Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
Appalachian Power Company
(Exact name of registrant as specified in its charter)
Virginia 54-0124790
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
40 Franklin Road, S.W.
Roanoke, Virginia 24011
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (540)985-2300
ARMANDO A. PENA, Treasurer
AMERICAN ELECTRIC POWER SERVICE CORPORATION
1 Riverside Plaza
Columbus, Ohio 43215
(614) 223-2850
(Name, address and telephone number, including
area code, of agent for service)
It is respectfully requested that the Commission send copies
of all notices, orders and communications to:
Simpson Thacher & Bartlett Dewey Ballantine LLP
425 Lexington Avenue 1301 Avenue of the Americas
New York, NY 10017-3909 New York, NY 10019-6092
Attention: James M. Cotter Attention: E. N.Ellis, IV
___________________
Approximate date of commencement of proposed sale to the
public: As soon as practicable after the effective date of the
Registration Statement.
___________________
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box. [ ]
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment
plans, please check the following box. [x]
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same
offering. [ ]
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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Title of
Each Class Proposed Proposed
Of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Unit* Price* Fee
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Unsecured
Notes $250,000,000 100% $250,000,000 $69,500
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*Estimated solely for purpose of calculating the registration fee.
The registrant hereby amends this registration statement on
such date or dates as may be necessary to delay its effective
date until the registrant shall file a further amendment which
specifically states that this registration statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, or until the registration statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
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The information in this prospectus is not complete and may
be changed. We may not sell these securities until the
registration statement filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to sell
these securities and is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JULY 30, 1999
PROSPECTUS
APPALACHIAN POWER COMPANY
40 Franklin Road, S.W.
Roanoke, Virginia 24011
540-985-2300
$250,000,000
UNSECURED NOTES
TERMS OF SALE
The following terms may apply to the notes that we may sell
at one or more times. A pricing supplement will include the final
terms for each note. If we decide to list upon issuance any note
or notes on a securities exchange, a pricing supplement will
identify the exchange and state when we expect trading could
begin.
- Mature 9 months to 50 years
- Fixed or floating interest rate
- Remarketing features
- Certificate or book-entry form
- Subject to redemption
- Not convertible, amortized or subject to a sinking fund
- Interest paid on fixed rate notes quarterly or
semi-annually
- Interest paid on floating rate notes monthly, quarterly,
semi-annually, or annually
- Issued in multiples of a minimum denomination
The notes have not been approved by the SEC or any state
securities commission, nor have these organizations determined
that this prospectus is accurate or complete. Any represen-tation
to the contrary is a criminal offense.
The date of this prospectus is ____________, 1999.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement we filed
with the SEC. We also file annual, quarterly and special reports
and other information with the SEC. You may read and copy any
document we file at the SEC's Public Reference Room at 450 Fifth
Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the Public Reference
Room. You may also examine our SEC filings through the SEC's web
site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the
information we file with them, which means that we can disclose
important information to you by referring you to those
documents. The information incorporated by reference is
considered to be part of this prospectus, and later information
that we file with the SEC will automatically update and supersede
this information. We incorporate by reference the documents
listed below and any future filings made with the SEC under
Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange
Act of 1934 until we sell all the notes.
Annual Report on Form 10-K for the year ended December 31, 1998;
and
Quarterly Report on Form 10-Q for the quarter ended March 31,
1999.
You may request a copy of these filings, at no cost, by writing
or telephoning us at the following address:
Mr. G. C. Dean
American Electric Power Service Corporation
1 Riverside Plaza
Columbus, Ohio 43215
614-223-1000
You should rely only on the information incorporated by
reference or provided in this prospectus or any supplement. We
have not authorized anyone else to provide you with different
information. We are not making an offer of these notes in any
state where the offer is not permitted. You should not assume
that the information in this prospectus or any supplement is
accurate as of any date other than the date on the front of those
documents.
THE COMPANY
We generate, sell, purchase, transmit and distribute
electric power. We serve approximately 888,000 customers in
southwestern Virginia and southern West Virginia. We also sell
and transmit power at wholesale to other electric utilities,
municipalities, electric cooperatives and non-utility entities
engaged in the wholesale power market. Our principal executive
offices are located at 40 Franklin Road, S.W., Roanoke, Virginia
24011 (telephone number 540-985-2300). We are a subsidiary of
American Electric Power Company, Inc., a public utility holding
company, and we are a part of the American Electric Power
integrated utility system. The executive offices of American
Electric Power Company, Inc. are located at 1 Riverside Plaza,
Columbus, Ohio 43215 (telephone number 614-223-1000).
PROSPECTUS SUPPLEMENTS
We provide information to you about the notes in three
separate documents that progressively provide more detail: (a)
this prospectus provides general information some of which may
not apply to your notes, (b) the accompanying prospectus
supplement provides more specific terms of your notes, and (c)
the pricing supplement provides the final terms of your notes.
It is important for you to consider the information contained in
this prospectus, the prospectus supplement and the pricing
supplement in making your investment decision.
RATIO OF EARNINGS TO FIXED CHARGES
The Ratio of Earnings to Fixed Charges for each of the
periods indicated is as follows:
Twelve Months
Period Ended Ratio
December 31, 1994 2.37
December 31, 1995 2.54
December 31, 1996 2.78
December 31, 1997 2.44
December 31, 1998 2.07
March 31, 1999 2.15
For current information on the Ratio of Earnings to Fixed
Charges, please see our most recent Form 10-K and 10-Q. See
Where You Can Find More Information.
USE OF PROCEEDS
The net proceeds from the sale of the notes will be used for
general corporate purposes relating to our utility business.
These purposes include redeeming or repurchasing outstanding debt
or preferred stock and replenishing working capital. If we do
not use the net proceeds immediately, we temporarily invest them
in short-term, interest-bearing obligations. We estimate that
our construction costs in 1999 will approximate $254,600,000. At
March 31,1999, our outstanding short-term debt was $57,275,000.
DESCRIPTION OF THE NOTES
General
We will issue the notes under the Indenture dated January 1,
1998 (as previously supplemented and amended) between us and the
Trustee, The Bank of New York. This prospectus briefly outlines
some provisions of the Indenture. If you would like more
information on these provisions, you should review the Indenture
and any supplemental indentures or company orders that we have
filed or will file with the SEC. See Where You Can Find More
Information on how to locate these documents. You may also
review these documents at the Trustee's offices at 101 Barclay
Street, New York, New York.
The Indenture does not limit the amount of notes that may be
issued. The Indenture permits us to issue notes in one or more
series or tranches upon the approval of our board of directors
and as described in one or more company orders or supplemental
indentures. Each series of notes may differ as to their terms.
The notes are unsecured and will rank equally with all our
unsecured unsubordinated debt. Substantially all of our fixed
properties and franchises are subject to the lien of our first
mortgage bonds issued under and secured by a Mortgage and Deed of
Trust, dated as of December 1, 1940 (as previously supplemented
and amended) between us and Bankers Trust Company, as trustee.
For current information on our debt outstanding see our most
recent Form 10-K and 10-Q. See Where You Can Find More
Information.
The notes will be denominated in U.S. dollars and we will
pay principal and interest in U.S. dollars. Unless an applicable
pricing or prospectus supplement states otherwise, the notes will
not be subject to any conversion, amortization, or sinking fund.
We expect that the notes will be "book-entry," represented by a
permanent global note registered in the name of The Depository
Trust Company, or its nominee. We reserve the right, however, to
issue note certificates registered in the name of the noteholders.
In the discussion that follows, whenever we talk about
paying principal on the notes, we mean at maturity or redemption.
Also, in discussing the time for notices and how the different
interest rates are calculated, all times are New York City time
and all references to New York mean the City of New York, unless
otherwise noted.
The following terms may apply to each note as specified in
the applicable pricing or prospectus supplement and the note.
Redemptions
If we issue redeemable notes, we may redeem such notes at
our option unless an applicable pricing or prospectus supplement
states otherwise. The pricing or prospectus supplement will
state the terms of redemption. We may redeem notes in whole or in
part by delivering written notice to the noteholders no more than
60, and not less than 30, days prior to redemption. If we do not
redeem all the notes of a series at one time, the Trustee selects
the notes to be redeemed in a manner it determines to be fair.
Remarketed Notes
If we issue notes with remarketing features, an applicable
pricing or prospectus supplement will describe the terms for the
notes including: interest rate, remarketing provisions, our right
to redeem notes, the holders' right to tender notes, and any
other provisions.
Book-Entry Notes - Registration, Transfer, and Payment of
Interest and Principal
Book-entry notes of a series will be issued in the form of a
global note that the Trustee will deposit with The Depository
Trust Company, New York, New York ("DTC"). This means that we
will not issue note certificates to each holder. One or more
global notes will be issued to DTC who will keep a computerized
record of its participants (for example, your broker) whose
clients have purchased the notes. The participant will then keep
a record of its clients who purchased the notes. Unless it is
exchanged in whole or in part for a note certificate, a global
note may not be transferred; except that DTC, its nominees, and
their successors may transfer a global note as a whole to one
another.
Beneficial interests in global notes will be shown on, and
transfers of global notes will be made only through, records
maintained by DTC and its participants.
DTC has provided us the following information: DTC is a
limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the
New York Banking Law, a member of the United States Federal
Reserve System, a "clearing corporation" within the meaning of
the New York Uniform Commercial Code and a "clearing agency"
registered under the provisions of Section 17A of the Securities
Exchange Act of 1934. DTC holds securities that its participants
("Direct Participants") deposit with DTC. DTC also records the
settlement among Direct Participants of securities transactions,
such as transfers and pledges, in deposited securities through
computerized records for Direct Participant's accounts. This
eliminates the need to exchange note certificates. Direct
Participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations.
Other organizations such as securities brokers and dealers,
banks and trust companies that work through a Direct Participant
also use DTC's book-entry system. The rules that apply to DTC
and its participants are on file with the SEC.
A number of its Direct Participants and the New York Stock
Exchange, Inc., The American Stock Exchange, Inc. and the
National Association of Securities Dealers, Inc. own DTC.
We will wire principal and interest payments to DTC's
nominee. We and the Trustee will treat DTC's nominee as the
owner of the global notes for all purposes. Accordingly, we, the
Trustee and any paying agent will have no direct responsibility
or liability to pay amounts due on the global notes to owners of
beneficial interests in the global notes.
It is DTC's current practice, upon receipt of any payment of
principal or interest, to credit Direct Participants' accounts on
the payment date according to their respective holdings of
beneficial interests in the global notes as shown on DTC's
records. In addition, it is DTC's current practice to assign any
consenting or voting rights to Direct Participants whose accounts
are credited with notes on a record date. The customary
practices between the participants and owners of beneficial
interests will govern payments by participants to owners of
beneficial interests in the global notes and voting by
participants, as is the case with notes held for the account of
customers registered in "street name." However, payments will be
the responsibility of the participants and not of DTC, the
Trustee or us.
DTC management is aware that some computer applications,
systems and the like for processing data ("Systems") that are
dependent upon calendar dates, including dates before, on and
after January 1, 2000, may encounter "Year 2000 problems". DTC
has informed its Direct Participants and other members of the
financial community (the "Industry") that it has developed and is
implementing a program so that its Systems, as the same relate to
the timely payment of distributions (including principal and
income payments) to securityholders, book-entry deliveries and
settlement of trades within DTC ("DTC Services"), continue to
function appropriately. This program includes a technical
assessment and a remediation plan, each of which is complete.
Additionally, DTC's plan includes a testing phase, which is
expected to be completed within appropriate time frames.
However, DTC's ability to perform properly its services is
also dependent upon other parties, including but not limited to
issuers and their agents, as well as third party vendors from
whom DTC licenses software and hardware, and third party vendors
on whom DTC relies for information or the provision of services,
including telecommunication and electrical utility service
providers, among others. DTC has informed the Industry that it
is contacting (and will continue to contact) third party vendors
from whom DTC acquires services to: (i) impress upon them the
importance of such services being Year 2000 compliant; and (ii)
determine the extent of their efforts for Year 2000 remediation
(and, as appropriate, testing) of their services. In addition,
DTC is in the process of developing such contingency plans as it
deems appropriate.
According to DTC, the foregoing information with respect to
DTC has been provided to the Industry for informational purposes
only and is not intended to serve as a representation, warranty
or contract modification of any kind.
Notes represented by a global note will be exchangeable for
note certificates with the same terms in authorized denominations
only if:
DTC notifies us that it is unwilling or unable to continue as
depositary or if DTC ceases to be a clearing agency registered
under applicable law and a successor depositary is not
appointed by us within 90 days; or
we determine not to require all of the notes of a series to be
represented by a global note and notify the Trustee of our
decision.
Note Certificates-Registration, Transfer, and Payment of Interest
and Principal
If we issue note certificates, they will be registered in
the name of the noteholder. The notes may be transferred or
exchanged, pursuant to administrative procedures in the
indenture, without the payment of any service charge (other than
any tax or other governmental charge) by contacting the paying
agent. Payments on note certificates will be made by check.
Interest Rate
The interest rate on the notes will either be fixed or
floating. The interest paid will include interest accrued to,
but excluding, the date of maturity or redemption. Interest is
generally payable to the person in whose name the note is
registered at the close of business on the record date before
each interest payment date. Interest payable at maturity or
redemption, however, will be payable to the person to whom
principal is payable.
If we issue a note after a record date but on or prior to
the related interest payment date, we will pay the first interest
payment on the interest payment date after the next record date.
We will pay interest payments by check or wire transfer, at our
option.
Fixed Rate Notes
A pricing or prospectus supplement will designate the record
dates, payment dates and the fixed rate of interest payable on a
note. We will pay interest quarterly or semi-annually, and upon
maturity or redemption. Unless an applicable pricing or
prospectus supplement states otherwise, if any payment date falls
on a day that is not a business day, we will pay interest on the
next business day and no additional interest will be paid.
Interest payments will be the amount of interest accrued to, but
excluding, each payment date. Interest will be computed using a
360-day year of twelve 30-day months.
Floating Rate Notes
Each floating rate note will have an interest rate formula.
The applicable pricing supplement will state the initial interest
rate or interest rate formula on each note effective until the
first interest reset date. The applicable pricing or prospectus
supplement will state the method and dates on which the interest
rate will be determined, reset and paid.
Events of Default
"Event of Default" means any of the following:
failure to pay for three Business Days the principal of
(or premium, if any, on) any note of a series when due and
payable;
failure to pay for 30 days any interest on any note of any
series when due and payable;
failure to perform any other requirements in such notes,
or in the Indenture in regard to such notes, for 90 days
after notice;
certain events of bankruptcy or insolvency; or
any other event of default specified in a series of notes.
An Event of Default for a particular series of notes does
not necessarily mean that an Event of Default has occurred for
any other series of notes issued under the Indenture. If an
Event of Default occurs and continues, the Trustee or the holders
of at least 33% of the principal amount of the notes of the
series affected may require us to repay the entire principal of
the notes of such series immediately ("Repayment Acceleration").
In most instances, the holders of at least a majority in
aggregate principal amount of the notes of the affected series
may rescind a previously triggered Repayment Acceleration.
However, if we cause an Event of Default because we have failed
to pay (unaccelerated) principal, premium, if any, or interest,
Repayment Acceleration may be rescinded only if we have first
cured our default by depositing with the Trustee enough money to
pay all (unaccelerated) past due amounts and penalties, if any.
The Trustee must within 90 days after a default occurs,
notify the holders of the notes of the series of default unless
such default has been cured or waived. We are required to file
an annual certificate with the Trustee, signed by an officer,
concerning any default by us under any provisions of the
Indenture.
Subject to the provisions of the Indenture relating to its
duties in case of default, the Trustee shall be under no
obligation to exercise any of its rights or powers under the
Indenture at the request, order or direction of any holders
unless such holders offer the Trustee reasonable indemnity.
Subject to the provisions for indemnification, the holders of a
majority in principal amount of the notes of any series may
direct the time, method and place of conducting any proceedings
for any remedy available to, or exercising any trust or power
conferred on, the Trustee with respect to such notes.
Modification of Indenture
Under the Indenture, our rights and obligations and the
rights of the holders of any notes may be changed. Any change
affecting the rights of the holders of any series of notes
requires the consent of the holders of not less than a majority
in aggregate principal amount of the outstanding notes of all
series affected by the change, voting as one class. However, we
cannot change the terms of payment of principal or interest, or a
reduction in the percentage required for changes or a waiver of
default, unless the holder consents. We may issue additional
series of notes and take other action that does not affect the
rights of holders of any series by executing supplemental
indentures without the consent of any noteholders.
Consolidation, Merger or Sale
We may merge or consolidate with any corporation or sell
substantially all of our assets as an entirety as long as the
successor or purchaser expressly assumes the payment of
principal, and premium, if any, and interest on the notes.
Legal Defeasance
We will be discharged from our obligations on the notes of
any series at any time if:
we deposit with the Trustee sufficient cash or government
securities to pay the principal, interest, any premium and
any other sums due to the stated maturity date or a
redemption date of the note of the series, and
we deliver to the Trustee an opinion of counsel stating that
the federal income tax obligations of noteholders of that
series will not change as a result of our performing the
action described above.
If this happens, the noteholders of the series will not be
entitled to the benefits of the Indenture except for registration
of transfer and exchange of notes and replacement of lost, stolen
or mutilated notes.
Covenant Defeasance
We will be discharged from our obligations under any
restrictive covenant applicable to the notes of a particular
series if we perform both actions described above. See Legal
Defeasance. If this happens, any later breach of that
particular restrictive covenant will not result in Repayment
Acceleration. If we cause an Event of Default apart from
breaching that restrictive covenant, there may not be sufficient
money or government obligations on deposit with the Trustee to
pay all amounts due on the notes of that series. In that
instance, we would remain liable for such amounts.
Governing Law
The Indenture and notes of all series will be governed by
the laws of the State of New York.
Concerning the Trustee
We and our affiliates use or will use some of the banking
services of the Trustee in the normal course of business.
PLAN OF DISTRIBUTION
We may sell the notes (a) through agents; (b) through
underwriters or dealers; or (c) directly to one or more
purchasers.
By Agents
Notes may be sold on a continuing basis through agents
designated by us. The agents will agree to use their reasonable
efforts to solicit purchases for the period of their appointment.
Unless the pricing supplement states otherwise, the notes
will be sold to the public at 100% of their principal amount.
Agents will receive commissions from .125% to .750% of the
principal amount per note depending on the maturity of the note
they sell.
The Agents will not be obligated to make a market in the
notes. We cannot predict the amount of trading or liquidity of
the notes.
By Underwriters
If underwriters are used in the sale, the underwriters will
acquire the notes for their own account. The underwriters may
resell the notes in one or more transactions, including
negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale. The obligations
of the underwriters to purchase the notes will be subject to
certain conditions. The underwriters will be obligated to
purchase all the notes of the series offered if any of the notes
are purchased. Any initial public offering price and any
discounts or concessions allowed or re-allowed or paid to dealers
may be changed from time to time.
Direct Sales
We may also sell notes directly. In this case, no
underwriters or agents would be involved.
General Information
Underwriters, dealers, and agents that participate in the
distribution of the notes may be underwriters as defined in the
Securities Act of 1933 (the "Act"), and any discounts or
commissions received by them from us and any profit on the resale
of the notes by them may be treated as underwriting discounts and
commissions under the Act.
We may have agreements with the underwriters, dealers and
agents to indemnify them against certain civil liabilities,
including liabilities under the Act.
Underwriters, dealers and agents may engage in transactions
with, or perform services for, us or our affiliates in the
ordinary course of their businesses.
LEGAL OPINIONS
Our counsel, Simpson Thacher & Bartlett, New York, NY, and
one of our lawyers will each issue an opinion about the legality
of the notes for us. Dewey Ballantine LLP, New York, NY will
issue an opinion for the agents or underwriters. From time to
time, Dewey Ballantine LLP acts as counsel to our affiliates for
some matters.
EXPERTS
The financial statements and related financial statement
schedule incorporated in this prospectus by reference from the
Company's Annual Report on Form 10-K have been audited by
Deloitte & Touche llp, independent auditors, as stated in their
reports, which are incorporated herein by reference, and have
been so incorporated in reliance upon the reports of such firm
given upon their authority as experts in accounting and auditing.
Table of Contents
WHERE YOU CAN FIND MORE
INFORMATION .............. 2
THE COMPANY................... 2
PROSPECTUS SUPPLEMENTS........ 2
RATIO OF EARNINGS TO
FIXED CHARGES ............. 3
USE OF PROCEEDS .............. 3
DESCRIPTION OF THE NOTES ..... 3
General .................. 3
Redemptions ............... 4
Remarketed Notes .......... 4
Book-Entry Notes - Registration,
Transfer, and Payment of
Interest and Principal ... 4
Note Certificates - Registration,
Transfer, and Payment of
Interest and Principal ... 6
Interest Rate ............. 6
Fixed Rate Notes ......... 6
Floating Rate Notes ...... 7
Events of Default ......... 7
Modification of Indenture.. 8
Consolidation, Merger or
Sale ...................... 8
Legal Defeasance ........... 8
Covenant Defeasance ........ 8
Governing Law .............. 8
Concerning the Trustee ..... 8
PLAN OF DISTRIBUTION .......... 9
By Agents .................. 9
By Underwriters ............ 9
Direct Sales ............... 9
General Information ........ 9
LEGAL OPINIONS ................ 9
EXPERTS ....................... 10
$250,000,000 Unsecured Notes
PROSPECTUS
The date of this
Prospectus is _______, 1999
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
Estimation based upon the issuance of all of the
unsecured notes in two issuances:
Securities and Exchange Commission Filing Fees...........$ 69,500
Printing Registration Statement, Prospectus, etc......... 30,000
Independent Auditors' fees............................... 30,000
Charges of Trustee (including counsel fees).............. 15,000
Legal fees............................................... 160,000
Rating Agency fees....................................... 80,000
Miscellaneous expenses................................... 25,000
Total............................................... $409,500
* ....Estimated, except for filing fees.
Item 15....Indemnification of Directors and Officers.
The Bylaws of the Company provide that the Company shall
indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal, including all
appeals, because such person is or was a director, officer or
employee of the Company or is or was serving at the request of
the Company as a director, officer, partner, trustee, employee or
agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against any
obligations to pay judgments, settlements, penalties, fines
(including any excise tax assessed with respect to an employee
benefit plan) or reasonable expenses (including attorneys' fees)
incurred by such person in connection with such action, suit or
proceeding if (a) such person conducted him or herself in good
faith; (b) such person believed, in the case of conduct in such
person's official capacity with the Company (as defined), that
his or her conduct was in the best interests of the Company, and,
in all other cases, that his or her conduct was at least not
opposed to its best interests; (c) with respect to any criminal
action or proceeding, such person had no reasonable cause to
believe his or her conduct was unlawful; and (d) such person was
not grossly negligent or guilty of willful misconduct. Such
indemnification in connection with a proceeding by or in the
right of the Company is limited to reasonable expenses incurred
in connection with the proceeding. Any such indemnification
(unless ordered by a court) shall be made by the Company only as
authorized in the specific case upon a determination that
indemnification of the director is proper in the circumstances
because such person has met the applicable standard of conduct.
......Section 13.1-698 of the Code of Virginia provides that
unless limited by the articles of incorporation, a corporation
shall indemnify a director who entirely prevails in the defense
of any proceeding to which such person was a party because such
person is or was a director of the corporation against reasonable
expenses incurred in connection with such proceeding. Section
13.1-699 provides that a corporation may pay for or reimburse
reasonable expenses incurred by a director who is a party to such
a proceeding in advance of final disposition of such proceeding
if (a) the director furnishes a written statement of his or her
good faith belief that the standard of conduct described in
Section 13.1-697 has been met; (b) the director furnishes the
corporation a written undertaking by or on behalf of the director
to repay the advance if it is ultimately determined that such
person did not meet the standard of conduct; and (c) a
determination is made that the facts then known to those making
the determination would not preclude indemnification. Section
13.1-700.1 provides procedures which allow directors to apply to
a court for an order directing advances or indemnification.
......Section 13.1-702 provides that unless limited by the
articles of incorporation, (a) officers are entitled to mandatory
indemnification under Section 13.1-698 and to apply for court
ordered indemnification under Section 13.1-700.1 to the same
extent as a director, and (b) that a corporation may indemnify
and advance expenses to an officer, employee or agent to the same
extent as to a director. Section 13.1-704 provides that any
corporation shall have the power to make any further indemnity to
any director, officer, employee or agent that may be authorized
by the articles of incorporation or any bylaw made by the
stockholders or any resolution adopted, before or after the
event, by the stockholders, except an indemnity against willful
misconduct or a knowing violation of criminal law.
......The above is a general summary of certain provisions of the
Company's Bylaws and the Code of Virginia and is subject in all
respects to the specific and detailed provisions of the Company's
Bylaws and the Code of Virginia.
......Reference is made to the Selling Agency Agreement and the
Underwriting Agreement filed as Exhibits 1(a) and 1(b) hereto,
respectively, which provide for indemnification of the Company,
certain of its directors and officers, and persons who control
the Company, under certain circumstances.
......The Company maintains insurance policies insuring its
directors and officers against certain obligations that may be
incurred by them.
Item 16....Exhibits.
......Reference is made to the information contained in the
Exhibit Index filed as part of this Registration Statement.
Item 17....Undertakings.
......The undersigned registrant hereby undertakes:
......(1)..To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of unsecured notes offered
(if the total dollar value of unsecured notes offered would
not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) of the Securities Act of
1933 if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that (i) and (ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of the registrant's
annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference
in this registration statement shall be deemed to be a new
registration statement relating to the unsecured notes offered,
and the offering thereof at that time shall be deemed to be the
initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the laws of the Commonwealth of Virginia, the registrant's
bylaws, or otherwise, the registrant has been advised that in the
opinion of the SEC such indemnification is against public policy
as expressed in said Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the unsecured notes, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
said Act and will be governed by the final adjudication of such
issue.
(6) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus
filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared
effective.
(7) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable cause to believe
that it meets all of the requirements for filing on Form S-3 and
has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Columbus and State of Ohio, on the 30th day of July, 1999.
.......... APPALACHIAN POWER COMPANY
.......... E. Linn Draper, Jr.*
.......... Chairman of the Board and
.......... Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Title Date
(i) Principal Executive
Officer Chairman of the Board
and Chief Executive
E. Linn Draper, Jr.* Officer July 30, 1999
(ii) Principal Financial
Officer:
Vice President, Treasurer
/s/ A. A. Pena_________ and Chief Financial
A. A. Pena Officer July 30, 1999
(iii) Principal Accounting
Officer:
/s/ L. V. Assante_______ Controller and Chief
L. V. Assante Accounting Officer July 30, 1999
(iv) A Majority of the
Directors:
E. Linn Draper, Jr.*
H. W. Fayne*
Wm. J. Lhota*
James J. Markowsky*
A. A. Pena
J. H. Vipperman* July 30, 1999
*By/s/ A. A. Pena______
(A. A. Pena, Attorney-in-Fact)
EXHIBIT INDEX
Certain of the following exhibits, designated with an
asterisk (*), are filed herewith. The exhibits not so designated
have heretofore been filed with the Commission and, pursuant to
17 C.F.R. Sections 201.24 and 230.411, are incorporated herein by
reference to the documents indicated following the descriptions
of such exhibits.
Exhibit No. Description
* 1(a) Copy of proposed form of Selling Agency
Agreement for the unsecured notes.
* 1(b) Copy of proposed form of Underwriting
Agreement for the unsecured notes.
4(a) Copy of Indenture, dated as of January 1,
1998, between the Company and The Bank of New
York, as Trustee [Registration Statement No.
333-45927, Exhibits 4(a) and 4(b); Registration
Statement No. 333-49071, Exhibit 4(b)].
* 4(b) Copy of Company Order and Officers'
Certificate, dated April 22, 1998, establishing
certain terms of the 7.30% Senior Notes, Series B,
Due 2038.
* 4(c) Copy of Company Order and Officers'
Certificate, dated May 20, 1999, establishing
certain terms of the 6.60% Senior Notes, Series C,
Due 2009.
* 4(d) Copy of proposed form of Company Order for
the unsecured notes.
* 5 Opinion of Simpson Thacher & Bartlett with respect
to the unsecured notes.
12 Statement re Computations of Ratios [Quarterly
Report on Form 10-Q of the Company for the period
ended March 31, 1999, File No. 1-3457, Exhibit 12].
*23(a) Consent of Deloitte & Touche LLP.
23(b) Consent of Simpson Thacher & Bartlett
(included in Exhibit 5 filed herewith).
*24 Powers of Attorney and resolutions of the Board of
Directors of the Company.
*25 Form T-1 re eligibility of The Bank of New York to
act as Trustee under the Indenture.
Exhibit 1(a)
APPALACHIAN POWER COMPANY
Selling Agency Agreement
____________, ____
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
Dear Sirs:
Appalachian Power Company, an Appalachian 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 January 1, 1998,
between the Company and The Bank of New York, 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.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, you as set forth below
in this Section 1. Certain terms used in this Section 1 are defined
in paragraph (d) hereof.
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and
has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on such Form S-3 (File
Number: 333-_____), including a basic prospectus, which has
become effective, for the registration under the Act of
$250,000,000 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.
(b) As of the Execution Time, on the Effective Date, when
any supplement to the Prospectus is filed with the Commission,
as of the date of any Terms Agreement (as defined in Section
2(b)) and at the date of delivery by the Company of any Notes
sold hereunder (a "Closing Date"), (i) the Registration
Statement, as amended as of any such time, and the Prospectus,
as supplemented as of any such time, will comply in all material
respects with the applicable requirements of the Act, the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the respective rules under the Act,
the Exchange Act and the Trust Indenture Act; (ii) the
Registration Statement, as amended as of any such time, did not
or will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not
misleading; and (iii) the Prospectus, as supplemented as of any
such time, will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that
the Company makes no representations or warranties as to (i)
those parts of the Registration Statement which shall constitute
a Statement of Eligibility (Form T-1) of the Trustee under the
Trust Indenture Act or (ii) the information contained in or
omitted from the Registration Statement or the Prospectus (or
any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by any of you
expressly for use in the Registration Statement or the
Prospectus (or any supplement thereto).
(c) As of the time any Notes are issued and sold
hereunder, the Indenture will constitute a legal, valid and
binding instrument enforceable against the Company in accordance
with its terms and such Notes will have been duly authorized,
executed, authenticated and, when paid for by the purchasers
thereof, will constitute legal, valid and binding obligations of
the Company entitled to the benefits of the Indenture, except as
the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors'
rights generally, or general equitable principles (whether
considered in a proceeding in equity or at law), and an implied
covenant of good faith and fair dealing.
(d) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective
Date" shall mean each date that the Registration Statement and
any post-effective amendment or amendments thereto became or
become effective. "Execution Time" shall mean the date and time
that this Agreement is executed and delivered by the parties
hereto. "Basic Prospectus" shall mean the form of basic
prospectus relating to the Securities contained in the
Registration Statement at the Effective Date. "Prospectus"
shall mean the Basic Prospectus as supplemented by the
Prospectus Supplement. "Registration Statement" shall mean the
Registration Statement referred to in paragraph (a) above,
including incorporated documents, exhibits and financial
statements, as amended at the Execution Time. "Rule 415" and
"Rule 424" refer to such rules under the Act. Any reference
herein to the Registration Statement, the Basic Prospectus, the
Prospectus Supplement or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date or the issue date
of the Basic Prospectus, the Prospectus Supplement or the
Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, the Prospectus
Supplement or the Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after
the Effective Date or the issue date of the Basic Prospectus,
the Prospectus Supplement or the Prospectus, as the case may be,
deemed to be incorporated therein by reference.
(e) 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.
(f) 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.
(g) This Agreement has been duly authorized, executed and
delivered by the Company.
(h) 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.)
(i) 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) approvals 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.
2. Appointment of Agents; Solicitation by the Agents of
Offers to Purchase; Sales of Notes to a Purchaser.
(a) Subject to the terms and conditions set forth herein,
the Company hereby authorizes each of the Agents to act as its
agent to solicit offers for the purchase of all or part of the
Notes from the Company.
On the basis of the representations and warranties,
and subject to the terms and conditions set forth herein, each
of the Agents agrees, as agent of the Company, to use its
reasonable best efforts to solicit offers to purchase the Notes
from the Company upon the terms and conditions set forth in the
Prospectus (and any supplement thereto) and in the Procedures.
The Company reserves the right, in its sole
discretion, to instruct the Agents to suspend at any time, for
any period of time or permanently, the solicitation of offers to
purchase the Notes. Upon receipt of instructions from the
Company, the Agents will forthwith suspend solicitation of
offers to purchase Notes from the Company until such time as the
Company has advised them that such solicitation may be resumed.
The Company expressly reserves the right, upon fifteen
business days' prior written notice to each Agent, to appoint
other persons, partnerships or corporations ("Additional
Agents") to act as its agent to solicit offers for the purchase
of Notes; provided, each Additional Agent shall be named in a
prospectus supplement or pricing supplement and shall either
execute this Agreement and become a party hereto or shall enter
into an agency agreement with the Company on terms substantially
similar to those contained herein; thereafter the term Agent as
used in this Agreement shall mean each Agent and each such
Additional Agent.
The Company agrees to pay each Agent a commission, on
the Closing Date with respect to each sale of Notes by the
Company as a result of a solicitation made by such Agent, in an
amount equal to that percentage specified in Schedule I hereto
of the aggregate principal amount of the Notes sold by the
Company. Such commission shall be payable as specified in the
Procedures.
Subject to the provisions of this Section and to the
Procedures, offers for the purchase of Notes may be solicited by
an Agent as agent for the Company at such time and in such
amounts as such Agent deems advisable. The Company may from
time to time offer Notes for sale otherwise than through an
Agent; provided, however, that so long as this Agreement shall
be in effect the Company shall not solicit or accept offers to
purchase Notes through any agent other than an Agent.
(b) Subject to the terms and conditions stated herein,
whenever the Company and any Agent determine that the Company
shall sell Notes directly to such Agent as principal, each such
sale of Notes shall be made in accordance with the terms of this
Agreement and, unless otherwise agreed by the Company and such
Agent, any supplemental agreement relating thereto between the
Company and the Purchaser. Each such supplemental agreement
(which may be an oral or written agreement) is herein referred
to as a "Terms Agreement". Each Terms Agreement shall describe
(whether orally or in writing) the Notes to be purchased by the
Purchaser pursuant thereto, and shall specify the aggregate
principal amount of such Notes, the maturity date of such Notes,
the rate at which interest will be paid on such Notes, the dates
on which interest will be paid on such Notes and the record date
with respect to each such payment of interest, the Closing Date
for the purchase of such Notes, the place of delivery of the
Notes and payment therefor, the method of payment and any
requirements for the delivery of the opinions of counsel, the
certificates from the Company or its officers, or a letter from
the Company's independent public accountants, pursuant to
Section 6(b). Any such Terms Agreement may also specify the
period of time referred to in Section 4(m). Any written Terms
Agreement may be in the form attached hereto as Exhibit B. The
Purchaser's commitment to purchase Notes shall be deemed to have
been made on the basis of the representations and warranties of
the Company herein contained and shall be subject to the terms
and conditions herein set forth.
The Company also may sell Notes to any Agent, acting
as principal, at a discount to be agreed upon at the time of
sale, for resale to one or more investors or to another
broker-dealer (acting as principal for purposes of resale) at
varying prices related to prevailing market prices at the time
of such resale as determined by such Agent. An Agent may resell
a Note purchased by it as principal to another broker-dealer at
a discount, provided such discount does not exceed the
commission or discount received by such Agent from the Company
in connection with the original sale of such Note.
(c) The Company, however, expressly reserves the right to
place the Notes itself privately or through a negotiated
underwritten transaction with one or more underwriters without
notice to any Agent and without any opportunity for any Agent to
solicit offers for the purchase of the Notes. In such event, no
commission will be payable to the Agents.
Delivery of the Notes sold to the Purchaser pursuant
to any Terms Agreement shall be made not later than the Closing
Date agreed to in such Terms Agreement, against payment of funds
to the Company in the net amount due to the Company for such
Notes by the method and in the form set forth in the Procedures
unless otherwise agreed to between the Company and the Purchaser
in such Terms Agreement.
3. Offering and Sale of Notes. Each Agent and the
Company agree to perform the respective duties and obligations
specifically provided to be performed by them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of 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.
(b) If, at any time when a prospectus relating to the
Notes is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then supplemented
would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary to amend the
Registration Statement or to supplement the Prospectus to comply
with the Act or the Exchange Act or the respective rules
thereunder, the Company promptly will (i) notify each of you to
suspend solicitation of offers to purchase Notes (and, if so
notified by the Company, each of you shall forthwith suspend
such solicitation and cease using the Prospectus as then
supplemented); (ii) prepare and file with the Commission,
subject to the first sentence of paragraph (a) of this Section
4, an amendment or supplement which will correct such statement
or omission or effect such compliance; and (iii) supply any
supplemented Prospectus to each of you in such quantities as you
may reasonably request. If such amendment or supplement, and
any documents, certificates and opinions furnished to each of
you pursuant to paragraph (g) of this Section 4 in connection
with the preparation or filing of such amendment or supplement
are satisfactory in all respects to you, you will, upon the
filing of such amendment or supplement with the Commission and
upon the effectiveness of an amendment to the Registration
Statement, if such an amendment is required, resume your
obligation to use your reasonable best efforts to solicit offers
to purchase Notes hereunder.
(c) The Company, during the period when a prospectus
relating to the Notes is required to be delivered under the Act,
will file promptly all documents required to be filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act and will furnish to each of you copies of such
documents. In addition, on or prior to the date on which the
Company makes any announcement to the general public concerning
earnings or concerning any other event which is required to be
described, or which the Company proposes to describe, in a
document filed pursuant to the Exchange Act, the Company will
furnish to each of you the information contained or to be
contained in such announcement. The Company also will furnish
to each of you copies of all other press releases or
announcements to the general public. The Company will
immediately notify each of you of any downgrading in the rating
of the Notes or any other 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.
(d) As soon as practicable, the Company will make
generally available to its security holders and to each of you
an earning statement or statements of the Company which will
satisfy the provisions of Section 11(a) of the Act and Rule 158
under the Act.
(e) The Company will furnish to each of you and your
counsel, without charge, copies of the Registration Statement
(without exhibits) and, so long as delivery of a prospectus may
be required by the Act, as many copies of the Prospectus and any
supplement thereto as you may reasonably request.
(f) The Company will use its best efforts to qualify the
Notes for offer and sale under the securities or "blue sky" laws
of such jurisdictions as you may designate within six months
after the final sale of Notes pursuant to this Agreement and
agrees to pay, or to reimburse you and your counsel for,
reasonable filing fees and expenses in connection therewith in
an amount not exceeding $5,000 in the aggregate (including
filing fees and expenses paid and incurred prior to the date
hereof), provided, however, that the Company shall not be
required to qualify as a foreign corporation or to file a
consent to service of process or to file annual reports or to
comply with any other requirements deemed by the Company to be
unduly burdensome.
(g) The Company shall furnish to each of you such
information, documents, certificates of officers of the Company
and opinions of counsel for the Company relating to the
business, operations and affairs of the Company, the
Registration Statement, the Prospectus, and any amendments
thereof or supplements thereto, the Indenture, the Notes, this
Agreement, the Procedures and the performance by the Company and
you of its and your respective obligations hereunder and
thereunder as any of you may from time to time and at any time
prior to the termination of this Agreement reasonably request.
(h) The Company shall, whether or not any sale of the
Notes is consummated, (i) pay all expenses incident to the
performance of its obligations under this Agreement, including
the fees and disbursements of its accountants and counsel, the
cost of printing or other production and delivery of the
Registration Statement, the Prospectus, all amendments thereof
and supplements thereto, the Indenture, this Agreement and all
other documents relating to the offering, the cost of preparing,
printing, packaging and delivering the Notes, the fees and
disbursements of the Trustee and the fees of any agency that
rates the Notes; (ii) reimburse each of you on a monthly basis
for all out-of-pocket expenses (including without limitation
advertising expenses) incurred with the prior approval of the
Company in connection with this Agreement; and (iii) pay the
reasonable fees and expenses of your counsel incurred in
connection with this Agreement, including fees of counsel
incurred in compliance with and to the extent stated in Section
4(f), including the preparation of a Blue Sky Survey.
(i) Each acceptance by the Company of an offer to purchase
Notes will be deemed to be an affirmation that its
representations and warranties contained in this Agreement 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.
(j) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an
amendment or supplement (i) relating to any offering of
Securities other than the Notes; (ii) incorporating by reference
information contained in a Current Report on Form 8-K filed by
the Company under the Exchange Act that is (A) filed solely
under Item 5 of Form 8-K and (B) not required to be filed to
comply with Section 4(b); or (iii) providing solely for the
specification of or a change in the maturity dates, the interest
rates, the issuance prices or other similar terms of any Notes
sold pursuant hereto, unless, in the case of clause (ii) above,
in the reasonable judgment of any of you, such information is of
such a nature that a certificate of the Company should be
delivered), the Company will deliver or cause to be delivered
promptly to each of you a certificate of the Company, signed by
a Vice President, Treasurer or Assistant Treasurer of the
Company, dated the date of the effectiveness of such amendment
or the date of the filing of such supplement, in form reasonably
satisfactory to you, of the same tenor as the certificate
referred to in Section 5(c) but modified to relate to the last
day of the fiscal quarter for which financial statements of the
Company were last filed with the Commission and to the
Registration Statement and the Prospectus as amended and
supplemented to the time of the effectiveness of such amendment
or the filing of such supplement.
(k) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an
amendment or supplement (i) relating to any offering of
Securities other than the Notes; (ii) incorporating by reference
information contained in a Current Report on Form 8-K filed by
the Company under the Exchange Act that is (A) filed solely
under Item 5 of Form 8-K and (B) not required to be filed to
comply with Section 4(b); or (iii) providing solely for the
specification of or a change in the maturity dates, the interest
rates, the issuance prices or other similar terms of any Notes
sold pursuant hereto, unless, in the case of this clause (ii)
above, in the reasonable judgment of any of you, such
information is of such a nature that an opinion of counsel
should be furnished), the Company shall furnish or cause to be
furnished promptly to each of you a written opinion 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).
(l) If requested, each time that the Registration
Statement or the Prospectus is amended or supplemented to
include or incorporate amended or supplemental financial
information, the Company shall cause its independent public
accountants promptly to furnish each of you a letter, dated the
date of the effectiveness of such amendment or the date of the
filing of such supplement, in form satisfactory to each of you,
of the same tenor as the letter referred to in Section 5(d) with
such changes as may be necessary to reflect the amended and
supplemental financial information included or incorporated by
reference in the Registration Statement and the Prospectus, as
amended or supplemented to the date of such letter; provided,
however, that, if the Registration Statement or the Prospectus
is amended or supplemented solely to include or incorporate by
reference financial information as of and for a fiscal quarter,
the Company's independent public accountants may limit the scope
of such letter, which shall be satisfactory in form to each of
you, to the unaudited financial statements, the related
"Management's Discussion and Analysis of Results of Operations
and Financial Condition" and any other information of an
accounting, financial or statistical nature included in such
amendment or supplement, unless, in the reasonable judgment of
any of you, such letter should cover other information or
changes in specified financial statement line items.
(m) During the period, if any, which shall not exceed ten
days, specified in any Terms Agreement, the Company shall not,
without the prior consent of the Purchaser thereunder, issue or
announce the proposed issuance of any of its 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.
5. Conditions to the Obligations of the Agents. The
obligations of each Agent to use its reasonable best efforts to
solicit offers to purchase the Notes shall be subject to the accuracy
of the representations and warranties on the part of the Company
contained herein as of the Execution Time, on the Effective Date,
when any supplement to the Prospectus is filed with the Commission
and as of each Closing Date, to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions hereof at
each such time or date, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) If filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Prospectus,
and any such supplement, shall have been filed in the manner and
within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) That, at the Execution Time, each Agent shall be
furnished with the following opinions, dated the date thereof,
with such changes therein as may be agreed upon by the Company
and the Agents with the approval of Dewey Ballantine LLP,
counsel to the Agents:
(1) Opinion of Simpson Thacher & Bartlett, of New
York, New York, counsel to the Company, substantially in
the form heretofore made available to the Agents;
(2) Opinion of Dewey Ballantine LLP, of New York, New
York, counsel to the Agents, substantially in the form
heretofore made available to the Agents;
(3) Opinion of an attorney employed by American
Electric Power Service Corporation, substantially in the
form heretofore made available to the Agents.
(c) The Company shall have furnished to each Agent a
certificate of the Company, signed by a Vice President,
Treasurer or Assistant Treasurer of the Company, dated the
Execution Time, to the effect that the signer of such
certificate has carefully examined the Registration Statement,
the Prospectus, any supplement to the Prospectus and this
Agreement and that:
(1) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the date hereof with the same effect
as if made on the date hereof and the Company has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied as a condition to the
obligation of the Agents to solicit offers to purchase the
Notes;
(2) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(3) since the date of the most recent financial
statements included or incorporated by reference in the
Prospectus, there has been no material adverse change in
the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, whether or
not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the
Prospectus.
(d) That the Agents shall have received a letter from
Deloitte & Touche LLP in form and substance satisfactory to
them, dated as of the Execution Time, (i) confirming that they
are independent public accountants within the meaning of the Act
and the applicable published rules and regulations of the
Commission thereunder; (ii) stating that in their opinion the
financial statements audited by them and included or
incorporated by reference in the Registration Statement complied
as to form in all material respects with the then applicable
accounting requirements of the Commission, including applicable
published rules and regulations of the Commission and (iii)
covering as of a date not more than five business days prior to
the date of such letter such other matters as the Agents
reasonably request.
(e) Prior to the Execution Time, the Company shall have
furnished to each Agent such further information, documents,
certificates and opinions of counsel as the Agents may
reasonably request.
If any of the conditions specified in this Section 5 shall
not have been fulfilled in all material respects when and as provided
in this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be in all
material respects reasonably satisfactory in form and substance to
such Agents and counsel for the Agents, this Agreement and all
obligations of any Agent hereunder may be canceled at any time by the
Agents without any liability whatsoever. Notice of such cancellation
shall be given to the Company in writing or by telephone or telex or
facsimile transmission confirmed in writing.
The documents required to be delivered by this Section 5
shall be delivered at the offices of American Electric Power Service
Corporation, 1 Riverside Plaza, Columbus, Ohio 43215 on the date
hereof.
6. Conditions to the Obligations of the Purchaser. The
obligations of the Purchaser to purchase any Notes will be subject to
the accuracy of the representations and warranties on the part of the
Company herein as of the date of any related Terms Agreement and as
of the Closing Date for such Notes, to the performance and observance
by the Company of all covenants and agreements herein contained on
its part to be performed and observed and to the following additional
conditions precedent:
(a) If filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Prospectus,
and any such supplement, shall have been filed in the manner and
within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) If specified by any related Terms Agreement and except
to the extent modified by such Terms Agreement, the Purchaser
shall have received, appropriately updated, (i) a certificate of
the Company, dated as of the Closing Date, to the effect set
forth in Section 5(c) (except that references to the Prospectus
shall be to the Prospectus as supplemented at the time of
execution of the Terms Agreement); (ii) the opinion of counsel
for the Company (which may be either Simpson Thacher & Bartlett
or an attorney employed by American Electric Power Service
Corporation, an affiliate of the Company), dated as of the
Closing Date, substantially in the form delivered pursuant to
Section 5(b)(1) hereof; (iii) the opinion of Dewey Ballantine
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.
(c) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information,
certificates and documents as the Purchaser may reasonably
request.
If any of the conditions specified in this Section 6 shall
not have been fulfilled in all material respects when and as provided
in this Agreement and any Terms Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement or
such Terms Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Purchaser and its counsel,
such Terms Agreement and all obligations of the Purchaser thereunder
and with respect to the Notes subject thereto may be canceled at, or
at any time prior to, the respective Closing Date by the Purchaser
without any liability whatsoever. Notice of such cancellation shall
be given to the Company in writing or by telephone or telex or
facsimile transmission confirmed in writing.
7. Right of Person Who Agreed to Purchase to Refuse to
Purchase. The Company agrees that any person who has agreed to
purchase and pay for any Note, including a Purchaser and any person
who purchases pursuant to a solicitation by any of the Agents, shall
have the right to refuse to purchase such Note if (a) at the Closing
Date therefor, any condition set forth in Section 5 or 6, as
applicable, shall not be satisfied or (b) subsequent to the agreement
to purchase such Note, there shall have been any decrease in the
ratings of any of the Company's Unsecured Notes by Moody's Investors
Service, Inc. ("Moody's") or Standard & Poor's Ratings Group ("S&P")
or either Moody's or S&P shall publicly announce that it has any of
such 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.
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 1 Riverside Plaza, Columbus, Ohio
43215, attention of A. A. Pena, Treasurer.
12. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons
referred to in Section 8 hereof, and no other person will have any
right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New York.
14. Execution of Counterparts. This Agreement may be
executed in several counterparts, each of which shall be regarded as
an original and all of which shall constitute one and the same
document.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate
hereof, whereupon this letter and your acceptance shall represent a
binding agreement among the Company and you.
Very truly yours,
APPALACHIAN POWER COMPANY
By:___________________________
A. A. Pena
Treasurer
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
______________________________
By:___________________________
Its:___________________________
______________________________
By:___________________________
Its:__________________________
SCHEDULE I
Commissions:
The Company agrees to pay each Agent a commission equal to the
following percentage of the principal amount of each Note sold on an
agency basis by such Agent:
Term Commission Rate
From 9 months to less than 1 year
From 1 year to less than 18 months
From 18 months to less than 2 years
From 2 years to less than 3 years
From 3 years to less than 4 years
From 4 years to less than 5 years
From 5 years to less than 6 years
From 6 years to less than 7 years
From 7 years to less than 10 years
From 10 years to less than 15 years
From 15 years to less than 20 years
From 20 years up to and including 42 years
Unless otherwise specified in the applicable Terms Agreement,
the discount or commission payable to a Purchaser shall be determined
on the basis of the commission schedule set forth above.
Address for Notice to you:
Notices to __________________________________ shall be directed
to it at ________________________________, Attention:
____________________, telephone: ___/___-____, telecopy: ___/___-____.
Notices to __________________________________ shall be directed
to it at ________________________________, Attention:
____________________, telephone: ___/___-____, telecopy: ___/___-____.
Exhibit 1(b)
APPALACHIAN POWER COMPANY
Underwriting Agreement
Dated ____________________
AGREEMENT made between APPALACHIAN POWER COMPANY, a
corporation organized and existing under the laws of the
Commonwealth of Virginia (the "Company"), and the several
persons, firms and corporations (the "Underwriters") named in
Exhibit 1 hereto.
WITNESSETH:
WHEREAS, the Company proposes to issue and sell $__________
principal amount of its [Unsecured Notes] to be issued pursuant
to the Indenture dated as of January 1, 1998, between the Company
and The Bank of New York, as trustee (the "Trustee"), as
heretofore supplemented and amended and as to be further
supplemented and amended (said Indenture as so supplemented being
hereafter referred to as the Indenture); and
WHEREAS, the Underwriters have designated the person signing
this Agreement (the Representative) to execute this Agreement on
behalf of the respective Underwriters and to act for the
respective Underwriters in the manner provided in this Agreement;
and
WHEREAS, the Company has prepared and filed, in accordance
with the provisions of the Securities Act of 1933 (the Act), with
the Securities and Exchange Commission (the Commission), a
registration statement and prospectus or prospectuses relating to
the [Unsecured Notes] and such registration statement has become
effective; and
WHEREAS, such registration statement, as it may have been
amended to the date hereof, including the financial statements,
the documents incorporated or deemed incorporated therein by
reference and the exhibits, being herein called the Registration
Statement, and the prospectus, as included or referred to in the
Registration Statement to become effective, as it may be last
amended or supplemented prior to the effectiveness of the
agreement (the Basic Prospectus), and the Basic Prospectus, as
supplemented by a prospectus supplement which includes certain
information relating to the Underwriters, the principal amount,
price and terms of offering, the interest rate and redemption
prices of the [Unsecured Notes], first filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) of the
Commission's General Rules and Regulations under the Act (the
Rules), including all documents then incorporated or deemed to
have been incorporated therein by reference, being herein call
the Prospectus.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, it is agreed between the
parties as follows:
1. Purchase and Sale: Upon the basis of the warranties
and representations and on the terms and subject to the
conditions herein set forth, the Company agrees to sell to the
respective Underwriters named in Exhibit 1 hereto, severally and
not jointly, and the respective Underwriters, severally and not
jointly, agree to purchase from the Company, the respective
principal amounts of the [Unsecured Notes] set opposite their
names in Exhibit 1 hereto, together aggregating all of the
[Unsecured Notes], at a price equal to ______% of the principal
amount thereof.
2. Payment and Delivery: Payment for the [Unsecured
Notes] shall be made to the Company or its order by certified or
bank check or checks, payable in New York Clearing House funds,
at the office of Simpson Thacher & Bartlett, 425 Lexington
Avenue, New York, New York 10017-3909, or at such other place as
the Company and the Representative shall mutually agree in
writing, upon the delivery of the [Unsecured Notes] to the
Representative for the respective accounts of the Underwriters
against receipt therefor signed by the Representative on behalf
of itself and for the other Underwriters. Such payments and
delivery shall be made at 10:00 A.M., New York Time, on
_______________ (or on such later business day, not more than
five business days subsequent to such day, as may be mutually
agreed upon by the Company and the Underwriters), unless
postponed in accordance with the provisions of Section 7 hereof.
The time at which payment and delivery are to be made is herein
called the Time of Purchase.
[The delivery of the [Unsecured Notes] shall be made in
fully registered form, registered in the name of CEDE & CO., to
the offices of The Depository Trust Company in New York, New York
and the Underwriters shall accept such delivery.]
3. Conditions of Underwriters' Obligations: The several
obligations of the Underwriters hereunder are subject to the
accuracy of the warranties and representations on the part of the
Company on the date hereof and at the Time of Purchase and to the
following other conditions:
(a) That all legal proceedings to be taken and all
legal opinions to be rendered in connection with
the issue and sale of the [Unsecured Notes] shall
be satisfactory in form and substance to Dewey
Ballantine LLP, counsel to the Underwriters.
(b) That, at the Time of Purchase, the Representative
shall be furnished with the following opinions,
dated the day of the Time of Purchase, with
conformed copies or signed counterparts thereof
for the other Underwriters, with such changes
therein as may be agreed upon by the Company and
the Representative with the approval of Dewey
Ballantine LLP, counsel to the Underwriters:
(1) Opinion of Simpson Thacher & Bartlett and any
of John F. Di Lorenzo, Jr., Esq., Thomas G.
Berkemeyer, Esq., Ann B. Graf, Esq., David C.
House, Esq., or William E. Johnson, Esq.,
counsel to the Company, substantially in the
forms attached hereto as Exhibits A and B; and
(2) Opinion of Dewey Ballantine LLP, counsel to
the Underwriters, substantially in the form
attached hereto as Exhibit C.
(c) That the Representative shall have received a
letter from Deloitte & Touche LLP in form and
substance satisfactory to the Representative,
dated as of the day of the Time of Purchase, (i)
confirming that they are independent public
accountants within the meaning of the Act and the
applicable published rules and regulations of the
Commission thereunder, (ii) stating that in their
opinion the financial statements audited by them
and included or incorporated by reference in the
Registration Statement complied as to form in all
material respects with the then applicable
accounting requirements of the Commission,
including the applicable published rules and
regulations of the Commission and (iii) covering
as of a date not more than five business days
prior to the day of the Time of Purchase such
other matters as the Representative reasonably
requests.
(d) That no amendment to the Registration Statement
and that no prospectus or prospectus supplement of
the Company relating to the [Unsecured Notes] and
no document which would be deemed incorporated in
the Prospectus by reference filed subsequent to
the date hereof and prior to the Time of Purchase
shall contain material information substantially
different from that contained in the Registration
Statement which is unsatisfactory in substance to
the Representative or unsatisfactory in form to
Dewey Ballantine LLP, counsel to the Underwriters.
(e) That, at the Time of Purchase, appropriate orders
of the Virginia State Corporation Commission and
the Tennessee Regulatory Authority, necessary to
permit the sale of the [Unsecured Notes] to the
Underwriters, shall be in effect; and that, prior
to the Time of Purchase, no stop order with
respect to the effectiveness of the Registration
Statement shall have been issued under the Act by
the Commission or proceedings therefor initiated.
(f) That, at the Time of Purchase, there
shall not have been any material adverse change in
the business, properties or financial condition of
the Company from that set forth in the Prospectus
(other than changes referred to in or contemplated
by the Prospectus), and that the Company shall, at
the Time of Purchase, have delivered to the
Representative a certificate of an executive
officer of the Company to the effect that, to the
best of his knowledge, information and belief,
there has been no such change.
(g) That the Company shall have performed such of its
obligations under this Agreement as are to be
performed at or before the Time of Purchase by the
terms hereof.
4. Certain Covenants of the Company: In further
consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within
the time prescribed by Rule 424 under the Act, to
file any Prospectus Supplement relating to the
[Unsecured Notes] with the Commission; as soon as
the Company is advised thereof, to advise the
Representative and confirm the advice in writing
of any request made by the Commission for
amendments to the Registration Statement or the
Prospectus or for additional information with
respect thereto or of the entry of a stop order
suspending the effectiveness of the Registration
Statement or of the initiation or threat of any
proceedings for that purpose and, if such a stop
order should be entered by the Commission, to make
every reasonable effort to obtain the prompt
lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as
soon as practicable (and in any event within 24
hours after the date hereof), and from time to
time thereafter during such period of time (not
exceeding nine months) after the date hereof as
they are required by law to deliver a prospectus,
as many copies of the Prospectus (as supplemented
or amended if the Company shall have made any
supplements or amendments thereto) as the
Representative may reasonably request; and in case
any Underwriter is required to deliver a
prospectus after the expiration of nine months
after the date hereof, to furnish to any
Underwriter, upon request, at the expense of such
Underwriter, a reasonable quantity of a
supplemental prospectus or of supplements to the
Prospectus complying with Section 10(a)(3) of the
Act.
(c) To furnish to the Representative a copy, certified
by the Secretary or an Assistant Secretary of the
Company, of the Registration Statement as
initially filed with the Commission and of all
amendments thereto (exclusive of exhibits), and,
upon request, to furnish to the Representative
sufficient plain copies thereof (exclusive of
exhibits) for distribution of one to the other
Underwriters.
(d) For such period of time (not exceeding nine
months) after the date hereof as they are required
by law to deliver a prospectus, if any event shall
have occurred as a result of which it is necessary
to amend or supplement the Prospectus in order to
make the statements therein, in the light of the
circumstances when the Prospectus is delivered to
a purchaser, not contain any untrue statement of a
material fact or not omit to state any material
fact required to be stated therein or necessary in
order to make the statements therein not
misleading, forthwith to prepare and furnish, at
its own expense, to the Underwriters and to
dealers (whose names and addresses are furnished
to the Company by the Representative) to whom
principal amounts of the [Unsecured Notes] may
have been sold by the Representative for the
accounts of the Underwriters and, upon request, to
any other dealers making such request, copies of
such amendments to the Prospectus or supplements
to the Prospectus.
(e) As soon as practicable, the Company will make
generally available to its security holders and to
the Underwriters an earnings statement or
statement of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the [Unsecured
Notes] for offer and sale under the securities or
"blue sky" laws of such jurisdictions as the
Representative may designate within six months
after the date hereof and itself to pay, or to
reimburse the Underwriters and their counsel for,
reasonable filing fees and expenses in connection
therewith in an amount not exceeding $3,500 in the
aggregate (including filing fees and expenses paid
and incurred prior to the effective date hereof),
provided, however, that the Company shall not be
required to qualify as a foreign corporation or to
file a consent to service of process or to file
annual reports or to comply with any other
requirements deemed by the Company to be unduly
burdensome.
(g) To pay all expenses, fees and taxes (other than
transfer taxes on resales of the [Unsecured Notes]
by the respective Underwriters) in connection with
the issuance and delivery of the [Unsecured
Notes], except that the Company shall be required
to pay the fees and disbursements (other than
disbursements referred to in paragraph (f) of this
Section 4) of Dewey Ballantine LLP, counsel to the
Underwriters, only in the events provided in
paragraph (h) of this Section 4, the Underwriters
hereby agreeing to pay such fees and disbursements
in any other event.
(h) If the Underwriters shall not take up and pay for
the [Unsecured Notes] due to the failure of the
Company to comply with any of the conditions
specified in Section 3 hereof, or, if this
Agreement shall be terminated in accordance with
the provisions of Section 7 or 8 hereof, to pay
the fees and disbursements of Dewey Ballantine
LLP, counsel to the Underwriters, and, if the
Underwriters shall not take up and pay for the
[Unsecured Notes] due to the failure of the
Company to comply with any of the conditions
specified in Section 3 hereof, to reimburse the
Underwriters for their reasonable out-of-pocket
expenses, in an aggregate amount not exceeding a
total of $10,000, incurred in connection with the
financing contemplated by this Agreement.
(i) The Company will timely file any certificate
required by Rule 52 under the Public Utility
Holding Company Act of 1935 in connection with the
sale of the [Unsecured Notes].
[(j) The Company will use its best efforts to list,
subject to notice of issuance, the [Unsecured
Notes] on the New York Stock Exchange.]
[(k) During the period from the date hereof and
continuing to and including the earlier of (i) the
date which is after the Time of Purchase on which
the distribution of the [Unsecured Notes] ceases,
as determined by the Representative in its sole
discretion, and (ii) the date which is 30 days
after the Time of Purchase, the Company agrees not
to offer, sell, contract to sell or otherwise
dispose of any [Unsecured Notes] of the Company or
any substantially similar securities of the
Company without the consent of the Representative.]
5. Warranties of and Indemnity by the Company: The
Company represents and warrants to, and agrees with you, as set
forth below:
(a) the Registration Statement on its effective date
complied, or was deemed to comply, with the
applicable provisions of the Act and the rules and
regulations of the Commission and the Registration
Statement at its effective date did not, and at
the Time of Purchase will not, contain any untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, and the Basic Prospectus at the time
that the Registration Statement became effective,
and the Prospectus when first filed in accordance
with Rule 424(b) complies, and at the Time of
Purchase the Prospectus will comply, with the
applicable provisions of the Act and the Trust
Indenture Act of 1939, as amended, and the rules
and regulations of the Commission, the Basic
Prospectus at the time that the Registration
Statement became effective, and the Prospectus
when first filed in accordance with Rule 424(b)
did not, and the Prospectus at the Time of
Purchase will not, contain any untrue statement of
a material fact or omit to state a material fact
required to be stated therein or necessary to make
the statements therein, in the light of the
circumstances under which they were made, not
misleading, except that the Company makes no
warranty or representation to the Underwriters
with respect to any statements or omissions made
in the Registration Statement or Prospectus in
reliance upon and in conformity with information
furnished in writing to the Company by, or through
the Representative on behalf of, any Underwriter
expressly for use in the Registration Statement,
the Basic Prospectus or Prospectus, or to any
statements in or omissions from that part of the
Registration Statement that shall constitute the
Statement of Eligibility under the Trust Indenture
Act of 1939 of any indenture trustee under an
indenture of the Company.
(b) As of the Time of Purchase, the Indenture will
have been duly authorized by the Company and duly
qualified under the Trust Indenture Act of 1939,
as amended, and, when executed and delivered by
the Trustee and the Company, will constitute a
legal, valid and binding instrument enforceable
against the Company in accordance with its terms
and such [Unsecured Notes] will have been duly
authorized, executed, authenticated and, when paid
for by the purchasers thereof, will constitute
legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture,
except as the enforceability thereof may be
limited by bankruptcy, insolvency, or other
similar laws affecting the enforcement of
creditors' rights in general, and except as the
availability of the remedy of specific performance
is subject to general principles of equity
(regardless of whether such remedy is sought in a
proceeding in equity or at law), and by an implied
covenant of good faith and fair dealing.
(c) To the extent permitted by law, to indemnify and
hold you harmless and each person, if any, who
controls you within the meaning of Section 15 of
the Act, against any and all losses, claims,
damages or liabilities, joint or several, to which
you, they or any of you or them may become subject
under the Act or otherwise, and to reimburse you
and such controlling person or persons, if any,
for any legal or other expenses incurred by you or
them in connection with defending any action,
insofar as such losses, claims, damages,
liabilities or actions arise out of or are based
upon any alleged untrue statement or untrue
statement of a material fact contained in the
Registration Statement, in the Basic Prospectus,
or in the Prospectus, or if the Company shall
furnish or cause to be furnished to you any
amendments or any supplemental information, in the
Prospectus as so amended or supplemented other
than amendments or supplements relating solely to
securities other than the Notes (provided that if
such Prospectus or such Prospectus, as amended or
supplemented, is used after the period of time
referred to in Section 4(b) hereof, it shall
contain such amendments or supplements as the
Company deems necessary to comply with Section
10(a) of the Act), or arise out of or are based
upon any alleged omission or omission to state
therein a material fact required to be stated
therein or necessary to make the statements
therein not misleading, except insofar as such
losses, claims, damages, liabilities or actions
arise out of or are based upon any such alleged
untrue statement or omission, or untrue statement
or omission which was made in the Registration
Statement, in the Basic Prospectus or in the
Prospectus, or in the Prospectus as so amended or
supplemented, in reliance upon and in conformity
with information furnished in writing to the
Company by or through you expressly for use
therein or with any statements in or omissions
from that part of the Registration Statement that
shall constitute the Statement of Eligibility
under the Trust Indenture Act, of any indenture
trustee under an indenture of the Company, and
except that this indemnity shall not inure to your
benefit (or of any person controlling you) on
account of any losses, claims, damages,
liabilities or actions arising from the sale of
the Notes to any person if such loss arises from
the fact that a copy of the Prospectus, as the
same may then be supplemented or amended to the
extent such Prospectus was provided to you by the
Company (excluding, however, any document then
incorporated or deemed incorporated therein by
reference), was not sent or given by you to such
person with or prior to the written confirmation
of the sale involved and the alleged omission or
alleged untrue statement or omission or untrue
statement was corrected in the Prospectus as
supplemented or amended at the time of such
confirmation, and such Prospectus, as amended or
supplemented, was timely delivered to you by the
Company. You agree promptly after the receipt by
you of written notice of the commencement of any
action in respect to which indemnity from the
Company on account of its agreement contained in
this Section 5(c) may be sought by you, or by any
person controlling you, to notify the Company in
writing of the commencement thereof, but your
omission so to notify the Company of any such
action shall not release the Company from any
liability which it may have to you or to such
controlling person otherwise than on account of
the indemnity agreement contained in this Section
8(a). In case any such action shall be brought
against you or any such person controlling you and
you shall notify the Company of the commencement
thereof, as above provided, the Company shall be
entitled to participate in, and, to the extent
that it shall wish, including the selection of
counsel (such counsel to be reasonably acceptable
to the indemnified party), to direct the defense
thereof at its own expense. In case the Company
elects to direct such defense and select such
counsel (hereinafter, "Company's counsel"), you or
any controlling person shall have the right to
employ your own counsel, but, in any such case,
the fees and expenses of such counsel shall be at
your expense unless (i) the Company has agreed in
writing to pay such fees and expenses or (ii) the
named parties to any such action (including any
impleaded parties) include both you or any
controlling person and the Company and you or any
controlling person shall have been advised by your
counsel that a conflict of interest between the
Company and you or any controlling person may
arise (and the Company's counsel shall have
concurred in good faith with such advice) and for
this reason it is not desirable for the Company's
counsel to represent both the indemnifying party
and the indemnified party (it being understood,
however, that the Company shall not, in connection
with any one such action or separate but
substantially similar or related actions in the
same jurisdiction arising out of the same general
allegations or circumstances, be liable for the
reasonable fees and expenses of more than one
separate firm of attorneys for you or any
controlling person (plus any local counsel
retained by you or any controlling person in their
reasonable judgment), which firm (or firms) shall
be designated in writing by you or any controlling
person). No indemnifying party shall, without the
prior written consent of the indemnified parties,
settle or compromise or consent to the entry of
any judgment with respect to any litigation, or
any investigation or proceeding by any
governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of
which indemnification could be sought under this
Section 5 (whether or not the indemnified parties
are actual or potential parties thereto), unless
such settlement, compromise or consent (i)
includes an unconditional release of each
indemnified party from all liability arising out
of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
In no event shall any indemnifying party have any
liability or responsibility in respect of the
settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending
or threatened action or claim effected without its
prior written consent.
(d) The documents incorporated by reference in the
Registration Statement or Prospectus, when they
were filed with the Commission, complied in all
material respects with the applicable provisions
of the 1934 Act and the rules and regulations of
the Commission thereunder, and as of such time of
filing, when read together with the Prospectus,
none of such documents contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or
necessary to make the statements therein, in the
light of the circumstances under which they were
made, not misleading.
(e) Since the respective dates as of which information
is given in the Registration Statement and the
Prospectus, except as otherwise stated therein,
there has been no material adverse change in the
business, properties or financial condition of the
Company.
(f) This Agreement has been duly authorized, executed
and delivered by the Company.
(g) The consummation by the Company of the
transactions contemplated herein will not conflict
with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or
result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets
of the Company under any contract, indenture,
mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company is a
party or by which it may be bound or to which any
of its properties may be subject (except for
conflicts, breaches or defaults which would not,
individually or in the aggregate, be materially
adverse to the Company or materially adverse to
the transactions contemplated by this Agreement.)
(h) No authorization, approval, consent or order of
any court or governmental authority or agency is
necessary in connection with the issuance and sale
by the Company of the Notes or the transactions by
the Company contemplated in this Agreement, except
(A) such as may be required under the 1933 Act or
the rules and regulations thereunder; (B) such as
may be required under the 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 Indiana Utility
Regulatory Commission; and (E) such consents,
approvals, authorizations, registrations or
qualifications as may be required under state
securities or Blue Sky laws.
The Company's indemnity agreement contained in Section 5(c)
hereof, and its covenants, warranties and representations
contained in this Agreement, shall remain in full force and
effect regardless of any investigation made by or on behalf of
any person, and shall survive the delivery of and payment for the
[Unsecured Notes] hereunder.
6. Warranties of and Indemnity by Underwriters:
(a) Each Underwriter warrants and represents that the
information furnished in writing to the Company
through the Representative for use in the
Registration Statement, in the Basic Prospectus,
in the Prospectus, or in the Prospectus as amended
or supplemented is correct as to such Underwriter.
(b) Each Underwriter agrees, to the extent permitted
by law, to indemnify, hold harmless and reimburse
the Company, its directors and such of its
officers as shall have signed the Registration
Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of
the Act, to the same extent and upon the same
terms as the indemnity agreement of the Company
set forth in Section 5(c) hereof, but only with
respect to untrue statements or alleged untrue
statements or omissions or alleged omissions made
in the Registration Statement, or in the Basic
Prospectus, or in the Prospectus, or in the
Prospectus as so amended or supplemented, in
reliance upon and in conformity with information
furnished in writing to the Company by the
Representative on behalf of such Underwriter
expressly for use therein. The Company agrees
promptly after the receipt by it of written notice
of the commencement of any action in respect to
which indemnity from you on account of your
agreement contained in this Section 6(b) may be
sought by the Company, or by any person
controlling the Company, to notify you in writing
of the commencement thereof, but the Company's
omission so to notify you of any such action shall
not release you from any liability which you may
have to the Company or to such controlling person
otherwise than on account of the indemnity
agreement contained in this Section 6(b).
The indemnity agreement on the part of each Underwriter
contained in Section 6(b) hereof, and the warranties and
representations of such Underwriter contained in this Agreement,
shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or other
person, and shall survive the delivery of and payment for the
[Unsecured Notes] hereunder.
7. Default of Underwriters: If any Underwriter under this
Agreement shall fail or refuse (otherwise than for some reason
sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligations hereunder) to
purchase and pay for the principal amount of [Unsecured Notes]
which it has agreed to purchase and pay for hereunder, and the
aggregate principal amount of [Unsecured Notes] which such
defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the aggregate
principal amount of the [Unsecured Notes], the other Underwriters
shall be obligated severally in the proportions which the amounts
of [Unsecured Notes] set forth opposite their names in Exhibit 1
hereto bear to the aggregate principal amount of [Unsecured
Notes] set forth opposite the names of all such non-defaulting
Underwriters, to purchase the [Unsecured Notes] which such
defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on the terms set forth herein; provided that
in no event shall the principal amount of [Unsecured Notes] which
any Underwriter has agreed to purchase pursuant to Section 1
hereof be increased pursuant to this Section 7 by an amount in
excess of one-ninth of such principal amount of [Unsecured Notes]
without the written consent of such Underwriter. If any
Underwriter or Underwriters shall fail or refuse to purchase
[Unsecured Notes] and the aggregate principal amount of
[Unsecured Notes] with respect to which such default occurs is
more than one-tenth of the aggregate principal amount of the
[Unsecured Notes] then this Agreement shall terminate without
liability on the part of any defaulting Underwriter; provided,
however, that the non-defaulting Underwriters may agree, in their
sole discretion, to purchase the [Unsecured Notes] which such
defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on the terms set forth herein. In the event
the Company shall be entitled to but shall not elect (within the
time period specified above) to exercise its rights under clause
(a) and/or (b), then this Agreement shall terminate. In the
event of any such termination, the Company shall not be under any
liability to any Underwriter (except to the extent, if any,
provided in Section 4(h) hereof), nor shall any Underwriter
(other than an Underwriter who shall have failed or refused to
purchase the [Unsecured Notes] without some reason sufficient to
justify, in accordance with the terms hereof, its termination of
its obligations hereunder) be under any liability to the Company
or any other Underwriter.
Nothing herein contained shall release any defaulting
Underwriter from its liability to the Company or any
non-defaulting Underwriter for damages occasioned by its default
hereunder.
8. Termination of Agreement by the Underwriters: This
Agreement may be terminated at any time prior to the Time of
Purchase by the Representative if, after the execution and
delivery of this Agreement and prior to the Time of Purchase, in
the Representative's reasonable judgment, the Underwriters'
ability to market the [Unsecured Notes] shall have been
materially adversely affected because:
(i) trading in securities on the New York Stock
Exchange shall have been generally suspended by the
Commission or by the New York Stock Exchange, or
(ii) (A) a war involving the United States of America
shall have been declared, (B) any other national calamity
shall have occurred, or (C) any conflict involving the armed
services of the United States of America shall have
escalated, or
(iii) a general banking moratorium shall have been
declared by Federal or New York State authorities, or
(iv) there shall have been any decrease in the ratings
of the Company's first mortgage bonds by Moody's Investors
Services, Inc. (Moody's) or Standard & Poor's Ratings Group
(S&P) or either Moody's or S&P shall publicly announce that
it has such first mortgage bonds under consideration for
possible downgrade.
If the Representative elects to terminate this
Agreement, as provided in this Section 8, the Representative will
promptly notify the Company by telephone or by telex or facsimile
transmission, confirmed in writing. If this Agreement shall not
be carried out by any Underwriter for any reason permitted
hereunder, or if the sale of the [Unsecured Notes] to the
Underwriters as herein contemplated shall not be carried out
because the Company is not able to comply with the terms hereof,
the Company shall not be under any obligation under this
Agreement and shall not be liable to any Underwriter or to any
member of any selling group for the loss of anticipated profits
from the transactions contemplated by this Agreement (except that
the Company shall remain liable to the extent provided in Section
4(h) hereof) and the Underwriters shall be under no liability to
the Company nor be under any liability under this Agreement to
one another.
9. Notices: All notices hereunder shall, unless otherwise
expressly provided, be in writing and be delivered at or mailed
to the following addresses or by telex or facsimile transmission
confirmed in writing to the following addresses: if to the
Underwriters, to
_______________________________________________________________,
as Representative, _____________________________________________,
and, if to the Company, to Appalachian Power Company, c/o
American Electric Power Service Corporation, 1 Riverside Plaza,
Columbus, Ohio 43215, attention of A. A. Pena, Treasurer, (fax
614/223-1687).
10. Parties in Interest: The agreement herein set forth
has been and is made solely for the benefit of the Underwriters,
the Company (including the directors thereof and such of the
officers thereof as shall have signed the Registration
Statement), the controlling persons, if any, referred to in
Sections 5 and 6 hereof, and their respective successors,
assigns, executors and administrators, and, except as expressly
otherwise provided in Section 7 hereof, no other person shall
acquire or have any right under or by the virtue of this
Agreement.
11. Definition of Certain Terms: If there be two or more
persons, firms or corporations named in Exhibit 1 hereto, the
term "Underwriters", as used herein, shall be deemed to mean the
several persons, firms or corporations, so named (including the
Representative herein mentioned, if so named) and any party or
parties substituted pursuant to Section 7 hereof, and the term
"Representative", as used herein, shall be deemed to mean the
representative or representatives designated by, or in the manner
authorized by, the Underwriters. All obligations of the
Underwriters hereunder are several and not joint. If there shall
be only one person, firm or corporation named in Exhibit 1
hereto, the term "Underwriters" and the term "Representative", as
used herein, shall mean such person, firm or corporation. The
term "successors" as used in this Agreement shall not include any
purchaser, as such purchaser, of any of the [Unsecured Notes]
from any of the respective Underwriters.
12. Conditions of the Company's Obligations: The
obligations of the Company hereunder are subject to the
Underwriters' performance of their obligations hereunder, and the
further condition that at the Time of Purchase the Virginia State
Corporation Commission and the Tennessee Regulatory Authority
shall have issued appropriate orders, and such orders shall
remain in full force and effect, authorizing the transactions
contemplated hereby.
13. Applicable Law: This Agreement will be governed and
construed in accordance with the laws of the State of New York.
14. Execution of Counterparts: This Agreement may be
executed in several counterparts, each of which shall be regarded
as an original and all of which shall constitute one and the same
document.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, on the date first above written.
APPALACHIAN POWER COMPANY
By:____________________________
A. A. Pena
Treasurer
___________________________________
as Representative
and on behalf of the Underwriters
named in Exhibit 1 hereto
By:____________________________
EXHIBIT 1
Name Principal Amount
Exhibit 4(b)
April 22, 1998
Company Order and Officers' Certificate
Senior Notes, Series B
The Bank of New York, as Trustee
101 Barclay Street
New York, New York 10286
Attn: Corporate Trust Division
Ladies and Gentlemen:
Pursuant to Article Two of the Indenture, dated as of January 1,
1998 (as it may be amended or supplemented, the "Indenture"),
from Appalachian Power Company (the "Company") to The Bank of New
York, as trustee (the "Trustee"), and the Board Resolutions dated
December 17, 1997 and March 26, 1998, copies of which certified
by the Secretary or an Assistant Secretary of the Company are
being delivered herewith under Section 2.01 of the Indenture, and
unless otherwise provided in a subsequent Company Order pursuant
to Section 2.04 of the Indenture,
1. The Company's Senior Notes, Series B, Due 2038
(the "Notes") are hereby established. The Notes shall be in
substantially the form attached hereto as Exhibit 1.
2. The terms and characteristics of the Notes shall
be as follows (the numbered clauses set forth below
corresponding to the numbered subsections of Section 2.01 of
the Indenture, with terms used and not defined herein having
the meanings specified in the Indenture):
(i) the aggregate principal amount of Notes which may
be authenticated and delivered under the Indenture
shall be limited to $100,000,000, except as
contemplated in Section 2.01(i) of the Indenture;
(ii) the date on which the principal of the Notes shall
be payable shall be June 30, 2038;
(iii)interest shall accrue from the date of
authentication of the Notes; the Interest Payment Dates
on which such interest will be payable shall be March
31, June 30, September 30 and December 31, and the
Regular Record Date for the determination of holders to
whom interest is payable on any such Interest Payment
Date shall be the close of business on the business day
next preceding the relevant Interest Payment Date;
except that if the Notes are no longer represented by a
Global Note, as specified in Paragraph 2(vi) below, the
Regular Record Date will be the March 15, June 15,
September 15 or December 15, as the case may be, next
preceding such Interest Payment Date (whether or not a
business day); provided that interest payable on the
Stated Maturity Date or any Redemption Date shall be
paid to the Person to whom principal shall be paid;
(iv) the interest rate at which the Notes shall bear
interest shall be 7.30% per annum;
(v) the Notes shall be redeemable at the option of the
Company, in whole or in part, at any time on or after
April 22, 2003, upon not less than 30 nor more than 60
days' notice, at 100% of the principal amount redeemed
together with accrued and unpaid interest to the
redemption date;
(vi) (a) the Notes shall be issued in the form of a
Global Note; (b) the Depositary for such Global Note
shall be The Depository Trust Company; and (c) the
procedures with respect to transfer and exchange of
Global Notes shall be as set forth in the form of Note
attached hereto;
(vii)the title of the Notes shall be "Senior Notes,
Series B, Due 2038";
(viii) the form of the Notes shall be as set forth
in Paragraph 1, above;
(ix) not applicable;
(x) the Notes shall not be subject to a Periodic
Offering;
(xi) not applicable;
(xii)not applicable;
(xiii) not applicable;
(xiv)the Notes shall be issuable in denominations of
$25 and any integral multiple thereof;
(xv) not applicable;
(xvi)the Notes shall not be issued as Discount
Securities;
(xvii) not applicable;
(xviii) not applicable; and
(xix)not applicable.
3. You are hereby requested to authenticate
$100,000,000 aggregate principal amount of 7.30% Senior
Notes, Series B, Due 2038 in such name as requested by The
Depository Trust Company ("DTC") in the Letter of
Representations dated April 17, 1998, from the Company and
the Trustee to DTC in the manner provided by the Indenture.
4. You are hereby requested to hold the Notes as
custodian for DTC in accordance with the Letter of
Representations.
5. Concurrently with this Company Order, an Opinion
of Counsel under Sections 2.04 and 13.06 of the Indenture is
being delivered to you.
6. The undersigned Armando A. Pena and Thomas G.
Berkemeyer, the Treasurer and Assistant Secretary,
respectively, of the Company do hereby certify that:
(i) we have read the relevant portions of the
Indenture, including without limitation the conditions
precedent provided for therein relating to the action
proposed to be taken by the Trustee as requested in
this Company Order and Officers' Certificate, and the
definitions in the Indenture relating thereto;
(ii) we have read the Board Resolutions of the Company
and the Opinion of Counsel referred to above;
(iii)we have conferred with other officers of the
Company, have examined such records of the Company and
have made such other investigation as we deemed
relevant for purposes of this certificate;
(iv) in our opinion, we have made such examination or
investigation as is necessary to enable us to express
an informed opinion as to whether or not such
conditions have been complied with; and
(v) on the basis of the foregoing, we are of the
opinion that all conditions precedent provided for in
the Indenture relating to the action proposed to be
taken by the Trustee as requested herein have been
complied with.
Kindly acknowledge receipt of this Company Order and Officers'
Certificate, including the documents listed herein, and confirm
the arrangements set forth herein by signing and returning the
copy of this document attached hereto.
Very truly yours,
APPALACHIAN POWER COMPANY
By:/s/ A. A. Pena_____________
Treasurer
And:/s/ Thomas G. Berkemeyer__
Assistant Secretary
Acknowledged by Trustee:
By:/s/ Michael Culhane________
Vice President
Exhibit 1
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street,
New York, New York) to the issuer or its agent for registration
of transfer, exchange or payment, and any certificate to be
issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of The
Depository Trust Company and any payment is made to Cede & Co.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein. Except as otherwise
provided in Section 2.11 of the Indenture, this Security may be
transferred, in whole but not in part, only to another nominee of
the Depository or to a successor Depository or to a nominee of
such successor Depository.
No. R-1 4,000,000 Senior
Notes
$25 principal
amount each
APPALACHIAN POWER COMPANY
7.30% Senior Notes, Series B, Due 2038
CUSIP: 037735 78 4 Oiginal Issue
Date: April 22, 1998
Stated Maturity Date: June 30, 2038 Interest Rate: 7.30%
Principal Amount: $100,000,000
Redeemable: Yes X No ____
In Whole: Yes X No ____
In Part: Yes X No ____
Initial Redemption Date: April 22, 2003
Initial Redemption Price: 100%
APPALACHIAN POWER COMPANY, a corporation duly organized and
existing under the laws of the Commonwealth of Virginia (herein
referred to as the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to CEDE & CO. or
registered assigns, the Principal Amount specified above on the
Stated Maturity Date specified above, and to pay interest on said
Principal Amount from the Original Issue Date specified above or
from the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly
provided for, quarterly in arrears on March 31, June 30,
September 30 and December 31 in each year, commencing (except as
provided below) with the Interest Payment Date next succeeding
the Original Issue Date specified above, at the Interest Rate per
annum specified above, until the Principal Amount shall have been
paid or duly provided for. Interest shall be computed on the
basis of a 360-day year of twelve 30-day months.
The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date, as provided in the
Indenture, as hereinafter defined, shall be paid to the Person in
whose name this Note (or one or more Predecessor Securities)
shall have been registered at the close of business on the
Regular Record Date with respect to such Interest Payment Date,
which shall be the close of business on the Business Day next
preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date and shall be
paid as provided in said Indenture.
If any Interest Payment Date, any Redemption Date or the
Stated Maturity Date is not a Business Day, then payment of the
amounts due on this Note on such date will be made on the next
succeeding Business Day, and no interest shall accrue on such
amounts for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity Date, as the case may be,
except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately
preceding Business Day, with the same force and effect as if made
on such date. The principal of (and premium, if any) and the
interest on this Note shall be payable at the office or agency of
the Company maintained for that purpose in the Borough of
Manhattan, the City of New York, New York, in any coin or
currency of the United States of America which at the time of
payment is legal tender for payment of public and private debts;
provided, however, that payment of interest (other than interest
payable on the Stated Maturity Date or any Redemption Date) may
be made at the option of the Company by check mailed to the
registered holder at such address as shall appear in the Note
Register.
This Note is one of a duly authorized series of Notes of the
Company (herein sometimes referred to as the "Notes"), specified
in the Indenture, all issued or to be issued in one or more
series under and pursuant to an Indenture dated as of January 1,
1998 duly executed and delivered between the Company and The Bank
of New York, a New York banking corporation organized and
existing under the laws of the State of New York, as Trustee
(herein referred to as the "Trustee") (such Indenture, as
originally executed and delivered and as thereafter supplemented
and amended being hereinafter referred to as the "Indenture"), to
which Indenture and all indentures supplemental thereto or
Company Orders reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the holders of the
Notes. By the terms of the Indenture, the Notes are issuable in
series which may vary as to amount, date of maturity, rate of
interest and in other respects as in the Indenture provided.
This Note is one of the series of Notes designated on the face
hereof.
Subject to the terms of Article Three of the Indenture, the
Company shall have the right to redeem this Note at its option,
without premium or penalty, in whole or, in part, at any time on
or after April 22, 2003, at a redemption price equal to 100% of
the principal amount thereof plus any accrued but unpaid interest
to the date of such redemption.
This Note shall be redeemable to the extent set forth herein
and in the Indenture upon not less than thirty, but not more than
sixty, days previous notice by mail to the registered owner.
The Company shall not be required to (i) issue, exchange or
register the transfer of any Notes during a period beginning at
the opening of business 15 days before the day of the mailing of
a notice of redemption of less than all the outstanding Notes of
the same series and ending at the close of business on the day of
such mailing, nor (ii) register the transfer of or exchange of
any Notes of any series or portions thereof called for
redemption. This Global Note is exchangeable for Notes in
definitive registered form only under certain limited
circumstances set forth in the Indenture.
In the event of redemption of this Note in part only, a new
Note or Notes of this series, of like tenor, for the unredeemed
portion hereof will be issued in the name of the Holder hereof
upon the surrender of this Note.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of
the Notes may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time
of the entire indebtedness of this Note upon compliance by the
Company with certain conditions set forth therein.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a
majority in aggregate principal amount of the Notes of each
series affected at the time outstanding, as defined in the
Indenture, to execute supplemental indentures for the purpose of
adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders
of the Notes; provided, however, that no such supplemental
indenture shall (i) extend the fixed maturity of any Notes of any
series, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce
any premium payable upon the redemption thereof, or reduce the
amount of the principal of a Discount Security that would be due
and payable upon a declaration of acceleration of the maturity
thereof pursuant to the Indenture, without the consent of the
holder of each Note then outstanding and affected; (ii) reduce
the aforesaid percentage of Notes, the holders of which are
required to consent to any such supplemental indenture, or reduce
the percentage of Notes, the holders of which are required to
waive any default and its consequences, without the consent of
the holder of each Note then outstanding and affected thereby; or
(iii) modify any provision of Section 6.01(c) of the Indenture
(except to increase the percentage of principal amount of
securities required to rescind and annul any declaration of
amounts due and payable under the Notes), without the consent of
the holder of each Note then outstanding and affected thereby.
The Indenture also contains provisions permitting the Holders of
a majority in aggregate principal amount of the Notes of all
series at the time outstanding affected thereby, on behalf of the
Holders of the Notes of such series, to waive any past default in
the performance of any of the covenants contained in the
Indenture, or established pursuant to the Indenture with respect
to such series, and its consequences, except a default in the
payment of the principal of or premium, if any, or interest on
any of the Notes of such series. Any such consent or waiver by
the registered Holder of this Note (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such Holder
and upon all future Holders and owners of this Note and of any
Note issued in exchange herefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether
or not any notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and premium, if any, and interest on this
Note at the time and place and at the rate and in the money
herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, this Note is transferable by the
registered holder hereof on the Note Register of the Company,
upon surrender of this Note for registration of transfer at the
office or agency of the Company as may be designated by the
Company accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company or the Trustee duly
executed by the registered Holder hereof or his or her attorney
duly authorized in writing, and thereupon one or more new Notes
of authorized denominations and for the same aggregate principal
amount and series will be issued to the designated transferee or
transferees. No service charge will be made for any such
transfer, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of
this Note, the Company, the Trustee, any paying agent and any
Note Registrar may deem and treat the registered Holder hereof as
the absolute owner hereof (whether or not this Note shall be
overdue and notwithstanding any notice of ownership or writing
hereon made by anyone other than the Note Registrar) for the
purpose of receiving payment of or on account of the principal
hereof and premium, if any, and interest due hereon and for all
other purposes, and neither the Company nor the Trustee nor any
paying agent nor any Note Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the
Indenture, against any incorporator, stockholder, officer or
director, past, present or future, as such, of the Company or of
any predecessor or successor corporation, whether by virtue of
any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration
for the issuance hereof, expressly waived and released.
The Notes of this series are issuable only in registered
form without coupons in denominations of $25 and any integral
multiple thereof. As provided in the Indenture and subject to
certain limitations, Notes of this series are exchangeable for a
like aggregate principal amount of Notes of this series of a
different authorized denomination, as requested by the Holder
surrendering the same.
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
This Note shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory
for any purpose until the Certificate of Authentication hereon
shall have been signed by or on behalf of the Trustee.
IN WITNESS WHEREOF, the Company has caused this Instrument
to be executed.
APPALACHIAN POWER COMPANY
By:_______________________
Treasurer
Attest:
By:___________________________
Assistant Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes designated
in accordance with, and referred to in, the within-mentioned
Indenture.
Dated: April 22, 1998
THE BANK OF NEW YORK, as Trustee
By:___________________________
Authorized Signatory
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
(PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE)
_______________________________________
________________________________________________________________
________________________________________________________________
(PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
________________________________________________________________
ASSIGNEE) the within Note and all rights thereunder, hereby
________________________________________________________________
irrevocably constituting and appointing such person attorney to
________________________________________________________________
transfer such Note on the books of the Issuer, with full
________________________________________________________________
power of substitution in the premises.
Dated:________________________ _________________________
NOTICE: The signature to this assignment must correspond with
the name as written upon the face of the within Note in
every particular, without alteration or enlargement or
any change whatever and NOTICE: Signature(s) must be
guaranteed by a financial institution that is a member
of the Securities Transfer Agents Medallion Program
("STAMP"), the Stock Exchange Medallion Program
("SEMP") or the New York Stock Exchange, Inc. Medallion
Signature Program ("MSP").
Exhibit 4(c)
May 20, 1999
Company Order and Officers' Certificate
Senior Notes, Series C
The Bank of New York, as Trustee
101 Barclay Street
New York, New York 10286
Attn: Corporate Trust Division
Ladies and Gentlemen:
Pursuant to Article Two of the Indenture, dated as of January 1,
1998 (as it may be amended or supplemented, the "Indenture"),
from Appalachian Power Company (the "Company") to The Bank of New
York, as trustee (the "Trustee"), and the Board Resolutions dated
February 24, 1999, a copy of which certified by the Secretary or
an Assistant Secretary of the Company is being delivered herewith
under Section 2.01 of the Indenture, and unless otherwise
provided in a subsequent Company Order pursuant to Section 2.04
of the Indenture,
1. The Company's Senior Notes, Series C, Due 2009
(the "Notes") are hereby established. The Notes shall be in
substantially the form attached hereto as Exhibit 1.
2. The terms and characteristics of the Notes shall
be as follows (the numbered clauses set forth below
corresponding to the numbered subsections of Section 2.01 of
the Indenture, with terms used and not defined herein having
the meanings specified in the Indenture):
(i) the aggregate principal amount of Notes which may
be authenticated and delivered under the Indenture
shall be limited to $150,000,000, except as
contemplated in Section 2.01(i) of the Indenture;
(ii) the date on which the principal of the Notes shall
be payable shall be May 1, 2009;
(iii)interest shall accrue from the date of
authentication of the Notes; the Interest Payment Dates
on which such interest will be payable shall be May 1
and November 1, and the Regular Record Date for the
determination of holders to whom interest is payable on
any such Interest Payment Date shall be the April 15 or
October 15 preceding the relevant Interest Payment
Date; provided that interest payable on the Stated
Maturity Date or any Redemption Date shall be paid to
the Person to whom principal shall be paid;
(iv) the interest rate at which the Notes shall bear
interest shall be 6.60% per annum;
(v) the Notes shall be redeemable at the option of the
Company, in whole at any time or in part from time to
time, upon not less than thirty but not more than sixty
days' previous notice given by mail to the registered
owners of the Notes at a redemption price equal to the
greater of (i) 100% of the principal amount of the
Notes being redeemed and (ii) the sum of the present
values of the remaining scheduled payments of principal
and interest on the Notes being redeemed (excluding the
portion of any such interest accrued to the date of
redemption) discounted (for purposes of determining
present value) to the redemption date on a semi-annual
basis (assuming a 360-day year consisting of twelve
30-day months) at the Treasury Rate (as defined below)
plus 20 basis points, plus, in each case, accrued
interest thereon to the date of redemption.
"Treasury Rate" means, with respect to any
redemption date, the rate per annum equal to the
semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for
the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption
date.
"Comparable Treasury Issue" means the United
States Treasury security selected by an
Independent Investment Banker as having a
maturity comparable to the remaining term of the
Notes that would be utilized, at the time of
selection and in accordance with customary
financial practice, in pricing new issues of
corporate debt securities of comparable maturity
to the remaining term of the Notes.
"Comparable Treasury Price" means, with respect
to any redemption date, (i) the average of the
bid and asked prices for the Comparable Treasury
Issue (expressed in each case a percentage of its
principal amount) on the third Business Day
preceding such redemption date, as set forth in
the daily statistical release (or any successor
release) published by the Federal Reserve Bank of
New York and designated "Composite 3:30 p.m.
Quotations for U. S. Government Securities" or
(ii) if such release (or any successor release)
is not published or does not contain such prices
on such third Business Day, the Reference
Treasury Dealer Quotation for such redemption
date.
"Independent Investment Banker" means one of the
Reference Treasury Dealers appointed by the
Company and reasonably acceptable to the Trustee.
"Reference Treasury Dealer" means a primary U. S.
government securities dealer in New York City
selected by the Company and reasonably acceptable
to the Trustee.
"Reference Treasury Dealer Quotation" means, with
respect to the Reference Treasury Dealer and any
redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case
as a percentage of its principal amount) quoted
in writing to the Trustee by such Reference
Treasury Dealer at or before 5:00 p.m., New York
City time, on the third Business Day preceding
such redemption date.
(vi) (a) the Notes shall be issued in the form of a
Global Note; (b) the Depositary for such Global Note
shall be The Depository Trust Company; and (c) the
procedures with respect to transfer and exchange of
Global Notes shall be as set forth in the form of Note
attached hereto;
(vii)the title of the Notes shall be "Senior Notes,
Series C, Due 2009";
(viii) the form of the Notes shall be as set forth
in Paragraph 1, above;
(ix) not applicable;
(x) the Notes shall not be subject to a Periodic
Offering;
(xi) not applicable;
(xii)not applicable;
(xiii) not applicable;
(xiv)the Notes shall be issuable in denominations of
$1,000 and any integral multiple thereof;
(xv) not applicable;
(xvi)the Notes shall not be issued as Discount
Securities;
(xvii) not applicable;
(xviii) not applicable; and
(xix)not applicable.
3. You are hereby requested to authenticate
$150,000,000 aggregate principal amount of 6.60% Senior
Notes, Series C, Due 2009, executed by the Company and
delivered to you concurrently with this Company Order and
Officers Certificate, in the manner provided by the
Indenture.
4. You are hereby requested to hold the Notes as
custodian for DTC in accordance with the Letter of
Representations dated May 14, 1999, from the Company and the
Trustee to DTC.
5. Concurrently with this Company Order and Officers'
Certificate, an Opinion of Counsel under Sections 2.04 and
13.06 of the Indenture is being delivered to you.
6. The undersigned Armando A. Pena and Thomas G.
Berkemeyer, the Treasurer and Assistant Secretary,
respectively, of the Company do hereby certify that:
(i) we have read the relevant portions of the
Indenture, including without limitation the conditions
precedent provided for therein relating to the action
proposed to be taken by the Trustee as requested in
this Company Order and Officers' Certificate, and the
definitions in the Indenture relating thereto;
(ii) we have read the Board Resolutions of the Company
and the Opinion of Counsel referred to above;
(iii)we have conferred with other officers of the
Company, have examined such records of the Company and
have made such other investigation as we deemed
relevant for purposes of this certificate;
(iv) in our opinion, we have made such examination or
investigation as is necessary to enable us to express
an informed opinion as to whether or not such
conditions have been complied with; and
(v) on the basis of the foregoing, we are of the
opinion that all conditions precedent provided for in
the Indenture relating to the action proposed to be
taken by the Trustee as requested herein have been
complied with.
Kindly acknowledge receipt of this Company Order and Officers'
Certificate, including the documents listed herein, and confirm
the arrangements set forth herein by signing and returning the
copy of this document attached hereto.
Very truly yours,
APPALACHIAN POWER COMPANY
By:/s/ A. A. Pena_____________
Treasurer
And:/s/ Thomas G. Berkemeyer__
Assistant Secretary
Acknowledged by Trustee:
By:/s/ Michael Culhane________
Vice President
Exhibit 1
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street,
New York, New York) to the issuer or its agent for registration
of transfer, exchange or payment, and any certificate to be
issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of The
Depository Trust Company and any payment is made to Cede & Co.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein. Except as otherwise
provided in Section 2.11 of the Indenture, this Security may be
transferred, in whole but not in part, only to another nominee of
the Depository or to a successor Depository or to a nominee of
such successor Depository.
No. R1
APPALACHIAN POWER COMPANY
6.60% Senior Notes, Series C, due 2009
CUSIP: 037735 BM8 Original Issue
Date: May 20, 1999
Stated Maturity: 05-01-2009 Interest Rate:
6.60%
Principal Amount: $150,000,000
Redeemable: Yes No
In Whole: Yes No
In Part: Yes No
APPALACHIAN POWER COMPANY, a corporation duly organized and
existing under the laws of the Commonwealth of Virginia (herein
referred to as the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to CEDE & CO. or
registered assigns, the Principal Amount specified above on the
Stated Maturity specified above, and to pay interest on said
Principal Amount from the Original Issue Date specified above or
from the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly
provided for, semi-annually in arrears on May 1 and November 1 in
each year, commencing with the Interest Payment Date next
succeeding the Original Issue Date specified above, at the
Interest Rate per annum specified above, until the Principal
Amount shall have been paid or duly provided for. Interest shall
be computed on the basis of a 360-day year of twelve 30-day
months.
The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date, as provided in the
Indenture, as hereinafter defined, shall be paid to the Person in
whose name this Note (or one or more Predecessor Securities)
shall have been registered at the close of business on the
Regular Record Date with respect to such Interest Payment Date,
which shall be the April 15 or October 15 (whether or not a
Business Day), as the case may be, immediately preceding such
Interest Payment Date, provided that interest payable on the
Stated Maturity or any redemption date shall be paid to the
Person to whom principal is paid. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date and shall be
paid as provided in said Indenture.
If any Interest Payment Date, any redemption date or Stated
Maturity is not a Business Day, then payment of the amounts due
on this Note on such date will be made on the next succeeding
Business Day, and no interest shall accrue on such amounts for
the period from and after such Interest Payment Date, redemption
date or Stated Maturity, as the case may be, with the same force
and effect as if made on such date. The principal of (and
premium, if any) and the interest on this Note shall be payable
at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, the City of New York, New
York, in any coin or currency of the United States of America
which at the time of payment is legal tender for payment of
public and private debts; provided, however, that payment of
interest (other than interest payable on the Stated Maturity or
any redemption date) may be made at the option of the Company by
check mailed to the registered holder at such address as shall
appear in the Note Register.
This Note is one of a duly authorized series of Notes of the
Company (herein sometimes referred to as the "Notes"), specified
in the Indenture, all issued or to be issued in one or more
series under and pursuant to an Indenture dated as of January 1,
1998 duly executed and delivered between the Company and The Bank
of New York, a corporation organized and existing under the laws
of the State of New York, as Trustee (herein referred to as the
"Trustee") (such Indenture, as originally executed and delivered
and as thereafter supplemented and amended being hereinafter
referred to as the "Indenture"), to which Indenture and all
indentures supplemental thereto or Company Orders reference is
hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders of the Notes. By the terms
of the Indenture, the Notes are issuable in series which may vary
as to amount, date of maturity, rate of interest and in other
respects as in the Indenture provided. This Note is one of the
series of Notes designated on the face hereof.
This Note may be redeemed by the Company at its option, in
whole at any time or in part from time to time, upon not less
than thirty but not more than sixty days' previous notice given
by mail to the registered owners of the Note at a redemption
price equal to the greater of (i) 100% of the principal amount of
the Note being redeemed and (ii) the sum of the present values of
the remaining scheduled payments of principal and interest on the
Note being redeemed (excluding the portion of any such interest
accrued to the date of redemption) discounted (for purposes of
determining present value) to the redemption date on a
semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Treasury Rate (as defined below) plus 20
basis points, plus, in each case, accrued interest thereon to the
date of redemption.
"Treasury Rate" means, with respect to any redemption
date, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury
Price for such redemption date.
"Comparable Treasury Issue" means the United States
Treasury security selected by an Independent
Investment Banker as having a maturity comparable to
the remaining term of the Notes that would be
utilized, at the time of selection and in accordance
with customary financial practice, in pricing new
issues of corporate debt securities of comparable
maturity to the remaining term of the Notes.
"Comparable Treasury Price" means, with respect to
any redemption date, (i) the average of the bid and
asked prices for the Comparable Treasury Issue
(expressed in each case a percentage of its principal
amount) on the third Business Day preceding such
redemption date, as set forth in the daily
statistical release (or any successor release)
published by the Federal Reserve Bank of New York and
designated "Composite 3:30 p.m. Quotations for U. S.
Government Securities" or (ii) if such release (or
any successor release) is not published or does not
contain such prices on such third Business Day, the
Reference Treasury Dealer Quotation for such
redemption date.
"Independent Investment Banker" means one of the
Reference Treasury Dealers appointed by the Company
and reasonably acceptable to the Trustee.
"Reference Treasury Dealer" means a primary U. S.
government securities dealer in New York City
selected by the Company and reasonably acceptable to
the Trustee.
"Reference Treasury Dealer Quotation" means, with
respect to the Reference Treasury Dealer and any
redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as
a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury
Dealer at or before 5:00 p.m., New York City time, on
the third Business Day preceding such redemption date.
The Company shall not be required to (i) issue, exchange or
register the transfer of any Notes during a period beginning at
the opening of business 15 days before the day of the mailing of
a notice of redemption of less than all the outstanding Notes of
the same series and ending at the close of business on the day of
such mailing, nor (ii) register the transfer of or exchange of
any Notes of any series or portions thereof called for
redemption. This Global Note is exchangeable for Notes in
definitive registered form only under certain limited
circumstances set forth in the Indenture.
In the event of redemption of this Note in part only, a new
Note or Notes of this series, of like tenor, for the unredeemed
portion hereof will be issued in the name of the Holder hereof
upon the surrender of this Note.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of
the Notes may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time
of the entire indebtedness of this Note upon compliance by the
Company with certain conditions set forth therein.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a
majority in aggregate principal amount of the Notes of each
series affected at the time outstanding, as defined in the
Indenture, to execute supplemental indentures for the purpose of
adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders
of the Notes; provided, however, that no such supplemental
indenture shall (i) extend the fixed maturity of any Notes of any
series, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce
any premium payable upon the redemption thereof, or reduce the
amount of the principal of a Discount Security that would be due
and payable upon a declaration of acceleration of the maturity
thereof pursuant to the Indenture, without the consent of the
holder of each Note then outstanding and affected; (ii) reduce
the aforesaid percentage of Notes, the holders of which are
required to consent to any such supplemental indenture, or reduce
the percentage of Notes, the holders of which are required to
waive any default and its consequences, without the consent of
the holder of each Note then outstanding and affected thereby; or
(iii) modify any provision of Section 6.01(c) of the Indenture
(except to increase the percentage of principal amount of
securities required to rescind and annul any declaration of
amounts due and payable under the Notes), without the consent of
the holder of each Note then outstanding and affected thereby.
The Indenture also contains provisions permitting the Holders of
a majority in aggregate principal amount of the Notes of all
series at the time outstanding affected thereby, on behalf of the
Holders of the Notes of such series, to waive any past default in
the performance of any of the covenants contained in the
Indenture, or established pursuant to the Indenture with respect
to such series, and its consequences, except a default in the
payment of the principal of or premium, if any, or interest on
any of the Notes of such series. Any such consent or waiver by
the registered Holder of this Note (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such Holder
and upon all future Holders and owners of this Note and of any
Note issued in exchange herefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether
or not any notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and premium, if any, and interest on this
Note at the time and place and at the rate and in the money
herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, this Note is transferable by the
registered holder hereof on the Note Register of the Company,
upon surrender of this Note for registration of transfer at the
office or agency of the Company as may be designated by the
Company accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company or the Trustee duly
executed by the registered Holder hereof or his or her attorney
duly authorized in writing, and thereupon one or more new Notes
of authorized denominations and for the same aggregate principal
amount and series will be issued to the designated transferee or
transferees. No service charge will be made for any such
transfer, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of
this Note, the Company, the Trustee, any paying agent and any
Note Registrar may deem and treat the registered Holder hereof as
the absolute owner hereof (whether or not this Note shall be
overdue and notwithstanding any notice of ownership or writing
hereon made by anyone other than the Note Registrar) for the
purpose of receiving payment of or on account of the principal
hereof and premium, if any, and interest due hereon and for all
other purposes, and neither the Company nor the Trustee nor any
paying agent nor any Note Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the
Indenture, against any incorporator, stockholder, officer or
director, past, present or future, as such, of the Company or of
any predecessor or successor corporation, whether by virtue of
any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration
for the issuance hereof, expressly waived and released.
The Notes of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to
certain limitations, Notes of this series are exchangeable for a
like aggregate principal amount of Notes of this series of a
different authorized denomination, as requested by the Holder
surrendering the same.
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
This Note shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory
for any purpose until the Certificate of Authentication hereon
shall have been signed by or on behalf of the Trustee.
IN WITNESS WHEREOF, the Company has caused this Instrument
to be executed.
Dated May 20, 1999
APPALACHIAN POWER COMPANY
By:___________________________
Attest:
By:___________________________
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes designated
in accordance with, and referred to in, the within-mentioned
Indenture.
Dated:_______________
THE BANK OF NEW YORK
By:___________________________
Authorized Signatory
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
(PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE)
_______________________________________
________________________________________________________________
________________________________________________________________
(PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
________________________________________________________________
ASSIGNEE) the within Note and all rights thereunder, hereby
________________________________________________________________
irrevocably constituting and appointing such person attorney to
________________________________________________________________
transfer such Note on the books of the Issuer, with full
________________________________________________________________
power of substitution in the premises.
Dated:________________________ _________________________
NOTICE: The signature to this assignment must correspond with
the name as written upon the face of the within Note in
every particular, without alteration or enlargement or
any change whatever and NOTICE: Signature(s) must be
guaranteed by a financial institution that is a member
of the Securities Transfer Agents Medallion Program
("STAMP"), the Stock Exchange Medallion Program
("SEMP") or the New York Stock Exchange, Inc. Medallion
Signature Program ("MSP").
Exhibit 4(d)
____________ __, ____
Company Order and Officers' Certificate
[Senior Notes], Series _
The Bank of New York, as Trustee
101 Barclay Street
New York, New York 10286
Attn: Corporate Trust Division
Ladies and Gentlemen:
Pursuant to Article Two of the Indenture, dated as of January 1,
1998 (as it may be amended or supplemented, the "Indenture"),
from Appalachian Power Company (the "Company") to The Bank of New
York, as trustee (the "Trustee"), and the Board Resolutions dated
February 24, 1999, a copy of which certified by the Secretary or
an Assistant Secretary of the Company is being delivered herewith
under Section 2.01 of the Indenture, and unless otherwise
provided in a subsequent Company Order pursuant to Section 2.04
of the Indenture,
1. The Company's [Senior Notes], Series _ (the
"Notes") are hereby established. The Notes shall be in
substantially the form attached hereto as Exhibit 1.
2. The terms and characteristics of the Notes shall
be as follows (the numbered clauses set forth below
corresponding to the numbered subsections of Section 2.01 of
the Indenture, with terms used and not defined herein having
the meanings specified in the Indenture):
(i) the aggregate principal amount of Notes which may
be authenticated and delivered under the Indenture
shall be limited to $____________, except as
contemplated in Section 2.01(i) of the Indenture;
(ii) the date on which the principal of the Notes shall
be payable shall be __________ __, ____;
(iii)interest shall accrue from the date of
authentication of the Notes; the Interest Payment Dates
on which such interest will be payable shall be March
31, June 30, September 30 and December 31, and the
Regular Record Date for the determination of holders to
whom interest is payable on any such Interest Payment
Date shall be one Business Day prior to the relevant
Interest Payment Date, except that if the Notes are no
longer represented by a Global Note, the Regular Record
Date shall be the close of business on March 15, June
15, September 15 or December 15, as the case may be,
next preceding such Interest Payment Date; provided
that interest payable on the Stated Maturity Date or
any Redemption Date shall be paid to the Person to whom
principal shall be paid;
(iv) the interest rate at which the Notes shall bear
interest shall be ______%;
(v) the Notes shall be redeemable at the option of the
Company, in whole or in part, at any time on or after
__________ __, ____, upon not less than 30 nor more
than 60 days' notice, at 100% of the principal amount
redeemed together with accrued and unpaid interest to
the redemption date;
(vi) (a) the Notes shall be issued in the form of a
Global Note; (b) the Depositary for such Global Note
shall be The Depository Trust Company; and (c) the
procedures with respect to transfer and exchange of
Global Notes shall be as set forth in the form of Note
attached hereto;
(vii)the title of the Notes shall be "[Senior Notes],
Series _";
(viii) the form of the Notes shall be as set forth
in Paragraph 1, above;
(ix) not applicable;
(x) the Notes shall not be subject to a Periodic
Offering;
(xi) not applicable;
(xii)not applicable;
(xiii) not applicable;
(xiv)the Notes shall be issuable in denominations of
$25 and any integral multiple thereof;
(xv) not applicable;
(xvi)the Notes shall not be issued as Discount
Securities;
(xvii) not applicable;
(xviii) not applicable; and
(xix)not applicable.
3. You are hereby requested to authenticate
$____________ aggregate principal amount of ______% [Senior
Notes], Series _, due __________ __, ____ in such name as
requested by The Depository Trust Company ("DTC") in the
Letter of Representations dated __________ __, ____, from
the Company and the Trustee to DTC in the manner provided by
the Indenture.
4. You are hereby requested to hold the Notes as
custodian for DTC in accordance with the Letter of
Representations.
5. Concurrently with this Company Order, an Opinion
of Counsel under Sections 2.04 and 13.06 of the Indenture is
being delivered to you.
6. The undersigned Armando A. Pena and Thomas G.
Berkemeyer, the Treasurer and Assistant Secretary,
respectively, of the Company do hereby certify that:
(i) we have read the relevant portions of the
Indenture, including without limitation the conditions
precedent provided for therein relating to the action
proposed to be taken by the Trustee as requested in
this Company Order and Officers' Certificate, and the
definitions in the Indenture relating thereto;
(ii) we have read the Board Resolutions of the Company
and the Opinion of Counsel referred to above;
(iii)we have conferred with other officers of the
Company, have examined such records of the Company and
have made such other investigation as we deemed
relevant for purposes of this certificate;
(iv) in our opinion, we have made such examination or
investigation as is necessary to enable us to express
an informed opinion as to whether or not such
conditions have been complied with; and
(v) on the basis of the foregoing, we are of the
opinion that all conditions precedent provided for in
the Indenture relating to the action proposed to be
taken by the Trustee as requested herein have been
complied with.
Kindly acknowledge receipt of this Company Order and Officers'
Certificate, including the documents listed herein, and confirm
the arrangements set forth herein by signing and returning the
copy of this document attached hereto.
Very truly yours,
APPALACHIAN POWER COMPANY
By:___________________________
Treasurer
And:__________________________
Assistant Secretary
Acknowledged by Trustee:
By:___________________________
Vice President
Exhibit 1
[Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street,
New York, New York) to the issuer or its agent for registration
of transfer, exchange or payment, and any certificate to be
issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of The
Depository Trust Company and any payment is made to Cede & Co.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein. Except as otherwise
provided in Section 2.11 of the Indenture, this Security may be
transferred, in whole but not in part, only to another nominee of
the Depository or to a successor Depository or to a nominee of
such successor Depository.]
No.
APPALACHIAN POWER COMPANY
[Senior Notes], Series _
CUSIP: Original Issue Date:
Maturity Date: Interest Rate:
Principal Amount:
Redeemable: Yes ____ No ____
In Whole: Yes ____ No ____
In Part: Yes ____ No ____
Initial Redemption Date:
Redemption Limitation Date:
Initial Redemption Price:
Reduction Percentage:
APPALACHIAN POWER COMPANY, a corporation duly organized and
existing under the laws of the Commonwealth of Virginia (herein
referred to as the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to CEDE & CO. or
registered assigns, the Principal Amount specified above on the
Stated Maturity Date specified above, and to pay interest on said
Principal Amount from the Original Issue Date specified above or
from the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly
provided for, quarterly in arrears on March 31, June 30,
September 30 and December 31 in each year, commencing (except as
provided below) with the Interest Payment Date next succeeding
the Original Issue Date specified above, at the Interest Rate per
annum specified above, until the Principal Amount shall have been
paid or duly provided for. Interest shall be computed on the
basis of a 360-day year of twelve 30-day months.
The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date, as provided in the
Indenture, as hereinafter defined, shall be paid to the Person in
whose name this Note (or one or more Predecessor Securities)
shall have been registered at the close of business on the
Regular Record Date with respect to such Interest Payment Date,
which shall be the close of business on the Business Day next
preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date and shall be
paid as provided in said Indenture.
If any Interest Payment Date, any Redemption Date or the
Stated Maturity Date is not a Business Day, then payment of the
amounts due on this Note on such date will be made on the next
succeeding Business Day, and no interest shall accrue on such
amounts for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity Date, as the case may be,
except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately
preceding Business Day, with the same force and effect as if made
on such date. The principal of (and premium, if any) and the
interest on this Note shall be payable at the office or agency of
the Company maintained for that purpose in the Borough of
Manhattan, the City of New York, New York, in any coin or
currency of the United States of America which at the time of
payment is legal tender for payment of public and private debts;
provided, however, that payment of interest (other than interest
payable on the Stated Maturity Date or any Redemption Date) may
be made at the option of the Company by check mailed to the
registered holder at such address as shall appear in the Note
Register.
This Note is one of a duly authorized series of Notes of the
Company (herein sometimes referred to as the "Notes"), specified
in the Indenture, all issued or to be issued in one or more
series under and pursuant to an Indenture dated as of January 1,
1998 duly executed and delivered between the Company and The Bank
of New York, a national banking association organized and
existing under the laws of the United States, as Trustee (herein
referred to as the "Trustee") (such Indenture, as originally
executed and delivered and as thereafter supplemented and amended
being hereinafter referred to as the "Indenture"), to which
Indenture and all indentures supplemental thereto or Company
Orders reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the holders of the
Notes. By the terms of the Indenture, the Notes are issuable in
series which may vary as to amount, date of maturity, rate of
interest and in other respects as in the Indenture provided.
This Note is one of the series of Notes designated on the face
hereof.
If so specified on the face hereof and subject to the terms
of Article Three of the Indenture, this Note is subject to
redemption at any time on or after the Initial Redemption Date
specified on the face hereof, as a whole or, if specified, in
part, at the election of the Company, at the applicable
redemption price (as described below) plus any accrued but unpaid
interest to the date of such redemption. Unless otherwise
specified on the face hereof, such redemption price shall be the
Initial Redemption Price specified on the face hereof for the
twelve-month period commencing on the Initial Redemption Date and
shall decline for the twelve-month period commencing on each
anniversary of the Initial Redemption Date by a percentage of
principal amount equal to the Reduction Percentage specified on
the face hereof until such redemption price is 100% of the
principal amount of this Note to be redeemed.
Notwithstanding the foregoing, the Company may not, prior to
the Redemption Limitation Date, if any, specified on the face
hereof, redeem any Note of this series as contemplated above as a
part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an
effective interest cost to the Company (calculated in accordance
with generally accepted financial practice) of less than the
effective interest cost to the Company (similarly calculated) of
this Note.
This Note shall be redeemable to the extent set forth herein
and in the Indenture upon not less than thirty, but not more than
sixty, days previous notice by mail to the registered owner.
The Company shall not be required to (i) issue, exchange or
register the transfer of any Notes during a period beginning at
the opening of business 15 days before the day of the mailing of
a notice of redemption of less than all the outstanding Notes of
the same series and ending at the close of business on the day of
such mailing, nor (ii) register the transfer of or exchange of
any Notes of any series or portions thereof called for
redemption. This Global Note is exchangeable for Notes in
definitive registered form only under certain limited
circumstances set forth in the Indenture.
In the event of redemption of this Note in part only, a new
Note or Notes of this series, of like tenor, for the unredeemed
portion hereof will be issued in the name of the Holder hereof
upon the surrender of this Note.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of
the Notes may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time
of the entire indebtedness of this Note upon compliance by the
Company with certain conditions set forth therein.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a
majority in aggregate principal amount of the Notes of each
series affected at the time outstanding, as defined in the
Indenture, to execute supplemental indentures for the purpose of
adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders
of the Notes; provided, however, that no such supplemental
indenture shall (i) extend the fixed maturity of any Notes of any
series, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce
any premium payable upon the redemption thereof, or reduce the
amount of the principal of a Discount Security that would be due
and payable upon a declaration of acceleration of the maturity
thereof pursuant to the Indenture, without the consent of the
holder of each Note then outstanding and affected; (ii) reduce
the aforesaid percentage of Notes, the holders of which are
required to consent to any such supplemental indenture, or reduce
the percentage of Notes, the holders of which are required to
waive any default and its consequences, without the consent of
the holder of each Note then outstanding and affected thereby; or
(iii) modify any provision of Section 6.01(c) of the Indenture
(except to increase the percentage of principal amount of
securities required to rescind and annul any declaration of
amounts due and payable under the Notes), without the consent of
the holder of each Note then outstanding and affected thereby.
The Indenture also contains provisions permitting the Holders of
a majority in aggregate principal amount of the Notes of all
series at the time outstanding affected thereby, on behalf of the
Holders of the Notes of such series, to waive any past default in
the performance of any of the covenants contained in the
Indenture, or established pursuant to the Indenture with respect
to such series, and its consequences, except a default in the
payment of the principal of or premium, if any, or interest on
any of the Notes of such series. Any such consent or waiver by
the registered Holder of this Note (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such Holder
and upon all future Holders and owners of this Note and of any
Note issued in exchange herefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether
or not any notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and premium, if any, and interest on this
Note at the time and place and at the rate and in the money
herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, this Note is transferable by the
registered holder hereof on the Note Register of the Company,
upon surrender of this Note for registration of transfer at the
office or agency of the Company as may be designated by the
Company accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company or the Trustee duly
executed by the registered Holder hereof or his or her attorney
duly authorized in writing, and thereupon one or more new Notes
of authorized denominations and for the same aggregate principal
amount and series will be issued to the designated transferee or
transferees. No service charge will be made for any such
transfer, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of
this Note, the Company, the Trustee, any paying agent and any
Note Registrar may deem and treat the registered Holder hereof as
the absolute owner hereof (whether or not this Note shall be
overdue and notwithstanding any notice of ownership or writing
hereon made by anyone other than the Note Registrar) for the
purpose of receiving payment of or on account of the principal
hereof and premium, if any, and interest due hereon and for all
other purposes, and neither the Company nor the Trustee nor any
paying agent nor any Note Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the
Indenture, against any incorporator, stockholder, officer or
director, past, present or future, as such, of the Company or of
any predecessor or successor corporation, whether by virtue of
any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration
for the issuance hereof, expressly waived and released.
The Notes of this series are issuable only in registered
form without coupons in denominations of $25 and any integral
multiple thereof. As provided in the Indenture and subject to
certain limitations, Notes of this series are exchangeable for a
like aggregate principal amount of Notes of this series of a
different authorized denomination, as requested by the Holder
surrendering the same.
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
This Note shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory
for any purpose until the Certificate of Authentication hereon
shall have been signed by or on behalf of the Trustee.
IN WITNESS WHEREOF, the Company has caused this Instrument
to be executed.
APPALACHIAN POWER COMPANY
By:___________________________
Attest:
By:___________________________
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes designated
in accordance with, and referred to in, the within-mentioned
Indenture.
Dated:_______________
THE BANK OF NEW YORK, as Trustee
By:___________________________
Authorized Signatory
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
(PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE)
_______________________________________
________________________________________________________________
________________________________________________________________
(PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
________________________________________________________________
ASSIGNEE) the within Note and all rights thereunder, hereby
________________________________________________________________
irrevocably constituting and appointing such person attorney to
________________________________________________________________
transfer such Note on the books of the Issuer, with full
________________________________________________________________
power of substitution in the premises.
Dated:________________________ _________________________
NOTICE: The signature to this assignment must correspond with
the name as written upon the face of the within Note in
every particular, without alteration or enlargement or
any change whatever and NOTICE: Signature(s) must be
guaranteed by a financial institution that is a member
of the Securities Transfer Agents Medallion Program
("STAMP"), the Stock Exchange Medallion Program
("SEMP") or the New York Stock Exchange, Inc. Medallion
Signature Program ("MSP").
Exhibit 5
July 30, 1999
Appalachian Power Company
40 Franklin Road, S.W.
Roanoke, Virginia 24011
Ladies and Gentlemen:
We have acted as counsel to Appalachian Power Company, a
Virginia corporation (the "Company"), in connection with the
Registration Statement on Form S-3 (the "Registration Statement")
filed by the Company with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended
(the "Act"), relating to Unsecured Notes (the "Unsecured Notes")
to be issued under an Indenture, dated as of January 1, 1998 (the
"Indenture"), between the Company and The Bank of New York, as
Trustee (the "Trustee"). The Unsecured Notes may be issued and
sold or delivered from time to time as set forth in the
Registration Statement, any amendment thereto, the prospectus
contained therein (the "Prospectus") and supplements to the
Prospectus and pursuant to Rule 415 under the Act for an
aggregate initial offering price not to exceed $250,000,000.
We have examined the Registration Statement and the
Indenture, which has been filed with the Commission as an exhibit
to the Registration Statement. We also have examined the
originals, or duplicates or certified or conformed copies, of
such records, agreements, instruments and other documents and
have made such other and further investigations as we have deemed
relevant and necessary in connection with the opinions expressed
herein. As to questions of fact material to this opinion, we
have relied upon certificates of public officials and of officers
and representatives of the Company.
In rendering the opinions set forth below, we have assumed
the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents
submitted to us as duplicates or certified or conformed copies,
and the authenticity of the originals of such latter documents.
We also have assumed that: (1) the Indenture is the valid and
legally binding obligation of the Trustee; and (2) the Company is
validly existing under the laws of Virginia.
We have assumed further that (1) the Company has duly
authorized, executed and delivered the Indenture and (2)
execution, delivery and performance by the Company of the
Indenture and the Unsecured Notes do not and will not violate the
laws of Virginia or any other applicable laws (excepting the laws
of the State of New York and the Federal laws of the United
States).
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion that:
assuming (a) the taking of all necessary corporate action to
approve the issuance and terms of the Unsecured Notes, the terms
of the offering thereof and related matters by the Board of
Directors of the Company, a duly constituted and acting committee
of such Board or duly authorized officers of the Company (such
Board of Directors, committee or authorized officers being
referred to herein as the "Board") and (b) the due execution,
authentication, issuance and delivery of such Unsecured Notes,
upon payment of the consideration therefor provided for in the
applicable definitive purchase, underwriting or similar agreement
approved by the Board and otherwise in accordance with the
provisions of the Indenture and such agreement, such Unsecured
Notes will constitute valid and legally binding obligations of
the Company enforceable against the Company in accordance with
their terms, subject to the effects of (i) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally, (ii) general equitable principles (whether considered
in a proceeding in equity or at law) and (iii) an implied
covenant of good faith and fair dealing.
We are members of the Bar of the State of New York, and we
do not express any opinion herein concerning any law other than
the law of the State of New York and the Federal law of the
United States.
We consent to the filing of this opinion letter as Exhibit 5
to the Registration Statement and to the use of our name under
the caption "Legal Opinions" in the Prospectus included in the
Registration Statement.
Very truly yours,
/s/ Simpson Thacher & Bartlett
SIMPSON THACHER & BARTLETT
Exhibit 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of Appalachian Power Company on Form S-3
of our reports dated February 23, 1999, appearing in and
incorporated by reference in the Annual Report on Form 10-K of
Appalachian Power Company for the year ended December 31, 1998
and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
Deloitte & Touche LLP
Columbus, Ohio
July 30, 1999
Exhibit 24
APPALACHIAN POWER COMPANY
I, Thomas G. Berkemeyer, Assistant Secretary of
APPALACHIAN POWER COMPANY, HEREBY CERTIFY that the following
constitutes a true and exact copy of the resolutions duly adopted
by the affirmative vote of a majority of the Board of Directors
of said Company at a meeting of said Board duly and legally held
on February 24, 1999, at which meeting a quorum of the Board of
Directors of said Company was present and voting throughout. I
further certify that said resolutions have not been altered,
amended or rescinded, and that they are presently in full force
and effect.
GIVEN under my hand this 30th day of July, 1999.
_/s/ Thomas G. Berkemeyer_
Assistant Secretary
APPALACHIAN POWER COMPANY
February 24, 1999
The Chairman outlined a proposed financing program
through December 31, 1999 of the Company involving the issuance
and sale, either at competitive bidding, through a negotiated
public offering with one or more agents or underwriters or
through private placement, of up to $400,000,000 (or its
equivalent in another currency or composite currency) aggregate
principal amount of debt securities comprised of first mortgage
bonds or secured or unsecured promissory notes (including Junior
Subordinated Debentures), or a combination of each, in one or
more new series, each series to have a maturity of not more than
50 years ("Debt Securities"). He then stated that, as an
alternative to issuing Debt Securities, the Company might enter
into a term loan agreement or note purchase agreement with one or
more commercial banks, financial institutions or other
institutional investors, providing for the issuance of unsecured
notes with a maturity in excess of nine months in an aggregate
principal amount of up to $400,000,000 ("Term Notes").
The Chairman explained that it was proposed that the
proceeds to be received in connection with the proposed sale of
Debt Securities and the Term Notes would be added to the general
funds of the Company and used to redeem directly or indirectly
long-term debt, to refund directly or indirectly preferred stock,
to repay short-term debt at or prior to maturity, to reimburse
the Company's treasury for expenditures incurred in connection
with its construction program and for other corporate purposes.
Thereupon, on motion duly made and seconded, it was
unanimously
RESOLVED, that the proposed financing program of
this Company, as outlined at this meeting, be, and the
same hereby is, in all respects ratified, confirmed and
approved; and further
RESOLVED, that the proper officers of this Company
be, and they hereby are, authorized to take all steps
necessary, or in their opinion desirable, to carry out
the financing program outlined at this meeting.
The Chairman stated that the Company has executed and
filed applications with the Virginia State Corporation Commission
and the Tennessee Regulatory Authority seeking authorization for
the issuance of $400,000,000 of Debt Securities through December
31, 1999. He then stated that it may be necessary to file one or
more Registration Statements pursuant to the applicable
provisions of the Securities Act of 1933, as amended, and to
register or qualify the securities to be sold pursuant to such
financing program under the "blue sky" laws of various
jurisdictions.
Thereupon, on motion duly made and seconded, it was
unanimously
RESOLVED, that with respect to the proposed
financing program approved at this meeting, the actions
taken by the officers of this Company in connection
with the execution and filing on behalf of the Company
of the necessary applications with the Virginia State
Corporation Commission and the Tennessee Regulatory
Authority be, and they hereby are, ratified, confirmed
and approved in all respects; and further
RESOLVED, that the proper officers of this Company
be, and they hereby are, authorized to execute and file
with the Securities and Exchange Commission ("SEC") on
behalf of the Company one or more Registration
Statements pursuant to the applicable provisions of the
Securities Act of 1933, as amended; and further
RESOLVED, that it is desirable and in the best
interest of the Company that the Debt Securities be
qualified or registered for sale in various
jurisdictions; that the Chairman of the Board, the
President, any Vice President or the Treasurer and the
Secretary or an Assistant Secretary hereby are
authorized to determine the jurisdictions in which
appropriate action shall be taken to qualify or
register for sale all or such part of the Debt
Securities of the Company as said officers may deem
advisable; that said officers are hereby authorized to
perform on behalf of the Company any and all such acts
as they may deem necessary or advisable in order to
comply with the applicable laws of any such
jurisdictions, and in connection therewith to execute
and file all requisite papers and documents, including,
but not limited to, applications, reports, surety
bonds, irrevocable consents and appointments of
attorneys for service of process; and the execution by
such officers of any such paper or document or the
doing by them of any act in connection with the
foregoing matters shall conclusively establish their
authority therefor from the Company and the approval
and ratification by the Company of the papers and
documents so executed and the action so taken; and
further
RESOLVED, that the proper officers of this Company
be, and they hereby are, authorized and directed to
take any and all further action in connection
therewith, including the execution and filing of such
amendment or amendments, supplement or supplements and
exhibit or exhibits thereto as the officers of this
Company may deem necessary or desirable.
The Chairman indicated to the meeting that it may be
desirable that the Debt Securities be listed on the New York
Stock Exchange and in connection with any such application, to
register the Debt Securities under the Securities Exchange Act of
1934, as amended.
Thereupon, it was, on motion duly made and seconded,
unanimously
RESOLVED, that the officers of this Company be,
and they hereby are, authorized, in their discretion,
to make one or more applications, on behalf of this
Company, to the New York Stock Exchange for the listing
of up to $400,000,000 aggregate principal amount of
Debt Securities; and further
RESOLVED, that H. W. Fayne, Bruce M. Barber and
Armando A. Pena, or any one of them, be, and they
hereby are, designated to appear before the New York
Stock Exchange with full authority to make such changes
in any such application or any agreements relating
thereto as may be necessary or advisable to conform
with the requirements for listing; and further
RESOLVED, that the proper officers be, and they
hereby are, authorized to execute and file, on behalf
of this Company, one or more applications for the
registration of up to $400,000,000 aggregate principal
amount of Debt Securities with the Securities and
Exchange Commission pursuant to the provisions of the
Securities Exchange Act of 1934, as amended, in such
form as the officers of this Company executing the same
may determine; and further
RESOLVED, that the Chairman of the Board, the
President, any Vice President or the Treasurer and the
Secretary or any Assistant Secretary be, and each of
them hereby is, authorized, in the event any said
application for listing is made, to execute and deliver
on behalf of this Company an indemnity agreement in
such form, with such changes therein as the officers
executing the same may approve, their execution to be
conclusive evidence of such approval; and further
RESOLVED, that the Chairman of the Board, the
President, any Vice President or the Treasurer be, and
each of them hereby is, authorized to take any other
action and to execute any other documents that in their
judgment may be necessary or desirable in connection
with listing the Debt Securities on the New York Stock
Exchange.
The Chairman further stated that, in connection with
the filing with the SEC of one or more Registration Statements
relating to the proposed issuance and sale of up to $400,000,000
of Debt Securities, there was to be filed with the SEC a Power of
Attorney, dated February 24, 1999, executed by the officers and
directors of this Company appointing true and lawful attorneys to
act in connection with the filing of such Registration
Statement(s) and any and all amendments thereto.
Thereupon, on motion duly made and seconded, the
following preambles and resolutions were unanimously adopted:
WHEREAS, the Company proposes to file with the SEC
one or more Registration Statements for the
registration pursuant to the applicable provisions of
the Securities Act of 1933, as amended, of up to
$400,000,000 aggregate principal amount of Debt
Securities, in one or more new series, each series to
have a maturity of not less than nine months and not
more than 50 years; and
WHEREAS, in connection with said Registration
Statement(s), there is to be filed with the SEC a Power
of Attorney, dated February 24, 1999, executed by
certain of the officers and directors of this Company
appointing E. Linn Draper, Jr., Bruce M. Barber, Henry
W. Fayne and Armando A. Pena, or any one of them, their
true and lawful attorneys, with the powers and
authority set forth in said Power of Attorney;
NOW, THEREFORE, BE IT
RESOLVED, that each and every one of said officers
and directors be, and they hereby are, authorized to
execute said Power of Attorney; and further
RESOLVED, that any and all action hereafter taken
by any of said named attorneys under said Power of
Attorney be, and the same hereby is, ratified and
confirmed and that said attorneys shall have all the
powers conferred upon them and each of them by said
Power of Attorney; and further
RESOLVED, that said Registration Statement(s) and
any amendments thereto, hereafter executed by any of
said attorneys under said Power of Attorney be, and the
same hereby are, ratified and confirmed as legally
binding upon this Company to the same extent as if the
same were executed by each said officer and director of
this Company personally and not by any of said
attorneys.
The Chairman advised the meeting that it was proposed
to designate independent counsel for the successful bidder or
bidders and/or agents of the Company for the new series of Debt
Securities proposed to be issued and sold in connection with the
proposed financing program of the Company.
Thereupon, on motion duly made and seconded, it was
unanimously
RESOLVED, that Dewey Ballantine LLP be, and said
firm hereby is, designated as independent counsel for
the successful bidder or bidders and/or agents of the
Company for the new series of Debt Securities of this
Company proposed to be issued and sold in connection
with the proposed financing program of this Company.
The Chairman stated that it may be desirable to enter
into a treasury hedge agreement, such as a treasury lock
agreement, treasury put option or interest rate collar agreement
("Treasury Hedge Agreement") to protect against future interest
rate movements in connection with the issuance of the Debt
Securities and Term Notes. He recommended that the Board
authorize the appropriate officers of the Company to enter into a
Treasury Hedge Agreement, provided that the amount covered by
such Agreement would not exceed the principal amount of Debt
Securities and Term Notes the Company anticipates offering and
that the term of such Agreement will not exceed 90 days.
Thereupon, it was, on motion duly made and seconded,
unanimously
RESOLVED, that the Chairman of the Board, the
President, any Vice President or the Treasurer of this
Company be, and each of them hereby is, authorized to
execute and deliver in the name and on behalf of this
Company, a Treasury Hedge Agreement in such form as
shall be approved by the officer executing the same,
such execution to be conclusive evidence of such
approval, provided that the amount covered by such
Agreement would not exceed the principal amount of Debt
Securities and Term Notes the Company anticipates
offering and that the term of such Agreement will not
exceed 90 days; and further
RESOLVED, that the proper officers of the Company
be, and they hereby are, authorized to execute and
deliver such other documents and instruments, and to do
such other acts and things, that in their judgment may
be necessary or desirable in connection with the
transactions authorized in the foregoing resolutions.
The Chairman explained that, with respect to the
issuance of up to $400,000,000 of Debt Securities through one or
more agents under a medium term note program, the Company could
enter into a Selling Agency Agreement. He recommended that the
Board authorize the appropriate officers of the Company to enter
into such Selling Agency Agreement with securities dealers yet to
be determined.
Thereupon, upon motion duly made and seconded, it was
unanimously
RESOLVED, that the Chairman of the Board, the
President, any Vice President or the Treasurer of this
Company be, and each of them hereby is, authorized to
execute and deliver in the name and on behalf of this
Company, a Selling Agency Agreement with such
securities dealers in such form as shall be approved by
the officer executing the same, such execution to be
conclusive evidence of such approval; and further
RESOLVED, that the proper officers of the Company
be, and they hereby are, authorized to execute and
deliver such other documents and instruments, and to do
such other acts and things, that in their judgment may
be necessary or desirable in connection with the
transactions authorized in the foregoing resolutions.
The Chairman next explained that the Company could also
enter into an Underwriting Agreement ("Underwriting Agreement")
with certain underwriters, under which the underwriters may
purchase up to $400,000,000 aggregate principal amount of Debt
Securities. He recommended that the Board authorize the
appropriate officers of the Company to enter into an Underwriting
Agreement and determine the purchase price of the Debt
Securities, provided that the price shall not be less than 95%
(including compensation to the underwriters) of the aggregate
principal amount of the Debt Securities.
Thereupon, it was, on motion duly made and seconded,
unanimously
RESOLVED, that the Chairman of the Board, the
President, any Vice President or the Treasurer of this
Company be, and each of them hereby is, authorized to
execute and deliver in the name and on behalf of this
Company, an Underwriting Agreement in such form as
shall be approved by the officer executing the same,
such execution to be conclusive evidence of such
approval, provided that the purchase price of the Debt
Securities shall not be less than 95% (including
compensation to the underwriters) of the aggregate
principal amount of the Debt Securities; and further
RESOLVED, that the proper officers of the Company
be, and they hereby are, authorized to execute and
deliver such other documents and instruments, and to do
such other acts and things, that in their judgment may
be necessary or desirable in connection with the
transactions authorized in the foregoing resolutions.
The Chairman related to the meeting that any
Underwriting Agreement and any Selling Agency Agreement would be
entered into in connection with the issuance of Debt Securities.
He noted that, in order to enable the Company to perform its
obligations under the Selling Agency Agreement or the
Underwriting Agreement approved at this meeting providing for the
sale of up to $400,000,000 aggregate principal amount of First
Mortgage Bonds, it was proposed that the Board authorize the
appropriate officers to create one or more new series of First
Mortgage Bonds, to be issued under the Mortgage and Deed of
Trust, dated December 1, 1940, of the Company to Bankers Trust
Company, as Trustee, as heretofore supplemented and amended, and
as to be supplemented and amended by one or more additional
Supplemental Indentures to the Mortgage and Deed of Trust, each
of said new series of First Mortgage Bonds to be entitled and
designated as, in the case of a medium term note program, "First
Mortgage Bonds, Designated Secured Medium Term Notes, ______%
Series due ____________", and, in the case of an Underwriting
Agreement, "First Mortgage Bonds, ______% Series due
____________", with the interest rate, maturity and certain other
terms of each such series of First Mortgage Bonds to be
designated at the time of creation thereof, the maturity to be
not less than nine months nor more than 50 years. Any fixed rate
of interest applicable to the First Mortgage Bonds will not
exceed by more than 300 basis points the yield to maturity of
United States Treasury Bonds of comparable maturity at the time
of pricing of the First Mortgage Bonds. Any initial interest
rate on any variable rate First Mortgage Bonds will not exceed
10% per annum.
Thereupon, after full and thorough discussion, it was,
on motion duly made and seconded, unanimously
RESOLVED, that the officers of this Company
(including the Chairman of the Board, the President,
any Vice President, the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary)
be, and they hereby are, authorized to create up to
$400,000,000 aggregate principal amount of First
Mortgage Bonds in one or more series, each series to be
issued under and secured by the Mortgage and Deed of
Trust, dated December 1, 1940, of the Company to
Bankers Trust Company, as Trustee, and certain
indentures supplemental thereto, including one or more
additional Supplemental Indentures to the Mortgage and
Deed of Trust, in substantially the form presented to
this meeting, to be made by this Company to Bankers
Trust Company, as Trustee (said Mortgage and Deed of
Trust as heretofore supplemented and amended, and as to
be supplemented and amended, being hereinafter called
the "Mortgage"), each series to be designated and to be
distinguished from bonds of all other series by the
title, in the case of a medium term note program,
"First Mortgage Bonds, Designated Secured Medium Term
Notes, ______% Series due ____________", and, in the
case of an Underwriting Agreement, "First Mortgage
Bonds, ______% Series due ____________", (hereinafter
called "bonds of each New Series"), provided that the
interest rate, maturity and the applicable redemption
provisions, if any, and such other terms, including,
but not limited to, interest payment dates and record
payment dates, shall be designated at the time of
creation thereof and such maturity shall not be less
than nine months nor more than 50 years and further
provided that any fixed rate of interest applicable to
the First Mortgage Bonds will not exceed by more than
300 basis points the yield to maturity of United States
Treasury Bonds of comparable maturity at the time of
pricing of the First Mortgage Bonds and any initial
interest rate on any variable rate First Mortgage Bonds
will not exceed 10% per annum; and further
RESOLVED, that the officers of this Company
(including the Chairman of the Board, the President,
any Vice President, the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary)
be, and they hereby are, authorized and directed to
execute and deliver, under the seal of and on behalf of
this Company, one or more additional Supplemental
Indentures, specifying the designation, terms,
redemption provisions and other provisions of the bonds
of each New Series and providing for the creation of
the bonds of each New Series and effecting the
amendments to the Mortgage described therein, such
instrument to be substantially in the form presented to
this meeting and ordered to be filed with the records
of this Company, with such changes therein as the
officers executing the same may, upon the advice of
counsel, approve at the time of execution (such
approval to be conclusively evidenced by their
execution thereof); that Bankers Trust Company is
hereby requested to join in the execution of said
Supplemental Indentures, as Trustee; and that the
officers (including the Chairman of the Board, the
President, any Vice President, the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant
Secretary) of this Company be, and they hereby are,
authorized and directed to record and file, or to cause
to be recorded and filed, said Supplemental Indentures
in such offices of record and take such other action as
may be deemed necessary or advisable in the opinion of
counsel for the Company; and that such officers be, and
they hereby are, authorized to determine and establish
the basis on which the bonds of each New Series shall
be authenticated under the Mortgage; and further
RESOLVED, that the terms and provisions of the
bonds of each New Series and the forms of the
registered bonds of each New Series and of the
Trustee's Authentication Certificate be, and they
hereby are, established as provided in the form of
Supplemental Indenture to the Mortgage hereinbefore
authorized, with such changes as may be required upon
the establishment of the further terms thereof by the
appropriate officers of the Company as herein
authorized; and further
RESOLVED, that the registered bonds of each New
Series shall be substantially in the form set forth in
the form of Supplemental Indenture approved at this
meeting; and further
RESOLVED, that, subject to compliance with the
provisions of Article VI or VII of the Mortgage, the
Chairman of the Board, the President, any Vice
President or the Treasurer and the Secretary or any
Assistant Secretary of this Company be, and they hereby
are, authorized and directed to execute under the seal
of this Company in accordance with the provisions of
Section 14 of Article II of the Mortgage (the
signatures of such officers to be effected either
manually or by facsimile, in which case such facsimile
is hereby adopted as the signature of such officer
thereon), and to deliver to Bankers Trust Company, as
Trustee under the Mortgage, bonds of each New Series in
the aggregate principal amount of up to $400,000,000 as
definitive fully registered bonds without coupons in
denominations of $1,000 or integral multiples thereof;
and further
RESOLVED, that if any authorized officer of this
Company who signs, or whose facsimile signature appears
upon, any of the bonds of each New Series ceases to be
such an officer prior to their issuance, the bonds of
each New Series so signed or bearing such facsimile
signature shall nevertheless be valid; and further
RESOLVED, that, subject as aforesaid, Bankers
Trust Company, as such Trustee, be, and it hereby is,
requested to authenticate, by the manual signature of
an authorized officer of such Trustee, bonds of each
New Series and to deliver the same from time to time in
accordance with the written order of this Company
signed in the name of this Company by its Chairman,
President or one of its Vice Presidents and its
Treasurer or one of its Assistant Treasurers; and
further
RESOLVED, that the Chairman of the Board, the
President, any Vice President, the Treasurer or any
Assistant Treasurer of the Company be, and they hereby
are, authorized to execute any Treasurer's Certificate
required by Section 29(2) of Article VI and Section
30(2) of Article VII of the Mortgage, in connection
with the authentication and delivery of the bonds of
the New Series, and in connection with any other
actions taken, or to be taken, under the Mortgage; and
further
RESOLVED, that the law firm of Hunton & Williams
and that John F. Di Lorenzo, Jr. of Upper Arlington,
Ohio, Thomas G. Berkemeyer of Hilliard, Ohio, Ann B.
Graf of Columbus, Ohio, and David C. House of Upper
Arlington, Ohio, attorneys and employees of American
Electric Power Service Corporation, an affiliate of
this Company, be, and each of them hereby is, appointed
Counsel to render the Opinion of Counsel required by
Article VI, Section 29(8) or Article VII, Section 30(3)
of said Mortgage in connection with the authentication
and delivery of the bonds of each New Series; and
further
RESOLVED, that William J. Lhota of Worthington,
Ohio, James J. Markowsky of Worthington, Ohio, John R.
Jones, III of Dublin, Ohio or Bruce A. Renz of
Worthington, Ohio, engineers and officers of American
Electric Power Service Corporation, an affiliate of
this Company, be, and each of them hereby is, appointed
the Engineer to make with the President, any Vice
President, the Treasurer or an Assistant Treasurer of
this Company any Engineer's Certificate required by
Article VI of the Mortgage, in connection with the
authentication and delivery of the bonds of each New
Series; and further
RESOLVED, that the office of Bankers Trust Company
at Four Albany Street, in the Borough of Manhattan, The
City of New York, be, and it hereby is, fixed as the
office or agency of this Company for the payment of the
principal of and the interest on the bonds of each New
Series and as the office or agency of the Company in
The City of New York for the registration, transfer and
exchange of registered bonds of each New Series; and
further
RESOLVED, that said Bankers Trust Company be, and
it hereby is, appointed as the agent of this Company,
in the Borough of Manhattan, The City of New York for
the payment of the principal of and interest on the
bonds of each New Series, and for the registration,
transfer and exchange of registered bonds of each New
Series; and further
RESOLVED, that said Bankers Trust Company be, and
it hereby is, appointed the withholding agent and
attorney of this Company for the purpose of withholding
any and all taxes required to be withheld by the
Company under the Federal revenue acts from time to
time in force and the Treasury Department regulations
pertaining thereto, from interest paid from time to
time on bonds of each New Series, and is hereby
authorized and directed to make any and all payments
and reports and to file any and all returns and
accompanying certificates with the Federal Government
which it may be permitted or required to make or file
as such agent under any such revenue act and/or
Treasury Department regulation pertaining thereto; and
further
RESOLVED, that, until further action by this
Board, the officers of this Company be, and they hereby
are, authorized and directed to effect transfers and
exchanges of bonds of each New Series, pursuant to
Section 12 of the Mortgage without charging a sum for
any bond of the New Series issued upon any such
transfer or exchange other than a charge in connection
with each such transfer or exchange sufficient to
reimburse the Company for any tax or other governmental
charge required to be paid by the Company in connection
therewith; and further
RESOLVED, that the firm of Deloitte & Touche LLP
be, and they hereby are, appointed as independent
accountants to render any independent public
accountant's certificate required under Section 29 of
the Mortgage; and further
RESOLVED, that the officers of the Company be, and
they hereby are, authorized and directed to execute
such instruments and papers and to do any and all acts
as to them may seem necessary or desirable to carry out
the purposes of the foregoing resolutions.
The Chairman explained that as an alternative to the
issuance of First Mortgage Bonds, the Company may issue and sell
unsecured notes ("Notes"), pursuant to a Selling Agency Agreement
or an Underwriting Agreement. He further noted that, in order to
enable the Company to perform its obligations under the Selling
Agency Agreement or the Underwriting Agreement approved at this
meeting providing for the sale of up to $400,000,000 aggregate
principal amount of the Notes, it was necessary that the Board
authorize the execution and delivery of one or more Company
Orders or Supplemental Indentures to the Indenture, dated as of
January 1, 1998, between the Company and The Bank of New York, in
such form as shall be approved by the officer executing the same,
such execution to be conclusive evidence of such approval. The
terms of each series of Notes will be established under a Company
Order or a Supplemental Indenture. The interest rate, maturity
and certain other terms have not yet been determined. The
Chairman recommended that the Board authorize the appropriate
officers of the Company to determine the financial terms and
conditions of the Notes, including, without limitation, (i) the
principal amount of the Notes to be sold in each offering; (ii)
the interest or method of determining the interest on the Notes;
(iii) the maturity (which shall not exceed 50 years from the date
of issuance) and redemption provisions of the Notes; and (iv)
such other terms and conditions as are contemplated or permitted
by the Indenture, a Company Order or a Supplemental Indenture.
Any fixed interest rate applicable to the Notes would not exceed
by more than 300 basis points the yield to maturity of United
States Treasury obligations of comparable maturity at the time of
pricing of the Notes. Any initial fluctuating interest rate
applicable to the Notes would not exceed 10%.
Thereupon, it was, on motion duly made and seconded,
unanimously
RESOLVED, that the Chairman of the Board, the
President, any Vice President, the Treasurer or any
Assistant Treasurer and the Secretary or any Assistant
Secretary be, and they hereby are, authorized to create
up to $400,000,000 aggregate principal amount of Notes
to be issued under the Indenture and one or more
Supplemental Indentures or Company Orders, in such form
as shall be approved by the officer executing the same,
such execution to be conclusive evidence of such
approval, and with such financial terms and conditions
as determined by appropriate officers of this Company,
pursuant to the Indenture and one or more Supplemental
Indentures or Company Orders, and with either a fixed
rate of interest which shall not exceed by more than
300 basis points the yield to maturity on United States
Treasury obligations of comparable maturity at the time
of pricing of the Notes or at an initial fluctuating
rate of interest which at the time of pricing would not
exceed 10%, or at a combination of such described fixed
or fluctuating rates, and to specify the maturity,
redemption or tender provisions and other terms, at the
time of issuance thereof with the maturity not to
exceed 50 years; and further
RESOLVED, that the Chairman of the Board, the
President, any Vice President, the Treasurer or any
Assistant Treasurer and the Secretary or any Assistant
Secretary be, and they hereby are, authorized and
directed to execute and deliver, on behalf of this
Company, one or more Supplemental Indentures or Company
Orders, specifying the designation, terms, redemption
provisions and other provisions of the Notes and
providing for the creation of each series of Notes, in
such form as shall be approved by the officer executing
the same, such execution to be conclusive evidence of
such approval; that The Bank of New York is hereby
requested to join in the execution of any Supplemental
Indenture or Company Order, as Trustee; and further
RESOLVED, that the Chairman of the Board, the
President, any Vice President, the Treasurer or any
Assistant Treasurer be, and they hereby are, authorized
and directed to execute and deliver, on behalf of this
Company, to the extent not determined in a Supplemental
Indenture or Company Order, a certificate requesting
the authentication and delivery of any such Notes and
establishing the terms of any tranche of such series or
specifying procedures for doing so in accordance with
the procedures established in the Indenture; and further
RESOLVED, that the Chairman of the Board, the
President, any Vice President or the Treasurer and the
Secretary or any Assistant Secretary of this Company
be, and they hereby are, authorized and directed to
execute in accordance with the provisions of the
Indenture (the signatures of such officers to be
effected either manually or by facsimile, in which case
such facsimile is hereby adopted as the signature of
such officer thereon), and to deliver to The Bank of
New York, as Trustee under the Indenture, the Notes in
the aggregate principal amount of up to $400,000,000 as
definitive fully registered bonds without coupons in
such denominations as may be permitted under the
Indenture; and further
RESOLVED, that if any authorized officer of this
Company who signs, or whose facsimile signature appears
upon, any of the Notes ceases to be such an officer
prior to their issuance, the Notes so signed or bearing
such facsimile signature shall nevertheless be valid;
and further
RESOLVED, that, subject as aforesaid, The Bank of
New York, as such Trustee, be, and it hereby is,
requested to authenticate, by the manual signature of
an authorized officer of such Trustee, the Notes and to
deliver the same from time to time in accordance with
the written order of this Company signed in the name of
this Company by its Chairman, President, any Vice
President, the Treasurer or any Assistant Treasurer;
and further
RESOLVED, that John F. Di Lorenzo, Jr. of Upper
Arlington, Ohio, Thomas G. Berkemeyer of Hilliard,
Ohio, Ann B. Graf of Columbus, Ohio, David C. House of
Upper Arlington, Ohio and William E. Johnson of
Gahanna, Ohio, attorneys and employees of American
Electric Power Service Corporation, an affiliate of
this Company, be, and each of them hereby is, appointed
Counsel to render any Opinion of Counsel required by
the Indenture in connection with the authentication and
delivery of the Notes; and further
RESOLVED, that the office of The Bank of New York,
at 101 Barclay Street, in the Borough of Manhattan, The
City of New York, be, and it hereby is, designated as
the office or agency of this Company, in accordance
with the Indenture, for the payment of the principal of
and the interest on the Notes, for the registration,
transfer and exchange of Notes and for notices or
demands to be served on the Company with respect to the
Notes; and further
RESOLVED, that said The Bank of New York, be, and
it hereby is, appointed the withholding agent and
attorney of this Company for the purpose of withholding
any and all taxes required to be withheld by the
Company under the Federal revenue acts from time to
time in force and the Treasury Department regulations
pertaining thereto, from interest paid from time to
time on the Notes, and is hereby authorized and
directed to make any and all payments and reports and
to file any and all returns and accompanying
certificates with the Federal Government which it may
be permitted or required to make or file as such agent
under any such revenue act and/or Treasury Department
regulation pertaining thereto; and further
RESOLVED, that the officers of this Company be,
and they hereby are, authorized and directed to effect
transfers and exchanges of the Notes, pursuant to the
Indenture without charging a sum for any Note issued
upon any such transfer or exchange other than a charge
in connection with each such transfer or exchange
sufficient to cover any tax or other governmental
charge in relation thereto; and further
RESOLVED, that The Bank of New York be, and it
hereby is, appointed as Note Registrar in accordance
with the Indenture; and further
RESOLVED, that the officers of the Company be, and
they hereby are, authorized and directed to execute
such instruments and papers and to do any and all acts
as to them may seem necessary or desirable to carry out
the purposes of the foregoing resolutions.
The Chairman then stated that one or more insurance
companies may insure the payment of principal and interest on
certain types of Debt Securities as such payments become due
pursuant to a financial guaranty insurance policy ("Insurance
Policy"). In this connection, the Company proposes to enter into
one or more Insurance Agreements, in such form as shall be
approved by the officer executing the same, such execution to be
conclusive evidence of such approval.
Thereupon, after discussion, on motion duly made and
seconded, it was unanimously
RESOLVED, that the proper officers of the Company
be, and they hereby are, authorized to execute and
deliver on behalf of the Company one or more Insurance
Agreements with an insurance company of their choice,
in such form as shall be approved by the officer
executing the same, such execution to be conclusive
evidence of such approval; and further
RESOLVED, that the proper officers of the Company
be, and they hereby are, authorized on behalf of the
Company to take such further action and do all other
things that any one of them shall deem necessary or
appropriate in connection with, the Insurance Policy
and the Insurance Agreement.
The Chairman noted that as an additional alternative to
the issuance of First Mortgage Bonds or Notes, the Company may
issue and sell Junior Subordinated Debentures pursuant to an
Underwriting Agreement. He reminded the Board that the Company
has entered into an Indenture with The First National Bank of
Chicago dated as of September 1, 1996 ("Indenture") in connection
with the Company's issuance of Junior Subordinated Debentures
("Debentures"). The Chairman stated that, in connection with the
proposed sale of up to $400,000,000 aggregate principal amount of
Debentures, it was necessary that the Board of Directors of this
Company authorize the execution and delivery of one or more
Supplemental Indentures to the Indenture ("Supplemental
Indenture"). The Debentures will be created under the
Supplemental Indenture and will also allow the Company to defer
payment of interest for up to five years. The Chairman
recommended that the Board authorize the appropriate officers of
the Company to create the Debentures and specify the interest
rate or method of determining the interest on the Debentures,
maturity, redemption provisions and other terms at the time of
creation, with the maturity not to exceed 50 years. Any fixed
interest rate applicable to the Debentures would not exceed by
more than 300 basis points the yield to maturity of United States
Treasury obligations of comparable maturity at the time of
pricing of the Debentures. Any initial fluctuating interest rate
applicable to the Debentures would not exceed 10%.
Thereupon, on motion duly made and seconded, it was
unanimously
RESOLVED, that the Chairman of the Board, the
President or any Vice President, the Treasurer or any
Assistant Treasurer and the Secretary or any Assistant
Secretary be, and they hereby are, authorized (i) to
create up to $400,000,000 aggregate principal amount of
Debentures to be issued under the Indenture and one or
more Supplemental Indentures, in such form as shall be
approved by the officer executing the same, such
execution to be conclusive evidence of such approval,
to be designated and to be distinguished from
debentures of all other series by the title "____%
Junior Subordinated Deferrable Interest Debentures,
Series __, Due ____________", and (ii) to specify the
interest rate, maturity, redemption provisions and
other terms at the time of creation thereof with the
maturity not to exceed 50 years and with either a fixed
rate of interest which shall not exceed by more than
300 basis points the yield to maturity of United States
Treasury obligations of comparable maturity at the time
of pricing of the Debentures or at an initial
fluctuating rate of interest which at the time of
pricing will not exceed 10%, or a combination of such
fixed or fluctuating rates; and further
RESOLVED, that the Chairman of the Board, the
President or any Vice President, the Treasurer or any
Assistant Treasurer, the Secretary or any Assistant
Secretary be, and they hereby are, authorized and
directed to execute and deliver, under the seal of and
on behalf of this Company, one or more Supplemental
Indentures, specifying the designation, terms,
redemption provisions and other provisions of the
Debentures and providing for the creation of the
Debentures, such instrument to be in the form as shall
be approved by the officer executing the same, such
execution to be conclusive evidence of such approval;
that The First National Bank of Chicago is hereby
requested to join in the execution of any such
Supplemental Indenture, as Trustee; and further
RESOLVED, that the terms and provisions of the
Debentures and the form of the registered Debentures
and of the Trustee's Authentication Certificate shall
be established by the appropriate officers of the
Company as herein authorized; and further
RESOLVED, that the Chairman of the Board, the
President, any Vice President or the Treasurer and the
Secretary or any Assistant Secretary of this Company
be, and they hereby are, authorized and directed to
execute under the seal of this Company in accordance
with the provisions of the Indenture (the signatures of
such officers to be effected either manually or by
facsimile, in which case such facsimile is hereby
adopted as the signature of such officer thereon), and
to deliver to The First National Bank of Chicago, as
Trustee under the Indenture, the Debentures in the
aggregate principal amount of up to $400,000,000 as
definitive fully registered bonds without coupons in
denominations of $25 or integral multiples thereof; and
further
RESOLVED, that if any authorized officer of this
Company who signs, or whose facsimile signature appears
upon, any of the Debentures ceases to be such an
officer prior to their issuance, the Debentures so
signed or bearing such facsimile signature shall
nevertheless be valid; and further
RESOLVED, that, subject as aforesaid, The First
National Bank of Chicago, as such Trustee, be, and it
hereby is, requested to authenticate, by the manual
signature of an authorized officer of such Trustee, the
Debentures and to deliver the same from time to time in
accordance with the written order of this Company
signed in the name of this Company by its Chairman,
President, one of its Vice Presidents or its Treasurer,
and its Secretary or one of Assistant Secretaries; and
further
RESOLVED, that John F. Di Lorenzo, Jr. of Upper
Arlington, Ohio, Thomas G. Berkemeyer of Hilliard,
Ohio, Ann B. Graf of Columbus, Ohio, David C. House of
Upper Arlington, Ohio and William E. Johnson of
Gahanna, Ohio, attorneys and employees of American
Electric Power Service Corporation, an affiliate of
this Company, be, and each of them hereby is, appointed
Counsel to render any Opinion of Counsel required by
the Indenture in connection with the authentication and
delivery of the Debentures; and further
RESOLVED, that the office of The First National
Bank of Chicago, One First National Plaza, Suite 0126,
Chicago, Illinois, be, and it hereby is, designated as
the office or agency of this Company, in accordance
with Section 4.02 of the Indenture, for the payment of
the principal of and the interest on the Debentures,
for the registration, transfer and exchange of
Debentures and for notices or demands to be served on
the Company with respect to the Debentures; and further
RESOLVED, that The First National Bank of Chicago,
be, and it hereby is, appointed the withholding agent
and attorney of this Company for the purpose of
withholding any and all taxes required to be withheld
by the Company under the Federal revenue acts from time
to time in force and the Treasury Department
regulations pertaining thereto, from interest paid from
time to time on the Debentures, and is hereby
authorized and directed to make any and all payments
and reports and to file any and all returns and
accompanying certificates with the Federal Government
which it may be permitted or required to make or file
as such agent under any such revenue act and/or
Treasury Department regulation pertaining thereto; and
further
RESOLVED, that the officers of this Company be,
and they hereby are, authorized and directed to effect
transfers and exchanges of the Debentures, pursuant to
Section 2.05 of the Indenture without charging a sum
for any Debenture issued upon any such transfer or
exchange other than a charge in connection with each
such transfer or exchange sufficient to cover any tax
or other governmental charge in relation thereto; and
further
RESOLVED, that The First National Bank of Chicago
be, and it hereby is, appointed as Debenture Registrar
in accordance with Section 2.05(b) of the Indenture;
and further
RESOLVED, that the officers of the Company be, and
they hereby are, authorized and directed to execute
such instruments and papers and to do any and all acts
as to them may seem necessary or desirable to carry out
the purposes of the foregoing resolutions.
The Chairman further stated that it would be desirable
to authorize the proper officers of the Company on behalf of the
Company, to enter into one or more term loan or note purchase
agreements, in such form as shall be approved by the officer
executing the same, such execution to be conclusive evidence of
such approval ("Term Loan Agreement"), with one or more as yet
unspecified commercial banks, financial institutions or other
institutional investors, which would provide for the Company to
borrow up to $400,000,000. Such borrowings would be evidenced by
an unsecured promissory note or notes ("Term Note") of the
Company maturing not less than nine months nor more than 30 years
after the date thereof, bearing interest to maturity at either a
fixed rate, floating rate, or combination thereof. Any fixed
interest rate of the Term Note will not exceed by more than 300
basis points the yield to maturity of United States Treasury
obligations that mature on or about the date of maturity of the
Term Note. Any fluctuating rate will not be greater than 200
basis points above the rate of interest announced publicly by the
lending bank from time to time as its base or prime rate, but in
no event will the initial fluctuating rate of interest exceed 10%.
Thereupon, upon motion duly made and seconded, it was
unanimously
RESOLVED, that the Chairman of the Board, the
President, any Vice President or the Treasurer of this
Company be, and each of them hereby is, authorized to
execute and deliver in the name and on behalf of this
Company, one or more Term Loan Agreements in such form
as shall be approved by the officer executing the same,
such execution to be conclusive evidence of such
approval, at either a fixed rate of interest which
shall not exceed by more than 300 basis points the
yield to maturity of United States Treasury obligations
that mature on or about the maturity date of the Term
Note issued thereunder, or a fluctuating rate of
interest which shall not be greater than 200 basis
points above the rate of interest announced publicly by
the lending bank from time to time as its base or prime
rate, but in no event will such initial fluctuation
rate of interest exceed 10%, or at a combination of
such described fixed or fluctuating rates; and further
RESOLVED, that the Chairman of the Board, the
President, any Vice President or the Treasurer of this
Company be, and each of them hereby is, authorized, in
the name and on behalf of this Company, to borrow from
one or more commercial banks, financial institutions or
other institutional investors, up to $400,000,000, upon
the terms and subject to the conditions of the Term
Loan Agreement as executed and delivered; and in
connection therewith, to execute and deliver a
promissory note, with such insertions therein and
changes thereto consistent with such Term Loan
Agreement as shall be approved by the officer executing
the same, such execution to be conclusive evidence of
such approval; and further
RESOLVED, that the proper officers of this Company
be, and they hereby are, authorized to execute and
deliver such other documents and instruments, and to do
such other acts and things, that in their judgment may
be necessary or desirable in connection with the
transactions authorized in the foregoing resolutions.
APPALACHIAN POWER COMPANY
POWER OF ATTORNEY
Each of the undersigned directors or officers of
APPALACHIAN POWER COMPANY, a Virginia corporation, which is to
file with the Securities and Exchange Commission, Washington,
D.C. 20549, under the provisions of the Securities Act of 1933,
as amended, one or more Registration Statements for the
registration thereunder of up to $400,000,000 aggregate principal
amount of its Debt Securities comprising first mortgage bonds or
secured or unsecured promissory notes (including Junior
Subordinated Debentures), or a combination of each, in one or
more new series, each series to have a maturity not exceeding 50
years, does hereby appoint E. LINN DRAPER, JR., BRUCE M. BARBER,
HENRY W. FAYNE and ARMANDO A. PENA his true and lawful attorneys,
and each of them his true and lawful attorney, with power to act
without the others, and with full power of substitution or
resubstitution, to execute for him and in his name said
Registration Statement(s) and any and all amendments thereto,
whether said amendments add to, delete from or otherwise alter
the Registration Statement(s) or the related Prospectus(es)
included therein, or add or withdraw any exhibits or schedules to
be filed therewith and any and all instruments necessary or
incidental in connection therewith, hereby granting unto said
attorneys and each of them full power and authority to do and
perform in the name and on behalf of each of the undersigned, and
in any and all capacities, every act and thing whatsoever
required or necessary to be done in and about the premises, as
fully and to all intents and purposes as each of the undersigned
might or could do in person, hereby ratifying and approving the
acts of said attorneys and each of them.
IN WITNESS WHEREOF the undersigned have hereunto set
their hands and seals this 24th day of February, 1999.
/s/ E. Linn Draper, Jr._ /s/ James J. Markowsky_
E. Linn Draper, Jr. L.S. James J. Markowsky L.S.
/s/ Henry W. Fayne_ /s/ A. A. Pena_
Henry W. Fayne L.S. A. A. Pena L.S.
/s/ Wm. J. Lhota_ /s/ J. H. Vipperman_
Wm. J. Lhota L.S. J. H. Vipperman L.S.
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
APPALACHIAN POWER COMPANY
(Exact name of obligor as specified in its charter)
Virginia 54-0124790
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
40 Franklin Road, S.W.
Roanoke, Virginia 46801
(Address of principal executive offices) (Zip code)
______________________
Unsecured Notes
(Title of the indenture securities)
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Name Address
Superintendent of Banks of the State of 2 Rector Street, New York, NY
New York 10006, and Albany, NY 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, NY
10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, NY 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit
hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of
1939 (the "Act") and 17 C.F.R. 229.10(d).
1.A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a
and 1b to Form T-1 filed with Registration Statement No. 33-21672
and Exhibit 1 to Form T-1 filed with Registration Statement No.
33-29637.)
4.A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6.The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7.A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of
New York, a corporation organized and existing under the laws of the
State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in The City of New York, and State of New York, on the 28th day of July,
1999.
THE BANK OF NEW YORK
By: /s/ Michael Culhane
Name: Michael Culhane
Title: Vice President
EXHIBIT 7
- ------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31,
1999, published in accordance with a call made by the Federal Reserve Bank
of this District pursuant to the provisions of the Federal Reserve Act.
ASSETS Dollar Amounts
In Thousands
Cash and balances due from
depository institutions:
Noninterest-bearing balances $4,508,742
and currency and coin........
Interest-bearing balances..... 4,425,071
Securities:
Held-to-maturity securities... 836,304
Available-for-sale securities. 4,047,851
Federal funds sold and 1,743,269
Securities purchased under
agreements to resell..........
Loans and lease financing
receivables:
Loans and leases, net of
unearned
income 39,349,679
LESS: Allowance for loan and
lease losses 603,025
LESS: Allocated transfer risk
reserve 15,906
Loans and leases, net of 38,730,748
unearned income, allowance,
and reserve..................
Trading Assets.................. 1,571,372
Premises and fixed assets 685,674
(including capitalized leases)
Other real estate owned......... 10,331
Investments in unconsolidated 182,449
subsidiaries and associated
companies.....................
Customers' liability to this 1,184,822
bank on acceptances
outstanding...................
Intangible assets............... 1,129,636
Other assets.................... 2,632,309
Total assets....................
$61,688,578
LIABILITIES
Deposits:
In domestic offices........... $25,731,036
Noninterest-bearing.10,252,589
Interest-bearing....15,478,447
In foreign offices, Edge and 18,756,302
Agreement subsidiaries, and
IBFs.........................
Noninterest-bearing....111,386
Interest-bearing....18,644,916
Federal funds purchased and 3,276,362
Securities sold under
agreements to repurchase......
Demand notes issued to the 230,671
U.S.Treasury..................
Trading liabilities............. 1,554,493
Other borrowed money:
With remaining maturity of 1,154,502
one year or less.............
With remaining maturity of 465
more than one year through
three years..................
With remaining maturity of 31,080
more than three years........
Bank's liability on acceptances 1,185,364
executed and outstanding......
Subordinated notes and 1,308,000
debentures....................
Other liabilities............... 2,743,590
Total liabilities...............
55,971,865
EQUITY CAPITAL
Common stock.................... 1,135,284
Surplus......................... 764,443
Undivided profits and capital 3,807,697
reserves......................
Net unrealized holding gains 44,106
(losses) on
available-for-sale securities.
Cumulative foreign currency
translation adjustments....... ( 34,817)
Total equity capital............ 5,716,713
Total liabilities and equity
capital....................... $61,688,578
- -------------------------------------
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
A. Reyni
Alan R. Griffith
Gerald L. Hassell
