SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report: November 20, 2003
(Date of earliest event reported)
Commission Registrant; State of Incorporation; I.R.S. Employer
File Number Address; and Telephone Number Identification No.
1-2680 COLUMBUS SOUTHERN POWER COMPANY 31-4154203
(An Ohio Corporation)
1 Riverside Plaza
Columbus, Ohio 43215
Telephone (614) 716-1000
Item 5. Other Events and Regulation FD Disclosure.
On November 20, 2003, Columbus Southern Power Company (the "Company")
entered into an Underwriting Agreement with Merrill Lynch Pierce, Fenner & Smith
Incorporated as representative of the underwriters named therein, relating to
the offering and sale by the Company of $150,000,000 of its 4.40% Senior Notes,
Series E, due 2010 (the "Notes").
Item 7. Financial Statements and Exhibits
(c) Exhibits
1(a) Underwriting Agreement, dated November 20, 2003, between the Company
and Merrill Lynch Pierce, Fenner & Smith Incorporated as
representative of the underwriters named in Exhibit 1 thereto, in
connection with the sale of the Notes.
4(a) First Supplemental Indenture, between the Company and Deutsche Bank
Trust Company Americas, as trustee, dated November 25, 2003,
establishing the terms of the Notes.
4(b) Form of the Notes (included in Exhibit 4(a) hereto).
5(a) Opinion of Simpson Thacher & Bartlett LLP regarding the legality of
the Notes.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
COLUMBUS SOUTHERN POWER COMPANY
By:/s/ Thomas G. Berkemeyer
Assistant Secretary
December 3, 2003
EXHIBIT INDEX
Exhibit Number Description
1(a) Underwriting Agreement, dated November 20, 2003, between
the Company and Merrill Lynch Pierce, Fenner & Smith
Incorporated, as representative of the several
underwriters named in Exhibit 1 thereto, in connection
with the sale of the Notes.
4(a) First Supplemental Indenture, between the Company and
Deutsche Bank Trust Company Americas, as trustee, dated
November 25, 2003, establishing the terms of the Notes.
4(b) Form of the Notes (included in Exhibit 4(a) hereto).
5(a) Opinion of Simpson Thacher & Bartlett LLP regarding the
legality of the Notes.
Exhibit 1(a)
COLUMBUS SOUTHERN POWER COMPANY
Underwriting Agreement
Dated November 20, 2003
AGREEMENT made between COLUMBUS SOUTHERN 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 $150,000,000 aggregate
principal amount of its 4.40% Senior Notes, Series E, due 2010 (the Senior
Notes) to be issued pursuant to the Indenture dated as of September 1, 1997,
between the Company and Deutsche Bank Trust Company Americas (formerly 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 persons signing this
Agreement (collectively 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, as amended (the Act), with the
Securities and Exchange Commission (the Commission), a registration statement
(File No. 333-54025), as amended by Pre-Effective Amendment No. 1, and a
prospectus relating to $350,000,000 aggregate principal amount of its Debt
Securities and such registration statement has become effective; and
WHEREAS, such registration statement, as so amended, including the
financial statements, the documents incorporated or deemed incorporated therein
by reference, the exhibits thereto, being herein called the Registration
Statement, and the prospectus, including the documents incorporated or deemed
incorporated therein by reference, constituting a part of such Registration
Statement, as it may be last amended or supplemented prior to the date of this
Agreement, but excluding any amendment or supplement relating solely to
securities other than the Senior Notes, being herein called the Basic
Prospectus, and the Basic Prospectus, as supplemented by a preliminary
prospectus supplement and a final prospectus supplement (the Prospectus
Supplement) to include information relating to the Senior Notes, including the
names of the Underwriters, the price and terms of the offering, the interest
rate, maturity date and certain other information relating to the Senior Notes,
which will be filed with the Commission pursuant to 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 called 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 Senior Notes set opposite their names in Exhibit 1 hereto, together
aggregating all of the Senior Notes, at a price equal to 99.165% of the
principal amount thereof.
2. Payment and Delivery: Payment for the Senior Notes shall be made to the
Company in immediately available funds or in such other manner as the Company
and the Representative shall mutually agree upon in writing, upon the delivery
of the Senior 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 delivery shall be made at 10:00
A.M., New York Time, on November 25, 2003 (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 Representative), unless postponed in accordance with
the provisions of Section 8 hereof, at the office of Simpson Thacher & Bartlett
LLP, 425 Lexington Avenue, New York, New York 10017, or at such other place as
the Company and the Representative shall mutually agree in writing. The time at
which payment and delivery are to be made is herein called the Time of Purchase.
The delivery of the Senior 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 Senior 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 LLP and either of
Thomas G. Berkemeyer, Esq. or Kevin R. Fease, Esq., counsel to the
Company, substantially in the forms heretofore previously provided
to the Underwriters; and
(2) Opinion of Dewey Ballantine LLP, counsel to the
Underwriters, substantially in the form heretofore previously
provided to the Underwriters.
(c) That the Representative shall have received a letter from
Deloitte & Touche LLP dated the day of the Time of Purchase in form and
substance satisfactory to the Representative (i) confirming that they are
independent certified 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 (other than the
prospectus or amendments, prospectuses or prospectus supplements relating
solely to securities other than the Senior Notes) relating to the Senior
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
Senior 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, from the date hereof to 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 the Prospectus 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 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,
other than supplements or amendments relating solely to securities other
than the Senior Notes) 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), other than amendments relating solely to
securities other than the Senior Notes and, upon request, to furnish to
the Representative sufficient plain copies thereof (exclusive of exhibits)
for distribution 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 will be furnished to the Company by the
Representative) to whom principal amounts of the Senior 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 Senior 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 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 Senior Notes by the respective Underwriters) in
connection with the issuance and delivery of the Senior 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 and paragraph (a) of Section
7, 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 Senior
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 8 or 9 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
Senior 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, as amended (the 1935
Act) in connection with the sale of the Senior Notes.
(j) During the period from the date hereof and continuing to and
including the earlier of (i) the date which is after the Time of Purchase
on which the distribution of the Senior 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 Senior Notes of the Company
or any substantially similar securities of the Company without the consent
of the Representative.
5. Warranties of 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 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 on the date of this Agreement 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 (the Trust Indenture
Act), and the rules and regulations of the Commission, the Basic
Prospectus on the date of this Agreement and the Prospectus when first
filed in accordance with Rule 424(b) under the Act do 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,
the Basic Prospectus or the 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 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
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 Senior 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) 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
Securities Exchange Act of 1934, as amended, 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.
(d) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise
referred to or contemplated therein, there has been no material adverse
change in the business, properties or financial condition of the Company.
(e) This Agreement has been duly authorized, executed and delivered
by the Company.
(f) The consummation by the Company of the transactions contemplated
herein is not in violation of its charter or bylaws, will not result in
the violation of any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court having jurisdiction over the Company or its properties, and 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.)
(g) 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 Senior Notes or the transactions
by the Company contemplated in this Agreement, except (A) such as may be
required under the Act or the rules and regulations thereunder; (B) such
as may be required under the 1935 Act; (C) the qualification of the
Indenture under the Trust Indenture 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.
(h) The consolidated financial statements of the Company and its
consolidated subsidiaries together with the notes thereto, included or
incorporated by reference in the Prospectus present fairly the financial
position of the Company at the dates or for the periods indicated; said
consolidated financial statements have been prepared in accordance with
United States generally accepted accounting principles applied, apart from
reclassifications disclosed therein, on a consistent basis throughout the
periods involved; and the selected consolidated financial information of
the Company included in the Prospectus presents fairly the information
shown therein and has been compiled, apart from reclassifications
disclosed therein, on a basis consistent with that of the audited
financial statements of the Company included or incorporated by reference
in the Prospectus.
(i) There is no pending action, suit, investigation, litigation or
proceeding, including, without limitation, any environmental action,
affecting the Company before any court, governmental agency or arbitration
that is reasonably likely to have a material adverse effect on the
business, properties, financial condition or results of operations of the
Company, except as disclosed in the Prospectus.
The Company's 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 Senior Notes hereunder.
6. Warranties of Underwriters: 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. 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 Senior Notes hereunder.
7. Indemnification and Contribution:
(a) To the extent permitted by law, the Company agrees to indemnify
and hold you harmless, your officers, members and directors 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 (if used prior to the date
of this Agreement), or in the Prospectus, or if the Company shall furnish
or cause to be furnished to you any amendments or any supplements to the
Prospectus, in the Prospectus as so amended or supplemented except to the
extent that such amendments or supplements relate solely to securities
other than the Senior 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 the Representative
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 Senior 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 7(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 7(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).
(b) Each Underwriter agrees, to the extent permitted by law,
severally and not jointly, 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 7(a) 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 7(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 7(b).
(c) If recovery is not available or insufficient under Section 7(a)
or 7(b) hereof for any reason other than as specified therein, the
indemnified party shall be entitled to contribution for any and all
losses, claims, damages, liabilities and expenses for which such
indemnification is so unavailable or insufficient under this Section 7(c).
In determining the amount of contribution to which such indemnified party
is entitled, there shall be considered the portion of the proceeds of the
offering of the Senior Notes realized, the relative knowledge and access
to information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or
omission, and any equitable considerations appropriate under the
circumstances. The Company and the Underwriters agree that it would not be
equitable if the amount of such contribution were determined by pro rata
or per capita allocation (even if the Underwriters were treated as one
entity for such purpose) without reference to the considerations called
for in the previous sentence. No Underwriter or any person controlling
such Underwriter shall be obligated to contribute any amount or amounts
hereunder which in the aggregate exceeds the total price of the Senior
Notes purchased by such Underwriter under this Agreement, less the
aggregate amount of any damages which such Underwriter and its controlling
persons have otherwise been required to pay in respect of the same claim
or any substantially similar claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. An Underwriter's obligation to contribute
under this Section 7 is in proportion to its purchase obligation and not
joint with any other Underwriter.
(d) 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 or contribution
could be sought under this Section 7 (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 such indemnified party.
(e) 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.
The agreements contained in this Section 7 hereof 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 Senior Notes
hereunder.
8. 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 Senior
Notes which it has agreed to purchase and pay for hereunder, and the aggregate
principal amount of Senior 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 Senior Notes, the other Underwriters
shall be obligated severally in the proportions which the amounts of Senior
Notes set forth opposite their names in Exhibit 1 hereto bear to the aggregate
principal amount of Senior Notes set forth opposite the names of all such
non-defaulting Underwriters, to purchase the Senior 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
Senior Notes which any Underwriter has agreed to purchase pursuant to Section 1
hereof be increased pursuant to this Section 8 by an amount in excess of
one-ninth of such principal amount of Senior Notes without the written consent
of such Underwriter. If any Underwriter or Underwriters shall fail or refuse to
purchase Senior Notes and the aggregate principal amount of Senior Notes with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of the Senior Notes then this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter; provided, however, that
the non-defaulting Underwriters may agree, in their sole discretion, to purchase
the Senior Notes which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on the terms set forth herein. 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 Senior 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.
9. 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 Senior 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 trading in the securities of the Company shall have been
suspended by the New York Stock Exchange, or
(ii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or
war or other national or international calamity or crisis, 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 debt securities 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 debt securities under consideration for
possible downgrade.
If the Representative elects to terminate this Agreement, as provided in
this Section 9, 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 Senior 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.
10. 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 the Representative at Merrill Lynch,
Pierce, Fenner & Smith Incorporated, 4 World Financial Center, New York, New
York 10080, attention John Lynch (fax 212/449-1787) and, if to the Company, to
Columbus Southern Power Company, c/o American Electric Power Service
Corporation, 1 Riverside Plaza, Columbus, Ohio 43215, Attention: General
Counsel, (fax 614/716-1687).
11. 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 Section
7 hereof, and their respective successors, assigns, executors and
administrators, and no other person shall acquire or have any right under or by
the virtue of this Agreement.
12. 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 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
Senior Notes from any of the respective Underwriters.
13. 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.
14. Applicable Law: This Agreement will be governed and construed in
accordance with the laws of the State of New York.
15. 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.
COLUMBUS SOUTHERN POWER COMPANY
By:_/s/ Wendy G. Hargus
Wendy G. Hargus
Assistant Treasurer
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
as Representative and on behalf of
the Underwriters named in Exhibit 1 hereto
By:/s/ John E. Lynch
Name: John E. Lynch
Title: Vice President
EXHIBIT 1
Principal Amount
Underwriter of Senior Notes
Merrill Lynch, Pierce, Fenner & Smith Incorporated $120,000,000
The Royal Bank of Scotland plc $30,000,000
-----------
$150,000,000
Exhibit 4(a)
================================================================================
COLUMBUS SOUTHERN POWER COMPANY
TO
DEUTSCHE BANK TRUST COMPANY AMERICAS
AS TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
DATED NOVEMBER 25, 2003
$150,000,000
4.40% SENIOR NOTES, SERIES E, DUE 2010
================================================================================
THIS FIRST SUPPLEMENTAL INDENTURE is made the 25th day of November, 2003,
between COLUMBUS SOUTHERN POWER COMPANY, a corporation duly organized and
existing under the laws of the state of Ohio (herein called the "Company"),
having its principal office at 1 Riverside Plaza, Columbus, Ohio 43215 and
Deutsche Bank Trust Company Americas (formerly Bankers Trust Company), a
national banking association, duly organized and existing under the laws of the
United States, having its principal corporate trust office at 60 Wall Street,
New York, New York 10005, as Trustee (herein called the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore entered into an Indenture, dated as of
September 1, 1997 (the "Original Indenture"), with the Trustee; and
WHEREAS, the Original Indenture is incorporated herein by this reference
and the Original Indenture, as supplemented by this First Supplemental
Indenture, is herein called the "Indenture"; and
WHEREAS, under the Original Indenture, a new series of unsecured notes
(the "Senior Notes") may at any time be established by the Board of Directors of
the Company in accordance with the provisions of the Original Indenture and the
terms of such series may be described by a supplemental indenture executed by
the Company and the Trustee; and
WHEREAS, the Company proposes to create under the Indenture a series of
Senior Notes to be designated the "4.40% Senior Notes, Series E, due 2010" (the
"Series E Notes"), the form and substance of the Series E Notes and the terms,
provisions and conditions thereof to be set forth as provided in the Original
Indenture and this First Supplemental Indenture; and
WHEREAS, additional Senior Notes of other Series hereafter established,
except as may be limited in the Original Indenture as at the time supplemented
and modified, may be issued from time to time pursuant to the Original Indenture
as at the time supplemented and modified; and
WHEREAS, all conditions necessary to authorize the execution and delivery
of this First Supplemental Indenture and to make it a valid and binding
obligation of the Company have been done or performed;
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
Additional Definitions
SCTION 1.01. Definitions
The following defined terms used herein shall, unless the context
otherwise requires, have the meanings specified below. Capitalized terms used
herein for which no definition is provided herein shall have the meanings set
forth in the Original Indenture.
"Company" means Columbus Southern Power Company, an Ohio corporation and
also includes the Columbus Southern Power Company's successors and permitted
assigns.
"Closing Date" shall mean November 25, 2003, the initial date of delivery
of the Series E Notes from the Company to the Underwriters.
"Legal Separation" shall mean the transfer of the Company's Transmission
and Distribution Business to Columbus Southern Wires.
"Columbus Southern Wires" shall mean Columbus Southern Wires LLC, a
to-be-formed Ohio company and the affiliate company to which the Company may
transfer its Transmission and Distribution Business.
"Columbus Southern Wires Exchange Offer" shall mean the offer by Columbus
Southern Wires, upon Legal Separation, to the holders of Series E Notes to
exchange all of the Series E Notes held by each such holder for a like amount of
Columbus Southern Wires Notes.
"Columbus Southern Wires Notes" shall mean notes of Columbus Southern
Wires which are identical in all material respects to the Series E Notes and are
registered under the Securities Act.
"Columbus Southern Wires Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2.08 hereof..
"Columbus Southern Wires Registration Statement" shall mean an exchange
offer registration statement on Form S-4 (or, if applicable, on another
appropriate form) of Columbus Southern Wires as provided in the section entitled
`Legal Separation' hereof and all amendments and supplements to such
registration statement, in each case including the Prospectus contained therein,
all exhibits thereto and all documents incorporated by reference therein.
"Transmission and Distribution Business" means the electricity
transmission and distribution assets of the Company.
ARTICLE II
Series E Notes
SECTION 2.01. Establishment
The Series E Notes shall be designated as the Company's "4.40%
Senior Notes, Series E, due 2010".
SECTION 2.02. Aggregate Principal Amount
The Trustee shall authenticate and deliver Series E Notes for
original issue on the Original Issue Date in the aggregate principal amount of
$150,000,000 upon a Company Order for authentication and delivery thereof and
satisfaction of Section 2.01 of the Original Indenture. The aggregate principal
amount of the Series E Notes shall be initially limited to $150,000,000 and
shall not be subject to Periodic Offerings pursuant to Article Two of the
Original Indenture. All Series E Notes need not be issued at the same time and
such series may be reopened at any time, without the consent of any Holder, for
issuances of additional Series E Notes. Any such additional Series E Notes will
have the same interest rate, maturity and other terms as those initially issued.
The Series E Notes shall be issued in definitive fully registered form.
SECTION 2.03. Maturity and Interest
(i) The Series E Notes shall mature on, and the date on which the principal
of the Series E Notes shall be payable (unless earlier redeemed) shall be
December 1, 2010;
(ii) The interest rate at which the Series E Notes shall bear interest
shall be 4.40% per annum; provided, however, that a special interest premium
shall accrue on the Series E Notes under certain circumstances as provided in
clause (iii) below; interest shall accrue from the date of authentication of the
Series E Notes; the Interest Payment Dates on which such interest will be
payable shall be June 1 and December 1, and the Regular Record Date for the
determination of holders to whom interest is payable on any such Interest
Payment Date shall be the May 15 or November 15 preceding the relevant Interest
Payment Date; provided that the first Interest Payment Date shall be June 1,
2004 and interest payable on the Stated Maturity or any redemption date shall be
paid to the Person to whom principal shall be paid; each payment of interest
shall include interest accrued through the day before the Interest Payment Date;
(iii) Special interest premium shall accrue on the Series E Notes over and above
the interest rate set forth herein in accordance with Section 2.08 hereof.
SECTION 2.04. Optional Redemption
The Series E Notes shall be redeemable at the option of the Company,
in whole or in part at any time, upon not less than thirty but not more than
sixty days' prior notice given by mail to the registered owners of the Series E
Notes at a redemption price equal to the greater of (i) 100% of the principal
amount of the Series E Notes being redeemed and (ii) the sum of the present
values of the remaining scheduled payments of principal and interest on the
Series E Notes being redeemed (excluding the portion of any such interest
accrued to the date of redemption) discounted (for purposes of determining
present value) to the redemption date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate (as defined below)
plus 20 basis points, plus, in each case, accrued interest thereon to the date
of redemption.
"Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such
redemption date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of the Series E Notes that
would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining term of the
Series E Notes.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) on the third Business Day preceding such
redemption date, as set forth in the daily statistical release (or
any successor release) published by the Federal Reserve Bank of New
York and designated "Composite 3:30 p.m. Quotations for U. S.
Government Securities" or (ii) if such release (or any successor
release) is not published or does not contain such prices on such
third Business Day, the Reference Treasury Dealer Quotation for such
redemption date.
"Independent Investment Banker" means one of the Reference
Treasury Dealers appointed by the Company and reasonably acceptable
to the Trustee.
"Reference Treasury Dealer" means a primary U.S. government
securities dealer selected by the Company and reasonably acceptable
to the Trustee.
"Reference Treasury Dealer Quotation" means, with respect to
the Reference Treasury Dealer and any redemption date, the average,
as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at or before 5:00 p.m., New York City
time, on the third Business Day preceding such redemption date.
SECTION 2.05. Limitation on Secured Debt
So long as any of the Series E Notes are outstanding, the Company
will not create or suffer to be created or to exist any additional mortgage,
pledge, security interest, or other lien (collectively "Liens") on any utility
properties or tangible assets now owned or hereafter acquired to secure any
indebtedness for borrowed money ("Secured Debt"), without providing that such
Series E Notes will be similarly secured. Further, this restriction on Secured
Debt does not apply to the Company's existing first mortgage bonds that have
previously been issued under its mortgage indenture or any indenture
supplemental thereto; provided that this restriction will apply to future
issuances thereunder (other than issuances of refunding first mortgage bonds).
In addition, this restriction does not prevent the creation or existence of:
(i) 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, construction or
otherwise, or to secure the payment of all or any part of the purchase price or
construction cost thereof, including the extension of any Liens to repairs,
renewals, replacements, substitutions, betterments, additions, extensions and
improvements then or thereafter made on the property subject thereto;
(ii) Financing of the Company's accounts receivable for electric service;
(iii) Any extensions, renewals or replacements (or successive extensions,
renewals or replacements), in whole or in part, of Liens permitted by the
foregoing clauses; and
(iv) The pledge of any bonds or other securities at any time issued under any
of the Secured Debt permitted by the above clauses.
In addition to the permitted issuances above, Secured Debt not
otherwise so permitted may be issued in an amount that does not exceed 15% of
Net Tangible Assets as defined below.
"Net Tangible Assets" means the total of all assets (including
revaluations thereof as a result of commercial appraisals, price level
restatement or otherwise) appearing on the Company's balance sheet, net of
applicable reserves and deductions, but excluding goodwill, trade names,
trademarks, patents, unamortized debt discount and all other like intangible
assets (which term shall not be construed to include such revaluations), less
the aggregate of the Company's current liabilities appearing on such balance
sheet.
This restriction also will not apply to or prevent the creation or
existence of leases (operating or capital) made, or existing on property
acquired, in the ordinary course of business.
SECTION 2.06. Global Securities and Certificated Securities
The Series E Notes shall be issued in the form of a Global Note in
definitive, fully registered form. The Depositary for the Global Note shall be
The Depository Trust Company. The procedures with respect to transfer and
exchange of Global Notes shall be as set forth in the form of Note attached
hereto.
SECTION 2.07. Form of Securities
The Global Note shall be substantially in the form attached as
Exhibit A hereto.
SECTION 2.08. Exchange of Senior Notes upon Legal Separation
If Legal Separation occurs, Columbus Southern Wires will be
obligated to file the Columbus Southern Wires Registration Statement and to
effect the Columbus Southern Wires Exchange Offer, offering each holder of the
Series E Notes the election to (i) retain its Series E Notes or (ii) exchange
its Series E Notes for Columbus Southern Wires Notes.
If a holder of a Series E Note fails to elect to retain such note,
unless otherwise required by law, such Holder will be deemed to have exercised
his option to exchange such note for a Columbus Southern Wires Note.
In the case of a Columbus Southern Wires Exchange Offer as set forth
above, Columbus Southern Wires will be subject, notwithstanding any other
provision hereof, with respect to timing, to the requirement that it consummate
the Columbus Southern Wires Exchange Offer within 150 days from the date of
Legal Separation. If Columbus Southern Wires fails to consummate the Columbus
Southern Wires Exchange Offer within such 150 days, special interest premium
will accrue on the Senior Notes at the rate of 0.50% per annum until the
Columbus Southern Wires Exchange Offer is consummated.
The transfer of all or substantially all of the Company's
Transmission and Distribution Business shall not constitute a Default or an
Event of Default with respect to the Series E Notes nor, for purposes of the
Series E Notes, shall it be deemed a sale or transfer of all or substantially
all of the Company's assets for purposes of the Indenture. Additionally, such
transfer shall not alter the terms of the Series E Notes, and the Series E Notes
shall continue to be governed by the Indenture.
SECTION 2.09. Consolidation, Merger or Sale
Subject to Sections 2.08 and 3.04, the Company, or the successor to
the Series E Notes, as the case may be, may merge or consolidate with any
corporation or sell substantially all of its 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 Series E Notes or the Columbus Southern
Wires Notes, as the case may be.
ARTICLE III
Miscellaneous Provisions
SECTION 3.01. Recitals by Company
The recitals in this First Supplemental Indenture are made by the
Company only and not by the Trustee, and all of the provisions contained in the
Original Indenture in respect of the rights, privileges, immunities, powers and
duties of the Trustee shall be applicable in respect of Series E Notes and of
this First Supplemental Indenture as fully and with like effect as if set forth
herein in full.
SECTION 3.02. Ratification and Incorporation of Original Indenture
As supplemented hereby, the Original Indenture is in all respects
ratified and confirmed, and the Original Indenture and this First Supplemental
Indenture shall be read, taken and construed as one and the same instrument.
SECTION 3.03. Executed in Counterparts
This First Supplemental Indenture may be simultaneously executed in
several counterparts, each of which shall be deemed to be an original, and such
counterparts shall together constitute but one and the same instrument.
SECTION 3.04. Applicability of Section 4.05 and Article Ten of
Original Indenture
(a) As long as the Series E Notes are outstanding, Section 4.05 and Article
Ten of the Original Indenture shall be applicable thereto; provided, however,
that the transfer of all or substantially all of the Company's Transmission and
Distribution Business (whether or not the Transmission and Distribution Business
constitutes "substantially all" of the Company's total assets) to Columbus
Southern Wires shall not be subject to Section 4.05 and Article Ten of the
Original Indenture. Furthermore, any transfer of any portion of the Company's
assets will not be subject to Section 4.05 or Article Ten of the Original
Indenture if the Company retains all or substantially all of its Transmission
and Distribution Business.
(b) To the extent the Transmission and Distribution Business is transferred to
Columbus Southern Wires, holders of Series E Notes shall be given the
option to either (i) retain their Series E Notes or (ii) exchange their
Series E Notes for Columbus Southern Wires Notes pursuant to the Columbus
Southern Wires Exchange Offer. If any holder fails to elect to retain its
Series E Notes, unless otherwise required by law, such holder will be
deemed to have exercised its option to exchange its Series E Notes for
Columbus Southern Wires Notes.
IN WITNESS WHEREOF, each party hereto has caused this instrument to be
signed in its name and behalf by its duly authorized signatories, all as of the
day and year first above written.
COLUMBUS SOUTHERN POWER COMPANY
By_/s/ A. A. Pena
Vice President
Attest:
By_/s/ T. G. Berkemeyer
Assistant Secretary
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
By_/s/ Susan Johnson__
Vice President
Attest:
By_/s/ Tracy Martone__
Authorized Signer
EXHIBIT A
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. R1
COLUMBUS SOUTHERN POWER COMPANY
4.40% Senior Notes, Series E, due 2010
CUSIP: 199575 AU 5 Original Issue Date: November 25, 2003
i) Stated Maturity: December 1, 2010 Interest Rate: 4.40%
Principal Amount: $150,000,000
Redeemable: Yes [X] No [ ]
In Whole: Yes [X] No [ ]
In Part: Yes [X] No [ ]
COLUMBUS SOUTHERN 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 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, semi-annually in arrears on June 1 and December 1 in each year, commencing
on June 1, 2004, 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 May
15 or November 15 (whether or not a Business Day), as the case may be,
immediately preceding such Interest Payment Date, provided that interest payable
on the Stated Maturity or any redemption date shall be paid to the Person to
whom principal is paid. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date and shall be paid as provided in said Indenture.
If any Interest Payment Date, any redemption date or Stated Maturity 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, as the case may be, 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 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
Security 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 Deutsche Bank Trust Company Americas (formerly Bankers Trust Company), a
corporation organized and existing under the laws of the State of New York, 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.
This Note may be redeemed by the Company at its option, in whole or in
part at any time, upon not less than thirty but not more than sixty days' prior
notice given by mail to the registered owners of the Notes at a redemption price
equal to the greater of (i) 100% of the principal amount of the Notes being
redeemed and (ii) the sum of the present values of the remaining scheduled
payments of principal and interest on the Note being redeemed (excluding the
portion of any such interest accrued to the date of redemption) discounted (for
purposes of determining present value) to the redemption date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate (as defined below) plus 20 basis points, plus, in each case,
accrued interest thereon to the date of redemption.
"Treasury Rate" means, with respect to any redemption date, the rate per annum
equal to the semi-annual equivalent yield to maturity of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
"Comparable Treasury Issue" means the United States Treasury security selected
by an Independent Investment Banker as having a maturity comparable to the
remaining term of the Notes that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of the
Notes.
"Comparable Treasury Price" means, with respect to any redemption date, (1) the
average of the bid and asked prices for the Comparable Treasury Issue (expressed
in each case as a percentage of its principal amount) on the third Business Day
preceding such redemption date, as set forth in the daily statistical release
(or any successor release) published by the Federal Reserve Bank of New York and
designated "Composite 3:30 p.m. Quotations for U.S. Government Securities" or
(2) if such release (or any successor release) is not published or does not
contain such prices on such third Business Day, the Reference Treasury Dealer
Quotation for such redemption date.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Company and reasonably acceptable to the Trustee.
"Reference Treasury Dealer" means a primary U. S. government securities dealer
in New York City selected by the Company and reasonably acceptable to the
Trustee.
"Reference Treasury Dealer Quotation" means, with respect to the Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at or before 5:00 p.m.,
New York City time, on the third Business Day preceding such redemption date.
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
Security 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 Security 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 Security 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 Security Registrar shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations, Notes of this
series 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.
COLUMBUS SOUTHERN POWER COMPANY
By:___________________________
Vice President
Attest:
By:___________________________
Assistant Secretary
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 November ___, 2003
DEUTSCHE BANK TRUST
COMPANY AMERICAS
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(a)
December 3, 2003
Columbus Southern Power Company
1 Riverside Plaza
Columbus, Ohio 43215
Ladies and Gentlemen:
We have acted as counsel to Columbus Southern Power Company, an Ohio
corporation (the "Company"), in connection with the Registration Statement on
Form S-3 (Registration Statement No. 333-54025) (the "Registration Statement")
filed by the Company with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), relating
to $150,000,000 aggregate principal amount of Senior Notes, Series E, due 2010
(the "Senior Notes") issued under an Indenture, dated as of September 1, 1997
(the "Indenture"), between the Company and Deutsche Bank Trust Company Americas,
as Trustee (the "Trustee").
We have examined the Registration Statement and the Indenture which
has been filed with the Commission as an exhibit to the Registration Statement.
We also have examined the originals, or duplicates or certified or conformed
copies, of such records, agreements, instruments and other documents and have
made such other and further investigations as we have deemed relevant and
necessary in connection with the opinions expressed herein. As to questions of
fact material to this opinion, we have relied upon certificates of public
officials and of officers and representatives of the Company.
In rendering the opinions set forth below, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as duplicates or certified
or conformed copies, and the authenticity of the originals of such latter
documents. We also have assumed that: (1) the Indenture is the valid and legally
binding obligation of the Trustee; and (2) the Company is validly existing under
the laws of Ohio.
We have assumed further that (1) the Company has duly authorized,
executed and delivered the Indenture and (2) execution, delivery and performance
by the Company of Indenture and the Senior Notes do not and will not violate the
laws of Ohio or any other applicable laws (excepting the laws of the State of
New York and the Federal laws of the United States).
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that assuming the due
authentication of the Senior Notes by the Trustee, the Senior Notes constitute
valid and legally binding obligations of the Company enforceable against the
Company in accordance with their terms, subject to the effects of (i)
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, (ii)
general equitable principles (whether considered in a proceeding in equity or at
law) and (iii) an implied covenant of good faith and fair dealing.
We are members of the Bar of the State of New York, and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the Federal law of the United States.
We hereby consent to the filing of this opinion letter as Exhibit
5(a) to the Registration Statement and to the use of our name under the caption
"Legal Opinions" in the Prospectus included in the Registration Statement.
Very truly yours,
/s/ Simpson Thacher & Bartlett LLP
SIMPSON THACHER & BARTLETT LLP