SOUTHWESTERN ELECTRIC POWER COMPANY Underwriting Agreement Dated ____________________
Exhibit
1(a)
Dated
____________________
AGREEMENT
made between SOUTHWESTERN
ELECTRIC POWER COMPANY, a corporation organized and existing under the laws
of
the State of Delaware (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 February 25, 2000, 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:
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(a)
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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.
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(b)
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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:
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(1)
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Opinion
of Xxxxxxx Xxxxxxx & Xxxxxxxx and any of Xxxxxx X. Xxxxxxxxxx, Esq.,
Xxx X. Xxxx, Esq., Xxxxx X. House, Esq., Xxxxxxx X. Xxxxxxx, Esq.
or Xxxxx
X. Xxxxx, Esq., counsel to the Company, substantially in the forms
attached hereto as Exhibits A and B;
and
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(2)
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Opinion
of Xxxxx Xxxxxxxxxx LLP, counsel to the Underwriters, substantially
in the
form attached hereto as Exhibit C.
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(c)
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That
the Representative shall have received a letter from Deloitte & Touche
LLP in form and substance satisfactory to the Representative, dated
as of
the day of the Time of Purchase, (i) confirming that they are independent
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.
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(d)
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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.
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(e)
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That,
at the Time of Purchase, appropriate orders of the Commission under
the
Public Utility Holding Company Act of 1935, as amended ("1935 Act"),
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.
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(f)
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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.
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(g)
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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.
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4. Certain
Covenants of the Company: In further consideration of the
agreements of the Underwriters herein contained, the Company covenants as
follows:
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(a)
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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.
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(b)
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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.
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(c)
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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.
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(d)
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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.
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(e)
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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.
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(f)
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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.
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(g)
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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.
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(h)
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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.
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(i)
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The
Company will timely file any certificate required by Rule 52 under
the
1935 Act in connection with the sale of the [Unsecured
Notes].
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(j)
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The
Company will use its best efforts to list, subject to notice of issuance,
the [Unsecured Notes] on the New York Stock
Exchange.]
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(k)
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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.]
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5. Warranties
of and Indemnity by the Company: The Company represents and
warrants to, and agrees with you, as set forth below:
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(a)
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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.
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(b)
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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.
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(c)
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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 are 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.
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(d)
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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.
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(e)
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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.
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(f)
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This
Agreement has been duly authorized, executed and delivered by the
Company.
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(g)
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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.)
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(h)
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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; and (D) such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws.
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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:
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(a)
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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.
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(b)
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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).
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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)
|
(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 Southwestern Electric Power Company, c/o American Electric Power
Service Corporation, 0 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000, attention of
X. X.
Xxxx, 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 Commission
shall have issued an appropriate order, and such order shall remain in full
force and effect, authorizing the transactions contemplated hereby.
13. Applicable
Law: This Agreement will be governed and construed in accordance
with the laws of the State of New York.
14. Execution
of Counterparts: This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
IN
WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed by their respective officers thereunto
duly authorized, on the date first above written.
By:____________________________
Treasurer
___________________________________
as
Representative
and
on
behalf of the Underwriters
named
in Exhibit 1 hereto
By:____________________________
EXHIBIT
1
Name Principal
Amount