Exhibit 1(a)
KENTUCKY POWER COMPANY
$100,000,000 Unsecured Medium Term Notes
Selling Agency Agreement
______________ ____, 1997
Dear Sirs:
Kentucky Power Company, a Kentucky corporation (the
"Company"), confirms its agreement with each of you with respect
to the issue and sale by the Company of up to $100,000,000
aggregate principal amount of its Unsecured Medium Term Notes
(the "Notes"). The Notes will be issued under the Indenture
dated as of ______________, 1997, between the Company and Bankers
Trust Company, as trustee (the "Trustee"), as may be supplemented
by one or more supplemental indentures (said Indenture as may be
so supplemented being hereafter referred to as the "Indenture").
The Notes will be issued in minimum denominations of $1,000 and
in integral multiples thereof, will be issued only in fully
registered form and will have the annual interest rates,
maturities and, if appropriate, other terms set forth in a
supplement to the Prospectus referred to below. The Notes will
be issued, and the terms thereof established, in accordance with
the Indenture and, in the case of Notes sold pursuant to Section
2(a), the Medium Term Notes Administrative Procedures attached
hereto as Exhibit A (the "Procedures"). The Procedures may only
be amended by written agreement of the Company and you after
notice to, and with the approval of, the Trustee. For the
purposes of this Agreement, the term "Agent" shall refer to any
one of you and any Additional Agent as defined and as provided
for in Section 2(a) acting solely in the capacity as agent for
the Company pursuant to Section 2(a) and not as principal
(collectively, the "Agents"), the term the "Purchaser" shall
refer to one of you acting solely as principal pursuant to
Section 2(b) and not as agent, and the term "you" shall refer to
you collectively whether at any time any of you is acting in both
such capacities or in either such capacity.
1. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to, and agrees with, you as set forth
below in this Section 1. Certain terms used in this Section 1
are defined in paragraph (d) hereof.
(a) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933, as amended (the
"Act"), and has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on
such Form S-3 (File Number: 333-_______), including a basic
prospectus, which has become effective, for the registration
under the Act of $100,000,000 aggregate principal amount of
debt securities (the "Securities"), including the Notes.
Such registration statement meets the requirements set forth
in Rule 415(a)(1)(ix) or (x) under the Act and complies in
all other material respects with said Rule. The Company has
included in such registration statement, as amended at the
date of this Agreement, or has filed or will file with the
Commission pursuant to the applicable paragraph of Rule
424(b) under the Act, a supplement to the form of prospectus
included in such registration statement relating to the
Notes and the plan of distribution thereof (the "Prospectus
Supplement"). In connection with the sale of Notes the
Company proposes to file with the Commission pursuant to the
applicable paragraph of Rule 424(b) under the Act further
supplements to the Prospectus Supplement specifying the
interest rates, maturity dates and, if appropriate, other
terms of the Notes sold pursuant hereto or the offering
thereof.
(b) As of the Execution Time, on the Effective Date,
when any supplement to the Prospectus is filed with the
Commission, as of the date of any Terms Agreement (as
defined in Section 2(b)) and at the date of delivery by the
Company of any Notes sold hereunder (a "Closing Date"), (i)
the Registration Statement, as amended as of any such time,
and the Prospectus, as supplemented as of any such time,
will comply in all material respects with the applicable
requirements of the Act, the Securities Exchange Act of
1934, as amended (the "Exchange Act") and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the respective rules under the Act, the Exchange
Act and the Trust Indenture Act; (ii) the Registration
Statement, as amended as of any such time, did not or will
not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary in order to make the statements therein not
misleading; and (iii) the Prospectus, as supplemented as of
any such time, will not contain any untrue statement of a
material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that the Company makes no representations
or warranties as to (i) those parts of the Registration
Statement which shall constitute a Statement of Eligibility
(Form T-1) of the Trustee under the Trust Indenture Act or
(ii) the information contained in or omitted from the
Registration Statement or the Prospectus (or any supplement
thereto) in reliance upon and in conformity with information
furnished in writing to the Company by any of you expressly
for use in the Registration Statement or the Prospectus (or
any supplement thereto).
(c) As of the time any Notes are issued and sold
hereunder, the Indenture will constitute a legal, valid and
binding instrument enforceable against the Company in
accordance with its terms and such 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, fraudulent conveyance,
reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, or general
equitable principles (whether considered in a proceeding in
equity or at law), and an implied covenant of good faith and
fair dealing.
(d) The terms which follow, when used in this
Agreement, shall have the meanings indicated. The term "the
Effective Date" shall mean each date that the Registration
Statement and any post-effective amendment or amendments
thereto became or become effective. "Execution Time" shall
mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Basic Prospectus" shall
mean the form of basic prospectus relating to the Securities
contained in the Registration Statement at the Effective
Date. "Prospectus" shall mean the Basic Prospectus as
supplemented by the Prospectus Supplement. "Registration
Statement" shall mean the Registration Statement referred to
in paragraph (a) above, including incorporated documents,
exhibits and financial statements, as amended at the
Execution Time. "Rule 415" and "Rule 424" refer to such
rules under the Act. Any reference herein to the
Registration Statement, the Basic Prospectus, the Prospectus
Supplement or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date or the issue
date of the Basic Prospectus, the Prospectus Supplement or
the Prospectus, as the case may be; and any reference herein
to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus,
the Prospectus Supplement or the Prospectus shall be deemed
to refer to and include the filing of any document under the
Exchange Act after the Effective Date or the issue date of
the Basic Prospectus, the Prospectus Supplement or the
Prospectus, as the case may be, deemed to be incorporated
therein by reference.
2. APPOINTMENT OF AGENTS; SOLICITATION BY THE AGENTS
OF OFFERS TO PURCHASE; SALES OF NOTES TO A PURCHASER.
(a) Subject to the terms and conditions set forth
herein, the Company hereby authorizes each of the Agents to
act as its agent to solicit offers for the purchase of all
or part of the Notes from the Company.
On the basis of the representations and
warranties, and subject to the terms and conditions set
forth herein, each of the Agents agrees, as agent of the
Company, to use its reasonable best efforts to solicit
offers to purchase the Notes from the Company upon the terms
and conditions set forth in the Prospectus (and any
supplement thereto) and in the Procedures.
The Company reserves the right, in its sole
discretion, to instruct the Agents to suspend at any time,
for any period of time or permanently, the solicitation of
offers to purchase the Notes. Upon receipt of instructions
from the Company, the Agents will forthwith suspend
solicitation of offers to purchase Notes from the Company
until such time as the Company has advised them that such
solicitation may be resumed.
The Company expressly reserves the right, upon
fifteen business days' prior written notice to each Agent,
to appoint other persons, partnerships or corporations
("Additional Agents") to act as its agent to solicit offers
for the purchase of Notes; PROVIDED, each Additional Agent
shall be named in a prospectus supplement or pricing
supplement and shall either execute this Agreement and
become a party hereto or shall enter into an agency
agreement with the Company on terms substantially similar to
those contained herein; thereafter the term Agent as used in
this Agreement shall mean each Agent and each such
Additional Agent.
The Company agrees to pay each Agent a commission,
on the Closing Date with respect to each sale of Notes by
the Company as a result of a solicitation made by such
Agent, in an amount equal to that percentage specified in
Schedule I hereto of the aggregate principal amount of the
Notes sold by the Company. Such commission shall be payable
as specified in the Procedures.
Subject to the provisions of this Section and to
the Procedures, offers for the purchase of Notes may be
solicited by an Agent as agent for the Company at such time
and in such amounts as such Agent deems advisable. The
Company may from time to time offer Notes for sale otherwise
than through an Agent; PROVIDED, HOWEVER, that so long as
this Agreement shall be in effect the Company shall not
solicit or accept offers to purchase Notes through any agent
other than an Agent.
(b) Subject to the terms and conditions stated herein,
whenever the Company and any Agent determine that the
Company shall sell Notes directly to such Agent as
principal, each such sale of Notes shall be made in
accordance with the terms of this Agreement and, unless
otherwise agreed by the Company and such Agent, any
supplemental agreement relating thereto between the Company
and the Purchaser. Each such supplemental agreement (which
may be an oral or written agreement) is herein referred to
as a "Terms Agreement". Each Terms Agreement shall describe
(whether orally or in writing) the Notes to be purchased by
the Purchaser pursuant thereto, and shall specify the
aggregate principal amount of such Notes, the maturity date
of such Notes, the rate at which interest will be paid on
such Notes, the dates on which interest will be paid on such
Notes and the record date with respect to each such payment
of interest, the Closing Date for the purchase of such
Notes, the place of delivery of the Notes and payment
therefor, the method of payment and any requirements for the
delivery of the opinions of counsel, the certificates from
the Company or its officers, or a letter from the Company's
independent public accountants, pursuant to Section 6(b).
Any such Terms Agreement may also specify the period of time
referred to in Section 4(m). Any written Terms Agreement
may be in the form attached hereto as Exhibit B. The
Purchaser's commitment to purchase Notes shall be deemed to
have been made on the basis of the representations and
warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth.
The Company also may sell Notes to any Agent, acting as
principal, at a discount to be agreed upon at the time of
sale, for resale to one or more investors or to another
broker-dealer (acting as principal for purposes of resale)
at varying prices related to prevailing market prices at the
time of such resale as determined by such Agent. An Agent
may resell a Note purchased by it as principal to another
broker-dealer at a discount, provided such discount does not
exceed the commission or discount received by such Agent
from the Company in connection with the original sale of
such Note.
(c) The Company, however, expressly reserves the right
to place the Notes itself privately or through a negotiated
underwritten transaction with one or more underwriters
without notice to any Agent and without any opportunity for
any Agent to solicit offers for the purchase of the Notes.
In such event, no commission will be payable to the Agents.
Delivery of the Notes sold to the Purchaser
pursuant to any Terms Agreement shall be made not later than
the Closing Date agreed to in such Terms Agreement, against
payment of funds to the Company in the net amount due to the
Company for such Notes by the method and in the form set
forth in the Procedures unless otherwise agreed to between
the Company and the Purchaser in such Terms Agreement.
3. OFFERING AND SALE OF NOTES. Each Agent and the
Company agree to perform the respective duties and obligations
specifically provided to be performed by them in the Procedures.
4. AGREEMENTS. The Company agrees with you that:
(a) Prior to the termination of the offering of the
Notes, the Company will not file any amendment of the
Registration Statement or supplement to the Prospectus
(except for (i) periodic or current reports filed under the
Exchange Act; (ii) a supplement relating to any offering of
Notes providing solely for the specification of or a change
in the maturity dates, interest rates, issuance prices or
other similar terms of any Notes or (iii) a supplement
relating to an offering of Securities other than the Notes)
unless the Company has furnished each of you a copy for your
review prior to filing and given each of you a reasonable
opportunity to comment on any such proposed amendment or
supplement. Subject to the foregoing sentence, the Company
will cause each supplement to the Prospectus to be filed
with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to you of such filing. The
Company will promptly advise each of you (i) when the
Prospectus, and any supplement thereto, shall have been
filed with the Commission pursuant to Rule 424(b); (ii)
when, prior to the termination of the offering of the Notes,
any amendment of the Registration Statement shall have been
filed or become effective; (iii) of any request by the
Commission for any amendment of the Registration Statement
or supplement to the Prospectus or for any additional
information; (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the
Company of any notification with respect to the suspension
of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use every
reasonable effort to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Notes is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then
supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary
to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or
if it shall be necessary to amend the Registration Statement
or to supplement the Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the
Company promptly will (i) notify each of you to suspend
solicitation of offers to purchase Notes (and, if so
notified by the Company, each of you shall forthwith suspend
such solicitation and cease using the Prospectus as then
supplemented); (ii) prepare and file with the Commission,
subject to the first sentence of paragraph (a) of this
Section 4, an amendment or supplement which will correct
such statement or omission or effect such compliance and
(iii) supply any supplemented Prospectus to each of you in
such quantities as you may reasonably request. If such
amendment or supplement, and any documents, certificates and
opinions furnished to each of you pursuant to paragraph (g)
of this Section 4 in connection with the preparation or
filing of such amendment or supplement are satisfactory in
all respects to you, you will, upon the filing of such
amendment or supplement with the Commission and upon the
effectiveness of an amendment to the Registration Statement,
if such an amendment is required, resume your obligation to
use your reasonable best efforts to solicit offers to
purchase Notes hereunder.
(c) The Company, during the period when a prospectus
relating to the Notes is required to be delivered under the
Act, will file promptly all documents required to be filed
with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act and will furnish to each of you
copies of such documents. In addition, on or prior to the
date on which the Company makes any announcement to the
general public concerning earnings or concerning any other
event which is required to be described, or which the
Company proposes to describe, in a document filed pursuant
to the Exchange Act, the Company will furnish to each of you
the information contained or to be contained in such
announcement. The Company also will furnish to each of you
copies of all other press releases or announcements to the
general public. The Company will immediately notify each of
you of any downgrading in the rating of the Notes or any
other debt securities of the Company, or any proposal to
downgrade the rating of the Notes or any other debt
securities of the Company, by any "nationally recognized
statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act), as soon as the Company learns of
any such downgrading or proposal to downgrade.
(d) As soon as practicable, the Company will make
generally available to its security holders and to each of
you an earning statement or statements of the Company which
will satisfy the provisions of Section 11(a) of the Act and
Rule 158 under the Act.
(e) The Company will furnish to each of you and your
counsel, without charge, copies of the Registration
Statement (without exhibits) and, so long as delivery of a
prospectus may be required by the Act, as many copies of the
Prospectus and any supplement thereto as you may reasonably
request.
(f) The Company will use its best efforts to qualify
the Notes for offer and sale under the securities or "blue
sky" laws of such jurisdictions as you may designate within
six months after the final sale of Notes pursuant to this
Agreement and agrees to pay, or to reimburse you and your
counsel for, reasonable filing fees and expenses in
connection therewith in an amount not exceeding $5,000 in
the aggregate (including filing fees and expenses paid and
incurred prior to the 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) The Company shall furnish to each of you such
information, documents, certificates of officers of the
Company and opinions of counsel for the Company relating to
the business, operations and affairs of the Company, the
Registration Statement, the Prospectus, and any amendments
thereof or supplements thereto, the Indenture, the Notes,
this Agreement, the Procedures and the performance by the
Company and you of its and your respective obligations
hereunder and thereunder as any of you may from time to time
and at any time prior to the termination of this Agreement
reasonably request.
(h) The Company shall, whether or not any sale of the
Notes is consummated, (i) pay all expenses incident to the
performance of its obligations under this Agreement,
including the fees and disbursements of its accountants and
counsel, the cost of printing or other production and
delivery of the Registration Statement, the Prospectus, all
amendments thereof and supplements thereto, the Indenture,
this Agreement and all other documents relating to the
offering, the cost of preparing, printing, packaging and
delivering the Notes, the fees and disbursements of the
Trustee and the fees of any agency that rates the Notes;
(ii) reimburse each of you on a monthly basis for all out-
of-pocket expenses (including without limitation advertising
expenses) incurred with the prior approval of the Company in
connection with this Agreement; and (iii) pay the reasonable
fees and expenses of your counsel incurred in connection
with this Agreement, including fees of counsel incurred in
compliance with and to the extent stated in Section 4(f),
including the preparation of a Blue Sky Survey.
(i) Each acceptance by the Company of an offer to
purchase Notes will be deemed to be an affirmation that its
representations and warranties contained in this Agreement
are true and correct at the time of such acceptance, as
though made at and as of such time, and a covenant that such
representations and warranties will be true and correct at
the time of delivery to the purchaser of the Notes relating
to such acceptance, as though made at and as of such time
(it being understood that for purposes of the foregoing
affirmation and covenant such representations and warranties
shall relate to the Registration Statement and Prospectus as
amended or supplemented at each such time). Each such
acceptance by the Company of an offer for the purchase of
Notes shall be deemed to constitute an additional
representation, warranty and agreement by the Company that,
as of the settlement date for the sale of such Notes, after
giving effect to the issuance of such Notes, of any other
Notes to be issued on or prior to such settlement date and
of any other Securities to be issued and sold by the Company
on or prior to such settlement date, the aggregate amount of
Securities (including any Notes) which have been issued and
sold by the Company will not exceed the amount of Securities
registered pursuant to the Registration Statement.
(j) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an
amendment or supplement (i) relating to any offering of
Securities other than the Notes, (ii) incorporating by
reference information contained in a Current Report on Form
8-K filed by the Company under the Exchange Act that is (A)
filed solely under Item 5 of Form 8-K and (B) not required
to be filed to comply with Section 4(b), or (iii) providing
solely for the specification of or a change in the maturity
dates, the interest rates, the issuance prices or other
similar terms of any Notes sold pursuant hereto, unless, in
the case of clause (ii) above, in the reasonable judgment of
any of you, such information is of such a nature that a
certificate of the Company should be delivered), the Company
will deliver or cause to be delivered promptly to each of
you a certificate of the Company, signed by a Vice
President, Treasurer or Assistant Treasurer of the Company,
dated the date of the effectiveness of such amendment or the
date of the filing of such supplement, in form reasonably
satisfactory to you, of the same tenor as the certificate
referred to in Section 5(c) but modified to relate to the
last day of the fiscal quarter for which financial
statements of the Company were last filed with the
Commission and to the Registration Statement and the
Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such
supplement.
(k) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an
amendment or supplement (i) relating to any offering of
Securities other than the Notes, (ii) incorporating by
reference information contained in a Current Report on Form
8-K filed by the Company under the Exchange Act that is (A)
filed solely under Item 5 of Form 8-K and (B) not required
to be filed to comply with Section 4(b), or (iii) providing
solely for the specification of or a change in the maturity
dates, the interest rates, the issuance prices or other
similar terms of any Notes sold pursuant hereto, unless, in
the case of this clause (ii) above, in the reasonable
judgment of any of you, such information is of such a nature
that an opinion of counsel should be furnished), the Company
shall furnish or cause to be furnished promptly to each of
you a written opinion of counsel of the Company satisfactory
to each of you (which may include counsel employed by
American Electric Power Service Corporation, an affiliate of
the Company), dated the date of the effectiveness of such
amendment or the date of the filing of such supplement,
substantially in the form delivered pursuant to Section
5(b)(1) hereto or, in lieu of such opinion, counsel last
furnishing such an opinion to you may furnish each of you
with a letter to the effect that you may rely on such last
opinion to the same extent as though it were dated the date
of such letter authorizing reliance (except that statements
in such last opinion will be deemed to relate to the
Registration Statement and the Prospectus as amended and
supplemented to the time of the effectiveness of such
amendment or the filing of such supplement).
(l) If requested, each time that the Registration
Statement or the Prospectus is amended or supplemented to
include or incorporate amended or supplemental financial
information, the Company shall cause its independent public
accountants promptly to furnish each of you a letter, dated
the date of the effectiveness of such amendment or the date
of the filing of such supplement, in form satisfactory to
each of you, of the same tenor as the letter referred to in
Section 5(d) with such changes as may be necessary to
reflect the amended and supplemental financial information
included or incorporated by reference in the Registration
Statement and the Prospectus, as amended or supplemented to
the date of such letter; PROVIDED, HOWEVER, that, if the
Registration Statement or the Prospectus is amended or
supplemented solely to include or incorporate by reference
financial information as of and for a fiscal quarter, the
Company's independent public accountants may limit the scope
of such letter, which shall be satisfactory in form to each
of you, to the unaudited financial statements, the related
"Management's Discussion and Analysis of Results of
Operations and Financial Condition" and any other
information of an accounting, financial or statistical
nature included in such amendment or supplement, unless, in
the reasonable judgment of any of you, such letter should
cover other information or changes in specified financial
statement line items.
(m) During the period, if any, which shall not exceed
ten days, specified in any Terms Agreement, the Company
shall not, without the prior consent of the Purchaser
thereunder, issue or announce the proposed issuance of any
of its debt securities, including Notes, with terms
substantially similar to the Notes being purchased pursuant
to such Terms Agreement, other than borrowings under its
revolving credit agreements and lines of credit, issuances
of its commercial paper, and other forms of unsecured
borrowings from banks or other financial institutions.
5. CONDITIONS TO THE OBLIGATIONS OF THE AGENTS. The
obligations of each Agent to use its reasonable best efforts to
solicit offers to purchase the Notes shall be subject to the
accuracy of the representations and warranties on the part of the
Company contained herein as of the Execution Time, on the
Effective Date, when any supplement to the Prospectus is filed
with the Commission and as of each Closing Date, to the accuracy
of the statements of the Company made in any certificates
pursuant to the provisions hereof at each such time or date, to
the performance by the Company of its obligations hereunder and
to the following additional conditions:
(a) If filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the
Prospectus, and any such supplement, shall have been filed
in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or
threatened.
(b) That, at the Execution Time, each Agent shall be
furnished with the following opinions, dated the date
thereof, with such changes therein as may be agreed upon by
the Company and the Agents with the approval of Dewey
Ballantine, counsel to the Agents:
(1) Opinion of Simpson Thacher & Bartlett, of New
York, New York, counsel to the Company, substantially
in the form heretofore made available to the Agents;
(2) Opinion of Dewey Ballantine, of New York, New
York, counsel to the Agents, substantially in the form
heretofore made available to the Agents.
(c) The Company shall have furnished to each Agent a
certificate of the Company, signed by a Vice President,
Treasurer or Assistant Treasurer of the Company, dated the
Execution Time, to the effect that the signer of such
certificate has carefully examined the Registration
Statement, the Prospectus, any supplement to the Prospectus
and this Agreement and that:
(1) the representations and warranties of the
Company in this Agreement are true and correct in all
material respects on and as of the date hereof with the
same effect as if made on the date hereof and the
Company has complied with all the agreements and
satisfied all the conditions on its part to be
performed or satisfied as a condition to the obligation
of the Agents to solicit offers to purchase the Notes;
(2) no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose have been instituted or,
to the Company's knowledge, threatened; and
(3) since the date of the most recent financial
statements included or incorporated by reference in the
Prospectus, there has been no material adverse change
in the condition (financial or other), earnings,
business or properties of the Company and its
subsidiaries, whether or not arising from transactions
in the ordinary course of business, except as set forth
in or contemplated in the Prospectus.
(d) That the Agents shall have received a letter from
Deloitte & Touche LLP in form and substance satisfactory to
them, dated as of the Execution Time, (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 applicable published rules and
regulations of the Commission and (iii) covering as of a
date not more than five business days prior to the date of
such letter such other matters as the Agents reasonably
request.
(e) Prior to the Execution Time, the Company shall
have furnished to each Agent such further information,
documents, certificates and opinions of counsel as the
Agents may reasonably request.
If any of the conditions specified in this Section 5
shall not have been fulfilled in all material respects when and
as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form
and substance to such Agents and counsel for the Agents, this
Agreement and all obligations of any Agent hereunder may be
canceled at any time by the Agents without any liability
whatsoever. Notice of such cancellation shall be given to the
Company in writing or by telephone or telex or facsimile
transmission confirmed in writing.
The documents required to be delivered by this Section
5 shall be delivered at the offices of American Electric Power
Service Corporation, 1 Riverside Plaza, Columbus, Ohio on the
date hereof.
6. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER.
The obligations of the Purchaser to purchase any Notes will be
subject to the accuracy of the representations and warranties on
the part of the Company herein as of the date of any related
Terms Agreement and as of the Closing Date for such Notes, to the
performance and observance by the Company of all covenants and
agreements herein contained on its part to be performed and
observed and to the following additional conditions precedent:
(a) If filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the
Prospectus, and any such supplement, shall have been filed
in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or
threatened.
(b) If specified by any related Terms Agreement and
except to the extent modified by such Terms Agreement, the
Purchaser shall have received, appropriately updated, (i) a
certificate of the Company, dated as of the Closing Date, to
the effect set forth in Section 5(c) (except that references
to the Prospectus shall be to the Prospectus as supplemented
at the time of execution of the Terms Agreement); (ii) the
opinion of counsel for the Company (which may be either
Simpson Thacher & Bartlett or an attorney employed by
American Electric Power Service Corporation, an affiliate of
the Company), dated as of the Closing Date, substantially in
the form delivered pursuant to Section 5(b)(1) hereof; (iii)
the opinion of Dewey Ballantine, counsel for the Agents,
dated as of the Closing Date, substantially in the form
delivered pursuant to Section 5(b)(2) hereof, and (iv) the
letter of Deloitte & Touche LLP, independent accountants for
the Company, dated as of the Closing Date, substantially in
the form delivered pursuant to Section 5(d) hereof.
(c) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information,
certificates and documents as the Purchaser may reasonably
request.
If any of the conditions specified in this Section 6
shall not have been fulfilled in all material respects when and
as provided in this Agreement and any Terms Agreement, or if any
of the opinions and certificates mentioned above or elsewhere in
this Agreement or such Terms Agreement shall not be in all
material respects reasonably satisfactory in form and substance
to the Purchaser and its counsel, such Terms Agreement and all
obligations of the Purchaser thereunder and with respect to the
Notes subject thereto may be canceled at, or at any time prior
to, the respective Closing Date by the Purchaser without any
liability whatsoever. Notice of such cancellation shall be given
to the Company in writing or by telephone or telex or facsimile
transmission confirmed in writing.
7. RIGHT OF PERSON WHO AGREED TO PURCHASE TO REFUSE
TO PURCHASE. The Company agrees that any person who has agreed
to purchase and pay for any Note, including a Purchaser and any
person who purchases pursuant to a solicitation by any of the
Agents, shall have the right to refuse to purchase such Note if
(a) at the Closing Date therefor, any condition set forth in
Section 5 or 6, as applicable, shall not be satisfied or (b)
subsequent to the agreement to purchase such Note, there shall
have been any decrease in the ratings of any of the Company's
debt securities by Moody's Investors Service, Inc. ("Moody's") or
Standard & Poor's Ratings Group ("S&P") or either Moody's or S&P
shall publicly announce that it has any of such debt securities
under consideration for possible downgrade. Notwithstanding the
foregoing, no Agent shall have any obligation to exercise its
judgment on behalf of any purchaser.
8. INDEMNIFICATION.
(a) The Company agrees, 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, 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 such
Registration Statement 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.
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 8(a) 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 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). The Company
shall not be liable in the event of any settlement of any
such action effected without its consent.
(b) Each of you agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who
signs the Registration Statement and each person who
controls the Company within the meaning of Section 15 of the
Act, to the same extent as the foregoing indemnity from the
Company to you, but only with reference to written
information relating to such of you furnished to the Company
by such of you specifically for use in the preparation of
the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability
which you may otherwise have.
9. TERMINATION.
(a) This Agreement will continue in effect until
terminated as provided in this Section 9. This Agreement
may be terminated by either the Company as to any of you or
by any of you insofar as this Agreement relates to such of
you, by giving written notice of such termination to such of
you or the Company, as the case may be. This Agreement
shall so terminate at the close of business on the first
business day following the receipt of such notice by the
party to whom such notice is given. In the event of such
termination, no party shall have any liability to the other
party hereto, except as provided in the fifth paragraph of
Section 2(a), Section 4(h), Section 8 and Section 10. The
provisions of this Agreement (including without limitation
Section 7 hereof) applicable to any purchase of a Note for
which an agreement to purchase exists prior to the
termination hereof shall survive any termination of this
Agreement. If, at the time of any such termination, (i) any
Purchaser shall own any Notes purchased pursuant to a Terms
Agreement with the intention of reselling them or (ii) an
offer to purchase any of the Notes has been accepted by the
Company but the time of delivery to the purchaser or its
agent of such Notes has not occurred, the covenants set
forth in Sections 4 and 6 hereof shall remain in effect for
such period of time (not exceeding nine months) until such
Notes are so resold or delivered, as the case may be.
(b) Each Terms Agreement shall be subject to
termination if, in the Purchaser's reasonable judgment, the
Purchaser's ability to market the 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, (ii) a general banking moratorium shall have
been declared by Federal or New York state authorities,
(iii) there shall have been a decrease in the ratings of any
of the Company's debt securities by Moody's or S&P or either
Moody's or S&P shall have publicly announced that it has any
of such debt securities under consideration for possible
downgrade or (iv)(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 forces of the United States of America shall have
commenced or escalated.
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The
respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers and of you
set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or
on behalf of you or the Company or any of the officers, directors
or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Notes. The provisions of
the fifth paragraph of Section 2(a) and Sections 4(h) and 8
hereof shall survive the termination or cancellation of this
Agreement.
11. NOTICES. All communications hereunder will be in
writing and effective only on receipt, and, if sent to any of
you, will be delivered or sent by mail, telex or facsimile
transmission to such of you, at the address specified in Schedule
I hereto; or, if sent to the Company, will be delivered or sent
by mail, telex or facsimile transmission to it at 1 Riverside
Plaza, Columbus, Ohio 43215, attention of A. A. Pena, Treasurer.
12. SUCCESSORS. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and
controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
13. APPLICABLE LAW. This Agreement will be governed
by 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.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed
duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and you.
Very truly yours,
KENTUCKY POWER COMPANY
By:___________________________
A. A. Pena
Treasurer
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
______________________________
By:___________________________
Its:__________________________
______________________________
By:___________________________
Its:__________________________
SCHEDULE I
COMMISSIONS:
The Company agrees to pay each Agent a commission equal to
the following percentage of the principal amount of each Note
sold on an agency basis by such Agent:
Term Commission Rate
---- ---------------
From 9 months to less than 1 year
From 1 year to less than 18 months
From 18 months to less than 2 years
From 2 years to less than 3 years
From 3 years to less than 4 years
From 4 years to less than 5 years
From 5 years to less than 6 years
From 6 years to less than 7 years
From 7 years to less than 10 years
From 10 years to less than 15 years
From 15 years to less than 20 years
From 20 years up to and including 42 years
Unless otherwise specified in the applicable Terms
Agreement, the discount or commission payable to a Purchaser
shall be determined on the basis of the commission schedule set
forth above.
ADDRESS FOR NOTICE TO YOU:
Notices to ____________________ shall be directed to it at
________________________________________________________________
________________________________________________________________.
Notices to ____________________ shall be directed to it at
________________________________________________________________
________________________________________________________________.
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