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 (Date of earliest event reported) November 10, 2004
INDIANA MICHIGAN POWER COMPANY
(Exact Name of Registrant as Specified in Its Charter)
Indiana
(State or Other Jurisdiction of Incorporation)
1-3570 35-0410455
(Commission File Number) (IRS Employer Identification No.)
1 Riverside Plaza, Columbus,OH 43215
(Address of Principal Executive Offices) (Zip Code)
614-716-1000
(Registrant's Telephone Number, Including Area Code)
________________________________________________________________________________
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 8.01. Other Events
On November 10, 2004, Indiana Michigan Power Company (the "Company")
entered into an Underwriting Agreement with ABN AMRO Incorporated and Barclays
Capital Inc., as representatives of the underwriters named therein, relating to
the offering and sale by the Company of $175,000,000 of its 5.05% Senior Notes,
Series F, due 2014 (the "Notes").
Item 9.01. Financial Statements and Exhibits
(c) Exhibits
1(a) Underwriting Agreement, dated November 10, 2004, between the Company
and ABN AMRO Incorporated and Barclays Capital Inc., 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, between the Company and
The Bank of New York, as trustee, dated November 16, 2004,
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 LLP 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
Name: Thomas G. Berkemeyer
Title: Assistant Secretary
November 16, 2004
EXHIBIT INDEX
Exhibit No. Description
1(a) Underwriting Agreement, dated November 10, 2004, between
the Company and ABN AMRO Incorporated and Barclays
Capital Inc., 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, between the
Company and The Bank of New York, as trustee, dated
November 16, 2004, 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 LLP regarding the
legality of the Notes.
Exhibit 1(a)
INDIANA MICHIGAN POWER COMPANY
Underwriting Agreement
Dated November 10, 2004
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 $175,000,000 principal
amount of its 5.05% Senior Notes, Series F, due 2014 (the 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.
333-108975) and a prospectus relating to $400,000,000 principal amount of its
Unsecured Notes and such registration statement has become effective; and
WHEREAS, such registration statement, including the financial statements,
the documents incorporated or deemed incorporated therein by reference, and the
exhibits thereto, being herein called the Registration Statement, and the
prospectus, including the documents incorporated or deemed incorporated therein
by reference, constituting a part of such Registration Statement, as it may be
last amended or supplemented prior to the effectiveness of this Agreement, but
excluding any amendment or supplement relating solely to securities other than
the Notes, being herein called the Basic Prospectus, and the Basic Prospectus,
as supplemented by a prospectus supplement (the Prospectus Supplement) to
include information relating to the Notes, including the names of the
Underwriters, the price and terms of the offering, the interest rate, maturity
date and certain other information relating to the Notes, which will be filed
with the Commission pursuant to Rule 424(b) of the Commission's General Rules
and Regulations under the Act (the Rules), including all documents then
incorporated or deemed to have been incorporated therein by reference, being
herein called the Prospectus.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, it is agreed between the parties as follows:
1. Purchase and Sale: Upon the basis of the warranties and representations
and on the terms and subject to the conditions herein set forth, the Company
agrees to sell to the respective Underwriters named in Exhibit 1 hereto,
severally and not jointly, and the respective Underwriters, severally and not
jointly, agree to purchase from the Company, the respective principal amounts of
the Notes set opposite their names in Exhibit 1 hereto, together aggregating all
of the Notes, at a price equal to 98.986% of the principal amount thereof.
2. Payment and Delivery: Payment for the Notes shall be made to the
Company in immediately available funds or in such other manner as the Company
and the Representative shall mutually agree upon in writing, upon the delivery
of the Notes to the Representative for the respective accounts of the
Underwriters against receipt therefor signed by the Representative on behalf of
itself and for the other Underwriters. Such delivery shall be made at 10:00
A.M., New York Time, on November 16, 2004 (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
LLP, 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 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
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 LLP 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; and
(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 dated the day of the Time of Purchase in
form and substance satisfactory to the Representative (i)
confirming that with respect to the Company they are an
independent registered public accounting firm within the
meaning of the Act, and the applicable published rules and
regulations of the Commission thereunder, (ii) stating that in
their opinion the consolidated financial statements audited by
them and included or incorporated by reference in the
Registration Statement complied as to form in all material
respects with the then applicable accounting requirements of
the Commission, including the applicable published rules and
regulations of the Commission and (iii) covering as of a date
not more than five business days prior to the day of the Time
of Purchase such other matters as the Representative
reasonably requests.
(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
Notes) relating to the Notes and no document which would be
deemed incorporated in the Prospectus by reference filed
subsequent to the date hereof and prior to the Time of
Purchase shall contain material information substantially
different from that contained in the Registration Statement
which is unsatisfactory in substance to the Representative or
unsatisfactory in form to 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 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 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
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 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 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 Notes by the respective Underwriters) in
connection with the issuance and delivery of the Notes, except
that the Company shall be required to pay the fees and
disbursements (other than disbursements referred to in
paragraph (f) of this Section 4) of counsel to the
Underwriters, only in the events provided in paragraph (h) of
this Section 4 and paragraph (a) of Section 7, the
Underwriters hereby agreeing to pay such fees and
disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes
due to the failure of the Company to comply with any of the
conditions specified in Section 3 hereof, or, if this
Agreement shall be terminated in accordance with the
provisions of Section 8 or 9 hereof, to pay the fees and
disbursements of Dewey Ballantine LLP, counsel to the
Underwriters, and, if the Underwriters shall not take up and
pay for the Notes due to the failure of the Company to comply
with any of the conditions specified in Section 3 hereof, to
reimburse the Underwriters for their reasonable out-of-pocket
expenses, in an aggregate amount not exceeding a total of
$10,000, incurred in connection with the financing
contemplated by this Agreement.
(i) To timely file any certificate required by Rule 52 under the
Public Utility Holding Company Act of 1935, as amended (1935
Act) in connection with the sale of the Notes.
(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 Notes ceases, as
determined by the Representative in its sole discretion, and
(ii) the date which is 30 days after the Time of Purchase, the
Company agrees not to offer, sell, contract to sell or
otherwise dispose of any Notes of the Company or any
substantially similar securities of the Company without the
consent of the Representative.
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 (Trust Indenture Act),
and the rules and regulations of the Commission, the Basic
Prospectus on the date of this Agreement and the Prospectus
when first filed in accordance with Rule 424(b) under the Act
do not, and the Prospectus at the Time of Purchase will not,
contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
except that the Company makes no warranty or representation to
the Underwriters with respect to any statements or omissions
made in the Registration Statement, the Basic Prospectus or
the Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by, or
through the Representative on behalf of, any Underwriter
expressly for use in the Registration Statement, the Basic
Prospectus or Prospectus, or to any statements in or omissions
from that part of the Registration Statement that shall
constitute the Statement of Eligibility under the Trust
Indenture Act of any indenture trustee under an indenture of
the Company.
(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, and, when executed and delivered by the Trustee
and the Company, will constitute a legal, valid and binding
instrument enforceable against the Company in accordance with
its terms and such Notes will have been duly authorized,
executed, authenticated and, when paid for by the purchasers
thereof, will constitute legal, valid and binding obligations
of the Company entitled to the benefits of the Indenture,
except as the enforceability thereof may be limited by
bankruptcy, insolvency, or other similar laws affecting the
enforcement of creditors' rights in general, and except as the
availability of the remedy of specific performance is subject
to general principles of equity (regardless of whether such
remedy is sought in a proceeding in equity or at law), and by
an implied covenant of good faith and fair dealing.
(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 Notes or the
transactions by the Company contemplated in this Agreement,
except (A) such as may be required under the 1933 Act or the
rules and regulations thereunder; (B) such as may be required
under the 1935 Act, as amended; (C) the qualification of the
Indenture under the Trust Indenture Act; (D) the approval of
the 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 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 Notes hereunder.
6. Warranties of Underwriters: Each Underwriter warrants and represents
that the information furnished in writing to the Company through the
Representative for use in the Registration Statement, in the Basic Prospectus,
in the Prospectus, or in the Prospectus as amended or supplemented is correct as
to such Underwriter. The warranties and representations of such Underwriter
contained in this Agreement shall remain in full force and effect regardless of
any investigation made by or on behalf of the Company or other person, and shall
survive the delivery of and payment for the Notes hereunder.
7. Indemnification and Contribution:
(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 Notes (provided
that if such Prospectus or such Prospectus, as amended or
supplemented, is used after the period of time referred to in
Section 4(b) hereof, it shall contain such amendments or
supplements as the Company deems necessary to comply with
Section 10(a) of the Act), or arise out of or are based upon
any alleged omission or omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or actions arise out of
or are based upon any such alleged untrue statement or
omission, or untrue statement or omission which was made in
the Registration Statement, in the Basic Prospectus or in the
Prospectus, or in the Prospectus as so amended or
supplemented, in reliance upon and in conformity with
information furnished in writing to the Company by or
through the Representative expressly for use therein or with
any statements in or omissions from that part of the
Registration Statement that shall constitute the Statement of
Eligibility under the Trust Indenture Act of any indenture
trustee under an indenture of the Company, and except that
this indemnity shall not inure to your benefit (or of any
person controlling you) on account of any losses, claims,
damages, liabilities or actions arising from the sale of the
Notes to any person if such loss arises from the fact that a
copy of the Prospectus, as the same may then be supplemented
or amended to the extent such Prospectus was provided to you
by the Company (excluding, however, any document then
incorporated or deemed incorporated therein by reference), was
not sent or given by you to such person with or prior to the
written confirmation of the sale involved and the alleged
omission or alleged untrue statement or omission or untrue
statement was corrected in the Prospectus as supplemented or
amended at the time of such confirmation, and such
Prospectus, as amended or supplemented, was timely delivered
to you by the Company. You agree promptly after the receipt by
you of written notice of the commencement of any action in
respect to which indemnity from the Company on account of its
agreement contained in this Section 7(a) may be sought by you,
or by any person controlling you, to notify the Company in
writing of the commencement thereof, but your omission so to
notify the Company of any such action shall not release the
Company from any liability which it may have to you or to such
controlling person otherwise than on account of the indemnity
agreement contained in this Section 7(a). In case any such
action shall be brought against you or any such person
controlling you and you shall notify the Company of the
commencement thereof, as above provided, the Company shall be
entitled to participate in, and, to the extent that it shall
wish, including the selection of counsel (such counsel to be
reasonably acceptable to the indemnified party), to direct the
defense thereof at its own expense. In case the Company elects
to direct such defense and select such counsel (hereinafter,
Company's counsel), you or any controlling person shall have
the right to employ your own counsel, but, in any such case,
the fees and expenses of such counsel shall be at your expense
unless (i) the Company has agreed in writing to pay such fees
and expenses or (ii) the named parties to any such action
(including any impleaded parties) include both you or any
controlling person and the Company and you or any controlling
person shall have been advised by your counsel that a
conflict of interest between the Company and you or any
controlling person may arise (and the Company's counsel shall
have concurred in good faith with such advice) and for this
reason it is not desirable for the Company's counsel to
represent both the indemnifying party and the indemnified
party (it being understood, however, that the Company shall
not, in connection with any one such action or separate but
substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses
of more than one separate firm of attorneys for you or any
controlling person (plus any local counsel retained by you or
any controlling person in their reasonable judgment), which
firm (or firms) shall be designated in writing by you or any
controlling person).
(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 Notes realized,
the relative knowledge and access to information concerning
the matter with respect to which the claim was asserted, the
opportunity to correct and prevent any statement or omission,
and any equitable considerations appropriate under the
circumstances. The Company and the Underwriters agree that it
would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose)
without reference to the considerations called for in the
previous sentence. No Underwriter or any person controlling
such Underwriter shall be obligated to contribute any amount
or amounts hereunder which in the aggregate exceeds the total
price of the Notes purchased by such Underwriter under this
Agreement, less the aggregate amount of any damages which such
Underwriter and its controlling persons have otherwise been
required to pay in respect of the same claim or any
substantially similar claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. An
Underwriter's obligation to contribute under this Section 7 is
in proportion to its purchase obligation and not joint with
any other Underwriter.
(d) No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or
any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be
sought under this Section 7 (whether or not the indemnified
parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all
liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act
by or on behalf of such indemnified party.
(e) In no event shall any indemnifying party have any liability or
responsibility in respect of the settlement or compromise of,
or consent to the entry of any judgment with respect to, any
pending or threatened action or claim effected without its
prior written consent.
The agreements contained in this Section 7 hereof shall remain in full
force and effect regardless of any investigation made by or on behalf of any
person, and shall survive the delivery of and payment for the Notes hereunder.
8. Default of Underwriters: If any Underwriter under this Agreement shall
fail or refuse (otherwise than for some reason sufficient to justify, in
accordance with the terms hereof, the cancellation or termination of its
obligations hereunder) to purchase and pay for the principal amount of Notes
which it has agreed to purchase and pay for hereunder, and the aggregate
principal amount of Notes which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate principal amount of Notes, the other Underwriters shall be obligated
severally in the proportions which the amounts of Notes set forth opposite their
names in Exhibit 1 hereto bear to the aggregate principal amount of Notes set
forth opposite the names of all such non-defaulting Underwriters, to purchase
the Notes which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on the terms set forth herein; provided that in no event
shall the principal amount of Notes which any Underwriter has agreed to purchase
pursuant to Section 1 hereof be increased pursuant to this Section 8 by an
amount in excess of one-ninth of such principal amount of Notes without the
written consent of such Underwriter. If any Underwriter or Underwriters shall
fail or refuse to purchase Notes and the aggregate principal amount of Notes
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Notes then this Agreement shall terminate without
liability on the part of any non-defaulting Underwriters; provided, however,
that the non-defaulting Underwriters may agree, in their sole discretion, to
purchase the Notes which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on the terms set forth herein. In the event of any
such termination, the Company shall not be under any liability to any
Underwriter (except to the extent, if any, provided in Section 4(h) hereof), nor
shall any Underwriter (other than an Underwriter who shall have failed or
refused to purchase the Notes without some reason sufficient to justify, in
accordance with the terms hereof, its termination of its obligations hereunder)
be under any liability to the Company or any other Underwriter.
Nothing herein contained shall release any defaulting Underwriter from its
liability to the Company or any non-defaulting Underwriter for damages
occasioned by its default hereunder.
9. Termination of Agreement by the Underwriters: This Agreement may be
terminated at any time prior to the Time of Purchase by the Representative if,
after the execution and delivery of this Agreement and prior to the Time of
Purchase, in the Representative's reasonable judgment, the Underwriters' ability
to market the Notes shall have been materially adversely affected because:
(i) 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 further downgrade.
If the Representative elects to terminate this Agreement, as
provided in this Section 9, the Representative will promptly notify the Company
by telephone or by telex or facsimile transmission, confirmed in writing. If
this Agreement shall not be carried out by any Underwriter for any reason
permitted hereunder, or if the sale of the Notes to the Underwriters as herein
contemplated shall not be carried out because the Company is not able to comply
with the terms hereof, the Company shall not be under any obligation under this
Agreement and shall not be liable to any Underwriter or to any member of any
selling group for the loss of anticipated profits from the transactions
contemplated by this Agreement (except that the Company shall remain liable to
the extent provided in Section 4(h) hereof) and the Underwriters shall be under
no liability to the Company nor be under any liability under this Agreement to
one another.
10. Notices: All notices hereunder shall, unless otherwise expressly
provided, be in writing and be delivered at or mailed to the following addresses
or by telex or facsimile transmission confirmed in writing to the following
addresses: if to the Underwriters, to the Representative at ABN AMRO
Incorporated, 55 East 52nd Street, New York, New York 10055, Attention:
Syndicate Desk (fax 212/409-7324) and at Barclays Capital Inc., 200 Park Avenue,
New York, New York 10166, Attention: Fixed Income Syndicate (fax 212/412-7305);
and, if to the Company, to Indiana Michigan Power Company, c/o American Electric
Power Service Corporation, 1 Riverside Plaza, Columbus, OH 43215, Attention:
General Counsel (fax 614/716-1687).
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 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/ Stephen P. Smith______
Stephen P. Smith
Treasurer
ABN AMRO INCORPORATED
BARCLAYS CAPITAL INC.
as Representatives
and on behalf of the Underwriters
named in Exhibit 1 hereto
ABN AMRO INCORPORATED
By:_/s/ David Joo______________
Title: Vice President__________
BARCLAYS CAPITAL INC.
By:_/s/ Pamela Kendall_________
Title: Director_______________
EXHIBIT 1
Principal Amount
Underwriter of Notes
ABN AMRO Incorporated....................................... $ 78,750,000
Barclays Capital Inc........................................ $ 78,750,000
BNP Paribas Securities Corp................................. $ 8,750,000
Greenwich Capital Markets, Inc.............................. $ 8,750,000
--------------
$ 175,000,000
Exhibit 4(a)
November 16, 2004
Company Order and Officers' Certificate
5.05% Senior Notes, Series F, due 2014
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 22, 2003, 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 5.05% Senior Notes, Series F, due 2014 (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
$175,000,000, 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 15, 2014;
(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 15 and November 15, and the Regular Record Date for the
determination of holders to whom interest is payable on any such Interest
Payment Date shall be the fifteenth day prior to the relevant Interest
Payment Date; provided that the first Interest Payment Date shall be May
15, 2005 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 5.05% per annum;
(v) the Notes shall be redeemable at the option of the Company,
in whole at any time or in part from time to time, upon not less than
thirty but not more than sixty days' previous notice given by mail to the
registered owners of the Notes at a redemption price equal to the greater
of (i) 100% of the principal amount of the Notes being redeemed and (ii)
the sum of the present values of the remaining scheduled payments of
principal and interest on the Notes being redeemed (excluding the portion
of any such interest accrued to the date of redemption) discounted (for
purposes of determining present value) to the redemption date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate (as defined below) plus 20 basis points,
plus, in each case, accrued interest thereon to the date of redemption.
"Treasury Rate" means, with respect to any redemption date, the rate per annum
equal to the semi-annual equivalent yield to maturity of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
"Comparable Treasury Issue" means the United States Treasury security selected
by an Independent Investment Banker as having a maturity comparable to the
remaining term of the Notes that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of the
Notes.
"Comparable Treasury Price" means, with respect to any redemption date, (i) the
average of the bid and asked prices for the Comparable Treasury Issue (expressed
in each case a percentage of its principal amount) on the third Business Day
preceding such redemption date, as set forth in the daily statistical release
(or any successor release) published by the Federal Reserve Bank of New York and
designated "Composite 3:30 p.m. Quotations for U. S. Government Securities" or
(ii) if such release (or any successor release) is not published or does not
contain such prices on such third Business Day, the Reference Treasury Dealer
Quotation for such redemption date.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Company and reasonably acceptable to the Trustee.
"Reference Treasury Dealer" means a primary U.S. government securities dealer in
New York City selected by the Company and reasonably acceptable to the Trustee.
"Reference Treasury Dealer Quotation" means, with respect to the Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at or before 5:00 p.m.,
New York City time, on the third Business Day preceding such redemption date.
(vi) (a) the Notes shall be issued in the form of a Global Note; (b)
the Depositary for such Global Note shall be The Depository Trust Company;
and (c) the procedures with respect to transfer and exchange of Global
Notes shall be as set forth in the form of Note attached hereto;
(vii) the title of the Notes shall be "5.05% Senior Notes,
Series F, due 2014";
(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
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:
o 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;
o Financing of the Company's accounts receivable for electric service;
o Any extensions, renewals or replacements (or successive extensions,
renewals or replacements), in whole or in part, of liens permitted by the
foregoing clauses; and
o 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. For purposes of
this definition, the Company's balance sheet does not include assets and
liabilities of its subsidiaries.
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 $175,000,000 aggregate
principal amount of 5.05% Senior Notes, Series F, due 2014, 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 Blanket Issuer Letter of Representations dated November 10,
2004, from the Company 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 Stephan T. Haynes 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/ Stephan T. Haynes____
Assistant Treasurer
And:_/s/ Thomas G. Berkemeyer_
Assistant Secretary
Acknowledged by Trustee:
By:_/s/ Van Brown_____________
Authorized Signatory
Exhibit 1
Unless this certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment, and any certificate
to be issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein. Except as otherwise provided
in Section 2.11 of the Indenture, this Security may be transferred, in whole but
not in part, only to another nominee of the Depository or to a successor
Depository or to a nominee of such successor Depository.
No. R1
INDIANA MICHIGAN POWER COMPANY
5.05% Senior Notes, Series F, due 2014
CUSIP: 454889 AK 2 Original Issue Date: November 16, 2004
Stated Maturity: November 15, 2014 Interest Rate: 5.05%
Principal Amount: $175,000,000
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 15 and November 15 in each year,
commencing on May 15, 2005, 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
fifteenth day (whether or not a Business Day) prior to 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 20 basis
points, plus, in each case, accrued interest thereon to the date of redemption.
"Treasury Rate" means, with respect to any redemption date, the rate per annum
equal to the semi-annual equivalent yield to maturity of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
"Comparable Treasury Issue" means the United States Treasury security selected
by an Independent Investment Banker as having a maturity comparable to the
remaining term of the Notes that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of the
Notes.
"Comparable Treasury Price" means, with respect to any redemption date, (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:___________________________
Assistant Treasurer
Attest:
By:___________________________
Assistant Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes designated in accordance
with, and referred to in, the within-mentioned Indenture.
Dated November 16, 2004
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 16, 2004
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. 333-108975) (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 $175,000,000 Senior Notes, Series F, due 2014 (the "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 corporate records, agreements, documents and other instruments
and have made such other investigations as we have deemed relevant and necessary
in connection with the opinions hereinafter set forth. As to questions of fact
material to this opinion, we have relied upon certificates or comparable
documents 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 Notes by the Trustee, the Notes will constitute valid and
legally binding obligations of the Company enforceable against the Company in
accordance with their terms, subject to the effects of (i) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, (ii) general
equitable principles (whether considered in a proceeding in equity or at law)
and (iii) an implied covenant of good faith and fair dealing.
We 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 LLP
SIMPSON THACHER & BARTLETT LLP