COLUMBUS SOUTHERN POWER COMPANY Underwriting Agreement Dated ____________________
Exhibit
1(b)
COLUMBUS
SOUTHERN POWER COMPANY
Dated
____________________
AGREEMENT
made between COLUMBUS SOUTHERN 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, now known as 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 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:
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1.
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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.
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2.
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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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, 1301 Avenue
of the
Americas, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, 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.
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3.
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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 [Unsecured Notes] shall
be
satisfactory in form and substance to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel
to the
Underwriters:
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(1)
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Opinion
of any of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., ▇▇▇
▇. ▇▇▇▇,
Esq., ▇▇▇▇▇ ▇. House, Esq. or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., counsel
to the
Company, substantially in the forms attached hereto as Exhibits
A and B;
and
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(2)
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Opinion
of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, substantially
in the
form attached hereto as Exhibit C.
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(c)
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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.
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(d)
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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 ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP, counsel to the Underwriters.
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(e)
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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 effec-tiveness of the
Registration Statement shall have been issued under the Act by
the
Commission or proceedings therefor initiated.
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(f)
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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.
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(g)
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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.
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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 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 reason-able 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) 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), and, upon request, to furnish to the
Representative sufficient plain copies thereof (exclusive of exhibits)
for
distribution of one 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 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.
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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 [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.
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(g)
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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
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ 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.
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(h)
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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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 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.
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(i)
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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].
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(j)
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The
Company will use its best efforts to list, subject to notice of
issuance,
the [Unsecured Notes] on the New York Stock Exchange.]
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(k)
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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 [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.]
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5.
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Warranties
of and Indemnity by 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, 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 state-ment 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.
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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 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.
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(c)
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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, lia-bilities
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.
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(d)
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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.
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(e)
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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.
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(f)
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This
Agreement has been duly authorized, executed and delivered by the
Company.
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(g)
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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.)
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(h)
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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) 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.
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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.
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6.
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Warranties
of and Indemnity by Underwriters
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(a)
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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.
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(b)
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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).
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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.
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|
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.
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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:
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|
(a)
|
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|
(b)
|
(i) a
war involving the United States of America shall have been declared,
(ii)
any other national calamity shall have occurred, or (iii) any conflict
involving the armed services of the United States of America shall
have
escalated, or
|
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|
(c)
|
a
general banking moratorium shall have been declared by Federal
or New York
State authorities, or
|
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|
(d)
|
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 [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.
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|
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 Columbus Southern Power Company, c/o American Electric
Power
Service Corporation, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, attention
of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Treasurer, (fax 614/▇▇▇-▇▇▇▇).
|
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|
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.
|
Very
truly yours,
|
||
|
COLUMBUS
SOUTHERN POWER COMPANY
|
||
|
By:
|
||
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, Treasurer
|
___________________________________
as
Representative and on behalf of the
Underwriters
named in Exhibit 1 hereto
By:____________________________
EXHIBIT
1
|
Name
|
Principal
Amount
|