Exhibit 4(e)
APPALACHIAN POWER COMPANY
AND
BANKERS TRUST COMPANY,
as Trustee
-----------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of ____________, 1997
TO
INDENTURE
Dated as of ____________, 1997
FIRST SUPPLEMENTAL INDENTURE, dated as of the ______ day of
__________, 1997 (the "First Supplemental Indenture"), between
APPALACHIAN POWER COMPANY, a corporation duly organized and
existing under the laws of the Commonwealth of Virginia
(hereinafter sometimes referred to as the "Company"), and BANKERS
TRUST COMPANY, a New York corporation, as trustee (hereinafter
sometimes referred to as the "Trustee") under the Indenture dated
as of ____________, 1997 between the Company and the Trustee (the
"Indenture"); all terms used and not defined herein are used as
defined in the Indenture.
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the future issuance of its Notes (the
"Notes"), said Notes to be issued from time to time in series as
might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and
delivered thereunder as in the Indenture provided; and
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its
Notes to be known as its ______% Senior Notes, Series A, Due ______
(said series being hereinafter referred to as the "Series A Senior
Notes"), the form and substance of such Series A Senior Notes and
the terms, provisions and conditions thereof to be set forth as
provided in the Indenture and this First Supplemental Indenture;
and
WHEREAS, the Company desires and has requested the Trustee to
join with it in the execution and delivery of this First
Supplemental Indenture, and all requirements necessary to make this
First Supplemental Indenture a valid instrument, in accordance with
its terms, and to make the Series A Senior Notes, when executed by
the Company and authenticated and delivered by the Trustee, the
valid obligations of the Company, have been performed and
fulfilled, and the execution and delivery hereof have been in all
respects duly authorized;
NOW THEREFORE, in consideration of the purchase and acceptance
of the Series A Senior Notes by the holders thereof, and for the
purpose of setting forth, as provided in the Indenture, the form
and substance of the Series A Senior Notes and the terms,
provisions and conditions thereof, the Company covenants and agrees
with the Trustee as follows:
ARTICLE ONE
GENERAL TERMS AND CONDITIONS OF
THE SERIES A SENIOR NOTES
SECTION 1.01. There shall be and is hereby authorized a
series of Notes designated the "______% Senior Notes, Series A, Due
______", limited in aggregate principal amount to $____________,
which amount shall be as set forth in any written order of the
Company for the authentication and delivery of Series A Senior
Notes pursuant to Section 2.01 of the Indenture. The Series A
Senior Notes shall mature and the principal shall be due and
payable together with all accrued and unpaid interest thereon on
____________, ____, and shall be issued in the form of registered
Series A Senior Notes without coupons.
SECTION 1.02. Except as provided in Section 2.11(c) of the
Indenture, the Series A Senior Notes shall be issued initially in
the form of a Global Note in an aggregate principal amount equal to
all outstanding Series A Senior Notes, to be registered in the name
of the Depository, or its nominee, and delivered by the Trustee to
the Depository for crediting to the accounts of its participants
pursuant to the instructions of the Company. The Company shall
execute a Global Note in such aggregate principal amount and
deliver the same to the Trustee for authentication and delivery as
hereinabove and in the Indenture provided. Payments on the Series
A Senior Notes issued as a Global Note will be made to the
Depository. The Depository for the Series A Senior Notes shall be
The Depository Trust Company, New York, New York.
SECTION 1.03. If, pursuant to the provisions of Section
2.11(c) of the Indenture, the Series A Senior Notes are issued in
certificated form, principal, premium, if any, and interest on the
Series A Senior Notes will be payable, the transfer of such Series
A Senior Notes will be registrable and such Series A Senior Notes
will be exchangeable for Series A Senior Notes bearing identical
terms and provisions at the office or agency of the Company only
upon surrender of such certificated Series A Senior Note and such
other documents as required by the Indenture; provided, however,
that payment of interest may be made at the option of the Company
by check mailed to the registered holder at such address as shall
appear in the Senior Note Register.
SECTION 1.04. Each Series A Senior Note shall bear interest
at the rate of ______% per annum from the original date of issuance
until the principal thereof becomes due and payable, and on any
overdue principal and (to the extent that payment of such interest
is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum, payable semi-annually in
arrears on each March 1 and September 1 (each, an "Interest Payment
Date"), commencing on ____________, 1997. Interest (other than
interest payable on redemption or maturity) shall be payable to the
person in whose name such Series A Senior Note or any predecessor
Series A Senior Note is registered at the close of business on the
regular record date for such interest installment. The regular
record date for such interest installment shall be the close of
business on the business day next preceding that Interest Payment
Date; except that if, pursuant to the provisions of Section 2.11(c)
of the Indenture, the Series A Senior Notes are no longer
represented by a Global Note, the regular record date for such
interest installment shall be the close of business on the February
15 or August 15 (whether or not a business day) next preceding the
Interest Payment Date. Interest payable on redemption or maturity
shall be payable to the person to whom the principal is paid. Any
such interest installment not punctually paid or duly provided for
shall forthwith cease to be payable to the registered holders on
such regular record date, and may be paid to the person in whose
name the Series A Senior Note (or one or more Predecessor Senior
Notes) is registered at the close of business on a special record
date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the registered holders
of the Series A Senior Notes not less than 10 days prior to such
special record date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the Series A Senior Notes may be listed, and upon
such notice as may be required by such exchange, all as more fully
provided in the Indenture.
The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months. In the
event that any date on which interest is payable on the Series A
Senior Notes is not a business day, then payment of interest
payable on such date will be made on the next succeeding day which
is a business day (and without any interest or other payment in
respect of any such delay), except that, if such business day is in
the next succeeding calendar year, such payment shall be made on
the immediately preceding business day, in each case with the same
force and effect as if made on such date.
ARTICLE TWO
REDEMPTION OF THE SERIES A SENIOR NOTES
SECTION 2.01. The Company shall have the right to redeem the
Series A Senior Notes, in whole or in part, from time to time, at
the time and redemption price set forth in the form of Senior Note
contained in Exhibit A hereto. Any redemption pursuant to this
Section will be made upon not less than 30 nor more than 60 days'
notice. If the Series A Senior Notes are only partially redeemed
pursuant to this Section, the Notes will be redeemed pro rata or by
lot or by any other method utilized by the Trustee; provided, that
if at the time of redemption, the Series A Senior Notes are
registered as a Global Note, the Depository shall determine by lot
the principal amount of such Series A Senior Notes held by each
Series A Senior Noteholder to be redeemed.
ARTICLE THREE
FORM OF SERIES A SENIOR NOTE
SECTION 3.01. The Series A Senior Notes and the Trustee's
Certificate of Authentication to be endorsed thereon are to be
substantially in the form of Exhibit A hereto.
ARTICLE FOUR
LIMITATIONS ON LIENS
So long as there remain outstanding any Series A Senior Notes,
the Company will not create or suffer to be created or to exist any
Lien on any of its properties or assets now owned or hereafter
acquired to secure any indebtedness for borrowed money, without
making effective provision whereby the Series A Senior Notes shall
be equally and ratably secured with any and all such indebtedness
for borrowed money and with any other indebtedness for borrowed
money similarly entitled to be equally and ratably secured.
However, this restriction shall not apply to or prevent the
creation or existence of:
(1) the Mortgage securing the Company's First Mortgage
Bonds or any indenture supplemental thereto subjecting any
property to the Lien thereof or confirming the Lien thereof
upon any property, whether now owned or hereafter acquired;
(2) Liens on property existing at the time of
acquisition or construction of such property (or created
within one year after completion of such acquisition or
construction), whether by purchase, merger, consolidation,
construction or otherwise, or Liens to secure the payment of
all or any part of the purchase price or construction cost
thereof, including the extension of any such Liens to repairs,
renewals, replacements, substitutions, betterments, additions,
extensions and improvements then or thereafter made on the
property subject thereto;
(3) any extensions, renewals or replacements (or
successive extensions, renewals or replacements), in whole or
in part of Liens permitted by the foregoing clauses (1) and
(2);
(4) the pledge of any bonds or other securities at any
time issued under any of the Liens permitted by clauses (1),
(2) or (3);
(5) Permitted Encumbrances; or
(6) Liens on any goods, wares, merchandise, equipment,
materials or supplies acquired for the purpose of sale or
resale in the usual course of business or for consumption in
the operation of any properties of the Company.
"Lien" means any mortgage, pledge, security interest or other
lien.
"Mortgage" means the Company's Mortgage and Deed of Trust
dated December 1, 1940, as heretofore or hereafter amended,
modified and supplemented, to Bankers Trust Company, as
Trustee, providing for the Company's First Mortgage Bonds.
"Permitted Encumbrances" means any of the following:
(1) Liens of taxes, assessments or governmental charges
for the then current year and taxes, assessments or
governmental charges not then delinquent; Liens for workers'
compensation awards and similar obligations not then
delinquent; mechanics', laborers', materialmen's and similar
Liens not then delinquent; and any of such Liens, whether or
not delinquent, whose validity is at the time being contested
in good faith by the Company;
(2) Liens and charges incidental to construction or
current operations which have not at the time been filed or
asserted or the payment of which has been adequately secured
or which are not material in amount;
(3) Liens, securing obligations neither assumed by the
Company nor on account of which it customarily pays interest
directly or indirectly, existing, either at the date hereof,
or, as to property hereafter acquired, at the time of
acquisition by the Company;
(4) Any right which any municipal or governmental body
or agency may have by virtue of any franchise, license,
contract or statute to purchase, or designate a purchaser of
or order the sale of, any property of the Company upon payment
of reasonable compensation therefor, or to terminate any
franchise, license or other rights or to regulate the property
and business of the Company;
(5) The Lien of judgments covered by insurance, or upon
appeal and covered, if necessary, by the filing of an appeal
bond, or if not so covered not exceeding at any one time
$10,000,000 in aggregate amount;
(6) Liens incidental to the conduct of the Company's
business or the ownership of its property and assets, which
were not incurred in connection with the borrowing of money or
the obtaining of credit, none of which materially interferes
with the Company's use and operation of its properties and
assets or detracts from the value thereof;
(7) Any Lien or encumbrance, moneys sufficient for the
discharge of which have been deposited in trust with the
Trustee hereunder or with the trustee or mortgagee under the
instrument evidencing such Lien or encumbrance, with
irrevocable authority to the Trustee hereunder or to such
other trustee or mortgagee to apply such moneys to the
discharge of such Lien or encumbrance to the extent required
for such purpose;
(8) Any defects of title and any terms, conditions,
agreements, covenants, exceptions and reservations expressed
or provided in deeds or other instruments, respectively, under
and by virtue of which the Company has acquired any property
or shall hereafter acquire any property, none of which
materially adversely affects the operation of the properties
of the Company;
(9) The pledge of cash or marketable securities for the
purpose of obtaining any indemnity, performance or other
similar bonds in the ordinary course of business, or as
security for the payment of taxes or other assessments being
contested in good faith, or for the purpose of obtaining a
stay or discharge in the course of any legal proceedings;
(10) The pledge or assignment in the ordinary course of
business of electricity, gas (either natural or artificial) or
steam, fuel, accounts receivable or customers' installment
paper;
(11) Rights reserved to or vested in others to take or
receive any part of the electricity, gas (either natural or
artificial), steam or any by-products thereof generated or
produced by or from any properties of the Company or with
respect to any other rights concerning electricity, gas
(either natural or artificial), fuel or steam supply,
transportation, or storage which are in use in the ordinary
course of the electricity, gas (either natural or artificial)
or steam business;
(12) Any landlord's Lien;
(13) Liens created or assumed by the Company in
connection with the issuance of debt securities, the interest
on which is excludable from the gross income of the holders of
such securities pursuant to Section 103 of the Internal
Revenue Code of 1986, or any successor section, for purposes
of financing, in whole or in part, the acquisition or
construction of property to be used by the Company, but such
Liens shall be limited to the property so financed (and the
real estate on which such property is to be located);
(14) Liens incurred pursuant to Section 7.06;
(15) Liens affixing to property of the Company at the
time a Person consolidates with or merges into, or transfers
all or substantially all of its assets to, the Company,
provided that in the opinion of the Board or Company
management (evidenced by a Board Resolution or an Officers'
Certificate delivered to the Trustee) the property acquired
pursuant to the consolidation, merger or asset transfer is
adequate security for the Lien; and
(16) Liens or encumbrances not otherwise permitted if, at
the time of incurrence and after giving effect thereto, the
aggregate of all obligations of the Company secured thereby
does not exceed 10% of Tangible Net Worth.
"Tangible Net Worth" means (i) common stockholders' equity
appearing on the most recent balance sheet of the Company
prepared in accordance with generally accepted accounting
principles less (ii) intangible assets (excluding intangible
assets recoverable through rates as prescribed by applicable
regulatory authorities).
ARTICLE FIVE
ORIGINAL ISSUE OF SERIES A SENIOR NOTES
SECTION 5.01. Series A Senior Notes in the aggregate
principal amount of $____________ may, upon execution of this First
Supplemental Indenture, or from time to time thereafter, be
executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and
deliver said Notes to or upon the written order of the Company,
signed by its Chairman of the Board, its President, any Vice
President or its Treasurer and its Secretary or Assistant
Secretary, without any further action by the Company.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
SECTION 6.01. Except as otherwise expressly provided in this
First Supplemental Indenture or in the form of Series A Senior Note
or otherwise clearly required by the context hereof or thereof, all
terms used herein or in said form of Series A Senior Note that are
defined in the Indenture shall have the several meanings
respectively assigned to them thereby.
SECTION 6.02. The Indenture, as supplemented by this First
Supplemental Indenture, is in all respects ratified and confirmed,
and this First Supplemental Indenture shall be deemed part of the
Indenture in the manner and to the extent herein and therein
provided.
SECTION 6.03. The recitals herein contained are made by the
Company and not by the Trustee, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no
representation as to the validity or sufficiency of this First
Supplemental Indenture.
SECTION 6.04. This First Supplemental Indenture may be
executed in any number of counterparts each of which shall be an
original; but such counterparts shall together constitute but one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, on the date or
dates indicated in the acknowledgments and as of the day and year
first above written.
APPALACHIAN POWER COMPANY
By: __________________________
Treasurer
Attest:
_________________________
Secretary
BANKERS TRUST COMPANY,
as Trustee
By: __________________________
Vice President
Attest:
_________________________
Trust Officer
State of Ohio }
County of Franklin, } ss:
On this ______ day of __________, 1997, personally appeared
before me, a Notary Public within and for said County in the State
aforesaid, A. A. Pena and John F. Di Lorenzo, Jr., to me known and
known to me to be respectively Treasurer and Secretary of
APPALACHIAN POWER COMPANY, one of the corporations named in and
which executed the foregoing instrument, who severally acknowledged
that they did sign and seal said instrument as such Treasurer and
Secretary for and on behalf of said corporation and that the same
is their free act and deed as such Treasurer and Secretary,
respectively, and the free and corporate act and deed of said
corporation.
In Witness Whereof, I have hereunto set my hand and notarial
seal this ____ day of __________, 1997.
[Notarial Seal]
_____________________
Name: Mary M. Soltesz
Notary Public, State of Ohio
My Commission Expires 7-12-99
State of }
County of } ss:
Be it remembered, that on this ______ day of __________, 1997,
personally appeared before me the undersigned, a Notary Public
within and for said County and State, BANKERS TRUST COMPANY, one of
the corporations named in and which executed the foregoing
instrument, by _______________, one of its Vice Presidents, and by
_______________, one of its Trust Officers, to me known and known
by me to be such Vice President and Trust Officer, respectively,
who severally duly acknowledged the signing and sealing of the
foregoing instrument to be their free act and voluntary deed, and
the free act and voluntary deed of each of them as such Vice
President and Trust Officer, respectively, and the free act and
voluntary deed of said corporation, for the uses and purposes
therein expressed and mentioned.
In Witness Whereof, I have hereunto set my hand and notarial
seal this ______ day of __________, 1997.
[Notarial Seal]
_____________________
Name:
Notary Public, State of ____________
My Commission Expires_______________