EXHIBIT 1(b)
APPALACHIAN POWER COMPANY
Underwriting Agreement
Dated ____________________
AGREEMENT made between APPALACHIAN POWER COMPANY, a corporation organized
and existing under the laws of the Commonwealth of Virginia (the "Company"), and
the several persons, firms and corporations (the "Underwriters") named in
Exhibit 1 hereto.
WITNESSETH:
WHEREAS, the Company proposes to issue and sell $__________ principal
amount of its [Unsecured Notes] to be issued pursuant to the Indenture dated as
of January 1, 1998, between the Company and The Bank of New York, as trustee
(the "Trustee"), as heretofore supplemented and amended and as to be further
supplemented and amended (said Indenture as so supplemented being hereafter
referred to as the Indenture); and
WHEREAS, the Underwriters have designated the person signing this
Agreement (the Representative) to execute this Agreement on behalf of the
respective Underwriters and to act for the respective Underwriters in the manner
provided in this Agreement; and
WHEREAS, the Company has prepared and filed, in accordance with the
provisions of the Securities Act of 1933 (the Act), with the Securities and
Exchange Commission (the Commission), a registration statement and prospectus or
prospectuses relating to the [Unsecured Notes] and such registration statement
has become effective; and
WHEREAS, such registration statement, as it may have been amended to the
date hereof, including the financial statements, the documents incorporated or
deemed incorporated therein by reference and the exhibits, being herein called
the Registration Statement, and the prospectus, as included or referred to in
the Registration Statement to become effective, as it may be last amended or
supplemented prior to the effectiveness of the agreement (the Basic Prospectus),
and the Basic Prospectus, as supplemented by a prospectus supplement which
includes certain information relating to the Underwriters, the principal amount,
price and terms of offering, the interest rate and redemption prices of the
[Unsecured Notes], first filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) of the Commission's General Rules and Regulations under
the Act (the Rules), including all documents then incorporated or deemed to have
been incorporated therein by reference, being herein call the Prospectus.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, it is agreed between the parties as follows:
1. Purchase and Sale: Upon the basis of the warranties and representations
and on the terms and subject to the conditions herein set forth, the Company
agrees to sell to the respective Underwriters named in Exhibit 1 hereto,
severally and not jointly, and the respective Underwriters, severally and not
jointly, agree to purchase from the Company, the respective principal amounts of
the [Unsecured Notes] set opposite their names in Exhibit 1 hereto, together
aggregating all of the [Unsecured Notes], at a price equal to ______% of the
principal amount thereof.
2. Payment and Delivery: Payment for the [Unsecured Notes] shall be made
to the Company or its order by certified or bank check or checks, payable in New
York Clearing House funds, at the office of 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 Thomas
G. Berkemeyer, Esq., Ann B. Graf, Esq., David C. House,
Esq., William E. Johnson, Esq. or Kevin R. Fease, 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, appropriate orders of the
Virginia State Corporation Commission and the Tennessee
Regulatory Authority, necessary to permit the sale of the
[Unsecured Notes] to the Underwriters, shall be in effect; and
that, prior to the Time of Purchase, no stop order with respect
to the effectiveness of the Registration Statement shall have
been issued under the Act by the Commission or proceedings
therefor initiated.
(f) That, at the Time of Purchase, there shall not have been any
material adverse change in the business, properties or financial
condition of the Company from that set forth in the Prospectus
(other than changes referred to in or contemplated by the
Prospectus), and that the Company shall, at the Time of
Purchase, have delivered to the Representative a certificate of
an executive officer of the Company to the effect that, to the
best of his knowledge, information and belief, there has been no
such change.
(g) That the Company shall have performed such of its obligations
under this Agreement as are to be performed at or before the
Time of Purchase by the terms hereof.
4. Certain Covenants of the Company: In further consideration of the
agreements of the Underwriters herein contained, the Company covenants as
follows:
(a) As soon as practicable, and in any event within the time
prescribed by Rule 424 under the Act, to file any Prospectus
Supplement relating to the [Unsecured Notes] with the
Commission; as soon as the Company is advised thereof, to advise
the Representative and confirm the advice in writing of any
request made by the Commission for amendments to the
Registration Statement or the Prospectus or for additional
information with respect thereto or of the entry of a stop order
suspending the effectiveness of the Registration Statement or of
the initiation or threat of any proceedings for that purpose
and, if such a stop order should be entered by the Commission,
to make every reasonable effort to obtain the prompt lifting or
removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as
practicable (and in any event within 24 hours after the date
hereof), and from time to time thereafter during such period of
time (not exceeding nine months) after the date hereof as they
are required by law to deliver a prospectus, as many copies of
the Prospectus (as supplemented or amended if the Company shall
have made any supplements or amendments thereto) as the
Representative may reasonably request; and in case any
Underwriter is required to deliver a prospectus after the
expiration of nine months after the date hereof, to furnish to
any Underwriter, upon request, at the expense of such
Underwriter, a reasonable quantity of a supplemental prospectus
or of supplements to the Prospectus complying with Section
10(a)(3) of the Act.
(c) To furnish to the Representative a copy, certified by the
Secretary or an Assistant Secretary of the Company, of the
Registration Statement as initially filed with the Commission
and of all amendments thereto (exclusive of exhibits), and, upon
request, to furnish to the Representative sufficient plain
copies thereof (exclusive of exhibits) for distribution of one
to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the
date hereof as they are required by law to deliver a prospectus,
if any event shall have occurred as a result of which it is
necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not contain any
untrue statement of a material fact or not omit to state any
material fact required to be stated therein or necessary in
order to make the statements therein not misleading, forthwith
to prepare and furnish, at its own expense, to the Underwriters
and to dealers (whose names and addresses are furnished to the
Company by the Representative) to whom principal amounts of the
[Unsecured Notes] may have been sold by the Representative for
the accounts of the Underwriters and, upon request, to any other
dealers making such request, copies of such amendments to the
Prospectus or supplements to the Prospectus.
(e) As soon as practicable, the Company will make generally
available to its security holders and to the Underwriters an
earnings statement or statement of the Company and its
subsidiaries which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the [Unsecured Notes] for
offer and sale under the securities or "blue sky" laws of such
jurisdictions as the Representative may designate within six
months after the date hereof and itself to pay, or to reimburse
the Underwriters and their counsel for, reasonable filing fees
and expenses in connection therewith in an amount not exceeding
$3,500 in the aggregate (including filing fees and expenses paid
and incurred prior to the effective date hereof), provided,
however, that the Company shall not be required to qualify as a
foreign corporation or to file a consent to service of process
or to file annual reports or to comply with any other
requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes
on resales of the [Unsecured Notes] by the respective
Underwriters) in connection with the issuance and delivery of
the [Unsecured Notes], except that the Company shall be required
to pay the fees and disbursements (other than disbursements
referred to in paragraph (f) of this Section 4) of 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, as amended
("1935 Act") in connection with the sale of the [Unsecured
Notes].
[(j) The Company will use its best efforts to list, subject to notice
of issuance, the [Unsecured Notes] on the New York Stock
Exchange.]
[(k) During the period from the date hereof and continuing to and
including the earlier of (i) the date which is after the Time of
Purchase on which the distribution of the [Unsecured Notes]
ceases, as determined by the Representative in its sole
discretion, and (ii) the date which is 30 days after the Time of
Purchase, the Company agrees not to offer, sell, contract to
sell or otherwise dispose of any [Unsecured Notes] of the
Company or any substantially similar securities of the Company
without the consent of the Representative.]
5. Warranties of and Indemnity by the Company: The Company represents
and warrants to, and agrees with you, as set forth below:
(a) the Registration Statement on its effective date complied, or
was deemed to comply, with the applicable provisions of the Act
and the rules and regulations of the Commission and the
Registration Statement at its effective date did not, and at the
Time of Purchase will not, contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and the Basic Prospectus at the time that the
Registration Statement became effective, and the Prospectus when
first filed in accordance with Rule 424(b) complies, and at the
Time of Purchase the Prospectus will comply, with the applicable
provisions of the Act and the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission, the
Basic Prospectus at the time that the Registration Statement
became effective, and the Prospectus when first filed in
accordance with Rule 424(b) did not, and the Prospectus at the
Time of Purchase will not, contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, except that the Company makes no warranty or
representation to the Underwriters with respect to any
statements or omissions made in the Registration Statement or
Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by, or through the
Representative on behalf of, any Underwriter expressly for use
in the Registration Statement, the Basic Prospectus or
Prospectus, or to any statements in or omissions from that part
of the Registration Statement that shall constitute the
Statement of Eligibility under the Trust Indenture Act of 1939
of any indenture trustee under an indenture of the Company.
(b) As of the Time of Purchase, the Indenture will have been duly
authorized by the Company and duly qualified under the Trust
Indenture Act of 1939, as amended, and, when executed and
delivered by the Trustee and the Company, will constitute a
legal, valid and binding instrument enforceable against the
Company in accordance with its terms and such [Unsecured Notes]
will have been duly authorized, executed, authenticated and,
when paid for by the purchasers thereof, will constitute legal,
valid and binding obligations of the Company entitled to the
benefits of the Indenture, except as the enforceability thereof
may be limited by bankruptcy, insolvency, or other similar laws
affecting the enforcement of creditors' rights in general, and
except as the availability of the remedy of specific performance
is subject to general principles of equity (regardless of
whether such remedy is sought in a proceeding in equity or at
law), and by an implied covenant of good faith and fair dealing.
(c) To the extent permitted by law, to indemnify and hold you
harmless and each person, if any, who controls you within the
meaning of Section 15 of the Act, against any and all losses,
claims, damages or liabilities, joint or several, to which you,
they or any of you or them may become subject under the Act or
otherwise, and to reimburse you and such controlling person or
persons, if any, for any legal or other expenses incurred by you
or them in connection with defending any action, insofar as such
losses, claims, damages, liabilities or actions arise out of or
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 1935 Act; (C) the qualification of the Indenture under
the 1939 Act; (D) the approval of the Virginia State Corporation
Commission and the Tennessee Regulatory Authority; and (E) such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws.
The Company's indemnity agreement contained in Section 5(c) hereof, and
its covenants, warranties and representations contained in this Agreement, shall
remain in full force and effect regardless of any investigation made by or on
behalf of any person, and shall survive the delivery of and payment for the
[Unsecured Notes] hereunder.
6. Warranties of and Indemnity by Underwriters:
(a) Each Underwriter warrants and represents that the information
furnished in writing to the Company through the Representative
for use in the Registration Statement, in the Basic Prospectus,
in the Prospectus, or in the Prospectus as amended or
supplemented is correct as to such Underwriter.
(b) Each Underwriter agrees, to the extent permitted by law, to
indemnify, hold harmless and reimburse the Company, its
directors and such of its officers as shall have signed the
Registration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the Act, to the
same extent and upon the same terms as the indemnity agreement
of the Company set forth in Section 5(c) hereof, but only with
respect to untrue statements or alleged untrue statements or
omissions or alleged omissions made in the Registration
Statement, or in the Basic Prospectus, or in the Prospectus, or
in the Prospectus as so amended or supplemented, in reliance
upon and in conformity with information furnished in writing to
the Company by the Representative on behalf of such Underwriter
expressly for use therein. The Company agrees promptly after the
receipt by it of written notice of the commencement of any
action in respect to which indemnity from you on account of your
agreement contained in this Section 6(b) may be sought by the
Company, or by any person controlling the Company, to notify you
in writing of the commencement thereof, but the Company's
omission so to notify you of any such action shall not release
you from any liability which you may have to the Company or to
such controlling person otherwise than on account of the
indemnity agreement contained in this Section 6(b).
The indemnity agreement on the part of each Underwriter contained in
Section 6(b) hereof, and the warranties and representations of such Underwriter
contained in this Agreement, shall remain in full force and effect regardless of
any investigation made by or on behalf of the Company or other person, and shall
survive the delivery of and payment for the [Unsecured Notes] hereunder.
7. Default of Underwriters: If any Underwriter under this Agreement shall
fail or refuse (otherwise than for some reason sufficient to justify, in
accordance with the terms hereof, the cancellation or termination of its
obligations hereunder) to purchase and pay for the principal amount of
[Unsecured Notes] which it has agreed to purchase and pay for hereunder, and the
aggregate principal amount of [Unsecured Notes] which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate principal amount of the [Unsecured Notes], the
other Underwriters shall be obligated severally in the proportions which the
amounts of [Unsecured Notes] set forth opposite their names in Exhibit 1 hereto
bear to the aggregate principal amount of [Unsecured Notes] set forth opposite
the names of all such non-defaulting Underwriters, to purchase the [Unsecured
Notes] which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on the terms set forth herein; provided that in no event
shall the principal amount of [Unsecured Notes] which any Underwriter has agreed
to purchase pursuant to Section 1 hereof be increased pursuant to this Section 7
by an amount in excess of one-ninth of such principal amount of [Unsecured
Notes] without the written consent of such Underwriter. If any Underwriter or
Underwriters shall fail or refuse to purchase [Unsecured Notes] and the
aggregate principal amount of [Unsecured Notes] with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of the
[Unsecured Notes] then this Agreement shall terminate without liability on the
part of any defaulting Underwriter; provided, however, that the non-defaulting
Underwriters may agree, in their sole discretion, to purchase the [Unsecured
Notes] which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on the terms set forth herein. In the event the Company
shall be entitled to but shall not elect (within the time period specified
above) to exercise its rights under clause (a) and/or (b), then this Agreement
shall terminate. In the event of any such termination, the Company shall not be
under any liability to any Underwriter (except to the extent, if any, provided
in Section 4(h) hereof), nor shall any Underwriter (other than an Underwriter
who shall have failed or refused to purchase the [Unsecured Notes] without some
reason sufficient to justify, in accordance with the terms hereof, its
termination of its obligations hereunder) be under any liability to the Company
or any other Underwriter.
Nothing herein contained shall release any defaulting Underwriter from its
liability to the Company or any non-defaulting Underwriter for damages
occasioned by its default hereunder.
8. Termination of Agreement by the Underwriters: This Agreement may be
terminated at any time prior to the Time of Purchase by the Representative if,
after the execution and delivery of this Agreement and prior to the Time of
Purchase, in the Representative's reasonable judgment, the Underwriters' ability
to market the [Unsecured Notes] shall have been materially adversely affected
because:
(i) trading in securities on the New York Stock Exchange shall have
been generally suspended by the Commission or by the New York Stock
Exchange, or
(ii) (A) a war involving the United States of America shall have been
declared, (B) any other national calamity shall have occurred, or (C) any
conflict involving the armed services of the United States of America
shall have escalated, or
(iii)a general banking moratorium shall have been declared by
Federal or New York State authorities, or
(iv) there shall have been any decrease in the ratings of the
Company's first mortgage bonds by 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 Appalachian Power Company, c/o American Electric Power Service
Corporation, 1 Riverside Plaza, Columbus, Ohio 43215, attention of S. P. Smith,
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 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. P. Smith
Treasurer
______________________________
as Representative
and on behalf of the Underwriters
named in Exhibit 1 hereto
By:____________________________
EXHIBIT 1
Name Principal Amount