INDIANA MICHIGAN POWER COMPANY
Underwriting Agreement
Dated April __, 1998
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 $125,000,000
principal amount of its __% Junior Subordinated Deferrable Interest
Debentures, Series B, Due 2038 (the Debentures) to be issued
pursuant to the Indenture dated as of March 1, 1996, between the
Company and The First National Bank of Chicago, as trustee (the
Trustee), as supplemented by the Supplemental Indenture dated as of
March 1, 1996 and the Second Supplemental Indenture dated as of
April 1, 1998 between the Company and the Trustee (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 a prospectus relating to the Debentures
and such registration statement has become effective; and
WHEREAS, such registration statement, as it may have been
amended through the time the same first became effective (the
Effective Date), including the financial statements, the documents
incorporated or deemed incorporated therein by reference, the
exhibits thereto and the information deemed to be part thereof
pursuant to Rule 430A(b) of the Commission's General Rules and
Regulations under the Act (the Rules), being herein called the
Registration Statement, the prospectus included in the Registration
Statement when the same became effective that omits the
information, if any, deemed to be a part thereof pursuant to Rule
430A(b) of the Rules, being herein called the Preliminary
Prospectus, and the prospectus, including the price and terms of
the offering, the interest rate, maturity date and certain
information relating to the Underwriters of the Debentures first
filed with the Commission in accordance with Rule 430A and pursuant
to Rule 424(b) of the Rules, including all documents then
incorporated or deemed to have been incorporated therein by
reference, being herein called the Prospectus.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, it is agreed between the parties
as follows:
1. Purchase and Sale: Upon the basis of the warranties and
representations and on the terms and subject to the conditions
herein set forth, the Company agrees to sell to the respective
Underwriters named in Exhibit 1 hereto, severally and not jointly,
and the respective Underwriters, severally and not jointly, agree
to purchase from the Company, the respective principal amounts of
the Debentures set opposite their names in Exhibit 1 hereto,
together aggregating all of the Debentures, at a price equal to
__.__% of the principal amount thereof; except that such price will
be increased to __% of the principal amount of the Debentures sold
to certain institutions.
2. Payment and Delivery: Payment for the Debentures 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 Debentures 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 _____ __, 1998 (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 Debentures 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 Debentures shall be
satisfactory in form and substance to ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ 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 con-
formed 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 ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP, counsel to the Underwriters:
(1) Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ and
either of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq. or ▇▇▇ ▇.
▇▇▇▇, Esq., counsel to the Company, substan-
tially in the forms attached hereto as
Exhibits A and B;
(2) Opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 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 Debentures 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 dif-
ferent from that contained in the Registration
Statement which is unsatisfactory in substance to
the Representative or unsatisfactory in form to
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel to the Underwriters.
(e) That, at the Time of Purchase, an appropriate order
of the Indiana Utility Regulatory Commission,
necessary to permit the sale of the Debentures 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 Representa-
tive 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 consider-
ation of the agreements of the Underwriters herein contained, the
Company covenants as follows:
(a) As soon as practicable, and in any event within the
time prescribed by Rule 424 under the Act, to file
the Prospectus with the Commission; as soon as the
Company is advised thereof, to advise the
Representative and confirm the advice in writing of
any request made by the Commission for amendments
to the Registration Statement or 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 exceed-
ing 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 in the form
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 circum-
stances 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 Debentures 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 Prospec-
tus 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
statements 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 Debentures
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 Debentures by the
respective Underwriters) in connection with the
issuance and delivery of the Debentures, 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
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 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 Debentures 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 dis-
bursements of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel to the
Underwriters, and, if the Underwriters shall not
take up and pay for the Debentures 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 connec-
tion with the financing contemplated by this
Agreement.
(i) 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 Debentures 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 junior subordinated deferrable
interest debentures of the Company or any
substantially similar securities of the Company
without the consent of the Representative.
(j) The Company will use its best efforts to list,
subject to notice of issuance, the Debentures on
the New York Stock Exchange.
(k) 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 Debentures.
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 Preliminary 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 Preliminary
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, the Preliminary Prospectus
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 Preliminary 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
Debentures 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, the Company agrees
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 Preliminary
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 Debentures (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 state-
ment or omission, or untrue statement or omission
which was made in the Registration Statement, in
the Preliminary 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 state-
ments in or omissions from that part of the Regis-
tration Statement that shall constitute the State-
ment 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
Debentures 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 5(c). 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 indemnifi-
cation 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 referred to or
contemplated 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 Debentures 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 Debentures 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 Registra-
tion Statement, in the Preliminary 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 indem-
nity 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 Regis-
tration Statement, in the Preliminary 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 represen-
tations 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 Debentures 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 Debentures which it
has agreed to purchase and pay for hereunder, and the aggregate
principal amount of Debentures 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 Debentures,
the other Underwriters shall be obligated severally in the
proportions which the amounts of Debentures set forth opposite
their names in Exhibit 1 hereto bear to the aggregate principal
amount of Debentures set forth opposite the names of all such non-
defaulting Underwriters, to purchase the Debentures 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 Debentures 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 Debentures without the written
consent of such Underwriter. If any Underwriter or Underwriters
shall fail or refuse to purchase Debentures and the aggregate
principal amount of Debentures with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of
the Debentures 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 Debentures 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 Debentures 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 Debentures 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 ▇▇▇▇▇'▇ 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 Debentures 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, ,
New York, New York , Attention: ,
and, if to the Company, to Indiana Michigan Power Company, c/o
American Electric Power Service Corporation, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Treasurer (fax
614/▇▇▇-▇▇▇▇).
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 Representa-
tive herein mentioned, if so named) and any party or parties
substituted pursuant to Section 7 hereof, and the term "Representa-
tive", 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 Debentures from any of the respective Underwriters.
12. Conditions of the Company's Obligations: The obligations
of the Company to issue and sell the Debentures hereunder are
subject to the Underwriters' performance of their obligations
hereunder, and the further condition that at the Time of Purchase
the Indiana Utility Regulatory Commission shall have issued
appropriate orders, and such orders 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: s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Treasurer
as Representative
and on behalf of the Underwriters
named in Exhibit 1 hereto
By:
Managing Director
EXHIBIT 1
Name Principal Amount
Total $125,000,000