OHIO POWER COMPANY Selling Agency Agreement
Exhibit
1(a)
OHIO
POWER COMPANY
____________,
____
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
Dear
Sirs:
Ohio
Power Company, an Ohio corporation (the "Company"), confirms its agreement
with
each of you with respect to the issue and sale by the Company of up to
$____________ aggregate principal amount of its [Unsecured Notes] (the "Notes").
The Notes will be issued under the Indenture dated as of September 1, 1997,
between the Company and Bankers Trust Company, as trustee (the "Trustee"),
as
previously supplemented and as it may be from time to time further supplemented
by one or more supplemental indentures (said Indenture, as previously
supplemented and as it may be further supplemented, being hereafter referred
to
as the "Indenture"). The Notes will be issued in minimum denominations of [$25]
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) hereof, the
[Unsecured 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
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.
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1.
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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.
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(a)
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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 $____________
aggregate principal amount of Unsecured Notes (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 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.
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(b)
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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).
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(c)
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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.
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(d)
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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.
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(e)
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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.
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(f)
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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.
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(g)
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This
Agreement has been duly authorized, executed and delivered by the
Company.
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(h)
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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.)
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(i)
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No
authorization, approval, consent or order of any court or governmental
authority or agency is necessary in connection with the issuance
and sale
by the Company of the Notes or the transactions by the Company
contemplated in this Agreement, except (A) such as may be required
under
the 1933 Act or the rules and regulations thereunder; (B) such as
may be
required under the Public Utility Holding Company Act of 1935, as
amended
(the "1935 Act"); (C) the qualification of the Indenture under the
1939
Act; (D) the approval of The Public Utilities Commission of Ohio;
and (E)
such consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky
laws.
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2.
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Appointment
of Agents; Solicitation by the Agents of Offers to Purchase; Sales
of
Notes to a Purchaser.
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(a)
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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 con-di-tions
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.
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(b)
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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.
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(c)
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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.
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3.
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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.
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4.
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Agreements.
The Company agrees with you that:
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(a)
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Prior
to the termination of any 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.
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(b)
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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
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(c)
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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 Unsecured Notes
of the
Company, or any proposal to downgrade the rating of the Notes or
any other
Unsecured Notes 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.
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(d)
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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.
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(e)
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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.
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(f)
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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.
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(g)
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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.
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(h)
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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.
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(i)
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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 and in any Certificate previously delivered pursuant
hereto
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.
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(j)
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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.
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(k)
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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 or opinions 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) and Section 5(b)(3) hereof or, in lieu of such opinion,
counsel last furnishing such an opinion or opinions 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).
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(l)
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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.
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(m)
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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 Unsecured Notes, 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.
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5.
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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:
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(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.
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(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 ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP, counsel to the Agents:
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(1)
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(2)
|
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(3)
|
Opinion
of an attorney employed by American Electric Power Service Corporation,
substantially in the form heretofore made available to the
Agents.
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(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:
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(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;
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(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
|
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|
(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.
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(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.
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||
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(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.
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The
documents required to be delivered by this Section 5 shall be delivered
at
the offices of American Electric Power Service Corporation, ▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ on the date hereof.
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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:
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||
|
(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.
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||
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(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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Agents, dated as of the
Closing
Date, substantially in the form delivered pursuant to Section 5(b)(2)
hereof; (iv) the opinion of an attorney employed by American Electric
Power Service Corporation, dated as of the Closing Date, substantially
in
the form delivered pursuant to Section 5(b)(3) hereof; and (v) 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.
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|
(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.
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|
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 Unsecured Notes
by
▇▇▇▇▇'▇ 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 Unsecured Notes under consideration
for
possible downgrade. Notwithstanding the foregoing, no Agent shall
have any
obligation to exercise its judgment on behalf of any
purchaser.
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||
|
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, 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 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 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 8 (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.
|
||
|
(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. 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
8(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 8(b).
|
||
|
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 Unsecured Notes by Moody's or S&P or either Moody's
or S&P shall have publicly announced that it has any of such Unsecured
Notes 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 ▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
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.
|
|||
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
________________________________, Attention: ____________________, telephone:
___/___-____, telecopy: ___/___-____.
Notices
to __________________________________ shall be directed to it at
________________________________, Attention: ____________________, telephone:
___/___-____, telecopy: ___/___-____.