OHIO POWER COMPANY Underwriting Agreement Dated ___________ __, 2007
EXHIBIT
1(a)
OHIO
POWER COMPANY
Dated
___________ __, 2007
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 $___,000,000 aggregate principal amount
of its ____% Senior Notes, Series _, due ____ (the Notes) to be issued pursuant
to the Indenture dated as of September 1, 1997, between the Company and
Deutsche
Bank
Trust Company Americas,
as
trustee (the Trustee), as heretofore supplemented and amended and as to be
further supplemented and amended (said Indenture as so supplemented being
hereafter referred to as the Indenture); and
WHEREAS,
the Underwriters have designated the persons signing this Agreement
(collectively, the Representative) to execute this Agreement on behalf of
the
respective Underwriters and to act for the respective Underwriters in the
manner
provided in this Agreement; and
WHEREAS,
the Company has prepared and filed, in accordance with the provisions of
the
Securities Act of 1933, as amended (the Act), with the Securities and Exchange
Commission (the Commission), a registration statement (File No. 333-______)
and
a prospectus relating to $750,000,000 aggregate principal amount of its
securities, including the 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 amended and supplemented, including documents incorporated by reference
therein and the Preliminary Prospectus Supplement dated ________ __, ____,
at or
immediately prior to the Applicable Time (as defined below), being herein
called
the Pricing Prospectus, and the Basic Prospectus included in the Registration
Statement, as it is to be supplemented by a final 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.
For
purposes of this Agreement, the Applicable Time is 2:20 p.m. (NY Time) on
the
date of this Agreement; the Pricing Prospectus as supplemented by the documents
listed in Exhibit 3, including the Permitted Free Writing Prospectuses (as
defined in Section 6(a) herein and attached hereto), taken together,
collectively being herein called the Pricing Disclosure Package.
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
______% 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 ________ __, ____ (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 9 hereof, at the office
of Xxxxx
Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000,
or at
such other place as the Company and the Representative shall mutually agree
in
writing. The time at which payment and delivery are to be made is herein
called
the Time of Purchase.
The
delivery of the 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:
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(a)
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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 Xxxxx Xxxxxxxxxx LLP, counsel to the
Underwriters.
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(b)
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That,
at the Time of Purchase, the Representative shall be furnished
with the
following opinions, dated the day of the Time of Purchase, with
conformed
copies or signed counterparts thereof for the other Underwriters,
with
such changes therein as may be agreed upon by the Company and the
Representative with the approval of Xxxxx Xxxxxxxxxx LLP, counsel
to the
Underwriters:
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(1)
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Opinion
of Xxxxxxx X. Xxxxx, Esq., Xxxxxx X. Xxxxxxxxxx, Esq. or Xxxxx
X. House,
Esq., counsel to the Company, substantially in the form heretofore
previously provided to the Underwriters; and
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(2)
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Opinion
of Xxxxx Xxxxxxxxxx LLP, counsel to the Underwriters, substantially
in the
form heretofore previously provided to the
Underwriters.
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(c)
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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.
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(d)
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The
pricing term sheet contemplated by Section 6(b) hereof, and any
other
material required pursuant to Section 433(d), shall have been filed
by the
Company with the Commission within the applicable time periods
prescribed
by Rule 433.
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(e)
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That
no amendment to the Registration Statement and that no supplement
to the
Pricing Prospectus or the Prospectus of the Company (other than
the
Pricing 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 Pricing
Prospectus by reference filed subsequent to the date hereof and
prior to
the Time of Purchase shall contain material information substantially
different from that contained in the Registration Statement which
is
unsatisfactory in substance to the Representative or unsatisfactory
in
form to Xxxxx Xxxxxxxxxx LLP, counsel to the
Underwriters.
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(f)
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That,
at the Time of Purchase, an appropriate order of the Public Utilities
Commission of Ohio (the PUCO) 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.
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(g)
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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 Pricing Prospectus
(other than changes referred to in or contemplated by the Pricing
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.
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(h)
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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.
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4. Certain
Covenants of the Company:
In
further consideration of the agreements of the Underwriters herein contained,
the Company covenants as follows:
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(a)
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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 and
make any
other required filings pursuant to Rule 433; 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.
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(b)
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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.
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(c)
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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.
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(d)
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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.
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(e)
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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.
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(f)
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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
$_____ 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.
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(g)
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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 8, the Underwriters hereby agreeing to pay such fees
and
disbursements in any other event.
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(h)
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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 9 or 10 hereof, to pay the fees
and
disbursements of 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 $______, incurred
in
connection with the financing contemplated by this
Agreement.
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(i)
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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.
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5. Warranties
of the Company:
The
Company represents and warrants to, and agrees with you, as set forth
below:
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(a)
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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, the Pricing Disclosure
Package as of the Applicable Time did not contain an untrue statement
of a
material fact necessary or omit to state a material fact necessary
in
order to make the statements therein, in light of the circumstances
under
which they were made, 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,
any
Permitted Free Writing 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.
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(b)
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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.
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(c)
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The
documents incorporated by reference in the Registration Statement
or
Pricing Prospectus, when they were filed with the Commission, complied
in
all material respects with the applicable provisions of the Securities
Exchange Act of 1934, as amended and the rules and regulations
of the
Commission thereunder, and as of such time of filing, when read
together
with the Pricing Prospectus, the Permitted Free Writing Prospectuses
and
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. No Permitted
Free Writing Prospectus listed in Exhibit 3 conflicts with the
information
contained in the Registration Statement, the Pricing Prospectus
or the
Prospectus and no such Permitted Free Writing Prospectus, taken
together
with the remainder of the Pricing Disclosure Package as of the
Applicable
Time, did contain an untrue statement of a material fact or omit
to state
a material fact necessary in order to make the statements therein,
in
light of the circumstances under which they were made, not
misleading
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(d)
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Since
the respective dates as of which information is given in the Registration
Statement and the Pricing 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.
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(e)
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This
Agreement has been duly authorized, executed and delivered by the
Company.
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(f)
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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).
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(g)
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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) the
qualification of the Indenture under the Trust Indenture Act; (C)
the
approval of the PUCO; and (D) such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities
or “Blue Sky” laws.
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(h)
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The
consolidated financial statements of the Company and its consolidated
subsidiaries together with the notes thereto, included or incorporated
by
reference in the Pricing Prospectus and 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 Pricing Prospectus
and 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 Pricing Prospectus
and the
Prospectus.
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(i)
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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 Pricing
Prospectus.
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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. Free
Writing Prospectuses:
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(a)
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The
Company represents and agrees that, without the prior consent of
the
Representative, it has not made and will not make any offer relating
to
the Notes that would constitute a “free writing prospectus” as defined in
Rule 405 under the Act, other than a Permitted Free Writing Prospectus;
each Underwriter represents and agrees that, without the prior
consent of
the Company and the Representative, it has not made and will not
make any
offer relating to the Notes that would constitute a “free writing
prospectus,” as defined in Rule 405 under the Act, other than a Permitted
Free Writing Prospectus or a free writing prospectus that is not
required
to be filed by the Company pursuant to Rule 433 (an “Underwriter Free
Writing Prospectus”); any such free writing prospectus the use of which
has been consented to by the Company and the Representative (which
shall
include the pricing term sheet discussed in Section 6(b)) is listed
in
Exhibit 2 and herein called a “Permitted Free Writing
Prospectus.”
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(b)
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The
Company agrees to prepare a pricing term sheet, substantially in
the form
of Exhibit 2 hereto and approved by the Representative, and to
file such
pricing term sheet pursuant to Rule 433(d) under the Securities
Act within
the time period prescribed by such Rule.
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(c)
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The
Company and each Underwriter has complied and will comply with
the
requirements of Rule 433 applicable to any other Permitted Free
Writing
Prospectus, including timely Commission filing where required and
legending.
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(d)
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The
Company agrees that if at any time following issuance of a Permitted
Free
Writing Prospectus any event occurred or occurs as a result of
which such
Permitted Free Writing Prospectus would conflict in any material
respect
with the information in the Registration Statement, the Pricing
Prospectus
or the Prospectus or include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements
therein, in light of the circumstances then prevailing, not misleading,
the Company will give prompt notice thereof to the Representative
and, if
requested by the Representative, will prepare and furnish without
charge
to each Underwriter a Permitted Free Writing Prospectus or other
document
which will correct such conflict, statement or omission; provided,
however, that this representation and warranty shall not apply
to any
statements or omissions in a Permitted Free Writing Prospectus
made in
reliance upon and in conformity with information furnished in writing
to
the Company by an Underwriter through the Representative, expressly
for
use therein.
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(e)
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Each
Underwriter agrees that (i) it will not enter into a contract of
sale of
the Notes with any person until investors are presented with all
information contained in the Pricing Disclosure Package and (ii)
no
information that is presented to investors has been or will be
inconsistent with the information contained in the Pricing Disclosure
Package.
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7. 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 any Permitted Free Writing Prospectus, in the Pricing
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.
8. Indemnification
and Contribution:
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(a)
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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), in the Pricing Prospectus, in
any
Permitted Free Writing Prospectus, 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, in the Pricing
Prospectus, in any Permitted Free Writing 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 Permitted Free
Writing
Prospectus or the Prospectus, as the same may then be supplemented
or
amended to the extent such Permitted Free Writing Prospectus or
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 at or prior to the entry into the contract
of
sale and the alleged omission or alleged untrue statement or omission
or
untrue statement was corrected in the Permitted Free Writing Prospectus
or
the Prospectus as supplemented or amended at the time of such contract,
and such Permitted Free Writing Prospectus or 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 8(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 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).
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(b)
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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
8(a)
hereof, but only with respect to untrue statements or alleged untrue
statements or omissions or alleged omissions made in (i) any Underwriter
Free Writing Prospectus distributed by or on behalf of such Underwriter,
except to the extent arising from information furnished in writing
by the
Company and (ii) the Registration Statement, or in the Basic Prospectus,
or in the Pricing Prospectus, or in any Permitted Free Writing
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 8(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 8(b).
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(c)
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If
recovery is not available or insufficient under Section 8(a) or
8(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 8(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 by the Company on the one hand and the Underwriters
on the
other hand, 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 8 is in
proportion to its purchase obligation and not joint with any other
Underwriter.
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(d)
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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 8 (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.
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(e)
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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.
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The
agreements contained in this Section 8 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.
9. 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 the 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 9 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 the Notes
then this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter; provided, however, that the non-defaulting
Underwriters may agree, in their sole discretion, to purchase the 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.
10. 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:
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(i)
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(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
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(iii)
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a
general banking moratorium shall have been declared by Federal
or New York
State authorities, or
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(iv)
|
there
shall have been any decrease in the ratings of the Company's debt
securities by Xxxxx'x Investors Services, Inc. (Moody's) or Standard
&
Poor's Ratings 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.
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If
the
Representative elects to terminate this Agreement, as provided in this Section
10, 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.
11. 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
______________________________________________New York, Attention: (fax
___/___-____) __________________________________________________________,
Xxx
Xxxx, Xxx Xxxx 00000, Attention: ____________ (fax___/___-_____)
and, if
to the Company, to Ohio Power Company, c/o American Electric Power Service
Corporation, 0 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000, Attention: Deputy General
Counsel (fax 614/000-0000).
12. 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 8 hereof, and their
respective successors, assigns, executors and administrators, and, except
as
expressly otherwise provided in Section 9 hereof, no other person shall acquire
or have any right under or by the virtue of this Agreement. The
Company acknowledges and agrees that in connection with all aspects of each
transaction contemplated by this Underwriting Agreement, the Company and
the
Underwriters have an arms length business relationship that creates no fiduciary
duty on the part of any party and each expressly disclaims any fiduciary
relationship.
13. 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
9 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.
14. 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 Commission shall have issued appropriate orders,
and
such orders shall remain in full force and effect, authorizing the transactions
contemplated hereby.
15. Applicable
Law:
This
Agreement will be governed and construed in accordance with the laws of the
State of New York.
16. 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.
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OHIO
POWER COMPANY
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By:
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Name:
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Title: Assistant
Treasurer
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________________________________
as
Representative
and
on behalf of the Underwriters
named
in Exhibit 1 hereto
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__________________________________
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By:
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Name: _________________
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Title: _________________,
_________________
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___________________________________
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By:
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Name: _____________________
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Title: _____________________
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15
EXHIBIT
1
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Name
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Principal
Amount of Notes
|
|
___________
|
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TOTAL
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EXHIBIT
2
PRICING
TERM SHEET
EXHIBIT
3
PRICING
DISCLOSURE PACKAGE
