SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report: June 13, 2002
(Date of earliest event reported)
Commission Registrant; State of Incorporation; I.R.S. Employer
File Number Address; and Telephone Number Identification No.
1-3457 APPALACHIAN POWER COMPANY 54-0124790
(A Virginia Corporation)
1 Riverside Plaza
Columbus, Ohio 43215
Telephone (614) 223-1000
Item 5. Other Events and Regulation FD Disclosure.
On June 13, 2002, Appalachian Power Company (the "Company") entered into an
Underwriting Agreement with BNY Capital Markets, Inc. and UBS Warburg LLC, as
representatives of the underwriters named therein, relating to the offering and
sale by the Company of $450,000,000 of its 4.80% Senior Notes, Series E, due
2005 (the "Notes").
Item 7. Financial Statements and Exhibits
(c) Exhibits
1(a) Underwriting Agreement, dated June 13, 2002, between the Company and
BNY Capital Markets, Inc. and UBS Warburg LLC, as representatives of
the several underwriters named in Exhibit 1 thereto, in connection with
the sale of the Notes.
4(a) Company Order and Officer's Certificate, dated June 18, 2002,
establishing the terms of the Notes.
4(b) Form of the Notes (included in Exhibit 4(a) hereto).
5(a) Opinion of Simpson Thacher & Bartlett regarding the
legality of the Notes.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
APPALACHIAN POWER COMPANY
By:/s/ Thomas G. Berkemeyer
----------------------------
Assistant Secretary
June 18, 2002
EXHIBIT INDEX
Exhibit Number Description
1(a) Underwriting Agreement, dated June 13, 2002, between the
Company and BNY Capital Markets, Inc. and UBS Warburg LLC,
as representatives of the several underwriters named in
Exhibit 1 thereto, in connection with the sale of the
Notes.
4(a) Company Order and Officer's Certificate,
dated June 18, 2002, establishing the terms
of the Notes.
4(b) Form of the Notes (included in Exhibit 4(a) hereto).
5(a) Opinion of Simpson Thacher & Bartlett
regarding the legality of the Notes.
Exhibit 1(a)
APPALACHIAN POWER COMPANY
Underwriting Agreement
Dated June 13, 2002
AGREEMENT made between APPALACHIAN POWER COMPANY, a corporation organized
and existing under the laws of the Commonwealth of Virginia (the Company), and
the several persons, firms and corporations (the Underwriters) named in Exhibit
1 hereto.
WITNESSETH:
WHEREAS, the Company proposes to issue and sell $450,000,000 principal
amount of its 4.80% Senior Notes, Series E, due 2005 (the Senior Notes) to be
issued pursuant to the Indenture dated as of January 1, 1998, between the
Company and The Bank of New York, as trustee (the Trustee), as heretofore
supplemented and amended and as to be further supplemented and amended (said
Indenture as so supplemented being hereafter referred to as the Indenture); and
WHEREAS, the Underwriters have designated the persons signing this
Agreement (collectively, 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 (File No.
333-81402) and a prospectus relating to $450,000,000 principal amount of its
Unsecured Notes and such registration statement has become effective; and
WHEREAS, such registration statement, including the financial statements,
the documents incorporated or deemed incorporated therein by reference, the
exhibits thereto, being herein called the Registration Statement, and the
prospectus, including the documents incorporated or deemed incorporated therein
by reference, constituting a part of such Registration Statement, as it may be
last amended or supplemented prior to the effectiveness of this Agreement, but
excluding any amendment or supplement relating solely to securities other than
the Senior Notes, being herein called the Basic Prospectus, and the Basic
Prospectus, as supplemented by a prospectus supplement (the Prospectus
Supplement) to include information relating to the Senior Notes, including the
names of the Underwriters, the price and terms of the offering, the interest
rate, maturity date and certain other information relating to the Senior Notes,
which will be filed with the Commission pursuant to 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 called 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 Senior Notes set opposite their names in Exhibit 1 hereto, together
aggregating all of the Senior Notes, at a price equal to 99.529% of the
principal amount thereof.
2. Payment and Delivery: Payment for the Senior Notes shall be made to the
Company in immediately available funds or in such other manner as the Company
and the Representative shall mutually agree upon in writing, upon the delivery
of the Senior Notes to UBS Warburg LLC for the respective accounts of the
Underwriters against receipt therefor signed by the Representative on behalf of
itself and for the other Underwriters. Such delivery shall be made at 10:00
A.M., New York Time, on June 18, 2002 (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, at the office of Simpson Thacher & Bartlett, 425
Lexington Avenue, New York, New York 10017, or at such other place as the
Company and the Representative shall mutually agree in writing. The time at
which payment and delivery are to be made is herein called the Time of Purchase.
The delivery of the Senior 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 Senior
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 either of Thomas G.
Berkemeyer, Esq. or Kevin R. Fease, Esq., counsel to the Company, substantially
in the forms heretofore previously provided to the Underwriters;
(2) Opinion of Dewey Ballantine LLP, counsel to the Underwriters,
substantially in the form heretofore previously provided to the Underwriters.
(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 certified 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 (other than
the prospectus or amendments, prospectuses or prospectus
supplements relating solely to securities other than the Senior
Notes) relating to the Senior 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, appropriate orders of the
Virginia State Corporation Commission and the Tennessee
Regulatory Authority, necessary to permit the sale of the Senior
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 the Prospectus
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 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, other than
supplements or amendments relating solely to securities other
than the Senior Notes) 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), other
than amendments relating solely to securities other than the
Senior Notes and, upon request, to furnish to the Representative
sufficient plain copies thereof (exclusive of exhibits) for
distribution 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
Senior 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 Senior 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 Senior Notes by the respective Underwriters)
in connection with the issuance and delivery of the Senior
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 and paragraph (c) of Section 5,
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 Senior
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 Senior 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 Senior Notes.
(j) 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 Senior 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 Senior 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 on the date of this
Agreement 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 on the date
of this Agreement and the Prospectus when first filed in
accordance with Rule 424(b) under the Act do 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, the Basic Prospectus or the 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 Senior 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, the Company agrees to indemnify
and hold you harmless, your officers and directors 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 (if used prior to the effective date of this
Agreement), or in the Prospectus, or if the Company shall
furnish or cause to be furnished to you any amendments or any
supplements to the Prospectus, in the Prospectus as so amended
or supplemented except to the extent that such amendments or
supplements relate solely to securities other than the Senior
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 the Representative 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 Senior 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 5(c). 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 referred to or contemplated 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 Senior 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 Virginia State Corporation
Commission and the Tennessee Regulatory Authority; and (E) such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws.
The Company's indemnity agreement contained in Section 5(c) hereof, and
its covenants, warranties and representations contained in this Agreement, shall
remain in full force and effect regardless of any investigation made by or on
behalf of any person, and shall survive the delivery of and payment for the
Senior 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,
severally and not jointly, 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 Senior 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 Senior
Notes which it has agreed to purchase and pay for hereunder, and the aggregate
principal amount of Senior 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 Senior Notes, the other Underwriters
shall be obligated severally in the proportions which the amounts of Senior
Notes set forth opposite their names in Exhibit 1 hereto bear to the aggregate
principal amount of Senior Notes set forth opposite the names of all such
non-defaulting Underwriters, to purchase the Senior 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
Senior 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 Senior Notes without the written consent
of such Underwriter. If any Underwriter or Underwriters shall fail or refuse to
purchase Senior Notes and the aggregate principal amount of Senior Notes with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of the Senior Notes then this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter; provided, however, that
the non-defaulting Underwriters may agree, in their sole discretion, to purchase
the Senior Notes which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on the terms set forth herein. 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 Senior 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 Senior 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) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or
war or other national or international calamity or crisis, 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 debt securities 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 debt securities 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 Senior 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 otherwiseexpressly
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 the Representative at UBS Warburg LLC, 677
Washington Boulevard, Stamford, Connecticut 06901, Attention: Corporate
Syndicate (fax 203/719-0495), and, if to the Company, to Appalachian Power
Company, c/o American Electric Power Service Corporation, 1 Riverside Plaza,
Columbus, Ohio 43215, Attention: 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 Senior Notes
from any of the respective Underwriters.
12. Conditions of the Company's Obligations: The obligations of the
Company hereunder are subject to the Underwriters' performance of their
obligations hereunder, and the further condition that at the Time of Purchase
the Virginia State Corporation Commission and the Tennessee Regulatory Authority
shall have issued appropriate orders, and such orders shall remain in full force
and effect, authorizing the transactions contemplated hereby.
13. Applicable Law: This Agreement will be governed and construed in
accordance with the laws of the State of New York.
14. Execution of Counterparts: This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, on the date
first above written.
APPALACHIAN POWER COMPANY
By:__/s/ Henry W. Fayne________
Henry W. Fayne
President
BNY CAPITAL MARKETS, INC.
UBS WARBURG LLC
as Representative
and on behalf of the Underwriters
named in Exhibit 1 hereto
BNY CAPITAL MARKETS, INC.
By:_/s/ Philip M. Benedict_____
Name: Philip M. Benedict
Title: Vice President
UBS WARBURG LLC
By:__/s/ Christian Stewart_____
Name: Christian Stewart
Title: Executive Director
EXHIBIT 1
Name Principal Amount
BNY Capital Markets, Inc. $182,500,000
UBS Warburg LLC 182,500,000
TD Securities (USA) Inc. 45,000,000
Danske Securities (US), Inc. 40,000,000
TOTAL $450,000,000
============
Exhibit 4(a)
June 18, 2002
Company Order and Officers' Certificate
4.80% Senior Notes, Series E, due 2005
The Bank of New York, as Trustee
101 Barclay Street
New York, New York 10286
Ladies and Gentlemen:
Pursuant to Article Two of the Indenture, dated as of January 1, 1998 (as it may
be amended or supplemented, the "Indenture"), from Appalachian Power Company
(the "Company") to The Bank of New York, as trustee (the "Trustee"), and the
Board Resolutions dated January 23, 2002, a copy of which certified by the
Secretary or an Assistant Secretary of the Company is being delivered herewith
under Section 2.01 of the Indenture, and unless otherwise provided in a
subsequent Company Order pursuant to Section 2.04 of the Indenture,
1. the Company's 4.80% Senior Notes, Series E, due
2005 (the "Notes") are hereby established. The Notes shall
be in substantially the form attached hereto as Exhibit 1.
2. the terms and characteristics of the Notes shall be as follows
(the numbered clauses set forth below corresponding to the numbered
subsections of Section 2.01 of the Indenture, with terms used and not
defined herein having the meanings specified in the Indenture):
(i) the aggregate principal amount of Notes which may be
authenticated and delivered under the Indenture shall be limited to
$450,000,000, except as contemplated in Section 2.01(i) of the
Indenture;
(ii) the date on which the principal of the Notes shall
be payable shall be June 15, 2005;
(iii)interest shall accrue from the date of authentication of the
Notes; the Interest Payment Dates on which such interest will be
payable shall be June 15 and December 15, and the Regular Record Date
for the determination of holders to whom interest is payable on any
such Interest Payment Date shall be the June 1 or December 1
preceding the relevant Interest Payment Date; provided that the first
Interest Payment Date shall be December 15, 2002 and interest payable
on the Stated Maturity Date or any Redemption Date shall be paid to
the Person to whom principal shall be paid;
(iv) the interest rate at which the Notes shall bear
interest shall be 4.80% per annum;
(v) the Notes shall be redeemable at the option of the Company, in
whole at any time or in part from time to time, upon not less than
thirty but not more than sixty days' previous notice given by mail to
the registered owners of the Notes at a redemption price equal to the
greater of (i) 100% of the principal amount of the Notes being
redeemed and (ii) the sum of the present values of the remaining
scheduled payments of principal and interest on the Notes being
redeemed (excluding the portion of any such interest accrued to the
date of redemption) discounted (for purposes of determining present
value) to the redemption date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate
(as defined below) plus 20 basis points, plus, in each case, accrued
interest thereon to the date of redemption.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semi-annual equivalent yield to maturity of
the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Notes that would be utilized,
at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of the Notes.
"Comparable Treasury Price" means, with respect to any redemption
date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case a percentage of its principal
amount) on the third Business Day preceding such redemption date, as
set forth in the daily statistical release (or any successor release)
published by the Federal Reserve Bank of New York and designated
"Composite 3:30 p.m. Quotations for U. S. Government Securities" or
(ii) if such release (or any successor release) is not published or
does not contain such prices on such third Business Day, the
Reference Treasury Dealer Quotation for such redemption date.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Company and reasonably acceptable to the
Trustee.
"Reference Treasury Dealer" means a primary U.S. government
securities dealer in New York City selected by the Company and
reasonably acceptable to the Trustee.
"Reference Treasury Dealer Quotation" means, with respect to the
Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at or before 5:00 p.m., New York City time,
on the third Business Day preceding such redemption date.
(vi) (a) the Notes shall be issued in the form of a Global Note; (b)
the Depositary for such Global Note shall be The Depository Trust
Company; and (c) the procedures with respect to transfer and exchange
of Global Notes shall be as set forth in the form of Note attached
hereto;
(vii) the title of the Notes shall be "4.80% Senior
Notes, Series E, due 2005";
(viii) the form of the Notes shall be as set forth
in Paragraph 1, above;
(ix) not applicable;
(x) the Notes shall not be subject to a Periodic
Offering;
(xi) not applicable;
(xii) not applicable;
(xiii) not applicable;
(xiv) the Notes shall be issuable in denominations of
$1,000 and any integral multiple thereof;
(xv) not applicable;
(xvi) the Notes shall not be issued as Discount
Securities;
(xvii) not applicable;
(xviii)not applicable; and
(xix) not applicable.
3. You are hereby requested to authenticate $450,000,000 aggregate
principal amount of 4.80% Senior Notes, Series E, due 2005, executed by
the Company and delivered to you concurrently with this Company Order and
Officers' Certificate, in the manner provided by the Indenture.
4. You are hereby requested to hold the Notes as custodian for DTC in
accordance with the Letter of Representations dated June 14, 2002, from
the Company and the Trustee to DTC.
5. Concurrently with this Company Order and Officers' Certificate, an
Opinion of Counsel under Sections 2.04 and 13.06 of the Indenture is being
delivered to you.
6. The undersigned Geoffrey S. Chatas and Thomas G.
Berkemeyer, the Assistant Treasurer and Assistant Secretary,
respectively, of the Company do hereby certify that:
(i) we have read the relevant portions of the Indenture, including
without limitation the conditions precedent provided for therein
relating to the action proposed to be taken by the Trustee as
requested in this Company Order and Officers' Certificate, and the
definitions in the Indenture relating thereto;
(ii) we have read the Board Resolutions of the Company
and the Opinion of Counsel referred to above;
(iii)we have conferred with other officers of the Company, have
examined such records of the Company and have made such other
investigation as we deemed relevant for purposes of this certificate;
(iv) in our opinion, we have made such examination or investigation
as is necessary to enable us to express an informed opinion as to
whether or not such conditions have been complied with; and
(v) on the basis of the foregoing, we are of the opinion that all
conditions precedent provided for in the Indenture relating to the
action proposed to be taken by the Trustee as requested herein have
been complied with.
Kindly acknowledge receipt of this Company Order and Officers' Certificate,
including the documents listed herein, and confirm the arrangements set forth
herein by signing and returning the copy of this document attached hereto.
Very truly yours,
APPALACHIAN POWER COMPANY
By:_/s/ Geoffrey S. Chastas__
Assistant Treasurer
And:_/s/ Thomas G. Berkemeyer_
Assistant Secretary
Acknowledged by Trustee:
By:_/s/ Joseph A. Lloret______
Authorized Signatory
Exhibit 4(b)
Unless this certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment, and any certificate
to be issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein. Except as otherwise provided
in Section 2.11 of the Indenture, this Security may be transferred, in whole but
not in part, only to another nominee of the Depository or to a successor
Depository or to a nominee of such successor Depository.
No. R1
APPALACHIAN POWER COMPANY
4.80% Senior Notes, Series E, due 2005
CUSIP: 037735BX4 Original Issue
Date: June 18, 2002
Stated Maturity: June 15, 2005 Interest
Rate: 4.80%
Principal Amount: $450,000,000
Redeemable: Yes No
In Whole: Yes No
In Part: Yes No
APPALACHIAN POWER COMPANY, a corporation duly organized and existing under
the laws of the Commonwealth of Virginia (herein referred to as the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the Principal Amount specified above on the Stated Maturity
specified above, and to pay interest on said Principal Amount from the Original
Issue Date specified above or from the most recent interest payment date (each
such date, an "Interest Payment Date") to which interest has been paid or duly
provided for, semi-annually in arrears on June 15 and December 15 in each year,
commencing on December 15, 2002, at the Interest Rate per annum specified above,
until the Principal Amount shall have been paid or duly provided for. Interest
shall be computed on the basis of a 360-day year of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date, as provided in the Indenture, as hereinafter defined,
shall be paid to the Person in whose name this Note (or one or more Predecessor
Securities) shall have been registered at the close of business on the Regular
Record Date with respect to such Interest Payment Date, which shall be the June
1 or December 1 (whether or not a Business Day), as the case may be, immediately
preceding such Interest Payment Date, provided that interest payable on the
Stated Maturity or any redemption date shall be paid to the Person to whom
principal is paid. Any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holder on such Regular Record Date
and shall be paid as provided in said Indenture.
If any Interest Payment Date, any redemption date or Stated Maturity is
not a Business Day, then payment of the amounts due on this Note on such date
will be made on the next succeeding Business Day, and no interest shall accrue
on such amounts for the period from and after such Interest Payment Date,
redemption date or Stated Maturity, as the case may be, with the same force and
effect as if made on such date. The principal of (and premium, if any) and the
interest on this Note shall be payable at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, the City of New York,
New York, in any coin or currency of the United States of America which at the
time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest (other than interest payable on the
Stated Maturity or any redemption date) may be made at the option of the Company
by check mailed to the registered holder at such address as shall appear in the
Security Register.
This Note is one of a duly authorized series of Notes of the Company
(herein sometimes referred to as the "Notes"), specified in the Indenture, all
issued or to be issued in one or more series under and pursuant to an Indenture
dated as of January 1, 1998 duly executed and delivered between the Company and
The Bank of New York, a corporation organized and existing under the laws of the
State of New York, as Trustee (herein referred to as the "Trustee") (such
Indenture, as originally executed and delivered and as thereafter supplemented
and amended being hereinafter referred to as the "Indenture"), to which
Indenture and all indentures supplemental thereto or Company Orders reference is
hereby made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the holders of
the Notes. By the terms of the Indenture, the Notes are issuable in series which
may vary as to amount, date of maturity, rate of interest and in other respects
as in the Indenture provided. This Note is one of the series of Notes designated
on the face hereof.
This Note may be redeemed by the Company at its option, in whole at any
time or in part from time to time, upon not less than thirty but not more than
sixty days' previous notice given by mail to the registered owners of the Note
at a redemption price equal to the greater of (i) 100% of the principal amount
of the Note being redeemed and (ii) the sum of the present values of the
remaining scheduled payments of principal and interest on the Note being
redeemed (excluding the portion of any such interest accrued to the date of
redemption) discounted (for purposes of determining present value) to the
redemption date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate (as defined below) plus 20 basis
points, plus, in each case, accrued interest thereon to the date of redemption.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Notes that would be utilized, at
the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of the Notes.
"Comparable Treasury Price" means, with respect to any redemption date,
(1) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) on
the third Business Day preceding such redemption date, as set forth in
the daily statistical release (or any successor release) published by the
Federal Reserve Bank of New York and designated "Composite 3:30 p.m.
Quotations for U.S. Government Securities" or (2) if such release (or any
successor release) is not published or does not contain such prices on
such third Business Day, the Reference Treasury Dealer Quotation for such
redemption date.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Company and reasonably acceptable to the
Trustee.
"Reference Treasury Dealer" means a primary U. S. government securities
dealer in New York City selected by the Company and reasonably acceptable
to the Trustee.
"Reference Treasury Dealer Quotation" means, with respect to the
Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference Treasury
Dealer at or before 5:00 p.m., New York City time, on the third Business
Day preceding such redemption date.
The Company shall not be required to (i) issue, exchange or register the
transfer of any Notes during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of less than all
the outstanding Notes of the same series and ending at the close of business on
the day of such mailing, nor (ii) register the transfer of or exchange of any
Notes of any series or portions thereof called for redemption. This Global Note
is exchangeable for Notes in definitive registered form only under certain
limited circumstances set forth in the Indenture.
In the event of redemption of this Note in part only, a new Note or Notes
of this series, of like tenor, for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the surrender of this Note.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Notes may be declared,
and upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Note upon compliance by the Company with certain conditions
set forth therein.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Notes of each series affected at the time outstanding,
as defined in the Indenture, to execute supplemental indentures for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Holders of the Notes; provided, however, that no
such supplemental indenture shall (i) extend the fixed maturity of any Notes of
any series, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any premium payable upon the
redemption thereof, or reduce the amount of the principal of a Discount Security
that would be due and payable upon a declaration of acceleration of the maturity
thereof pursuant to the Indenture, without the consent of the holder of each
Note then outstanding and affected; (ii) reduce the aforesaid percentage of
Notes, the holders of which are required to consent to any such supplemental
indenture, or reduce the percentage of Notes, the holders of which are required
to waive any default and its consequences, without the consent of the holder of
each Note then outstanding and affected thereby; or (iii) modify any provision
of Section 6.01(c) of the Indenture (except to increase the percentage of
principal amount of securities required to rescind and annul any declaration of
amounts due and payable under the Notes), without the consent of the holder of
each Note then outstanding and affected thereby. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount of
the Notes of all series at the time outstanding affected thereby, on behalf of
the Holders of the Notes of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture with respect to such series, and its consequences,
except a default in the payment of the principal of or premium, if any, or
interest on any of the Notes of such series. Any such consent or waiver by the
registered Holder of this Note (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders and
owners of this Note and of any Note issued in exchange herefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the time and place and at the rate and in the money
herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, this Note is transferable by the registered holder hereof on the Note
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company as may be designated by the
Company accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the registered
Holder hereof or his or her attorney duly authorized in writing, and thereupon
one or more new Notes of authorized denominations and for the same aggregate
principal amount and series will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any paying agent and any Note Registrar may deem and treat
the registered Holder hereof as the absolute owner hereof (whether or not this
Note shall be overdue and notwithstanding any notice of ownership or writing
hereon made by anyone other than the Note Registrar) for the purpose of
receiving payment of or on account of the principal hereof and premium, if any,
and interest due hereon and for all other purposes, and neither the Company nor
the Trustee nor any paying agent nor any Note Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations, Notes of this
series are exchangeable for a like aggregate principal amount of Notes of this
series of a different authorized denomination, as requested by the Holder
surrendering the same.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
IN WITNESS WHEREOF, the Company has caused this Instrument to be executed.
APPALACHIAN POWER COMPANY
By:___________________________
Assistant Treasurer
Attest:
By:___________________________
Assistant Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes designated in accordance
with, and referred to in, the within-mentioned Indenture.
Dated June __, 2002
THE BANK OF NEW YORK
By:___________________________
Authorized Signatory
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
(PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE)
- ---------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
(PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
- ----------------------------------------------------------------
ASSIGNEE) the within Note and all rights thereunder, hereby
- ----------------------------------------------------------------
irrevocably constituting and appointing such person attorney to
- ----------------------------------------------------------------
transfer such Note on the books of the Issuer, with full
- ----------------------------------------------------------------
power of substitution in the premises.
Dated:________________________ _________________________
NOTICE: The signature to this assignment must correspond with
the name as written upon the face of the within Note in
every particular, without alteration or enlargement or
any change whatever and NOTICE: Signature(s) must be
guaranteed by a financial institution that is a member
of the Securities Transfer Agents Medallion Program
("STAMP"), the Stock Exchange Medallion Program
("SEMP") or the New York Stock Exchange, Inc. Medallion
Signature Program ("MSP").
Exhibit 5(a)
June 18, 2002
Appalachian Power Company
40 Franklin Road, S.W.
Roanoke, Virginia 24011
Ladies and Gentlemen:
We have acted as counsel to Appalachian Power Company, a Virginia
corporation (the "Company"), in connection with the Registration Statement on
Form S-3 (Registration Statement No. 333-81402), as amended by Amendments Nos. 1
and 2 thereto (the "Registration Statement") filed by the Company with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"), relating to $450,000,000 aggregate principal
amount of Senior Notes, Series E, due 2005 (the "Senior Notes"). The Senior
Notes have been issued under an Indenture, dated as of January 1, 1998 (the
"Indenture"), between the Company and The Bank of New York, as Trustee (the
"Trustee").
We have examined the Registration Statement and the Indenture which
has been filed with the Commission as an exhibit to the Registration Statement.
We also have examined the originals, or duplicates or certified or conformed
copies, of such records, agreements, instruments and other documents and have
made such other and further investigations as we have deemed relevant and
necessary in connection with the opinions expressed herein. As to questions of
fact material to this opinion, we have relied upon certificates of public
officials and of officers and representatives of the Company.
In rendering the opinions set forth below, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as duplicates or certified
or conformed copies and the authenticity of the originals of such latter
documents. We also have assumed that: (1) the Indenture is the valid and legally
binding obligation of the Trustee; and (2) the Company is validly existing under
the laws of Virginia.
We have assumed further that (1) the Company has duly authorized,
executed and delivered the Indenture and (2) execution, delivery and performance
by the Company of Indenture and the Senior Notes do not and will not violate the
laws of Virginia or any other applicable laws (excepting the laws of the State
of New York and the Federal laws of the United States).
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that the Senior Notes
constitute valid and legally binding obligations of the Company enforceable
against the Company in accordance with their terms, subject to the effects of
(i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally,
(ii) general equitable principles (whether considered in a proceeding in equity
or at law) and (iii) an implied covenant of good faith and fair dealing.
We are members of the Bar of the State of New York, and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the Federal law of the United States.
We hereby consent to the filing of this opinion letter as Exhibit
5(a) to the Registration Statement and to the use of our name under the caption
"Legal Opinions" in the Prospectus included in the Registration Statement.
Very truly yours,
/s/ Simpson Thacher & Bartlett
SIMPSON THACHER & BARTLETT