Exhibit 4.4
AMERICAN ELECTRIC POWER COMPANY, INC.
REMARKETING AGREEMENT
REMARKETING AGREEMENT, dated as of June 11, 2002 (the "Agreement") by
and between American Electric Power Company, Inc., a New York corporation (the
"Company"), and Salomon Smith Barney Inc. (the "Remarketing Agent"), and
confirmed and accepted by The Bank of New York, not individually but solely as
Forward Purchase Contract Agent (the "Forward Purchase Contract Agent") and as
attorney-in-fact of the Holders of Forward Purchase Contracts (as defined in the
Forward Purchase Contract Agreement (as defined herein)).
WHEREAS, the Company issued $300,000,000 (or up to $345,000,000 if the
Underwriters' over-allotment option was exercised in full) aggregate stated
amount of its Equity Units (the "Equity Units") under the Forward Purchase
Contract Agreement, dated as of June 11, 2002, by and between the Forward
Purchase Contract Agent and the Company (the "Forward Purchase Contract
Agreement"); and
WHEREAS, the notes forming a part of the Equity Units (the "Notes")
have been pledged pursuant to the Pledge Agreement (the "Pledge Agreement"),
dated as of June 11, 2002, by and among the Company, The Bank of New York, as
collateral agent (the "Collateral Agent"), custodial agent and securities
intermediary and the Forward Purchase Contract Agent, to secure the obligations
of Holders of Equity Units under the related Forward Purchase Contracts on the
Stock Purchase Date; and
WHEREAS, the Remarketing Agent will attempt on the Remarketing Date to
remarket all of (i) the Notes of Holders of Equity Units, other than the Notes
of Holders of Equity Units who elect not to participate in the remarketing, and
(ii) the Separate Notes of Holders who elect to participate in the remarketing,
pursuant respectively to the procedures set forth in Section 5.6(b) of the
Forward Purchase Contract Agreement, Section 4.5(d) of the Pledge Agreement and
Section 1.6 of the Supplemental Indenture (as defined below) (each of which
Sections is incorporated herein by reference); and
WHEREAS, in the event the remarketing on the Remarketing Date is
unsuccessful, the Remarketing Agent will remarket the Notes to be included in
the remarketing on each of the two Business Days immediately following the
Remarketing Date, and, if necessary, will attempt to remarket such Notes on each
of the three Business Days immediately preceding June 16, 2005 and, if
necessary, will further attempt to remarket such Notes on each of the three
Business Days immediately preceding July 16, 2005 and, if necessary, will
further attempt to remarket the Notes on each of the three Business Days
immediately preceding August 12, 2005; and
WHEREAS, in the event of a successful remarketing on the Remarketing
Date or any Subsequent Remarketing Date, as the case may be, the applicable
interest rate on the Notes included in such successful remarketing will be reset
on the settlement date of such
Remarketing Date or Subsequent Remarketing Date to the Reset Rate to be
determined by the Remarketing Agent such that the then current aggregate market
value of the Notes will equal approximately, but not less than, 100.25% of the
Remarketing Value (as described in the Third Supplemental Indenture, dated as of
June 11, 2002, between the Company and The Bank of New York, as trustee (the
"Supplemental Indenture")), as of such Remarketing Date or Subsequent
Remarketing Date, provided that in the determination of such Reset Rate, the
Company shall, if applicable, limit the Reset Rate to the maximum rate permitted
by applicable law; and
WHEREAS, the Company has requested Salomon Smith Barney Inc. to act as
the Remarketing Agent, and as such to perform the services described herein; and
WHEREAS, Salomon Smith Barney Inc. is willing to act as the Remarketing
Agent and as such to perform such duties on the terms and conditions expressly
set forth herein;
NOW, THEREFORE, for and in consideration of the covenants herein made,
and subject to the conditions herein set forth, the parties hereto agree as
follows:
Section 1. Definitions.
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Capitalized terms used and not defined in this Agreement, in the
recitals hereto or in the paragraph preceding such recitals shall have the
meanings assigned to them in the Forward Purchase Contract Agreement or, if not
therein defined, the Pledge Agreement.
Section 2. Appointment and Obligations of Remarketing Agent.
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(a) The Company hereby appoints Salomon Smith Barney Inc. and Salomon
Smith Barney Inc. hereby accepts such appointment, (i) as the Remarketing Agent
to determine, in consultation with the Company, in the manner provided for
herein, in the Forward Purchase Contract Agreement and in the Notes, the Reset
Rate that, in the opinion of the Remarketing Agent, will, when applied to the
Notes, enable the then current aggregate market value of the Notes to have a
value equal to approximately, but not less than, 100.25% of the Remarketing
Value as of the Remarketing Date or as of any Subsequent Remarketing Date, as
the case may be, provided that the Company, by notice to the Remarketing Agent
prior to (A) the tenth Business Day preceding the Remarketing Date, with respect
to any remarketing to occur on either the Remarketing Date or the two Business
Days immediately following such Remarketing Date, (B) the fifth Business Day
preceding June 16, 2005, with respect to any remarketing to occur on any of the
three Business Days immediately preceding June 16, 2005, (C) the fifth Business
Day preceding July 16, 2005 with respect to any remarketing to occur on any of
the three Business Days immediately preceding July 16, 2005 or (D) the fifth
Business Day preceding August 12, 2005, with respect to any remarketing to occur
on any of the three Business Days immediately preceding August 12, 2005, shall,
if applicable, limit the Reset Rate so that it does not exceed the maximum rate
permitted by applicable law, and (ii) as the exclusive Remarketing Agent
(subject to the right of such Remarketing Agent to appoint additional
remarketing agents hereunder as described below) to remarket the
Notes to be included in the remarketing on the Remarketing Date or during any
subsequent Remarketing Period, as the case may be. The Remarketing Agent shall
have the right, on 15 Business Days' notice to the Company, to appoint one or
more additional remarketing agents so long as any such additional remarketing
agents shall be reasonably acceptable to the Company. Upon any such appointment,
the parties shall enter into an appropriate amendment to this Agreement to
reflect the addition of any such additional remarketing agent.
(b) Subject to the terms and conditions set forth herein and in the
Forward Purchase Contract Agreement, the Remarketing Agent shall use its
commercially reasonable best efforts to (i) remarket on the Remarketing Date the
Notes that the Forward Purchase Contract Agent or the Custodial Agent shall have
notified the Remarketing Agent are to be remarketed at a Reset Rate such that
the then current aggregate market value of the Notes is equal to approximately,
but not less than, 100.25% of the Remarketing Value, (ii) in the event the
Remarketing Agent cannot establish such a Reset Rate on the Remarketing Date,
attempt to remarket such Notes on each of the two Business Days immediately
following the Remarketing Date and, if necessary, on each of the three Business
Days immediately preceding June 16, 2005 and, if necessary, on each of the three
Business Days immediately preceding July 16, 2005 and, if necessary, on each of
the three Business Days preceding August 12, 2005, in each case at a Reset Rate
such that the then current aggregate market value of the Notes is equal to
approximately, but not less than, 100.25% of the Remarketing Value and (iii) in
the event of a Last Failed Remarketing, promptly return the Pledged Notes, if
any, included in such Last Failed Remarketing to the Collateral Agent to be held
by the Collateral Agent in accordance with Section 4.5(b) of the Pledge
Agreement (which Section is incorporated herein by reference) and return any
Separate Notes included in the remarketing to the Custodial Agent in accordance
with Section 4.5(d) of the Pledge Agreement, Section 5.6(e) of the Forward
Purchase Contract Agreement and Section 1.6 of the Supplemental Indenture (which
Sections are incorporated herein by reference). After deducting the fee
specified in Section 3 below, the proceeds of any such successful remarketing
shall be delivered to the Forward Purchase Contract Agent or the Custodial
Agent, as applicable, in accordance with Section 4.5(a) of the Pledge Agreement
(which Section is incorporated herein by reference) and Section 5.6(b) of the
Forward Purchase Contract Agreement (which Section is incorporated herein by
reference). The right of each Holder of Equity Units or Separate Notes to have
Notes included in any remarketing shall be subject to the conditions that (i)
the Remarketing Agent conducts a remarketing on such date pursuant to the terms
of this Agreement, (ii) the Notes included in a remarketing have not been called
for redemption upon the occurrence of a Tax Event, (iii) the Remarketing Agent
is able to find a purchaser or purchasers for the Notes included in a
remarketing at a Reset Rate such that the then current aggregate market value of
the Notes is equal to approximately, but not less than, 100.25% of the
Remarketing Value and (iv) such purchaser or purchasers deliver the purchase
price therefor to the Remarketing Agent as and when required.
(c) It is understood and agreed that the Remarketing Agent shall not
have any obligation whatsoever to purchase any Notes, whether in a remarketing
held on the Remarketing Date or on any Subsequent Remarketing Date or otherwise,
and shall in no way be obligated to provide funds to make payment upon tender of
Notes for remarketing or to otherwise expend or risk its own funds or incur or
be exposed to financial liability in the performance of its duties under this
Agreement. The Company shall not be obligated in any case to provide funds to
make payment upon delivery of Notes for remarketing.
Section 3. Fees.
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In the event of a successful remarketing, the Remarketing Agent shall
retain as a remarketing fee (the "Remarketing Fee") an amount not exceeding 25
basis points (0.25%) of the total proceeds received in connection with the
remarketing in accordance with Section 5.4(d) of the Forward Purchase Contract
Agreement and Section 1.6 of the Supplemental Indenture.
Section 4. Replacement and Resignation of Remarketing Agent.
-------------------------------------------------
(a) The Company may in its absolute discretion replace Salomon Smith
Barney Inc. as the Remarketing Agent by giving notice prior to 3:00 p.m., New
York City time on (i) the eleventh Business Day immediately prior to the
Remarketing Date in the case of a remarketing to occur on the Remarketing Date
or either of the two Business Days immediately following the Remarketing Date,
(ii) the seventh Business Day immediately prior to June 16, 2005 in the case of
a remarketing to occur on a Subsequent Remarketing Date immediately following a
Failed Remarketing on any of the two Business Days immediately following the
Remarketing Date, (iii) the seventh Business Day immediately prior to July 16,
2005 in the case of a remarketing to occur on any of the three Business Days
immediately prior to July 16, 2005 or (iv) the fourteenth Business Day
immediately prior to the Stock Purchase Date in the case of a remarketing to
occur on any of the three Business Days immediately prior to August 12, 2005.
Any such replacement shall become effective upon the Company's appointment of a
successor to perform the services that would otherwise be performed hereunder by
the Remarketing Agent. Upon providing such notice, the Company shall use all
reasonable efforts to appoint such a successor and to enter into a remarketing
agreement with such successor as soon as reasonably practicable.
(b) Salomon Smith Barney Inc. may resign at any time and be discharged
from its duties and obligations hereunder as the Remarketing Agent by giving
notice prior to 3:00 p.m., New York City time on (i) the eleventh Business Day
immediately prior to the Remarketing Date in the case of a remarketing to occur
on the Remarketing Date or either of the two Business Days immediately following
the Remarketing Date, (ii) the seventh Business Day immediately prior to June
16, 2005 in the case of a remarketing to occur on a Subsequent Remarketing Date
immediately following a Failed Remarketing on any of the two Business Days
immediately following the Remarketing Date, (iii) the seventh Business Day
immediately prior to July 16, 2005 in the case of a remarketing to occur on any
of the three Business Days immediately prior to July 16, 2005 or (iv) the
fourteenth Business Day immediately prior to the Stock Purchase Date in the case
of a remarketing to occur on any of the three Business Days immediately prior to
August 12, 2005. Any such resignation shall become effective upon the Company's
appointment of a successor to perform the services that would otherwise be
performed hereunder by the Remarketing Agent. Upon receiving notice from the
Remarketing Agent that it wishes to resign hereunder, the Company shall use all
reasonable efforts to appoint such a successor and enter into a remarketing
agreement with it as soon as reasonably practicable.
(c) The Company shall give the Forward Purchase Contract Agent, the
Collateral Agent, the Custodial Agent and the Trustee prompt written notice of
any replacement of the Remarketing Agent pursuant to this section.
Section 5. Dealing in the Securities.
--------------------------
The Remarketing Agent, when acting hereunder or when acting in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold or deal in any of the Notes, Equity Units, Stripped Units or any
other securities of the Company; provided, however, that in buying, selling,
holding, or dealing in any of the Notes, Equity Units, Stripped Units or any
other securities of the Company, the Remarketing Agent may not violate any of
its duties under this Agreement. With respect to any Notes, Equity Units,
Stripped Units or any other securities of the Company owned by it, the
Remarketing Agent may exercise any vote or join in any action with like effect
as if it did not act in any capacity hereunder. The Remarketing Agent, in its
individual capacity, either as principal or agent, may also engage in or have an
interest in any financial or other transaction with the Company as freely as if
it did not act in any capacity hereunder.
The Company or its affiliates may, to the extent permitted by law,
purchase any Notes that are remarketed by the Remarketing Agent.
Section 6. Registration Statement and Prospectus.
--------------------------------------
(a) In connection with any remarketing to occur on the Remarketing Date
or any Subsequent Remarketing Date, if and to the extent required, in the view
of counsel (which need not be an opinion) for each of the Remarketing Agent and
the Company, by applicable law, regulations or interpretations in effect at the
time of the Remarketing Date or Subsequent Remarketing Date, as the case may be,
the Company (i) shall use its reasonable efforts (A) to have a registration
statement relating to the Notes effective under the Securities Act of 1933 and
(B) to furnish a current preliminary prospectus or, if applicable, a current
preliminary prospectus supplement (in such quantities as the Remarketing Agent
may reasonably request), to be used by the Remarketing Agent in a remarketing
hereunder, in each case by a date that is no later than (w) seven Business Days
prior to the Remarketing Date in the case of a remarketing to occur on the
Remarketing Date or on any of the two Business Days immediately following the
Remarketing Date, and (x) ten Business Days prior to June 16, 2005 in the case
of a
remarketing to occur on any of the three Business Days prior to June 16, 2005,
(y) ten Business Days prior to July 16, 2005 in the case of a remarketing to
occur on any of the three Business Days immediately prior to July 16, 2005 or
(z) ten Business Days prior to the Stock Purchase Date in the case of a
remarketing to occur on any of the three Business Days prior to August 12, 2005
(or in each such case, at such earlier date as the Remarketing Agent may
reasonably request), and (ii) if requested by the Remarketing Agent, shall
furnish a current final prospectus or, if applicable, a final prospectus
supplement, to be used by the Remarketing Agent in the remarketing hereunder, by
a date that is no later than (w) five Business Days prior to the Remarketing
Date in the case of a remarketing to occur on the Remarketing Date or on any of
the two Business Days immediately following the Remarketing Date, and (x) eight
Business Days prior to June 16, 2005 in the case of a remarketing to occur on
any of the three Business Days prior to June 16, 2005, (y) eight Business Days
prior to July 16, 2005 in the case of a remarketing to occur on any of the three
Business Days immediately prior to July 16, 2005 or (z) eight Business Days
prior to the Stock Purchase Date in the case of a remarketing to occur on any of
the three Business Days prior to August 12, 2005 (or in each such case, at such
earlier date as the Remarketing Agent may reasonably request). The Company shall
pay all expenses relating thereto.
(b) If in connection with any remarketing, it shall not be possible, in
the view of counsel (which need not be an opinion) for each of the Remarketing
Agent and the Company, under applicable law, regulations or interpretations in
effect as of the Remarketing Date or subsequent Remarketing Period, as the case
may be, to register the offer and sale by the Remarketing Agent of the Notes
under the Securities Act of 1933 as otherwise contemplated by this Section 6,
the Company (i) shall use its reasonable efforts to take, or cause to be taken,
all action and to do, or cause to be done, all things necessary, proper and
advisable to permit and effectuate the offer and sale of the Notes in connection
with any remarketing hereunder without registration under the Securities Act of
1933 pursuant to an exemption therefrom, if available, including the exemption
afforded by Rule 144A promulgated under the Securities Act of 1933 by the
Securities and Exchange Commission, and (ii) if requested by the Remarketing
Agent, shall furnish a current preliminary remarketing memorandum and a current
final remarketing memorandum (in such quantities as the Remarketing Agent may
reasonably request) to be used by the Remarketing Agent in any remarketing
hereunder, in each case by a date that is not later than (A) seven Business Days
prior to the Remarketing Date in the case of a remarketing to occur on the
Remarketing Date or on any of the two Business Days immediately following the
Remarketing Date, and (B) ten Business Days prior to June 16, 2005 in the case
of a remarketing to occur on any of the three Business Days immediately prior to
June 16, 2005 and (C) ten Business Days prior to July 16, 2005 in the case of a
remarketing to occur on any of the three Business Days prior to July 16, 2005 or
(D) ten Business Days prior to the Stock Purchase Date in the case of a
remarketing to occur on any of the three Business Days prior to August 12, 2005
(or in either case such earlier date as the Remarketing Agent may reasonably
request). The Company shall pay all expenses relating thereto.
(c) The Company shall also take all reasonable actions as may (upon
advice of counsel to the Company or the Remarketing Agent) be necessary or
desirable under state securities or blue sky laws in connection with any
remarketing.
Section 7. Conditions to the Remarketing Agent's Obligations.
--------------------------------------------------
(a) The obligations of the Remarketing Agent under this Agreement shall
be subject to the terms and conditions hereof, including, without limitation,
the following conditions: (i) the Notes to be included in any remarketing have
not been called for redemption, (ii) the Remarketing Agent is able to find a
purchaser or purchasers for the Notes included in any remarketing at a price
equal to approximately, but not less than, 100.25% of the Remarketing Value,
(iii) the Forward Purchase Contract Agent, the Collateral Agent, the Custodial
Agent, the Securities Intermediary, the Company and the Trustee shall have
performed their respective obligations in connection with any remarketing
hereunder and pursuant to the Forward Purchase Contract Agreement, the Pledge
Agreement, the Indenture and this Agreement (including, without limitation, the
Forward Purchase Contract Agent's and the Custodial Agent's giving the
Remarketing Agent notice of the aggregate number of Notes to be remarketed, no
later than 10:00 a.m., New York City time, on the third Business Day preceding
the Remarketing Date, and concurrently delivering the Notes to be remarketed to
the Remarketing Agent), (iv) no Event of Default (as defined in the Indenture)
shall have occurred and be continuing, (v) the performance by the Company of its
covenants and other obligations included herein, (vi) the receipt of assurances,
in form and substance reasonably satisfactory to the Remarketing Agent, from
each pension, profit-sharing or other employee benefit plan as defined in
Section 3 of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), each individual retirement account subject to Section 4975 of the
Internal Revenue Code of 1986, as amended (the "Code"), and each entity whose
assets include plan assets under Title I of ERISA, in each case that is
participating in the remarketing, that the participation of such employee
benefit plan, individual retirement account or plan asset entity in the
remarketing will not constitute a prohibited transaction under ERISA or the Code
or other similar laws for which an exemption is not available and (vii) the
satisfaction of the other conditions set forth in this Agreement.
(b) If at any time during the term of this Agreement, any Event of
Default (as defined in the Indenture) or event that with the passage of time or
the giving of notice or both would become an Event of Default has occurred and
is continuing under the Indenture, then the obligations and duties of the
Remarketing Agent under this Agreement shall be suspended until such default or
event has been cured. The Company will promptly give the Remarketing Agent
notice of all such defaults and events of which the Company is aware.
Section 8. Termination of Remarketing Agreement.
-------------------------------------
This Agreement shall terminate as to any Remarketing Agent which is
replaced on the effective date of its replacement pursuant to Section 4(a)
hereof or pursuant to Section 4(b) hereof. Notwithstanding the foregoing, the
obligations set forth in Section 3
hereof shall survive and remain in full force and effect until all amounts
payable under Section 3 shall have been paid in full; provided, however, that if
any Remarketing Agent resigns, then, with respect to such Remarketing Agent, the
obligations set forth in Section 3 hereof shall not survive the termination of
this Agreement and no fee shall be payable to such Remarketing Agent in such
capacity. In addition, each current and former Remarketing Agent shall be
entitled to the rights and benefits under Sections 9, 10 and 12(b) of this
Agreement notwithstanding the replacement or resignation of such Remarketing
Agent or termination of this Agreement.
Section 9. Remarketing Agent's Performance; Duty of Care.
----------------------------------------------
The duties and obligations of the Remarketing Agent shall be determined
solely by the express provisions hereof. No implied covenants or obligations of
or against the Remarketing Agent shall be read into this Agreement. In the
absence of a final judicial determination of willful misconduct, bad faith or
gross negligence on the part of the Remarketing Agent, the Remarketing Agent may
conclusively rely upon any document furnished to it which purports to conform to
the requirements hereunder as to the truth of the statements expressed therein.
The Remarketing Agent shall be protected in acting upon any document or
communication reasonably believed by it to be signed, presented or made by the
proper party or parties. The Remarketing Agent shall not have any obligation to
determine whether there is any limitation under applicable law on the Reset Rate
on the Notes or, if there is any such limitation, the maximum permissible Reset
Rate on the Notes, and it shall rely solely upon timely written notice from the
Company pursuant to Section 2(a) hereof as to whether or not there is any such
limitation and, if so, the maximum permissible Reset Rate. The Remarketing Agent
shall not incur any liability under this Agreement to any beneficial owner or
holder of Notes, or other securities, either in its individual capacity or as
Remarketing Agent, as the case may be, for any action or failure to act in
connection with the remarketing of the Notes or otherwise in connection with the
transactions contemplated by this Agreement, except to the extent that such
liability has, by final judicial determination, resulted from the willful
misconduct, bad faith or gross negligence of the Remarketing Agent or from its
failure to fulfill its express obligations hereunder. The provisions of this
Section 9 shall survive any termination of this Agreement and shall also
continue to apply to every Remarketing Agent notwithstanding its resignation or
removal. The Remarketing Agent will act as the agent of the Holders.
Section 10. Indemnification.
----------------
The Company agrees to indemnify the Remarketing Agent for, and to hold
it harmless from and against, any loss, liability or reasonable out-of-pocket
expense incurred without gross negligence, willful misconduct or bad faith on
its part, arising out of or in connection with the acceptance or administration
of its powers and duties under this Agreement, including the reasonable
out-of-pocket costs and expenses (including reasonable fees and expenses of
counsel) of defending itself against any claim or liability in connection with
the exercise or performance of such powers and duties or collecting such
amounts. The Remarketing Agent shall promptly notify the Company of any third
party claim which may give rise to the indemnity hereunder and give the Company
the opportunity to participate in the defense of such claim with counsel
reasonably satisfactory to the indemnified party, and no such claim shall be
settled without the written consent of the Company, which consent shall not be
unreasonably withheld.
Section 11. Governing Law.
--------------
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Section 12. Term of Agreement.
------------------
(a) Unless otherwise terminated in accordance with the provisions
hereof and except as otherwise provided herein, this Agreement shall remain in
full force and effect from the date hereof until the third Business Day
immediately following the earlier of (i) a successful remarketing, and (ii) the
Stock Purchase Date. Anything herein to the contrary notwithstanding, the
provisions of the second and third sentences of Section 8 hereof and the
provisions of Sections 3, 9, 10 and 12(b) hereof shall survive any termination
of this Agreement and remain in full force and effect; provided, however, that
if any Remarketing Agent resigns, then the obligations set forth in section 3
hereof shall not survive the termination of this Agreement and no fee shall be
payable to such remarketing agent in such capacity.
(b) All representations and warranties included in this Agreement or
contained in certificates of officers of the Company submitted pursuant hereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Remarketing Agent or any of its
controlling persons, or by or on behalf of the Company or the Forward Purchase
Contract Agent, and shall survive the termination of this Agreement.
Section 13. Successors and Assigns.
-----------------------
The rights and obligations of the Company and the Forward Purchase
Contract Agent (both in its capacity as Forward Purchase Contract Agent and as
attorney-in-fact for the Holders) hereunder may not be assigned or delegated to
any other person (except pursuant to sections 7.9, 7.10 and 7.11 and Article IX
of the Forward Purchase Contract Agreement) without the prior written consent of
the Remarketing Agent, which consent shall not be unreasonably withheld.
The rights and obligations of the Remarketing Agent hereunder may not
be assigned or delegated to any other person without the prior written consent
of the Company, except that the Remarketing Agent shall have the right to
appoint additional remarketing agents as provided herein. This Agreement shall
inure to the benefit of and be binding upon the Company, the Forward Purchase
Contract Agent and the Remarketing Agent and their respective successors and
permitted assigns. The terms "successors" and "assigns" shall not include any
purchaser of Notes merely because of such purchase.
Section 14. Headings.
---------
Section headings have been inserted in this Agreement as a matter of
convenience of reference only, and such section headings are not a part of this
Agreement and will not be used in the interpretation of any provision of this
Agreement.
Section 15. Severability.
-------------
If any provision of this Agreement is invalid, inoperative or
unenforceable as applied in any particular case in any or all jurisdictions
because it conflicts with any provisions of any constitution, statute, rule or
public policy or for any other reason, then, to the extent permitted by law,
such circumstances shall not have the effect of rendering the provision in
question invalid, inoperative or unenforceable in any other case, circumstances
or jurisdiction, or of rendering any other provision or provisions of this
Agreement, as the case may be, invalid, inoperative or unenforceable to any
extent whatsoever.
Section 16. Counterparts.
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This Agreement may be executed in counterparts, each of which shall be
regarded as an original and all of which shall constitute one and the same
document.
Section 17. Amendments.
-----------
This Agreement may be amended only by an instrument in writing signed
by the parties hereto.
Section 18. Notices.
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Unless otherwise specified, any notices, requests, consents or other
communications given or made hereunder shall be made in writing or transmitted
by any standard form of telecommunication, including telephone or telecopy, and
confirmed in writing. All written notices and confirmations of notices by
telecommunication shall be deemed to have been validly given or made when
delivered or mailed, registered or certified mail, return receipt requested and
postage prepaid. All such notices, requests, consents or other communications
shall be addressed as follows: if to the Company, to American Electric Power
Company, Inc., 1 Riverside Plaza, Columbus, Ohio 43215, fax number: (614)
223-1687, Attention: General Counsel; if to the Remarketing Agent, to Salomon
Smith Barney Inc., 388 Greenwich Street, New York, New York 10013, fax number
(212) 816-7912, Attention: General Counsel; if to the Collateral Agent, to The
Bank of New York, 101 Barclay Street, New York, New York 10286, fax number (212)
328-8243, Attention: Corporate Trust Department; and if to the Forward Purchase
Contract Agent, to The Bank of New York, 101 Barclay Street, New York, New York
10286, fax number: (212) 328-8243, Attention: Corporate Trust Department, or to
such other address as any of the above shall specify to the others in writing.
Section 19. Information.
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The Company agrees to furnish the Remarketing Agent with such
information and documents as the Remarketing Agent may reasonably request in
connection with the transactions contemplated by this Remarketing Agreement, and
if the remarketing is effected pursuant to a registration statement in
accordance with Section 6 hereof, make reasonably available to the Remarketing
Agent and any accountant, attorney or other advisor retained by the Remarketing
Agent such information that parties would customarily require in connection with
a due diligence investigation conducted in accordance with applicable securities
laws and cause the Company's officers, directors, employees and accountants to
participate in such discussions and to supply all such information reasonably
requested by the Remarketing Agent and its advisors in connection with such
investigation.
IN WITNESS WHEREOF, each of the Company, the Forward Purchase Contract
Agent and the Remarketing Agent has caused this Agreement to be executed in its
name and on its behalf by one of its duly authorized signatories as of the date
first above written.
AMERICAN ELECTRIC POWER COMPANY, INC.
By:______________________________
Name:
Title:
SALOMON SMITH BARNEY INC., as Remarketing
Agent
By:_______________________________
Name:
Title:
CONFIRMED AND ACCEPTED:
THE BANK OF NEW YORK
not individually but solely as Forward Purchase Contract Agent
and as attorney-in-fact for the Holders of the Forward Purchase Contracts
By:__________________________
Name:
Title: