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:
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 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
EXHIBIT 1
Name Principal Amount