeming or repurchasing outstanding debt or preferred stock and replenishing
working capital. If we do not use the net proceeds immediately, we temporarily
invest them in short-term, interest-bearing obligations. We estimate that our
construction costs in 1999 will approximate $201,000,000. At March 24, 1999, our
outstanding short-term debt was $164,357,000.
DESCRIPTION OF THE NOTES
General
We will issue the notes under the Indenture dated September 1, 1997 (as
previously supplemented and amended) between us and the Trustee, Bankers Trust
Company. This prospectus briefly outlines some provisions of the Indenture. If
you would like more information on these provisions, review the Indenture and
any supplemental indentures or company orders that we have filed or will file
with the SEC. See Where You Can Find More Information on how to locate these
documents. You may also review these documents at the Trustee's offices at Four
Albany Street, New York, New York.
The Indenture does not limit the amount of notes that may be issued. The
Indenture permits us to issue notes in one or more series or tranches upon the
approval of our board of directors and as described in one or more company
orders or supplemental indentures. Each series of notes may differ as to their
terms.
The notes are unsecured and will rank equally with all our unsecured
unsubordinated debt. Substantially all of our fixed properties and franchises
are subject to the lien of our first mortgage bonds issued under and secured by
a Mortgage and Deed of Trust, dated as of October 1, 1938 (as previously
supplemented and amended) between us and The Chase Manhattan Bank, formerly
Central Hanover Bank and Trust Company, as trustee. For current information on
our debt outstanding see our most recent Form 10-K and 10-Q. See Where You Can
Find More Information.
The notes will be denominated in U.S. dollars and we will pay principal
and interest in U.S. dollars. Unless an applicable pricing or prospectus
supplement states otherwise, the notes will not be subject to any conversion,
amortization, or sinking fund. We expect that the notes will be "book-entry,"
represented by a permanent global note registered in the name of The Depository
Trust Company, or its nominee. We reserve the right, however, to issue note
certificates registered in the name of the noteholders.
In the discussion that follows, whenever we talk about paying principal on
the notes, we mean at maturity or redemption. Also, in discussing the time for
notices and how the different interest rates are calculated, all times are New
York City time and all references to New York mean the City of New York, unless
otherwise noted.
The following terms may apply to each note as specified in the applicable
pricing or prospectus supplement and the note.
Redemptions
If we issue redeemable notes, we may redeem such notes at our option
unless an applicable pricing or prospectus supplement states otherwise. The
pricing or prospectus supplement will state the terms of redemption. We may
redeem notes in whole or in part by delivering written notice to the noteholders
no more than 60, and not less than 30, days prior to redemption. If we do not
redeem all the notes of a series at one time, the Trustee selects the notes to
be redeemed in a manner it determines to be fair.
Remarketed Notes
If we issue notes with remarketing features, an applicable pricing or
prospectus supplement will describe the terms for the notes including: interest
rate, remarketing provisions, our right to redeem notes, the holders' right to
tender notes, and any other provisions.
Book-Entry Notes - Registration, Transfer, and Payment of Interest and Principal
Book-entry notes of a series will be issued in the form of a global note
that the Trustee will deposit with The Depository Trust Company, New York, New
York ("DTC"). This means that we will not issue note certificates to each
holder. One or more global notes will be issued to DTC who will keep a
computerized record of its participants (for example, your broker) whose clients
have purchased the notes. The participant will then keep a record of its clients
who purchased the notes. Unless it is exchanged in whole or in part for a note
certificate, a global note may not be transferred; except that DTC, its
nominees, and their successors may transfer a global note as a whole to one
another.
Beneficial interests in global notes will be shown on, and transfers of
global notes will be made only through, records maintained by DTC and its
participants.
DTC has provided us the following information: DTC is a limited-purpose
trust company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the United States
Federal Reserve System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code and a "clearing agency" registered under the
provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds
securities that its participants ("Direct Participants") deposit with DTC. DTC
also records the settlement among Direct Participants of securities
transactions, such as transfers and pledges, in deposited securities through
computerized records for Direct Participant's accounts. This eliminates the need
to exchange note certificates. Direct Participants include securities brokers
and dealers, banks, trust companies, clearing corporations and certain other
organizations.
Other organizations such as securities brokers and dealers, banks and
trust companies that work through a Direct Participant also use DTC's book-entry
system. The rules that apply to DTC and its participants are on file with the
SEC.
A number of its Direct Participants and the New York Stock Exchange,
Inc., The American Stock Exchange, Inc. and the National Association of
Securities Dealers, Inc. own DTC.
We will wire principal and interest payments to DTC's nominee. We and the
Trustee will treat DTC's nominee as the owner of the global notes for all
purposes. Accordingly, we, the Trustee and any paying agent will have no direct
responsibility or liability to pay amounts due on the global notes to owners of
beneficial interests in the global notes.
It is DTC's current practice, upon receipt of any payment of principal or
interest, to credit Direct Participants' accounts on the payment date according
to their respective holdings of beneficial interests in the global notes as
shown on DTC's records. In addition, it is DTC's current practice to assign any
consenting or voting rights to Direct Participants whose accounts are credited
with notes on a record date. The customary practices between the participants
and owners of beneficial interests will govern payments by participants to
owners of beneficial interests in the global notes and voting by participants,
as is the case with notes held for the account of customers registered in
"street name." However, payments will be the responsibility of the participants
and not of DTC, the Trustee or us.
DTC management is aware that some computer applications, systems and the
like for processing data ("Systems") that are dependent upon calendar dates,
including dates before, on and after January 1, 2000, may encounter "Year 2000
problems". DTC has informed its Participants and other members of the financial
community (the "Industry") that it has developed and is implementing a program
so that its Systems, as the same relate to the timely payment of distributions
(including principal and income payments) to securityholders, book-entry
deliveries and settlement of trades within DTC ("DTC Services"), continue to
function appropriately. This program includes a technical assessment and a
remediation plan, each of which is complete. Additionally, DTC's plan includes a
testing phase, which is expected to be completed within appropriate time frames.
However, DTC's ability to perform properly its services is also dependent
upon other parties, including but not limited to issuers and their agents, as
well as third party vendors from whom DTC licenses software and hardware, and
third party vendors on whom DTC relies for information or the provision of
services, including telecommunication and electrical utility service providers,
among others. DTC has informed the Industry that it is contacting (and will
continue to contact) third party vendors from whom DTC acquires services to: (i)
impress upon them the importance of such services being Year 2000 compliant; and
(ii) determine the extent of their efforts for Year 2000 remediation (and, as
appropriate, testing) of their services. In addition, DTC is in the process of
developing such contingency plans as it deems appropriate.
According to DTC, the foregoing information with respect to DTC has been
provided to the Industry for informational purposes only and is not intended to
serve as a representation, warranty or contract modification of any kind.
Notes represented by a global note will be exchangeable for note
certificates with the same terms in authorized denominations only if:
- DTC notifies us that it is unwilling or unable to continue as depositary
or if DTC ceases to be a clearing agency registered under applicable law
and a successor depositary is not appointed by us within 90 days; or
- we determine not to require all of the notes of a series to be
represented by a global note and notify the Trustee of our decision.
Note Certificates-Registration, Transfer, and Payment of Interest and Principal
If we issue note certificates, they will be registered in the name of the
noteholder. The notes may be transferred or exchanged, pursuant to
administrative procedures in the indenture, without the payment of any service
charge (other than any tax or other governmental charge) by contacting the
paying agent. Payments on note certificates will be made by check.
Interest Rate
General
We have provided a Glossary at the end of this prospectus to define the
capitalized terms used in discussing the interest rates payable on the notes.
The interest rate on the notes will either be fixed or floating. The
interest paid will include interest accrued to, but excluding, the date of
maturity or redemption. Interest is generally payable to the person in whose
name the note is registered at the close of business on the record date before
each interest payment date. Interest payable at maturity or redemption, however,
will be payable to the person to whom principal is payable.
If we issue a note after a record date but on or prior to the related
interest payment date, we will pay the first interest payment on the interest
payment date after the next record date. We will pay interest payments by check
or wire transfer, at our option.
Fixed Rate Notes
A pricing or prospectus supplement will designate the record dates,
payment dates and the fixed rate of interest payable on a note. We will pay
interest quarterly or semi-annually, and upon maturity or redemption. Unless an
applicable pricing or prospectus supplement states otherwise, if any payment
date falls on a day that is not a Business Day, we will pay interest on the next
Business Day and no additional interest will be paid. Interest payments will be
the amount of interest accrued to, but excluding, each payment date. Interest
will be computed using a 360-day year of twelve 30-day months.
Floating Rate Notes: General
Each floating rate note will have an interest rate formula. The formula
may be based on:
- the commercial paper rate; - the prime rate; - the CD rate; - the
federal funds effective rate; - the LIBOR; - the Treasury rate; - the CMT
rate; or - another interest rate index.
The applicable pricing supplement will also indicate the Spread and/or
Spread Multiplier, if any. In addition, any floating rate note may have a
maximum or minimum interest rate limitation.
Upon request, the Calculation Agent will provide the current interest rate
and, if different, the interest rate which will become effective on the next
Interest Reset Date.
Floating Rate Notes: Date of Interest Rate Change
The interest rate on each floating rate note may be reset daily, weekly,
monthly, quarterly, semi-annually, or annually. The Interest Reset Date will
be:
- for notes which reset daily, each Business Day; - for notes (other than
Treasury rate notes) which reset weekly, the Wednesday of each week;
- for Treasury rate notes which reset weekly, the Tuesday of each week;
- for notes which reset monthly, on the third Wednesday of each month;
- for notes which reset quarterly, the third Wednesday of March, June,
September and December;
- for notes which reset semi-annually, the third Wednesday of the two
months of each year indicated in the applicable pricing supplement; and
- for notes which reset annually, the third Wednesday of the month of each
year indicated in the applicable pricing supplement.
The applicable pricing supplement will state the initial interest rate or
interest rate formula on each note effective until the first Interest Reset
Date. After that, the interest rate will be the rate determined on the next
Interest Determination Date, as explained below. Each time a new interest rate
is determined, it will become effective on the subsequent Interest Reset Date.
If any Interest Reset Date is not a Business Day, then the Interest Reset Date
will be postponed to the next Business Day. However, in the case of a LIBOR
note, if the next Business Day is in the next calendar month, the Interest Reset
Date will be the immediately preceding Business Day.
Floating Rate Notes: When Interest Rate Is Determined
The Interest Determination Date for all notes (except Treasury rate notes)
is the second Business Day before the Interest Reset Date (second London
Business Day before the Interest Reset Date for LIBOR notes).
The Interest Determination Date for Treasury rate notes will be the day of
the week in which the Interest Reset Date falls on which Treasury bills would
normally be auctioned. Treasury bills are usually sold at auction on Monday of
each week, unless that day is a legal holiday, in which case the auction is
usually held on Tuesday. However, the auction may be held on the preceding
Friday. If an auction is held on the preceding Friday, that day will be the
Interest Determination Date pertaining to the Interest Reset Date occurring in
the next week. If an auction date falls on any Interest Reset Date then the
Interest Reset Date will instead be the first Business Day immediately following
the auction date.
Floating Rate Notes: When Interest Is Paid
Interest is paid as follows:
- for notes which reset daily, weekly or monthly, on the third Wednesday
of each month or on the third Wednesday of March, June, September and
December (as indicated in the applicable pricing supplement);
- for notes which reset quarterly, on the third Wednesday of March, June,
September, and December; - for notes which reset semi-annually, on the
third Wednesday of the two months specified in the applicable pricing
supplement;
- for notes which reset annually, on the third Wednesday of the month
specified in the applicable pricing supplement; and
- at maturity or redemption .
If interest is payable on a day which is not a Business Day, payment will
be postponed to the next Business Day and no additional interest shall be due.
However, for LIBOR notes, if the next Business Day is in the next calendar
month, interest will be paid on the preceding Business Day.
Unless an applicable pricing supplement states otherwise, the record date
will be 15 calendar days prior to each day interest is paid, whether or not such
day is a Business Day.
The interest payable will be the amount of interest accrued to, but
excluding, the interest payment date. However, for notes on which the interest
resets daily or weekly, the interest payable will include interest accrued to
and including the record date prior to the interest payment date. If the
interest payment date is also a day that principal is due, the interest payable
will include interest accrued to, but excluding, the date of maturity or
redemption.
The accrued interest for any period is calculated by multiplying the
principal amount of a note by an accrued interest factor. The accrued interest
factor is computed by adding the interest factor calculated for each day in the
period to the date for which accrued interest is being calculated. The interest
factor (expressed as a decimal rounded upwards if necessary) is computed by
dividing the interest rate (expressed as a decimal rounded upwards if necessary)
applicable to such date by 360, unless the applicable pricing supplement states
otherwise, or the notes are Treasury rate notes or CMT rate notes, in which case
it will be divided by the actual number of days in the year.
All percentages resulting from any calculation of floating rate notes will
be rounded, if necessary, to the nearest one-hundred thousandth of a percentage
point, with five one-millionths of a percentage point rounded upwards (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or .0987655) and 9.876544%
(or .09876544) being rounded to 9.87654% (or .0987654)), and all dollar amounts
used in or resulting from such calculation will be rounded to the nearest cent
(with one-half cent being rounded upwards).
Floating Rate Notes: Interest Rate Formulas
Commercial Paper Rate Notes.
Each commercial paper rate note will bear interest at the rate (calculated
with reference to the Commercial Paper Rate and the Spread and/or Spread
Multiplier, if any) specified on the commercial paper rate note and in the
applicable pricing supplement.
"Commercial Paper Rate" means, with respect to any Commercial Paper Rate
Interest Determination Date, the Money Market Yield (calculated as described
below) of the rate on such date for commercial paper having the Index Maturity
specified in the applicable pricing supplement as published in Federal Reserve
Statistical Release H.15(519) under the heading "Commercial
Paper--Nonfinancial."
The following procedures will occur if the rate cannot be set as described
above:
(a) If that rate is not published in H.15 (519) prior to 3:00 P.M. on
the Calculation Date, then the Commercial Paper Rate will be the Money
Market Yield of the rate on the Commercial Paper Rate Interest
Determination Date for commercial paper having the Index Maturity specified
in the applicable pricing supplement as published in Composite Quotations
under the heading "Commercial Paper."
(b) If the rate is not published in either H.15 (519) or in Composite
Quotations by 3:00 P.M. on the Calculation Date, the Commercial Paper Rate
for that Commercial Paper Rate Interest Determination Date will then be
calculated by the Calculation Agent in the following manner.
The Commercial Paper Rate will be calculated as the Money Market
Yield of the average for the offered rates, as of 11:00 A.M. on that date,
of three leading dealers of commercial paper in New York selected for
commercial paper having the applicable Index Maturity placed for an
industrial issuer whose bond rating is "Aa," or the equivalent, from a
nationally recognized rating agency.
(c) Finally, if fewer than three dealers are quoting as mentioned,
the rate of interest in effect for the applicable period will be the same
as the rate of interest in effect for the prior interest reset period.
Prime Rate Notes. Each prime rate note will bear interest at the rate
(calculated with reference to the Prime Rate and the Spread and/or Spread
Multiplier, if any) specified on the prime rate note and in the applicable
pricing supplement.
"Prime Rate" means, with respect to any Prime Rate Interest Determination
Date, the rate set forth on such date in H.15(519) under the heading "Bank Prime
Loan."
The following procedures will occur if the rate cannot be set as described
above:
(a) If that rate is not published in H.15(519) prior to 3:00 P.M. on
the Calculation Date, then the Prime Rate will be the average of the rates
of interest publicly announced by each bank that appear on the Reuters
Screen USPRIME1 Page as its prime rate or base lending rate as in effect
for that Prime Rate Interest Determination Date.
(b) If fewer than four rates appear on the Reuters Screen USPRIME1
Page, the Prime Rate will be the average of the prime rates or base lending
rates quoted on the basis of the actual number of days in the year divided
by a 360-day year as of the close of business on the Prime Rate Interest
Determination Date by four major money center banks in New York selected by
the Calculation Agent.
(c) If fewer than four banks are quoting as mentioned, the Prime Rate
shall be determined on the basis of the rates furnished in New York by the
major money center banks, if any, that have provided such quotations, and
by an appropriate number of substitute banks or trust companies organized
and doing business under the laws of the United States, or any State
thereof, having total equity capital of at least $500 million and being
subject to supervision or examination by a Federal or State authority, as
selected by the Calculation Agent.
(d) Finally, if the banks are not quoting as mentioned above, the rate
of interest in effect for the applicable period will be the same as the
rate of interest in effect for the prior interest reset period.
CD Rate Notes. Each CD rate note will bear interest at the rate
(calculated with reference to the CD Rate and the Spread and/or Spread
Multiplier, if any) specified on the CD rate note and in the applicable pricing
supplement.
"CD Rate" means, with respect to any CD Rate Interest Determination Date,
the rate on that date for negotiable U.S. dollar certificates of deposit having
the Index Maturity specified in the applicable pricing supplement as published
in H.15(519) under the heading "CDs (Secondary Market)."
The following procedures will occur if the rate cannot be set as described
above:
(a) If that rate is not published in H.15(519) prior to 3:00 P.M. on
the Calculation Date, then the CD Rate will be the rate on that CD Rate
Interest Determination Date for negotiable U.S. Dollar certificates of
deposit having the applicable Index Maturity as published in Composite
Quotations under the heading "Certificates of Deposit."
(b) If that rate is not published in either H.15 (519) or in
Composite Quotations by 3:00 P.M. on that Calculation Date, the CD Rate for
that CD Rate Interest Determination Date shall be calculated by the
Calculation Agent as follows:
The CD Rate will be calculated as the average of the secondary market
offered rates, as of 10:00 A.M., of three leading nonbank dealers of
negotiable U.S. dollar certificates of deposit in New York selected by the
Calculation Agent for negotiable U.S. dollar certificates of deposit of
major United States money market banks with a remaining maturity closest to
the Index Maturity specified in the applicable pricing supplement in a
representative amount.
(c) Finally, if fewer than three dealers are quoting as mentioned,
the rate of interest in effect for the applicable period will be the same
as the rate of interest in effect for the prior interest reset period.
Federal Funds Rate Notes. Each federal funds rate note will bear interest
at the rate (calculated with reference to the Federal Funds Rate and the Spread
and/or Spread Multiplier, if any) specified on the federal funds rate note and
in the applicable pricing supplement.
"Federal Funds Rate" means, with respect to any Federal Funds Rate
Interest Determination Date, the rate on such date for U.S. dollar federal funds
as published in H.15(519) under the heading "Federal Funds (Effective)."
The following procedures will occur if the rate cannot be set as described
above:
(a) If that rate is not published in H.15(519) prior to 3:00 P.M. on
the Calculation Date, then the Federal Funds Rate will be the rate on that
Federal Funds Rate Interest Determination Date as published in Composite
Quotations under the heading "Federal Funds/Effective Rate."
(b) If that rate is not published in either H.15 (519) or in
Composite Quotations by 3:00 P.M. on the Calculation Date, the Federal
Funds Rate for that Federal Funds Rate Interest Determination Date will be
calculated by the Calculation Agent as follows:
The Federal Funds Rate will be the average of the rates, as of 9:00
A.M. on that date, for the last transaction in overnight federal funds
arranged by three leading brokers of federal funds transactions in New York
selected by the Calculation Agent.
(c) Finally, if fewer than three brokers are quoting as mentioned
above, the rate of interest in effect for the applicable period will be the
same as the rate of interest in effect for the prior interest reset period.
LIBOR Notes. Each LIBOR note will bear interest at the rate (calculated
with reference to LIBOR and the Spread and/or Spread Multiplier, if any)
specified on the LIBOR note and in the applicable pricing supplement.
"LIBOR" means the London interbank offered rate for deposits in U.S.
dollars and will be determined by the Calculation Agent as follows:
(a) With respect to any LIBOR Interest Determination Date, LIBOR will
be determined by either:
(1) the average of the offered rates for deposits in U.S. dollars
having the Index Maturity specified in the applicable pricing
supplement, beginning on the second Business Day immediately after that
date, that appear on the Reuters Screen LIBO Page as of 11:00 A.M.,
London time, on that date, if at least two offered rates appear on the
Reuters Screen LIBO Page; or
(2) the rate for deposits in U.S. dollars having the Index
Maturity designated in the applicable pricing supplement, beginning on
the second London Business Day immediately after such date, that appears
on the Telerate Page 3750 as of 11:00 A.M., London time, on that date.
If neither Reuters Screen LIBO Page nor Telerate Page 3750 is
specified in the applicable pricing supplement, LIBOR will be determined as
if Telerate Page 3750 had been specified.
In the case where (1) above applies, if fewer than two offered rates
appear on the Reuters Screen LIBO Page, or, in the case where (2) above
applies, if no rate appears on the Telerate Page 3750, LIBOR for that date
will be determined as follows:
(b) LIBOR will be determined based on the rates at approximately
11:00 A.M., London time, on that LIBOR Interest Determination Date at which
deposits in U.S. dollars having the applicable Index Maturity are offered
to prime banks in the London interbank market by four major banks in the
London interbank market selected by the Calculation Agent that in the
Calculation Agent's judgment is representative for a single transaction in
such market at such time (a "Representative Amount"). The offered rates
must begin on the second Business Day immediately after that LIBOR Interest
Determination Date.
The Calculation Agent will request the principal London office of
each such bank to provide a quotation of its rate. If at least two such
quotations are provided, LIBOR for such date will be the average of such
quotations.
(c) If fewer than two quotations are provided, LIBOR for that date
will be the average of the rates quoted at approximately 11:00 A.M. on such
date by three major banks in New York, selected by the Calculation Agent.
The rates will be for loans in U.S. dollars to leading European banks
having the specified Index Maturity beginning on the second Business Day
after that date and in a Representative Amount.
(d) Finally, if fewer than three banks are quoting as mentioned, the
rate of interest in effect for the applicable period will be the same as
the rate of interest in effect for the prior interest reset period.
Treasury Rate Notes. Each Treasury rate note will bear interest at the
rate (calculated with reference to the Treasury Rate and the Spread and/or
Spread Multiplier, if any) specified on the Treasury rate note and in the
applicable pricing supplement.
"Treasury Rate" means, with respect to any Treasury Rate Interest
Determination Date, the rate for the most recent auction of direct obligations
of the United States ("Treasury Bills") having the Index Maturity specified in
the applicable pricing supplement as published in H.15(519) under the heading
"U.S. Government Securities/Treasury Bills/Auction Average (Investment)."
The following procedures will occur if the rate cannot be set as described
above:
(a) If that rate is not published in H.15(519) by 3:00 P.M. on the
applicable Calculation Date, the rate will be the auction average rate
(expressed as a bond equivalent, on the basis of a year of 365 or 366 days,
as applicable, and applied on a daily basis) for such auction as otherwise
announced by the United States Department of the Treasury.
(b) If the results of the auction of Treasury Bills having the
applicable Index Maturity are not published in H.15(519) by 3:00 P.M., or
otherwise published or reported as provided above by 3:00 P.M. on the
Calculation Date, or if no auction is held in a particular week, then the
Treasury Rate shall be calculated by the Calculation Agent as follows:
The rate will be calculated as a yield to maturity (expressed as a
bond equivalent, on the basis of a year of 365 or 366 days, as applicable,
and applied on a daily basis) of the average of the secondary market bid
rates as of approximately 3:30 P.M. on the Treasury Rate Interest
Determination Date, of three leading primary United States government
securities dealers in New York selected by the Calculation Agent for the
issue of Treasury Bills with a remaining maturity closest to the specified
Index Maturity.
(c) Finally, if fewer than three dealers are quoting as mentioned,
the rate of interest in effect for the period will be the same as the rate
of interest in effect for the prior interest reset period.
CMT Rate Notes. Each CMT rate note will bear interest at the rate
(calculated with reference to the CMT Rate and the Spread or Spread Multiplier,
if any) specified on such CMT rate note and in the applicable pricing
supplement.
"CMT Rate" means, with respect to any CMT Rate Interest Determination
Date, the rate displayed on the Designated CMT Telerate Page under the caption
"... Treasury Constant Maturities... Federal Reserve Board Release H.15...
Mondays Approximately 3:45 P.M.," under the column for the applicable Index
Maturity designated in the applicable pricing supplement for:
(1) if the Designated CMT Telerate Page is 7055, the rate for the
applicable CMT Rate Interest Determination Date; or
(2) if the Designated CMT Telerate Page is 7052, the week, or the month,
as applicable, ended immediately preceding the week in which the CMT Rate
Interest Determination Date occurs.
The following procedures will occur if the rate cannot be set as described
above:
(a) If no page is specified in the applicable pricing supplement and
on the face of such CMT Rate note, the Designated CMT Telerate Page shall
be 7052 for the most recent week. If such rate is no longer displayed on
the relevant page, or if it is not displayed by 3:00 P.M. on the related
Calculation Date, then the CMT Rate will be the Treasury constant maturity
rate for the applicable Index Maturity as published in the relevant H.15
(519).
(b) If that rate is no longer published in H.15(519), or is not
published by 3:00 P.M. on the related Calculation Date, then the CMT Rate
for such CMT Rate Interest Determination Date will be the Treasury constant
maturity rate for the applicable Index Maturity (or other United States
Treasury rate for such Index Maturity for that CMT Rate Interest
Determination Date with respect to such Interest Reset Date) as may then be
published by either the Federal Reserve Board or the United States
Department of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Designated CMT Telerate
Page and published in the relevant H.15(519).
(c) If that information is not provided by 3:00 P.M. on the related
Calculation Date, then the CMT Rate for that CMT Rate Interest
Determination Date will be calculated by the Calculation Agent as follows:
The rate will be calculated as a yield to maturity, based on the
average of the secondary market closing offer side prices as of
approximately 3:30 P.M. on that CMT Rate Interest Determination Date
reported, according to their written records, by three leading primary
United States government securities dealers (each, a "Reference Dealer") in
New York selected by the Calculation Agent. These dealers will be selected
from five such Reference Dealers.
The Calculation Agent will eliminate the highest quotation (or, in
the event of equality, one of the highest) and the lowest quotation (or, in
the event of equality, one of the lowest), for the most recently issued
direct noncallable fixed rate obligations of the United States ("Treasury
Notes") with an original maturity of approximately the applicable Index
Maturity and a remaining term to maturity of not less than such Index
Maturity minus one year.
If two Treasury Notes with an original maturity as described in the
preceding sentence have remaining terms to maturity equally close to the
applicable Index Maturity, the quotes for the Treasury Note with the
shorter remaining term to maturity will be used.
(d) If the Calculation Agent cannot obtain three such Treasury Note
quotations, the CMT Rate for that CMT Rate Interest Determination Date will
be calculated by the Calculation Agent as follows:
The rate will be calculated as a yield to maturity based on the
average of the secondary market offer side prices as of approximately 3:30
P.M. on that CMT Rate Interest Determination Date of three Reference
Dealers in New York selected by the Calculation Agent using the same method
described above, for Treasury Notes with an original maturity of the number
of years that is the next highest to the applicable Index Maturity with a
remaining term to maturity closest to such Index Maturity and in an amount
of at least $100 million.
If three or four (and not five) of the Reference Dealers are quoting
as described above, then the CMT Rate will be based on the average of the
offer prices obtained and neither the highest nor the lowest of such quotes
will be eliminated.
(e) Finally, if fewer than three Reference Dealers are quoting as
mentioned, the rate of interest in effect for the applicable period will be
the same as the rate of interest in effect for the prior interest reset
period.
Events of Default
"Event of Default" means any of the following:
- failure to pay for three Business Days the principal of (or premium,
if any, on) any note of a series when due and payable;
- failure to pay for 30 days any interest on any note of any series
when due and payable;
- failure to perform any other requirements in such notes, or in the
Indenture in regard to such notes, for 90 days after notice;
- certain events of bankruptcy or insolvency; or
- any other event of default specified in a series of notes.
An Event of Default for a particular series of notes does not necessarily
mean that an Event of Default has occurred for any other series of notes issued
under the Indenture. If an Event of Default occurs and continues, the Trustee or
the holders of at least 33% of the principal amount of the notes of the series
affected may require us to repay the entire principal of the notes of such
series immediately ("Repayment Acceleration"). In most instances, the holders of
at least a majority in aggregate principal amount of the notes of the affected
series may rescind a previously triggered Repayment Acceleration. However, if we
cause an Event of Default because we have failed to pay (unaccelerated)
principal, premium, if any, or interest, Repayment Acceleration may be rescinded
only if we have first cured our default by depositing with the Trustee enough
money to pay all (unaccelerated) past due amounts and penalties, if any.
The Trustee must within 90 days after a default occurs, notify the holders
of the notes of the series of default unless such default has been cured or
waived. We are required to file an annual certificate with the Trustee, signed
by an officer, concerning any default by us under any provisions of the
Indenture.
Subject to the provisions of the Indenture relating to its duties in case
of default, the Trustee shall be under no obligation to exercise any of its
rights or powers under the Indenture at the request, order or direction of any
holders unless such holders offer the Trustee reasonable indemnity. Subject to
the provisions for indemnification, the holders of a majority in principal
amount of the notes of any series may direct the time, method and place of
conducting any proceedings for any remedy available to, or exercising any trust
or power conferred on, the Trustee with respect to such notes.
Modification of Indenture
Under the Indenture, our rights and obligations and the rights of the
holders of any notes may be changed. Any change affecting the rights of the
holders of any series of notes requires the consent of the holders of not less
than a majority in aggregate principal amount of the outstanding notes of all
series affected by the change, voting as one class. However, we cannot change
the terms of payment of principal or interest, or a reduction in the percentage
required for changes or a waiver of default, unless the holder consents. We may
issue additional series of notes and take other action that does not affect the
rights of holders of any series by executing supplemental indentures without the
consent of any noteholders. Consolidation, Merger or Sale
We may merge or consolidate with any corporation or sell substantially all
of our assets as an entirety as long as the successor or purchaser expressly
assumes the payment of principal, and premium, if any, and interest on the
notes.
Legal Defeasance
We will be discharged from our obligations on the notes of any series at
any time if:
- we deposit with the Trustee sufficient cash or government securities to
pay the principal, interest, any premium and any other sums due to the
stated maturity date or a redemption date of the note of the series, and
- we deliver to the Trustee an opinion of counsel stating that the federal
income tax obligations of noteholders of that series will not change as a
result of our performing the action described above.
If this happens, the noteholders of the series will not be entitled to
the benefits of the Indenture except for registration of transfer and exchange
of notes and replacement of lost, stolen or mutilated notes.
Covenant Defeasance
We will be discharged from our obligations under any restrictive covenant
applicable to the notes of a particular series if we perform both actions
described above. See Legal Defeasance. If this happens, any later breach of that
particular restrictive covenant will not result in Repayment Acceleration. If we
cause an Event of Default apart from breaching that restrictive covenant, there
may not be sufficient money or government obligations on deposit with the
Trustee to pay all amounts due on the notes of that series. In that instance, we
would remain liable for such amounts.
Governing Law
The Indenture and notes of all series will be governed by the laws of the
State of New York.
Concerning the Trustee
We and our affiliates use or will use some of the banking services of the
Trustee in the normal course of business.
PLAN OF DISTRIBUTION
We may sell the notes (a) through agents; (b) through underwriters or
dealers; or (c) directly to one or more purchasers.
By Agents
Notes may be sold on a continuing basis through agents designated by us.
The agents will agree to use their reasonable efforts to solicit purchases for
the period of their appointment.
Unless the pricing supplement states otherwise, the notes will be sold to
the public at 100% of their principal amount. Agents will receive commissions
from .125% to .750% of the principal amount per note depending on the maturity
of the note they sell.
The Agents will not be obligated to make a market in the notes. We cannot
predict the amount of trading or liquidity of the notes.
By Underwriters
If underwriters are used in the sale, the underwriters will acquire the
notes for their own account. The underwriters may resell the notes in one or
more transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. The obligations of
the underwriters to purchase the notes will be subject to certain conditions.
The underwriters will be obligated to purchase all the notes of the series
offered if any of the notes are purchased. Any initial public offering price and
any discounts or concessions allowed or re-allowed or paid to dealers may be
changed from time to time.
Direct Sales
We may also sell notes directly. In this case, no underwriters or agents
would be involved.
General Information
Underwriters, dealers, and agents that participate in the distribution of
the notes may be underwriters as defined in the Securities Act of 1933 (the
"Act"), and any discounts or commissions received by them from us and any profit
on the resale of the notes by them may be treated as underwriting discounts and
commissions under the Act.
We may have agreements with the underwriters, dealers and agents to
indemnify them against certain civil liabilities, including liabilities under
the Act.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, us or our affiliates in the ordinary course of their
businesses.
LEGAL OPINIONS
Our counsel, Simpson Thacher & Bartlett, New York, NY, and one of our
lawyers will each issue an opinion about the legality of the notes for us. Dewey
Ballantine LLP, New York, NY will issue an opinion for the agents or
underwriters. From time to time, Dewey Ballantine LLP acts as counsel to our
affiliates for some matters.
EXPERTS
The financial statements and related financial statement schedule
incorporated in this prospectus by reference from the Company's Annual Report on
Form 10-K have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their reports, which are incorporated herein by reference, and have
been so incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
GLOSSARY
Set forth below are definitions of some of the terms used in this
Prospectus.
"Business Day" means any day other than a Saturday or Sunday that (a) is
not a day on which banking institutions in New York, New York, are authorized or
obligated by law or executive order to be closed, and (b) with respect to LIBOR
Notes only, is a day on which dealings in deposits in U.S. dollars are
transacted in the London interbank market.
"Calculation Agent" means the entity we choose to perform the duties
related to interest rate calculation and resets for floating rate notes. The
applicable pricing supplement will identify the Calculation Agent.
"Calculation Date" means the date on which the Calculation Agent
calculates an interest rate for a floating rate note, which will be one of the
following:
"Prime Rate" - tenth day after the related Prime Rate Interest Determination
Date or, if such day is not a Business Day, the next Business Day.
"CD Rate" - tenth day after the related CD Rate Interest Determination Date
or, if such day is not a Business Day, the next Business Day.
"CMT Rate" - tenth day after the related CMT Rate Interest Determination
Date or, if such day is not a Business Day, the next Business Day.
"Commercial Paper Rate" - tenth day after the related Commercial Paper Rate
Interest Determination Date or, if such day is not a Business Day, the next
Business Day.
"LIBOR" - the LIBOR Interest Determination Date.
"Treasury Rate" - tenth day after the related Treasury Rate Interest
Determination Date or, if such day is not a Business Day, the next Day.
"Federal Funds Rate" - tenth day after the related Federal Funds Rate
Interest Determination Date or, if such day is not a Business Day, the next
Business Day.
"Composite Quotations" means the successor publication to the daily
statistical release entitled "Composite 3:30 P.M. Quotations for U.S.
Government Securities," published by The Federal Reserve Bank of New York.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service on the page designated in the applicable pricing supplement and on the
face of such CMT Rate note (or any other page as may replace such page on that
service) for the purpose of displaying Treasury Constant Maturities as reported
in H.15(519).
"H.15 (519)" means the weekly statistical release entitled "Statistical
Release H.15 (519), Selected Interest Rates," or any successor publication,
published by the Board of Governors of the Federal Reserve System.
"Index Maturity" means, with respect to a floating rate note, the period
to maturity of the note on which the interest rate formula is based, as
indicated in the applicable pricing supplement.
"Interest Determination Date" means the date as of which the interest rate
for a floating rate note is to be calculated, to be effective as of the
following Interest Reset Date and calculated on the related Calculation Date
(except in the case of LIBOR which is calculated on the related LIBOR Interest
Determination Date). The Interest Determination Dates will be indicated in the
applicable pricing supplement and in the note.
"Interest Reset Date" means the date on which a floating rate note will
begin to bear interest at the variable interest rate determined on any Interest
Determination Date. The Interest Reset Dates will be indicated in the applicable
pricing supplement and in the note.
"Money Market Yield" is the yield (expressed as a percentage rounded
upwards, if necessary, to the next higher one-hundred thousandth of a percentage
point) calculated in accordance with the following formula:
Money Market Yield = D X 360 X 100
360 - (D X M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the period for which interest is being calculated.
"Reuters Screen LIBO Page" means the display designated as page "LIBO" on
the Reuters Monitor Money Rates Service (or such other page as may replace the
LIBO page on that service for the purpose of displaying London interbank offered
rates of major banks).
"Reuters Screen USPRIME1 Page" means the display designated as page
USPRIME1 on the Reuters Monitor Money Rates Service (or such other page as may
replace the USPRIME1 page on that service for the purpose of displaying prime
rates or base lending rates of major U.S. banks).
"Spread" means the number of basis points specified in the applicable
pricing supplement as being applicable to the interest rate for a floating rate
note.
"Spread Multiplier" means the percentage specified in the applicable
pricing supplement as being applicable to the interest rate for a floating rate
note.
"Telerate Page 3750" means the display designated as page "3750" on the
Dow Jones Telerate Service (or such other page as may replace the 3750 page on
that service or such other service or services as may be nominated by the
British Bankers Association for the purpose of displaying London interbank
offered rates of major banks for U.S. dollar deposits).
Table of Contents
WHERE YOU CAN FIND MORE
INFORMATION ................... 2
THE COMPANY........................ 2
PROSPECTUS SUPPLEMENTS............. 2
RATIO OF EARNINGS TO
FIXED CHARGES................... 3
USE OF PROCEEDS ................... 3
DESCRIPTION OF THE NOTES .......... 3
General ....................... 3
Redemptions .................... 4
Remarketed Notes............. 4
Book-Entry Notes - Registration,
Transfer, and Payment of
Interest and Principal ... 4
Note Certificates- Registration,
Transfer, and Payment of
Interest and Principal .... 5
Interest Rate .................. 5
General ..................... 5
Fixed Rate Notes ............ 6
Floating Rate Notes:General.. 6
Floating Rate Notes: Date
of Interest Rate Change.... 6
Floating Rate Notes: When
Interest Rate Is Determined.7
Floating Rate Notes: When
Interest Is Paid........... 7
Floating Rate Notes: Interest
Interest Rate Formulas..... 8
Event of Default..............13
Modification of Indenture.....14
Consolidation, Merger or Sale.14
Legal Defeasance..............15
Covenant Defeasance...........15
Governing Law.................15
Concerning the Trustee........15
PLAN OF DISTRIBUTION...............15
By Agents.....................15
By Underwriters...............15
Direct Sales..................15
General Information...........15
LEGAL OPINIONS.....................16
EXPERTS............................16
GLOSSARY...........................16
$250,000,000 Unsecured Notes
PROSPECTUS
The date of this prospectus is _______, 1999
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
Estimation based upon the issuance of all of the unsecured notes in
one issuance:
Securities and Exchange Commission Filing Fees....................$ 55,044
Printing Registration Statement, Prospectus, etc.................. 30,000
Independent Auditors' fees........................................ 45,000
Charges of Trustee (including counsel fees)....................... 15,000
Legal fees........................................................ 160,000
Rating Agency fees................................................ 136,500
Miscellaneous expenses............................................ 25,000
Total........................................................$ 466,544
* ....Estimated, except for filing fees.
Item 15.....Indemnification of Directors and Officers.
......Section 1701.13(E) of the Ohio Revised Code gives a corporation
incorporated under the laws of Ohio power to indemnify any person who is or has
been a director, officer, agent or employee of that corporation, or of another
corporation, domestic or foreign, non-profit or for profit, limited liability
company or a partnership, joint venture or other enterprise, at the request of
that corporation, against expenses actually and reasonably incurred by him in
connection with any pending, threatened or completed action, suit or proceeding,
criminal or civil, to which he was, is or may be made a party because of being
or having been such director, officer or employee, provided, in connection
therewith, that such person is determined to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation, that, in the case of an action or suit by or in the right of
the corporation, (i) no negligence or misconduct shall have been adjudged unless
a court determines that such person is fairly and reasonably entitled to
indemnity, and (ii) the action or suit is not one in which the only liability
asserted against a director is pursuant to Section 1701.95 of the Ohio Revised
Code, which relates to unlawful loans, dividends and distributions of assets,
and that, in the case of a criminal matter, such person is determined to have
had no reasonable cause to believe that his conduct was unlawful. Section
1701.13(E) further provides that to the extent that such person has been
successful on the merits or otherwise in defense of any such action, suit, or
proceeding, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses, including attorneys' fees, actually and reasonably
incurred by him in connection therewith. Section 1701.13(E) further provides
that unless a corporation has specifically elected to the contrary in its
articles of incorporation or code of regulations and unless the only liability
asserted against a director is pursuant to Section 1701.95, expenses incurred by
a director in defending such an action, suit or proceeding shall be paid by the
corporation as they are incurred in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking (i) to repay such
amounts if it is proved by clear and convincing evidence in a court of competent
jurisdiction that such director acted, or failed to act, with deliberate intent
to cause injury to the corporation or with reckless disregard for the best
interests of the corporation and (ii) reasonably to cooperate with the
corporation concerning said action, suit or proceeding. Section 1701.13(E) also
provides that the indemnification thereby permitted shall not be exclusive of
any other rights that directors, officers or employees may have, including
rights under insurance purchased by the corporation. The Company's Code of
Regulations provides for the indemnification of directors and officers of the
Company to the fullest extent permitted by law.
......The above is a general summary of certain provisions of the Company's Code
of Regulations and of the Ohio Revised Code and is subject in all respects to
the specific and detailed provisions of the Company's Code of Regulations and
the Ohio Revised Code.
......Reference is made to the Selling Agency Agreement and Underwriting
Agreement filed as Exhibits 1(a) and 1(b) hereto, respectively, which provide
for indemnification of the Company, certain of its directors and officers, and
persons who control the Company, under certain circumstances.
......The Company maintains insurance policies insuring its directors and
officers against certain obligations that may be incurred by them.
Item 16.....Exhibits.
......Reference is made to the information contained in the Exhibit Index filed
as part of this Registration Statement.
Item 17.....Undertakings.
......The undersigned registrant hereby undertakes:
......(1)...To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of notes (if
the total dollar value of notes would not exceed that which was registered) and
any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) of the Securities Act of 1933 if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that (i) and (ii) do not apply if the registration statement
is on Form S-3 or Form S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the notes, and the offering thereof at that time shall be
deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the laws of the State of Ohio, the registrant's code of
regulations or otherwise, the registrant has been advised that in the opinion of
the SEC such indemnification is against public policy as expressed in said Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the notes, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in said Act and will be governed by the final adjudication of such
issue.
(6) For purposes of determining any liability under the Securities Act of 1933,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(7) For purposes of determining any liability under the Securities Act of 1933,
each post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable cause to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Columbus and State of Ohio, on the 6th day of April,
1999.
............ OHIO 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 April 6, 1999
(ii) Principal Financial
Officer:
Vice President, Treasurer
_/s/ A. A. Pena__________ and Chief Financial
A. A. Pena Officer April 6, 1999
(iii) Principal Accounting
Officer:
/s/ L. V. Assante________ Controller and Chief
L. V. Assante Accounting Officer April 6, 1999
(iv) A Majority of the
Directors:
E. Linn Draper, Jr.*
H. W. Fayne*
Wm. J. Lhota*
James J. Markowsky*
A. A. Pena
J. H. Vipperman* April 6, 1999
*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. Sec. 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 unsecured notes.
* 1(b) - Copy of proposed form of Underwriting Agreement for the
unsecured notes.
4(a) - Copy of Indenture (for unsecured debt securities), dated as
of September 1, 1997, between the Company and Bankers Trust
Company, as Trustee [Registration Statement No. 333-49595,
Exhibits 4(a), 4(b) and 4(c)].
4(b) - Copy of Instructions, dated December 1, 1998, from the
Company to Bankers Trust Company, establishing certain terms
of the 6.24% Unsecured Medium Term Notes, Series A, due 2008
[Annual Report on Form 10-K of the Company for the year ended
December 31, 1998, File No. 1-6543, Exhibit 4(c)].
4(c) - Copy of Company Order and Officers' Certificate, dated April
29, 1998, establishing certain terms of the 7 3/8 % Senior
Notes, Series A, due 2038 [Annual Report on Form 10-K of the
Company for the year ended December 31, 1998, File No. 1-6543,
Exhibit 4(d)].
* 4(d) - Copy of proposed form of Company Order and Officers'
Certificate establishing certain terms for the unsecured
notes.
* 5 - Opinion of Simpson Thacher & Bartlett as to the legality of
the unsecured notes.
12 - Statement re Computations of Ratios [Annual Report on Form
10-K of the Company for the year ended December 31, 1998,
File No. 1-6543, Exhibit 12].
*23(a) - Consent of Deloitte & Touche LLP.
23(b) - Consent of Simpson Thacher & Bartlett (included in
Exhibit 5 filed herewith).
*24 - Powers of Attorney and resolutions of the Board of Directors
of the Company.
*25 - Form T-1 re: eligibility of Bankers Trust Company to act as
Trustee under the Indenture.
EXHIBIT 1(a)
OHIO POWER COMPANY
Selling Agency Agreement
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Dear Sirs:
Ohio Power Company, an Ohio corporation (the "Company"), confirms its
agreement with each of you with respect to the issue and sale by the Company of
up to $____________ aggregate principal amount of its [Unsecured Notes] (the
"Notes"). The Notes will be issued under the Indenture dated as of September 1,
1997, between the Company and Bankers Trust Company, as trustee (the "Trustee"),
as previously supplemented and as it may be from time to time further
supplemented by one or more supplemental indentures (said Indenture, as
previously supplemented and as it may be further supplemented, being hereafter
referred to as the "Indenture"). The Notes will be issued in minimum
denominations of [$25] and in integral multiples thereof, will be issued only in
fully registered form and will have the annual interest rates, maturities and,
if appropriate, other terms set forth in a supplement to the Prospectus referred
to below. The Notes will be issued, and the terms thereof established, in
accordance with the Indenture and, in the case of Notes sold pursuant to Section
2(a) hereof, the [Unsecured Notes] Administrative Procedures attached hereto as
Exhibit A (the "Procedures"). The Procedures may only be amended by written
agreement of the Company and you after notice to, and with the approval of, the
Trustee. For purposes of this Agreement, the term "Agent" shall refer to any one
of you and any Additional Agent as defined and as provided for in Section 2(a)
acting solely in the capacity as agent for the Company pursuant to Section 2(a)
and not as principal (collectively, the "Agents"), the term the "Purchaser"
shall refer to one of you acting solely as principal pursuant to Section 2(b)
and not as agent, and the term "you" shall refer to you collectively whether at
any time any of you is acting in both such capacities or in either such
capacity.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, you as set forth below in this Section 1. Certain
terms used in this Section 1 are defined in paragraph (d) hereof.
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form S-3 (File Number: 333-_____), including a basic
prospectus, which has become effective, for the registration under the Act
of $150,000,000 aggregate principal amount of Unsecured Notes (the
"Notes"). Such registration statement meets the requirements set forth in
Rule 415(a)(1)(ix) or (x) under the Act and complies in all other material
respects with said Rule. The Company has included in Registration
Statement 333-_____ a basic Prospectus which, pursuant to Rule 429 under
the Act, is a combined Prospectus also relating to securities included in
Registration Statement No. 333-35585. The Company will file with the
Commission pursuant to the applicable paragraph of Rule 424(b) under the
Act a supplement to the form of prospectus included in such registration
statement relating to the Notes and the plan of distribution thereof (the
"Prospectus Supplement"). In connection with the sale of Notes the Company
proposes to file with the Commission pursuant to the applicable paragraph
of Rule 424(b) under the Act further supplements to the Prospectus
Supplement specifying the interest rates, maturity dates and, if
appropriate, other terms of the Notes sold pursuant hereto or the offering
thereof.
(b) As of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission, as of the date
of any Terms Agreement (as defined in Section 2(b)) and at the date of
delivery by the Company of any Notes sold hereunder (a "Closing Date"),
(i) the Registration Statement, as amended as of any such time, and the
Prospectus, as supplemented as of any such time, will comply in all
material respects with the applicable requirements of the Act, the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the respective rules under the Act, the Exchange Act and the Trust
Indenture Act; (ii) the Registration Statement, as amended as of any such
time, did not or will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and
(iii) the Prospectus, as supplemented as of any such time, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties
as to (i) those parts of the Registration Statement which shall constitute
a Statement of Eligibility (Form T-1) of the Trustee under the Trust
Indenture Act or (ii) the information contained in or omitted from the
Registration Statement or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to
the Company by any of you expressly for use in the Registration Statement
or the Prospectus (or any supplement thereto).
(c) As of the time any Notes are issued and sold hereunder, the
Indenture will constitute a legal, valid and binding instrument
enforceable against the Company in accordance with its terms and such
Notes will have been duly authorized, executed, authenticated and, when
paid for by the purchasers thereof, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
Indenture, except as the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights
generally, or general equitable principles (whether considered in a
proceeding in equity or at law), and an implied covenant of good faith and
fair dealing.
(d) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective. "Execution Time" shall mean
the date and time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the form of basic prospectus
relating to the Securities contained in the Registration Statement at the
Effective Date. "Prospectus" shall mean the Basic Prospectus as
supplemented by the Prospectus Supplement. "Registration Statement" shall
mean the Registration Statement referred to in paragraph (a) above,
including incorporated documents, exhibits and financial statements, as
amended at the Execution Time. "Rule 415" and "Rule 424" refer to such
rules under the Act. Any reference herein to the Registration Statement,
the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date or the issue date of the
Basic Prospectus, the Prospectus Supplement or the Prospectus, as the case
may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic
Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the Effective Date or the issue date of the Basic Prospectus, the
Prospectus Supplement or the Prospectus, as the case may be, deemed to be
incorporated therein by reference.
(e) The documents incorporated by reference in the Registration
Statement or Prospectus, when they were filed with the Commission,
complied in all material respects with the applicable provisions of the
1934 Act and the rules and regulations of the Commission thereunder, and
as of such time of filing, when read together with the Prospectus, none of
such documents contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(f) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, there has been no material adverse change in the business,
properties or financial condition of the Company.
(g) This Agreement has been duly authorized, executed and delivered
by the Company.
(h) The consummation by the Company of the transactions contemplated
herein will not conflict with, or result in a breach of any of the terms
or provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company under any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the
Company is a party or by which it may be bound or to which any of its
properties may be subject (except for conflicts, breaches or defaults
which would not, individually or in the aggregate, be materially adverse
to the Company or materially adverse to the transactions contemplated by
this Agreement.)
(i) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale by the Company of the Notes or the transactions by the
Company contemplated in this Agreement, except (A) such as may be required
under the 1933 Act or the rules and regulations thereunder; (B) such as
may be required under the Public Utility Holding Company Act of 1935, as
amended (the "1935 Act"); (C) the qualification of the Indenture under the
1939 Act; (D) the approval of The Public Utilities Commission of Ohio; and
(E) such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws.
2. Appointment of Agents; Solicitation by the Agents of Offers to
Purchase; Sales of Notes to a Purchaser.
(a) Subject to the terms and conditions set forth herein, the
Company hereby authorizes each of the Agents to act as its agent to
solicit offers for the purchase of all or part of the Notes from the
Company.
On the basis of the representations and warranties, and
subject to the terms and conditions set forth herein, each of the Agents
agrees, as agent of the Company, to use its reasonable best efforts to
solicit offers to purchase the Notes from the Company upon the terms and
conditions set forth in the Prospectus (and any supplement thereto) and in
the Procedures.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Notes. Upon
receipt of instructions from the Company, the Agents will forthwith
suspend solicitation of offers to purchase Notes from the Company until
such time as the Company has advised them that such solicitation may be
resumed.
The Company expressly reserves the right, upon fifteen
business days' prior written notice to each Agent, to appoint other
persons, partnerships or corporations ("Additional Agents") to act as its
agent to solicit offers for the purchase of Notes; provided, each
Additional Agent shall be named in a prospectus supplement or pricing
supplement and shall either execute this Agreement and become a party
hereto or shall enter into an agency agreement with the Company on terms
substantially similar to those contained herein; thereafter the term Agent
as used in this Agreement shall mean each Agent and each such Additional
Agent.
The Company agrees to pay each Agent a commission, on the
Closing Date with respect to each sale of Notes by the Company as a result
of a solicitation made by such Agent, in an amount equal to that
percentage specified in Schedule I hereto of the aggregate principal
amount of the Notes sold by the Company. Such commission shall be payable
as specified in the Procedures.
Subject to the provisions of this Section and to the
Procedures, offers for the purchase of Notes may be solicited by an Agent
as agent for the Company at such time and in such amounts as such Agent
deems advisable. The Company may from time to time offer Notes for sale
otherwise than through an Agent; provided, however, that so long as this
Agreement shall be in effect the Company shall not solicit or accept
offers to purchase Notes through any agent other than an Agent.
(b) Subject to the terms and conditions stated herein, whenever the
Company and any Agent determine that the Company shall sell Notes directly
to such Agent as principal, each such sale of Notes shall be made in
accordance with the terms of this Agreement and, unless otherwise agreed
by the Company and such Agent, any supplemental agreement relating thereto
between the Company and the Purchaser. Each such supplemental agreement
(which may be an oral or written agreement) is herein referred to as a
"Terms Agreement". Each Terms Agreement shall describe (whether orally or
in writing) the Notes to be purchased by the Purchaser pursuant thereto,
and shall specify the aggregate principal amount of such Notes, the
maturity date of such Notes, the rate at which interest will be paid on
such Notes, the dates on which interest will be paid on such Notes and the
record date with respect to each such payment of interest, the Closing
Date for the purchase of such Notes, the place of delivery of the Notes
and payment therefor, the method of payment and any requirements for the
delivery of the opinions of counsel, the certificates from the Company or
its officers, or a letter from the Company's independent public
accountants, pursuant to Section 6(b). Any such Terms Agreement may also
specify the period of time referred to in Section 4(m). Any written Terms
Agreement may be in the form attached hereto as Exhibit B. The Purchaser's
commitment to purchase Notes shall be deemed to have been made on the
basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set
forth.
The Company also may sell Notes to any Agent, acting as principal,
at a discount to be agreed upon at the time of sale, for resale to one or
more investors or to another broker-dealer (acting as principal for
purposes of resale) at varying prices related to prevailing market prices
at the time of such resale as determined by such Agent. An Agent may
resell a Note purchased by it as principal to another broker-dealer at a
discount, provided such discount does not exceed the commission or
discount received by such Agent from the Company in connection with the
original sale of such Note.
(c) The Company, however, expressly reserves the right to place the
Notes itself privately or through a negotiated underwritten transaction
with one or more underwriters without notice to any Agent and without any
opportunity for any Agent to solicit offers for the purchase of the Notes.
In such event, no commission will be payable to the Agents.
Delivery of the Notes sold to the Purchaser pursuant to any
Terms Agreement shall be made not later than the Closing Date agreed to in
such Terms Agreement, against payment of funds to the Company in the net
amount due to the Company for such Notes by the method and in the form set
forth in the Procedures unless otherwise agreed to between the Company and
the Purchaser in such Terms Agreement.
3. Offering and Sale of Notes. Each Agent and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of any offering of the Notes, the
Company will not file any amendment of the Registration Statement or
supplement to the Prospectus (except for (i) periodic or current reports
filed under the Exchange Act; (ii) a supplement relating to any offering
of Notes providing solely for the specification of or a change in the
maturity dates, interest rates, issuance prices or other similar terms of
any Notes or (iii) a supplement relating to an offering of Securities
other than the Notes) unless the Company has furnished each of you a copy
for your review prior to filing and given each of you a reasonable
opportunity to comment on any such proposed amendment or supplement.
Subject to the foregoing sentence, the Company will cause each supplement
to the Prospectus to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to you of such filing. The Company will
promptly advise each of you (i) when the Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to Rule
424(b); (ii) when, prior to the termination of the offering of the Notes,
any amendment of the Registration Statement shall have been filed or
become effective; (iii) of any request by the Commission for any amendment
of the Registration Statement or supplement to the Prospectus or for any
additional information; (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose; and (v) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. The
Company will use every reasonable effort to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it shall be necessary to amend
the Registration Statement or to supplement the Prospectus to comply with
the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (i) notify each of you to suspend solicitation of
offers to purchase Notes (and, if so notified by the Company, each of you
shall forthwith suspend such solicitation and cease using the Prospectus
as then supplemented); (ii) prepare and file with the Commission, subject
to the first sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or effect such
compliance; and (iii) supply any supplemented Prospectus to each of you in
such quantities as you may reasonably request. If such amendment or
supplement, and any documents, certificates and opinions furnished to each
of you pursuant to paragraph (g) of this Section 4 in connection with the
preparation or filing of such amendment or supplement are satisfactory in
all respects to you, you will, upon the filing of such amendment or
supplement with the Commission and upon the effectiveness of an amendment
to the Registration Statement, if such an amendment is required, resume
your obligation to use your reasonable best efforts to solicit offers to
purchase Notes hereunder.
(c) The Company, during the period when a prospectus relating to the
Notes is required to be delivered under the Act, will file promptly all
documents required to be filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act and will furnish to each of
you copies of such documents. In addition, on or prior to the date on
which the Company makes any announcement to the general public concerning
earnings or concerning any other event which is required to be described,
or which the Company proposes to describe, in a document filed pursuant to
the Exchange Act, the Company will furnish to each of you the information
contained or to be contained in such announcement. The Company also will
furnish to each of you copies of all other press releases or announcements
to the general public. The Company will immediately notify each of you of
any downgrading in the rating of the Notes or any other Unsecured Notes of
the Company, or any proposal to downgrade the rating of the Notes or any
other Unsecured Notes of the Company, by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Act), as soon as the Company learns of any such downgrading or
proposal to downgrade.
(d) As soon as practicable, the Company will make generally
available to its security holders and to each of you an earning statement
or statements of the Company which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act.
(e) The Company will furnish to each of you and your counsel,
without charge, copies of the Registration Statement (without exhibits)
and, so long as delivery of a prospectus may be required by the Act, as
many copies of the Prospectus and any supplement thereto as you may
reasonably request.
(f) The Company will use its best efforts to qualify the Notes for
offer and sale under the securities or "blue sky" laws of such
jurisdictions as you may designate within six months after the final sale
of Notes pursuant to this Agreement and agrees to pay, or to reimburse you
and your counsel for, reasonable filing fees and expenses in connection
therewith in an amount not exceeding $5,000 in the aggregate (including
filing fees and expenses paid and incurred prior to the date hereof),
provided, however, that the Company shall not be required to qualify as a
foreign corporation or to file a consent to service of process or to file
annual reports or to comply with any other requirements deemed by the
Company to be unduly burdensome.
(g) The Company shall furnish to each of you such information,
documents, certificates of officers of the Company and opinions of counsel
for the Company relating to the business, operations and affairs of the
Company, the Registration Statement, the Prospectus, and any amendments
thereof or supplements thereto, the Indenture, the Notes, this Agreement,
the Procedures and the performance by the Company and you of its and your
respective obligations hereunder and thereunder as any of you may from
time to time and at any time prior to the termination of this Agreement
reasonably request.
(h) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its
obligations under this Agreement, including the fees and disbursements of
its accountants and counsel, the cost of printing or other production and
delivery of the Registration Statement, the Prospectus, all amendments
thereof and supplements thereto, the Indenture, this Agreement and all
other documents relating to the offering, the cost of preparing, printing,
packaging and delivering the Notes, the fees and disbursements of the
Trustee and the fees of any agency that rates the Notes; (ii) reimburse
each of you on a monthly basis for all out-of-pocket expenses (including
without limitation advertising expenses) incurred with the prior approval
of the Company in connection with this Agreement; and (iii) pay the
reasonable fees and expenses of your counsel incurred in connection with
this Agreement, including fees of counsel incurred in compliance with and
to the extent stated in Section 4(f), including the preparation of a Blue
Sky Survey.
(i) Each acceptance by the Company of an offer to purchase Notes
will be deemed to be an affirmation that its representations and
warranties contained in this Agreement and in any Certificate previously
delivered pursuant hereto are true and correct at the time of such
acceptance, as though made at and as of such time, and a covenant that
such representations and warranties will be true and correct at the time
of delivery to the purchaser of the Notes relating to such acceptance, as
though made at and as of such time (it being understood that for purposes
of the foregoing affirmation and covenant such representations and
warranties shall relate to the Registration Statement and Prospectus as
amended or supplemented at each such time). Each such acceptance by the
Company of an offer for the purchase of Notes shall be deemed to
constitute an additional representation, warranty and agreement by the
Company that, as of the settlement date for the sale of such Notes, after
giving effect to the issuance of such Notes, of any other Notes to be
issued on or prior to such settlement date and of any other Securities to
be issued and sold by the Company on or prior to such settlement date, the
aggregate amount of Securities (including any Notes) which have been
issued and sold by the Company will not exceed the amount of Securities
registered pursuant to the Registration Statement.
(j) Each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement (i)
relating to any offering of Securities other than the Notes; (ii)
incorporating by reference information contained in a Current Report on
Form 8-K filed by the Company under the Exchange Act that is (A) filed
solely under Item 5 of Form 8-K and (B) not required to be filed to comply
with Section 4(b); or (iii) providing solely for the specification of or a
change in the maturity dates, the interest rates, the issuance prices or
other similar terms of any Notes sold pursuant hereto, unless, in the case
of clause (ii) above, in the reasonable judgment of any of you, such
information is of such a nature that a certificate of the Company should
be delivered), the Company will deliver or cause to be delivered promptly
to each of you a certificate of the Company, signed by a Vice President,
Treasurer or Assistant Treasurer of the Company, dated the date of the
effectiveness of such amendment or the date of the filing of such
supplement, in form reasonably satisfactory to you, of the same tenor as
the certificate referred to in Section 5(c) but modified to relate to the
last day of the fiscal quarter for which financial statements of the
Company were last filed with the Commission and to the Registration
Statement and the Prospectus as amended and supplemented to the time of
the effectiveness of such amendment or the filing of such supplement.
(k) Each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement (i)
relating to any offering of Securities other than the Notes; (ii)
incorporating by reference information contained in a Current Report on
Form 8-K filed by the Company under the Exchange Act that is (A) filed
solely under Item 5 of Form 8-K and (B) not required to be filed to comply
with Section 4(b); or (iii) providing solely for the specification of or a
change in the maturity dates, the interest rates, the issuance prices or
other similar terms of any Notes sold pursuant hereto, unless, in the case
of this clause (ii) above, in the reasonable judgment of any of you, such
information is of such a nature that an opinion of counsel should be
furnished), the Company shall furnish or cause to be furnished promptly to
each of you a written opinion or opinions of counsel of the Company
satisfactory to each of you (which may include counsel employed by
American Electric Power Service Corporation, an affiliate of the Company),
dated the date of the effectiveness of such amendment or the date of the
filing of such supplement, substantially in the form delivered pursuant to
Section 5(b)(1) and Section 5(b)(3) hereof or, in lieu of such opinion,
counsel last furnishing such an opinion or opinions to you may furnish
each of you with a letter to the effect that you may rely on such last
opinion to the same extent as though it were dated the date of such letter
authorizing reliance (except that statements in such last opinion will be
deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of the effectiveness of such
amendment or the filing of such supplement).
(l) If requested, each time that the Registration Statement or the
Prospectus is amended or supplemented to include or incorporate amended or
supplemental financial information, the Company shall cause its
independent public accountants promptly to furnish each of you a letter,
dated the date of the effectiveness of such amendment or the date of the
filing of such supplement, in form satisfactory to each of you, of the
same tenor as the letter referred to in Section 5(d) with such changes as
may be necessary to reflect the amended and supplemental financial
information included or incorporated by reference in the Registration
Statement and the Prospectus, as amended or supplemented to the date of
such letter; provided, however, that, if the Registration Statement or the
Prospectus is amended or supplemented solely to include or incorporate by
reference financial information as of and for a fiscal quarter, the
Company's independent public accountants may limit the scope of such
letter, which shall be satisfactory in form to each of you, to the
unaudited financial statements, the related "Management's Discussion and
Analysis of Results of Operations and Financial Condition" and any other
information of an accounting, financial or statistical nature included in
such amendment or supplement, unless, in the reasonable judgment of any of
you, such letter should cover other information or changes in specified
financial statement line items.
(m) During the period, if any, which shall not exceed ten days,
specified in any Terms Agreement, the Company shall not, without the prior
consent of the Purchaser thereunder, issue or announce the proposed
issuance of any of its Unsecured Notes, including Notes, with terms
substantially similar to the Notes being purchased pursuant to such Terms
Agreement, other than borrowings under its revolving credit agreements and
lines of credit, issuances of its commercial paper, and other forms of
unsecured borrowings from banks or other financial institutions.
5. Conditions to the Obligations of the Agents. The obligations of
each Agent to use its reasonable best efforts to solicit offers to purchase the
Notes shall be subject to the accuracy of the representations and warranties on
the part of the Company contained herein as of the Execution Time, on the
Effective Date, when any supplement to the Prospectus is filed with the
Commission and as of each Closing Date, to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions hereof at each such
time or date, to the performance by the Company of its obligations hereunder and
to the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement,
shall have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) That, at the Execution Time, each Agent shall be furnished with
the following opinions, dated the date thereof, with such changes therein
as may be agreed upon by the Company and the Agents with the approval of
Dewey Ballantine LLP, counsel to the Agents:
(1) Opinion of Simpson Thacher & Bartlett, of New York, New
York, counsel to the Company, substantially in the form heretofore
made available to the Agents;
(2) Opinion of Dewey Ballantine LLP, of New York, New York,
counsel to the Agents, substantially in the form heretofore made
available to the Agents;
(3) Opinion of an attorney employed by American Electric Power
Service Corporation, substantially in the form heretofore made
available to the Agents.
(c) The Company shall have furnished to each Agent a certificate of
the Company, signed by a Vice President, Treasurer or Assistant Treasurer
of the Company, dated the Execution Time, to the effect that the signer of
such certificate has carefully examined the Registration Statement, the
Prospectus, any supplement to the Prospectus and this Agreement and that:
(1) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the date hereof with the same effect as if made on the date hereof
and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied as a
condition to the obligation of the Agents to solicit offers to
purchase the Notes;
(2) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(3) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus, there has
been no material adverse change in the condition (financial or
other), earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated
in the Prospectus.
(d) That the Agents shall have received a letter from Deloitte &
Touche LLP in form and substance satisfactory to them, dated as of the
Execution Time, (i) confirming that they are independent public
accountants within the meaning of the Act and the applicable published
rules and regulations of the Commission thereunder; (ii) stating that in
their opinion the financial statements audited by them and included or
incorporated by reference in the Registration Statement complied as to
form in all material respects with the then applicable accounting
requirements of the Commission, including applicable published rules and
regulations of the Commission and (iii) covering as of a date not more
than five business days prior to the date of such letter such other
matters as the Agents reasonably request.
(e) Prior to the Execution Time, the Company shall have furnished to
each Agent such further information, documents, certificates and opinions
of counsel as the Agents may reasonably request.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to such Agents and counsel for the Agents, this Agreement and all
obligations of any Agent hereunder may be canceled at any time by the Agents
without any liability whatsoever. Notice of such cancellation shall be given to
the Company in writing or by telephone or telex or facsimile transmission
confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the offices of American Electric Power Service Corporation, 1
Riverside Plaza, Columbus, Ohio 43215 on the date hereof.
6. Conditions to the Obligations of the Purchaser. The obligations
of the Purchaser to purchase any Notes will be subject to the accuracy of the
representations and warranties on the part of the Company herein as of the date
of any related Terms Agreement and as of the Closing Date for such Notes, to the
performance and observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed and to the following
additional conditions precedent:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement,
shall have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) If specified by any related Terms Agreement and except to the
extent modified by such Terms Agreement, the Purchaser shall have
received, appropriately updated, (i) a certificate of the Company, dated
as of the Closing Date, to the effect set forth in Section 5(c) (except
that references to the Prospectus shall be to the Prospectus as
supplemented at the time of execution of the Terms Agreement); (ii) the
opinion of counsel for the Company (which may be either Simpson Thacher &
Bartlett or an attorney employed by American Electric Power Service
Corporation, an affiliate of the Company), dated as of the Closing Date,
substantially in the form delivered pursuant to Section 5(b)(1) hereof;
(iii) the opinion of Dewey Ballantine LLP, counsel for the Agents, dated
as of the Closing Date, substantially in the form delivered pursuant to
Section 5(b)(2) hereof; (iv) the opinion of an attorney employed by
American Electric Power Service Corporation, dated as of the Closing Date,
substantially in the form delivered pursuant to Section 5(b)(3) hereof;
and (v) the letter of Deloitte & Touche LLP, independent accountants for
the Company, dated as of the Closing Date, substantially in the form
delivered pursuant to Section 5(d) hereof.
(c) Prior to the Closing Date, the Company shall have furnished to
the Purchaser such further information, certificates and documents as the
Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement
and any Terms Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement or such Terms Agreement shall not be in all
material respects reasonably satisfactory in form and substance to the Purchaser
and its counsel, such Terms Agreement and all obligations of the Purchaser
thereunder and with respect to the Notes subject thereto may be canceled at, or
at any time prior to, the respective Closing Date by the Purchaser without any
liability whatsoever. Notice of such cancellation shall be given to the Company
in writing or by telephone or telex or facsimile transmission confirmed in
writing.
7. Right of Person Who Agreed to Purchase to Refuse to Purchase. The
Company agrees that any person who has agreed to purchase and pay for any Note,
including a Purchaser and any person who purchases pursuant to a solicitation by
any of the Agents, shall have the right to refuse to purchase such Note if (a)
at the Closing Date therefor, any condition set forth in Section 5 or 6, as
applicable, shall not be satisfied or (b) subsequent to the agreement to
purchase such Note, there shall have been any decrease in the ratings of any of
the Company's Unsecured Notes by Moody's Investors Service, Inc. ("Moody's") or
Standard & Poor's Ratings Group ("S&P") or either Moody's or S&P shall publicly
announce that it has any of such Unsecured Notes under consideration for
possible downgrade. Notwithstanding the foregoing, no Agent shall have any
obligation to exercise its judgment on behalf of any purchaser.
8. Indemnification.
(a) The Company agrees, to the extent permitted by law, to indemnify
and hold you harmless and each person, if any, who controls you within the
meaning of Section 15 of the Act, against any and all losses, claims,
damages or liabilities, joint or several, to which you, they or any of you
or them may become subject under the Act or otherwise, and to reimburse
you and such controlling person or persons, if any, for any legal or other
expenses incurred by you or them in connection with defending any action,
insofar as such losses, claims, damages, liabilities or actions arise out
of or are based upon any alleged untrue statement or untrue statement of a
material fact contained in the Registration Statement, or in the
Prospectus, or if the Company shall furnish or cause to be furnished to
you any amendments or any supplemental information, in the Prospectus as
so amended or supplemented other than amendments or supplements relating
solely to securities other than the Notes (provided that if such
Prospectus or such Prospectus, as amended or supplemented, is used after
the period of time referred to in Section 4(b) hereof, it shall contain
such amendments or supplements as the Company deems necessary to comply
with Section 10(a) of the Act), or arise out of or are based upon any
alleged omission or omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any such alleged untrue statement
or omission, or untrue statement or omission which was made in such
Registration Statement or in the Prospectus, or in the Prospectus as so
amended or supplemented, in reliance upon and in conformity with
information furnished in writing to the Company by or through you
expressly for use therein or with any statements in or omissions from that
part of the Registration Statement that shall constitute the Statement of
Eligibility under the Trust Indenture Act, of any indenture trustee under
an indenture of the Company, and except that this indemnity shall not
inure to your benefit (or of any person controlling you) on account of any
losses, claims, damages, liabilities or actions arising from the sale of
the Notes to any person if such loss arises from the fact that a copy of
the Prospectus, as the same may then be supplemented or amended to the
extent such Prospectus was provided to you by the Company (excluding,
however, any document then incorporated or deemed incorporated therein by
reference), was not sent or given by you to such person with or prior to
the written confirmation of the sale involved and the alleged omission or
alleged untrue statement or omission or untrue statement was corrected in
the Prospectus as supplemented or amended at the time of such
confirmation, and such Prospectus, as amended or supplemented, was timely
delivered to you by the Company. You agree promptly after the receipt by
you of written notice of the commencement of any action in respect to
which indemnity from the Company on account of its agreement contained in
this Section 8(a) may be sought by you, or by any person controlling you,
to notify the Company in writing of the commencement thereof, but your
omission so to notify the Company of any such action shall not release the
Company from any liability which it may have to you or to such controlling
person otherwise than on account of the indemnity agreement contained in
this Section 8(a). In case any such action shall be brought against you or
any such person controlling you and you shall notify the Company of the
commencement thereof, as above provided, the Company shall be entitled to
participate in, and, to the extent that it shall wish, including the
selection of counsel (such counsel to be reasonably acceptable to the
indemnified party), to direct the defense thereof at its own expense. In
case the Company elects to direct such defense and select such counsel
(hereinafter, "Company's counsel"), you or any controlling person shall
have the right to employ your own counsel, but, in any such case, the fees
and expenses of such counsel shall be at your expense unless (i) the
Company has agreed in writing to pay such fees and expenses or (ii) the
named parties to any such action (including any impleaded parties) include
both you or any controlling person and the Company and you or any
controlling person shall have been advised by your counsel that a conflict
of interest between the Company and you or any controlling person may
arise (and the Company's counsel shall have concurred in good faith with
such advice) and for this reason it is not desirable for the Company's
counsel to represent both the indemnifying party and the indemnified party
(it being understood, however, that the Company shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys for you or any
controlling person (plus any local counsel retained by you or any
controlling person in their reasonable judgment), which firm (or firms)
shall be designated in writing by you or any controlling person). No
indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification could be sought
under this Section 8 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified
party. In no event shall any indemnifying party have any liability or
responsibility in respect of the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or threatened
action or claim effected without its prior written consent.
(b) Each of you agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signs the Registration
Statement and each person who controls the Company within the meaning of
Section 15 of the Act, to the same extent as the foregoing indemnity from
the Company to you, but only with reference to written information
relating to such of you furnished to the Company by such of you
specifically for use in the preparation of the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to
any liability which you may otherwise have. The Company agrees promptly
after the receipt by it of written notice of the commencement of any
action in respect to which indemnity from you on account of your agreement
contained in this Section 8(b) may be sought by the Company, or by any
person controlling the Company, to notify you in writing of the
commencement thereof, but the Company's omission so to notify you of any
such action shall not release you from any liability which you may have to
the Company or to such controlling person otherwise than on account of the
indemnity agreement contained in this Section 8(b).
9. Termination.
(a) This Agreement will continue in effect until terminated as
provided in this Section 9. This Agreement may be terminated by either the
Company as to any of you or by any of you insofar as this Agreement
relates to such of you, by giving written notice of such termination to
such of you or the Company, as the case may be. This Agreement shall so
terminate at the close of business on the first business day following the
receipt of such notice by the party to whom such notice is given. In the
event of such termination, no party shall have any liability to the other
party hereto, except as provided in the fifth paragraph of Section 2(a),
Section 4(h), Section 8 and Section 10. The provisions of this Agreement
(including without limitation Section 7 hereof) applicable to any purchase
of a Note for which an agreement to purchase exists prior to the
termination hereof shall survive any termination of this Agreement. If, at
the time of any such termination, (i) any Purchaser shall own any Notes
purchased pursuant to a Terms Agreement with the intention of reselling
them or (ii) an offer to purchase any of the Notes has been accepted by
the Company but the time of delivery to the purchaser or its agent of such
Notes has not occurred, the covenants set forth in Sections 4 and 6 hereof
shall remain in effect for such period of time (not exceeding nine months)
until such Notes are so resold or delivered, as the case may be.
(b) Each Terms Agreement shall be subject to termination if, in the
Purchaser's reasonable judgment, the Purchaser's ability to market the
Notes shall have been materially adversely affected because: (i) trading
in securities on the New York Stock Exchange shall have been generally
suspended by the Commission or by the New York Stock Exchange; (ii) a
general banking moratorium shall have been declared by Federal or New York
state authorities; (iii) there shall have been a decrease in the ratings
of any of the Company's Unsecured Notes by Moody's or S&P or either
Moody's or S&P shall have publicly announced that it has any of such
Unsecured Notes under consideration for possible downgrade; or (iv)(A) a
war involving the United States of America shall have been declared, (B)
any other national calamity shall have occurred, or (C) any conflict
involving the armed forces of the United States of America shall have
commenced or escalated.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of you set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of you or the Company or any of the officers, directors or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Notes. The provisions of the fifth paragraph of Section
2(a) and Sections 4(h) and 8 hereof shall survive the termination or
cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to any of you, will be delivered or sent
by mail, telex or facsimile transmission to such of you, at the address
specified in Schedule I hereto; or, if sent to the Company, will be delivered or
sent by mail, telex or facsimile transmission to it at 1 Riverside Plaza,
Columbus, Ohio 43215, attention of A. A. Pena, Treasurer.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
14. Execution of Counterparts. This Agreement may be executed in
several counterparts, each of which shall be regarded as an original and all of
which shall constitute one and the same document.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and you.
Very truly yours,
OHIO POWER COMPANY
By:___________________________
A. A. Pena
Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date hereof.
- ------------------------------
By:___________________________
Its:__________________________
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By:___________________________
Its:__________________________
SCHEDULE I
Commissions:
The Company agrees to pay each Agent a commission equal to the following
percentage of the principal amount of each Note sold on an agency basis by such
Agent:
Term Commission Rate
From 9 months to less than 1 year
From 1 year to less than 18 months
From 18 months to less than 2 years
From 2 years to less than 3 years
From 3 years to less than 4 years
From 4 years to less than 5 years
From 5 years to less than 6 years
From 6 years to less than 7 years
From 7 years to less than 10 years
From 10 years to less than 15 years
From 15 years to less than 20 years
From 20 years up to and including 42 years
Unless otherwise specified in the applicable Terms Agreement, the discount
or commission payable to a Purchaser shall be determined on the basis of the
commission schedule set forth above.
Address for Notice to you:
Notices to __________________________________ shall be directed to it at
________________________________, Attention: ____________________, telephone:
___/___-____, telecopy: ___/___-____.
Notices to __________________________________ shall be directed to it at
________________________________, Attention: ____________________, telephone:
___/___-____, telecopy: ___/___-____.
EXHIBIT 1(b)
OHIO POWER COMPANY
Underwriting Agreement
Dated ____________________
AGREEMENT made between OHIO POWER COMPANY, a corporation organized and
existing under the laws of the State of Ohio (the "Company"), and the several
persons, firms and corporations (the "Underwriters") named in Exhibit 1 hereto.
WITNESSETH:
WHEREAS, the Company proposes to issue and sell $__________ principal
amount of its [Unsecured Notes] to be issued pursuant to the Indenture dated as
of September 1, 1997, between the Company and Bankers Trust Company, as trustee
(the "Trustee"), as heretofore supplemented and amended and as to be further
supplemented and amended (said Indenture as so supplemented being hereafter
referred to as the Indenture); and
WHEREAS, the Underwriters have designated the person signing this
Agreement (the Representative) to execute this Agreement on behalf of the
respective Underwriters and to act for the respective Underwriters in the manner
provided in this Agreement; and
WHEREAS, the Company has prepared and filed, in accordance with the
provisions of the Securities Act of 1933 (the Act), with the Securities and
Exchange Commission (the Commission), a registration statement and prospectus or
prospectuses relating to the [Unsecured Notes] and such registration statement
has become effective; and
WHEREAS, such registration statement, as it may have been amended to the
date hereof, including the financial statements, the documents incorporated or
deemed incorporated therein by reference and the exhibits, being herein called
the Registration Statement, and the prospectus, as included or referred to in
the Registration Statement to become effective, as it may be last amended or
supplemented prior to the effectiveness of the agreement (the Basic Prospectus),
and the Basic Prospectus, as supplemented by a prospectus supplement which
includes certain information relating to the Underwriters, the principal amount,
price and terms of offering, the interest rate and redemption prices of the
[Unsecured Notes], first filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) of the Commission's General Rules and Regulations under
the Act (the Rules), including all documents then incorporated or deemed to have
been incorporated therein by reference, being herein call the Prospectus.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, it is agreed between the parties as follows:
1. Purchase and Sale: Upon the basis of the warranties and representations
and on the terms and subject to the conditions herein set forth, the Company
agrees to sell to the respective Underwriters named in Exhibit 1 hereto,
severally and not jointly, and the respective Underwriters, severally and not
jointly, agree to purchase from the Company, the respective principal amounts of
the [Unsecured Notes] set opposite their names in Exhibit 1 hereto, together
aggregating all of the [Unsecured Notes], at a price equal to ______% of the
principal amount thereof.
2. Payment and Delivery: Payment for the [Unsecured Notes] shall be made
to the Company or its order by certified or bank check or checks, payable in New
York Clearing House funds, at the office of Simpson Thacher & Bartlett, 425
Lexington Avenue, New York, New York 10017-3909, or at such other place as the
Company and the Representative shall mutually agree in writing, upon the
delivery of the [Unsecured Notes] to the Representative for the respective
accounts of the Underwriters against receipt therefor signed by the
Representative on behalf of itself and for the other Underwriters. Such payments
and delivery shall be made at 10:00 A.M., New York Time, on _______________ (or
on such later business day, not more than five business days subsequent to such
day, as may be mutually agreed upon by the Company and the Underwriters), unless
postponed in accordance with the provisions of Section 7 hereof. The time at
which payment and delivery are to be made is herein called the Time of Purchase.
[The delivery of the [Unsecured Notes] shall be made in fully registered
form, registered in the name of CEDE & CO., to the offices of The Depository
Trust Company in New York, New York and the Underwriters shall accept such
delivery.]
3. Conditions of Underwriters' Obligations: The several obligations of the
Underwriters hereunder are subject to the accuracy of the warranties and
representations on the part of the Company on the date hereof and at the Time of
Purchase and to the following other conditions:
(a) That all legal proceedings to be taken and all legal opinions
to be rendered in connection with the issue and sale of the
[Unsecured Notes] shall be satisfactory in form and substance
to Dewey Ballantine LLP, counsel to the Underwriters.
(b) That, at the Time of Purchase, the Representative shall be
furnished with the following opinions, dated the day of the
Time of Purchase, with conformed copies or signed counterparts
thereof for the other Underwriters, with such changes therein
as may be agreed upon by the Company and the Representative
with the approval of Dewey Ballantine LLP, counsel to the
Underwriters:
(1) Opinion of Simpson Thacher & Bartlett and any of John
F. Di Lorenzo, Jr., Esq., Thomas G. Berkemeyer, Esq.,
Ann B. Graf, Esq., David C. House, Esq., or William
E. Johnson, Esq., counsel to the Company,
substantially in the forms attached hereto as
Exhibits A and B; and
(2) Opinion of Dewey Ballantine LLP, counsel to the
Underwriters, substantially in the form attached hereto
as Exhibit C.
(c) That the Representative shall have received a letter from
Deloitte & Touche LLP in form and substance satisfactory to
the Representative, dated as of the day of the Time of
Purchase, (i) confirming that they are independent public
accountants within the meaning of the Act and the
applicable published rules and regulations of the
Commission thereunder, (ii) stating that in their opinion
the financial statements audited by them and included or
incorporated by reference in the Registration Statement
complied as to form in all material respects with the then
applicable accounting requirements of the Commission,
including the applicable published rules and regulations of
the Commission and (iii) covering as of a date not more
than five business days prior to the day of the Time of
Purchase such other matters as the Representative
reasonably requests.
(d) That no amendment to the Registration Statement and that no
prospectus or prospectus supplement of the Company relating
to the [Unsecured Notes] and no document which would be
deemed incorporated in the Prospectus by reference filed
subsequent to the date hereof and prior to the Time of
Purchase shall contain material information substantially
different from that contained in the Registration Statement
which is unsatisfactory in substance to the Representative
or unsatisfactory in form to Dewey Ballantine LLP, counsel
to the Underwriters.
(e) That, at the Time of Purchase, an appropriate order of The
Public Utilities Commission of Ohio, necessary to permit the
sale of the [Unsecured Notes] to the Underwriters, shall be in
effect; and that, prior to the Time of Purchase, no stop order
with respect to the effectiveness of the Registration
Statement shall have been issued under the Act by the
Commission or proceedings therefor initiated.
(f) That, at the Time of Purchase, there shall not have
been any material adverse change in the business, properties
or financial condition of the Company from that set forth in
the Prospectus (other than changes referred to in or
contemplated by the Prospectus), and that the Company shall,
at the Time of Purchase, have delivered to the Representative
a certificate of an executive officer of the Company to the
effect that, to the best of his knowledge, information and
belief, there has been no such change.
(g) That the Company shall have performed such of its obligations
under this Agreement as are to be performed at or before the
Time of Purchase by the terms hereof.
4. Certain Covenants of the Company: In further consideration of the
agreements of the Underwriters herein contained, the Company covenants as
follows:
(a) As soon as practicable, and in any event within the time
prescribed by Rule 424 under the Act, to file any
Prospectus Supplement relating to the [Unsecured Notes]
with the Commission; as soon as the Company is advised
thereof, to advise the Representative and confirm the
advice in writing of any request made by the Commission for
amendments to the Registration Statement or the Prospectus
or for additional information with respect thereto or of
the entry of a stop order suspending the effectiveness of
the Registration Statement or of the initiation or threat
of any proceedings for that purpose and, if such a stop
order should be entered by the Commission, to make every
reasonable effort to obtain the prompt lifting or removal
thereof.
(b) To deliver to the Underwriters, without charge, as soon as
practicable (and in any event within 24 hours after the
date hereof), and from time to time thereafter during such
period of time (not exceeding nine months) after the date
hereof as they are required by law to deliver a prospectus,
as many copies of the Prospectus (as supplemented or
amended if the Company shall have made any supplements or
amendments thereto) as the Representative may reasonably
request; and in case any Underwriter is required to deliver
a prospectus after the expiration of nine months after the
date hereof, to furnish to any Underwriter, upon request,
at the expense of such Underwriter, a reasonable quantity
of a supplemental prospectus or of supplements to the
Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representative a copy, certified by the
Secretary or an Assistant Secretary of the Company, of the
Registration Statement as initially filed with the
Commission and of all amendments thereto (exclusive of
exhibits), and, upon request, to furnish to the
Representative sufficient plain copies thereof (exclusive
of exhibits) for distribution of one to the other
Underwriters.
(d) For such period of time (not exceeding nine months) after
the date hereof as they are required by law to deliver a
prospectus, if any event shall have occurred as a result of
which it is necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of
the circumstances when the Prospectus is delivered to a
purchaser, not contain any untrue statement of a material
fact or not omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein not misleading, forthwith to prepare and furnish,
at its own expense, to the Underwriters and to dealers
(whose names and addresses are furnished to the Company by
the Representative) to whom principal amounts of the
[Unsecured Notes] may have been sold by the Representative
for the accounts of the Underwriters and, upon request, to
any other dealers making such request, copies of such
amendments to the Prospectus or supplements to the
Prospectus.
(e) As soon as practicable, the Company will make generally
available to its security holders and to the Underwriters an
earnings statement or statement of the Company and its
subsidiaries which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the [Unsecured Notes]
for offer and sale under the securities or "blue sky" laws
of such jurisdictions as the Representative may designate
within six months after the date hereof and itself to pay,
or to reimburse the Underwriters and their counsel for,
reasonable filing fees and expenses in connection therewith
in an amount not exceeding $3,500 in the aggregate
(including filing fees and expenses paid and incurred prior
to the effective date hereof), provided, however, that the
Company shall not be required to qualify as a foreign
corporation or to file a consent to service of process or
to file annual reports or to comply with any other
requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer
taxes on resales of the [Unsecured Notes] by the respective
Underwriters) in connection with the issuance and delivery
of the [Unsecured Notes], except that the Company shall be
required to pay the fees and disbursements (other than
disbursements referred to in paragraph (f) of this Section
4) of Dewey Ballantine LLP, counsel to the Underwriters,
only in the events provided in paragraph (h) of this
Section 4, the Underwriters hereby agreeing to pay such
fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the
[Unsecured Notes] due to the failure of the Company to
comply with any of the conditions specified in Section 3
hereof, or, if this Agreement shall be terminated in
accordance with the provisions of Section 7 or 8 hereof, to
pay the fees and disbursements of Dewey Ballantine LLP,
counsel to the Underwriters, and, if the Underwriters shall
not take up and pay for the [Unsecured Notes] due to the
failure of the Company to comply with any of the conditions
specified in Section 3 hereof, to reimburse the
Underwriters for their reasonable out-of-pocket expenses,
in an aggregate amount not exceeding a total of $10,000,
incurred in connection with the financing contemplated by
this Agreement.
(i) The Company will timely file any certificate required by Rule
52 under the Public Utility Holding Company Act of 1935 in
connection with the sale of the [Unsecured Notes].
[(j) The Company will use its best efforts to list, subject to
notice of issuance, the [Unsecured Notes] on the New York
Stock Exchange.]
[(k) During the period from the date hereof and continuing to
and including the earlier of (i) the date which is after
the Time of Purchase on which the distribution of the
[Unsecured Notes] ceases, as determined by the
Representative in its sole discretion, and (ii) the date
which is 30 days after the Time of Purchase, the Company
agrees not to offer, sell, contract to sell or otherwise
dispose of any [Unsecured Notes] of the Company or any
substantially similar securities of the Company without the
consent of the Representative.]
5. Warranties of and Indemnity by the Company: The Company represents and
warrants to, and agrees with you, as set forth below:
(a) the Registration Statement on its effective date complied,
or was deemed to comply, with the applicable provisions of
the Act and the rules and regulations of the Commission and
the Registration Statement at its effective date did not,
and at the Time of Purchase will not, contain any untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and the Basic Prospectus
at the time that the Registration Statement became
effective, and the Prospectus when first filed in
accordance with Rule 424(b) complies, and at the Time of
Purchase the Prospectus will comply, with the applicable
provisions of the Act and the Trust Indenture Act of 1939,
as amended, and the rules and regulations of the
Commission, the Basic Prospectus at the time that the
Registration Statement became effective, and the Prospectus
when first filed in accordance with Rule 424(b) did not,
and the Prospectus at the Time of Purchase will not,
contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading, except that the Company makes no warranty or
representation to the Underwriters with respect to any
statements or omissions made in the Registration Statement
or Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by, or
through the Representative on behalf of, any Underwriter
expressly for use in the Registration Statement, the Basic
Prospectus or Prospectus, or to any statements in or
omissions from that part of the Registration Statement that
shall constitute the Statement of Eligibility under the
Trust Indenture Act of 1939 of any indenture trustee under
an indenture of the Company.
(b) As of the Time of Purchase, the Indenture will have been
duly authorized by the Company and duly qualified under the
Trust Indenture Act of 1939, as amended, and, when executed
and delivered by the Trustee and the Company, will
constitute a legal, valid and binding instrument
enforceable against the Company in accordance with its
terms and such [Unsecured Notes] will have been duly
authorized, executed, authenticated and, when paid for by
the purchasers thereof, will constitute legal, valid and
binding obligations of the Company entitled to the benefits
of the Indenture, except as the enforceability thereof may
be limited by bankruptcy, insolvency, or other similar laws
affecting the enforcement of creditors' rights in general,
and except as the availability of the remedy of specific
performance is subject to general principles of equity
(regardless of whether such remedy is sought in a
proceeding in equity or at law), and by an implied covenant
of good faith and fair dealing.
(c) To the extent permitted by law, to indemnify and hold you
harmless and each person, if any, who controls you within
the meaning of Section 15 of the Act, against any and all
losses, claims, damages or liabilities, joint or several,
to which you, they or any of you or them may become subject
under the Act or otherwise, and to reimburse you and such
controlling person or persons, if any, for any legal or
other expenses incurred by you or them in connection with
defending any action, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based
upon any alleged untrue statement or untrue statement of a
material fact contained in the Registration Statement, in
the Basic Prospectus, or in the Prospectus, or if the
Company shall furnish or cause to be furnished to you any
amendments or any supplemental information, in the
Prospectus as so amended or supplemented other than
amendments or supplements relating solely to securities
other than the Notes (provided that if such Prospectus or
such Prospectus, as amended or supplemented, is used after
the period of time referred to in Section 4(b) hereof, it
shall contain such amendments or supplements as the Company
deems necessary to comply with Section 10(a) of the Act),
or arise out of or are based upon any alleged omission or
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein
not misleading, except insofar as such losses, claims,
damages, liabilities or actions arise out of or are based
upon any such alleged untrue statement or omission, or
untrue statement or omission which was made in the
Registration Statement, in the Basic Prospectus or in the
Prospectus, or in the Prospectus as so amended or
supplemented, in reliance upon and in conformity with
information furnished in writing to the Company by or
through you expressly for use therein or with any
statements in or omissions from that part of the
Registration Statement that shall constitute the Statement
of Eligibility under the Trust Indenture Act, of any
indenture trustee under an indenture of the Company, and
except that this indemnity shall not inure to your benefit
(or of any person controlling you) on account of any
losses, claims, damages, liabilities or actions arising
from the sale of the Notes to any person if such loss
arises from the fact that a copy of the Prospectus, as the
same may then be supplemented or amended to the extent such
Prospectus was provided to you by the Company (excluding,
however, any document then incorporated or deemed
incorporated therein by reference), was not sent or given
by you to such person with or prior to the written
confirmation of the sale involved and the alleged omission
or alleged untrue statement or omission or untrue statement
was corrected in the Prospectus as supplemented or amended
at the time of such confirmation, and such Prospectus, as
amended or supplemented, was timely delivered to you by the
Company. You agree promptly after the receipt by you of
written notice of the commencement of any action in respect
to which indemnity from the Company on account of its
agreement contained in this Section 5(c) may be sought by
you, or by any person controlling you, to notify the
Company in writing of the commencement thereof, but your
omission so to notify the Company of any such action shall
not release the Company from any liability which it may
have to you or to such controlling person otherwise than on
account of the indemnity agreement contained in this
Section 8(a). In case any such action shall be brought
against you or any such person controlling you and you
shall notify the Company of the commencement thereof, as
above provided, the Company shall be entitled to
participate in, and, to the extent that it shall wish,
including the selection of counsel (such counsel to be
reasonably acceptable to the indemnified party), to direct
the defense thereof at its own expense. In case the
Company elects to direct such defense and select such
counsel (hereinafter, "Company's counsel"), you or any
controlling person shall have the right to employ your own
counsel, but, in any such case, the fees and expenses of
such counsel shall be at your expense unless (i) the
Company has agreed in writing to pay such fees and expenses
or (ii) the named parties to any such action (including any
impleaded parties) include both you or any controlling
person and the Company and you or any controlling person
shall have been advised by your counsel that a conflict of
interest between the Company and you or any controlling
person may arise (and the Company's counsel shall have
concurred in good faith with such advice) and for this
reason it is not desirable for the Company's counsel to
represent both the indemnifying party and the indemnified
party (it being understood, however, that the Company shall
not, in connection with any one such action or separate but
substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys for
you or any controlling person (plus any local counsel
retained by you or any controlling person in their
reasonable judgment), which firm (or firms) shall be
designated in writing by you or any controlling person).
No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification
could be sought under this Section 5 (whether or not the
indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party
from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any
indemnified party. In no event shall any indemnifying
party have any liability or responsibility in respect of
the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened
action or claim effected without its prior written consent.
(d) The documents incorporated by reference in the Registration
Statement or Prospectus, when they were filed with the
Commission, complied in all material respects with the
applicable provisions of the 1934 Act and the rules and
regulations of the Commission thereunder, and as of such
time of filing, when read together with the Prospectus,
none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(e) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as
otherwise stated therein, there has been no material adverse
change in the business, properties or financial condition of
the Company.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) The consummation by the Company of the transactions
contemplated herein will not conflict with, or result in a
breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Company under any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to
which the Company is a party or by which it may be bound or to
which any of its properties may be subject (except for
conflicts, breaches or defaults which would not, individually
or in the aggregate, be materially adverse to the Company or
materially adverse to the transactions contemplated by this
Agreement.)
(h) No authorization, approval, consent or order of any court
or governmental authority or agency is necessary in
connection with the issuance and sale by the Company of the
Notes or the transactions by the Company contemplated in
this Agreement, except (A) such as may be required under
the 1933 Act or the rules and regulations thereunder; (B)
such as may be required under the Public Utility Holding
Company Act of 1935, as amended (the "1935 Act"); (C) the
qualification of the Indenture under the 1939 Act; (D) the
approval of The Indiana Utility Regulatory Commission; and
(E) such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities
or Blue Sky laws.
The Company's indemnity agreement contained in Section 5(c) hereof, and
its covenants, warranties and representations contained in this Agreement, shall
remain in full force and effect regardless of any investigation made by or on
behalf of any person, and shall survive the delivery of and payment for the
[Unsecured Notes] hereunder.
6. Warranties of and Indemnity by Underwriters:
(a) Each Underwriter warrants and represents that the information
furnished in writing to the Company through the Representative
for use in the Registration Statement, in the Basic
Prospectus, in the Prospectus, or in the Prospectus as amended
or supplemented is correct as to such Underwriter.
(b) Each Underwriter agrees, to the extent permitted by law, to
indemnify, hold harmless and reimburse the Company, its
directors and such of its officers as shall have signed the
Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of
the Act, to the same extent and upon the same terms as the
indemnity agreement of the Company set forth in Section
5(c) hereof, but only with respect to untrue statements or
alleged untrue statements or omissions or alleged omissions
made in the Registration Statement, or in the Basic
Prospectus, or in the Prospectus, or in the Prospectus as
so amended or supplemented, in reliance upon and in
conformity with information furnished in writing to the
Company by the Representative on behalf of such Underwriter
expressly for use therein. The Company agrees promptly
after the receipt by it of written notice of the
commencement of any action in respect to which indemnity
from you on account of your agreement contained in this
Section 6(b) may be sought by the Company, or by any person
controlling the Company, to notify you in writing of the
commencement thereof, but the Company's omission so to
notify you of any such action shall not release you from
any liability which you may have to the Company or to such
controlling person otherwise than on account of the
indemnity agreement contained in this Section 6(b).
The indemnity agreement on the part of each Underwriter contained in
Section 6(b) hereof, and the warranties and representations of such Underwriter
contained in this Agreement, shall remain in full force and effect regardless of
any investigation made by or on behalf of the Company or other person, and shall
survive the delivery of and payment for the [Unsecured Notes] hereunder.
7. Default of Underwriters: If any Underwriter under this Agreement shall
fail or refuse (otherwise than for some reason sufficient to justify, in
accordance with the terms hereof, the cancellation or termination of its
obligations hereunder) to purchase and pay for the principal amount of
[Unsecured Notes] which it has agreed to purchase and pay for hereunder, and the
aggregate principal amount of [Unsecured Notes] which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate principal amount of the [Unsecured Notes], the
other Underwriters shall be obligated severally in the proportions which the
amounts of [Unsecured Notes] set forth opposite their names in Exhibit 1 hereto
bear to the aggregate principal amount of [Unsecured Notes] set forth opposite
the names of all such non-defaulting Underwriters, to purchase the [Unsecured
Notes] which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on the terms set forth herein; provided that in no event
shall the principal amount of [Unsecured Notes] which any Underwriter has agreed
to purchase pursuant to Section 1 hereof be increased pursuant to this Section 7
by an amount in excess of one-ninth of such principal amount of [Unsecured
Notes] without the written consent of such Underwriter. If any Underwriter or
Underwriters shall fail or refuse to purchase [Unsecured Notes] and the
aggregate principal amount of [Unsecured Notes] with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of the
[Unsecured Notes] then this Agreement shall terminate without liability on the
part of any defaulting Underwriter; provided, however, that the non-defaulting
Underwriters may agree, in their sole discretion, to purchase the [Unsecured
Notes] which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on the terms set forth herein. In the event the Company
shall be entitled to but shall not elect (within the time period specified
above) to exercise its rights under clause (a) and/or (b), then this Agreement
shall terminate. In the event of any such termination, the Company shall not be
under any liability to any Underwriter (except to the extent, if any, provided
in Section 4(h) hereof), nor shall any Underwriter (other than an Underwriter
who shall have failed or refused to purchase the [Unsecured Notes] without some
reason sufficient to justify, in accordance with the terms hereof, its
termination of its obligations hereunder) be under any liability to the Company
or any other Underwriter.
Nothing herein contained shall release any defaulting Underwriter from its
liability to the Company or any non-defaulting Underwriter for damages
occasioned by its default hereunder.
8. Termination of Agreement by the Underwriters: This Agreement may be
terminated at any time prior to the Time of Purchase by the Representative if,
after the execution and delivery of this Agreement and prior to the Time of
Purchase, in the Representative's reasonable judgment, the Underwriters' ability
to market the [Unsecured Notes] shall have been materially adversely affected
because:
(i) trading in securities on the New York Stock Exchange shall
have been generally suspended by the Commission or by the New York Stock
Exchange, or
(ii) (A) a war involving the United States of America shall have
been declared, (B) any other national calamity shall have occurred, or (C)
any conflict involving the armed services of the United States of America
shall have escalated, or
(iii) a general banking moratorium shall have been declared by
Federal or New York State authorities, or
(iv) there shall have been any decrease in the ratings of the
Company's first mortgage bonds by Moody's Investors Services, Inc.
(Moody's) or Standard & Poor's Ratings Group (S&P) or either Moody's or
S&P shall publicly announce that it has such first mortgage bonds under
consideration for possible downgrade.
If the Representative elects to terminate this Agreement, as
provided in this Section 8, the Representative will promptly notify the Company
by telephone or by telex or facsimile transmission, confirmed in writing. If
this Agreement shall not be carried out by any Underwriter for any reason
permitted hereunder, or if the sale of the [Unsecured Notes] to the Underwriters
as herein contemplated shall not be carried out because the Company is not able
to comply with the terms hereof, the Company shall not be under any obligation
under this Agreement and shall not be liable to any Underwriter or to any member
of any selling group for the loss of anticipated profits from the transactions
contemplated by this Agreement (except that the Company shall remain liable to
the extent provided in Section 4(h) hereof) and the Underwriters shall be under
no liability to the Company nor be under any liability under this Agreement to
one another.
9. Notices: All notices hereunder shall, unless otherwise expressly
provided, be in writing and be delivered at or mailed to the following
addresses or by telex or facsimile transmission confirmed in writing to the
following addresses: if to the Underwriters, to
_______________________________________________, as Representative,
_____________________________________________, and, if to the Company, to
Ohio Power Company, c/o American Electric Power Service Corporation, 1
Riverside Plaza, Columbus, Ohio 43215, attention of A. A. Pena, Treasurer,
(fax 614/223-1687).
10. Parties in Interest: The agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Company (including the
directors thereof and such of the officers thereof as shall have signed the
Registration Statement), the controlling persons, if any, referred to in
Sections 5 and 6 hereof, and their respective successors, assigns, executors and
administrators, and, except as expressly otherwise provided in Section 7 hereof,
no other person shall acquire or have any right under or by the virtue of this
Agreement.
11. Definition of Certain Terms: If there be two or more persons, firms or
corporations named in Exhibit 1 hereto, the term "Underwriters", as used herein,
shall be deemed to mean the several persons, firms or corporations, so named
(including the Representative herein mentioned, if so named) and any party or
parties substituted pursuant to Section 7 hereof, and the term "Representative",
as used herein, shall be deemed to mean the representative or representatives
designated by, or in the manner authorized by, the Underwriters. All obligations
of the Underwriters hereunder are several and not joint. If there shall be only
one person, firm or corporation named in Exhibit 1 hereto, the term
"Underwriters" and the term "Representative", as used herein, shall mean such
person, firm or corporation. The term "successors" as used in this Agreement
shall not include any purchaser, as such purchaser, of any of the [Unsecured
Notes] from any of the respective Underwriters.
12. Conditions of the Company's Obligations: The obligations of the
Company hereunder are subject to the Underwriters' performance of their
obligations hereunder, and the further condition that at the Time of Purchase
The Public Utilities Commission of Ohio shall have issued an appropriate order,
and such order shall remain in full force and effect, authorizing the
transactions contemplated hereby.
13. Applicable Law: This Agreement will be governed and construed in
accordance with the laws of the State of New York.
14. Execution of Counterparts: This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, on the date
first above written.
OHIO 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(d)
- ------------ --, ----
Company Order and Officers' Certificate
[Senior Notes], Series _
Bankers Trust Company, as Trustee
Four Albany Street
New York, New York 10015
Attn: Corporate Trust Division
Ladies and Gentlemen:
Pursuant to Article Two of the Indenture, dated as of September 1, 1997 (as it
may be amended or supplemented, the "Indenture"), from Ohio Power Company (the
"Company") to Bankers Trust Company, as trustee (the "Trustee"), and the Board
Resolutions dated July 22, 1998, a copy of which certified by the Secretary or
an Assistant Secretary of the Company is being delivered herewith under Section
2.01 of the Indenture, and unless otherwise provided in a subsequent Company
Order pursuant to Section 2.04 of the Indenture,
1. The Company's [Senior Notes], Series _ (the "Notes") are hereby
established. The Notes shall be in substantially the form attached hereto
as Exhibit 1.
2. The terms and characteristics of the Notes shall be as follows
(the numbered clauses set forth below corresponding to the numbered
subsections of Section 2.01 of the Indenture, with terms used and not
defined herein having the meanings specified in the Indenture):
(i) the aggregate principal amount of Notes which may be
authenticated and delivered under the Indenture shall be limited to
$____________, except as contemplated in Section 2.01(i) of the
Indenture;
(ii) the date on which the principal of the Notes shall be payable
shall be __________ __, ____;
(iii) interest shall accrue from the date of authentication of the
Notes; the Interest Payment Dates on which such interest will be
payable shall be March 31, June 30, September 30 and December 31,
and the Regular Record Date for the determination of holders to whom
interest is payable on any such Interest Payment Date shall be one
Business Day prior to the relevant Interest Payment Date, except
that if the Notes are no longer represented by a Global Note, the
Regular Record Date shall be the close of business on March 15, June
15, September 15 or December 15, as the case may be, next preceding
such Interest Payment Date; provided that interest payable on the
Stated Maturity Date or any Redemption Date shall be paid to the
Person to whom principal shall be paid;
(iv) the interest rate at which the Notes shall bear interest shall
be ______%;
(v) the Notes shall be redeemable at the option of the Company, in
whole or in part, at any time on or after __________ __, ____, upon
not less than 30 nor more than 60 days' notice, at 100% of the
principal amount redeemed together with accrued and unpaid interest
to the redemption date;
(vi) (a) the Notes shall be issued in the form of a Global Note; (b)
the Depositary for such Global Note shall be The Depository Trust
Company; and (c) the procedures with respect to transfer and
exchange of Global Notes shall be as set forth in the form of Note
attached hereto;
(vii) the title of the Notes shall be "[Senior Notes], Series
_";
(viii) the form of the Notes shall be as set forth in Paragraph
1, above;
(ix) not applicable;
(x) the Notes shall not be subject to a Periodic Offering;
(xi) not applicable;
(xii) not applicable;
(xiii) not applicable;
(xiv) the Notes shall be issuable in denominations of $25 and
any integral multiple thereof;
(xv) not applicable;
(xvi) the Notes shall not be issued as Discount Securities;
(xvii) not applicable;
(xviii) not applicable; and
(xix) not applicable.
3. You are hereby requested to authenticate $____________ aggregate
principal amount of ______% [Senior Notes], Series _, due __________ __,
____ in such name as requested by The Depository Trust Company ("DTC") in
the Letter of Representations dated __________ __, ____, from the Company
and the Trustee to DTC in the manner provided by the Indenture.
4. You are hereby requested to hold the Notes as custodian for DTC
in accordance with the Letter of Representations.
5. Concurrently with this Company Order, an Opinion of Counsel under
Sections 2.04 and 13.06 of the Indenture is being delivered to you.
6. The undersigned Armando A. Pena and Thomas G. Berkemeyer, the
Treasurer and Assistant Secretary, respectively, of the Company do hereby
certify that:
(i) we have read the relevant portions of the Indenture, including
without limitation the conditions precedent provided for therein
relating to the action proposed to be taken by the Trustee as
requested in this Company Order and Officers' Certificate, and the
definitions in the Indenture relating thereto;
(ii) we have read the Board Resolutions of the Company and
the Opinion of Counsel referred to above;
(iii) we have conferred with other officers of the Company, have
examined such records of the Company and have made such other
investigation as we deemed relevant for purposes of this
certificate;
(iv) in our opinion, we have made such examination or investigation
as is necessary to enable us to express an informed opinion as to
whether or not such conditions have been complied with; and
(v) on the basis of the foregoing, we are of the opinion that all
conditions precedent provided for in the Indenture relating to the
action proposed to be taken by the Trustee as requested herein have
been complied with.
Kindly acknowledge receipt of this Company Order and Officers' Certificate,
including the documents listed herein, and confirm the arrangements set forth
herein by signing and returning the copy of this document attached hereto.
Very truly yours,
OHIO POWER COMPANY
By:___________________________
Treasurer
And:__________________________
Assistant Secretary
Acknowledged by Trustee:
By:___________________________
Vice President
Exhibit 1
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment, and any certificate
to be issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein. Except as otherwise provided
in Section 2.11 of the Indenture, this Security may be transferred, in whole but
not in part, only to another nominee of the Depository or to a successor
Depository or to a nominee of such successor Depository.]
No.
OHIO POWER COMPANY
[Senior Notes], Series _
CUSIP: Original Issue Date:
Maturity Date: Interest Rate:
Principal Amount:
Redeemable: Yes ____ No ____
In Whole: Yes ____ No ____
In Part: Yes ____ No ____
Initial Redemption Date:
Redemption Limitation Date:
Initial Redemption Price:
Reduction Percentage:
OHIO POWER COMPANY, a corporation duly organized and existing under the
laws of the State of Ohio (herein referred to as the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to CEDE & CO. or registered assigns,
the Principal Amount specified above on the Stated Maturity Date specified
above, and to pay interest on said Principal Amount from the Original Issue Date
specified above or from the most recent interest payment date (each such date,
an "Interest Payment Date") to which interest has been paid or duly provided
for, quarterly in arrears on March 31, June 30, September 30 and December 31 in
each year, commencing (except as provided below) with the Interest Payment Date
next succeeding the Original Issue Date specified above, at the Interest Rate
per annum specified above, until the Principal Amount shall have been paid or
duly provided for. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date, as provided in the Indenture, as hereinafter defined,
shall be paid to the Person in whose name this Note (or one or more Predecessor
Securities) shall have been registered at the close of business on the Regular
Record Date with respect to such Interest Payment Date, which shall be the close
of business on the Business Day next preceding such Interest Payment Date. Any
such interest not so punctually paid or duly provided for shall forthwith cease
to be payable to the Holder on such Regular Record Date and shall be paid as
provided in said Indenture.
If any Interest Payment Date, any Redemption Date or the Stated Maturity
Date is not a Business Day, then payment of the amounts due on this Note on such
date will be made on the next succeeding Business Day, and no interest shall
accrue on such amounts for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity Date, as the case may be, except that, if
such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, with the same force and effect
as if made on such date. The principal of (and premium, if any) and the interest
on this Note shall be payable at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, the City of New York, New York, in
any coin or currency of the United States of America which at the time of
payment is legal tender for payment of public and private debts; provided,
however, that payment of interest (other than interest payable on the Stated
Maturity Date or any Redemption Date) may be made at the option of the Company
by check mailed to the registered holder at such address as shall appear in the
Note Register.
This Note is one of a duly authorized series of Notes of the Company
(herein sometimes referred to as the "Notes"), specified in the Indenture, all
issued or to be issued in one or more series under and pursuant to an Indenture
dated as of September 1, 1997 duly executed and delivered between the Company
and Bankers Trust Company, a national banking association organized and existing
under the laws of the United States, as Trustee (herein referred to as the
"Trustee") (such Indenture, as originally executed and delivered and as
thereafter supplemented and amended being hereinafter referred to as the
"Indenture"), to which Indenture and all indentures supplemental thereto or
Company Orders reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders of the Notes. By the terms of the
Indenture, the Notes are issuable in series which may vary as to amount, date of
maturity, rate of interest and in other respects as in the Indenture provided.
This Note is one of the series of Notes designated on the face hereof.
If so specified on the face hereof and subject to the terms of Article
Three of the Indenture, this Note is subject to redemption at any time on or
after the Initial Redemption Date specified on the face hereof, as a whole or,
if specified, in part, at the election of the Company, at the applicable
redemption price (as described below) plus any accrued but unpaid interest to
the date of such redemption. Unless otherwise specified on the face hereof, such
redemption price shall be the Initial Redemption Price specified on the face
hereof for the twelve-month period commencing on the Initial Redemption Date and
shall decline for the twelve-month period commencing on each anniversary of the
Initial Redemption Date by a percentage of principal amount equal to the
Reduction Percentage specified on the face hereof until such redemption price is
100% of the principal amount of this Note to be redeemed.
Notwithstanding the foregoing, the Company may not, prior to the
Redemption Limitation Date, if any, specified on the face hereof, redeem any
Note of this series as contemplated above as a part of, or in anticipation of,
any refunding operation by the application, directly or indirectly, of moneys
borrowed having an effective interest cost to the Company (calculated in
accordance with generally accepted financial practice) of less than the
effective interest cost to the Company (similarly calculated) of this Note.
This Note shall be redeemable to the extent set forth herein and in the
Indenture upon not less than thirty, but not more than sixty, days previous
notice by mail to the registered owner.
The Company shall not be required to (i) issue, exchange or register the
transfer of any Notes during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of less than all
the outstanding Notes of the same series and ending at the close of business on
the day of such mailing, nor (ii) register the transfer of or exchange of any
Notes of any series or portions thereof called for redemption. This Global Note
is exchangeable for Notes in definitive registered form only under certain
limited circumstances set forth in the Indenture.
In the event of redemption of this Note in part only, a new Note or Notes
of this series, of like tenor, for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the surrender of this Note.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Notes may be declared,
and upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Note upon compliance by the Company with certain conditions
set forth therein.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Notes of each series affected at the time outstanding,
as defined in the Indenture, to execute supplemental indentures for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Holders of the Notes; provided, however, that no
such supplemental indenture shall (i) extend the fixed maturity of any Notes of
any series, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any premium payable upon the
redemption thereof, or reduce the amount of the principal of a Discount Security
that would be due and payable upon a declaration of acceleration of the maturity
thereof pursuant to the Indenture, without the consent of the holder of each
Note then outstanding and affected; (ii) reduce the aforesaid percentage of
Notes, the holders of which are required to consent to any such supplemental
indenture, or reduce the percentage of Notes, the holders of which are required
to waive any default and its consequences, without the consent of the holder of
each Note then outstanding and affected thereby; or (iii) modify any provision
of Section 6.01(c) of the Indenture (except to increase the percentage of
principal amount of securities required to rescind and annul any declaration of
amounts due and payable under the Notes), without the consent of the holder of
each Note then outstanding and affected thereby. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount of
the Notes of all series at the time outstanding affected thereby, on behalf of
the Holders of the Notes of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture with respect to such series, and its consequences,
except a default in the payment of the principal of or premium, if any, or
interest on any of the Notes of such series. Any such consent or waiver by the
registered Holder of this Note (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders and
owners of this Note and of any Note issued in exchange herefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the time and place and at the rate and in the money
herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, this Note is transferable by the registered holder hereof on the Note
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company as may be designated by the
Company accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the registered
Holder hereof or his or her attorney duly authorized in writing, and thereupon
one or more new Notes of authorized denominations and for the same aggregate
principal amount and series will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any paying agent and any Note Registrar may deem and treat
the registered Holder hereof as the absolute owner hereof (whether or not this
Note shall be overdue and notwithstanding any notice of ownership or writing
hereon made by anyone other than the Note Registrar) for the purpose of
receiving payment of or on account of the principal hereof and premium, if any,
and interest due hereon and for all other purposes, and neither the Company nor
the Trustee nor any paying agent nor any Note Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
The Notes of this series are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations, Notes of this series are
exchangeable for a like aggregate principal amount of Notes of this series of a
different authorized denomination, as requested by the Holder surrendering the
same.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
IN WITNESS WHEREOF, the Company has caused this Instrument to be executed.
OHIO POWER COMPANY
By:___________________________
Attest:
By:___________________________
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes designated in accordance
with, and referred to in, the within-mentioned Indenture.
Dated:_______________
BANKERS TRUST COMPANY, as Trustee
By:___________________________
Authorized Signatory
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
(PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE)
- ---------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
(PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
- ----------------------------------------------------------------
ASSIGNEE) the within Note and all rights thereunder, hereby
- ----------------------------------------------------------------
irrevocably constituting and appointing such person attorney to
- ----------------------------------------------------------------
transfer such Note on the books of the Issuer, with full
- ----------------------------------------------------------------
power of substitution in the premises.
Dated:________________________ _________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular,
without alteration or enlargement or any change whatever and
NOTICE: Signature(s) must be guaranteed by a financial
institution that is a member of the Securities Transfer Agents
Medallion Program ("STAMP"), the Stock Exchange Medallion Program
("SEMP") or the New York Stock Exchange, Inc. Medallion Signature
Program ("MSP").
Exhibit 5
April 6, 1999
Ohio Power Company
301 Cleveland Avenue, S.W.
Canton, Ohio 44702
Dear Sirs:
With respect to the Registration Statement on Form S-3 of Ohio Power
Company (the "Company") relating to the issuance and sale by the Company in one
or more transactions from time to time of its Unsecured Notes (the "Unsecured
Notes") under an Indenture between the Company and Bankers Trust Company, as
Trustee (the "Indenture"), we wish to advise you as follows.
We are of the opinion that, when the steps mentioned in the next paragraph
below have been taken, the Unsecured Notes will be valid and legally binding
obligations of the Company, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
The steps to be taken which are referred to in the next preceding
paragraph consist of the following:
(1) Appropriate definitive action by the Board of Directors of the
Company with respect to the proposed transaction set forth in said
Registration Statement;
(2) Appropriate action by and before The Public Utilities Commission
of Ohio in respect of the proposed transaction set forth in said
Registration Statement;
(3) Compliance with the Securities Act of 1933, as amended, and with
the Trust Indenture Act of 1939, as amended;
(4) Execution and delivery of the Indenture; and
(5) Issuance and sale of the Unsecured Notes by the Company in
accordance with the Indenture and the governmental and corporate
authorizations aforesaid.
Insofar as this opinion relates to matters governed by laws other than the
laws of the State of New York and the Federal law of the United States, this
firm has consulted, and may consult further, with counsel in which this firm has
confidence and will rely, as to such matters, upon such opinions or advice of
such counsel which will be delivered to this firm prior to the closing of the
sale of the Unsecured Notes.
We consent to the filing of this opinion as an exhibit to said
Registration Statement and to the use of our name and the inclusion of the
statements in regard to us set forth in said Registration Statement under the
caption "Legal Opinions".
Very truly yours,
/s/ Simpson Thacher & Bartlett
SIMPSON THACHER & BARTLETT
Exhibit 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Ohio Power Company on Form S-3 of our reports dated February 23,
1999, appearing in and incorporated by reference in the Annual Report on Form
10-K of Ohio Power Company for the year ended December 31, 1998 and to the
reference to us under the heading "Experts" in the Prospectus, which is part of
this Registration Statement.
Deloitte & Touche LLP
Columbus, Ohio
April 6, 1999
Exhibit 24
OHIO POWER COMPANY
I, Thomas G. Berkemeyer, Assistant Secretary of OHIO 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 July 22, 1998, 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 ____ day of April, 1999.
/s/ Thomas G. Berkemeyer___
Assistant Secretary
OHIO POWER COMPANY
July 22, 1998
The Chairman outlined a proposed financing program through
September 30, 1999 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 $400,000,000
(or its equivalent in another currency or composite currency) aggregate
principal amount of debt securities comprised of first mortgage bonds or
secured or unsecured promissory notes (including Junior Subordinated
Debentures), or a combination of each, in one or more new series, each series
to have a maturity of not more than 50 years ("Debt Securities"). He then
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 $400,000,000 ("Term
Notes").
The Chairman explained that it was proposed that the proceeds to
be received in connection with the proposed sale of Debt Securities and the
Term Notes would be added to the general funds of the Company and used to pay
at maturity, or prepay as may be appropriate and as may then be desirable, or
purchase directly or indirectly, currently outstanding debt or for other
corporate purposes.
Thereupon, on motion duly made and seconded, it was unanimously
RESOLVED, that the proposed financing program of this
Company, as outlined at this meeting, be, and the same hereby is,
in all respects ratified, confirmed and approved; and further
RESOLVED, that the proper officers of this Company be, and
they hereby are, authorized to take all steps necessary, or in
their opinion desirable, to carry out the financing program
outlined at this meeting.
The Chairman reminded the meeting that the Company has in place
an order of The Public Utilities Commission of Ohio authorizing the issuance
of $290,000,000 of Debt Securities through September 30, 1998 under which
$188,000,000 of Debt Securities has been issued, and that, in connection with
the proposed financing program, an application for additional authority
through September 30, 1999 will be filed with The Public Utilities Commission
of Ohio. He then stated that it may be necessary to file one or more
Registration Statements pursuant to the applicable provisions of the
Securities Act of 1933, as amended, and to register or qualify the securities
to be sold pursuant to such financing program under the "blue sky" laws of
various jurisdictions.
Thereupon, on motion duly made and seconded, it was unanimously
RESOLVED, that with respect to the proposed financing
program approved at this meeting, the proper officers of this
Company be, and they hereby are, authorized to execute and file
an Application for additional financing authority with The Public
Utilities Commission of Ohio on behalf of the Company; and further
RESOLVED, that the proper officers of this Company be, and
they hereby are, authorized to execute and file with the
Securities and Exchange Commission ("SEC") on behalf of the
Company one or more Registration Statements pursuant to the
applicable provisions of the Securities Act of 1933, as amended;
and further
RESOLVED, that it is desirable and in the best interest of
the Company that the Debt Securities be qualified or registered
for sale in various jurisdictions; that the Chairman of the
Board, the President, any Vice President or the Treasurer and the
Secretary or an Assistant Secretary hereby are authorized to
determine the jurisdictions in which appropriate action shall be
taken to qualify or register for sale all or such part of the
Debt Securities of the Company as said officers may deem
advisable; that said officers are hereby authorized to perform on
behalf of the Company any and all such acts as they may deem
necessary or advisable in order to comply with the applicable
laws of any such jurisdictions, and in connection therewith to
execute and file all requisite papers and documents, including,
but not limited to, applications, reports, surety bonds,
irrevocable consents and appointments of attorneys for service of
process; and the execution by such officers of any such paper or
document or the doing by them of any act in connection with the
foregoing matters shall conclusively establish their authority
therefor from the Company and the approval and ratification by
the Company of the papers and documents so executed and the
action so taken; and further
RESOLVED, that the proper officers of this Company be, and
they hereby are, authorized and directed to take any and all
further action in connection therewith, including the execution
and filing of such amendment or amendments, supplement or
supplements and exhibit or exhibits thereto as the officers of
this Company may deem necessary or desirable.
The Chairman indicated to the meeting that it may be desirable
that the Debt Securities be listed on the New York Stock Exchange and in
connection with any such application, to register the Debt Securities under
the Securities Exchange Act of 1934, as amended.
Thereupon, it was, on motion duly made and seconded, unanimously
RESOLVED, that the officers of this Company be, and they
hereby are, authorized, in their discretion, to make one or more
applications, on behalf of this Company, to the New York Stock
Exchange for the listing of up to $400,000,000 aggregate
principal amount of Debt Securities; and further
RESOLVED, that H. W. Fayne, Bruce M. Barber and Armando A.
Pena, or any one of them, be, and they hereby are, designated to
appear before the New York Stock Exchange with full authority to
make such changes in any such application or any agreements
relating thereto as may be necessary or advisable to conform with
the requirements for listing; and further
RESOLVED, that the proper officers be, and they hereby are,
authorized to execute and file, on behalf of this Company, one or
more applications for the registration of up to $400,000,000
aggregate principal amount of Debt Securities with the Securities
and Exchange Commission pursuant to the provisions of the
Securities Exchange Act of 1934, as amended, in such form as the
officers of this Company executing the same may determine; and
further
RESOLVED, that the Chairman of the Board, the President,
any Vice President or the Treasurer and the Secretary or any
Assistant Secretary be, and each of them hereby is, authorized,
in the event any said application for listing is made, to execute
and deliver on behalf of this Company an indemnity agreement in
such form, with such changes therein as the officers executing
the same may approve, their execution to be conclusive evidence
of such approval; and further
RESOLVED, that the Chairman of the Board, the President,
any Vice President or the Treasurer be, and each of them hereby
is, authorized to take any other action and to execute any other
documents that in their judgment may be necessary or desirable in
connection with listing the Debt Securities on the New York Stock
Exchange.
The Chairman further stated that, in connection with the filing
with the SEC of one or more Registration Statements relating to the proposed
issuance and sale of up to $400,000,000 of Debt Securities, there was to be
filed with the SEC a Power of Attorney, dated July 22, 1998, 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, Ohio Power Company proposes to file with the SEC
one or more Registration Statements for the registration pursuant
to the applicable provisions of the Securities Act of 1933, as
amended, of up to $400,000,000 aggregate principal amount of Debt
Securities, in one or more new series, each series to have a
maturity of not less than nine months and not more than 50 years;
and
WHEREAS, in connection with said Registration Statement(s),
there is to be filed with the SEC a Power of Attorney, dated July
22, 1998, executed by certain of the officers and directors of
this Company appointing E. Linn Draper, Jr., Bruce M. Barber,
Henry W. Fayne and Armando A. Pena, or any one of them, their
true and lawful attorneys, with the powers and authority set
forth in said Power of Attorney;
NOW, THEREFORE, BE IT
RESOLVED, that each and every one of said officers and
directors be, and they hereby are, authorized to execute said
Power of Attorney; and further
RESOLVED, that any and all action hereafter taken by any of
said named attorneys under said Power of Attorney be, and the
same hereby is, ratified and confirmed and that said attorneys
shall have all the powers conferred upon them and each of them by
said Power of Attorney; and further
RESOLVED, that said Registration Statement(s) and any
amendments thereto, hereafter executed by any of said attorneys
under said Power of Attorney be, and the same hereby are,
ratified and confirmed as legally binding upon this Company to
the same extent as if the same were executed by each said officer
and director of this Company personally and not by any of said
attorneys.
The Chairman advised the meeting that it was proposed to
designate independent counsel for the successful bidder or bidders and/or
agents of the Company for the new series of Debt Securities proposed to be
issued and sold in connection with the proposed financing program of the
Company.
Thereupon, on motion duly made and seconded, it was unanimously
RESOLVED, that Dewey Ballantine LLP be, and said firm
hereby is, designated as independent counsel for the successful
bidder or bidders and/or agents of the Company for the new series
of Debt Securities of this Company proposed to be issued and sold
in connection with the proposed financing program of this Company.
The Chairman stated that it may be desirable to enter into a
treasury hedge agreement, such as a treasury lock agreement, treasury put
option or interest rate collar agreement ("Treasury Hedge Agreement") to
protect against future interest rate movements in connection with the
issuance of the Debt Securities. He recommended that the Board authorize the
appropriate officers of the Company to enter into a Treasury Hedge Agreement,
provided that the amount covered by such Agreement would not exceed the
principal amount of Debt Securities the Company anticipates offering and that
the term of such Agreement will not exceed 90 days.
Thereupon, it was, on motion duly made and seconded, unanimously
RESOLVED, that the Chairman of the Board, the President,
any Vice President or the Treasurer of this Company be, and each
of them hereby is, authorized to execute and deliver in the name
and on behalf of this Company, a Treasury Hedge Agreement in such
form as shall be approved by the officer executing the same, such
execution to be conclusive evidence of such approval, provided
that the amount covered by such Agreement would not exceed the
principal amount of Debt Securities the Company anticipates
offering and that the term of such Agreement will not exceed 90
days; and further
RESOLVED, that the proper officers of the Company be, and
they hereby are, authorized to execute and deliver such other
documents and instruments, and to do such other acts and things,
that in their judgment may be necessary or desirable in
connection with the transactions authorized in the foregoing
resolutions.
The Chairman explained that, with respect to the issuance of up
to $400,000,000 of Debt Securities through one or more agents under a medium
term note program, the Company could enter into a Selling Agency Agreement.
He recommended that the Board authorize the appropriate officers of the
Company to enter into such Selling Agency Agreement with securities dealers
yet to be determined.
Thereupon, upon motion duly made and seconded, it was unanimously
RESOLVED, that the Chairman of the Board, the President,
any Vice President or the Treasurer of this Company be, and each
of them hereby is, authorized to execute and deliver in the name
and on behalf of this Company, 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 ("Underwriting Agreement") with certain
underwriters, under which the underwriters may purchase up to $400,000,000
aggregate principal amount of Debt Securities. He recommended that the Board
authorize the appropriate officers of the Company to enter into an
Underwriting Agreement and determine the purchase price of the Debt
Securities, provided that the price shall not be less than 95% (including
compensation to the underwriters) of the aggregate principal amount of the
Debt Securities.
Thereupon, it was, on motion duly made and seconded, unanimously
RESOLVED, that the Chairman of the Board, the President,
any Vice President or the Treasurer of this Company be, and each
of them hereby is, authorized to execute and deliver in the name
and on behalf of this Company, an Underwriting Agreement in such
form as shall be approved by the officer executing the same, such
execution to be conclusive evidence of such approval, provided
that the purchase price of the Debt Securities shall not be less
than 95% (including compensation to the underwriters) of the
aggregate principal amount of the Debt Securities; and further
RESOLVED, that the proper officers of the Company be, and
they hereby are, authorized to execute and deliver such other
documents and instruments, and to do such other acts and things,
that in their judgment may be necessary or desirable in
connection with the transactions authorized in the foregoing
resolutions.
The Chairman related to the meeting that any Underwriting
Agreement and any Selling Agency Agreement would be entered into in
connection with the issuance of Debt Securities. He further noted that, in
order to enable the Company to perform its obligations under the Selling
Agency Agreement or the Underwriting Agreement approved at this meeting
providing for the sale of up to $400,000,000 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 October 1,
1938, of the Company to Central Hanover Bank and Trust Company (now The Chase
Manhattan Bank), as Trustee, as heretofore supplemented and amended, and as
to be supplemented and amended by one or more additional Supplemental
Indentures to the Mortgage and Deed of Trust, each of said new series of
First Mortgage Bonds to be entitled and designated as, in the case of a
medium term note program, "First Mortgage Bonds, Designated Secured Medium
Term Notes, ______% Series due ____________", and, in the case of an
Underwriting Agreement, "First Mortgage Bonds, ______% Series due
____________", with the interest rate, maturity and certain other terms of
each such series of First Mortgage Bonds to be designated at the time of
creation thereof, the maturity thereof to be not less than nine months nor
more than 50 years. Any fixed rate of interest applicable to the First
Mortgage Bonds will not exceed by more than 2.5% the yield to maturity on
United States Treasury obligations of comparable maturity at the time of
pricing of the First Mortgage Bonds. Any initial interest rate on any
variable rate First Mortgage Bonds will not exceed 10% per annum.
Thereupon, after full and thorough discussion, it was, on motion
duly made and seconded, unanimously
RESOLVED, that the officers of this Company (including the
Chairman of the Board, the President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary) be, and they hereby are, authorized to
create up to $400,000,000 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
October 1, 1938, of the Company to Central Hanover Bank and Trust
Company (now The Chase Manhattan Bank), as Trustee, and certain
indentures supplemental thereto, including one or more additional
Supplemental Indentures to the Mortgage and Deed of Trust, in
such form as shall be approved by the officer executing the same,
such execution to be conclusive evidence of such approval, to be
made by this Company to The Chase Manhattan Bank, as Trustee
(said Mortgage and Deed of Trust as heretofore supplemented and
amended, and as to be supplemented and amended, being hereinafter
called the "Mortgage"), each series to be designated and to be
distinguished from bonds of all other series by the title, in the
case of a medium term note program, "First Mortgage Bonds,
Designated Secured Medium Term Notes, ______% Series due
____________", and, in the case of an Underwriting Agreement,
"First Mortgage Bonds, ______% Series due ____________",
(hereinafter called "bonds of each New Series"), provided that
the interest rate, maturity and the applicable redemption
provisions, if any, and such other terms, including, but not
limited to, interest payment dates and record payment dates,
shall be designated at the time of creation thereof and such
maturity shall not be less than nine months nor more than 50
years and further provided that any fixed rate of interest
applicable to the First Mortgage Bonds will not exceed by more
than 2.5% the yield to maturity on United States Treasury
obligations of comparable maturity at the time of pricing of the
First Mortgage Bonds and any initial interest rate on any
variable rate First Mortgage Bonds will not exceed 10% per annum;
and further
RESOLVED, that the officers of this Company (including the
Chairman of the Board, the President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary) be, and they hereby are, authorized and
directed to execute and deliver, under the seal of and on behalf
of this Company, one or more additional Supplemental Indentures,
specifying the designation, terms, redemption provisions and
other provisions of the bonds of each New Series and providing
for the creation of the bonds of each New Series and effecting
the amendments to the Mortgage described therein, in such form as
shall be approved by the officer executing the same, such
execution to be conclusive evidence of such approval; that The
Chase Manhattan Bank 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 V or VI 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 The Chase Manhattan Bank, as Trustee
under the Mortgage, bonds of each New Series in the aggregate
principal amount of up to $400,000,000 as definitive fully
registered bonds without coupons in such denominations as may be
permitted under the Mortgage; and further
RESOLVED, that if any authorized officer of this Company
who signs, or whose facsimile signature appears upon, any of the
bonds of each New Series ceases to be such an officer prior to
their issuance, the bonds of each New Series so signed or bearing
such facsimile signature shall nevertheless be valid; and further
RESOLVED, that, subject as aforesaid, The Chase Manhattan
Bank, 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 28(2) of Article VI
and Section 29(2) of Article VII of the Mortgage, in connection
with the authentication and delivery of the bonds of the New
Series, and in connection with any other actions taken, or to be
taken, under the Mortgage; and further
RESOLVED, that John F. Di Lorenzo, Jr. of Upper Arlington,
Ohio, Thomas G. Berkemeyer of Hilliard, Ohio, Ann B. Graf of
Columbus, Ohio and David C. House of Upper Arlington, Ohio,
attorneys and employees of American Electric Power Service
Corporation, an affiliate of this Company, be, and each of them
hereby is, appointed Counsel to render the Opinion of Counsel
required by Article V, Section 28(7) or Article VI, Section 29(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 The Chase Manhattan Bank at
450 West 33rd 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 The Chase Manhattan Bank, 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 The Chase Manhattan Bank, 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 27 of the Mortgage; and further
RESOLVED, that the officers of the Company be, and they
hereby are, authorized and directed to execute such instruments
and papers and to do any and all acts as to them may seem
necessary or desirable to carry out the purposes of the foregoing
resolutions.
The Chairman explained that as an alternative to the issuance of
First Mortgage Bonds, the Company may issue and sell unsecured notes
("Notes"), pursuant to a Selling Agency Agreement or an Underwriting
Agreement. He further noted that, in order to enable the Company to perform
its obligations under the Selling Agency Agreement or the Underwriting
Agreement approved at this meeting providing for the sale of up to
$400,000,000 aggregate principal amount of the Notes, it was necessary that
the Board authorize the execution and delivery of one or more Company Orders
or Supplemental Indentures to the Indenture, dated as of September 1, 1997,
between the Company and Bankers Trust Company, in such form as shall be
approved by the officer executing the same, such execution to be conclusive
evidence of such approval. The terms of each series of Notes will be
established under a Company Order or a Supplemental Indenture. The interest
rate, maturity and certain other terms have not yet been determined. The
Chairman recommended that the Board authorize the appropriate officers of the
Company to determine the financial terms and conditions of the Notes,
including, without limitation, (i) the principal amount of the Notes to be
sold in each offering; (ii) the interest or method of determining the
interest on the Notes; (iii) the maturity (which shall not exceed 50 years
from the date of issuance) and redemption provisions of the Notes; and (iv)
such other terms and conditions as are contemplated or permitted by the
Indenture, a Company Order or a Supplemental Indenture. Any fixed interest
rate applicable to the Notes would not exceed by more than 2.5% the yield to
maturity at the date of pricing on United States Treasury obligations of
comparable maturity. Any initial fluctuating interest rate applicable to the
Notes would not exceed 10%.
Thereupon, it was, on motion duly made and seconded, unanimously
RESOLVED, that the Chairman of the Board, the President,
any Vice President, the Treasurer or any Assistant Treasurer and
the Secretary or any Assistant Secretary be, and they hereby are,
authorized to create up to $400,000,000 aggregate principal
amount of Notes to be issued under the Indenture and one or more
Supplemental Indentures or Company Orders, in such form as shall
be approved by the officer executing the same, such execution to
be conclusive evidence of such approval, and with such financial
terms and conditions as determined by appropriate officers of
this Company, pursuant to the Indenture and one or more
Supplemental Indentures or Company Orders, and with either a
fixed rate of interest which shall not exceed by more than 2.5%
the yield to maturity on United States Treasury obligations of
comparable maturity at the time of pricing of the Notes or at an
initial fluctuating rate of interest which at the time of pricing
would not exceed 10%, or at a combination of such described fixed
or fluctuating rates, and to specify the maturity, redemption or
tender provisions and other terms, at the time of issuance
thereof with the maturity not to exceed 50 years; and further
RESOLVED, that the Chairman of the Board, the President,
any Vice President, the Treasurer or any Assistant Treasurer and
the Secretary or any Assistant Secretary be, and they hereby are,
authorized and directed to execute and deliver, on behalf of this
Company, one or more Supplemental Indentures or Company Orders,
specifying the designation, terms, redemption provisions and
other provisions of the Notes and providing for the creation of
each series of Notes, in such form as shall be approved by the
officer executing the same, such execution to be conclusive
evidence of such approval; that Bankers Trust Company is hereby
requested to join in the execution of any Supplemental Indenture
or Company Order, as Trustee; and further
RESOLVED, that the Chairman of the Board, the President,
any Vice President, the Treasurer or any Assistant Treasurer be,
and they hereby are, authorized and directed to execute and
deliver, on behalf of this Company, to the extent not determined
in a Supplemental Indenture or Company Order, a certificate
requesting the authentication and delivery of any such Notes and
establishing the terms of any tranche of such series or
specifying procedures for doing so in accordance with the
procedures established in the Indenture; and further
RESOLVED, that the Chairman of the Board, the President,
any Vice President or the Treasurer and the Secretary or any
Assistant Secretary of this Company be, and they hereby are,
authorized and directed to execute in accordance with the
provisions of the Indenture (the signatures of such officers to
be effected either manually or by facsimile, in which case such
facsimile is hereby adopted as the signature of such officer
thereon), and to deliver to Bankers Trust Company, as Trustee
under the Indenture, the Notes in the aggregate principal amount
of up to $400,000,000 as definitive fully registered bonds
without coupons in such denominations as may be permitted under
the Indenture; and further
RESOLVED, that if any authorized officer of this Company
who signs, or whose facsimile signature appears upon, any of the
Notes ceases to be such an officer prior to their issuance, the
Notes so signed or bearing such facsimile signature shall
nevertheless be valid; and further
RESOLVED, that, subject as aforesaid, Bankers Trust
Company, as such Trustee, be, and it hereby is, requested to
authenticate, by the manual signature of an authorized officer of
such Trustee, the Notes and to deliver the same from time to time
in accordance with the written order of this Company signed in
the name of this Company by its Chairman, President, any Vice
President, the Treasurer or any Assistant Treasurer; and further
RESOLVED, that John F. Di Lorenzo, Jr. of Upper Arlington,
Ohio, Thomas G. Berkemeyer of Hilliard, Ohio, Ann B. Graf of
Columbus, Ohio, David C. House of Upper Arlington, Ohio and
William E. Johnson of Dublin, Ohio, attorneys and employees of
American Electric Power Service Corporation, an affiliate of this
Company, be, and each of them hereby is, appointed Counsel to
render any Opinion of Counsel required by the Indenture in
connection with the authentication and delivery of the Notes; and
further
RESOLVED, that the office of Bankers Trust Company, at Four
Albany Street, in the Borough of Manhattan, The City of New York,
be, and it hereby is, designated as the office or agency of this
Company, in accordance with the Indenture, for the payment of the
principal of and the interest on the Notes, for the registration,
transfer and exchange of Notes and for notices or demands to be
served on the Company with respect to the Notes; and further
RESOLVED, that said Bankers Trust Company, be, and it
hereby is, appointed the withholding agent and attorney of this
Company for the purpose of withholding any and all taxes required
to be withheld by the Company under the Federal revenue acts from
time to time in force and the Treasury Department regulations
pertaining thereto, from interest paid from time to time on the
Notes, and is hereby authorized and directed to make any and all
payments and reports and to file any and all returns and
accompanying certificates with the Federal Government which it
may be permitted or required to make or file as such agent under
any such revenue act and/or Treasury Department regulation
pertaining thereto; and further
RESOLVED, that the officers of this Company be, and they
hereby are, authorized and directed to effect transfers and
exchanges of the Notes, pursuant to the Indenture without
charging a sum for any Note issued upon any such transfer or
exchange other than a charge in connection with each such
transfer or exchange sufficient to cover any tax or other
governmental charge in relation thereto; and further
RESOLVED, that Bankers Trust Company be, and it hereby is,
appointed as Note Registrar in accordance with the Indenture; and
further
RESOLVED, that the officers of the Company be, and they
hereby are, authorized and directed to execute such instruments
and papers and to do any and all acts as to them may seem
necessary or desirable to carry out the purposes of the foregoing
resolutions.
The Chairman then stated that one or more insurance companies may
insure the payment of principal and interest on certain types of Debt
Securities as such payments become due pursuant to a financial guaranty
insurance policy ("Insurance Policy"). In this connection, the Company
proposes to enter into one or more Insurance Agreements, in such form as
shall be approved by the officer executing the same, such execution to be
conclusive evidence of such approval.
Thereupon, after discussion, on motion duly made and seconded, it
was unanimously
RESOLVED, that the proper officers of the Company be, and
they hereby are, authorized to execute and deliver on behalf of
the Company one or more Insurance Agreements with an insurance
company of their choice, in such form as shall be approved by the
officer executing the same, such execution to be conclusive
evidence of such approval; and further
RESOLVED, that the proper officers of the Company be, and
they hereby are, authorized on behalf of the Company to take such
further action and do all other things that any one of them shall
deem necessary or appropriate in connection with, the Insurance
Policy and the Insurance Agreement.
The Chairman noted that as an additional alternative to the
issuance of First Mortgage Bonds or Notes, the Company may issue and sell
Junior Subordinated Debentures pursuant to an Underwriting Agreement. He
reminded the Board that the Company has entered into an Indenture with The
First National Bank of Chicago dated as of October 1, 1995 ("Indenture") in
connection with the Company's issuance of Junior Subordinated Debentures
("Debentures"). The Chairman stated that, in connection with the proposed
sale of up to $400,000,000 aggregate principal amount of Debentures, it was
necessary that the Board of Directors of this Company authorize the execution
and delivery of one or more Supplemental Indentures to the Indenture
("Supplemental Indenture"). The Debentures will be created under the
Supplemental Indenture and will also allow the Company to defer payment of
interest for up to five years. The Chairman recommended that the Board
authorize the appropriate officers of the Company to create the Debentures
and specify the interest rate or method of determining the interest on the
Debentures, maturity, redemption provisions and other terms at the time of
creation, with the maturity not to exceed 50 years. Any fixed interest rate
applicable to the Debentures would not exceed by more than 2.5% the yield to
maturity at the time of pricing on United States Treasury obligations of
comparable maturity. Any initial fluctuating interest rate applicable to the
Debentures would not exceed 10%.
Thereupon, on motion duly made and seconded, it was unanimously
RESOLVED, that the Chairman of the Board, the President or
any Vice President, the Treasurer or any Assistant Treasurer and
the Secretary or any Assistant Secretary be, and they hereby are,
authorized (i) to create up to $400,000,000 aggregate principal
amount of Debentures to be issued under the Indenture and one or
more Supplemental Indentures, in such form as shall be approved
by the officer executing the same, such execution to be
conclusive evidence of such approval, to be designated and to be
distinguished from debentures of all other series by the title
"____% Junior Subordinated Deferrable Interest Debentures, Series
__, Due ____________", and (ii) to specify the interest rate,
maturity, redemption provisions and other terms at the time of
creation thereof with the maturity not to exceed 50 years and
with either a fixed rate of interest which shall not exceed by
more than 2.5% the yield to maturity at the time of pricing on
United States Treasury obligations of comparable maturity or at
an initial fluctuating rate of interest which at the time of
pricing will not exceed 10%, or a combination of such fixed or
fluctuating rates; and further
RESOLVED, that the Chairman of the Board, the President or
any Vice President, the Treasurer or any Assistant Treasurer, the
Secretary or any Assistant Secretary be, and they hereby are,
authorized and directed to execute and deliver, under the seal of
and on behalf of this Company, one or more Supplemental
Indentures, specifying the designation, terms, redemption
provisions and other provisions of the Debentures and providing
for the creation of the Debentures, such instrument to be in the
form as shall be approved by the officer executing the same, such
execution to be conclusive evidence of such approval; that The
First National Bank of Chicago is hereby requested to join in the
execution of any such Supplemental Indenture, as Trustee; and
further
RESOLVED, that the terms and provisions of the Debentures
and the form of the registered Debentures and of the Trustee's
Authentication Certificate shall be established by the
appropriate officers of the Company as herein authorized; and
further
RESOLVED, that the Chairman of the Board, the President,
any Vice President or the Treasurer and the Secretary or any
Assistant Secretary of this Company be, and they hereby are,
authorized and directed to execute under the seal of this Company
in accordance with the provisions of the Indenture (the
signatures of such officers to be effected either manually or by
facsimile, in which case such facsimile is hereby adopted as the
signature of such officer thereon), and to deliver to The First
National Bank of Chicago, as Trustee under the Indenture, the
Debentures in the aggregate principal amount of up to
$400,000,000 as definitive fully registered bonds without coupons
in denominations of $25 or integral multiples thereof; and further
RESOLVED, that if any authorized officer of this Company
who signs, or whose facsimile signature appears upon, any of the
Debentures ceases to be such an officer prior to their issuance,
the Debentures so signed or bearing such facsimile signature
shall nevertheless be valid; and further
RESOLVED, that, subject as aforesaid, The First National
Bank of Chicago, as such Trustee, be, and it hereby is, requested
to authenticate, by the manual signature of an authorized officer
of such Trustee, the Debentures and to deliver the same from time
to time in accordance with the written order of this Company
signed in the name of this Company by its Chairman, President,
one of its Vice Presidents or its Treasurer, and its Secretary or
one of Assistant Secretaries; and further
RESOLVED, that John F. Di Lorenzo, Jr. of Upper Arlington,
Ohio, Thomas G. Berkemeyer of Hilliard, Ohio, Ann B. Graf of
Columbus, Ohio, David C. House of Upper Arlington, Ohio and
William E. Johnson of Dublin, Ohio, attorneys and employees of
American Electric Power Service Corporation, an affiliate of this
Company, be, and each of them hereby is, appointed Counsel to
render any Opinion of Counsel required by the Indenture in
connection with the authentication and delivery of the
Debentures; and further
RESOLVED, that the office of The First National Bank of
Chicago, One First National Plaza, Suite 0126, Chicago, Illinois,
be, and it hereby is, designated as the office or agency of this
Company, in accordance with Section 4.02 of the Indenture, for
the payment of the principal of and the interest on the
Debentures, for the registration, transfer and exchange of
Debentures and for notices or demands to be served on the Company
with respect to the Debentures; and further
RESOLVED, that The First National Bank of Chicago, be, and
it hereby is, appointed the withholding agent and attorney of
this Company for the purpose of withholding any and all taxes
required to be withheld by the Company under the Federal revenue
acts from time to time in force and the Treasury Department
regulations pertaining thereto, from interest paid from time to
time on the Debentures, and is hereby authorized and directed to
make any and all payments and reports and to file any and all
returns and accompanying certificates with the Federal Government
which it may be permitted or required to make or file as such
agent under any such revenue act and/or Treasury Department
regulation pertaining thereto; and further
RESOLVED, that the officers of this Company be, and they
hereby are, authorized and directed to effect transfers and
exchanges of the Debentures, pursuant to Section 2.05 of the
Indenture without charging a sum for any Debenture issued upon
any such transfer or exchange other than a charge in connection
with each such transfer or exchange sufficient to cover any tax
or other governmental charge in relation thereto; and further
RESOLVED, that The First National Bank of Chicago be, and
it hereby is, appointed as Debenture Registrar in accordance with
Section 2.05(b) of the Indenture; and further
RESOLVED, that the officers of the Company be, and they
hereby are, authorized and directed to execute such instruments
and papers and to do any and all acts as to them may seem
necessary or desirable to carry out the purposes of the foregoing
resolutions.
The Chairman further stated that it would be desirable to
authorize the proper officers of the Company on behalf of the Company, to
enter into one or more term loan or note purchase agreements, in such form as
shall be approved by the officer executing the same, such execution to be
conclusive evidence of such approval ("Term Loan Agreement"), with one or
more as yet unspecified commercial banks, financial institutions or other
institutional investors, which would provide for the Company to borrow up to
$400,000,000. Such borrowings would be evidenced by an unsecured promissory
note or notes ("Term Note") of the Company maturing not less than nine months
nor more than 30 years after the date thereof, bearing interest to maturity
at either a fixed rate, floating rate, or combination thereof. Any fixed
interest rate of the Term Note will not exceed by more than 2.5% the yield to
maturity of United States Treasury obligations that mature on or about the
date of maturity of the Term Note. Any fluctuating rate will not be greater
than 200 basis points above the rate of interest announced publicly by the
lending bank from time to time as its base or prime rate, but in no event
will the initial fluctuating rate of interest exceed 10%.
Thereupon, upon motion duly made and seconded, it was unanimously
RESOLVED, that the Chairman of the Board, the President,
any Vice President or the Treasurer of this Company be, and each
of them hereby is, authorized to execute and deliver in the name
and on behalf of this Company, one or more Term Loan Agreements
in such form as shall be approved by the officer executing the
same, such execution to be conclusive evidence of such approval,
at either a fixed rate of interest which shall not exceed by more
than 2.5% the yield to maturity of United States Treasury
obligations that mature on or about the maturity date of the Term
Note issued thereunder, or a fluctuating rate of interest which
shall not be greater than 200 basis points above the rate of
interest announced publicly by the lending bank from time to time
as its base or prime rate, but in no event will such initial
fluctuation rate of interest exceed 10%, or at a combination of
such described fixed or fluctuating rates; and further
RESOLVED, that the Chairman of the Board, the President,
any Vice President or the Treasurer of this Company be, and each
of them hereby is, authorized, in the name and on behalf of this
Company, to borrow from one or more commercial banks, financial
institutions or other institutional investors, up to
$400,000,000, upon the terms and subject to the conditions of the
Term Loan Agreement as executed and delivered; and in connection
therewith, to execute and deliver a promissory note, with such
insertions therein and changes thereto consistent with such Term
Loan Agreement as shall be approved by the officer executing the
same, such execution to be conclusive evidence of such approval;
and further
RESOLVED, that the proper officers of this Company be, and
they hereby are, authorized to execute and deliver such other
documents and instruments, and to do such other acts and things,
that in their judgment may be necessary or desirable in
connection with the transactions authorized in the foregoing
resolutions.
OHIO POWER COMPANY
POWER OF ATTORNEY
Each of the undersigned directors or officers of OHIO POWER
COMPANY, an Ohio 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 $400,000,000 aggregate principal amount
of its Debt Securities comprising first mortgage bonds or secured or
unsecured promissory notes, or a combination of each, in one or more new
series, each series to have a maturity not exceeding 50 years, does hereby
appoint E. LINN DRAPER, JR., BRUCE M. BARBER, HENRY W. FAYNE 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 22nd day of July, 1998.
/s/ E. Linn Draper, Jr._____ /s/ James J. Markowsky_______
E. Linn Draper, Jr. L.S. James J. Markowsky L.S.
/s/ Henry W. Fayne__________ /s/ A. A. Pena____________
Henry W. Fayne L.S. A. A. Pena L.S.
/s/ Wm. J. Lhota____________ /s/ J. H. Vipperman_______
Wm. J. Lhota L.S. J. H. Vipperman L.S.
Exhibit 25
- -----------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF
1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) ___________
------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
---------------------------------
Ohio Power Company
(Exact name of Registrant as specified in its charter)
Ohio 35-4271000
(State or other jurisdiction of (I.R.S. employer
Incorporation or organization) identification no.)
301 Cleveland Avenue, S. W.
Canton, Ohio 44702
(330) 456 8173
(Address, including zip code, and telephone
number of principal executive offices)
Unsecured Notes
(Title of the indenture securities)
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority to
which it is subject.
Name Address
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
Item 3. -15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers
Trust Company dated August 7, 1990, Certificate of
Amendment of the Organization Certificate of Bankers
Trust Company dated June 21, 1995 - Incorporated herein
by reference to Exhibit 1 filed with Form T-1 Statement,
Registration No. 33-65171, Certificate of Amendment of
the Organization Certificate of Bankers Trust Company
dated March 20, 1996, incorporate by referenced to
Exhibit 1 filed with Form T-1 Statement, Registration
No. 333-25843 and Certificate of Amendment of the
Organization Certificate of Bankers Trust Company dated
June 19, 1997, copy attached.
Exhibit 2 - Certificate of Authority to commence
business - Incorporated herein by reference to Exhibit 2
filed with Form T-1 Statement, Registration No.
33-21047.
Exhibit 3 - Authorization of the Trustee to exercise
corporate trust powers - Incorporated herein by
reference to Exhibit 2 filed with Form T-1 Statement,
Registration No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust
Company, as amended on November 18, 1997. Copy
attached.
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by
Section 321(b) of the Act. - Incorporated herein by
reference to Exhibit 4 filed with Form T-1 Statement,
Registration No. 22-18864.
Exhibit 7 - The latest report of condition of Bankers
Trust Company dated as of September 30, 1998. Copy
attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on this 30th day
of March, 1999
BANKERS TRUST COMPANY
By: _/s/ Vincent Chorney___________
Vincent Chorney
Assistant Vice President
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF
THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the
Banking Law," dated June 19, 1997, providing for an increase in authorized
capital stock from $1,601,666,670 consisting of 100,166,667 shares with a par
value of $10 each designated as Common Stock and 600 shares with a par value of
$1,000,000 each designated as Series Preferred Stock to $2,001,666,670
consisting of 100,166,667 shares with a par value of $10 each designated as
Common Stock and 1,000 shares with a par value of $1,000,000 each designated as
Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of
New York, this 27th day of June in the Year of our Lord one thousand nine
hundred and ninety-seven.
Manuel Kursky
Deputy Superintendent of Banks
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby
certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended to
increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,601,666,670), divided into One
Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 600 shares with a par value of One Million Dollars ($1,000,000)
each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($2,001,666,670), divided into One Hundred
Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 1000 shares with a par value of One Million Dollars ($1,000,000)
each designated as Series Preferred Stock."
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 19th
day of June, 1997.
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 19th day of June, 1997.
Sandra L. West
Notary Public
SANDRA L. WEST
Notary Public State of
New York
No. 31-4942101
Qualified in New York
County
Commission Expires
September 19, 1998
BY-LAWS
NOVEMBER 18, 1997
Bankers Trust Company
New York
BY-LAWS
of
Bankers Trust Company
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board of
Directors or any Committee thereof may participate in a meeting of the Board of
Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or
re-elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board of
Directors may be filled by the affirmative vote of a majority of the directors
then in office, and the directors so elected shall hold office for the balance
of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time to
time on the third Tuesday of the month. If the day appointed for holding such
regular meetings shall be a legal holiday, the regular meeting to be held on
such day shall be held on the next business day thereafter. Special meetings of
the Board of Directors may be called upon at least two day's notice whenever it
may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall conduct
the annual directors' examinations of the Company as required by the New York
State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
Committee shall hold regular quarterly meetings and during the intervals thereof
shall meet at other times on call of the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 1. The Board of Directors shall elect from among their number a Chairman
of the Board and a Chief Executive Officer; and shall also elect a President,
and may also elect a Senior Vice Chairman, one or more Vice Chairmen, one or
more Executive Vice Presidents, one or more Senior Managing Directors, one or
more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of Directors
may require any and all officers and employees to give security for the faithful
performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer of
the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these
By-Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
Committee. The General Auditor shall have unrestricted access to all records and
premises of the Company and shall delegate such authority to his subordinates.
He shall have the duty to report to the Audit Committee on all matters
concerning the internal audit program and the adequacy of the system of internal
controls of the Company which he deems advisable or which the Audit Committee
may request. Additionally, the General Auditor shall have the duty of reporting
independently of all officers of the Company to the Audit Committee at least
quarterly on any matters concerning the internal audit program and the adequacy
of the system of internal controls of the Company that should be brought to the
attention of the directors except those matters responsibility for which has
been vested in the General Credit Auditor. Should the General Auditor deem any
matter to be of special immediate importance, he shall report thereon forthwith
to the Audit Committee. The General Auditor shall report to the Chief Financial
Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018 of
the New York Banking Law, indemnify any person who is or was made, or threatened
to be made, a party to an action or proceeding, whether civil or criminal,
whether involving any actual or alleged breach of duty, neglect or error, any
accountability, or any actual or alleged misstatement, misleading statement or
other act or omission and whether brought or threatened in any court or
administrative or legislative body or agency, including an action by or in the
right of the Company to procure a judgment in its favor and an action by or in
the right of any other corporation of any type or kind, domestic or foreign, or
any partnership, joint venture, trust, employee benefit plan or other
enterprise, which any director or officer of the Company is servicing or served
in any capacity at the request of the Company by reason of the fact that he, his
testator or intestate, is or was a director or officer of the Company, or is
serving or served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, amounts paid in settlement, and costs, charges and expenses, including
attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company, evidenced by
a written communication signed by the Chairman of the Board, the Chief Executive
Officer or the President, and (ii) only if and to the extent that, after making
such efforts as the Chairman of the Board, the Chief Executive Officer or the
President shall deem adequate in the circumstances, such person shall be unable
to obtain indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
SECTION 6. The right to be indemnified or to the reimbursement or advancement of
expense pursuant to this Article V (i) is a contract right pursuant to which the
person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
<TABLE>
<S> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 09/30/98 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND STATE-CHARTERED
SAVINGS BANKS FOR SEPTEMBER 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
<TABLE>
SCHEDULE RC--BALANCE SHEET
<CAPTION>
----------
| C400 |
---------------------------
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS |/ / / / / / / / / / / / /|
1. Cash and balances due from depository institutions (from Schedule RC-A): |/ / / / / / / / / / / / /|
a. Noninterest-bearing balances and currency and coin (1) ............................. | 0081 2,291,000 | 1.a.
b. Interest-bearing balances (2) ...................................................... | 0071 2,636,000 | 1.b.
2. Securities: |/ / / / / / / / / / / / /|
a. Held-to-maturity securities (from Schedule RC-B, column A) ......................... | 1754 0 | 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)........................ | 1773 6,617,000 | 2.b.
3. Federal funds sold and securities purchased under agreements to resell................. | 1350 32,734,000 | 3.
4. Loans and lease financing receivables: |/ / / / / / / / / / / / /|
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 20,227,000 |/ / / / / / / / / / / / /| 4.a.
b. LESS: Allowance for loan and lease losses....................RCFD 3123 619,000 |/ / / / / / / / / / / / /| 4.b.
c. LESS: Allocated transfer risk reserve .......................RCFD 3128 0 |/ / / / / / / / / / / / /| 4.c.
d. Loans and leases, net of unearned income, |/ / / / / / / / / / / / /|
allowance, and reserve (item 4.a minus 4.b and 4.c) ................................ | 2125 19,608,000 | 4.d.
5. Trading Assets (from schedule RC-D) .................................................. | 3545 49,545,000 | 5.
6. Premises and fixed assets (including capitalized leases) .............................. | 2145 885,000 | 6.
7. Other real estate owned (from Schedule RC-M) .......................................... | 2150 115,000 | 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) | 2130 391,000 | 8.
9. Customers' liability to this bank on acceptances outstanding .......................... | 2155 392,000 | 9.
10. Intangible assets (from Schedule RC-M) ................................................ | 2143 266,000 | 10.
11. Other assets (from Schedule RC-F) ..................................................... | 2160 5,884,000 | 11.
12. Total assets (sum of items 1 through 11) .............................................. | 2170 121,364,000 | 12.
---------------------------
</TABLE>
- -----------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 09/30/98 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
</TABLE>
<TABLE>
SCHEDULE RC--CONTINUED
<CAPTION>
---------------------------
Dollar Amounts in Thousands | / / / / Bil Mil Thou |
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
LIABILITIES |/ / / / / / / / / / / / /|
13. Deposits: |/ / / / / / / / / / / / /|
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) | RCON 2200 22,231,000 | 13.a.
(1) Noninterest-bearing(1) ..................................RCON 6631 3,040,000 |/ / / / / / / / / / / / /| 13.a.(1)
(2) Interest-bearing ........................................RCON 6636 19,191,000 |/ / / / / / / / / / / / /| 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from
Schedule RC-E |/ / / / / / / / / / / / /| part II) | RCFN 2200 21,932,000
| 13.b.
(1) Noninterest-bearing .....................................RCFN 6631 2,423,000 |/ / / / / / / / / / / / /| 13.b.(1)
(2) Interest-bearing ........................................RCFN 6636 19,509,000 |/ / / / / / / / / / / / /| 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase | RCFD 2800 14,360,000 | 14.
15. a. Demand notes issued to the U.S. Treasury ........................................... | RCON 2840 0 | 15.a.
b. Trading liabilities (from Schedule RC-D)............................................ | RCFD 3548 32,890,000 | 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under |/ / / / / / / / / / / / /|
capitalized leases): |/ / / / / / / / / / / / /|
a. With a remaining maturity of one year or less ...................................... | RCFD 2332 7,653,000 | 16.a.
b. With a remaining maturity of more than one year through three years................ | A547 3,707,000 | 16.b.
c. With a remaining maturity of more than three years.................................. | A548 3,034,000 | 16.c.
17. Not Applicable. |/ / / / / / / / / / / / /| 17.
18. Bank's liability on acceptances executed and outstanding .............................. | RCFD 2920 392,000 | 18.
19. Subordinated notes and debentures (2).................................................. | RCFD 3200 1,533,000 | 19.
20. Other liabilities (from Schedule RC-G) ................................................ | RCFD 2930 6,595,000 | 20.
21. Total liabilities (sum of items 13 through 20) ........................................ | RCFD 2948 114,327,000 | 21.
22. Not Applicable |/ / / / / / / / / / / / /| 22.
|/ / / / / / / / / / / / /|
EQUITY CAPITAL |/ / / / / / / / / / / / /|
23. Perpetual preferred stock and related surplus ......................................... | RCFD 3838 1,500,000 | 23.
24. Common stock .......................................................................... | RCFD 3230 2,002,000 | 24.
25. Surplus (exclude all surplus related to preferred stock) .............................. | RCFD 3839 540,000 | 25.
26. a. Undivided profits and capital reserves ............................................. | RCFD 3632 3,421,000 | 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities ............. | RCFD 8434 (46,000)| 26.b.
27. Cumulative foreign currency translation adjustments ................................... | RCFD 3284 (380,000)| 27.
28. Total equity capital (sum of items 23 through 27) ..................................... | RCFD 3210 7,037,000 | 28.
29. Total liabilities and equity capital (sum of items 21 and 28).......................... | RCFD 3300 121,364,000 | 29
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Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best Number
describes the most comprehensive level of auditing work performed for the ---------------
bank by independent external auditors as of any date during 1997 ....................... | RCFD 6724 | 1 | M.1
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</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated holding
company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
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(1) Including total demand deposits and noninterest-bearing time and
savings deposits.
(2) Includes limited-life preferred stock and related surplus.
