Exhibit
1(a)
COLUMBUS
SOUTHERN POWER COMPANY
Selling
Agency Agreement
____________,
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Dear
Sirs:
Columbus
Southern Power Company, an Ohio corporation (the "Company"),
confirms its agreement with each of you with respect to the
issue and sale by the Company of up to $____________ aggregate
principal amount of its [Unsecured Notes] (the "Notes"). The
Notes will be issued under 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 previously supplemented and as it may be from
time to time further supplemented by one or more supplemental
indentures (said Indenture, as previously supplemented and as
it may be further supplemented, being hereafter referred to as
the "Indenture"). The Notes will be issued in minimum
denominations of [$25] and in integral multiples thereof, will
be issued only in fully registered form and will have the
annual interest rates, maturities and, if appropriate, other
terms set forth in a supplement to the Prospectus referred to
below. The Notes will be issued, and the terms thereof
established, in accordance with the Indenture and, in the case
of Notes sold pursuant to Section 2(a) hereof, the [Unsecured
Notes] Administrative Procedures attached hereto as Exhibit A
(the "Procedures"). The Procedures may only be amended by
written agreement of the Company and you after notice to, and
with the approval of, the Trustee. For purposes of this
Agreement, the term "Agent" shall refer to any one of you and
any Additional Agent as defined and as provided for in Section
2(a) acting solely in the capacity as agent for the Company
pursuant to Section 2(a) and not as principal (collectively,
the "Agents"), the term the "Purchaser" shall refer to one of
you acting solely as principal pursuant to Section 2(b) and
not as agent, and the term "you" shall refer to you
collectively whether at any time any of you is acting in both
such capacities or in either such capacity.
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1.
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Representations and Warranties. The
Company represents and warrants to, and agrees with, you as set
forth below in this Section 1. Certain terms used in this Section 1
are defined in paragraph (d) hereof.
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(a)
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The
Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed
with the Securities and Exchange Commission (the "Commission")
a registration statement on such Form S-3 (File Number:
333-_____), including a basic prospectus, which has become
effective, for the registration under the Act of $____________
aggregate principal amount of Unsecured Notes (the "Notes").
Such registration statement meets the requirements set forth
in Rule 415(a)(1)(ix) or (x) under the Act and complies in all
other material respects with said Rule. The Company will file
with the Commission pursuant to the applicable paragraph of
Rule 424(b) under the Act a supplement to the form of
prospectus included in such registration statement relating to
the Notes and the plan of distribution thereof (the
"Prospectus Supplement"). In connection with the sale of Notes
the Company proposes to file with the Commission pursuant to
the applicable paragraph of Rule 424(b) under the Act further
supplements to the Prospectus Supplement specifying the
interest rates, maturity dates and, if appropriate, other
terms of the Notes sold pursuant hereto or the offering
thereof.
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(b)
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As
of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission, as
of the date of any Terms Agreement (as defined in Section
2(b)) and at the date of delivery by the Company of any Notes
sold hereunder (a "Closing Date"), (i) the Registration
Statement, as amended as of any such time, and the Prospectus,
as supplemented as of any such time, will comply in all
material respects with the applicable requirements of the Act,
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the respective rules under the
Act, the Exchange Act and the Trust Indenture Act; (ii) the
Registration Statement, as amended as of any such time, did
not or will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein
not misleading; and (iii) the Prospectus, as supplemented as
of any such time, will not contain any untrue statement of a
material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not
misleading;
provided ,
however ,
that the Company makes no representations or warranties as to (i)
those parts of the Registration Statement which shall constitute a
Statement of Eligibility (Form T-1) of the Trustee under the Trust
Indenture Act or (ii) the information contained in or omitted from
the Registration Statement or the Prospectus (or any supplement
thereto) in reliance upon and in conformity with information
furnished in writing to the Company by any of you expressly for use
in the Registration Statement or the Prospectus (or any supplement
thereto).
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(c)
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As
of the time any Notes are issued and sold hereunder, the
Indenture 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, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, or general equitable principles
(whether considered in a proceeding in equity or at law), and
an implied covenant of good faith and fair
dealing.
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(d)
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The
terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall
mean each date that the Registration Statement and any
post-effective amendment or amendments thereto became or
become effective. "Execution Time" shall mean the date and
time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the form of
basic prospectus relating to the Securities contained in the
Registration Statement at the Effective Date. "Prospectus"
shall mean the Basic Prospectus as supplemented by the
Prospectus Supplement. "Registration Statement" shall mean the
Registration Statement referred to in paragraph (a) above,
including incorporated documents, exhibits and financial
statements, as amended at the Execution Time. "Rule 415" and
"Rule 424" refer to such rules under the Act. Any reference
herein to the Registration Statement, the Basic Prospectus,
the Prospectus Supplement or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under
the Exchange Act on or before the Effective Date or the issue
date of the Basic Prospectus, the Prospectus Supplement or the
Prospectus, as the case may be; and any reference herein to
the terms "amend", "amendment" or "supplement" with respect to
the Registration Statement, the Basic Prospectus, the
Prospectus Supplement or the Prospectus shall be deemed to
refer to and include the filing of any document under the
Exchange Act after the Effective Date or the issue date of the
Basic Prospectus, the Prospectus Supplement or the Prospectus,
as the case may be, deemed to be incorporated therein by
reference.
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(e)
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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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(f)
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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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(g)
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This
Agreement has been duly authorized, executed and delivered by
the Company.
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(h)
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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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(i)
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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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2.
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Appointment of Agents; Solicitation by the Agents of Offers to
Purchase; Sales of Notes to a Purchaser.
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(a)
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Subject
to the terms and conditions set forth herein, the Company
hereby authorizes each of the Agents to act as its agent to
solicit offers for the purchase of all or part of the Notes
from the Company.
On
the basis of the representations and warranties, and subject
to the terms and conditions set forth herein, each of the
Agents agrees, as agent of the Company, to use its reasonable
best efforts to solicit offers to purchase the Notes from the
Company upon the terms and conditions set forth in the
Prospectus (and any supplement thereto) and in the
Procedures.
The
Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of
time or permanently, the solicitation of offers to purchase
the Notes. Upon receipt of instructions from the Company, the
Agents will forthwith suspend solicitation of offers to
purchase Notes from the Company until such time as the Company
has advised them that such solicitation may be
resumed.
The
Company expressly reserves the right, upon fifteen business
days' prior written notice to each Agent, to appoint other
persons, partnerships or corporations ("Additional Agents") to
act as its agent to solicit offers for the purchase of
Notes;
provided ,
each Additional Agent shall be named in a prospectus supplement or
pricing supplement and shall either execute this Agreement and
become a party hereto or shall enter into an agency agreement with
the Company on terms substantially similar to those contained
herein; thereafter the term Agent as used in this Agreement shall
mean each Agent and each such Additional Agent.
The
Company agrees to pay each Agent a commission, on the Closing
Date with respect to each sale of Notes by the Company as a
result of a solicitation made by such Agent, in an amount
equal to that percentage specified in Schedule I hereto of the
aggregate principal amount of the Notes sold by the Company.
Such commission shall be payable as specified in the
Procedures.
Subject
to the provisions of this Section and to the Procedures,
offers for the purchase of Notes may be solicited by an Agent
as agent for the Company at such time and in such amounts as
such Agent deems advisable. The Company may from time to time
offer Notes for sale otherwise than through an Agent;
provided ,
however ,
that so long as this Agreement shall be in effect the Company shall
not solicit or accept offers to purchase Notes through any agent
other than an Agent.
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(b)
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Subject
to the terms and conditions stated herein, whenever the
Company and any Agent determine that the Company shall sell
Notes directly to such Agent as principal, each such sale of
Notes shall be made in accordance with the terms of this
Agreement and, unless otherwise agreed by the Company and such
Agent, any supplemental agreement relating thereto between the
Company and the Purchaser. Each such supplemental agreement
(which may be an oral or written agreement) is herein referred
to as a "Terms Agreement". Each Terms Agreement shall describe
(whether orally or in writing) the Notes to be purchased by
the Purchaser pursuant thereto, and shall specify the
aggregate principal amount of such Notes, the maturity date of
such Notes, the rate at which interest will be paid on such
Notes, the dates on which interest will be paid on such Notes
and the record date with respect to each such payment of
interest, the Closing Date for the purchase of such Notes, the
place of delivery of the Notes and payment therefor, the
method of payment and any requirements for the delivery of the
opinions of counsel, the certificates from the Company or its
officers, or a letter from the Company's independent public
accountants, pursuant to Section 6(b). Any such Terms
Agreement may also specify the period of time referred to in
Section 4(m). Any written Terms Agreement may be in the form
attached hereto as Exhibit B. The Purchaser's commitment to
purchase Notes shall be deemed to have been made on the basis
of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions
herein set forth.
The
Company also may sell Notes to any Agent, acting as principal,
at a discount to be agreed upon at the time of sale, for
resale to one or more investors or to another broker-dealer
(acting as principal for purposes of resale) at varying prices
related to prevailing market prices at the time of such resale
as determined by such Agent. An Agent may resell a Note
purchased by it as principal to another broker-dealer at a
discount, provided such discount does not exceed the
commission or discount received by such Agent from the Company
in connection with the original sale of such
Note.
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(c)
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The
Company, however, expressly reserves the right to place the
Notes itself privately or through a negotiated underwritten
transaction with one or more underwriters without notice to
any Agent and without any opportunity for any Agent to solicit
offers for the purchase of the Notes. In such event, no
commission will be payable to the Agents.
Delivery
of the Notes sold to the Purchaser pursuant to any Terms
Agreement shall be made not later than the Closing Date agreed
to in such Terms Agreement, against payment of funds to the
Company in the net amount due to the Company for such Notes by
the method and in the form set forth in the Procedures unless
otherwise agreed to between the Company and the Purchaser in
such Terms Agreement.
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3.
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Offering and Sale of Notes. Each
Agent and the Company agree to perform the respective duties and
obligations specifically provided to be performed by them in the
Procedures.
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4.
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Agreements. The
Company agrees with you that:
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(a)
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Prior
to the termination of any offering of the Notes, the Company
will not file any amendment of the Registration Statement or
supplement to the Prospectus (except for (i) periodic or
current reports filed under the Exchange Act; (ii) a
supplement relating to any offering of Notes providing solely
for the specification of or a change in the maturity dates,
interest rates, issuance prices or other similar terms of any
Notes or (iii) a supplement relating to an offering of
Securities other than the Notes) unless the Company has
furnished each of you a copy for your review prior to filing
and given each of you a reasonable opportunity to comment on
any such proposed amendment or supplement. Subject to the
foregoing sentence, the Company will cause each supplement to
the Prospectus to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to you of
such filing. The Company will promptly advise each of you (i)
when the Prospectus, and any supplement thereto, shall have
been filed with the Commission pursuant to Rule 424(b); (ii)
when, prior to the termination of the offering of the Notes,
any amendment of the Registration Statement shall have been
filed or become effective; (iii) of any request by the
Commission for any amendment of the Registration Statement or
supplement to the Prospectus or for any additional
information; (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding
for that purpose; and (v) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
The Company will use every reasonable effort to prevent the
issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
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(b)
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If,
at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then supplemented would
include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading, or if it shall be necessary to
amend the Registration Statement or to supplement the
Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (i)
notify each of you to suspend solicitation of offers to
purchase Notes (and, if so notified by the Company, each of
you shall forthwith suspend such solicitation and cease using
the Prospectus as then supplemented); (ii) prepare and file
with the Commission, subject to the first sentence of
paragraph (a) of this Section 4, an amendment or supplement
which will correct such statement or omission or effect such
compliance; and (iii) supply any supplemented Prospectus to
each of you in such quantities as you may reasonably request.
If such amendment or supplement, and any documents,
certificates and opinions furnished to each of you pursuant to
paragraph (g) of this Section 4 in connection with the
preparation or filing of such amendment or supplement are
satisfactory in all respects to you, you will, upon the filing
of such amendment or supplement with the Commission and upon
the effectiveness of an amendment to the Registration
Statement, if such an amendment is required, resume your
obligation to use your reasonable best efforts to solicit
offers to purchase Notes hereunder
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(c)
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The
Company, during the period when a prospectus relating to the
Notes is required to be delivered under the Act, will file
promptly all documents required to be filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act and will furnish to each of you copies of
such documents. In addition, on or prior to the date on which
the Company makes any announcement to the general public
concerning earnings or concerning any other event which is
required to be described, or which the Company proposes to
describe, in a document filed pursuant to the Exchange Act,
the Company will furnish to each of you the information
contained or to be contained in such announcement. The Company
also will furnish to each of you copies of all other press
releases or announcements to the general public. The Company
will immediately notify each of you of any downgrading in the
rating of the Notes or any other Unsecured Notes of the
Company, or any proposal to downgrade the rating of the Notes
or any other Unsecured Notes of the Company, by any
"nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), as soon as
the Company learns of any such downgrading or proposal to
downgrade.
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(d)
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As
soon as practicable, the Company will make generally available
to its security holders and to each of you an earning
statement or statements of the Company which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the
Act.
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(e)
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The
Company will fu
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