Exhibit 1(a)
OHIO POWER COMPANY
Underwriting Agreement
Dated July 8, 2003
AGREEMENT made between OHIO POWER COMPANY, a corporation organized and
existing under the laws of the State of Ohio (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 $225,000,000 aggregate
principal amount of its 4.85% Senior Notes, Series H, due 2014 (the Series H
Notes) and $225,000,000 aggregate principal amount of its 6.375% Senior Notes,
Series I, due 2033 (the Series I Notes and collectively with the Series H Notes,
the Senior Notes) to be issued pursuant to the Indenture dated as of September
1, 1997, between the Company and Bankers Trust Company, now Deutsche Bank Trust
Company Americas, as trustee (the Trustee), as heretofore supplemented and
amended and as to be further supplemented and amended (said Indenture as so
supplemented being hereafter referred to as the Indenture); and
WHEREAS, the Underwriters have designated the persons signing this
Agreement (collectively, the Representative) to execute this Agreement on behalf
of the respective Underwriters and to act for the respective Underwriters in the
manner provided in this Agreement; and
WHEREAS, the Company has prepared and filed, in accordance with the
provisions of the Securities Act of 1933, as amended (the Act), with the
Securities and Exchange Commission (the Commission), registration statement
(File No. 333-106242) and a prospectus relating to $650,000,000 aggregate
principal amount of its unsecured notes and such registration statement has
become effective; and
WHEREAS, such registration statement, including the financial statements,
the documents incorporated or deemed incorporated therein by reference, and the
exhibits thereto, being herein called the Registration Statement, and the
prospectus, including the documents incorporated or deemed incorporated therein
by reference, constituting a part of such Registration Statement, as it may be
last amended or supplemented prior to the effectiveness of this Agreement, but
excluding any amendment or supplement relating solely to securities other than
the Senior Notes, being herein called the Basic Prospectus, and the Basic
Prospectus, as supplemented by a final prospectus supplement (the Prospectus
Supplement) to include information relating to the Senior Notes, including the
names of the Underwriters, the price and terms of the offering, the interest
rate, maturity date and certain other information relating to the Senior Notes,
which will be filed with the Commission pursuant to Rule 424(b) of the
Commission's General Rules and Regulations under the Act (the Rules), including
all documents then incorporated or deemed to have been incorporated therein by
reference, being herein called the Prospectus.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, it is agreed between the parties as follows:
1. Purchase and Sale: Upon the basis of the warranties and representations
and on the terms and subject to the conditions herein set forth, the Company
agrees to sell to the respective Underwriters named in Exhibit 1 hereto,
severally and not jointly, and the respective Underwriters, severally and not
jointly, agree to purchase from the Company, the respective principal amounts of
the Senior Notes set opposite their names in Exhibit 1 hereto, together
aggregating all of the Series H Notes, at a price equal to 99.268% and all of
the Series I Notes, at a price equal to 98.305% of the principal amount thereof.
2. Payment and Delivery: Payment for the Senior Notes shall be made to the
Company in immediately available funds or in such other manner as the Company
and the Representative shall mutually agree upon in writing, upon the delivery
of the Senior Notes to the Representative for the respective accounts of the
Underwriters against receipt therefor signed by the Representative on behalf of
itself and for the other Underwriters. Such delivery shall be made at 10:00
A.M., New York Time, on July 11, 2003 (or on such later business day, not more
than five business days subsequent to such day, as may be mutually agreed upon
by the Company and the Underwriters), unless postponed in accordance with the
provisions of Section 8 hereof, at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as the
Company and the Representative shall mutually agree in writing. The time at
which payment and delivery are to be made is herein called the Time of Purchase.
The delivery of the Senior 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 Senior
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 LLP and either of
Xxxxxx X. Xxxxxxxxxx, Esq. or Xxxxx X. Xxxxx, Esq., counsel
to the Company, substantially in the forms heretofore
previously provided to the Underwriters; and
(2) Opinion of Xxxxx Xxxxxxxxxx LLP, counsel to the
Underwriters, substantially in the form heretofore
previously provided to the Underwriters.
(c) That the Representative shall have received a letter from
Deloitte & Touche LLP dated the day of the Time of Purchase in
form and substance satisfactory to the Representative, (i)
confirming that they are independent certified 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 Senior
Notes) relating to the Senior 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
Public Utilities Commission of Ohio, necessary to permit the
sale of the Senior 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, from the date hereof to the Time of Purchase, there shall
not have been any material adverse change in the business,
properties or financial condition of the Company from that set
forth in the Prospectus (other than changes referred to in or
contemplated by the Prospectus), and that the Company shall, at
the Time of Purchase, have delivered to the Representative a
certificate of an executive officer of the Company to the effect
that, to the best of his knowledge, information and belief,
there has been no such change.
(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 the Prospectus
with the Commission; as soon as the Company is advised thereof,
to advise the Representative and confirm the advice in writing
of any request made by the Commission for amendments to the
Registration Statement or Prospectus or for additional
information with respect thereto or of the entry of a stop order
suspending the effectiveness of the Registration Statement or of
the initiation or threat of any proceedings for that purpose
and, if such a stop order should be entered by the Commission,
to make every reasonable effort to obtain the prompt lifting or
removal thereof.
(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 Senior 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
Senior Notes and, upon request, to furnish to the Representative
sufficient plain copies thereof (exclusive of exhibits) for
distribution 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 will be furnished to
the Company by the Representative) to whom principal amounts of
the Senior 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 Senior 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 Senior Notes by the respective Underwriters)
in connection with the issuance and delivery of the Senior
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 and paragraph (a) of Section 7,
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 Senior
Notes due to the failure of the Company to comply with any of
the conditions specified in Section 3 hereof, or, if this
Agreement shall be terminated in accordance with the provisions
of Section 8 or 9 hereof, to pay the fees and disbursements of
Xxxxx Xxxxxxxxxx LLP, counsel to the Underwriters, and, if the
Underwriters shall not take up and pay for the Senior 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 0000 (xxx 0000
Xxx) in connection with the sale of the Senior 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 Senior 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 Senior Notes of the Company or any substantially
similar securities of the Company without the consent of the
Representative.
5. Warranties of 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, with
the applicable provisions of the Act and the rules and
regulations of the Commission and the Registration Statement at
its effective date did not, and at the Time of Purchase will
not, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading, and the Basic
Prospectus on the date of this Agreement and the Prospectus when
first filed in accordance with Rule 424(b) complies, and at the
Time of Purchase the Prospectus will comply, with the applicable
provisions of the Act and the Trust Indenture Act of 1939, as
amended (the 1939 Act), and the rules and regulations of the
Commission, the Basic Prospectus on the date of this Agreement
and the Prospectus when first filed in accordance with Rule
424(b) under the Act do not, and the Prospectus at the Time of
Purchase will not, contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, except that the Company makes no warranty or
representation to the Underwriters with respect to any
statements or omissions made in the Registration Statement, the
Basic Prospectus or the Prospectus in reliance upon and in
conformity with information furnished in writing to the Company
by, or through the Representative on behalf of, any Underwriter
expressly for use in the Registration Statement, the Basic
Prospectus or Prospectus, or to any statements in or omissions
from that part of the Registration Statement that shall
constitute the Statement of Eligibility under the 1939 Act 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 1939 Act
and, when executed and delivered by the Trustee and the Company,
will constitute a legal, valid and binding instrument
enforceable against the Company in accordance with its terms and
such Senior 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) 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.
(d) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as
otherwise referred to or contemplated therein, there has been no
material adverse change in the business, properties or financial
condition of the Company.
(e) This Agreement has been duly authorized, executed and delivered
by the Company.
(f) The consummation by the Company of the transactions contemplated
herein is not in violation of its charter or bylaws, will not
result in the violation of any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court having jurisdiction over the
Company or its properties, and will not conflict with, or result
in a breach of any of the terms or provisions of, or constitute
a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Company under any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to which the
Company is a party or by which it may be bound or to which any
of its properties may be subject (except for conflicts, breaches
or defaults which would not, individually or in the aggregate,
be materially adverse to the Company or materially adverse to
the transactions contemplated by this Agreement.)
(g) 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 Senior Notes or the
transactions by the Company contemplated in this Agreement,
except (A) such as may be required under the 1933 Act or the
rules and regulations thereunder; (B) such as may be required
under the 1935 Act; (C) the qualification of the Indenture under
the 1939 Act; (D) the approval of The Public Utilities
Commission of Ohio; and (E) such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or "blue sky" laws.
(h) The consolidated financial statements of the Company and its
consolidated subsidiaries together with the notes thereto,
included or incorporated by reference in the Prospectus present
fairly the financial position of the Company at the dates or for
the periods indicated; said consolidated financial statements
have been prepared in accordance with United States generally
accepted accounting principles applied, apart from
reclassifications disclosed therein, on a consistent basis
throughout the periods involved; and the selected consolidated
financial information of the Company included in the Prospectus
presents fairly the information shown therein and has been
compiled, apart from reclassifications disclosed therein, on a
basis consistent with that of the audited financial statements
of the Company included or incorporated by reference in the
Prospectus.
(i) There is no pending action, suit, investigation, litigation or
proceeding, including, without limitation, any environmental
action, affecting the Company before any court, governmental
agency or arbitration that is reasonably likely to have a
material adverse effect on the business, properties, financial
condition or results of operations of the Company, except as
disclosed in the Prospectus.
The Company's covenants, warranties and representations contained in this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of any person, and shall survive the delivery of and
payment for the Senior Notes hereunder.
6. Warranties of Underwriters: Each Underwriter warrants and represents
that the information furnished in writing to the Company through the
Representative for use in the Registration Statement, in the Basic Prospectus,
in the Prospectus, or in the Prospectus as amended or supplemented is correct as
to such Underwriter. The warranties and representations of such Underwriter
contained in this Agreement shall remain in full force and effect regardless of
any investigation made by or on behalf of the Company or other person, and shall
survive the delivery of and payment for the Senior Notes hereunder.
7. Indemnification and Contribution:
(a) To the extent permitted by law, the Company agrees to indemnify
and hold you harmless, your officers and directors and each
person, if any, who controls you within the meaning of Section
15 of the Act, against any and all losses, claims, damages or
liabilities, joint or several, to which you, they or any of you
or them may become subject under the Act or otherwise, and to
reimburse you and such controlling person or persons, if any,
for any legal or other expenses incurred by you or them in
connection with defending any action, insofar as such losses,
claims, damages, liabilities or actions arise out of or are
based upon any alleged untrue statement or untrue statement of a
material fact contained in the Registration Statement, in the
Basic Prospectus (if used prior to the effective date of this
Agreement), or in the Prospectus, or if the Company shall
furnish or cause to be furnished to you any amendments or any
supplements to the Prospectus, in the Prospectus as so amended
or supplemented except to the extent that such amendments or
supplements relate solely to securities other than the Senior
Notes (provided that if such Prospectus or such Prospectus, as
amended or supplemented, is used after the period of time
referred to in Section 4(b) hereof, it shall contain such
amendments or supplements as the Company deems necessary to
comply with Section 10(a) of the Act), or arise out of or are
based upon any alleged omission or omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or actions arise out of or
are based upon any such alleged untrue statement or omission, or
untrue statement or omission which was made in the Registration
Statement, in the Basic Prospectus or in the Prospectus, or in
the Prospectus as so amended or supplemented, in reliance upon
and in conformity with information furnished in writing to the
Company by or through the Representative expressly for use
therein or with any statements in or omissions from that part of
the Registration Statement that shall constitute the Statement
of Eligibility under the 1939 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 Senior Notes to any person
if such loss arises from the fact that a copy of the Prospectus,
as the same may then be supplemented or amended to the extent
such Prospectus was provided to you by the Company (excluding,
however, any document then incorporated or deemed incorporated
therein by reference), was not sent or given by you to such
person with or prior to the written confirmation of the sale
involved and the alleged omission or alleged untrue statement or
omission or untrue statement was corrected in the Prospectus as
supplemented or amended at the time of such confirmation, and
such Prospectus, as amended or supplemented, was timely
delivered to you by the Company. You agree promptly after the
receipt by you of written notice of the commencement of any
action in respect to which indemnity from the Company on account
of its agreement contained in this Section 7(a) may be sought by
you, or by any person controlling you, to notify the Company in
writing of the commencement thereof, but your omission so to
notify the Company of any such action shall not release the
Company from any liability which it may have to you or to such
controlling person otherwise than on account of the indemnity
agreement contained in this Section 7(a). In case any such
action shall be brought against you or any such person
controlling you and you shall notify the Company of the
commencement thereof, as above provided, the Company shall be
entitled to participate in, and, to the extent that it shall
wish, including the selection of counsel (such counsel to be
reasonably acceptable to the indemnified party), to direct the
defense thereof at its own expense. In case the Company elects
to direct such defense and select such counsel (hereinafter,
Company's counsel), you or any controlling person shall have the
right to employ your own counsel, but, in any such case, the
fees and expenses of such counsel shall be at your expense
unless (i) the Company has agreed in writing to pay such fees
and expenses or (ii) the named parties to any such action
(including any impleaded parties) include both you or any
controlling person and the Company and you or any controlling
person shall have been advised by your counsel that a conflict
of interest between the Company and you or any controlling
person may arise (and the Company's counsel shall have concurred
in good faith with such advice) and for this reason it is not
desirable for the Company's counsel to represent both the
indemnifying party and the indemnified party (it being
understood, however, that the Company shall not, in connection
with any one such action or separate but substantially similar
or related actions in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of
attorneys for you or any controlling person (plus any local
counsel retained by you or any controlling person in their
reasonable judgment), which firm (or firms) shall be designated
in writing by you or any controlling person).
(b) Each Underwriter agrees, to the extent permitted by law,
severally and not jointly, to indemnify, hold harmless and
reimburse the Company, its directors and such of its officers as
shall have signed the Registration Statement, and each person,
if any, who controls the Company within the meaning of Section
15 of the Act, to the same extent and upon the same terms as the
indemnity agreement of the Company set forth in Section 7(a)
hereof, but only with respect to untrue statements or alleged
untrue statements or omissions or alleged omissions made in the
Registration Statement, or in the Basic Prospectus, or in the
Prospectus, or in the Prospectus as so amended or supplemented,
in reliance upon and in conformity with information furnished in
writing to the Company by the Representative on behalf of such
Underwriter expressly for use therein. The Company agrees
promptly after the receipt by it of written notice of the
commencement of any action in respect to which indemnity from
you on account of your agreement contained in this Section 7(b)
may be sought by the Company, or by any person controlling the
Company, to notify you in writing of the commencement thereof,
but the Company's omission so to notify you of any such action
shall not release you from any liability which you may have to
the Company or to such controlling person otherwise than on
account of the indemnity agreement contained in this Section
7(b).
(c) If recovery is not available or insufficient under Section 7(a)
or 7(b) hereof for any reason other than as specified therein,
the indemnified party shall be entitled to contribution for any
and all losses, claims, damages, liabilities and expenses for
which such indemnification is so unavailable or insufficient
under this Section 7(c). In determining the amount of
contribution to which such indemnified party is entitled, there
shall be considered the portion of the proceeds of the offering
of the Senior Notes realized, the relative knowledge and access
to information concerning the matter with respect to which the
claim was asserted, the opportunity to correct and prevent any
statement or omission, and any equitable considerations
appropriate under the circumstances. The Company and the
Underwriters agree that it would not be equitable if the amount
of such contribution were determined by pro rata or per capita
allocation (even if the Underwriters were treated as one entity
for such purpose) without reference to the considerations called
for in the previous sentence. No Underwriter or any person
controlling such Underwriter shall be obligated to contribute
any amount or amounts hereunder which in the aggregate exceeds
the total price of the Senior Notes purchased by such
Underwriter under this Agreement, less the aggregate amount of
any damages which such Underwriter and its controlling persons
have otherwise been required to pay in respect of the same claim
or any substantially similar claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
An Underwriter's obligation to contribute under this Section 7
is in proportion to its purchase obligation and not joint with
any other Underwriter.
(d) No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this
Section 7 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise
or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability
or a failure to act by or on behalf of such indemnified party.
(e) In no event shall any indemnifying party have any liability or
responsibility in respect of the settlement or compromise of, or
consent to the entry of any judgment with respect to, any
pending or threatened action or claim effected without its prior
written consent.
The agreements contained in this Section 7 hereof shall remain in full
force and effect regardless of any investigation made by or on behalf of any
person, and shall survive the delivery of and payment for the Senior Notes
hereunder.
8. Default of Underwriters: If any Underwriter under this Agreement shall
fail or refuse (otherwise than for some reason sufficient to justify, in
accordance with the terms hereof, the cancellation or termination of its
obligations hereunder) to purchase and pay for the principal amount of Senior
Notes which it has agreed to purchase and pay for hereunder, and the aggregate
principal amount of Senior 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 Senior Notes, the other Underwriters
shall be obligated severally in the proportions which the amounts of Senior
Notes set forth opposite their names in Exhibit 1 hereto bear to the aggregate
principal amount of Senior Notes set forth opposite the names of all such
non-defaulting Underwriters, to purchase the Senior 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
Senior Notes which any Underwriter has agreed to purchase pursuant to Section 1
hereof be increased pursuant to this Section 8 by an amount in excess of
one-ninth of such principal amount of Senior Notes without the written consent
of such Underwriter. If any Underwriter or Underwriters shall fail or refuse to
purchase Senior Notes and the aggregate principal amount of Senior Notes with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of the Senior 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 Senior 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 Senior Notes without some reason sufficient to justify,
in accordance with the terms hereof, its termination of its obligations
hereunder) be under any liability to the Company or any other Underwriter.
Nothing herein contained shall release any defaulting Underwriter from its
liability to the Company or any non-defaulting Underwriter for damages
occasioned by its default hereunder.
9. Termination of Agreement by the Underwriters: This Agreement may be
terminated at any time prior to the Time of Purchase by the Representative if,
after the execution and delivery of this Agreement and prior to the Time of
Purchase, in the Representative's reasonable judgment, the Underwriters' ability
to market the Senior 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 trading in the securities of the Company shall have been
suspended by the New York Stock Exchange, or
(ii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or
war or other national or international calamity or crisis, or
(iii) a general banking moratorium shall have been declared by
Federal or New York State authorities, or
(iv) there shall have been any decrease in the ratings of the
Company's debt securities by Xxxxx'x Investors Services, Inc. (Moody's) or
Standard & Poor's Ratings Services (S&P) or either Moody's or S&P shall
publicly announce that it has such debt securities under consideration for
possible further downgrade other than what has been announced.
If the Representative elects to terminate this Agreement, as provided
in this Section 9, the Representative will promptly notify the Company by
telephone or by telex or facsimile transmission, confirmed in writing. If this
Agreement shall not be carried out by any Underwriter for any reason permitted
hereunder, or if the sale of the Senior Notes to the Underwriters as herein
contemplated shall not be carried out because the Company is not able to comply
with the terms hereof, the Company shall not be under any obligation under this
Agreement and shall not be liable to any Underwriter or to any member of any
selling group for the loss of anticipated profits from the transactions
contemplated by this Agreement (except that the Company shall remain liable to
the extent provided in Section 4(h) hereof) and the Underwriters shall be under
no liability to the Company nor be under any liability under this Agreement to
one another.
10. Notices: All notices hereunder shall, unless otherwise expressly
provided, be in writing and be delivered at or mailed to the following addresses
or by telex or facsimile transmission confirmed in writing to the following
addresses: if to the Underwriters, to the Representative at Barclays Capital
Inc., Attention: Xxxxx Xxxxxxxx (fax 212/000-0000) and Xxxxxx Xxxxxxx & Co.
Incorporated, Attention: Xxxxxx X. Xxxxxxxxxx, III (fax 212/000-0000), and, if
to the Company, to Ohio Power Company, c/o American Electric Power Service
Corporation, 0 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000, Attention: General Counsel
(fax 614/000-0000).
11. Parties in Interest: The agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Company (including the
directors thereof and such of the officers thereof as shall have signed the
Registration Statement), the controlling persons, if any, referred to in Section
7 hereof, and their respective successors, assigns, executors and
administrators, and no other person shall acquire or have any right under or by
the virtue of this Agreement.
12. Definition of Certain Terms: If there be two or more persons, firms or
corporations named in Exhibit 1 hereto, the term "Underwriters", as used herein,
shall be deemed to mean the several persons, firms or corporations, so named
(including the Representative herein mentioned, if so named) and 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
Senior Notes from any of the respective Underwriters.
13. Conditions of the Company's Obligations: The obligations of the
Company hereunder are subject to the Underwriters' performance of their
obligations hereunder, and the further condition that at the Time of Purchase
The Public Utilities Commission of Ohio shall have issued an appropriate order,
and such order shall remain in full force and effect, authorizing the
transactions contemplated hereby.
14. Applicable Law: This Agreement will be governed and construed in
accordance with the laws of the State of New York.
15. Execution of Counterparts: This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, on the date
first above written.
OHIO POWER COMPANY
By:__/s/ A. A. Pena_______
Name: X. X. Xxxx
Title: Vice President
BARCLAYS CAPITAL INC.
XXXXXX XXXXXXX & CO. INCORPORATED
as Representative
and on behalf of the Underwriters
named in Exhibit 1 hereto
BARCLAYS CAPITAL INC.
By:_/s/ Xxxxxx Kendall_________
Name: Xxxxxx Xxxxxxx
Title: Director
XXXXXX XXXXXXX & CO. INCORPORATED
By:_/s/ Xxxxxxx Fusco__________
Name: Xxxxxxx Xxxxx
Title: Authorized Signer
EXHIBIT 1
Principal Amount
Name of Series H Notes
Barclays Capital Inc. $ 88,875,000
Xxxxxx Xxxxxxx & Co. Incorporated 88,875,000
ABN AMRO Incorporated 15,750,000
Danske Markets Inc. 15,750,000
The Royal Bank of Scotland plc 15,750,000
TOTAL $225,000,000
Principal Amount
Name of Series I Notes
Barclays Capital Inc. $ 88,875,000
Xxxxxx Xxxxxxx & Co. Incorporated 88,875,000
ABN AMRO Incorporated 15,750,000
Danske Markets Inc. 15,750,000
The Royal Bank of Scotland plc 15,750,000
TOTAL $225,000,000
