EXHIBIT 4(c)
================================================================================
COLUMBUS SOUTHERN POWER COMPANY
TO
DEUTSCHE BANK TRUST COMPANY AMERICAS
AS TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
DATED NOVEMBER 25, 2003
$150,000,000
4.40% SENIOR NOTES, SERIES E, DUE 2010
================================================================================
THIS FIRST SUPPLEMENTAL INDENTURE is made the 25th day of November,
2003, between COLUMBUS SOUTHERN POWER COMPANY, a corporation duly organized and
existing under the laws of the state of Ohio (herein called the "Company"),
having its principal office at 0 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000 and
Deutsche Bank Trust Company Americas (formerly Bankers Trust Company), a
national banking association, duly organized and existing under the laws of the
United States, having its principal corporate trust office at 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx 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 September 1, 1997 (the "Original Indenture"), with the Trustee; and
WHEREAS, the Original Indenture is incorporated herein by this
reference and the Original Indenture, as supplemented by this First Supplemental
Indenture, is herein called the "Indenture"; and
WHEREAS, under the Original Indenture, a new series of unsecured notes
(the "Senior Notes") may at any time be established by the Board of Directors of
the Company in accordance with the provisions of the Original Indenture and the
terms of such series may be described by a supplemental indenture executed by
the Company and the Trustee; and
WHEREAS, the Company proposes to create under the Indenture a series of
Senior Notes to be designated the "4.40% Senior Notes, Series E, due 2010" (the
"Series E Notes"), the form and substance of the Series E Notes and the terms,
provisions and conditions thereof to be set forth as provided in the Original
Indenture and this First Supplemental Indenture; and
WHEREAS, additional Senior Notes of other Series hereafter established,
except as may be limited in the Original Indenture as at the time supplemented
and modified, may be issued from time to time pursuant to the Original Indenture
as at the time supplemented and modified; and
WHEREAS, all conditions necessary to authorize the execution and
delivery of this First Supplemental Indenture and to make it a valid and binding
obligation of the Company have been done or performed;
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
Additional Definitions
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.
"Company" means Columbus Southern Power Company, an Ohio corporation
and also includes the Columbus Southern Power Company's successors and permitted
assigns.
"Closing Date" shall mean November 25, 2003, the initial date of
delivery of the Series E Notes from the Company to the Underwriters.
"Legal Separation" shall mean the transfer of the Company's
Transmission and Distribution Business to Columbus Southern Wires.
"Columbus Southern Wires" shall mean Columbus Southern Wires LLC, a
to-be-formed Ohio company and the affiliate company to which the Company may
transfer its Transmission and Distribution Business.
"Columbus Southern Wires Exchange Offer" shall mean the offer by
Columbus Southern Wires, upon Legal Separation, to the holders of Series E Notes
to exchange all of the Series E Notes held by each such holder for a like amount
of Columbus Southern Wires Notes.
"Columbus Southern Wires Notes" shall mean notes of Columbus Southern
Wires which are identical in all material respects to the Series E Notes and are
registered under the Securities Act.
"Columbus Southern Wires Registration" shall mean a registration under
the Securities Act effected pursuant to Section 2.08 hereof..
"Columbus Southern Wires Registration Statement" shall mean an exchange
offer registration statement on Form S-4 (or, if applicable, on another
appropriate form) of Columbus Southern Wires as provided in the section entitled
`Legal Separation' hereof and all amendments and supplements to such
registration statement, in each case including the Prospectus contained therein,
all exhibits thereto and all documents incorporated by reference therein.
"Transmission and Distribution Business" means the electricity
transmission and distribution assets of the Company.
ARTICLE II
Series E Notes
SECTION 2.01. Establishment
The Series E Notes shall be designated as the Company's "4.40%
Senior Notes, Series E, due 2010".
SECTION 2.02. Aggregate Principal Amount
The Trustee shall authenticate and deliver Series E Notes for
original issue on the Original Issue Date in the aggregate principal amount of
$150,000,000 upon a Company Order for authentication and delivery thereof and
satisfaction of Section 2.01 of the Original Indenture. The aggregate principal
amount of the Series E Notes shall be initially limited to $150,000,000 and
shall not be subject to Periodic Offerings pursuant to Article Two of the
Original Indenture. All Series E Notes need not be issued at the same time and
such series may be reopened at any time, without the consent of any Holder, for
issuances of additional Series E Notes. Any such additional Series E Notes will
have the same interest rate, maturity and other terms as those initially issued.
The Series E Notes shall be issued in definitive fully registered form.
SECTION 2.03. Maturity and Interest
(i) The Series E Notes shall mature on, and the date on which the principal of
the Series E Notes shall be payable (unless earlier redeemed) shall be
December 1, 2010;
(ii) The interest rate at which the Series E Notes shall bear interest shall be
4.40% per annum; provided, however, that a special interest premium shall
accrue on the Series E Notes under certain circumstances as provided in
clause (iii) below; interest shall accrue from the date of authentication
of the Series E Notes; the Interest Payment Dates on which such interest
will be payable shall be June 1 and December 1, and the Regular Record Date
for the determination of holders to whom interest is payable on any such
Interest Payment Date shall be the May 15 or November 15 preceding the
relevant Interest Payment Date; provided that the first Interest Payment
Date shall be June 1, 2004 and interest payable on the Stated Maturity or
any redemption date shall be paid to the Person to whom principal shall be
paid; each payment of interest shall include interest accrued through the
day before the Interest Payment Date;
(iii)Special interest premium shall accrue on the Series E Notes over and above
the interest rate set forth herein in accordance with Section 2.08 hereof.
SECTION 2.04. Optional Redemption
The Series E Notes shall be redeemable at the option of the
Company, in whole or in part at any time, upon not less than thirty but not more
than sixty days' prior notice given by mail to the registered owners of the
Series E Notes at a redemption price equal to the greater of (i) 100% of the
principal amount of the Series E Notes being redeemed and (ii) the sum of the
present values of the remaining scheduled payments of principal and interest on
the Series E Notes being redeemed (excluding the portion of any such interest
accrued to the date of redemption) discounted (for purposes of determining
present value) to the redemption date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate (as defined below)
plus 20 basis points, plus, in each case, accrued interest thereon to the date
of redemption.
"Treasury Rate" means, with respect to any redemption
date, the rate per annum equal to the semi-annual equivalent
yield to maturity of the Comparable Treasury Issue, assuming a
price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States
Treasury security selected by an Independent Investment Banker
as having a maturity comparable to the remaining term of the
Series E Notes that would be utilized, at the time of
selection and in accordance with customary financial practice,
in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of the Series E
Notes.
"Comparable Treasury Price" means, with respect to
any redemption date, (i) the average of the bid and asked
prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) on the third
Business Day preceding such redemption date, as set forth in
the daily statistical release (or any successor release)
published by the Federal Reserve Bank of New York and
designated "Composite 3:30 p.m. Quotations for U. S.
Government Securities" or (ii) if such release (or any
successor release) is not published or does not contain such
prices on such third Business Day, the Reference Treasury
Dealer Quotation for such redemption date.
"Independent Investment Banker" means one of the
Reference Treasury Dealers appointed by the Company and
reasonably acceptable to the Trustee.
"Reference Treasury Dealer" means a primary U.S.
government securities dealer selected by the Company and
reasonably acceptable to the Trustee.
"Reference Treasury Dealer Quotation" means, with
respect to the Reference Treasury Dealer and any redemption
date, the average, as determined by the Trustee, of the bid
and asked prices for the Comparable Treasury Issue (expressed
in each case as a percentage of its principal amount) quoted
in writing to the Trustee by such Reference Treasury Dealer at
or before 5:00 p.m., New York City time, on the third Business
Day preceding such redemption date.
SECTION 2.05. Limitation on Secured Debt
So long as any of the Series E Notes are outstanding, the
Company will not create or suffer to be created or to exist any additional
mortgage, pledge, security interest, or other lien (collectively "Liens") on any
utility properties or tangible assets now owned or hereafter acquired to secure
any indebtedness for borrowed money ("Secured Debt"), without providing that
such Series E Notes will be similarly secured. Further, this restriction on
Secured Debt does not apply to the Company's existing first mortgage bonds that
have previously been issued under its mortgage indenture or any indenture
supplemental thereto; provided that this restriction will apply to future
issuances thereunder (other than issuances of refunding first mortgage bonds).
In addition, this restriction does not prevent the creation or existence of:
(i) Liens on property existing at the time of acquisition or construction of
such property (or created within one year after completion of such
acquisition or construction), whether by purchase, merger, construction or
otherwise, or to secure the payment of all or any part of the purchase
price or construction cost thereof, including the extension of any Liens to
repairs, renewals, replacements, substitutions, betterments, additions,
extensions and improvements then or thereafter made on the property subject
thereto;
(ii) Financing of the Company's accounts receivable for electric service;
(iii)Any extensions, renewals or replacements (or successive extensions,
renewals or replacements), in whole or in part, of Liens permitted by the
foregoing clauses; and
(iv) The pledge of any bonds or other securities at any time issued under any of
the Secured Debt permitted by the above clauses.
In addition to the permitted issuances above, Secured Debt not
otherwise so permitted may be issued in an amount that does not exceed 15% of
Net Tangible Assets as defined below.
"Net Tangible Assets" means the total of all assets (including
revaluations thereof as a result of commercial appraisals, price level
restatement or otherwise) appearing on the Company's balance sheet, net of
applicable reserves and deductions, but excluding goodwill, trade names,
trademarks, patents, unamortized debt discount and all other like intangible
assets (which term shall not be construed to include such revaluations), less
the aggregate of the Company's current liabilities appearing on such balance
sheet.
This restriction also will not apply to or prevent the
creation or existence of leases (operating or capital) made, or existing on
property acquired, in the ordinary course of business.
SECTION 2.06. Global Securities and Certificated Securities
The Series E Notes shall be issued in the form of a Global
Note in definitive, fully registered form. The Depositary for the Global Note
shall be The Depository Trust Company. The procedures with respect to transfer
and exchange of Global Notes shall be as set forth in the form of Note attached
hereto.
SECTION 2.07. Form of Securities
The Global Note shall be substantially in the form attached as
Exhibit A hereto.
SECTION 2.08. Exchange of Senior Notes upon Legal Separation
If Legal Separation occurs, Columbus Southern Wires will be
obligated to file the Columbus Southern Wires Registration Statement and to
effect the Columbus Southern Wires Exchange Offer, offering each holder of the
Series E Notes the election to (i) retain its Series E Notes or (ii) exchange
its Series E Notes for Columbus Southern Wires Notes.
If a holder of a Series E Note fails to elect to retain such
note, unless otherwise required by law, such Holder will be deemed to have
exercised his option to exchange such note for a Columbus Southern Wires Note.
In the case of a Columbus Southern Wires Exchange Offer as set
forth above, Columbus Southern Wires will be subject, notwithstanding any other
provision hereof, with respect to timing, to the requirement that it consummate
the Columbus Southern Wires Exchange Offer within 150 days from the date of
Legal Separation. If Columbus Southern Wires fails to consummate the Columbus
Southern Wires Exchange Offer within such 150 days, special interest premium
will accrue on the Senior Notes at the rate of 0.50% per annum until the
Columbus Southern Wires Exchange Offer is consummated.
The transfer of all or substantially all of the Company's
Transmission and Distribution Business shall not constitute a Default or an
Event of Default with respect to the Series E Notes nor, for purposes of the
Series E Notes, shall it be deemed a sale or transfer of all or substantially
all of the Company's assets for purposes of the Indenture. Additionally, such
transfer shall not alter the terms of the Series E Notes, and the Series E Notes
shall continue to be governed by the Indenture.
SECTION 2.09. Consolidation, Merger or Sale
Subject to Sections 2.08 and 3.04, the Company, or the
successor to the Series E Notes, as the case may be, may merge or consolidate
with any corporation or sell substantially all of its assets as an entirety as
long as the successor or purchaser expressly assumes the payment of principal,
and premium, if any, and interest on the Series E Notes or the Columbus Southern
Wires Notes, as the case may be.
ARTICLE III
Miscellaneous Provisions
SECTION 3.01. Recitals by Company
The recitals in this First Supplemental Indenture are made by
the Company only and not by the Trustee, and all of the provisions contained in
the Original Indenture in respect of the rights, privileges, immunities, powers
and duties of the Trustee shall be applicable in respect of Series E Notes and
of this First Supplemental Indenture as fully and with like effect as if set
forth herein in full.
SECTION 3.02. Ratification and Incorporation of Original
Indenture
As supplemented hereby, the Original Indenture is in all
respects ratified and confirmed, and the Original Indenture and this First
Supplemental Indenture shall be read, taken and construed as one and the same
instrument.
SECTION 3.03. Executed in Counterparts
This First Supplemental Indenture may be simultaneously
executed in several counterparts, each of which shall be deemed to be an
original, and such counterparts shall together constitute but one and the same
instrument.
SECTION 3.04. Applicability of Section 4.05 and Article Ten
of Original Indenture
(a) As long as the Series E Notes are outstanding, Section 4.05 and Article
Ten of the Original Indenture shall be applicable thereto; provided,
however, that the transfer of all or substantially all of the Company's
Transmission and Distribution Business (whether or not the Transmission
and Distribution Business constitutes "substantially all" of the
Company's total assets) to Columbus Southern Wires shall not be subject
to Section 4.05 and Article Ten of the Original Indenture. Furthermore,
any transfer of any portion of the Company's assets will not be subject
to Section 4.05 or Article Ten of the Original Indenture if the Company
retains all or substantially all of its Transmission and Distribution
Business.
(b) To the extent the Transmission and Distribution Business is transferred
to Columbus Southern Wires, holders of Series E Notes shall be given
the option to either (i) retain their Series E Notes or (ii) exchange
their Series E Notes for Columbus Southern Wires Notes pursuant to the
Columbus Southern Wires Exchange Offer. If any holder fails to elect to
retain its Series E Notes, unless otherwise required by law, such
holder will be deemed to have exercised its option to exchange its
Series E Notes for Columbus Southern Wires Notes.
IN WITNESS WHEREOF, each party hereto has caused this instrument to be
signed in its name and behalf by its duly authorized signatories, all as of the
day and year first above written.
COLUMBUS SOUTHERN POWER COMPANY
By /s/ X. X. Xxxx
Vice President
Attest:
By /s/ Xxxxxx X. Xxxxxxxxxx
Assistant Secretary
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
By /s/ Xxxxx Xxxxxxx
Vice President
Attest:
By /s/ Xxxxx Xxxxxxx
Authorized Signer
