EXHIBIT 1(b)
INDIANA MICHIGAN POWER COMPANY
Underwriting Agreement
Dated ____________________
AGREEMENT made between INDIANA MICHIGAN POWER COMPANY, a corporation
organized and existing under the laws of the State of Indiana (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 _______________, 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
immediately available funds, or in such other manner as the Company and the
Representative shall mutually agree upon in writing, at the office of Xxxxxxx
Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, 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 Xxxxx Xxxxxxxxxx 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 Xxxxx Xxxxxxxxxx LLP, counsel to the
Underwriters:
(1) Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx and any of
Xxxxxx X. Xxxxxxxxxx, Esq., Xxx X. Xxxx, Esq., Xxxxx X.
House, Esq. or Xxxxxxx X. Xxxxxxx, Esq., counsel to the
Company, substantially in the forms attached hereto as
Exhibits A and B; and
(2) Opinion of Xxxxx Xxxxxxxxxx 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 (other
than the prospectus or amendments, prospectuses or prospectus
supplements relating solely to securities other than the
[Unsecured Notes] 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 Xxxxx
Xxxxxxxxxx LLP, counsel to the Underwriters.
(e) That, at the Time of Purchase, an appropriate order of the
Indiana Utility Regulatory Commission, 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, other than supplements or amendments relating solely
to securities other than the [Unsecured Notes] as the
Representative may reasonably request; and in case any
Underwriter is required to deliver a prospectus after the
expiration of nine months after the date hereof, to furnish to
any Underwriter, upon request, at the expense of such
Underwriter, a reasonable quantity of a supplemental
prospectus or of supplements to the Prospectus complying with
Section 10(a)(3) of the Act.
(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), other
than amendments relating solely to securities other than the
[Unsecured Notes] 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 Xxxxx Xxxxxxxxxx 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 Xxxxx Xxxxxxxxxx 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) 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 each Underwriter, 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 ornecessary 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 losses, 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 connectio
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 severally 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 non-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 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 debt securities by Xxxxx'x Investors Services, Inc. (Moody's) or
Standard & Poor's Ratings Group (S&P) or either Moody's or S&P shall
publicly announce that it has such debt securities under consideration for
possible 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 Indiana Michigan Power Company, c/o American Electric Power
Service Corporation, 0 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000, attention of
X. X. Xxxx, Treasurer, (fax 614/000-0000).
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 Indiana Utility Regulatory Commission of Ohio shall have issued an
appropriate order, and such order 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.
INDIANA MICHIGAN POWER COMPANY
By:____________________________
X. X. Xxxx
Treasurer
-----------------------------------
as Representative
and on behalf of the Underwriters
named in Exhibit 1 hereto
By:____________________________
EXHIBIT 1
Name Principal Amount
