EXHIBIT 4(E)
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AEP TEXAS CENTRAL COMPANY
TO
BANK ONE, N.A.
AS TRUSTEE
FOURTH SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 1, 2003
$100,000,000
FLOATING RATE NOTES, SERIES A DUE 2005
FLOATING RATE NOTES, SERIES B DUE 2005
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TABLE OF CONTENTS*
PAGE
ARTICLE I Additional Definitions...............................................2
SECTION 1.01. Definitions...........................................2
ARTICLE II Floating Rate 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. The Floating Rate Notes will not
be subject to optional redemption.....................7
SECTION 2.05. Limitation on Secured Debt............................7
SECTION 2.06. Global Securities and Certificated Securities.........8
SECTION 2.07. Form of Securities....................................8
SECTION 2.08. Transfer and Exchange.................................8
ARTICLE III Miscellaneous Provisions...........................................8
SECTION 3.01. Recitals by Company...................................8
SECTION 3.02. Ratification and Incorporation of Original Indenture..8
SECTION 3.03. Executed in Counterparts..............................8
SECTION 3.04. Legends...............................................8
SECTION 3.05. Applicability of Section 4.05 and Article Ten of
Original Indenture....................................8
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* 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.
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THIS FOURTH SUPPLEMENTAL INDENTURE is made as of the 1st day of February,
2003, between AEP TEXAS CENTRAL COMPANY, a corporation duly organized and
existing under the laws of the state of Texas (herein called the "Company"),
having its principal office at 0 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000 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 0000
Xxxxxxx Xxxxxxx, Xxxxxxxx, Xxxx 00000, 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 Fourth Supplemental
Indenture and by a First Supplemental Indenture (the "First Supplemental
Indenture"), a Second Supplemental Indenture (the "Second Supplemental
Indenture") and a Third Supplemental Indenture (the "Third Supplemental
Indenture"), all dated as of the date hereof, 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 "Floating Rate Notes, Series A due 2005" (the
"Floating Rate Series A Notes") and a series of Senior Notes to be designated
the "Floating Rate Notes, Series B due 2005" (the "Floating Rate Series B Notes"
and, together with the Floating Rate Series A Notes, the "Floating Rate Notes"),
the form and substance of the Floating Rate Notes and the terms, provisions and
conditions thereof to be set forth as provided in the Original Indenture and
this Fourth Supplemental Indenture;
WHEREAS, concurrently with the issuance of the Floating Rate Series A
Notes, 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 D due 2013" (the "Series D Notes" and, together with the Series A Notes,
the "2013 Notes"); a series of Senior Notes to be designated "6.65% Senior
Notes, Series B due 2033" (the "Series B Notes") and a series of Senior Notes to
be designated the "6.65% Senior Notes, Series E due 2033" (the "Series E Notes"
and, together with the Series B Notes, the "2033 Notes"); a series of Senior
Notes to be designated "3.00% Senior Notes, Series C due 2005" (the "Series C
Notes") and a series of Senior Notes to be designated the "3.00% Senior Notes,
Series F due 2005" (the "Series F Notes" and, together with the Series C Notes,
the "2005 Notes" and, the 2005 Notes, together with the 2013 Notes and the 2033
Notes, the "Additional Notes"), the form and substance of the Additional Notes
and the terms, provisions and conditions thereof to be set forth as provided in
the Original Indenture and the First Supplemental Indenture, the Second
Supplemental Indenture and the Third 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 Fourth 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, societe anonyme, or any
successor securities clearing agency.
"Distribution Compliance Period," with respect to the Floating Rate
Notes, means the period of 40 consecutive days beginning on and including the
later of (i) the day on which such Floating Rate 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.
"Generation-Related" has the meaning set forth in Section 3.05(a).
"Global Securities" means global certificates representing the Floating
Rate Notes as described in Section 204.
"Holder" means a registered holder of a Floating Rate Note.
"Institutional Accredited Investor" has the meaning set forth in Section
2.04(a) hereof.
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"Original Issue Date" means February 18, 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 2005 Notes, and the Floating Rate
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 Floating Rate 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 February 15, 2005.
"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
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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.
ARTICLE II
FLOATING RATE NOTES
SECTION 2.01. ESTABLISHMENT.
The Floating Rate Series A Notes shall be designated as the
Company's "Floating Rate Notes, Series A due 2005" and the Floating Rate Series
B Notes shall be designated as the Company's "Floating Rate Notes, Series B due
2005". The Floating Rate Series A Notes and the Floating Rate Series B 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) Floating Rate
Series A Notes for original issue on the Original Issue Date in the aggregate
principal amount of $100,000,000 and (ii) Floating Rate Series B Notes from time
to time thereafter for issue only in exchange for Floating Rate 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 Floating Rate
Notes shall be initially limited to $100,000,000 and shall be subject to
Periodic Offerings pursuant to Article Two of the Original Indenture. All
Floating Rate 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 Floating Rate Notes. Any such additional Floating Rate Notes will
have the same interest rate, maturity and other terms as those initially issued.
The Floating Rate Series A Notes shall be issued in definitive fully registered
form.
SECTION 2.03. MATURITY AND INTEREST.
(i) The Floating Rate Notes shall mature on, and the
date on which the principal of the Floating Rate Notes shall be
payable (unless earlier redeemed) shall be, February 15, 2005;
(ii) the interest on the Notes shall be payable on
February 15, May 15, August 15 and November 15 of each year (each,
an "Interest Payment Date"), commencing on May 15, 2003 and shall
accrue from and including the date of authentication of the Notes
to, but excluding May 15, 2003, and thereafter, from and including
each Interest Payment Date to, but excluding, the next succeeding
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Interest Payment Date or Stated Maturity, as the case may be; the
Regular Record Date for the determination of holders to whom
interest is payable on any such Interest Payment Date shall be the
fifteenth calendar day preceding the relevant Interest Payment
Date; provided that interest payable on Stated Maturity shall be
paid to the Person to whom principal shall be paid;
(iii) the Floating Rate Notes will bear interest at a per
annum rate ("Interest Rate") determined by the Calculation Agent,
subject to the maximum interest rate permitted by New York or
other applicable state law, as such law may be modified by United
States law of general application. The Interest Rate for each
Interest Period will be equal to LIBOR on the Interest
Determination Date for such Interest Period plus 1.25%; provided,
however, that in certain circumstances described below, the
Interest Rate will be determined without reference to LIBOR.
Promptly upon such determination, the Calculation Agent will
notify the Trustee for the Floating Rate Notes, if the Trustee is
not then serving as the Calculation Agent, of the interest rate
for the new Interest Period. The interest rate determined by the
Calculation Agent, absent manifest error, shall be binding and
conclusive upon the beneficial owners and holders of the Floating
Rate Notes, the Company and the Trustee for the Floating Rate
Notes.
If the following circumstances exist on any Interest
Determination Date, the Calculation Agent shall determine the
Interest Rate for the Notes as follows:
(1) In the event no Reported Rate (as defined below)
appears on Telerate Page 3750 (as defined below) as of
approximately 11:00 a.m. London time on an Interest
Determination Date, the Calculation Agent shall request the
principal London offices of each of four major banks in the
London interbank market selected by the Calculation Agent
(after consultation with the Company) to provide a
quotation of the rate (the "Rate Quotation") at which three
month deposits in amounts of not less than $1,0000,000 are
offered by it to prime banks in the London interbank
market, as of approximately 11:00 a.m. on such Interest
Determination Date, that is representative of single
transactions at such time (the "Representative Amounts").
If at least two Rate Quotations are provided, the interest
rate will be the arithmetic mean of the Rate Quotations
obtained by the Calculation Agent, plus 1.25%.
(2) In the event no Reported Rate appears on Telerate
Page 3750 as of approximately 11:00 a.m. London time on an
Interest Determination Date and there are fewer than two
Rate Quotations, the interest rate will be the arithmetic
mean of the rates quoted at approximately 11:00 a.m. New
York City time on such Interest Determination Date, by
three major banks in New York City selected by the
Calculation Agent (after consultation with the Company),
for loans in Representative Amounts in U.S. dollars to
leading European banks, having an index maturity of three
months for a period commencing on the second London
Business Day immediately following such Interest
Determination Date, plus 1.25%; provided,
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however, that if fewer than three banks selected by the
Calculation Agent are quoting such rates, the interest rate
for the applicable Interest Period will be the same as the
interest rate in effect for the immediately preceding
Interest Period.
(3) "Business Day" means any day that is not a day on
which banking institutions in New York City are authorized
or required by law or regulation to close.
"Calculation Agent" means Bank One, N.A., or its successor
appointed by the Company, acting as calculation agent.
"Interest Determination Date" means the second London
Business Day immediately preceding the first day of the
relevant Interest Period.
"Interest Period" means the period commencing on an
interest payment date for the Floating Rate Notes (or
commencing on the Original Issue Date, if no interest has
been paid or duly made available for payment since that
date) and ending on the day before the next succeeding
interest payment date for the Floating Rate Notes.
"LIBOR" for any Interest Determination Date will be the
offered rate for deposits in U.S. dollars having an index
maturity of three months for a period commencing on the
second London Business Day immediately following the
Interest Determination Date in amounts of not less than
$1,000,000, as such rate appears on Telerate Page 3750 or a
successor reporter of such rates selected by the
Calculation Agent and acceptable to the Company, at
approximately 11:00 a.m. London time on the Interest
Determination Date (the "Reported Rate").
"London Business Day" means a day other than a Saturday or
Sunday that is not a day on which banking institutions in
London, England and New York, New York are authorized or
obligated by law or executive order to be closed and a day
on which dealings in deposits in U.S. dollars are
transacted, or with respect to any future date are expected
to be transacted, in the London interbank market.
"Telerate Page 3750" means the display designated on page
3750 on Dow Xxxxx Markets Limited (or such other page as
may replace the 3750 page on that service or such other
service as may be nominated by the British Bankers'
Association for the purpose of displaying London interbank
offered rates for U.S. dollar deposits).
(iv) Upon the request of a holder of the Floating Rate
Notes, the Calculation Agent will provide to such holder
the interest rate in effect on the date of such request
and, if determined, the interest rate for the next Interest
Period.
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(v) The accrued interest for any period is calculated by
multiplying the principal amount of a note by an accrued
interest factor. The accrued interest factor is computed by
adding the interest factor calculated for each day in the
period to the date for which accrued interest is being
calculated. The interest factor (expressed as a decimal
rounded upwards if necessary) is computed by dividing the
interest rate (expressed as a decimal rounded upwards if
necessary) applicable to such a date by 360.
(vi) All percentages resulting from any calculation of
the interest rate on Floating Rate Notes will be rounded,
if necessary, to the nearest one-hundred thousandth of a
percentage point, with five one-millionths of a percentage
point rounded upwards, and all dollar amounts used in or
resulting from such calculation will be rounded to the
nearest cent (with one-half cent being rounded upwards).
(vii) Special Interest Premium shall accrue 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.
SECTION 2.04. OPTIONAL REDEMPTION. The Floating Rate Notes will
not be subject to optional redemption.
SECTION 2.05. LIMITATION ON SECURED DEBT.
So long as any of the Floating Rate 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 suffer to be created or to exist any additional
mortgage, pledge, security interest, or other lien (collectively "Liens") on any
utility properties or tangible assets now owned or hereafter acquired by the
Company or its Subsidiaries to secure any indebtedness for borrowed money
("Secured Debt"), without providing that such Floating Rate 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:
o 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;
o Financing of the Company's accounts receivable for electric
service;
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o Any extensions, renewals or replacements (or successive
extensions, renewals or replacements), in whole or in part, of
Liens permitted by the foregoing clauses; and
o 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 Floating Rate 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"). Floating Rate
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. Floating Rate 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 Floating Rate 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 Floating Rate 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.
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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 2.05(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 Floating Rate 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. Floating Rate Series A Notes sold to
Institutional Accredited Investors shall be issued initially in the form
of a fully registered, certificated
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Floating Rate Series A Note ("Certificated Securities"). Except as
provided in this Section 2.05, 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 Floating Rate 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 Floating Rate 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
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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
11
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
2.07(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.
12
(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 Floating Rate 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 2.07, the Trustee shall receive a
certificate of transfer in the form attached as Exhibit C hereto.
Additionally, upon any transfer or exchange to an
13
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 Floating Rate
Series B Notes in exchange for Floating Rate Series A Notes accepted for
exchange in the Registered Exchange Offer, which Floating Rate Series B
Notes shall not bear the transfer restriction legend set forth in Exhibit
A hereto and shall not provide for Special Interest Premium and the
Security Registrar shall rescind any restriction on the transfer of such
Floating Rate Series B Notes, in each case unless the Holder of such
Floating Rate Series A Notes (A) is a broker-dealer tendering Floating
Rate 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 Floating Rate Series B 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 Floating Rate Series B
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.
14
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.01. RECITALS BY COMPANY.
The recitals in this Fourth 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 Floating Rate Notes and
of this Fourth 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 Fourth Supplemental
Indenture shall be read, taken and construed as one and the same instrument.
SECTION 3.03. EXECUTED IN COUNTERPARTS.
This Fourth 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.
As long as the Floating Rate Notes are outstanding, Section 4.05
and Article Ten of the Original Indenture shall be applicable thereto; provided,
however, that if the Company's generation-related assets ("Generation-Related
Business") are transferred or sold (whether or not the Generation-Related
Business constitutes "substantially all" of the Company's total assets), the
Floating Rate Notes will continue to be obligations of the Company.
15
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.
AEP TEXAS CENTRAL COMPANY
By_/s/ Xxxxx Tomasky_
Vice President
Attest:
By_/s/ X. X. Xxxxxxxxxx
Assistant Secretary
BANK ONE, N. A.,
as Trustee
By_/s/ Xxxxxxx X. Eubank__
Vice President
Attest:
By_/s/ Xxxxx X. Knox__
Trust Officer
EXHIBIT A
FORM OF SERIES [A/B] 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
Ex. A-1
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, SOCIETE ANONYME AND
Ex. A-2
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 SOCIETE 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.
Ex. A-3
AEP TEXAS CENTRAL COMPANY
Floating Rate Notes,
Series [A/B] due
2005
CUSIP:[0000XXXX0/144A][X00000XX0/Reg S] Original Issue Date: February 18, 2003
Stated Maturity: February 15, 2005
Principal Amount: $100,000,000 (or such other amount as is indicated on
Schedule A)
Redeemable: Yes No X
In Whole: Yes No X
In Part: Yes No X
AEP TEXAS CENTRAL COMPANY, a corporation duly organized and
existing under the laws of the State of Texas (herein referred to as the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
[________] or registered assigns, the principal sum of _____ DOLLARS ($_____)
[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, quarterly in arrears on
February 15, May 15, August 15 and November 15 in each year, commencing on May
15, 2003, at the per annum interest rate determined by the Calculation Agent on
each Interest Determination Date, as such terms are defined herein, until the
Principal Amount shall have been paid or duly provided for. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
the actual number of days for which interest is payable in the relevant Interest
Period, divided by 360.
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 fifteenth calendar day before each Interest Payment Date (the "Regular
Record Date"), provided that interest payable on the Stated Maturity 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 (other than at the Stated Maturity)
is not a Business Day, then such Interest Payment Date shall be the next
succeeding Business Day, except that if such Business Day is in the next
calendar month, such Interest Payment Date shall be the
------------
* Insert in the Rule 144A Global Security and the Regulation S
Global Security only.
Ex. A-4
immediately preceding Business Day. If the Stated Maturity of this Note falls on
day that is not a Business Day, the payment of principal and interest will be
made on the next succeeding Business Day, and no interest shall accrue on such
amounts for the period from and after such Stated Maturity. The principal of 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) 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 or by
wire transfer to the account designated by the person entitled thereto.
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 national banking
association organized and existing under the laws of the United States, as
Trustee (herein referred to as the "Trustee") (such Indenture, as originally
executed and delivered and as thereafter supplemented and amended being
hereinafter referred to as the "Indenture"), to which Indenture and all
indentures supplemental thereto 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
Floating Rate Notes, Series [A/B] due 2005 initially issued in the aggregate
principal amount of $100,000,000.
This Note may not be redeemed prior to its maturity.
This Note will bear interest at a per annum rate ("Interest Rate")
determined by the Calculation Agent, subject to the maximum interest rate
permitted by New York or other applicable state law, as such law may be modified
by United States law of general application. The Interest Rate for each Interest
Period will be equal to LIBOR on the Interest Determination Date for such
Interest Period plus 1.25%; provided, however, that in certain circumstances
described below, the Interest Rate will be determined without reference to
LIBOR. Promptly upon such determination, the Calculation Agent will notify the
Trustee for the Notes, if the Trustee is not then serving as the Calculation
Agent, of the Interest Rate for the new Interest Period. The Interest Rate
determined by the Calculation Agent, absent manifest error, shall be binding and
conclusive upon the beneficial owners and holders of this Note, the Company and
the Trustee for the Notes.
Interest on this Note will accrue from and including the Original
Issue Date specified above to, but excluding, May 15, 2003, and thereafter, from
and including each Interest Payment Date to, but excluding, the next succeeding
Interest Payment Date or Stated Maturity, as the case may be.
Ex. A-5
If the following circumstances exist on any Interest Determination
Date, the Calculation Agent shall determine the Interest Rate for the Notes as
follows:
(1) In the event no Reported Rate (as defined below) appears on
Telerate Page 3750 (as defined below) as of approximately 11:00 a.m. London time
on an Interest Determination Date, the Calculation Agent shall request the
principal London offices of each of four major banks in the London interbank
market selected by the Calculation Agent (after consultation with the Company)
to provide a quotation of the rate (the "Rate Quotation") at which three month
deposits in amounts of not less than $1,000,000 are offered by it to prime banks
in the London interbank market, as of approximately 11:00 a.m. on such Interest
Determination Date, that is representative of single transactions at such time
(the "Representative Amounts"). If at least two rate Quotations are provided,
the interest rate will be the arithmetic mean of the Rate Quotations obtained by
the Calculation Agent, plus 1.25%.
(2) In the event no Reported Rate appears on Telerate Page 3750
as of approximately 11:00 a.m. London time on an Interest Determination Date and
there are fewer than two Rate Quotations, the interest rate will be the
arithmetic mean of the rates quoted at approximately 11:00 a.m. New York City
time on such Interest Determination Date, by three major banks in New York City
selected by the Calculation Agent (after consultation with the Company), for
loans in Representative Amounts in U.S. dollars to leading European banks,
having an index maturity of three months for a period commencing on the second
London Business Day immediately following such Interest Determination Date, plus
1.25 %; provided, however, that if fewer than three banks selected by the
Calculation Agent are quoting such rates, the interest rate for the applicable
Interest Period will be the same as the interest rate in effect for the
immediately preceding Interest Period.
"Business Day" means, with respect to this Note, any day that is
not a day on which banking institutions in New York City are authorized or
required by law or regulation to close.
"Calculation Agent" means Bank One, N.A., or its successor
appointed by the Company, acting as calculation agent.
"Interest Determination Date" means the second London Business Day
immediately preceding the first day of the relevant Interest Period.
"Interest Period" means the period commencing on the Interest
Payment Date (or commencing on the Original Issue Date, if no interest has been
paid or duly made available for payment since that date) and ending on the day
before the next succeeding Interest Payment Date.
"LIBOR" for any Interest Determination Date will be the offered
rate for deposits in U.S. dollars having an index maturity of three months for a
period commencing on the second London Business Day immediately following the
Interest Determination Date in amounts of not less than $1,000,000, as such rate
appears on Telerate Page 3750 or a successor reporter of such rates selected by
the Calculation Agent and acceptable to the Company, at approximately 11:00 a.m.
London time on the Interest Determination Date (the "Reported Rate").
Ex. A-6
"London Business Day" means a day other than a Saturday or Sunday
that is not a day on which banking institutions in London, England and New York,
New York are authorized or obligated by law or executive order to be closed and
on a day on which dealings in deposits in U.S. dollars are transacted, or with
respect to any future date are expected to be transacted, in the London
interbank market.
"Telerate Page 3750" means the display designated on page 3750 on
Dow Xxxxx Markets Limited (or such other page as may replace the 3750 page on
that service or such other service as may be nominated by the British Bankers'
Association for the purpose of displaying London interbank offered rates for
U.S. dollar deposits).
Upon request, the Calculation Agent will provide the current
Interest Rate and, if determined, the Interest Rate which will become effective
for the next Interest Period.
The accrued interest for any period is calculated by multiplying
the Principal Amount by an accrued interest factor. The accrued interest factor
is computed by adding the interest factor calculated for each day in the period
to the date for which accrued interest is being calculated. The interest factor
(expressed as a decimal rounded upwards if necessary) is computed by dividing
the interest rate (expressed as a decimal rounded upwards if necessary)
applicable to such date by 360.
All percentages resulting from any calculation of the Interest
Rate will be rounded, if necessary, to the nearest one-hundred thousandth of a
percentage point, with five one-millionths of a percentage point rounded
upwards, and all dollar amounts used in or resulting from such calculation will
be rounded to the nearest cent (with one-half cent being rounded upwards).
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,
Ex. A-7
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.
Ex. A-8
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.
AEP TEXAS CENTRAL COMPANY
By: ______________________________________
Attest:
By: ____________________________
Ex. A-9
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 UNIF GIFT MIN ACT-_______ Custodian ________
common (Cust) (Minor)
TEN ENT- as tenants by the under Uniform Gifts to
entireties Minors Act
JT TEN- As joint tenants
with right of ________________________
survivorship and (State)
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.
Ex. A-10
In connection with any transfer of any of the Floating Rate Series A
Notes evidenced by this certificate, the undersigned confirms that such Floating
Rate 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 Floating
Rate 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 Floating
Rate 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 Floating Rate 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 Floating Rate 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
---------------------------------------
Ex. A-11
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Floating Rate 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.
Ex. A-12
SCHEDULE A
The initial aggregate principal amount of Floating Rate 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 Floating Rate Series A Notes evidenced by such
Certificate.
Principal Amount of
Decrease in Floating Rate Series A
Principal Amount Increase in Principal Notes Remaining After Notation by
of Floating Rate Amount of Floating Rate Such Decrease or Security
Series A Notes Series A Notes Increase Registrar
---------------- ----------------------- ---------------------- -----------
Ex. A-13
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
Ex. B-1
EXHIBIT C
FORM OF TRANSFER CERTIFICATE
In connection with any transfer of any of the Floating Rate Series A
Notes evidenced by this certificate, the undersigned confirms that such Floating
Rate 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 Floating
Rate 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 Floating
Rate 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 Floating Rate 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 Floating Rate 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
Ex. C-1
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Floating Rate 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.
Ex. C-2
EXHIBIT D
FORM OF LETTER TO BE DELIVERED BY
INSTITUTIONAL ACCREDITED INVESTORS
Ladies and Gentlemen:
In connection with our proposed purchase of the Floating Rate Notes,
Series A due 2005 (the Notes) issued by AEP Texas Central Company, a Texas
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 12, 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.
Ex. D-1
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.
Ex. D-2
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:
Ex. D-3
