SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report: November 19, 2002
(Date of earliest event reported)
Commission Registrant; State of Incorporation; I.R.S. Employer
File Number Address; and Telephone Number Identification No.
1-3570 INDIANA MICHIGAN POWER COMPANY 35-0410455
(An Indiana Corporation)
1 Riverside Plaza
Columbus, Ohio 43215
Telephone (614) 223-1000
Item 5. Other Events.
On November 19, 2002, Indiana Michigan Power Company (the "Company")
entered into an Underwriting Agreement with BNP Paribas Securities Corp. and UBS
Warburg LLC, as representatives of the underwriters named therein, relating to
the offering and sale by the Company of $100,000,000 of its 6.375% Senior Notes,
Series E, due 2012 (the "Notes").
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
1(a) Underwriting Agreement, dated November 19, 2002, between the
Company and BNP Paribas Securities Corp. and UBS Warburg LLC, as
representatives of the several underwriters named in Exhibit 1
thereto, in connection with the sale of the Notes.
4(a) Company Order and Officer's Certificate, dated November 22, 2002,
establishing the terms of the Notes.
4(b) Form of the Notes (included in Exhibit 4(a) hereto).
5(a) Opinion of Simpson Thacher & Bartlett regarding the legality of
the Notes.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
INDIANA MICHIGAN POWER COMPANY
By: /s/ Thomas G. Berkemeyer
Title: Assistant Secretary
November 22, 2002
Exhibit 1(a)
INDIANA MICHIGAN POWER COMPANY
Underwriting Agreement
Dated November 19, 2002
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 $100,000,000 principal
amount of its 6.375% Senior Notes, Series E, due 2012 (the Senior Notes) to be
issued pursuant to the Indenture dated as of October 1, 1998, between the
Company and The Bank of New York, as trustee (the Trustee), as heretofore
supplemented and amended and as to be further supplemented and amended (said
Indenture as so supplemented being hereafter referred to as the Indenture); and
WHEREAS, the Underwriters have designated the persons signing this
Agreement (collectively the Representative) to execute this Agreement on behalf
of the respective Underwriters and to act for the respective Underwriters in the
manner provided in this Agreement; and
WHEREAS, the Company has prepared and filed, in accordance with the
provisions of the Securities Act of 1933 (the Act), with the Securities and
Exchange Commission (the Commission), a registration statement (File No.
333-58656) and a prospectus relating to $550,000,000 principal amount of its
Unsecured Notes and such registration statement has become effective; and
WHEREAS, such registration statement, including the financial
statements, the documents incorporated or deemed incorporated therein by
reference, 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 preliminary
prospectus supplement and 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 Senior Notes, at a price equal to 99.231% 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 November 22, 2002 (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 Simpson Thacher & Bartlett,
425 Lexington Avenue, New York, New York 10017, 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 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 either of Thomas G.
Berkemeyer, Esq. or David C. House, Esq., counsel to the Company,
substantially in the forms heretofore previously provided to the
Underwriters;
(2) Opinion of Dewey Ballantine 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 in form and substance satisfactory to the Representative,
dated as of the day of the Time of Purchase, (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 Dewey Ballantine 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
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 are
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,
provided 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 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 Dewey Ballantine 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 1935 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 (other
than the Company's Senior Notes, Series D) without the consent of the
Representative.
5. Warranties of the Company: The Company represents and warrants to 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 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, and the rules and
regulations of the Commission, the Basic Prospectus on the date of
this Agreement and the Prospectus when first filed in accordance with
Rule 424(b) under the Act do not, and the Prospectus at the Time of
Purchase will not, contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
the Company makes no warranty or representation to the Underwriters
with respect to any statements or omissions made in the Registration
Statement, the Basic Prospectus or the Prospectus in reliance upon and
in conformity with information furnished in writing to the Company by,
or through the Representative on behalf of, any Underwriter expressly
for use in the Registration Statement, the Basic Prospectus or
Prospectus, or to any statements in or omissions from that part of the
Registration Statement that shall constitute the Statement of
Eligibility under the Trust Indenture Act of 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 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 Public
Utility Holding Company Act of 1935, as amended; (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.
(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 present fairly the information shown therein and have 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 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 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 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 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 debt securities under consideration
for possible downgrade.
If the Representative elects to terminate this Agreement, as provided in
this Section 9, the Representative will promptly notify the Company by telephone
or by telex or facsimile transmission, confirmed in writing. If this Agreement
shall not be carried out by any Underwriter for any reason permitted hereunder,
or if the sale of the 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 UBS Warburg LLC, 299
Park Avenue, New York, New York 10171, Attention: David Mikula (fax
212/821-2467) and at BNP Paribas Securities Corp., 787 Seventh Avenue, New York,
New York 10019, Attention: Paul Lange (fax 212/841-3158, and, if to the Company,
to Indiana Michigan Power Company, c/o American Electric Power Service
Corporation, 1 Riverside Plaza, Columbus, Ohio 43215, Attention: A. A. Pena,
Treasurer, (fax 614/223-1687).
11. Parties in Interest: The agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Company (including the
directors thereof and such of the officers thereof as shall have signed the
Registration Statement), the controlling persons, if any, referred to in Section
7 hereof, and their respective successors, assigns, executors and
administrators, and, except as expressly otherwise provided in Section 8 hereof,
no other person shall acquire or have any right under or by the virtue of this
Agreement.
12. Definition of Certain Terms: If there be two or more persons, firms or
corporations named in Exhibit 1 hereto, the term "Underwriters", as used herein,
shall be deemed to mean the several persons, firms or corporations, so named
(including the Representative herein mentioned, if so named) and any party or
parties substituted pursuant to Section 8 hereof, and the term "Representative",
as used herein, shall be deemed to mean the representative or representatives
designated by, or in the manner authorized by, the Underwriters. All obligations
of the Underwriters hereunder are several and not joint. If there shall be only
one person, firm or corporation named in Exhibit 1 hereto, the term
"Underwriters" and the term "Representative", as used herein, shall mean such
person, firm or corporation. The term "successors" as used in this Agreement
shall not include any purchaser, as such purchaser, of any of the 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 Indiana
Utility Regulatory Commission 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.
INDIANA MICHIGAN POWER COMPANY
By: /s/ Geoffrey S. Chatas
Assistant Treasurer
BNP Paribas Securities Corp.
By: /s/ Douglas Cook
Name: Douglas Cook
Title: Managing Director
UBS Warburg LLC
By: /s/ Christopher Forshner /s/ Ryan Donovan
Name: ChristopherForshner Ryan Donovan
Title: Executive Director Associate Director
as Representatives and on behalf of
the Underwriters named in Exhibit 1 hereto
EXHIBIT 1
Name Principal Amount
BNP Paribas Securities Corp............................$ 45,000,000
UBS Warburg LLC......................................... 45,000,000
Credit Lyonnais Securities (USA) Inc.................... 10,000,000
------------
$100,000,000
Exhibit 4(a)
November 22, 2002
Company Order and Officers' Certificate
6.375% Senior Notes, Series E, due 2012
The Bank of New York, as Trustee
101 Barclay St. - 8W
New York, New York 10286
Ladies and Gentlemen:
Pursuant to Article Two of the Indenture, dated as of October 1, 1998 (as it may
be amended or supplemented, the "Indenture"), from Indiana Michigan Power
Company (the "Company") to The Bank of New York, as trustee (the "Trustee"), and
the Board Resolutions dated January 24, 2001, 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 6.375% Senior Notes, Series E, due 2012 (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 of the
Indenture;
(ii) the date on which the principal of the Notes shall be payable
shall be November 1, 2012;
(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 the first Interest Payment Date shall be May 1, 2003 and
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
6.375% 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 25
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 "6.375% Senior Notes, Series E,
due 2012";
(viii) the form of the Notes shall be as set forth in Paragraph 1,
above;
(ix) not applicable;
(x) the Notes may 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) Limitations on Liens:
So long as any of the Notes are outstanding, the Company will not
create or suffer to be created or to exist any additional mortgage, pledge,
security interest, or other lien (collectively "Liens") on any of the
Company's utility properties or tangible assets now owned or hereafter
acquired to secure any indebtedness for borrowed money ("Secured Debt"),
without providing that such senior notes will be similarly secured. This
restriction does not apply to the Company's subsidiaries nor will it
prevent any of them from creating or permitting to exist Liens on their
property or assets to secure any Secured Debt. Further, this restriction on
Secured Debt does not apply to the Company's existing first mortgage bonds
that have previously been issued under its mortgage indenture or any
indenture supplemental thereto; provided that this restriction will apply
to future issuances thereunder (other than issuances of refunding first
mortgage bonds). In addition, this restriction does not prevent the
creation or existence of:
- Liens on property existing at the time of acquisition or construction
of such property (or created within one year after completion of such
acquisition or construction), whether by purchase, merger,
construction or otherwise, or to secure the payment of all or any part
of the purchase price or construction cost thereof, including the
extension of any Liens to repairs, renewals, replacements
substitutions, betterments, additions, extensions and improvements
then or thereafter made on the property subject thereto;
- Financing of the Company's accounts receivable for electric service;
- Any extensions, renewals or replacements (or successive extensions,
renewals or replacements), in whole or in part, of liens permitted by
the foregoing clauses; and
- The pledge of any bonds or other securities at any time issued under
any of the Secured Debt permitted by the above clauses.
In addition to the permitted issuances above, Secured Debt not otherwise so
permitted may be issued in an amount that does not exceed 15% of Net Tangible
Assets as defined below.
"Net Tangible Assets" means the total of all assets (including revaluations
thereof as a result of commercial appraisals, price level restatement or
otherwise) appearing on the Company's balance sheet, net of applicable reserves
and deductions, but excluding goodwill, trade names, trademarks, patents,
unamortized debt discount and all other like intangible assets (which term shall
not be construed to include such revaluations), less the aggregate of the
Company's current liabilities appearing on such balance sheet.
This restriction also will not apply to or prevent the creation or
existence of leases (operating or capital) made, or existing on property
acquired, in the ordinary course of business.
3. You are hereby requested to authenticate $100,000,000 aggregate
principal amount of 6.375% Senior Notes, Series E, due 2012, 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 November 20, 2002, 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 Geoffrey S. Chatas and Thomas G. Berkemeyer, the
Assistant 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,
INDIANA MICHIGAN POWER COMPANY
By: /s/ Armando A. Pena
Treasurer
And /s/ Thomas G. Berkemeyer
Assistant Secretary
Acknowledged by Trustee:
By: /s/ Joseph A. Lloret
Authorized Signatory
EXHIBIT 1 to Exhibit 4(a)
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
INDIANA MICHIGAN POWER COMPANY
6.375% Senior Notes, Series E, due 2012
CUSIP: 454889 AH 9 Original Issue Date: November 22, 2002
Stated Maturity: November 1, 2012 Interest Rate: 6.375%
Principal Amount: $100,000,000
Redeemable: Yes X No
In Whole: Yes X No
In Part: Yes X No
INDIANA MICHIGAN POWER COMPANY, a corporation duly organized and existing
under the laws of the State of Indiana (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 on May 1, 2003, 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
Security 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 October 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 25 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, (1)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as 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 (2) 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.
As described in the Company Order and Officers' Certificate, so long as
this Note is outstanding, the Company is subject to a limitation on Liens as
described 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.
INDIANA MICHIGAN POWER COMPANY
By: ___________________________
Vice President
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 November 22, 2002
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)
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(PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
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ASSIGNEE) the within Note and all rights thereunder, hereby
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irrevocably constituting and appointing such person attorney to
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transfer such Note on the books of the Issuer, with full
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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(a)
November 22, 2002
Indiana Michigan Power Company
1 Riverside Plaza
Columbus, Ohio 43215
Ladies and Gentlemen:
We have acted as counsel to Indiana Michigan Power Company, an Indiana
corporation (the "Company"), in connection with the Registration Statement on
Form S-3 (Registration Statement No. 333-58656) (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 $150,000,000 aggregate principal amount of Senior Notes, Series D, due 2032
and $100,000,000 aggregate principal amount of Senior Notes, Series E, due 2012
of the Company (collectively, the "Senior Notes") issued under an Indenture,
dated as of October 1, 1998 (the "Indenture"), between the Company and The Bank
of New York, as Trustee (the "Trustee").
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 Indiana.
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 Indenture and the Unsecured Notes do not and will not violate the
laws of Indiana 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 the due authentication of the
Senior Notes by the Trustee, the Senior Notes 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 hereby consent to the filing of this opinion letter as Exhibit 5(a) 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