APPALACHIAN POWER COMPANY Underwriting Agreement Dated September 26, 2005
EXHIBIT
1(a)
APPALACHIAN
POWER COMPANY
Dated
September 26, 2005
AGREEMENT
made between APPALACHIAN POWER COMPANY, a corporation organized and existing
under the laws of the Commonwealth of Virginia (the Company), and the several
persons, firms and corporations (the Underwriters) named in Exhibit 1
hereto.
WITNESSETH:
WHEREAS,
the Company proposes to issue and sell $250,000,000 aggregate principal amount
of its 5.80% Senior Notes, Series L, due 2035 (the Notes) to be issued pursuant
to the Indenture dated as of January 1, 1998, between the Company and The Bank
of New York, as trustee (the Trustee), as heretofore supplemented and amended
and as to be further supplemented and amended (said Indenture as so supplemented
being hereafter referred to as the Indenture); and
WHEREAS,
the Underwriters have designated the persons signing this Agreement
(collectively, the Representative) to execute this Agreement on behalf of the
respective Underwriters and to act for the respective Underwriters in the manner
provided in this Agreement; and
WHEREAS,
the Company has prepared and filed, in accordance with the provisions of the
Securities Act of 1933 (the Act), with the Securities and Exchange Commission
(the Commission), a registration statement (File No. 333-123348) and a
prospectus relating to $1,125,000,000 principal amount of its Unsecured Notes
and such registration statement has become effective; and
WHEREAS,
such registration statement, including the financial statements, the documents
incorporated or deemed incorporated therein by reference, and the exhibits
thereto, being herein called the Registration Statement, and the prospectus,
including the documents incorporated or deemed incorporated therein by
reference, constituting a part of such Registration Statement, as it may be
last
amended or supplemented prior to the effectiveness of this Agreement, but
excluding any amendment or supplement relating solely to securities other than
the Notes, being herein called the Basic Prospectus, and the Basic Prospectus,
as supplemented by a prospectus supplement (the Prospectus Supplement) to
include information relating to the Notes, including the names of the
Underwriters, the price and terms of the offering, the interest rate, maturity
date and certain other information relating to the Notes, which will be filed
with the Commission pursuant to Rule 424(b) of the Commission's General Rules
and Regulations under the Act (the Rules), including all documents then
incorporated or deemed to have been incorporated therein by reference, being
herein called the Prospectus.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, it is agreed between the parties as follows:
1. Purchase
and Sale:
Upon
the
basis of the warranties and representations and on the terms and subject to
the
conditions herein set forth, the Company agrees to sell to the respective
Underwriters named in Exhibit 1 hereto, severally and not jointly, and the
respective Underwriters, severally and not jointly, agree to purchase from
the
Company, the respective principal amounts of the Notes set opposite their names
in Exhibit 1 hereto, together aggregating all of the Notes, at a price equal
to
98.365% of the principal amount thereof.
2. Payment
and Delivery:
Payment
for the Notes shall be made to the Company in immediately available funds or
in
such other manner as the Company and the Representative shall mutually agree
upon in writing, upon the delivery of the Notes to the Representative for the
respective accounts of the Underwriters against receipt therefor signed by
the
Representative on behalf of itself and for the other Underwriters. Such delivery
shall be made at 10:00 A.M., New York Time, on September 29, 2005 (or on such
later business day, not more than five business days subsequent to such day,
as
may be mutually agreed upon by the Company and the Underwriters), unless
postponed in accordance with the provisions of Section 8 hereof, at the office
of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
or at such other place as the Company and the Representative shall mutually
agree in writing. The time at which payment and delivery are to be made is
herein called the Time of Purchase.
The
delivery of the Notes shall be made in fully registered form, registered in
the
name of CEDE & CO., to the offices of The Depository Trust Company in New
York, New York and the Underwriters shall accept such delivery.
3. Conditions
of Underwriters' Obligations:
The
several obligations of the Underwriters hereunder are subject to the accuracy
of
the warranties and representations on the part of the Company on the date hereof
and at the Time of Purchase and to the following other conditions:
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(a)
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That
all legal proceedings to be taken and all legal opinions to be rendered
in
connection with the issue and sale of the Notes shall be satisfac-tory
in
form and substance to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel to the
Underwriters.
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(b)
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That,
at the Time of Purchase, the Representative shall be furnished with
the
following opinions, dated the day of the Time of Purchase, with conformed
copies or signed counterparts thereof for the other Underwriters,
with
such changes therein as may be agreed upon by the Company and the
Representative with the approval of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel
to the
Underwriters:
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(1)
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Opinion
of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq. or ▇▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇, Esq., counsel to the Company, substantially in the form
heretofore previously provided to the Underwriters;
and
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(2)
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Opinion
of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, substantially
in the
form heretofore previously provided to the
Underwriters.
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(c)
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That
the Representative shall have received a letter from Deloitte & Touche
LLP dated the day of the Time of Purchase in form and substance
satisfactory to the Representative (i) confirming that with respect
to the
Company they are an independent registered public accounting firm
within
the meaning of the Act and the applicable published rules and regulations
of the Commission thereunder, (ii) stating that in their opinion
the
consolidated financial statements audited by them and included or
incorporated by reference in the Registration Statement complied
as to
form in all material respects with the then applicable accounting
requirements of the Commission, including the applicable published
rules
and regulations of the Commission and (iii) covering as of a date
not more
than five business days prior to the day of the Time of Purchase
such
other matters as the Representative reasonably
requests.
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(d)
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That
no amendment to the Registration Statement and that no prospectus
or
prospectus supplement of the Company (other than the prospectus or
amendments, prospectuses or prospectus supplements relating solely
to
securities other than the Notes) relating to the Notes and no document
which would be deemed incorporated in the Prospectus by reference
filed
subsequent to the date hereof and prior to the Time of Purchase shall
contain material information substantially different from that contained
in the Registration Statement which is unsatisfactory in substance
to the
Representative or unsatisfactory in form to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP,
counsel
to the Underwriters.
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(e)
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That,
at the Time of Purchase, appropriate orders of the Virginia State
Corporation Commission and the Tennessee Regulatory Authority, necessary
to permit the sale of the Notes to the Underwriters, shall be in
effect;
and that, prior to the Time of Purchase, no stop order with respect
to the
effectiveness of the Registration Statement shall have been issued
under
the Act by the Commission or proceedings therefor
initiated.
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(f)
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That,
from the date hereof to the Time of Purchase, there shall not have
been
any material adverse change in the business, properties or financial
condition of the Company from that set forth in the Prospectus (other
than
changes referred to in or contemplated by the Prospectus), and that
the
Company shall, at the Time of Purchase, have delivered to the
Representative a certificate of an executive officer of the Company
to the
effect that, to the best of his knowledge, information and belief,
there
has been no such change.
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(g)
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That
the Company shall have performed such of its obligations under this
Agreement as are to be performed at or before the Time of Purchase
by the
terms hereof.
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4. Certain
Covenants of the Company:
In
further consideration of the agreements of the Underwriters herein contained,
the Company covenants as follows:
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(a)
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As
soon as practicable, and in any event within the time prescribed
by Rule
424 under the Act, to file the Prospectus with the Commission; as
soon as
the Company is advised thereof, to advise the Representative and
confirm
the advice in writing of any request made by the Commission for amendments
to the Registration Statement or Prospectus or for additional information
with respect thereto or of the entry of a stop order suspending the
effectiveness of the Registration Statement or of the initiation
or threat
of any proceedings for that purpose and, if such a stop order should
be
entered by the Commission, to make every reasonable effort to obtain
the
prompt lifting or removal thereof.
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(b)
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To
deliver to the Underwriters, without charge, as soon as practicable
(and
in any event within 24 hours after the date hereof), and from time
to time
thereafter during such period of time (not exceeding nine months)
after
the date hereof as they are required by law to deliver a prospectus,
as
many copies of the Prospectus (as supplemented or amended if the
Company
shall have made any supplements or amendments thereto, other than
supplements or amendments relating solely to securities other than
the
Notes) as the Representative may reasonably request; and in case
any
Underwriter is required to deliver a prospectus after the expiration
of
nine months after the date hereof, to furnish to any Underwriter,
upon
request, at the expense of such Underwriter, a reasonable quantity
of a
supplemental prospectus or of supplements to the Prospectus complying
with
Section 10(a)(3) of the Act.
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(c)
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To
furnish to the Representative a copy, certified by the Secretary
or an
Assistant Secretary of the Company, of the Registration Statement
as
initially filed with the Commission and of all amendments thereto
(exclusive of exhibits), other than amendments relating solely to
securities other than the Notes and, upon request, to furnish to
the
Representative sufficient plain copies thereof (exclusive of exhibits)
for
distribution to the other
Underwriters.
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(d)
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For
such period of time (not exceeding nine months) after the date hereof
as
they are required by law to deliver a prospectus, if any event shall
have
occurred as a result of which it is necessary to amend or supplement
the
Prospectus in order to make the statements therein, in the light
of the
circumstances when the Prospectus is delivered to a purchaser, not
contain
any untrue statement of a material fact or not omit to state any
material
fact required to be stated therein or necessary in order to make
the
statements therein not misleading, forthwith to prepare and furnish,
at
its own expense, to the Underwriters and to dealers (whose names
and
addresses will be furnished to the Company by the Representative)
to whom
principal amounts of the Notes may have been sold by the Representative
for the accounts of the Underwriters and, upon request, to any other
dealers making such request, copies of such amendments to the Prospectus
or supplements to the Prospectus.
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(e)
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As
soon as practicable, the Company will make generally available to
its
security holders and to the Underwriters an earnings statement or
statement of the Company and its subsidiaries which will satisfy
the
provisions of Section 11(a) of the Act and Rule 158 under the
Act.
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(f)
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To
use its best efforts to qualify the Notes for offer and sale under
the
securities or "blue sky" laws of such jurisdictions as the Representative
may designate within six months after the date hereof and itself
to pay,
or to reimburse the Underwriters and their counsel for, reasonable
filing
fees and expenses in connection therewith in an amount not exceeding
$3,500 in the aggregate (including filing fees and expenses paid
and
incurred prior to the effective date hereof), provided, however,
that the
Company shall not be required to qualify as a foreign corporation
or to
file a consent to service of process or to file annual reports or
to
comply with any other requirements deemed by the Company to be unduly
burdensome.
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(g)
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To
pay all expenses, fees and taxes (other than transfer taxes on resales
of
the Notes by the respective Underwriters) in connection with the
issuance
and delivery of the Notes, except that the Company shall be required
to
pay the fees and disbursements (other than disbursements referred
to in
paragraph (f) of this Section 4) of counsel to the Underwriters,
only in
the events provided in paragraph (h) of this Section 4 and paragraph
(a)
of Section 7, the Underwriters hereby agreeing to pay such fees and
disbursements in any other event.
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(h)
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If
the Underwriters shall not take up and pay for the Notes due to the
failure of the Company to comply with any of the conditions specified
in
Section 3 hereof, or, if this Agreement shall be terminated in accordance
with the provisions of Section 8 or 9 hereof, to pay the fees and
disbursements of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel to the Underwriters,
and,
if the Underwriters shall not take up and pay for the Notes due to
the
failure of the Company to comply with any of the conditions specified
in
Section 3 hereof, to reimburse the Underwriters for their reasonable
out-of-pocket expenses, in an aggregate amount not exceeding a total
of
$10,000, incurred in connection with the financing contemplated by
this
Agreement.
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(i)
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To
timely file any certificate required by Rule 52 under the Public
Utility
Holding Company Act of 1935, as amended (1935 Act) in connection
with the
sale of the Notes.
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(j)
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During
the period from the date hereof and continuing to and including the
earlier of (i) the date which is after the Time of Purchase on which
the
distribution of the Notes ceases, as determined by the Representative
in
its sole discretion, and (ii) the date which is 30 days after the
Time of
Purchase, the Company agrees not to offer, sell, contract to sell
or
otherwise dispose of any Notes of the Company or any substantially
similar
securities of the Company without the consent of the
Representative.
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5. Warranties
of the Company:
The
Company represents and warrants to, and agrees with you, as set forth
below:
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(a)
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the
Registration Statement on its effective date complied with the applicable
provisions of the Act and the rules and regulations of the Commission
and
the Registration Statement at its effective date did not, and at
the Time
of Purchase will not, contain any untrue statement of a material
fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, and the Basic Prospectus
on
the date of this Agreement and the Prospectus when first filed in
accordance with Rule 424(b) complies, and at the Time of Purchase
the
Prospectus will comply, with the applicable provisions of the Act
and the
Trust Indenture Act of 1939, as amended (Trust Indenture Act), and
the
rules and regulations of the Commission, the Basic Prospectus on
the date
of this Agreement and the Prospectus when first filed in accordance
with
Rule 424(b) under the Act do not, and the Prospectus at the Time
of
Purchase will not, contain any untrue statement of a material fact
or omit
to state a material fact required to be stated therein or necessary
to
make the statements therein, in the light of the circumstances under
which
they were made, not misleading, except that the Company makes no
warranty
or representation to the Underwriters with respect to any statements
or
omissions made in the Registration Statement, the Basic Prospectus
or the
Prospectus in reliance upon and in conformity with information furnished
in writing to the Company by, or through the Representative on behalf
of,
any Underwriter expressly for use in the Registration Statement,
the Basic
Prospectus or Prospectus, or to any statements in or omissions from
that
part of the Registration Statement that shall constitute the Statement
of
Eligibility under the Trust Indenture Act of any indenture trustee
under
an indenture of the Company.
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(b)
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As
of the Time of Purchase, the Indenture will have been duly authorized
by
the Company and duly qualified under the Trust Indenture Act and,
when
executed and delivered by the Trustee and the Company, will constitute
a
legal, valid and binding instrument enforceable against the Company
in
accordance with its terms and such Notes will have been duly authorized,
executed, authenticated and, when paid for by the purchasers thereof,
will
constitute legal, valid and binding obligations of the Company entitled
to
the benefits of the Indenture, except as the enforceability thereof
may be
limited by bankruptcy, insolvency, or other similar laws affecting
the
enforcement of creditors' rights in general, and except as the
availability of the remedy of specific performance is subject to
general
principles of equity (regardless of whether such remedy is sought
in a
proceeding in equity or at law), and by an implied covenant of good
faith
and fair dealing.
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(c)
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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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(d)
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Since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise referred to or
contemplated therein, there has been no material adverse change in
the
business, properties or financial condition of the
Company.
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(e)
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This
Agreement has been duly authorized, executed and delivered by the
Company.
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(f)
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The
consummation by the Company of the transactions contemplated herein
is not
in violation of its charter or bylaws, will not result in the violation
of
any applicable law, statute, rule, regulation, judgment, order, writ
or
decree of any government, government instrumentality or court having
jurisdiction over the Company or its properties, and 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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(g)
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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 1935 Act, as amended; (C) the qualification of
the
Indenture under the Trust Indenture Act; (D) the approval of the
Virginia
State Corporation Commission and the Tennessee Regulatory Authority;
and
(E) such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky
laws.
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(h)
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The
consolidated financial statements of the Company and its consolidated
subsidiaries together with the notes thereto, included or incorporated
by
reference in the Prospectus present fairly the financial position
of the
Company at the dates or for the periods indicated; said consolidated
financial statements have been prepared in accordance with United
States
generally accepted accounting principles applied, apart from
reclassifications disclosed therein, on a consistent basis throughout
the
periods involved; and the selected consolidated financial information
of
the Company included in the Prospectus presents fairly the information
shown therein and has been compiled, apart from reclassifications
disclosed therein, on a basis consistent with that of the audited
financial statements of the Company included or incorporated by reference
in the Prospectus.
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(i)
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There
is no pending action, suit, investigation, litigation or proceeding,
including, without limitation, any environmental action, affecting
the
Company before any court, governmental agency or arbitration that
is
reasonably likely to have a material adverse effect on the business,
properties, financial condition or results of operations of the Company,
except as disclosed in the
Prospectus.
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The
Company's covenants, warranties and representations contained in this Agreement
shall remain in full force and effect regardless of any investigation made
by or
on behalf of any person, and shall survive the delivery of and payment for
the
Notes hereunder.
6. Warranties
of Underwriters:
Each
Underwriter warrants and represents that the information furnished in writing
to
the Company through the Representative for use in the Registration Statement,
in
the Basic Prospectus, in the Prospectus, or in the Prospectus as amended or
supplemented is correct as to such Underwriter. The warranties and
representations of such Underwriter contained in this Agreement shall remain
in
full force and effect regardless of any investigation made by or on behalf
of
the Company or other person, and shall survive the delivery of and payment
for
the Notes hereunder.
7. Indemnification
and Contribution:
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(a)
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To
the extent permitted by law, the Company agrees to indemnify and
hold you
harmless, your officers and directors and each person, if any, who
controls you within the meaning of Section 15 of the Act, against
any and
all losses, claims, damages or liabilities, joint or several, to
which
you, they or any of you or them may become subject under the Act
or
otherwise, and to reimburse you and such controlling person or persons,
if
any, for any legal or other expenses incurred by you or them in connection
with defending any action, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any alleged
untrue
statement or untrue statement of a material fact contained in the
Registration Statement, in the Basic Prospectus (if used prior to
the
effective date of this Agreement), or in the Prospectus, or if the
Company
shall furnish or cause to be furnished to you any amendments or any
supplements to the Prospectus, in the Prospectus as so amended or
supplemented except to the extent that such amendments or supplements
relate solely to securities other than the Notes (provided that if
such
Prospectus or such Prospectus, as amended or supplemented, is used
after
the period of time referred to in Section 4(b) hereof, it shall contain
such amendments or supplements as the Company deems necessary to
comply
with Section 10(a) of the Act), or arise out of or are based upon
any
alleged omission or omission to state therein a material fact required
to
be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities
or
actions arise out of or are based upon any such alleged untrue statement
or omission, or untrue statement or omission which was made in the
Registration Statement, in the Basic Prospectus or in the Prospectus,
or
in the Prospectus as so amended or supplemented, in reliance upon
and in
conformity with information furnished in writing to the Company by
or
through the Representative expressly for use therein or with any
statements in or omissions from that part of the Registration Statement
that shall constitute the Statement of Eligibility under the Trust
Indenture Act of any indenture trustee under an indenture of the
Company,
and except that this indemnity shall not inure to your benefit (or
of any
person controlling you) on account of any losses, claims, damages,
liabilities or actions arising from the sale of the 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 7(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
7(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).
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(b)
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Each
Underwriter agrees, to the extent permitted by law, severally and
not
jointly, to indemnify, hold harmless and reimburse the Company, its
directors and such of its officers as shall have signed the Registration
Statement, and each person, if any, who controls the Company within
the
meaning of Section 15 of the Act, to the same extent and upon the
same
terms as the indemnity agreement of the Company set forth in Section
7(a)
hereof, but only with respect to untrue statements or alleged untrue
statements or omissions or alleged omissions made in the Registration
Statement, or in the Basic Prospectus, or in the Prospectus, or in
the
Prospectus as so amended or supplemented, in reliance upon and in
conformity with information furnished in writing to the Company by
the
Representative on behalf of such Underwriter expressly for use therein.
The Company agrees promptly after the receipt by it of written notice
of
the commencement of any action in respect to which indemnity from
you on
account of your agreement contained in this Section 7(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
7(b).
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(c)
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If
recovery is not available or insufficient under Section 7(a) or 7(b)
hereof for any reason other than as specified therein, the indemnified
party shall be entitled to contribution for any and all losses, claims,
damages, liabilities and expenses for which such indemnification
is so
unavailable or insufficient under this Section 7(c). In determining
the
amount of contribution to which such indemnified party is entitled,
there
shall be considered the portion of the proceeds of the offering of
the
Notes realized, the relative knowledge and access to information
concerning the matter with respect to which the claim was asserted,
the
opportunity to correct and prevent any statement or omission, and
any
equitable considerations appropriate under the circumstances. The
Company
and the Underwriters agree that it would not be equitable if the
amount of
such contribution were determined by pro rata or per capita allocation
(even if the Underwriters were treated as one entity for such purpose)
without reference to the considerations called for in the previous
sentence. No Underwriter or any person controlling such Underwriter
shall
be obligated to contribute any amount or amounts hereunder which
in the
aggregate exceeds the total price of the Notes purchased by such
Underwriter under this Agreement, less the aggregate amount of any
damages
which such Underwriter and its controlling persons have otherwise
been
required to pay in respect of the same claim or any substantially
similar
claim. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
An Underwriter’s obligation to contribute under this Section 7 is in
proportion to its purchase obligation and not joint with any other
Underwriter.
|
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(d)
|
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 or contribution
could be sought under this Section 7 (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 such indemnified party.
|
|
(e)
|
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.
|
The
agreements contained in this Section 7 hereof shall remain in full force and
effect regardless of any investigation made by or on behalf of any person,
and
shall survive the delivery of and payment for the Notes hereunder.
8. Default
of Underwriters:
If any
Underwriter under this Agreement shall fail or refuse (otherwise than for some
reason sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligations hereunder) to purchase and pay
for the principal amount of Notes which it has agreed to purchase and pay for
hereunder, and the aggregate principal amount of Notes which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not
more
than one-tenth of the aggregate principal amount of the Notes, the other
Underwriters shall be obligated severally in the proportions which the amounts
of Notes set forth opposite their names in Exhibit 1 hereto bear to the
aggregate principal amount of Notes set forth opposite the names of all such
non-defaulting Underwriters, to purchase the Notes which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on the
terms set forth herein; provided that in no event shall the principal amount
of
Notes which any Underwriter has agreed to purchase pursuant to Section 1 hereof
be increased pursuant to this Section 8 by an amount in excess of one-ninth
of
such principal amount of Notes without the written consent of such Underwriter.
If any Underwriter or Underwriters shall fail or refuse to purchase Notes and
the aggregate principal amount of Notes with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of the Notes
then this Agreement shall terminate without liability on the part of any
non-defaulting Underwriters; provided, however, that the non-defaulting
Underwriters may agree, in their sole discretion, to purchase the Notes which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on the terms set forth herein. In the event of any such termination,
the Company shall not be under any liability to any Underwriter (except to
the
extent, if any, provided in Section 4(h) hereof), nor shall any Underwriter
(other than an Underwriter who shall have failed or refused to purchase the
Notes without some reason sufficient to justify, in accordance with the terms
hereof, its termination of its obligations hereunder) be under any liability
to
the Company or any other Underwriter.
Nothing
herein contained shall release any defaulting Underwriter from its liability
to
the Company or any non-defaulting Underwriter for damages occasioned by its
default hereunder.
9. Termination
of Agreement by the Underwriters:
This
Agreement may be terminated at any time prior to the Time of Purchase by the
Representative if, after the execution and delivery of this Agreement and prior
to the Time of Purchase, in the Representative's reasonable judgment, the
Underwriters' ability to market the Notes shall have been materially adversely
affected because:
|
(i)
|
||
|
(ii)
|
there
shall have occurred any outbreak or escalation of hostilities,
declaration
by the United States of a national emergency or war or other national
or
international calamity or crisis, or
|
|
|
(iii)
|
a
general banking moratorium shall have been declared by Federal
or New York
State authorities, or
|
|
|
(iv)
|
there
shall have been any decrease in the ratings of the Company's debt
securities by ▇▇▇▇▇'▇ Investors Services, Inc. (Moody's) or Standard
&
Poor's Ratings Group (S&P) or either Moody's or S&P shall publicly
announce that it has such debt securities under consideration for
possible
further downgrade.
|
If
the
Representative elects to terminate this Agreement, as provided in this Section
9, the Representative will promptly notify the Company by telephone or by telex
or facsimile transmission, confirmed in writing. If this Agreement shall not
be
carried out by any Underwriter for any reason permitted hereunder, or if the
sale of the Notes to the Underwriters as herein contemplated shall not be
carried out because the Company is not able to comply with the terms hereof,
the
Company shall not be under any obligation under this Agreement and shall not
be
liable to any Underwriter or to any member of any selling group for the loss
of
anticipated profits from the transactions contemplated by this Agreement (except
that the Company shall remain liable to the extent provided in Section 4(h)
hereof) and the Underwriters shall be under no liability to the Company nor
be
under any liability under this Agreement to one another.
10. Notices:
All
notices hereunder shall, unless otherwise expressly provided, be in writing
and
be delivered at or mailed to the following addresses or by telex or facsimile
transmission confirmed in writing to the following addresses: if to the
Underwriters, to the Representative at UBS
Securities LLC,
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇,
Attention: Fixed
Income Syndicate
(fax
203/▇▇▇-▇▇▇▇)
and at
Wachovia Capital Markets, LLC, One
Wachovia Center, ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ (fax
▇▇▇.▇▇▇.▇▇▇▇);
if to
the Company, to Appalachian Power Company, c/o American Electric Power Service
Corporation, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: General Counsel
(fax 614/▇▇▇-▇▇▇▇).
11. Parties
in Interest:
The
agreement herein set forth has been and is made solely for the benefit of the
Underwriters, the Company (including the directors thereof and such of the
officers thereof as shall have signed the Registration Statement), the
controlling persons, if any, referred to in Section 7 hereof, and their
respective successors, assigns, executors and administrators, and, except as
expressly otherwise provided in Section 8 hereof, no other person shall acquire
or have any right under or by the virtue of this Agreement.
12. Definition
of Certain Terms:
If
there be two or more persons, firms or corporations named in Exhibit 1 hereto,
the term "Underwriters", as used herein, shall be deemed to mean the several
persons, firms or corporations, so named (including the Representative herein
mentioned, if so named) and any party or parties substituted pursuant to Section
8 hereof, and the term "Representative", as used herein, shall be deemed to
mean
the representative or representatives designated by, or in the manner authorized
by, the Underwriters. All obligations of the Underwriters hereunder are several
and not joint. If there shall be only one person, firm or corporation named
in
Exhibit 1 hereto, the term "Underwriters" and the term "Representative", as
used
herein, shall mean such person, firm or corporation. The term "successors"
as
used in this Agreement shall not include any purchaser, as such purchaser,
of
any of the Notes from any of the respective Underwriters.
13. Conditions
of the Company's Obligations:
The
obligations of the Company hereunder are subject to the Underwriters'
performance of their obligations hereunder, and the further condition that
at
the Time of Purchase the Virginia State Corporation Commission and the Tennessee
Regulatory Authority shall have issued appropriate orders, and such orders
shall
remain in full force and effect, authorizing the transactions contemplated
hereby.
14. Applicable
Law:
This
Agreement will be governed and construed in accordance with the laws of the
State of New York.
15. Execution
of Counterparts:
This
Agreement may be executed in several counterparts, each of which shall be
regarded as an original and all of which shall constitute one and the same
document.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their respective officers thereunto duly authorized, on the date first above
written.
|
APPALACHIAN
POWER COMPANY
|
||
|
By:
|
||
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
||
|
Assistant
Treasurer
|
||
|
UBS
Securities LLC
Wachovia
Capital Markets, LLC
as
Representative and on behalf of the
Underwriters
named in Exhibit 1 hereto
with
respect to the Notes
|
UBS
SECURITIES LLC
By:____________________________
Name:
Title:
WACHOVIA
CAPITAL MARKETS, LLC
By:____________________________
Name:
Title:
EXHIBIT
1
|
Name
|
Principal
Amount
|
|||
|
UBS
Securities LLC
|
$
|
112,500,000
|
||
|
Wachovia
Capital Markets, LLC
|
|
112,500,000
|
||
|
SG
Americas Securities, LLC
|
12,500,000
|
|||
|
Fifth
Third Securities, Inc.
|
6,250,000
|
|||
|
Huntington
Capital Corp.
|
6,250,000
|
|||
|
$
|
250,000,000
|