EXHIBIT 1
PUBLIC SERVICE COMPANY OF
OKLAHOMA
Underwriting Agreement
Dated
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AGREEMENT made
between PUBLIC SERVICE COMPANY OF OKLAHOMA, a corporation organized
and existing under the laws of the State of Oklahoma (the
"Company"), and the several persons, firms and corporations (the
"Underwriters") named in Exhibit 1 hereto.
WHEREAS, the
Company proposes to issue and sell $__________ principal amount of
its Notes to be issued pursuant to the Indenture dated as of
November 1, 2000, between the Company and The Bank of New York, 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 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 Notes,
first filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) of the Commission's General Rules and
Regulations under the Act (the Rules), including all documents then
incorporated or deemed to have been incorporated therein by
reference, being herein call the Prospectus.
NOW, THEREFORE,
in consideration of the premises and the mutual covenants herein
contained, it is agreed between the parties as follows:
1.
Purchase and Sale
: Upon the basis of the warranties and
representations and on the terms and subject to the conditions
herein set forth, the Company agrees to sell to the respective
Underwriters named in Exhibit 1 hereto, severally and not jointly,
and the respective Underwriters, severally and not jointly, agree
to purchase from the Company, the respective principal amounts of
the Notes set opposite their names in Exhibit 1 hereto, together
aggregating all of the Notes, at a price equal to ______% of the
principal amount thereof.
2.
Payment and Delivery
: Payment for the Notes shall be made to the
Company in immediately available funds or in such other manner as
the Company and the Representative shall mutually agree upon in
writing, upon the delivery of the Notes to the Representative for
the respective accounts of the Underwriters against receipt
therefor signed by the Representative on behalf of itself and for
the other Underwriters. Such delivery shall be made at 10:00 A.M.,
New York Time, on ____________ (or on such later business day, not
more than five business days subsequent to such day, as may be
mutually agreed upon by the Company and the Underwriters), unless
postponed in accordance with the provisions of Section 9 hereof, at
the office of Dewey Ballantine LLP, 1301 Avenue of the Americas,
New York, New York 10019, or at such other place as the Company and
the Representative shall mutually agree in writing. The time at
which payment and delivery are to be made is herein called the Time
of Purchase.
The delivery of
the Notes shall be made in fully registered form, registered in the
name of CEDE & CO., to the offices of The Depository Trust
Company in New York, New York and the Underwriters shall accept
such delivery.
3.
Conditions of Underwriters'
Obligations :
The several obligations of the
Underwriters hereunder are subject to the accuracy of the
warranties and representations on the part of the Company on the
date hereof and at the Time of Purchase and to the following other
conditions:
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That all legal
proceedings to be taken and all legal opinions to be rendered in
connection with the issue and sale of the Notes shall be
satisfac-tory in form and substance to Dewey Ballantine LLP,
counsel to the Underwriters.
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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 Dewey
Ballantine LLP, counsel to the Underwriters
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Opinion of
Jeffrey D. Cross, Esq., Thomas G. Berkemeyer, Esq. or William E.
Johnson, Esq., counsel to the Company, substantially in the form
heretofore previously provided to the Underwriters; and
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Opinion of
Dewey Ballantine LLP, counsel to the Underwriters, substantially in
the form heretofore previously provided to the
Underwriters.
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That the
Representative shall have received on the date hereof and shall
receive at the Time of Purchase letters from Deloitte & Touche
LLP dated the date hereof and the day of the Time of Purchase,
respectively, in form and substance satisfactory to the
Representative (which may refer to the letters previously delivered
to the Representative, as applicable) (i) confirming that with
respect to the Company they are an independent registered public
accounting firm within the meaning of the Act and the applicable
published rules and regulations of the Commission thereunder, (ii)
stating that in their opinion the consolidated financial statements
audited by them and included or incorporated by reference in the
Registration Statement, Pricing Prospectus and Prospectus,
respectively, 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 less than three
business days and not more than five business days prior to the
date of each such letter, as applicable, such other matters as the
Representative reasonably requests.
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The pricing
term sheet contemplated by Section 6(b) hereof, and any other
material required pursuant to Section 433(d), shall have been filed
by the Company with the Commission within the applicable time
periods prescribed by Rule 433.
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That no
amendment to the Registration Statement and that no supplement to
the Pricing Prospectus or the Prospectus of the Company (other than
the Pricing Prospectus or amendments, prospectuses or prospectus
supplements relating solely to securities other than the Notes)
relating to the Notes and no document which would be deemed
incorporated in the Pricing Prospectus or Prospectus by reference
filed subsequent to the date hereof and prior to the Time of
Purchase shall contain material information substantially different
from that contained in the Registration Statement which is
unsatisfactory in substance to the Representative or unsatisfactory
in form to Dewey Ballantine LLP, counsel to the
Underwriters.
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That, at the
Time of Purchase, appropriate orders of the Corporation Commission
of Oklahoma, necessary to permit the sale of the Notes to the
Underwriters, shall be in effect; and that, prior to the Time of
Purchase, no stop order with respect to the effectiveness of the
Registration Statement shall have been issued under the Act by the
Commission or proceedings therefor initiated.
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That, from the
date hereof to the Time of Purchase, there shall not have been any
material adverse change in the business, properties or financial
condition of the Company from that set forth in the Pricing
Prospectus (other than changes referred to in or contemplated by
the Pricing Prospectus), and that the Company shall, at the Time of
Purchase, have delivered to the Representative a certificate of an
executive officer of the Company to the effect that, to the best of
his knowledge, information and belief, there has been no such
change.
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That the
Company shall have performed such of its obligations under this
Agreement as are to be performed at or before the Time of Purchase
by the terms hereof.
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4.
Certain Covenants of the
Company :
In further consideration of the
agreements of the Underwriters herein contained, the Company
covenants as follows:
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As soon as
practicable, and in any event within the time prescribed by Rule
424 under the Act, to file the Prospectus with the Commission and
make any other required filings pursuant to Rule 433; as soon as
the Company is advised thereof, to advise the Representative and
confirm the advice in writing of any request made by the Commission
for amendments to the Registration Statement, Pricing Prospectus or
Prospectus or for additional information with respect thereto or of
the entry of an order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of the
Pricing Prospectus or the Prospectus or of the initiation or threat
of any proceedings for that purpose and, if such an order should be
entered by the Commission, to make every reasonable effort to
obtain the prompt lifting or removal thereof.
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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 (or required to deliver but for Rule 172 under
the Act), as many copies of the Prospectus (as supplemented or
amended if the Company shall have made any supplements or
amendments thereto, other than supplements or amendments relating
solely to securities other than the Notes) as the Representative
may reasonably request; and in case any Underwriter is required to
deliver a prospectus after the expiration of nine months after the
date hereof, to furnish to any Underwriter, upon request, at the
expense of such Underwriter, a reasonable quantity of a
supplemental prospectus or of supplements to the Prospectus
complying with Section 10(a)(3) of the Act.
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To furnish to
the Representative a copy, certified by the Secretary or an
Assistant Secretary of the Company, of the Registration Statement
as initially filed with the Commission and of all amendments
thereto (exclusive of exhibits), other than amendments relating
solely to securities other than the Notes and, upon request, to
furnish to the Representative sufficient plain copies thereof
(exclusive of exhibits) for distribution to the other
Underwriters.
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For such period
of time (not exceeding nine months) after the date hereof as they
are required by law to deliver a prospectus (or required to deliver
but for Rule 172 under the Act), if any event shall have occurred
as a result of which it is necessary to amend or supplement the
Pricing Prospectus or the Prospectus in order to make the
statements therein, in the light of the circumstances when the
Pricing Prospectus or the Prospectus is delivered to a purchaser,
not contain any untrue statement of a material fact or not omit to
state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading, forthwith
to prepare and furnish, at its own expense, to the Underwriters and
to dealers (whose names and addresses will be furnished to the
Company by the Representative) to whom principal amounts of the
Notes may have been sold by the Representative for the accounts of
the Underwriters and, upon request, to any other dealers making
such request, copies of such amendments to the Pricing Prospectus
or the Prospectus or supplements to the Pricing Prospectus or the
Prospectus.
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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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To use its best
efforts to qualify the Notes for offer and sale under the
securities or "blue sky" laws of such jurisdictions as the
Representative may designate within six months after the date
hereof and itself to pay, or to reimburse the Underwriters and
their counsel for, reasonable filing fees and expenses in
connection therewith in an amount not exceeding $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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To pay all
expenses, fees and taxes (other than transfer taxes on resales of
the Notes by the respective Underwriters) in connection with the
issuance and delivery of the Notes, except that the Company shall
be required to pay the fees and disbursements (other than
disbursements referred to in paragraph (f) of this Section 4) of
counsel to the Underwriters, only in the events provided in
paragraph (h) of this Section 4 and paragraph (a) of Section 8, the
Underwriters hereby agreeing to pay such fees and disbursements in
any other event.
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If the
Underwriters shall not take up and pay for the Notes due to the
failure of the Company to comply with any of the conditions
specified in Section 3 hereof, or, if this Agreement shall be
terminated in accordance with the provisions of Section 9 or 10
hereof, to pay the fees and disbursements of counsel to the
Underwriters, and, if the Underwriters shall not take up and pay
for the Notes due to the failure of the Company to comply with any
of the conditions specified in Section 3 hereof, to reimburse the
Underwriters for their reasonable out-of-pocket expenses, in an
aggregate amount not exceeding a total of $10,000, incurred in
connection with the financing contemplated by this
Agreement.
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During the
period from the date hereof and continuing to and including the
earlier of (i) the date which is after the Time of Purchase on
which the distribution of the Notes ceases, as determined by the
Representative in its sole discretion, and (ii) the date which is
30 days after the Time of Purchase, the Company agrees not to
offer, sell, contract to sell or otherwise dispose of any Notes of
the Company or any substantially similar securities of the Company
without the consent of the Representative.
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5.
Warranties of the
Company :
The Company represents and warrants
to, and agrees with you, as set forth below:
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the
Registration Statement on its effective date complied with the
applicable provisions of the Act and the rules and regulations of
the Commission and the Registration Statement at its effective date
and as of the Applicable Time did not, and at the Time of Purchase
will not, contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, the Pricing
Disclosure Package as of the Applicable Time did not contain an
untrue statement of a material fact necessary or omit to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading, and the Basic Prospectus on the date of this Agreement
and the Prospectus as of its date complies, and at the Time of
Purchase the Prospectus will comply, with the applicable provisions
of the Act and the Trust Indenture Act of 1939, as amended (Trust
Indenture Act), and the rules and regulations of the Commission,
the Basic Prospectus on the date of this Agreement and the
Prospectus when first filed in accordance with Rule 424(b) under
the Act do not, and the Prospectus at the Time of Purchase will
not, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the Company
makes no warranty or representation to the Underwriters with
respect to any statements or omissions made in the Registration
Statement, the Basic Prospectus, any Permitted Free Writing
Prospectus or the Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by, or through
the Representative on behalf of, any Underwriter expressly for use
in the Registration Statement, the Basic Prospectus or Prospectus,
or to any statements in or omissions from that part of the
Registration Statement that shall constitute the Statement of
Eligibility under the Trust Indenture Act of any indenture trustee
under an indenture of the Company.
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As of the Time
of Purchase, the Indenture will have been duly authorized by the
Company and duly qualified under the Trust Indenture Act and, when
executed and delivered by the Trustee and the Company, will
constitute a legal, valid and binding instrument enforceable
against the Company in accordance with its terms and such Notes
will have been duly authorized, executed, authenticated and, when
paid for by the purchasers thereof, will constitute legal, valid
and binding obligations of the Company entitled to the benefits of
the Indenture, except as the enforceability thereof may be limited
by bankruptcy, insolvency, or other similar laws affecting the
enforcement of creditors' rights in general, and except as the
availability of the
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