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: June 25, 2002
(Date of earliest event reported)
Commission Registrant; State of Incorporation; I.R.S. Employer
File Number Address; and Telephone Number Identification No.
1-6858 KENTUCKY POWER COMPANY 61-0247775
(A Kentucky Corporation)
1 Riverside Plaza
Columbus, Ohio 43215
Telephone (614) 223-1000
Item 5. Other Events and Regulation FD Disclosure.
On June 25, 2002, Kentucky Power Company (the "Company") entered into an
Underwriting Agreement with Barclays Capital Inc. and Credit Suisse First Boston
Corporation, as representatives of the underwriters named therein, relating to
the offering and sale by the Company of $125,000,000 of its 5.50% Senior Notes,
Series A, due 2007 (the "Notes").
Item 7. Financial Statements and Exhibits
(c) Exhibits
1(a) Underwriting Agreement, dated June 25, 2002, between the Company
and Barclays Capital, Inc. and Credit Suisse First Boston
Corporation, as representatives of the several underwriters named
in Exhibit 1 thereto, in connection with the sale of the Notes.
4(a) Company Order and Officers' Certificate, dated June 28, 2002,
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 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.
KENTUCKY POWER COMPANY
By:/s/ Thomas G. Berkemeyer
---------------------------------
Assistant Secretary
June 28, 2002
EXHIBIT INDEX
Exhibit Description
Number
1(a) Underwriting Agreement, dated June 25, 2002, between the Company and
Barclays Capital Inc. and Credit Suisse First Boston Corporation, as
representatives of the several underwriters named in Exhibit 1 thereto, in
connection with the sale of the Notes.
4(a) Company Order and Officers' Certificate, dated June 28, 2002, 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 regarding the legality of the Notes.
EXHIBIT 1(a)
KENTUCKY POWER COMPANY
Underwriting Agreement
Dated June 25, 2002
AGREEMENT made between KENTUCKY POWER COMPANY, a corporation organized and
existing under the laws of the Commonwealth of Kentucky (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 $125,000,000 principal
amount of its 5.50% Senior Notes, Series A, due 2007 (the Senior Notes) to be
issued pursuant to the Indenture dated as of September 1, 1997, between the
Company and Bankers Trust Company, now Deutsche Bank Trust Company Americas, 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 (the Act), with the Securities and
Exchange Commission (the Commission), a registration statement (File No.
333-87216) and a prospectus relating to $375,000,000 principal amount of its
Unsecured Notes and such registration statement has become effective; and
WHEREAS, such registration statement, 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 effectiveness 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 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 99.218% 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 Barclays Capital Inc. 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 June 28, 2002 (or on such later business day, not more
than five business days subsequent to such day, as may be mutually agreed upon
by the Company and the Underwriters), unless postponed in accordance with the
provisions of Section 7 hereof, at the office of Simpson Thacher & Bartlett, 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 and either of Thomas G.
Berkemeyer, Esq. or Ann B. Graf, Esq., counsel to the Company,
substantially in the forms heretofore previously provided to the
Underwriters;
(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 in form and substance satisfactory to the Representative,
dated as of the day of the Time of Purchase, (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 Kentucky
Public Service Commission, 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, at the Time of Purchase, there shall not have been any material
adverse change in the business, properties or financial condition of
the Company from that set forth in the Prospectus (other than changes
referred to in or contemplated by the Prospectus), and that the
Company shall, at the Time of Purchase, have delivered to the
Representative a certificate of an executive officer of the Company to
the effect that, to the best of his knowledge, information and belief,
there has been no such change.
(g) That the Company shall have performed such of its obligations under
this Agreement as are to be performed at or before the Time of
Purchase by the terms hereof. 4. Certain Covenants of the Company: In
further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time
prescribed by Rule 424 under the Act, to file 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 of one to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the
date hereof as they are required by law to deliver a prospectus,
if any event shall have occurred as a result of which it is
necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not contain any
untrue statement of a material fact or not omit to state any
material fact required to be stated therein or necessary in order
to make the statements therein not misleading, forthwith to
prepare and furnish, at its own expense, to the Underwriters and
to dealers (whose names and addresses are furnished to the
Company by the Representative) to whom principal amounts of the
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 effective date hereof), provided,
however, that the Company shall not be required to qualify as a
foreign corporation or to file a consent to service of process or
to file annual reports or to comply with any other requirements
deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on
resales of the 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 (c) of Section 5, 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
7 or 8 hereof, to pay the fees and disbursements of Dewey
Ballantine LLP, counsel to the Underwriters, and, if the
Underwriters shall not take up and pay for the 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 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 and Indemnity by the Company: The Company represents and
warrants to, and agrees with each Underwriter, as set forth below:
(a) the Registration Statement on its effective date complied, or was
deemed to comply, with the applicable provisions of the Act and the
rules and regulations of the Commission and the Registration Statement
at its effective date did not, and at the Time of Purchase will not,
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Basic Prospectus 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, 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 1939 of any indenture
trustee under an indenture of the Company.
(b) As of the Time of Purchase, the Indenture will have been duly
authorized by the Company and duly qualified under the Trust Indenture
Act of 1939, as amended, and, when executed and delivered by the
Trustee and the Company, will constitute a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms and such 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) To the extent permitted by law, the Company agrees to indemnify and
hold you harmless, your officers 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 effective 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 or with any statements in or
omissions under the caption "Notice to Canadian Residents" contained
in the Prospectus Supplement, 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
5(c) may be sought by you, or by any person controlling you, to notify
the Company in writing of the commencement thereof, but your omission
so to notify the Company of any such action shall not release the
Company from any liability which it may have to you or to such
controlling person otherwise than on account of the indemnity
agreement contained in this Section 5(c). In case any such action
shall be brought against you or any such person controlling you and
you shall notify the Company of the commencement thereof, as above
provided, the Company shall be entitled to participate in, and, to the
extent that it shall wish, including the selection of counsel (such
counsel to be reasonably acceptable to the indemnified party), to
direct the defense thereof at its own expense. In case the Company
elects to direct such defense and select such counsel (hereinafter,
Company's counsel), you or any controlling person shall have the right
to employ your own counsel, but, in any such case, the fees and
expenses of such counsel shall be at your expense unless (i) the
Company has agreed in writing to pay such fees and expenses or (ii)
the named parties to any such action (including any impleaded parties)
include both you or any controlling person and the Company and you or
any controlling person shall have been advised by your counsel that a
conflict of interest between the Company and you or any controlling
person may arise (and the Company's counsel shall have concurred in
good faith with such advice) and for this reason it is not desirable
for the Company's counsel to represent both the indemnifying party and
the indemnified party (it being understood, however, that the Company
shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate
firm of attorneys for you or any controlling person (plus any local
counsel retained by you or any controlling person in their reasonable
judgment), which firm (or firms) shall be designated in writing by you
or any controlling person). No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification could be sought under this Section 5
(whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any
indemnified party. In no event shall any indemnifying party have any
liability or responsibility in respect of the settlement or compromise
of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim effected without its prior
written consent.
(d) The documents incorporated by reference in the Registration Statement
or Prospectus, when they were filed with the Commission, complied in
all material respects with the applicable provisions of the 1934 Act
and the rules and regulations of the Commission thereunder, and as of
such time of filing, when read together with the Prospectus, none of
such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise
referred to or contemplated therein, there has been no material
adverse change in the business, properties or financial condition of
the Company.
(f) This Agreement has been duly authorized, executed and delivered by the
Company.
(g) The consummation by the Company of the transactions contemplated
herein will not conflict with, or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company under any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument
to which the Company is a party or by which it may be bound or to
which any of its properties may be subject (except for conflicts,
breaches or defaults which would not, individually or in the
aggregate, be materially adverse to the Company or materially adverse
to the transactions contemplated by this Agreement.)
(h) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale by the Company of the Senior Notes or the
transactions by the Company contemplated in this Agreement, except (A)
such as may be required under the 1933 Act or the rules and
regulations thereunder; (B) such as may be required under the Public
Utility Holding Company Act of 1935, as amended (the 1935 Act); (C)
the qualification of the Indenture under the 1939 Act; (D) the
approval of the Kentucky Public Service Commission; and (E) such
consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws.
The Company's indemnity agreement contained in Section 5(c) hereof, and its
covenants, warranties and representations contained in this Agreement, shall
remain in full force and effect regardless of any investigation made by or on
behalf of any person, and shall survive the delivery of and payment for the
Senior Notes hereunder.
6. Warranties of and Indemnity by Underwriters:
(a) Each Underwriter warrants and represents that the information
furnished in writing to the Company through the Representative for use
in the Registration Statement, in the Basic Prospectus, in the
Prospectus, or in the Prospectus as amended or supplemented is correct
as to such Underwriter.
(b) Each Underwriter agrees, to the extent permitted by law, 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 5(c) hereof, but only with respect to
untrue statements or alleged untrue statements or omissions or alleged
omissions made in the Registration Statement, or in the Basic
Prospectus, or in the Prospectus, or in the Prospectus as so amended
or supplemented, in reliance upon and in conformity with information
furnished in writing to the Company by the Representative on behalf of
such Underwriter expressly for use therein. The Company agrees
promptly after the receipt by it of written notice of the commencement
of any action in respect to which indemnity from you on account of
your agreement contained in this Section 6(b) may be sought by the
Company, or by any person controlling the Company, to notify you in
writing of the commencement thereof, but the Company's omission so to
notify you of any such action shall not release you from any liability
which you may have to the Company or to such controlling person
otherwise than on account of the indemnity agreement contained in this
Section 6(b).
The indemnity agreement on the part of each Underwriter contained in
Section 6(b) hereof, and the warranties and representations of such Underwriter
contained in this Agreement, shall remain in full force and effect regardless of
any investigation made by or on behalf of the Company or other person, and shall
survive the delivery of and payment for the Senior Notes hereunder.
7. Default of Underwriters: If any Underwriter under this Agreement shall
fail or refuse (otherwise than for some reason sufficient to justify, in
accordance with the terms hereof, the cancellation or termination of its
obligations hereunder) to purchase and pay for the principal amount of 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 7 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.
8. Termination of Agreement by the Underwriters: This Agreement may be
terminated at any time prior to the Time of Purchase by the Representative if,
after the execution and delivery of this Agreement and prior to the Time of
Purchase, in the Representative's reasonable judgment, the Underwriters' ability
to market the 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
(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 8, the Representative will promptly notify the Company by telephone
or by telex or facsimile transmission, confirmed in writing. If this Agreement
shall not be carried out by any Underwriter for any reason permitted hereunder,
or if the sale of the 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.
9. Notices: All notices hereunder shall, unless otherwise expressly
provided, be in writing and be delivered at or mailed to the following addresses
or by telex or facsimile transmission confirmed in writing to the following
addresses: if to the Underwriters, to the Representative at Barclays Capital
Inc., 222 Broadway, New York, New York 10038, Attention: Pamela Kendall - U.S.
Transaction Management - Barclays, and, if to the Company, to Kentucky Power
Company, c/o American Electric Power Service Corporation, 1 Riverside Plaza,
Columbus, Ohio 43215, Attention: A. A. Pena, Treasurer, (fax 614/223-1687).
10. Parties in Interest: The agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Company (including the
directors thereof and such of the officers thereof as shall have signed the
Registration Statement), the controlling persons, if any, referred to in
Sections 5 and 6 hereof, and their respective successors, assigns, executors and
administrators, and, except as expressly otherwise provided in Section 7 hereof,
no other person shall acquire or have any right under or by the virtue of this
Agreement.
11. Definition of Certain Terms: If there be two or more persons, firms or
corporations named in Exhibit 1 hereto, the term "Underwriters", as used herein,
shall be deemed to mean the several persons, firms or corporations, so named
(including the Representative herein mentioned, if so named) and any party or
parties substituted pursuant to Section 7 hereof, and the term "Representative",
as used herein, shall be deemed to mean the representative or representatives
designated by, or in the manner authorized by, the Underwriters. All obligations
of the Underwriters hereunder are several and not joint. If there shall be only
one person, firm or corporation named in Exhibit 1 hereto, the term
"Underwriters" and the term "Representative", as used herein, shall mean such
person, firm or corporation. The term "successors" as used in this Agreement
shall not include any purchaser, as such purchaser, of any of the Senior Notes
from any of the respective Underwriters.
12. Conditions of the Company's Obligations: The obligations of the Company
hereunder are subject to the Underwriters' performance of their obligations
hereunder, and the further condition that at the Time of Purchase the Kentucky
Public Service Commission shall have issued an appropriate order, and such order
shall remain in full force and effect, authorizing the transactions contemplated
hereby.
13. Applicable Law: This Agreement will be governed and construed in
accordance with the laws of the State of New York.
14. Execution of Counterparts: This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, on the date
first above written.
KENTUCKY POWER COMPANY
By: /s/ A. A. Pena
---------------------
A. A. Pena
Vice President
BARCLAYS CAPITAL INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
as Representatives
and on behalf of the Underwriters
named in Exhibit 1 hereto
BARCLAYS CAPITAL INC.
By: /s/ James Glascott__________
Name: James Glascott
Title: Managing Director
CREDIT SUISSE FIRST BOSTON CORPORATION
By:/s/ Reginald Frazier__________
Name: Reginald Frazier
Title: Managing Director
EXHIBIT 1
Name Principal Amount
Barclays Capital Inc. $50,000,000
Credit Suisse First Boston Corporation $50,000,000
BNP Paribas Securities Corp. $12,500,000
McDonald Investments, Inc., a Key Corp Company $12,500,000
-----------
TOTAL $ 125,000,000
=============
EXHIBIT 4(a)
June 28, 2002
Company Order and Officers' Certificate
5.50% Senior Notes, Series A, due 2007
Deutsche Bank Trust Company Americas, as Trustee
100 Plaza one - MSJCY03-0604
Jersey City, NJ 07310
Ladies and Gentlemen:
Pursuant to Article Two of the Indenture, dated as of September 1, 1997 (as it
may be amended or supplemented, the "Indenture"), from Kentucky Power Company
(the "Company") to Bankers Trust Company, now Deutsche Bank Trust Company
Americas, as trustee (the "Trustee"), and the Board Resolutions dated April 22,
2002, a copy of which certified by the Secretary or an Assistant Secretary of
the Company is being delivered herewith under Section 2.01 of the Indenture, and
unless otherwise provided in a subsequent Company Order pursuant to Section 2.04
of the Indenture,
1. the Company's 5.50% Senior Notes, Series A, due 2007 (the "Notes") are
hereby established. The Notes shall be in substantially the form attached hereto
as Exhibit 1.
2. the terms and characteristics of the Notes shall be as follows (the
numbered clauses set forth below corresponding to the numbered subsections of
Section 2.01 of the Indenture, with terms used and not defined herein having the
meanings specified in the Indenture):
(i) the aggregate principal amount of Notes which shall initially be
authenticated and delivered under the Indenture is $125,000,000,
except as contemplated in Section 2.01(i) of the Indenture;
(ii) the date on which the principal of the Notes shall be payable
shall be July 1, 2007;
(iii)interest shall accrue from the date of authentication of the
Notes; the Interest Payment Dates on which such interest will be
payable shall be January 1 and July 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 December 15 or
June 15 preceding the relevant Interest Payment Date; provided
that the first Interest Payment Date shall be January 1, 2003 and
interest payable on the Stated Maturity Date or any Redemption
Date shall be paid to the Person to whom principal shall be paid;
(iv) the interest rate at which the Notes shall bear interest shall be
5.50% per annum;
(v) the Notes shall be redeemable at the option of the Company, in
whole at any time or in part from time to time, upon not less
than thirty but not more than sixty days' previous 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 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 25
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, (i) the average of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case 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 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.
(vi) (a) the Notes shall be issued in the form of a Global Note; (b)
the Depositary for such Global Note shall be The Depository Trust
Company; and (c) the procedures with respect to transfer and
exchange of Global Notes shall be as set forth in the form of
Note attached hereto;
(vii)the title of the Notes shall be "5.50% Senior Notes, Series A,
due 2007";
(viii) the form of the Notes shall be as set forth in Paragraph 1,
above;
(ix) not applicable;
(x) the Notes may be subject to a Periodic Offering;
(xi) not applicable;
(xii) not applicable;
(xiii) not applicable;
(xiv)the Notes shall be issuable in denominations of $1,000 and any
integral multiple thereof;
(xv) not applicable;
(xvi) the Notes shall not be issued as Discount Securities;
(xvii) not applicable;
(xviii) not applicable; and
(xix) not applicable.
3. You are hereby requested to authenticate $125,000,000 aggregate
principal amount of 5.50% Senior Notes, Series A, due 2007, executed by the
Company and delivered to you concurrently with this Company Order and Officers'
Certificate, in the manner provided by the Indenture.
4. You are hereby requested to hold the Notes as custodian for DTC in
accordance with the Letter of Representations dated June 25, 2002, from the
Company and the Trustee to DTC.
5. Concurrently with this Company Order and Officers' Certificate, an
Opinion of Counsel under Sections 2.04 and 13.06 of the Indenture is being
delivered to you.
6. The undersigned Geoffrey S. Chatas and Thomas G. Berkemeyer, the
Assistant Treasurer and Assistant Secretary, respectively, of the Company do
hereby certify that:
(i) we have read the relevant portions of the Indenture, including without
limitation the conditions precedent provided for therein relating to
the action proposed to be taken by the Trustee as requested in this
Company Order and Officers' Certificate, and the definitions in the
Indenture relating thereto;
(ii) we have read the Board Resolutions of the Company and the Opinion of
Counsel referred to above;
(iii)we have conferred with other officers of the Company, have examined
such records of the Company and have made such other investigation as
we deemed relevant for purposes of this certificate;
(iv) in our opinion, we have made such examination or investigation as is
necessary to enable us to express an informed opinion as to whether or
not such conditions have been complied with; and
(v) on the basis of the foregoing, we are of the opinion that all
conditions precedent provided for in the Indenture relating to the
action proposed to be taken by the Trustee as requested herein have
been complied with.
Kindly acknowledge receipt of this Company Order and Officers' Certificate,
including the documents listed herein, and confirm the arrangements set forth
herein by signing and returning the copy of this document attached hereto.
Very truly yours,
KENTUCKY POWER COMPANY
By:___________________________
Assistant Treasurer
And:__________________________
Assistant Secretary
Acknowledged by Trustee:
By:___________________________
Authorized Signatory
EXHIBIT 1 to EXHIBIT 4(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
KENTUCKY POWER COMPANY
5.50% Senior Notes, Series A, due 2007
CUSIP: 491386 AK 4 Original Issue Date: June 28, 2002
Stated Maturity: July 1, 2007 Interest Rate: 5.50%
Principal Amount: $125,000,000
Redeemable: Yes X No
In Whole: Yes X No
In Part: Yes X No
KENTUCKY POWER COMPANY, a corporation duly organized and existing under the
laws of the Commonwealth of Kentucky (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 January 1 and July 1 in each year, commencing
on January 1, 2003, 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
December 15 or June 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 Bankers Trust Company, now Deutsche Bank Trust Company Americas, 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.
The Note is not subject to the benefits of any sinking fund.
This Note may be redeemed by the Company at its option, in whole at any
time or in part from time to time, upon not less than thirty but not more than
sixty days' previous notice given by mail to the registered owners of the Note
at a redemption price equal to the greater of (i) 100% of the principal amount
of the Note 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 25 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 Note
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company as may be designated by the
Company accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the registered
Holder hereof or his or her attorney duly authorized in writing, and thereupon
one or more new Notes of authorized denominations and for the same aggregate
principal amount and series will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any paying agent and any Note Registrar may deem and treat
the registered Holder hereof as the absolute owner hereof (whether or not this
Note shall be overdue and notwithstanding any notice of ownership or writing
hereon made by anyone other than the Note Registrar) for the purpose of
receiving payment of or on account of the principal hereof and premium, if any,
and interest due hereon and for all other purposes, and neither the Company nor
the Trustee nor any paying agent nor any Note Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
The Notes of this series are issuable only in registered form without
coupons in denominations of $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.
KENTUCKY POWER COMPANY
By:___________________________
Assistant Treasurer
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 June __, 2002
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)
June 28, 2002
Kentucky Power Company
1 Riverside Plaza
Columbus, Ohio 43215
Ladies and Gentlemen:
We have acted as counsel to Kentucky Power Company, a Kentucky corporation
(the "Company"), in connection with the Registration Statement on Form S-3
(Registration Statement No. 333-87216) filed by the Company with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), relating to 125,000,000 aggregate principal amount of
Senior Notes, Series A, due 2007 (the "Senior Notes") 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 Kentucky.
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 Unsecured Notes do not and will not violate the
laws of Kentucky 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 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
SIMPSON THACHER & BARTLETT