APPALACHIAN POWER COMPANY Underwriting Agreement Dated ____________________
EXHIBIT
1(b)
APPALACHIAN
POWER COMPANY
Dated
____________________
AGREEMENT
made between APPALACHIAN POWER COMPANY, a corporation organized and existing
under the laws of the Commonwealth of Virginia (the "Company"), and the several
persons, firms and corporations (the "Underwriters") named in Exhibit 1
hereto.
WITNESSETH:
WHEREAS,
the Company proposes to issue and sell $__________ principal amount of its
[Unsecured Notes] to be issued pursuant to the Indenture dated as of January
1,
1998, between the Company and The Bank of New York, as trustee (the "Trustee"),
as heretofore supplemented and amended and as to be further supplemented and
amended (said Indenture as so supplemented being hereafter referred to as the
Indenture); and
WHEREAS,
the Underwriters have designated the person signing this Agreement (the
Representative) to execute this Agreement on behalf of the respective
Underwriters and to act for the respective Underwriters in the manner provided
in this Agreement; and
WHEREAS,
the Company has prepared and filed, in accordance with the provisions of the
Securities Act of 1933 (the Act), with the Securities and Exchange Commission
(the Commission), a registration statement and prospectus or prospectuses
relating to the [Unsecured Notes] and such registration statement has become
effective; and
WHEREAS,
such registration statement, as it may have been amended to the date hereof,
including the financial statements, the documents incorporated or deemed
incorporated therein by reference and the exhibits, being herein called the
Registration Statement, and the prospectus, as included or referred to in the
Registration Statement to become effective, as it may be last amended or
supplemented prior to the effectiveness of the agreement (the Basic Prospectus),
and the Basic Prospectus, as supplemented by a prospectus supplement which
includes certain information relating to the Underwriters, the principal amount,
price and terms of offering, the interest rate and redemption prices of the
[Unsecured Notes], first filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) of the Commission's General Rules and Regulations
under
the Act (the Rules), including all documents then incorporated or deemed to
have
been incorporated therein by reference, being herein call the
Prospectus.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, it is agreed between the parties as follows:
1. Purchase
and Sale: Upon the basis of the warranties and representations and on the terms
and subject to the conditions herein set forth, the Company agrees to sell
to
the respective Underwriters named in Exhibit 1 hereto, severally and not
jointly, and the respective Underwriters, severally and not jointly, agree
to
purchase from the Company, the respective principal amounts of the [Unsecured
Notes] set opposite their names in Exhibit 1 hereto, together aggregating all
of
the [Unsecured Notes], at a price equal to ______% of the principal amount
thereof.
2. Payment
and Delivery: Payment for the [Unsecured Notes] shall be made to the Company
or
its order by certified or bank check or checks, payable in New York Clearing
House funds, at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, or at such other place as the Company
and
the Representative shall mutually agree in writing, upon the delivery of the
[Unsecured Notes] to the Representative for the respective accounts of the
Underwriters against receipt therefor signed by the Representative on behalf
of
itself and for the other Underwriters. Such payments and delivery shall be
made
at 10:00 A.M., New York Time, on _______________ (or on such later business
day,
not more than five business days subsequent to such day, as may be mutually
agreed upon by the Company and the Underwriters), unless postponed in accordance
with the provisions of Section 7 hereof. The time at which payment and delivery
are to be made is herein called the Time of Purchase.
[The
delivery of the [Unsecured Notes] shall be made in fully registered form,
registered in the name of CEDE & CO., to the offices of The Depository Trust
Company in New York, New York and the Underwriters shall accept such
delivery.]
3. Conditions
of Underwriters' Obligations: The several obligations of the Underwriters
hereunder are subject to the accuracy of the warranties and representations
on
the part of the Company on the date hereof and at the Time of Purchase and
to
the following other conditions:
(a) That
all
legal proceedings to be taken and all legal opinions to be rendered in
connection with the issue and sale of the [Unsecured Notes] shall be
satisfactory in form and substance to Xxxxx Xxxxxxxxxx LLP, counsel to the
Underwriters.
(b) That,
at
the Time of Purchase, the Representative shall be furnished with the following
opinions, dated the day of the Time of Purchase, with conformed copies or signed
counterparts thereof for the other Underwriters, with such changes therein
as
may be agreed upon by the Company and the Representative with the approval
of
Xxxxx Xxxxxxxxxx LLP, counsel to the Underwriters:
(1) Opinion
of Xxxxxx X. Xxxxxxxxxx, Esq., Xxx X. Xxxx, Esq., Xxxxx X. House, Esq. or
Xxxxxxx X. Xxxxxxx, Esq., counsel to the Company, substantially in the forms
attached hereto as Exhibits A and B; and
(2) Opinion
of Xxxxx Xxxxxxxxxx LLP, counsel to the Underwriters, substantially in the
form
attached hereto as Exhibit C.
(c) That
the
Representative shall have received Representative, dated as of the day of the
Time of Purchase, (i) confirming that they are independent public accountants
within the meaning of the Act and the applicable published rules and regulations
of the Commission thereunder, (ii) stating that in their opinion the financial
statements audited by them and included or incorporated by reference in the
Registration Statement complied as to form in all material respects with the
then applicable accounting requirements of the Commission, including the
applicable published rules and regulations of the Commission and (iii) covering
as of a date not more than five business days prior to the day of the Time
of
Purchase such other matters as the Representative reasonably
requests.
(d) That
no
amendment to the Registration Statement and that no prospectus or prospectus
supplement of the Company relating to the [Unsecured Notes] and no document
which would be deemed incorporated in the Prospectus by reference filed
subsequent to the date hereof and prior to the Time of Purchase shall contain
material information substantially different from that contained in the
Registration Statement which is unsatisfactory in substance to the
Representative or unsatisfactory in form to Xxxxx Xxxxxxxxxx LLP, counsel to
the
Underwriters.
(e) That,
at
the Time of Purchase, appropriate orders of the Virginia State Corporation
Commission and the Tennessee Regulatory Authority, necessary to permit the
sale
of the [Unsecured Notes] to the Underwriters, shall be in effect; and that,
prior to the Time of Purchase, no stop order with respect to the effectiveness
of the Registration Statement shall have been issued under the Act by the
Commission or proceedings therefor initiated.
(f) That,
at
the Time of Purchase, there shall not have been any material adverse change
in
the business, properties or financial condition of the Company from that set
forth in the Prospectus (other than changes referred to in or contemplated
by
the Prospectus), and that the Company shall, at the Time of Purchase, have
delivered to the Representative a certificate of an executive officer of the
Company to the effect that, to the best of his knowledge, information and
belief, there has been no such change.
(g) That
the
Company shall have performed such of its obligations under this Agreement as
are
to be performed at or before the Time of Purchase by the terms
hereof.
4. Certain
Covenants of the Company: In further consideration of the agreements of the
Underwriters herein contained, the Company covenants as follows:
(a) As
soon
as practicable, and in any event within the time prescribed by Rule 424 under
the Act, to file any Prospectus Supplement relating to the [Unsecured Notes]
with the Commission; as soon as the Company is advised thereof, to advise the
Representative and confirm the advice in writing of any request made by the
Commission for amendments to the Registration Statement or the Prospectus or
for
additional information with respect thereto or of the entry of a stop order
suspending the effectiveness of the Registration Statement or of the initiation
or threat of any proceedings for that purpose and, if such a stop order should
be entered by the Commission, to make every reasonable effort to obtain the
prompt lifting or removal thereof.
(b) To
deliver to the Underwriters, without charge, as soon as practicable (and in
any
event within 24 hours after the date hereof), and from time to time thereafter
during such period of time (not exceeding nine months) after the date hereof
as
they are required by law to deliver a prospectus, as many copies of the
Prospectus (as supplemented or amended if the Company shall have made any
supplements or amendments thereto) as the Representative may reasonably request;
and in case any
Underwriter
is required to deliver a prospectus after the expiration of nine months after
the date hereof, to furnish to any Underwriter, upon request, at the expense
of
such
Underwriter,
a reasonable quantity of a supplemental prospectus or of supplements to the
Prospectus complying with Section 10(a)(3) of the Act.
(c) To
furnish to the Representative a copy, certified by the Secretary or an Assistant
Secretary of the Company, of the Registration Statement as initially filed
with
the Commission and of all amendments thereto (exclusive of exhibits), and,
upon
request, to furnish to the Representative sufficient plain copies thereof
(exclusive of exhibits) for distribution of one to the other
Underwriters.
(d) For
such
period of time (not exceeding nine months) after the date hereof as they are
required by law to deliver a prospectus, if any event shall have occurred as
a
result of which it is necessary to amend or supplement the Prospectus in order
to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not contain any untrue statement of
a
material fact or not omit to state any material fact required to be stated
therein or necessary in
order
to
make the statements therein not misleading, forthwith to prepare and furnish,
at
its own expense, to the Underwriters and to dealers (whose names and addresses
are furnished to the Company by the Representative) to whom principal amounts
of
the [Unsecured Notes] may have been sold by the Representative for the accounts
of the Underwriters and, upon request, to any other dealers making such request,
copies of such amendments to the Prospectus or supplements to the
Prospectus.
(e) As
soon
as practicable, the Company will make generally available to its security
holders and to the Underwriters an earnings statement or statement of the
Company and its subsidiaries which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act.
(f) To
use
its best efforts to qualify the [Unsecured Notes] for offer and sale under
the
securities or "blue sky" laws of such jurisdictions as the Representative may
designate within six months after the date hereof and itself to pay, or to
reimburse
the
Underwriters and their counsel for, reasonable filing fees and expenses in
connection therewith in an amount not exceeding $3,500 in the aggregate
(including filing fees and expenses paid and incurred prior to the effective
date hereof), provided, however, that the Company shall not be required to
qualify as a foreign corporation or to file a consent to service of process
or
to file annual reports or to comply with any other requirements deemed by the
Company to be unduly burdensome.
(g) To
pay
all expenses, fees and taxes (other than transfer taxes on resales of the
[Unsecured Notes] by the respective Underwriters) in connection with the
issuance and delivery of the [Unsecured Notes], except that the Company shall
be
required to pay the fees and disbursements (other than disbursements referred
to
in paragraph (f) of this Section 4) of Xxxxx Xxxxxxxxxx LLP, counsel to the
Underwriters, only in the events provided in paragraph (h) of this Section
4,
the Underwriters hereby agreeing to pay such fees and disbursements in any
other
event.
(h) If
the
Underwriters shall not take up and pay for the [Unsecured Notes] due to the
failure of the Company to comply with any of the conditions specified in Section
3 hereof, or, if this Agreement shall be terminated in accordance with the
provisions of Section 7 or 8 hereof, to pay the fees and disbursements of Xxxxx
Xxxxxxxxxx LLP, counsel to the Underwriters, and, if the Underwriters shall
not
take up and pay for the [Unsecured Notes] due to the failure of the Company
to
comply with any of the conditions specified in Section 3 hereof, to reimburse
the Underwriters for their reasonable out-of-pocket expenses, in an aggregate
amount not exceeding a total of $10,000, incurred in connection with the
financing contemplated by this Agreement.
(i) The
Company will timely file any certificate required by Rule 52 under the Public
Utility Holding Company Act of 1935, as amended ("1935 Act") in connection
with
the sale of the [Unsecured Notes].
[(j)
The
Company will use its best efforts to list, subject to notice of issuance, the
[Unsecured Notes] on the New York Stock Exchange.]
[(k) During
the period from the date hereof and continuing to and including the earlier
of
(i) the date which is after the Time of Purchase on which the distribution
of
the [Unsecured Notes] ceases, as determined by the Representative in its sole
discretion, and (ii) the date which is 30 days after the Time of Purchase,
the
Company agrees not to offer, sell, contract to sell or otherwise dispose of
any
[Unsecured Notes] of the Company or any substantially similar securities of
the
Company without the consent of the Representative.]
5. Warranties
of and Indemnity by the Company: The Company represents and warrants to, and
agrees with you, as set forth below:
(a) the
Registration Statement on its effective date complied, or was deemed to comply,
with the applicable provisions of the Act and the rules and regulations of
the
Commission and the Registration Statement at its effective date did not, and
at
the Time of Purchase will not, contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to
make the statements therein not misleading, and the Basic Prospectus at the
time
that the Registration Statement became effective, and the Prospectus when first
filed in accordance with Rule 424(b) complies, and at the Time of Purchase
the
Prospectus will comply, with the applicable provisions of the Act and the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Commission, the Basic Prospectus at the time that the Registration Statement
became effective, and the Prospectus when first filed in accordance with Rule
424(b) did not, and the Prospectus at the Time of Purchase will not, contain
any
untrue statement of a material fact or omit to state a material fact required
to
be stated therein or necessary to make the statements therein, in the light
of
the circumstances under which they were made, not misleading, except that the
Company makes no warranty or representation to the Underwriters with respect
to
any statements or omissions made in the Registration Statement or Prospectus
in
reliance upon and in conformity with information furnished in writing to the
Company by, or through the Representative on behalf of, any Underwriter
expressly for use in the Registration Statement, the Basic Prospectus or
Prospectus, or to any statements in or omissions from that part of the
Registration Statement that shall constitute the Statement of Eligibility under
the Trust Indenture Act of 1939 of any indenture trustee under an indenture
of
the Company.
(b) As
of the
Time of Purchase, the Indenture will have been duly authorized by the Company
and duly qualified under the Trust Indenture Act of 1939, as amended, and,
when
executed and delivered by the Trustee and the Company, will constitute a legal,
valid and binding instrument enforceable against the Company in accordance
with
its terms and such [Unsecured Notes] will have been duly authorized, executed,
authenticated and, when paid for by the purchasers thereof, will constitute
legal, valid and binding obligations of the Company entitled to the benefits
of
the Indenture, except as the enforceability thereof may be limited by
bankruptcy, insolvency, or other similar laws affecting the enforcement of
creditors' rights in general, and except as the availability of the remedy
of
specific performance is subject to general principles of equity (regardless
of
whether such remedy is sought in a proceeding in equity or at law), and by
an
implied covenant of good faith and fair dealing.
(c) To
the
extent permitted by law, to indemnify and hold you harmless and each person,
if
any, who controls you within the meaning of Section 15 of the Act, against
any
and all losses, claims, damages or liabilities, joint or several, to which
you,
they or any of you or them may become subject under the Act or otherwise, and
to
reimburse you and such controlling person or persons, if any, for any legal
or
other expenses incurred by you or them in connection with defending any action,
insofar as such losses, claims, damages, liabilities or actions arise out of
or
re based upon any alleged untrue statement or untrue statement of a material
fact contained in the Registration Statement, in the Basic Prospectus, or in
the
Prospectus, or if the Company shall furnish or cause to be furnished to you
any
amendments or any supplemental information, in the Prospectus as so amended
or
supplemented other than amendments or supplements relating solely to securities
other than the Notes (provided that if such Prospectus or such Prospectus,
as
amended or supplemented, is used after the period of time referred to in Section
4(b) hereof, it shall contain such amendments or supplements as the Company
deems necessary to comply with Section 10(a) of the Act), or arise out of or
are
based upon any alleged omission or omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any such alleged untrue statement or
omission, or untrue statement or omission which was made in the Registration
Statement, in the Basic Prospectus or in the Prospectus, or in the Prospectus
as
so amended or supplemented, in reliance upon and in conformity with information
furnished in writing to the Company by or through you expressly for use therein
or with any statements in or omissions from that part of the Registration
Statement that shall constitute the Statement of Eligibility under the Trust
Indenture Act, of any indenture trustee under an indenture of the Company,
and
except that this indemnity shall not inure to your benefit (or of any person
controlling you) on account of any losses, claims, damages, liabilities or
actions arising from the sale of the Notes to any person if such loss arises
from the fact that a copy of the Prospectus, as the same may then be
supplemented or amended to the extent such Prospectus was provided to you by
the
Company (excluding, however, any document then incorporated or deemed
incorporated therein by reference), was not sent or given by you to such person
with or prior to the written confirmation of the sale involved and the alleged
omission or alleged untrue statement or omission or untrue statement was
corrected in the Prospectus as supplemented or amended at the time of such
confirmation, and such Prospectus, as amended or supplemented, was timely
delivered to you by the Company. You agree promptly after the receipt by you
of
written notice of the commencement of any action in respect to which indemnity
from the Company on account of its agreement contained in this Section 5(c)
may
be sought by you, or by any person controlling you, to notify the Company in
writing of the commencement thereof, but your omission so to notify the Company
of any such action shall not release the Company from any liability which it
may
have to you or to such controlling person otherwise than on account of the
indemnity agreement contained in this Section 8(a). In case any such action
shall be brought against you or any such person controlling you and you shall
notify the Company of the commencement thereof, as above provided, the Company
shall be entitled to participate in, and, to the extent that it shall wish,
including the selection of counsel (such counsel to be reasonably acceptable
to
the indemnified party), to direct the defense thereof at its own expense. In
case the Company elects to direct such defense and select such counsel
(hereinafter, "Company's counsel"), you or any controlling person shall have
the
right to employ your own counsel, but, in any such case, the fees and expenses
of such counsel shall be at your expense unless (i) the Company has agreed
in
writing to pay such fees and expenses or (ii) the named parties to any such
action (including any impleaded parties) include both you or any controlling
person and the Company and you or any controlling person shall have been advised
by your counsel that a conflict of interest between the Company and you or
any
controlling person may arise (and the Company's counsel shall have concurred
in
good faith with such advice) and for this reason it is not desirable for the
Company's counsel to represent both the indemnifying party and the indemnified
party (it being understood, however, that the Company shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations
or
circumstances, be liable for the reasonable fees and expenses of more than
one
separate firm of attorneys for you or any controlling person (plus any local
counsel retained by you or any controlling person in their reasonable judgment),
which firm (or firms) shall be designated in writing by you or any controlling
person). No indemnifying party shall, without the prior written consent of
the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding
by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification could be sought under this
Section 5 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes
an
unconditional release of each indemnified party from all liability arising
out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act
by
or on behalf of any indemnified party. In no event shall any indemnifying party
have any liability or responsibility in respect of the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim effected without its prior written
consent.
(d) The
documents incorporated by reference in the Registration Statement or Prospectus,
when they were filed with the Commission, complied in all material respects
with
the applicable provisions of the 1934 Act and the rules and regulations of
the
Commission thereunder, and as of such time of filing, when read together with
the Prospectus, none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(e) Since
the
respective dates as of which information is given in the Registration Statement
and the Prospectus, except as otherwise stated therein, there has been no
material adverse change in the business, properties or financial condition
of
the Company.
(f) This
Agreement has been duly authorized, executed and delivered by the
Company.
(g) The
consummation by the Company of the transactions contemplated herein will not
conflict with, or result in a breach of any of the terms or provisions of,
or
constitute a default under, or result in the creation or imposition of any
lien,
charge or encumbrance upon any property or assets of the Company under any
contract, indenture, mortgage, loan agreement, note, lease or other agreement
or
instrument to which the Company is a party or by which it may be bound or to
which any of its properties may be subject (except for conflicts, breaches
or
defaults which
would
not, individually or in the aggregate, be materially adverse to the Company
or
materially adverse to the transactions contemplated by this
Agreement.)
(h) No
authorization, approval, consent or order of any court or governmental authority
or agency is necessary in connection with the issuance and sale by the Company
of the Notes or the transactions by the Company contemplated in this Agreement,
except (A) such as may be required under the 1933 Act or the rules and
regulations thereunder; (B) such as may be required under the 1935 Act; (C)
the
qualification of the Indenture under the 1939 Act; (D) the approval of the
Virginia State Corporation Commission and the Tennessee Regulatory Authority;
and (E) such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws.
The
Company's indemnity agreement contained in Section 5(c) hereof, and its
covenants, warranties and representations contained in this Agreement, shall
remain in full force and effect regardless of any investigation made by or
on
behalf of any person, and shall survive the delivery of and payment for the
[Unsecured Notes] hereunder.
6. Warranties
of and Indemnity by Underwriters:
(a) Each
Underwriter warrants and represents that the information furnished in writing
to
the Company through the Representative for use in the Registration Statement,
in
the Basic Prospectus, in the Prospectus, or in the Prospectus as amended or
supplemented is correct as to such Underwriter.
(b) Each
Underwriter agrees, to the extent permitted by law, to indemnify, hold harmless
and reimburse the Company, its directors and such of its officers as shall
have
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Act, to the same extent and
upon
the same terms as the indemnity agreement of the Company set forth in Section
5(c) hereof, but only with respect to untrue statements or alleged untrue
statements or omissions or alleged omissions made in the Registration Statement,
or in the Basic Prospectus, or in the Prospectus, or in the Prospectus as so
amended or supplemented, in reliance upon and in conformity with information
furnished in writing to the Company by the Representative on behalf of such
Underwriter expressly for use therein. The Company agrees promptly after the
receipt by it of written notice of the commencement of any action in respect
to
which indemnity from you on account of your agreement contained in this Section
6(b) may be sought by the Company, or by any person controlling the Company,
to
notify you in writing of the commencement thereof, but the Company's omission
so
to notify you of any such action shall not release you from any liability which
you may have to the Company or to such controlling person otherwise than on
account of the indemnity agreement contained in this Section 6(b).
The
indemnity agreement on the part of each Underwriter contained in Section 6(b)
hereof, and the warranties and representations of such Underwriter contained
in
this Agreement, shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or other person, and shall
survive the delivery of and payment for the [Unsecured Notes]
hereunder.
7. Default
of Underwriters: If any Underwriter under this Agreement shall fail or refuse
(otherwise than for some reason sufficient to justify, in accordance with the
terms hereof, the cancellation or termination of its obligations hereunder)
to
purchase and pay for the principal amount of [Unsecured Notes] which it has
agreed to purchase and pay for hereunder, and the aggregate principal amount
of
[Unsecured Notes] which such defaulting Underwriter or Underwriters agreed
but
failed or refused to purchase is not more than one-tenth of the aggregate
principal amount of the [Unsecured Notes], the other Underwriters shall be
obligated severally in the proportions which the amounts of [Unsecured Notes]
set forth opposite their names in Exhibit 1 hereto bear to the aggregate
principal amount of [Unsecured Notes] set forth opposite the names of all such
non-defaulting Underwriters, to purchase the [Unsecured Notes] which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on the terms set forth herein; provided that in no event shall the principal
amount of [Unsecured Notes] which any Underwriter has agreed to purchase
pursuant to Section 1 hereof be increased pursuant to this Section 7 by an
amount in excess of one-ninth of such principal amount of [Unsecured Notes]
without the written consent of such Underwriter. If any Underwriter or
Underwriters shall fail or refuse to purchase [Unsecured Notes] and the
aggregate principal amount of [Unsecured Notes] with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of
the
[Unsecured Notes] then this Agreement shall terminate without liability on
the
part of any defaulting Underwriter; provided, however, that the non-defaulting
Underwriters may agree, in their sole discretion, to purchase the [Unsecured
Notes] which such defaulting Underwriter or Underwriters agreed but failed
or
refused to purchase on the terms set forth herein. In the event the Company
shall be entitled to but shall not elect (within the time period specified
above) to exercise its rights under clause (a) and/or (b), then this Agreement
shall terminate. In the event of any such termination, the Company shall not
be
under any liability to any Underwriter (except to the extent, if any, provided
in Section 4(h) hereof), nor shall any Underwriter (other than an Underwriter
who shall have failed or refused to purchase the [Unsecured Notes] without
some
reason sufficient to justify, in accordance with the terms hereof, its
termination of its obligations hereunder) be under any liability to the Company
or any other Underwriter.
Nothing
herein contained shall release any defaulting Underwriter from its liability
to
the Company or any non-defaulting Underwriter for damages occasioned by its
default hereunder.
8. Termination
of Agreement by the Underwriters: This Agreement may be terminated at any time
prior to the Time of Purchase by the Representative if, after the execution
and
delivery of this Agreement and prior to the Time of Purchase, in the
Representative's reasonable judgment, the Underwriters' ability to market the
[Unsecured Notes] shall have been materially adversely affected
because:
(i)
trading
in securities on the New York Stock Exchange shall have been generally suspended
by the Commission or by the New York Stock Exchange, or
(ii) (A)
a war
involving the United States of America shall have been declared, (B) any other
national calamity shall have occurred, or (C) any conflict involving the armed
services of the United States of America shall have escalated, or
(iii) a
general
banking moratorium shall have been declared by Federal or New York State
authorities, or
(iv) there
shall have been any decrease in the ratings of the Company's first mortgage
bonds by Xxxxx'x Investors Services, Inc. (Moody's) or Standard & Poor's
Ratings Group (S&P) or either Moody's or S&P shall publicly announce
that it has such first mortgage bonds under consideration for possible
downgrade.
If
the
Representative elects to terminate this Agreement, as provided in this Section
8, the Representative will promptly notify the Company by telephone or by telex
or facsimile transmission, confirmed in writing. If this Agreement shall not
be
carried out by any Underwriter for any reason permitted hereunder, or if the
sale of the [Unsecured Notes] to the Underwriters as herein contemplated shall
not be carried out because the Company is not able to comply with the terms
hereof, the Company shall not be under any obligation under this Agreement
and
shall not be liable to any Underwriter or to any member of any selling group
for
the loss of anticipated profits from the transactions contemplated by this
Agreement (except that the Company shall remain liable to the extent provided
in
Section 4(h) hereof) and the Underwriters shall be under no liability to the
Company nor be under any liability under this Agreement to one
another.
9. Notices:
All notices hereunder shall, unless otherwise expressly provided, be in writing
and be delivered at or mailed to the following addresses or by telex or
facsimile transmission confirmed in writing to the following addresses: if
to
the Underwriters, to _______________________________________________________,
as
Representative, _____________________________________________, and, if to the
Company, to Appalachian Power Company, c/o American Electric Power Service
Corporation, 0 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000, attention of
_______________, Treasurer, (fax 614/000-0000).
10. Parties
in Interest: The agreement herein set forth has been and is made solely for
the
benefit of the Underwriters, the Company (including the directors thereof and
such of the officers thereof as shall have signed the Registration Statement),
the controlling persons, if any, referred to in Sections 5 and 6 hereof, and
their respective successors, assigns, executors and administrators, and, except
as expressly otherwise provided in Section 7 hereof, no other person shall
acquire or have any right under or by the virtue of this Agreement.
11. Definition
of Certain Terms: If there be two or more persons, firms or corporations named
in Exhibit 1 hereto, the term "Underwriters", as used herein, shall be deemed
to
mean the several persons, firms or corporations, so named (including the
Representative herein mentioned, if so named) and any party or parties
substituted pursuant to Section 7 hereof, and the term "Representative", as
used
herein, shall be deemed to mean the representative or representatives designated
by, or in the manner authorized by, the Underwriters. All obligations of the
Underwriters hereunder are several and not joint. If there shall be only one
person, firm or corporation named in Exhibit 1 hereto, the term "Underwriters"
and the term "Representative", as used herein, shall mean such person, firm
or
corporation. The term "successors" as used in this Agreement shall not include
any purchaser, as such purchaser, of any of the [Unsecured Notes] from any
of
the respective Underwriters.
12. Conditions
of the Company's Obligations: The obligations of the Company hereunder are
subject to the Underwriters' performance of their obligations hereunder, and
the
further condition that at the Time of Purchase the Virginia State Corporation
Commission and the Tennessee Regulatory Authority shall have issued appropriate
orders, and such orders shall remain in full force and effect, authorizing
the
transactions contemplated hereby.
13. Applicable
Law: This Agreement will be governed and construed in accordance with the laws
of the State of New York.
14. Execution
of Counterparts: This Agreement may be executed in several counterparts, each
of
which shall be regarded as an original and all of which shall constitute one
and
the same document.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their respective officers thereunto duly authorized, on the date first above
written.
|
APPALACHIAN
POWER COMPANY
|
||
|
By:
__________________________
|
||
|
Treasurer
|
||
|
_________________________
|
||
|
as
Representative and on behalf
of
the Underwriters named in
Exhibit
1 hereto
|
||
|
By:
_____________________
|
EXHIBIT
1
|
Name
|
Principal
Amount
|
