EXHIBIT 1(b)
OHIO POWER COMPANY
Underwriting Agreement
Dated ____________________
AGREEMENT made between OHIO POWER COMPANY, a corporation organized and
existing under the laws of the State of Ohio (the "Company"), and the several
persons, firms and corporations (the "Underwriters") named in Exhibit 1 hereto.
WITNESSETH:
WHEREAS, the Company proposes to issue and sell $__________ principal
amount of its [Unsecured Notes] to be issued pursuant to the Indenture dated as
of September 1, 1997, between the Company and Bankers Trust Company, as trustee
(the "Trustee"), as heretofore supplemented and amended and as to be further
supplemented and amended (said Indenture as so supplemented being hereafter
referred to as the Indenture); and
WHEREAS, the Underwriters have designated the person signing this
Agreement (the Representative) to execute this Agreement on behalf of the
respective Underwriters and to act for the respective Underwriters in the manner
provided in this Agreement; and
WHEREAS, the Company has prepared and filed, in accordance with the
provisions of the Securities Act of 1933 (the Act), with the Securities and
Exchange Commission (the Commission), a registration statement and prospectus or
prospectuses relating to the [Unsecured Notes] and such registration statement
has become effective; and
WHEREAS, such registration statement, as it may have been amended to the
date hereof, including the financial statements, the documents incorporated or
deemed incorporated therein by reference and the exhibits, being herein called
the Registration Statement, and the prospectus, as included or referred to in
the Registration Statement to become effective, as it may be last amended or
supplemented prior to the effectiveness of the agreement (the Basic Prospectus),
and the Basic Prospectus, as supplemented by a prospectus supplement which
includes certain information relating to the Underwriters, the principal amount,
price and terms of offering, the interest rate and redemption prices of the
[Unsecured Notes], first filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) of the Commission's General Rules and Regulations under
the Act (the Rules), including all documents then incorporated or deemed to have
been incorporated therein by reference, being herein call the Prospectus.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, it is agreed between the parties as follows:
1. Purchase and Sale: Upon the basis of the warranties and
representations and on the terms and subject to the conditions herein set
forth, the Company agrees to sell to the respective Underwriters named in
Exhibit 1 hereto, severally and not jointly, and the respective Underwriters,
severally and not jointly, agree to purchase from the Company, the respective
principal amounts of the [Unsecured Notes] set opposite their names in
Exhibit 1 hereto, together aggregating all of the [Unsecured Notes], at a
price equal to ______% of the principal amount thereof.
2. Payment and Delivery: Payment for the [Unsecured Notes] shall be made
to the Company or its order by certified or bank check or checks,
payable in New York Clearing House funds, at the office of Simpson Thacher &
Bartlett LLP, 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 [Unsecured Notes] to the Representative for
the respective accounts of the Underwriters against receipt therefor signed
by the Representative on behalf of itself and for the other Underwriters.
Such payments and delivery shall be made at 10:00 A.M., New York Time, on
_______________ (or on such later business day, not more than five business
days subsequent to such day, as may be mutually agreed upon by the Company
and the Underwriters), unless postponed in accordance with the provisions of
Section 7 hereof. The time at which payment and delivery are to be made is
herein called the Time of Purchase.
[The delivery of the [Unsecured Notes] shall be made in fully
registered form, registered in the name of CEDE & CO., to the offices of The
Depository Trust Company in New York, New York and the Underwriters shall accept
such delivery.]
3. Conditions of Underwriters' Obligations: The several obligations of
the Underwriters hereunder are subject to the accuracy of the warranties and
representations on the part of the Company on the date hereof and at the
Time of Purchase and to the following other conditions:
(a) That all legal proceedings to be taken and all legal opinions to be
rendered in connection with the issue and sale of the [Unsecured
Notes] shall be satisfactory in form and substance to 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 any of
Thomas G. Berkemeyer, Esq., Ann B. Graf, Esq., David C.
House, Esq., William E. Johnson, Esq. or Kevin R Fease, 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
[Unsecured Notes] and no document which would be deemed
incorporated in the Prospectus by reference filed subsequent to
the date hereof and prior to the Time of Purchase shall contain
material information substantially different from that contained
in the Registration Statement which is unsatisfactory in substance
to the Representative or unsatisfactory in form to 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 [Unsecured Notes] to the Underwriters, shall be in effect;
and that, prior to the Time of Purchase, no stop order with respect
to the effectiveness of the Registration Statement shall have been
issued under the Act by the Commission or proceedings therefor
initiated.
(f) That, at the Time of Purchase, there shall not have been any
material adverse change in the business, properties or
financial condition of the Company from that set forth in the
Prospectus (other than changes referred to in or contemplated by
the Prospectus), and that the Company shall, at the Time of
Purchase, have delivered to the Representative a certificate of an
executive officer of the Company to the effect that, to the best
of his knowledge, information and belief, there has been no such
change.
(g) That the Company shall have performed such of its obligations
under this Agreement as are to be performed at or before the Time
of Purchase by the terms hereof.
4. Certain Covenants of the Company: In further consideration of the
agreements of the Underwriters herein contained, the Company covenants as
follows:
(a) As soon as practicable, and in any event within the time
prescribed by Rule 424 under the Act, to file any Prospectus
Supplement relating to the [Unsecured Notes] with the Commission;
as soon as the Company is advised thereof, to advise the
Representative and confirm the advice in writing of any request
made by the Commission for amendments to the Registration Statement
or the Prospectus or for additional information with respect
thereto or of the entry of a stop order suspending the
effectiveness of the Registration Statement or of the initiation
or threat of any proceedings for that purpose and, if such a stop
order should be entered by the Commission, to make every
reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as
practicable (and in any event within 24 hours after the date
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 [Unsecured Notes] may have been sold by the
Representative for the accounts of the Underwriters and, upon
request, to any other dealers making such request, copies of such
amendments to the Prospectus or supplements to the Prospectus.
(e) As soon as practicable, the Company will make generally
available to its security holders and to the Underwriters an
earnings statement or statement of the Company and its
subsidiaries which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the [Unsecured Notes] for
offer and sale under the securities or "blue sky" laws of such
jurisdictions as the Representative may designate within six
months after the date hereof and itself to pay, or to reimburse
the Underwriters and their counsel for, reasonable filing fees and
expenses in connection therewith in an amount not exceeding $3,500
in the aggregate (including filing fees and expenses paid and
incurred prior to the effective date hereof), provided, however,
that the Company shall not be required to qualify as a foreign
corporation or to file a consent to service of process or to file
annual reports or to comply with any other requirements deemed by
the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer
taxes on resales of the [Unsecured Notes] by the respective
Underwriters) in connection with the issuance and delivery of the
[Unsecured Notes], except that the Company shall be required to
pay the fees and disbursements (other than disbursements referred
to in paragraph (f) of this Section 4) of 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
[Unsecured Notes] due to the failure of the Company to comply
with any of the conditions specified in Section 3 hereof, or, if
this Agreement shall be terminated in accordance with the
provisions of Section 7 or 8 hereof, to pay the fees and
disbursements of Dewey Ballantine LLP, counsel to the
Underwriters, and, if the Underwriters shall not take up and pay
for the [Unsecured Notes] due to the failure of the Company to
comply with any of the conditions specified in Section 3 hereof,
to reimburse the Underwriters for their reasonable out-of-pocket
expenses, in an aggregate amount not exceeding a total of $10,000,
incurred in connection with the financing contemplated by this
Agreement.
(i) The Company will timely file any certificate required by Rule 52
under the Public Utility Holding Company Act of 1935 in connection
with the sale of the [Unsecured Notes].
[(j) The Company will use its best efforts to list, subject to notice
of issuance, the [Unsecured Notes] 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 [Unsecured Notes]
ceases, as determined by the Representative in its sole
discretion, and (ii) the date which is 30 days after the Time of
Purchase, the Company agrees not to offer, sell, contract to sell
or otherwise dispose of any [Unsecured Notes] of the Company or
any substantially similar securities of the Company without the
consent of the Representative.]
5. Warranties of and Indemnity by the Company: The Company represents
and warrants to, and agrees with 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 [Unsecured Notes] will have
been duly authorized, executed, authenticated and, when paid for by
the purchasers thereof, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the
Indenture, except as the enforceability thereof may be limited by
bankruptcy, insolvency, or other similar laws affecting the
enforcement of creditors' rights in general, and except as the
availability of the remedy of specific performance is subject to
general principles of equity (regardless of whether such remedy is
sought in a proceeding in equity or at law), and by an implied
covenant of good faith and fair dealing.
(c) To the extent permitted by law, to indemnify and hold you
harmless and each person, if any, who controls you within the
meaning of Section 15 of the Act, against any and all losses,
claims, damages or liabilities, joint or several, to which you,
they or any of you or them may become subject under the Act or
otherwise, and to reimburse you and such controlling person or
persons, if any, for any legal or other expenses incurred by you
or them in connection with defending any action, insofar as such
losses, claims, damages, liabilities or actions arise out of or
are based upon any alleged untrue statement or untrue statement of
a material fact contained in the Registration Statement, in the
Basic Prospectus, or in the Prospectus, or if the Company shall
furnish or cause to be furnished to you any amendments or any
supplemental information, in the Prospectus as so amended or
supplemented other than amendments or supplements relating solely
to securities other than the Notes (provided that if such
Prospectus or such Prospectus, as amended or supplemented, is used
after the period of time referred to in Section 4(b) hereof, it
shall contain such amendments or supplements as the Company deems
necessary to comply with Section 10(a) of the Act), or arise out
of or are based upon any alleged omission or omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or actions arise out of
or are based upon any such alleged untrue statement or omission,
or untrue statement or omission which was made in the
Registration Statement, in the Basic Prospectus or in the
Prospectus, or in the Prospectus as so amended or supplemented,
in reliance upon and in conformity with information furnished in
writing to the Company by or through you expressly for use therein
or with any statements in or omissions from that part of the
Registration Statement that shall constitute the Statement of
Eligibility under the Trust Indenture Act, of any indenture trustee
under an indenture of the Company, and except that this indemnity
shall not inure to your benefit (or of any person controlling you)
on account of any losses, claims, damages, liabilities or actions
arising from the sale of the Notes to any person if such loss
arises from the fact that a copy of 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 Public Utilities Commission of Ohio; and
(E) such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws.
The Company's indemnity agreement contained in Section 5(c) hereof, and
its covenants, warranties and representations contained in this Agreement,
shall remain in full force and effect regardless of any investigation made by or
on behalf of any person, and shall survive the delivery of and payment for
the [Unsecured Notes] hereunder.
6. Warranties of and Indemnity by Underwriters:
(a) Each Underwriter warrants and represents that the information
furnished in writing to the Company through the Representative for
use in the Registration Statement, in the Basic Prospectus, in the
Prospectus, or in the Prospectus as amended or supplemented is
correct as to such Underwriter.
(b) Each Underwriter agrees, to the extent permitted by law, to
indemnify, hold harmless and reimburse the Company, its directors
and such of its officers as shall have signed the Registration
Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the Act, to the same extent and upon
the same terms as the indemnity agreement of the Company set forth
in Section 5(c) hereof, but only with respect to untrue statements
or alleged untrue statements or omissions or alleged omissions
made in the Registration Statement, or in the Basic Prospectus, or
in the Prospectus, or in the Prospectus as so amended or
supplemented, in reliance upon and in conformity with information
furnished in writing to the Company by the Representative on behalf
of such Underwriter expressly for use therein. The Company agrees
promptly after the receipt by it of written notice of the
commencement of any action in respect to which indemnity from you
on account of your agreement contained in this Section 6(b) may be
sought by the Company, or by any person controlling the Company, to
notify you in writing of the commencement thereof, but the
Company's omission so to notify you of any such action shall not
release you from any liability which you may have to the Company
or to such controlling person otherwise than on account of the
indemnity agreement contained in this Section 6(b).
The indemnity agreement on the part of each Underwriter contained in
Section 6(b) hereof, and the warranties and representations of such
Underwriter contained in this Agreement, shall remain in full force and
effect regardless of any investigation made by or on behalf of the Company or
other person, and shall survive the delivery of and payment
for the [Unsecured Notes] hereunder.
7. Default of Underwriters: If any Underwriter under this Agreement
shall fail or refuse (otherwise than for some reason sufficient to justify, in
accordance with the terms hereof, the cancellation or termination of its
obligations hereunder) to purchase and pay for the principal amount of
[Unsecured Notes] which it has agreed to purchase and pay for hereunder, and
the aggregate principal amount of [Unsecured Notes] which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not
more than one-tenth of the aggregate principal amount of the [Unsecured
Notes], the other Underwriters shall be obligated severally in the
proportions which the amounts of [Unsecured Notes] set forth opposite their
names in Exhibit 1 hereto bear to the aggregate principal amount of
[Unsecured Notes] set forth opposite the names of all such non-defaulting
Underwriters, to purchase the [Unsecured Notes] which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on the
terms set forth herein; provided that in no event shall the principal amount
of [Unsecured Notes] which any Underwriter has agreed to purchase pursuant to
Section 1 hereof be increased pursuant to this Section 7 by an amount in
excess of one-ninth of such principal amount of [Unsecured Notes] without the
written consent of such Underwriter. If any Underwriter or Underwriters
shall fail or refuse to purchase [Unsecured Notes] and the aggregate
principal amount of [Unsecured Notes] with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of the
[Unsecured Notes] then this Agreement shall terminate without liability on
the part of any defaulting Underwriter; provided, however, that the
non-defaulting Underwriters may agree, in their sole discretion, to purchase
the [Unsecured Notes] which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on the terms set forth herein. In the
event 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 [Unsecured Notes] without some reason sufficient to justify,
in accordance with the terms hereof, its termination of its obligations
hereunder) be under any liability to the Company or any other Underwriter.
Nothing herein contained shall release any defaulting Underwriter from
its liability to the Company or any non-defaulting Underwriter for damages
occasioned by its default hereunder.
8. Termination of Agreement by the Underwriters: This Agreement may be
terminated at any time prior to the Time of Purchase by the Representative
if, after the execution and delivery of this Agreement and prior to the Time of
Purchase, in the Representative's reasonable judgment, the Underwriters'
ability to market the [Unsecured Notes] shall have been materially adversely
affected because:
(i) trading in securities on the New York Stock Exchange shall have
been generally suspended by the Commission or by the New York Stock
Exchange, or
(ii) (A) a war involving the United States of America shall have been
declared, (B) any other national calamity shall have occurred, or (C) any
conflict involving the armed services of the United States of America
shall have escalated, or
(iii) a general banking moratorium shall have been declared by
Federal or New York State authorities, or
(iv) there shall have been any decrease in the ratings of the
Company's 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 [Unsecured Notes] to
the Underwriters as herein contemplated shall not be carried out because the
Company is not able to comply with the terms hereof, the Company shall not be
under any obligation under this Agreement and shall not be liable to any
Underwriter or to any member of any selling group for the loss of anticipated
profits from the transactions contemplated by this Agreement (except that the
Company shall remain liable to the extent provided in Section 4(h) hereof) and
the Underwriters shall be under no liability to the Company nor be under
any liability under this Agreement to one another.
9. Notices: All notices hereunder shall, unless otherwise expressly
provided, be in writing and be delivered at or mailed to the following
addresses or by telex or facsimile transmission confirmed in writing to the
following addresses: if to the Underwriters, to
_______________________________________________, as Representative,
_____________________________________________, and, if to the Company, to
Ohio Power Company, c/o American Electric Power Service Corporation, 1
Riverside Plaza, Columbus, Ohio 43215, attention of G. S. Chatas, Treasurer,
(fax 614/716-1687).
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 [Unsecured Notes]
from any of the respective Underwriters.
12. Conditions of the Company's Obligations: The obligations of the
Company hereunder are subject to the Underwriters' performance of their
obligations hereunder, and the further condition that at the Time of Purchase
The 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.
OHIO POWER COMPANY
By:____________________________
G. S. Chatas
Treasurer
______________________________
as Representative
and on behalf of the Underwriters
named in Exhibit 1 hereto
By:____________________________
EXHIBIT 1
Name Principal Amount