EXHIBIT 1(b)
INDIANA MICHIGAN POWER COMPANY
Underwriting Agreement
Dated ____________________
AGREEMENT made between INDIANA MICHIGAN POWER COMPANY, a corporation
organized and existing under the laws of the State of Indiana (the "Company"),
and the several persons, firms and corporations (the "Underwriters") named in
Exhibit 1 hereto.
WITNESSETH:
WHEREAS, the Company proposes to issue and sell $__________ principal
amount of its [Debt Securities] to be issued pursuant to the Indenture dated as
of _______________, 1998, between the Company and The Bank of New York, as
trustee (the "Trustee"), as heretofore supplemented and amended and as to be
further supplemented and amended (said Indenture as so supplemented being
hereafter referred to as the Indenture); and
WHEREAS, the Underwriters have designated the person signing this
Agreement (the Representative) to execute this Agreement on behalf of the
respective Underwriters and to act for the respective Underwriters in the manner
provided in this Agreement; and
WHEREAS, the Company has prepared and filed, in accordance with the
provisions of the Securities Act of 1933 (the Act), with the Securities and
Exchange Commission (the Commission), a registration statement and prospectus or
prospectuses relating to the [Debt Securities] and such registration statement
has become effective; and
WHEREAS, such registration statement, as it may have been amended to the
date hereof, including the financial statements, the documents incorporated or
deemed incorporated therein by reference and the exhibits, being herein called
the Registration Statement, and the prospectus, as included or referred to in
the Registration Statement to become effective, as it may be last amended or
supplemented prior to the effectiveness of the agreement (the Basic Prospectus),
and the Basic Prospectus, as supplemented by a prospectus supplement which
includes certain information relating to the Underwriters, the principal amount,
price and terms of offering, the interest rate and redemption prices of the
[Debt Securities], first filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) of the Commission's General Rules and Regulations under
the Act (the Rules), including all documents then incorporated or deemed to have
been incorporated therein by reference, being herein call the Prospectus.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, it is agreed between the parties as follows:
I. 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 [Debt Securities] set opposite their names in Exhibit 1 hereto, together
aggregating all of the [Debt Securities], at a price equal to ______% of the
principal amount thereof.
2. Payment and Delivery: Payment for the [Debt Securities] shall be made
to the Company or its order by certified or bank check or checks, payable in New
York Clearing House funds, at the office of Simpson Thacher & Bartlett, 425
Lexington Avenue, New York, New York 10017-3909, or at such other place as the
Company and the Representative shall mutually agree in writing, upon the
delivery of the [Debt Securities] to the Representative for the respective
accounts of the Underwriters against receipt therefor signed by the
Representative on behalf of itself and for the other Underwriters. Such payments
and delivery shall be made at 10:00 A.M., New York Time, on _______________ (or
on such later business day, not more than five business days subsequent to such
day, as may be mutually agreed upon by the Company and the Underwriters), unless
postponed in accordance with the provisions of Section 7 hereof. The time at
which payment and delivery are to be made is herein called the Time of Purchase.
[The delivery of the [Debt Securities] 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 [Debt
Securities] shall be satisfactory in form and substance to Dewey
Ballantine LLP, counsel to the Underwriters.
(b) That, at the Time of Purchase, the Representative
shall be furnished with the following opinions,
dated the day of the Time of Purchase, with
conformed copies or signed counterparts thereof
for the other Underwriters, with such changes
therein as may be agreed upon by the Company and
the Representative with the approval of Dewey
Ballantine LLP, counsel to the Underwriters:
(1) Opinion of Simpson Thacher & Bartlett and any
of John F. Di Lorenzo, Jr., Esq., Thomas G.
Berkemeyer, Esq., Ann B. Graf, Esq., or David
C. House, Esq., counsel to the Company,
substantially in the forms attached hereto as
Exhibits A and B; and
(2) Opinion of Dewey Ballantine LLP, counsel to the
Underwriters, substantially in the form attached hereto as
Exhibit C.
(c) That the Representative shall have received a
letter from Deloitte & Touche LLP in form and
substance satisfactory to the Representative,
dated as of the day of the Time of Purchase, (i)
confirming that they are independent public
accountants within the meaning of the Act and the
applicable published rules and regulations of the
Commission thereunder, (ii) stating that in their
opinion the financial statements audited by them
and included or incorporated by reference in the
Registration Statement complied as to form in all
material respects with the then applicable
accounting requirements of the Commission,
including the applicable published rules and
regulations of the Commission and (iii) covering
as of a date not more than five business days
prior to the day of the Time of Purchase such
other matters as the Representative reasonably
requests.
(d) That no amendment to the Registration Statement
and that no prospectus or prospectus supplement of
the Company relating to the [Debt Securities] 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 Public Utilities Commission of Ohio,
necessary to permit the sale of the [Debt
Securities] to the Underwriters, shall be in
effect; and that, prior to the Time of Purchase,
no stop order with respect to the effectiveness of
the Registration Statement shall have been issued
under the Act by the Commission or proceedings
therefor initiated.
(f) That, at the Time of Purchase, there shall not
have been any material adverse change in the
business, properties or financial condition of the
Company from that set forth in the Prospectus
(other than changes referred to in or contemplated
by the Prospectus), and that the Company shall, at
the Time of Purchase, have delivered to the
Representative a certificate of an executive
officer of the Company to the effect that, to the
best of his knowledge, information and belief,
there has been no such change.
(g) That the Company shall have performed such of its obligations
under this Agreement as are to be performed at or before the
Time of Purchase by the terms hereof.
4. Certain Covenants of the Company: In further consideration of the
agreements of the Underwriters herein contained, the Company covenants as
follows:
(a) As soon as practicable, and in any event within
the time prescribed by Rule 424 under the Act, to
file any Prospectus Supplement relating to the
[Debt Securities] with the Commission; as soon as
the Company is advised thereof, to advise the
Representative and confirm the advice in writing
of any request made by the Commission for
amendments to the Registration Statement or the
Prospectus or for additional information with
respect thereto or of the entry of a stop order
suspending the effectiveness of the Registration
Statement or of the initiation or threat of any
proceedings for that purpose and, if such a stop
order should be entered by the Commission, to make
every reasonable effort to obtain the prompt
lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as
soon as practicable (and in any event within 24
hours after the date hereof), and from time to
time thereafter during such period of time (not
exceeding nine months) after the date hereof as
they are required by law to deliver a prospectus,
as many copies of the Prospectus (as supplemented
or amended if the Company shall have made any
supplements or amendments thereto) as the
Representative may reasonably request; and in case
any Underwriter is required to deliver a
prospectus after the expiration of nine months
after the date hereof, to furnish to any
Underwriter, upon request, at the expense of such
Underwriter, a reasonable quantity of a
supplemental prospectus or of supplements to the
Prospectus complying with Section 10(a)(3) of the
Act.
(c) To furnish to the Representative a copy, certified
by the Secretary or an Assistant Secretary of the
Company, of the Registration Statement as
initially filed with the Commission and of all
amendments thereto (exclusive of exhibits), and,
upon request, to furnish to the Representative
sufficient plain copies thereof (exclusive of
exhibits) for distribution of one to the other
Underwriters.
(d) For such period of time (not exceeding nine
months) after the date hereof as they are required
by law to deliver a prospectus, if any event shall
have occurred as a result of which it is necessary
to amend or supplement the Prospectus in order to
make the statements therein, in the light of the
circumstances when the Prospectus is delivered to
a purchaser, not contain any untrue statement of a
material fact or not omit to state any material
fact required to be stated therein or necessary in
order to make the statements therein not
misleading, forthwith to prepare and furnish, at
its own expense, to the Underwriters and to
dealers (whose names and addresses are furnished
to the Company by the Representative) to whom
principal amounts of the [Debt Securities] 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 [Debt
Securities] 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 [Debt Securities]
by the respective Underwriters) in connection with
the issuance and delivery of the [Debt
Securities], except that the Company shall be
required to pay the fees and disbursements (other
than disbursements referred to in paragraph (f) of
this Section 4) of Dewey Ballantine LLP, counsel
to the Underwriters, only in the events provided
in paragraph (h) of this Section 4, the
Underwriters hereby agreeing to pay such fees and
disbursements in any other event.
(h) If the Underwriters shall not take up and pay for
the [Debt Securities] due to the failure of the
Company to comply with any of the conditions
specified in Section 3 hereof, or, if this
Agreement shall be terminated in accordance with
the provisions of Section 7 or 8 hereof, to pay
the fees and disbursements of Dewey Ballantine
LLP, counsel to the Underwriters, and, if the
Underwriters shall not take up and pay for the
[Debt Securities] 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 [Debt Securities].
[(j) The Company will use its best efforts to list, subject to notice
of issuance, the [Debt Securities] on the New York Stock
Exchange.]
[(k) During the period from the date hereof and continuing to and
including the earlier of (i) the date which is after the Time of
Purchase on which the distribution of the [Debt Securities]
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 [Debt Securities] of the
Company or any substantially similar securities of the Company
without the consent of the Representative.]
5. Warranties of and Indemnity by the Company: The Company represents and
warrants to, and agrees with you, as set forth below:
(a) the Registration Statement on its effective date
complied, or was deemed to comply, with the
applicable provisions of the Act and the rules and
regulations of the Commission and the Registration
Statement at its effective date did not, and at
the Time of Purchase will not, contain any untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, and the Basic Prospectus at the time
that the Registration Statement became effective,
and the Prospectus when first filed in accordance
with Rule 424(b) complies, and at the Time of
Purchase the Prospectus will comply, with the
applicable provisions of the Act and the Trust
Indenture Act of 1939, as amended, and the rules
and regulations of the Commission, the Basic
Prospectus at the time that the Registration
Statement became effective, and the Prospectus
when first filed in accordance with Rule 424(b)
did not, and the Prospectus at the Time of
Purchase will not, contain any untrue statement of
a material fact or omit to state a material fact
required to be stated therein or necessary to make
the statements therein, in the light of the
circumstances under which they were made, not
misleading, except that the Company makes no
warranty or representation to the Underwriters
with respect to any statements or omissions made
in the Registration Statement or Prospectus in
reliance upon and in conformity with information
furnished in writing to the Company by, or through
the Representative on behalf of, any Underwriter
expressly for use in the Registration Statement,
the Basic Prospectus or Prospectus, or to any
statements in or omissions from that part of the
Registration Statement that shall constitute the
Statement of Eligibility under the Trust Indenture
Act of 1939 of any indenture trustee under an
indenture of the Company.
(b) As of the Time of Purchase, the Indenture will
have been duly authorized by the Company and duly
qualified under the Trust Indenture Act of 1939,
as amended, and, when executed and delivered by
the Trustee and the Company, will constitute a
legal, valid and binding instrument enforceable
against the Company in accordance with its terms
and such [Debt Securities] will have been duly
authorized, executed, authenticated and, when paid
for by the purchasers thereof, will constitute
legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture,
except as the enforceability thereof may be
limited by bankruptcy, insolvency, or other
similar laws affecting the enforcement of
creditors' rights in general, and except as the
availability of the remedy of specific performance
is subject to general principles of equity
(regardless of whether such remedy is sought in a
proceeding in equity or at law), and by an implied
covenant of good faith and fair dealing.
(c) To the extent permitted by law, to indemnify and
hold you harmless and each person, if any, who
controls you within the meaning of Section 15 of
the Act, against any and all losses, claims,
damages or liabilities, joint or several, to which
you, they or any of you or them may become subject
under the Act or otherwise, and to reimburse you
and such controlling person or persons, if any,
for any legal or other expenses incurred by you or
them in connection with defending any action,
insofar as such losses, claims, damages,
liabilities or actions arise out of or are based
upon any alleged untrue statement or untrue
statement of a material fact contained in the
Registration Statement, in the Basic Prospectus,
or in the Prospectus, or if the Company shall
furnish or cause to be furnished to you any
amendments or any supplemental information, in the
Prospectus as so amended or supplemented other
than amendments or supplements relating solely to
securities other than the Notes (provided that if
such Prospectus or such Prospectus, as amended or
supplemented, is used after the period of time
referred to in Section 4(b) hereof, it shall
contain such amendments or supplements as the
Company deems necessary to comply with Section
10(a) of the Act), or arise out of or are based
upon any alleged omission or omission to state
therein a material fact required to be stated
therein or necessary to make the statements
therein not misleading, except insofar as such
losses, claims, damages, liabilities or actions
arise out of or are based upon any such alleged
untrue statement or omission, or untrue statement
or omission which was made in the Registration
Statement, in the Basic Prospectus or in the
Prospectus, or in the Prospectus as so amended or
supplemented, in reliance upon and in conformity
with information furnished in writing to the
Company by or through you expressly for use
therein or with any statements in or omissions
from that part of the Registration Statement that
shall constitute the Statement of Eligibility
under the Trust Indenture Act, of any indenture
trustee under an indenture of the Company, and
except that this indemnity shall not inure to your
benefit (or of any person controlling you) on
account of any losses, claims, damages,
liabilities or actions arising from the sale of
the Notes to any person if such loss arises from
the fact that a copy of the Prospectus, as the
same may then be supplemented or amended to the
extent such Prospectus was provided to you by the
Company (excluding, however, any document then
incorporated or deemed incorporated therein by
reference), was not sent or given by you to such
person with or prior to the written confirmation
of the sale involved and the alleged omission or
alleged untrue statement or omission or untrue
statement was corrected in the Prospectus as
supplemented or amended at the time of such
confirmation, and such Prospectus, as amended or
supplemented, was timely delivered to you by the
Company. You agree promptly after the receipt by
you of written notice of the commencement of any
action in respect to which indemnity from the
Company on account of its agreement contained in
this Section 5(c) may be sought by you, or by any
person controlling you, to notify the Company in
writing of the commencement thereof, but your
omission so to notify the Company of any such
action shall not release the Company from any
liability which it may have to you or to such
controlling person otherwise than on account of
the indemnity agreement contained in this Section
8(a). In case any such action shall be brought
against you or any such person controlling you and
you shall notify the Company of the commencement
thereof, as above provided, the Company shall be
entitled to participate in, and, to the extent
that it shall wish, including the selection of
counsel (such counsel to be reasonably acceptable
to the indemnified party), to direct the defense
thereof at its own expense. In case the Company
elects to direct such defense and select such
counsel (hereinafter, "Company's counsel"), you or
any controlling person shall have the right to
employ your own counsel, but, in any such case,
the fees and expenses of such counsel shall be at
your expense unless (i) the Company has agreed in
writing to pay such fees and expenses or (ii) the
named parties to any such action (including any
impleaded parties) include both you or any
controlling person and the Company and you or any
controlling person shall have been advised by your
counsel that a conflict of interest between the
Company and you or any controlling person may
arise (and the Company's counsel shall have
concurred in good faith with such advice) and for
this reason it is not desirable for the Company's
counsel to represent both the indemnifying party
and the indemnified party (it being understood,
however, that the Company shall not, in connection
with any one such action or separate but
substantially similar or related actions in the
same jurisdiction arising out of the same general
allegations or circumstances, be liable for the
reasonable fees and expenses of more than one
separate firm of attorneys for you or any
controlling person (plus any local counsel
retained by you or any controlling person in their
reasonable judgment), which firm (or firms) shall
be designated in writing by you or any controlling
person). No indemnifying party shall, without the
prior written consent of the indemnified parties,
settle or compromise or consent to the entry of
any judgment with respect to any litigation, or
any investigation or proceeding by any
governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of
which indemnification could be sought under this
Section 5 (whether or not the indemnified parties
are actual or potential parties thereto), unless
such settlement, compromise or consent (i)
includes an unconditional release of each
indemnified party from all liability arising out
of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
In no event shall any indemnifying party have any
liability or responsibility in respect of the
settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending
or threatened action or claim effected without its
prior written consent.
(d) The documents incorporated by reference in the
Registration Statement or Prospectus, when they
were filed with the Commission, complied in all
material respects with the applicable provisions
of the 1934 Act and the rules and regulations of
the Commission thereunder, and as of such time of
filing, when read together with the Prospectus,
none of such documents contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or
necessary to make the statements therein, in the
light of the circumstances under which they were
made, not misleading.
(e) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as
otherwise stated therein, there has been no material adverse
change in the business, properties or financial condition of the
Company.
(f) This Agreement has been duly authorized, executed and delivered
by the Company.
(g) The consummation by the Company of the
transactions contemplated herein will not conflict
with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or
result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets
of the Company under any contract, indenture,
mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company is a
party or by which it may be bound or to which any
of its properties may be subject (except for
conflicts, breaches or defaults which would not,
individually or in the aggregate, be materially
adverse to the Company or materially adverse to
the transactions contemplated by this Agreement.)
(h) No authorization, approval, consent or order of
any court or governmental authority or agency is
necessary in connection with the issuance and sale
by the Company of the Notes or the transactions by
the Company contemplated in this Agreement, except
(A) such as may be required under the 1933 Act or
the rules and regulations thereunder; (B) such as
may be required under the Public Utility Holding
Company Act of 1935, as amended (the "1935 Act");
(C) the qualification of the Indenture under the
1939 Act; (D) the approval of The Indiana Utility
Regulatory Commission; and (E) such consents,
approvals, authorizations, registrations or
qualifications as may be required under state
securities or Blue Sky laws.
The Company's indemnity agreement contained in Section 5(c) hereof, and
its covenants, warranties and representations contained in this Agreement, shall
remain in full force and effect regardless of any investigation made by or on
behalf of any person, and shall survive the delivery of and payment for the
[Debt Securities] hereunder.
6. Warranties of and Indemnity by Underwriters:
(a) Each Underwriter warrants and represents that the information
furnished in writing to the Company through the Representative
for use in the Registration Statement, in the Basic Prospectus,
in the Prospectus, or in the Prospectus as amended or
supplemented is correct as to such Underwriter.
(b) Each Underwriter agrees, to the extent permitted
by law, to indemnify, hold harmless and reimburse
the Company, its directors and such of its
officers as shall have signed the Registration
Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of
the Act, to the same extent and upon the same
terms as the indemnity agreement of the Company
set forth in Section 5(c) hereof, but only with
respect to untrue statements or alleged untrue
statements or omissions or alleged omissions made
in the Registration Statement, or in the Basic
Prospectus, or in the Prospectus, or in the
Prospectus as so amended or supplemented, in
reliance upon and in conformity with information
furnished in writing to the Company by the
Representative on behalf of such Underwriter
expressly for use therein. The Company agrees
promptly after the receipt by it of written notice
of the commencement of any action in respect to
which indemnity from you on account of your
agreement contained in this Section 6(b) may be
sought by the Company, or by any person
controlling the Company, to notify you in writing
of the commencement thereof, but the Company's
omission so to notify you of any such action shall
not release you from any liability which you may
have to the Company or to such controlling person
otherwise than on account of the indemnity
agreement contained in this Section 6(b).
The indemnity agreement on the part of each Underwriter contained in
Section 6(b) hereof, and the warranties and representations of such Underwriter
contained in this Agreement, shall remain in full force and effect regardless of
any investigation made by or on behalf of the Company or other person, and shall
survive the delivery of and payment for the [Debt Securities] hereunder.
7. Default of Underwriters: If any Underwriter under this Agreement shall
fail or refuse (otherwise than for some reason sufficient to justify, in
accordance with the terms hereof, the cancellation or termination of its
obligations hereunder) to purchase and pay for the principal amount of [Debt
Securities] which it has agreed to purchase and pay for hereunder, and the
aggregate principal amount of [Debt Securities] 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 [Debt Securities], the
other Underwriters shall be obligated severally in the proportions which the
amounts of [Debt Securities] set forth opposite their names in Exhibit 1 hereto
bear to the aggregate principal amount of [Debt Securities] set forth opposite
the names of all such non-defaulting Underwriters, to purchase the [Debt
Securities] 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 [Debt Securities] which any Underwriter has agreed
to purchase pursuant to Section 1 hereof be increased pursuant to this Section 7
by an amount in excess of one-ninth of such principal amount of [Debt
Securities] without the written consent of such Underwriter. If any Underwriter
or Underwriters shall fail or refuse to purchase [Debt Securities] and the
aggregate principal amount of [Debt Securities] with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of the
[Debt Securities] then this Agreement shall terminate without liability on the
part of any defaulting Underwriter; provided, however, that the non-defaulting
Underwriters may agree, in their sole discretion, to purchase the [Debt
Securities] which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on the terms set forth herein. In the event the Company
shall be entitled to but shall not elect (within the time period specified
above) to exercise its rights under clause (a) and/or (b), then this Agreement
shall terminate. In the event of any such termination, the Company shall not be
under any liability to any Underwriter (except to the extent, if any, provided
in Section 4(h) hereof), nor shall any Underwriter (other than an Underwriter
who shall have failed or refused to purchase the [Debt Securities] without some
reason sufficient to justify, in accordance with the terms hereof, its
termination of its obligations hereunder) be under any liability to the Company
or any other Underwriter.
Nothing herein contained shall release any defaulting Underwriter from its
liability to the Company or any non-defaulting Underwriter for damages
occasioned by its default hereunder.
8. Termination of Agreement by the Underwriters: This Agreement may be
terminated at any time prior to the Time of Purchase by the Representative if,
after the execution and delivery of this Agreement and prior to the Time of
Purchase, in the Representative's reasonable judgment, the Underwriters' ability
to market the [Debt Securities] shall have been materially adversely affected
because:
(i) trading in securities on the New York Stock Exchange shall have
been generally suspended by the Commission or by the New York Stock
Exchange, or
(ii) (A) a war involving the United States of America shall have been
declared, (B) any other national calamity shall have occurred, or (C) any
conflict involving the armed services of the United States of America
shall have escalated, or
(iii) a general banking moratorium shall have been declared by
Federal or New York State authorities, or
(iv) there shall have been any decrease in the ratings of the
Company's first mortgage bonds by Moody's Investors Services, Inc.
(Moody's) or Standard & Poor's Ratings Group (S&P) or either Moody's or
S&P shall publicly announce that it has such first mortgage bonds under
consideration for possible downgrade.
If the Representative elects to terminate this Agreement, as provided
in this Section 8, the Representative will promptly notify the Company by
telephone or by telex or facsimile transmission, confirmed in writing. If this
Agreement shall not be carried out by any Underwriter for any reason permitted
hereunder, or if the sale of the [Debt Securities] to the Underwriters as herein
contemplated shall not be carried out because the Company is not able to comply
with the terms hereof, the Company shall not be under any obligation under this
Agreement and shall not be liable to any Underwriter or to any member of any
selling group for the loss of anticipated profits from the transactions
contemplated by this Agreement (except that the Company shall remain liable to
the extent provided in Section 4(h) hereof) and the Underwriters shall be under
no liability to the Company nor be under any liability under this Agreement to
one another.
9. Notices: All notices hereunder shall, unless otherwise expressly
provided, be in writing and be delivered at or mailed to the following addresses
or by telex or facsimile transmission confirmed in writing to the following
addresses: if to the Underwriters, to
_______________________________________________, as Representative,
_____________________________________________, and, if to the Company, to
Indiana Michigan Power Company, c/o American Electric Power Service Corporation,
1 Riverside Plaza, Columbus, Ohio 43215, attention of A. A. Pena, Treasurer,
(fax 614/223-1687).
10. Parties in Interest: The agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Company (including the
directors thereof and such of the officers thereof as shall have signed the
Registration Statement), the controlling persons, if any, referred to in
Sections 5 and 6 hereof, and their respective successors, assigns, executors and
administrators, and, except as expressly otherwise provided in Section 7 hereof,
no other person shall acquire or have any right under or by the virtue of this
Agreement.
11. Definition of Certain Terms: If there be two or more persons, firms or
corporations named in Exhibit 1 hereto, the term "Underwriters", as used herein,
shall be deemed to mean the several persons, firms or corporations, so named
(including the Representative herein mentioned, if so named) and any party or
parties substituted pursuant to Section 7 hereof, and the term "Representative",
as used herein, shall be deemed to mean the representative or representatives
designated by, or in the manner authorized by, the Underwriters. All obligations
of the Underwriters hereunder are several and not joint. If there shall be only
one person, firm or corporation named in Exhibit 1 hereto, the term
"Underwriters" and the term "Representative", as used herein, shall mean such
person, firm or corporation. The term "successors" as used in this Agreement
shall not include any purchaser, as such purchaser, of any of the [Debt
Securities] from any of the respective Underwriters.
12. Conditions of the Company's Obligations: The obligations of the
Company hereunder are subject to the Underwriters' performance of their
obligations hereunder, and the further condition that at the Time of Purchase
The Public Utilities Commission of Ohio shall have issued an appropriate order,
and such order shall remain in full force and effect, authorizing the
transactions contemplated hereby.
13. Applicable Law: This Agreement will be governed and construed in
accordance with the laws of the State of New York.
14. Execution of Counterparts: This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, on the date
first above written.
INDIANA MICHIGAN POWER COMPANY
By:____________________________
A. A. Pena
Treasurer
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as Representative
and on behalf of the Underwriters
named in Exhibit 1 hereto
By:____________________________
EXHIBIT 1
Name Principal Amount