EXHIBIT 1(b)
KENTUCKY POWER COMPANY
Underwriting Agreement
Dated ____________________
AGREEMENT made between KENTUCKY POWER COMPANY, a corporation organized
and existing under the laws of the Commonwealth of Kentucky (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 September 1, 1997, between the Company and Bankers Trust Company, 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:
I. 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 Simpson Thacher & Bartlett,
425 Lexington Avenue, New York, New York 10017-3909, 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 Dewey
Ballantine 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 Dewey Ballantine LLP, counsel to
the Underwriters:
(1) Opinion of Simpson Thacher & Bartlett and any of
John F. Di Lorenzo, Jr., Esq., Thomas G.
Berkemeyer, Esq., Ann B. Graf, Esq., David C.
House, Esq., or William E. Johnson, Esq., counsel
to the Company, substantially in the forms
attached hereto as Exhibits A and B; and
(2) Opinion of Dewey Ballantine LLP, counsel to
the Underwriters, substantially in the form
attached hereto as Exhibit C.
(c) 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.
(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 Dewey Ballantine LLP, counsel
to the Underwriters.
(e) That, at the Time of Purchase, an appropriate order
of the Kentucky Public Service Commission, 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 Dewey Ballantine 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 Dewey Ballantine 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
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 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.
(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 Public Utility Holding Company Act of
1935, as amended (the "1935 Act"); (C) the qualification of
the Indenture under the 1939 Act; (D) the approval of The
Indiana Utility Regulatory Commission; 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 Moody's 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
Kentucky Power Company, c/o American Electric Power Service Corporation, 1
Riverside Plaza, Columbus, Ohio 43215, attention of A. A. Pena, Treasurer, (fax
614/223-1687).
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 Kentucky Public Service 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.
KENTUCKY POWER COMPANY
By:____________________________
A. A. Pena
Treasurer
- -----------------------------------
as Representative
and on behalf of the Underwriters
named in Exhibit 1 hereto
By:____________________________
EXHIBIT 1
Name Principal Amount