Exhibit
4(f)
COLUMBUS
SOUTHERN POWER COMPANY
TO
BANK
ONE, N.A.
AS
TRUSTEE.
FIRST
SUPPLEMENTAL INDENTURE
DATED
AS OF FEBRUARY 1, 2003
$250,000,000
5.50%
SENIOR NOTES, SERIES A DUE 2013
5.50%
SENIOR NOTES, SERIES C DUE 2013
ARTICLE
I Additional Definitions
|
2
|
|
SECTION
1.01. Definitions
|
2
|
ARTICLE
II 2013 Notes
|
4
|
|
SECTION
2.01. Establishment
|
4
|
|
SECTION
2.02. Aggregate Principal Amount
|
4
|
|
SECTION
2.03. Maturity and Interest
|
4
|
|
SECTION
2.04. Optional Redemption
|
5
|
|
SECTION
2.05. Limitation on Secured Debt.
|
6
|
|
SECTION
2.06. Global Securities and Certificated
Securities
|
6
|
|
SECTION
2.07. Form of Securities
|
8
|
|
SECTION
2.08. Transfer and Exchange
|
8
|
ARTICLE
III Miscellaneous Provisions
|
13
|
|
SECTION
3.01. Recitals by Company
|
13
|
|
SECTION
3.02. Ratification and Incorporation of Original
Indenture
|
13
|
|
SECTION
3.03. Executed in Counterparts
|
13
|
|
SECTION
3.04. Legends
|
13
|
|
SECTION
3.05. Applicability of Section 4.05 and Article
Ten of
Original Indenture
|
13
|
*
This Table of Contents does not constitute part of the Indenture or have
any
bearing upon the interpretation of any of its terms and
provisions.
THIS
FIRST SUPPLEMENTAL INDENTURE is made as of the 1st
day of
February, 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 Bank One, N.A., a national banking association, duly organized
and
existing under the laws of the United States, having its principal corporate
trust office at 1111 Polaris Parkway, Columbus, Ohio 43240, 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 February
1,
2003 (the “Original Indenture”), with the Trustee;
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”;
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;
WHEREAS,
the Company proposes to create under the Indenture a series of Senior Notes
to
be designated the “5.50% Senior Notes, Series A due 2013” (the “Series A Notes”)
and a series of Senior Notes to be designated the “5.50% Senior Notes, Series C
due 2013” (the “Series C Notes”; and together with the Series A Notes the “2013
Notes”), the form and substance of the 2013 Notes and the terms, provisions and
conditions thereof to be set forth as provided in the Original Indenture
and
this First Supplemental Indenture;
WHEREAS,
concurrently with the issuance of the Series A Notes, the Company proposes
to
create under the Indenture a series of Senior Notes to be designated the
“6.60%
Series Notes Series B, due 2033” (the “Series B Notes”) and a series of Senior
Notes to be designated the “6.60% Senior Notes, Series D, due 2033” (the “Series
D Notes”; and together with the Series B Notes, the “2033 Notes”), the form and
substance of the 2033 Notes and the terms, provisions and conditions thereof
to
be set forth as provided in the Original Indenture and the Second Supplemental
Indenture;
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 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
SECTION
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.
“Clearstream”
means Clearstream Banking, société anonyme, or any successor securities clearing
agency.
“Distribution
Compliance Period,” with respect to the 2013 Notes, means the period of 40
consecutive days beginning on and including the later of (i) the day on which
such 2013 Notes are first offered to Persons other than distributors (as
defined
in Regulation S under the Securities Act) in reliance on Regulation S and
(ii)
the Original Issue Date.
“DTC”
means The Depository Trust Company, the initial Clearing Agency.
“Euroclear”
means Euroclear Bank S.A./N.V., as operator of the Euroclear System or any
successor securities clearing agency.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Exchange
Offer Registration Statement” shall have the meaning assigned to it in the
Registration Rights Agreement.
“Global
Securities” means global certificates representing the 2013 Notes as described
in Section 204.
“Holder”
means a registered holder of a 2013 Note.
“Institutional
Accredited Investor” has the meaning set forth in Section 2.04(a)
hereof.
“Columbus
Southern Wires Exchange Offer” shall have the meaning assigned to it in the
Registration Rights Agreement.
“Columbus
Southern Wires Notes” shall have the meaning assigned to it in the Registration
Rights Agreement.
“Original
Issue Date” means February 14, 2003.
“Owner”
means each Person who is the beneficial owner of a Global Security as reflected
in the records of the Depository or, if a Depository participant is not the
Owner, then as reflected in the records of a Person maintaining an account
with
such Depository (directly or indirectly, in accordance with the rules of
such
Depository).
“Permanent
Regulation S Global Security” has the meaning set forth in Section
2.04(b).
“QIBs”
means qualified institutional buyers as defined in Rule 144A.
“Registered
Exchange Offer” shall have the meaning assigned to Exchange Offer in the
Registration Rights Agreement
“Registration
Rights Agreement” means the Registration Rights Agreement, dated as of
February 1, 2003 among the Company and the Initial Purchasers named
therein, relating to the registration of the 2013 Notes and the 2033 Notes
under
the Securities Act.
“Regulation
S” means Regulation S under the Securities Act and any successor regulation
thereto.
“Rule
144” means Rule 144 under the Securities Act, as such rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the
Securities and Exchange Commission.
“Rule
144A” means Rule 144A under the Securities Act, as such rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the
Securities and Exchange Commission.
“Rule
144A Global Security” means any Series A Note that is to be traded pursuant
to Rule 144A.
“Securities
Act” means the Securities Act of 1933, as amended from time to time, or any
successor legislation.
“Securities
Custodian” means the custodian with respect to a Global Security (as appointed
by the Depository), or any successor Person thereto and shall initially be
the
Trustee.
“Shelf
Registration Statement” shall have the meaning assigned to it in the
Registration Rights Agreement.
“Special
Interest Premium” shall have the meaning assigned to it in the Registration
Rights Agreement.
“Stated
Maturity” means March 1, 2013.
“Subsidiary”
means any corporation or other entity of which sufficient voting stock or
other
ownership or economic interests having ordinary voting power to elect a majority
of the board of directors (or equivalent body) are at the time directly or
indirectly held by the Company.
“Temporary
Regulation S Global Security” has the meaning set forth in Section
2.04(b).
“Transfer
Restricted Security” shall have the meaning assigned to Registrable Note in the
Registration Rights Agreement.
“Transmission
and Distribution Business” has the meaning set forth in Section
3.05(a).
ARTICLE
II
2013
Notes
SECTION
2.01. Establishment.
The
Series A Notes shall be designated as the Company’s “5.50% Senior Notes, Series
A due 2013” and the Series C Notes shall be designated as the Company’s “5.50%
Senior Notes, Series C due 2013”. The Series A Notes and the Series C Notes
shall be treated for all purposes under the Indenture as a single class or
series of Senior Notes.
SECTION
2.02. Aggregate
Principal Amount.
The
Trustee shall authenticate and deliver (i) Series A Notes for original issue
on
the Original Issue Date in the aggregate principal amount of $250,000,000
and
(ii) Series C Notes from time to time thereafter for issue only in exchange
for
Series A Notes pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement or pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement,
in
each case 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 2013 Notes shall be initially limited to $250,000,000 and shall
be
subject to Periodic Offerings pursuant to Article Two of the Original Indenture.
All 2013 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 2013 Notes. Any such additional 2013 Notes will have the same
interest rate, maturity and other terms as those initially issued. The Series
A
Notes shall be issued in definitive fully registered form.
SECTION
2.03. Maturity
and Interest(i) The
2013
Notes shall mature on, and the date on which the principal of the 2013 Notes
shall be payable (unless earlier redeemed) shall be, March 1,
2013;
(ii) the
interest rate at which the 2013 Notes shall bear interest shall be 5.50%
per annum; provided, however, that the Special Interest Premium shall accrue
on
the 2013 Notes under certain circumstances as provided in clause (iii) below;
interest shall accrue from the date of authentication of the 2013 Notes;
the
Interest Payment Dates on which such interest will be payable shall be
March 1 and September 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 February 15 or August 15 preceding the relevant Interest Payment Date;
provided that the first Interest Payment Date shall be September 1, 2003
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 (a) on the Transfer Restricted Securities over
and
above the interest rate set forth herein in accordance with Section
2(e) of
the Registration Rights Agreement and (b) on the 2013 Notes over and above
the
interest rate set forth herein in accordance with Section 7(d) or 7(e), as
the
case may be, of the Registration Rights Agreement.
SECTION
2.04. Optional
Redemption
The 2013 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 2013 Notes being redeemed and (ii) the sum of the present values of
the
remaining scheduled payments of principal and interest on the 2013 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, 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 2013 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 2013
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 2013 Notes are outstanding, the Company shall not create
or
suffer to be created or to exist or permit any of its Subsidiaries to create
or
permit or suffer to be created or exist any additional mortgage, pledge,
security interest, or other lien (collectively “Liens”) on any utility
properties or tangible assets now owned or hereafter acquired by the Company
or
its Subsidiaries to secure any indebtedness for borrowed money (“Secured Debt”),
without providing that such 2013 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:
· |
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;
|
·
|
Financing
of the Company’s accounts receivable for electric
service;
|
·
|
Any
extensions, renewals or replacements (or successive extensions,
renewals
or replacements), in whole or in part, of Liens permitted by the
foregoing
clauses; and
|
·
|
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, energy trading contracts, regulatory assets, deferred
charges 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.
(a) General.
The
Series A Notes will be resold initially only to (i) QIBs in reliance on Rule
144A under the Securities Act (“Rule 144A”), (ii) institutional “accredited
investors” as such term is defined in rule 501(a)(1), (2),(3) and (7) of
Regulation D under the Securities Act (each, an “Institutional Accredited
Investor”) and (iii) Persons other than U.S. Persons (as defined in Regulation
S) in reliance on Regulation S under the Securities Act (“Regulation S”). Series
A Notes may thereafter be transferred to, among others, QIBs, purchasers
in
reliance on Regulation S, and Institutional Accredited Investors in each
case,
subject to the restrictions on transfer set forth herein.
(b) Global
Securities.
(i) Form.
Series
A Notes initially resold pursuant to Rule 144A shall be issued initially
in the
form of one or more permanent Global Securities in definitive, fully registered
form (collectively, the “Rule 144A Global Security”) and Series A Notes
initially resold pursuant to Regulation S and shall be issued initially in
the
form of one or more temporary global securities in definitive, fully registered
form (collectively, the “Temporary Regulation S Global Security”), in each case
without interest coupons and with the global securities legend and restricted
securities legend set forth in Exhibit A hereto, which shall be deposited
on
behalf of the purchasers of the Series A Notes represented thereby with the
Securities Custodian, and registered in the name of the Depository or a nominee
of the Depository, duly executed by the Company and authenticated by the
Trustee
as provided in the Indenture. Except as set forth in this Section 2.06,
beneficial ownership interests in the Temporary Regulation S Global Security
(x)
will not be exchangeable for interests in the Rule 144A Global Security,
the
permanent global security (the “Permanent Regulation S Global Security”), or any
other security without a legend containing restrictions on transfer of such
security prior to the expiration of the Distribution Compliance Period and
(y)
then may be exchanged for interests in a Rule 144A Global Security or the
Permanent Regulation S Global Security only upon certification that beneficial
ownership interests in such Temporary Regulation S Global Security are owned
either by non-U.S. persons or U.S. persons who purchased such interests in
a
transaction that did not require registration under the Securities
Act.
The
Rule
144A Global Security, the Temporary Regulation S Global Security and the
Permanent Regulation S Global Security are collectively referred to herein
as
“Global Securities”. The aggregate principal amount of the Global Securities may
from time to time be increased or decreased by adjustments made on the records
of the Trustee and the Depository or its nominee as hereinafter
provided.
(ii) Book-Entry
Provisions.
This
Section shall apply only to a Global Security deposited with or on behalf
of the
Depository. The Company shall execute and the Trustee shall, in accordance
with
this Section 2.06(b)(ii), authenticate and deliver initially one or more
Global
Securities that (a) shall be registered in the name of the Depository for
such
Global Security or Global Securities or the nominee of such Depository and
(b)
shall be delivered by the Trustee to such Depository or pursuant to such
Depository’s instructions or held by the Trustee as custodian for the
Depository.
Members
of, or participants in, the Depository (“Agent Members”) shall have no rights
under this Indenture with respect to any Global Security held on their behalf
by
the Depository or by the Trustee as the custodian of the Depository or under
such Global Security, and the Company, the Trustee and any agent of the Company
or the Trustee shall be entitled to treat the Depository as the absolute
owner
of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent
of
the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depository or impair, as between
the Depository and its Agent Members, the operation of customary practices
of
such Depository governing the exercise of the rights of a holder of a beneficial
interest in any Global Security.
To
the
extent a notice or other communication to the beneficial owners of the 2013
Notes is required under the Indenture, unless and until Certificated Securities
shall have been issued to such owners, the Trustee shall give all such notices
and communications specified herein to be given to such owners to the
Depository, and shall have no obligations to such Owners.
(c) Certificated
Securities.
Series
A Notes sold to Institutional Accredited Investors shall be issued initially
in
the form of
a
fully registered,
certificated Series
A Note (“Certificated Securities”). Except as provided in this Section 2.06,
owners of beneficial interests
in Global Securities
shall not be entitled to receive physical delivery of Certificated
Securities.
Global
Securities shall be exchangeable for Certificated Securities if (i) the
Depository (x) notifies the Company that it is unwilling or unable to continue
as Depository for the Global Securities or (y) shall no longer be registered
or
in good standing under the Exchange Act, or other applicable statute or
regulation, and a successor Depository for the Global Securities is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition. Upon surrender to the Trustee of the
typewritten certificate or certificates representing the Global Securities
by
the Depository, accompanied by registration instructions, the Trustee shall
execute and authenticate the certificates in accordance with the instructions
of
the Depository. Neither the Security Registrar nor the Trustee shall be liable
for any delay in delivery of such instructions and may conclusively rely
on, and
shall be protected in relying on, such instructions. Upon the issuance of
Certificated Securities, the Trustee shall recognize the Holders of the
Certificated Securities as Holders. The Certificated Securities shall be
printed, lithographed or engraved or may be produced in any other manner
as is
reasonably acceptable to the Company, as evidenced by the execution thereof
by
the Company, and shall bear the legend set forth on Exhibit A hereto unless
the
Company informs the Trustee that such legend is no longer required.
SECTION
2.07. Form
of Securities.
The
Global Securities and Certificated Securities shall be substantially in the
form
attached as Exhibit A thereto.
SECTION
2.08. Transfer
and Exchange.
(a) General.
The
2013 Notes may not be transferred except in compliance with the legend contained
in Exhibit A unless otherwise determined by the Company in accordance with
applicable law. No service charge will be made for any transfer or exchange
of
2013 Notes, but payment will be required of a sum sufficient to cover any
tax or
other governmental charge that may be imposed in connection
therewith.
(b) Transfer
and Exchange of Global Securities.
(i) If
a
holder of a beneficial interest in the Rule 144A Global Security wishes at
any
time to exchange its interest in the Rule 144A Global Security for an interest
in the Permanent Regulation S Global Security, or to transfer its interest
in
the Rule 144A Global Security to a person who wishes to take delivery thereof
in
the form of an interest in the Permanent Regulation S Global Security, such
holder may, subject to the rules and procedures of the Depository and to
the
requirements set forth in the following sentence, exchange or cause the exchange
or transfer or cause the transfer of such interest for an equivalent beneficial
interest in the Permanent Regulation S Global Security. Upon receipt by the
Trustee, as transfer agent, of (1) instructions given in accordance with
the
Depository’s procedures from or on behalf of a holder of a beneficial interest
in the Rule 144A Global Security, directing the Trustee, as transfer agent,
to
credit or cause to be credited a beneficial interest in the Permanent Regulation
S Global Security in an amount equal to the beneficial interest in the Rule
144A
Global Security to be exchanged or transferred, (2) a written order given
in
accordance with the Depository’s procedures containing information regarding the
Euroclear or Clearstream account to be credited with such increase and the
name
of such account, and (3) a certificate in the form of Exhibit C hereto given
by
the holder of such beneficial interest stating that the exchange or transfer
of
such interest has been made pursuant to and in accordance with Rule 903 or
Rule
904 of Regulation S under the Securities Act, the Trustee, as transfer agent,
shall promptly deliver appropriate instructions to the Depository, its nominee,
or the custodian for the Depository, as the case may be, to reduce or reflect
on
its records a reduction of the Rule 144A Global Security by the aggregate
principal amount of the beneficial interest in such Rule 144A Global Security
to
be so exchanged or transferred from the relevant participant, and the Trustee,
as transfer agent, shall promptly deliver appropriate instructions to the
Depository, its nominee, or the custodian for the Depository, as the case
may
be, concurrently with such reduction, to increase or reflect on its records
an
increase of the principal amount of such Permanent Regulation S Global Security
by the aggregate principal amount of the beneficial interest in such Rule
144A
Global Security to be so exchanged or transferred, and to credit or cause
to be
credited to the account of the person specified in such instructions (who
may be
Euroclear or Clearstream or another agent member of Euroclear or Clearstream
or
both, as the case may be, acting for and on behalf of them) a beneficial
interest in such Permanent Regulation S Global Security equal to the reduction
in the principal amount of such Rule 144A Global Security.
(ii) If
a
holder of a beneficial interest in the Permanent Regulation S Global Security
wishes at any time to exchange its interest in the Permanent Regulation S
Global
Security for an interest in the Rule 144A Global Security, or to transfer
its
interest in the Permanent Regulation S Global Security to a person who wishes
to
take delivery thereof in the form of an interest in the Rule 144A Global
Security, such holder may, subject to the rules and procedures of Euroclear
or
Clearstream and the Depository, as the case may be, and to the requirements
set
forth in the following sentence, exchange or cause the exchange or transfer
or
cause the transfer of such interest for an equivalent beneficial interest
in
such Rule 144A Global Security. Upon receipt by the Trustee, as transfer
agent,
of (1) instructions given in accordance with the procedures of Euroclear
or
Clearstream and the Depository, as the case may be, from or on behalf of
a
beneficial owner of an interest in the Permanent Regulation S Global Security
directing the Trustee, as transfer agent, to credit or cause to be credited
a
beneficial interest in the Rule 144A Global Security in an amount equal to
the
beneficial interest in the Permanent Regulation S Global Security to be
exchanged or transferred, (2) a written order given in accordance with the
procedures of Euroclear or Clearstream and the Depository, as the case may
be,
containing information regarding the account with the Depository to be credited
with such increase and the name of such account, and (3) prior to the expiration
of the Distribution Compliance Period, a certificate in the form of Exhibit
C
hereto given by the holder of such beneficial interest and stating that the
person transferring such interest in such Permanent Regulation S Global Security
reasonably believes that the person acquiring such interest in the Rule 144A
Global Security is a QIB and is obtaining such beneficial interest for its
own
account or the account of a QIB in a transaction meeting the requirements
of
Rule 144A and any applicable securities laws of any state of the United States
or any other jurisdiction, the Trustee, as transfer agent, shall promptly
deliver appropriate instructions to the Depository, its nominee, or the
custodian for the Depository, as the case may be, to reduce or reflect on
its
records a reduction of the Permanent Regulation S Global Security by the
aggregate principal amount of the beneficial interest in such Permanent
Regulation S Global Security to be exchanged or transferred, and the Trustee,
as
transfer agent, shall promptly deliver appropriate instructions to the
Depository, its nominee, or the custodian for the Depository, as the case
may
be, concurrently with such reduction, to increase or reflect on its records
an
increase of the principal amount of the Rule 144A Global Security by the
aggregate principal amount of the beneficial interest in the Permanent
Regulation S Global Security to be so exchanged or transferred, and to credit
or
cause to be credited to the account of the person specified in such instructions
a beneficial interest in the Rule 144A Global Security equal to the reduction
in
the principal amount of the Permanent Regulation S Global Security. After
the
expiration of the Distribution Compliance Period, the certification requirement
set forth in clause (3) of the second sentence of this Section 2.08(b)(ii)
will
no longer apply to such exchanges and transfers.
(iii) Any
beneficial interest in one of the Global Securities that is transferred to
a
person who takes delivery in the form of an interest in the other Global
Securities will, upon transfer, cease to be an interest in such Global Security
and become an interest in the other Global Securities and, accordingly, will
thereafter be subject to all transfer restrictions and other procedures
applicable to beneficial interests in such other Global Security Note for
as
long as it remains such an interest.
(iv) Beneficial
interests in Temporary Regulation S Global Securities may be exchanged for
interests in Rule 144A Global Securities or Permanent Regulation S Global
Securities if (1) such exchange occurs in connection with a transfer of
securities in compliance with Rule 144A, and (2) the transferor of the
beneficial interest in the Temporary Regulation S Global Security first delivers
to the Trustee a written certificate (in a form satisfactory to the Trustee)
to
the effect that the beneficial interest in the Temporary Regulation S Global
Security is being transferred to a Person (a) who the transferor reasonably
believes to be a QIB (b) purchasing for its own account or the account of
a QIB
in a transaction meeting the requirements of Rule 144A, and (c) in accordance
with all applicable securities laws of the states of the United States and
other
jurisdictions.
(v) During
the Distribution Compliance Period, beneficial ownership interests in Temporary
Regulation S Global Securities may only be sold, pledged or transferred through
Euroclear or Clearstream in accordance with the applicable procedures relating
to such institutions and only (i) to the Company, (ii) so long as such security
is eligible for resale pursuant to Rule 144A, to a Person whom the selling
holder reasonably believes is a QIB that purchases for its own account or
for
the account of a QIB in a transaction meeting the requirements of Rule 144A,
(iii) in an offshore transaction in accordance with Regulation S (other than
a
transaction resulting in an exchange for interest in a Permanent Regulation
S
Global Security), (iv) pursuant to an exemption from registration under the
Securities Act provided by Rule 144 (if applicable) under the Securities
Act or
(v) pursuant to an effective registration statement under the Securities
Act, in
each case in accordance with any applicable securities laws of any state
of the
United States.
(c) Transfer
and Exchange of Global Securities and Certificated Securities.
(i) In
the
event that a Global Security is exchanged for a Certificated Security as
provided in Section 2.06(c), such Certificated Security may be exchanged
or
transferred for one another, subject to Section 2.05 of the Original Indenture,
only in accordance with such procedures as are substantially consistent with
the
provisions of clauses (b)(i) and (ii) above (including the certification
requirements intended to ensure that such exchanges or transfers comply with
Rule 144, Rule 144A or Regulation S, as the case may be) and as may be from
time
to time reasonably adopted by the Company.
(ii) Upon
receipt by the Trustee of a Certificated Security, duly endorsed or accompanied
by appropriate instruments of transfer, the Trustee shall cancel such
Certificated Security and cause, or direct the Securities Custodian to cause,
in
accordance with the standing instructions and procedures existing of the
Depository and the Securities Custodian, the aggregate principal amount of
2013
Notes represented by the Rule 144A Global Security or Permanent Regulation
S
Global Security, as applicable, to be increased by the aggregate principal
amount of the Certificated Security to be exchanged and shall credit or cause
to
be credited to the account of the Person specified in such instructions a
beneficial interest in the Rule 144A Global Security or Permanent Regulation
S
Global Security, as applicable, equal to the principal amount of the
Certificated Security so canceled. If no Rule 144A Global Securities or
Permanent Regulation S Global Securities, as applicable, are then outstanding,
the Company shall issue and the Trustee shall authenticate, upon written
order
of the Company in the form of an Officers' Certificate, a new Rule 144A Global
Security or Permanent Regulation S Global Security, as applicable, in the
appropriate principal amount.
(d) Certificates.
In
connection with any transfer described in paragraphs (b) and (c) of this
Section
2.08, the Trustee shall receive a certificate of transfer in the form attached
as Exhibit C hereto. Additionally, upon any transfer or exchange to an
Institutional Accredited Investor, the Company and the Trustee shall receive
a
certificate in the form attached as Exhibit D hereto.
(e) Transfer
Restricted Security.
Upon
any sale or transfer of a Transfer Restricted Security (including any Transfer
Restricted Security represented by a Global Security) pursuant to Rule 144
under
the Securities Act or an effective registration statement under the Securities
Act, which shall be certified to the Trustee and Security Registrar upon
which
each may conclusively rely:
(i) in
the
case of any Transfer Restricted Security represented by a Certificated Security,
the Security Registrar shall permit the Holder thereof to exchange such Transfer
Restricted Security for a Certificated Security that does not bear the legend
set forth in Exhibit A hereto and rescind any restriction on the transfer
of
such Transfer Restricted Security; and
(ii) in
the
case of any Transfer Restricted Security represented by a Global Security,
such
Transfer Restricted Security shall not be required to bear the legend set
forth
in Exhibit A hereto if all other interests in such Global Note have been
or are
concurrently being sold or transferred pursuant to Rule 144 under the Securities
Act or pursuant to an effective registration statement under the Securities
Act.
(f) Registered
Exchange Offer.
Notwithstanding the foregoing, upon consummation of the Registered Exchange
Offer, the Company shall issue and, upon receipt of a Company Order in
accordance with Section 2.05 of the Original Indenture, the Trustee shall
authenticate Series C Notes in exchange for Series A Notes accepted for exchange
in the Registered Exchange Offer, which Series C Notes shall not bear the
transfer restriction legend set forth in Exhibit A hereto and shall not provide
for Special Interest Premium (except in certain circumstances related to
the
Columbus Southern Wires Exchange Offer as set forth in Section 2.03(iii)(b)
herein) and the Security Registrar shall rescind any restriction on the transfer
of such Series C Notes, in each case unless the Holder of such Series A Notes
(A) is a broker-dealer tendering Series A Notes acquired directly from the
Company or an “affiliate” (as defined in Rule 144 under the Securities Act) of
the Company for its own account, (B) is a Person who has an arrangement or
understanding with any Person to participate in the “distribution” (within the
meaning of the Securities Act) of the Series C Notes, (C) is a Person who
is an
“affiliate” (as defined in Rule 144 under the Securities Act) of the Company or
(D) will not be acquiring the Series C Notes in the ordinary course of such
Holder's business. The Company shall identify to the Trustee such Holders
in a
written certification signed by an Officer of the Company and, absent
certification from the Company to such effect, the Trustee shall assume that
there are no such Holders.
(g) Ohio
Wires Exchange Offer.
Notwithstanding the foregoing, upon consummation of the Columbus Southern
Wires
Exchange Offer, Holders of the 2013 Notes shall be permitted to exchange
such
2013 Notes for Columbus Southern Wires Notes as set forth in Section 7 of
the
Registration Rights Agreement and in a manner mutually acceptable to the
Trustee
and the Company.
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 2013 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. Legends
Except as determined by the Company in accordance with applicable law, each
2013
Note shall bear the applicable legends relating to restrictions on transfer
pursuant to the securities laws in substantially the form set forth on Exhibit
A
hereto.
SECTION
3.05. Applicability
of Section 4.05 and Article Ten of Original Indenture
(a) As
long
as the 2013 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 assets (“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
LLC (“Columbus Southern Wires”) shall not be subject to Section 4.05 and Article
Ten of the Original Indenture.
(b) To
the
extent the Transmission and Distribution Business is transferred to Columbus
Southern Wires, holders of 2013 Notes shall be given the option to either
(i)
retain their 2013 Notes or (ii) exchange their 2013 Notes for Columbus Southern
Wires Notes pursuant to the Ohio Wires Exchange Offer.
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/
G. S. Chatas_____
Assistant
Treasurer
Attest:
By_/s/
T. G. Berkemeyer_
Assistant Secretary
BANK
ONE,
N. A.,
as Trustee
By_/s/ Jeffery L. Eubank__
Vice President
Attest:
By_/s/
David B. Knox__
Trust Officer
EXHIBIT
A
FORM
OF
SERIES [A/C] NOTE
[Rule
144A Global Security]
[Regulation
S Global Security]
[Certificated
Security]
[FORM
OF
FACE OF INITIAL SECURITY]
[Global
Securities Legend]
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR
OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART,
TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE
AND
TRANSFERS OR PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO
ON
THE REVERSE HEREOF.
[FOR
REGULATION S GLOBAL NOTE ONLY] UNTIL 40 DAYS AFTER THE COMMENCEMENT OF THE
OFFERING, AN OFFER OR SALE OF NOTES WITHIN THE UNITED STATES BY A DEALER
(AS
DEFINED IN THE U.S. SECURITIES ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS
OF
THE U.S. SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN
ACCORDANCE WITH RULE 144A THEREUNDER.
[Restricted
Securities Legend]
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES
FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED
OR
OTHERWISE TRANSFERRED OTHER THAN (A)(1) TO THE COMPANY, (2) IN A TRANSACTION
ENTITLED TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT, (3) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT
TO
RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF
RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (4) OUTSIDE THE UNITED STATES
IN A TRANSACTION MEETING THE REQUIREMENTS OF REGULATION S UNDER THE SECURITIES
ACT, (5) IN ACCORDANCE WITH ANOTHER APPLICABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY) OR (6) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND (B) IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF EACH STATE OF THE UNITED
STATES. AN INSTITUTIONAL ACCREDITED INVESTOR HOLDING THIS SECURITY AGREES
IT
WILL FURNISH TO THE COMPANY AND THE TRUSTEE SUCH CERTIFICATES AND OTHER
INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY
IT OF
THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS. THE HOLDER HEREOF,
BY
PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY
THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A
OR (2) AN INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE
501(A)(1), (2),(3) OR (7) UNDER THE SECURITIES ACT AND THAT IT IS HOLDING
THIS
SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) A NON-U.S.
PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER
THE
SECURITIES ACT.
[Temporary
Regulation S Global Security Legend]
EXCEPT
AS
SET FORTH BELOW, BENEFICIAL OWNERSHIP INTEREST IN THIS TEMPORARY REGULATION
S
GLOBAL SECURITY WILL NOT BE EXCHANGEABLE FOR INTERESTS IN THE PERMANENT
REGULATION S GLOBAL SECURITY OR ANY OTHER SECURITY REPRESENTING AN INTEREST
IN
THE SECURITIES REPRESENTED HEREBY WHICH DO NOT CONTAIN A LEGEND CONTAINING
RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE “40-DAY DISTRIBUTION
COMPLIANCE PERIOD” (WITHIN THE MEANING OF RULE 903(d)(3) OF REGULATION S UNDER
THE SECURITIES ACT) AND THEN ONLY UPON CERTIFICATION IN FORM REASONABLY
SATISFACTORY TO THE TRUSTEE THAT SUCH BENEFICIAL INTERESTS ARE OWNED EITHER
BY
NON-U.S. PERSONS OR U.S. PERSONS WHO PURCHASED SUCH INTERESTS IN A TRANSACTION
THAT DID NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT. DURING SUCH 40-DAY
DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP INTEREST IN THIS TEMPORARY
REGULATION S GLOBAL SECURITY MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED THROUGH
EUROCLEAR BANK S.A./N.A., AS OPERATOR OF THE EUROCLEAR SYSTEM OR CLEARSTREAM
BANKING, SOCIÉTÉ ANONYME AND ONLY (I) TO THE COMPANY, (II) IN THE UNITED STATES
TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A , (III) OUTSIDE THE UNITED STATES IN
A
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, OR (IV)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
IN
EACH OF CASE (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS
OF ANY STATE OF THE UNITED STATES. HOLDERS OF INTERESTS IN THIS TEMPORARY
REGULATION S GLOBAL SECURITY WILL NOTIFY ANY PURCHASER OF THIS SECURITY OF
THE
RESALE RESTRICTIONS REFERRED TO ABOVE, IF THEN APPLICABLE.
BENEFICIAL
INTERESTS IN THIS TEMPORARY REGULATIONS S GLOBAL SECURITY MAY BE EXCHANGED
FOR
INTEREST IN A RULE 144A GLOBAL SECURITY ONLY IF (1) SUCH EXCHANGE OCCURS
IN
CONNECTION WITH A TRANSFER OF THE NOTES IN COMPLIANCE WITH RULE 144A, AND
(2)
THE TRANSFEROR OF THE REGULATION S GLOBAL SECURITY FIRST DELIVERS TO THE
TRUSTEE
A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO THE EFFECT
THAT THE REGULATION S GLOBAL SECURITY BEING TRANSFERRED TO A PERSON (A) WHO
THE
TRANSFEROR REASONABLY BELIEVES TO BE A QUALIFIED INSTITUTIONAL BUYER WHEN
THE
MEANING OF RULE 144A (B) PURCHASING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF
A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE
144A, AND (C) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES
OF
THE UNITED STATES AND OTHER JURISDICTIONS.
BENEFICIAL
INTEREST IN A RULE 144A GLOBAL SECURITY MAY BE TRANSFERRED TO A PERSON WHO
TAKES
DELIVERY IN THE FORM OF AN INTEREST IN THE REGULATION S GLOBAL SECURITY,
WHETHER
BEFORE OR AFTER THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD,
ONLY IF THE TRANSFEROR FIRST DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE
(IN
THE FORM ATTACHED TO THIS CERTIFICATE) TO THE EFFECT THAT IF SUCH TRANSFER
IS
BEING MADE IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S OR RULE 144
(IF
AVAILABLE) AND THAT, IF SUCH TRANSFER OCCURS PRIOR TO THE EXPIRATION OF THE
40-DAY DISTRIBUTION COMPLIANCE PERIOD, THE INTEREST TRANSFERRED WILL BE HELD
IMMEDIATELY THEREAFTER THROUGH EUROCLEAR BANK S.A./N.A. OR CLEARSTREAM BANKING
SOCIÉTÉ ANONYME.
[Certificated
Securities Legend]
IN
CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
COLUMBUS
SOUTHERN POWER COMPANY
5.50%
Senior Notes,
Series
[A/C] due
2013
CUSIP:
[199575 AP 6/144A][199575 AS 0/Reg
S]
Original
Issue Date: February 14, 2003
Stated
Maturity: March 1, 2013 Interest
Rate: 5.50%
Principal
Amount: $250,000,000
(or such other amount as is indicated on Schedule A)
Redeemable: Yes X No
In
Whole:
Yes X No
In
Part:
Yes X No
COLUMBUS
SOUTHERN POWER COMPANY, a corporation duly organized and existing under the
laws
of the State of Ohio (herein referred to as the “Company”, which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to [________] or registered assigns,
the
principal sum of _____ DOLLARS ($_____) [or such other amount as is indicated
on
Schedule A hereto] on the Stated Maturity specified above (or upon earlier
redemption); 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 March 1 and September 1 in each
year,
commencing on September 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
February 15 or August 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, except that, if such Business Day is
in the
next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, with the same force and effect as if made on such
date.
The principal of (and premium, if any) and the interest on this Note shall
be
payable at the office or agency of the Company maintained for that purpose
in
the Borough of Manhattan, the City of New York, New York, in any coin or
currency of the United States of America which at the time of payment is
legal
tender for payment of public and private debts; provided, however, that payment
of interest (other than interest payable on 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 (defined below), all
issued or to be issued in one or more series under and pursuant to an Indenture
dated as of February 1, 2003 duly executed and delivered between the Company
and
Bank One, N. A., a corporation organized and existing under the laws of the
United States, as Trustee (herein referred to as the “Trustee”) (such Indenture,
as originally executed and delivered and as thereafter supplemented and amended
being hereinafter referred to as the "Indenture"), to which Indenture and
all
indentures supplemental thereto 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 as
5.50%
Senior Notes, Series [A/C] due 2013 initially issued in the aggregate principal
amount of $250,000,000.
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 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
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.
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. This Note will not have a sinking fund.
As
described in the supplemental indenture relating to the Notes, so long as
this
Note is outstanding, the Company is subject to a limitation on issuance of
Secured Debt as described 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 or 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 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 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 released 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 except that a Note
issued to an Institutional Accredited Investor will be in denominations of
at
$250,000. 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:
______________________________________
Attest:
By:
____________________________
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN
COM-
|
as
tenants in common
|
UNIF
GIFT MIN ACT-_______
|
Custodian
________
(Cust)
(Minor)
|
TEN
ENT-
|
as
tenants by the entireties
|
under
Uniform Gifts to
Minors
Act
_________________________
(State)
|
JT
TEN-
|
As
joint tenants with right of survivorship and not as tenants in
common
|
|
|
|
Additional
abbreviations may also be used
though
not on the above list.
FOR
VALUE
RECEIVED, the undersigned hereby sell(s) and transfer(s) unto
___________________ (please insert Social Security or other identifying number
of assignee)
_________________________________________________________________________________________________________________________
PLEASE
PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
the
within Note and all rights thereunder, hereby irrevocably constituting and
appointing
_________________________________________________________________________________________________________________________
agent
to
transfer said Note on the books of the Company, 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 instrument in every particular without
alteration or enlargement, or any change whatever.
|
|
|
In
connection with any transfer of any of the Series A Notes evidenced by this
certificate, the undersigned confirms that such Series A Notes are
being:
CHECK
ONE
BOX BELOW
(1)
|
|
exchanged
for the undersigned’s own account without transfer; or
|
(2)
|
|
transferred
to a person whom the undersigned reasonably believes to be a “qualified
institutional buyer” as defined in Rule 144A under the Securities Act of
1933 who is purchasing such Series A Notes for such buyer’s own account or
the account of a “qualified institutional buyer” in a transaction meeting
the requirements of Rule 144A under the Securities Act of 1933
and any
applicable securities laws of any state of the United States or
any other
jurisdiction; or
|
(3)
|
|
exchanged
or transferred pursuant to and in compliance with Rule 903 or 904
of
Regulation S under the Securities Act of 1933; or
|
(4)
|
|
exchanged
or transferred to an institutional “accredited investor” within the
meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the
Securities Act pursuant to Rule 144A (and based upon an opinion
of counsel
if the Company or the Trustee so requests) and, to the knowledge
of the
transferor of the Series A Notes, such institutional accredited
investor to whom such Note is to be transferred is not an “affiliate” (as
defined in Rule 144 under the Securities Act) of the Company;
or
|
(5)
|
|
transferred
pursuant to another available exemption from the registration requirements
of the Securities Act of 1933.
|
Unless
one of the boxes is checked, the Trustee will refuse to register any of the
Series A Notes evidenced by this certificate in the name of any person other
than the registered Holder thereof; provided,
however,
that if
box (3), (4) or (5) is checked, the Company may require, prior to registering
any such transfer of the Series A Notes, such legal opinions,
certifications and other information as the Company has reasonably requested
to
confirm that such transfer is being made pursuant to an exemption from, or
in a
transaction not subject to, the registration requirements of the Securities
Act
of 1933, such as the exemption provided by Rule 144 under such Act; provided,
further,
that if
box (2) is checked, the transferee must also certify that it is a qualified
institutional buyer as defined in Rule 144A.
________________________________________
Signature
_______________________________________
TO
BE
COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The
undersigned represents and warrants that it is purchasing this Series A Note
for
its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a “qualified institutional buyer”
within the meaning of Rule 144A under the Securities Act of 1933, and is
aware
that the sale to it is being made in reliance on Rule 144A and acknowledges
that
it has received such information regarding the Company as the undersigned
has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned’s foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Date:
_________________
______________________
NOTICE:
To be executed by an executive officer.
SCHEDULE
A
The
initial aggregate principal amount of Series A Notes evidenced by the
Certificate to which this Schedule is attached is $___________. The notations
on
the following table evidence decreases and increases in the aggregate principal
amount of Series A Notes evidenced by such Certificate.
Decrease
in Principal Amount of Series A Notes
|
|
Increase
in Principal Amount of Series A Notes
|
|
Principal
Amount of Series A Notes Remaining After Such Decrease or
Increase
|
|
Notation
by
Security
Registrar
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EXHIBIT
B
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Notes referred to in the within-mentioned Indenture.
BANK
ONE, N.
A.,
as
Trustee
By:_______________________________
Authorized
Signatory
EXHIBIT
C
FORM
OF
TRANSFER CERTIFICATE
In
connection with any transfer of any of the Series A Notes evidenced by this
certificate, the undersigned confirms that such Series A Notes are
being:
CHECK
ONE
BOX BELOW
(1)
|
|
exchanged
for the undersigned’s own account without transfer; or
|
(2)
|
|
transferred
to a person whom the undersigned reasonably believes to be a “qualified
institutional buyer” as defined in Rule 144A under the Securities Act of
1933 who is purchasing such Series A Notes for such buyer’s own
account or the account of a “qualified institutional buyer” in a
transaction meeting the requirements of Rule 144A under the Securities
Act
of 1933 and any applicable securities laws of any state of the
United
States or any other jurisdiction; or
|
(3)
|
|
exchanged
or transferred pursuant to and in compliance with Rule 903 or 904
of
Regulation S under the Securities Act of 1933; or
|
(4)
|
|
exchanged
or transferred to an institutional “accredited investor” within the
meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the
Securities Act pursuant to Rule 144A (and based upon an opinion
of counsel
if the Company or the Trustee so requests) and, to the knowledge
of the
transferor of the Series A Notes, such institutional accredited
investor to whom such Note is to be transferred is not an “affiliate” (as
defined in Rule 144 under the Securities Act) of the Company;
or
|
(5)
|
|
transferred
pursuant to another available exemption from the registration requirements
of the Securities Act of 1933.
|
Unless
one of the boxes is checked, the Trustee will refuse to register any of the
Series A Notes evidenced by this certificate in the name of any person
other than the registered Holder thereof; provided,
however,
that if
box (3) or (4) is checked, the Company may require, prior to registering
any
such transfer of the Series A Notes, such legal opinions, certifications
and other information as the Company has reasonably requested to confirm
that
such transfer is being made pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act of 1933,
such as the exemption provided by Rule 144 under such Act; provided,
further,
that if
box (2) is checked, the transferee must also certify that it is a qualified
institutional buyer as defined in Rule 144A.
______________________________________
Signature
TO
BE
COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The
undersigned represents and warrants that it is purchasing this Series A Note
for
its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a “qualified institutional buyer”
within the meaning of Rule 144A under the Securities Act of 1933, and is
aware
that the sale to it is being made in reliance on Rule 144A and acknowledges
that
it has received such information regarding the Company as the undersigned
has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned’s foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Date:
_______________
____________________
NOTICE:
To be executed by an executive officer.
EXHIBIT
D
FORM
OF
LETTER TO BE DELIVERED BY
INSTITUTIONAL
ACCREDITED INVESTORS
Ladies
and Gentlemen:
In
connection with our proposed purchase of the 5.50% Senior Notes, Series A
due
2013 (the Notes) issued by Columbus Southern Power Company, an Ohio corporation
(Issuer), we confirm that:
|
1.
|
We
are purchasing the Notes for our own account, or for one or more
investor
accounts for which we are acting as a fiduciary or agent, in each
case for
investment, and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act, subject
to any
requirement of law that the disposition of our property or the
property of
such investor account or accounts be at all times within our or
their
control and subject to our or their ability to resell the Notes
pursuant
to Rule 144A, Regulation S or any exemption from registration available
under the Securities Act.
|
|
2.
|
We
are an institutional “accredited investor” within the meaning of Rule
50l(a)(l), (2), (3) or (7) under the Securities Act who is purchasing
Notes with a principal amount of at least $250,000 and, if the
Notes are
to be purchased for one or more accounts (the “investor accounts”) for
which we are acting as fiduciary or agent, each such account is
an
institutional accredited investor who is purchasing Notes with
a principal
amount of at least $250,000. In the normal course of business or
our
investing activities, we invest in or purchase securities similar
to the
Notes and we have such knowledge and experience in financial business
matters that we are capable of evaluating the merits and risks
of
purchasing the Notes. We are aware that we (or any investor account)
may
be required to bear the economic risk of an investment in the Notes
for an
indefinite period of time and we (or such investor account) are
able to
bear such risk for an indefinite period.
|
|
3.
|
We
acknowledge that none of the Issuer, the initial purchasers or
any persons
representing any of them has made any representation to us with
respect to
any such entity or the offering or sale of any Notes, other than
the
information contained in the Issuer’s offering memorandum dated February
11, 2003, related to the Notes, which offering memorandum has been
delivered to it and upon which it is relying in making its investment
decision with respect to the Notes. Accordingly, we acknowledge
that no
representation or warranty is made by the initial purchasers as
to the
accuracy or completeness of such materials. We have had access
to such
financial and other information concerning the Issuer and the Notes
as we
have deemed necessary in connection with our decision to purchase
any of
the Notes including an opportunity to ask questions of, and request
information from, the Issuer and the initial purchasers.
|
|
4.
|
We
understand and agree that the offer and sale of the Notes have
not been
registered under the Securities Act and that such Notes are being
offered
only in a transaction not involving any public offering within
the meaning
of the Securities Act, and that (A) if we decide to resell, pledge
or
otherwise transfer such Notes on which a legend setting forth these
restrictions appears, such Notes may be resold, pledged or otherwise
transferred only (i) to the Issuer, (ii) in a transaction entitled
to an
exemption from registration provided by Rule 144 under the Securities
Act,
(iii) so long as such Notes are eligible for resale pursuant to
Rule 144A,
to a person whom we reasonably believe is a qualified institutional
buyer
that purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge
or
other transfer is being made in reliance on Rule 144A, (iv) outside
the
United States in a transaction meeting the requirements of Regulation
S,
(v) in accordance with another exemption from the registration
requirements of the Securities Act (and based upon an opinion of
counsel
acceptable to the Issuer), in each case in accordance with any
applicable
securities laws of any state of the United States or (vi) pursuant
to a
registration statement which has been declared effective under
the
Securities Act and (B) we will, and each subsequent holder is required
to,
notify any purchaser of Notes from us or it of the resale restrictions
referred to in (A) above, if then applicable. We acknowledge that
the
foregoing restrictions apply to holders of beneficial interest
in the
Notes, as well as to holders of the Notes.
|
|
5.
|
We
understand that, on any proposed resale of any Notes, we will be
required
to furnish to the trustee and the Issuer such certifications, legal
opinions and other information as the trustee and the Issuer may
reasonably require to confirm that the proposed sale complies with
the
foregoing restrictions. We further understand that the Notes purchased
by
us will bear a legend to the foregoing effect.
|
|
6.
|
We
acknowledge that the Issuer, the trustee, the initial purchasers
and
others will rely upon the truth and accuracy of the foregoing
acknowledgements, representations and agreements and agree that
if any of
the foregoing acknowledgements, representations or agreements are
no
longer accurate, we shall promptly notify the Issuer, the trustee
and the
initial purchasers. If we are acquiring the Notes as a fiduciary
or agent
for one or more investor accounts, we represent that we have sole
investment discretion with respect to each such account and we
have full
power to make the foregoing acknowledgements, representations and
agreements on behalf of each account and that each such investor
account
is eligible to purchase the Notes.
|
|
7.
|
The
Issuer, the trustee and the initial purchasers are entitled to
rely upon
this letter and are irrevocably authorized to produce this letter
or a
copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered
hereby.
|
Very
truly yours,
By:
Name:
Title: