Exhibit 1
PUBLIC SERVICE COMPANY OF OKLAHOMA
SENIOR NOTES
UNDERWRITING AGREEMENT
_________, 20__
Public Service Company of Oklahoma
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
We (the "Managers") understand that Public Service Company of
Oklahoma, an Oklahoma corporation (the "Company"), proposes to issue and sell
$200,000,000 aggregate principal amount of its __% Senior Notes due __________,
20__ (the "Offered Securities"). Subject to the terms and conditions set forth
herein or incorporated by reference herein, the Company hereby agrees to sell
and the underwriter or underwriters named in Schedule I hereto (such underwriter
or underwriters being herein called the "Underwriters") agree to purchase,
severally and not jointly, the principal amounts of such Offered Securities set
forth opposite their names in Schedule I hereto at ____% of their principal
amount plus accrued interest, if any, from _________, 20__ to the date of
payment and delivery.
The Underwriters will pay for such Offered Securities at the
offices of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m., New York Time, on _________, 20__, or at
such other place and time, not later than _________, 20__ as shall be mutually
agreed. The Offered Securities shall be concurrently delivered to the
Underwriters at the offices of _________, New York, New York. [In accordance
with Rule 15c6-1(d) promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), the Underwriters agree to this alternative date
for the payment of funds and delivery of the Offered Securities in lieu of that
required by paragraphs (a) and (c) of Rule 15c6-1 under the Exchange Act.]
The Offered Securities shall have the following terms:
Maturity: _________, 20__
Interest Rate: As described in the Prospectus and applicable
Prospectus Supplement for the Offered Securities
Optional Redemption
Provisions: As described in the Prospectus and applicable
Prospectus Supplement for the Offered Securities
Interest Payment Dates: ______, ______, _____, and _____, commencing
________, 20__.
Address for Notices
to Managers under
Underwriting Agreement: [ ]
Address for Notices, etc.:
[ ]
Payment Method: Federal (same day) Funds by wire transfer to an
account to be specified by the Company.
Other Terms: As described in the Prospectus and applicable
Prospectus Supplement for the Offered Securities
Form of Designated
Securities: Book-entry only form represented
by one or more global securities
deposited with The Depository Trust
Company ("DTC") or its designated
custodian for trading in the
Same Day Funds Settlement System
of DTC, and to be made available for
checking by the Representatives at
least twenty-four hours prior to the
Time of Delivery at the office of
DTC.
All the provisions contained in the document entitled Public
Service Company of Oklahoma Underwriting Agreement Standard Provisions (Senior
Notes-Shelf) dated _________, 20__, a copy of which you and we have previously
received, are herein incorporated by reference in their entirety and shall be
deemed to be a part of this Underwriting Agreement to the same extent as if such
provisions had been set forth in full herein. References herein and therein to
numbered sections of the Underwriting Agreement shall mean the numbered sections
of such Standard Provisions.
Please confirm your agreement by having an authorized officer
sign a copy of this Underwriting Agreement in the space set forth below and
returning the signed copy to us. This Underwriting Agreement may be signed in
any number of counterparts with the same effect as if the signature thereto and
hereto were upon the same instrument. It is understood that our acceptance of
this agreement on behalf of each of the Underwriters is or will be pursuant to
the authority set forth in a form of Agreement Among Underwriters, the form of
which shall be submitted to the Company for examination, upon request.
Very truly yours,
[ ]
By: _____________________________
Title: _____________________________
(Acting severally on behalf of themselves and
the several Underwriters named in Schedule I hereto)
Accepted:
PUBLIC SERVICE COMPANY OF OKLAHOMA
By:_________________________________
Name:
Title:
Schedule 1
Underwriters Principal Amount of Offered Securities
[ ] [ ]
[ ] [ ]
[ ] [ ]
Total $200,000,000
PUBLIC SERVICE COMPANY OF OKLAHOMA
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (SENIOR NOTES-SHELF)
Dated _____, 20__
From time to time Public Service Company of Oklahoma, an
Oklahoma corporation (the "Company"), may enter into one or more underwriting
agreements that provide for the sale of designated securities to the several
underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement and any such
underwriting agreement, including the provisions incorporated therein by
reference, is herein referred to as the "Underwriting Agreement".
The Company proposes to issue the series of Senior Notes
specified in the attached Underwriting Agreement (the "Offered Securities")
pursuant to the provisions of its Indenture dated _____, 20__, as the same may
from time to time be amended or supplemented (the "Indenture"), to The Bank of
New York, a New York banking association, as Trustee (the "Trustee"). The
Offered Securities will have the terms and rights, including the maturity, rate
and times of payment of interest, selling price and redemption terms, and other
terms, as set forth in the Underwriting Agreement and Prospectus (as hereinafter
defined). The Underwriting Agreement shall be in the form of an executed writing
(which may be in counterparts) and may be evidenced by facsimile or any other
electronic transmission designed to produce a written record of communications
transmitted.
1. Representations and Warranties of the Company.
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No.
333-____), including a prospectus, relating to the Offered Securities, and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act"), and such registration
statement has become effective. The Company has prepared or will promptly
prepare for filing with, or transmission for filing to, the Commission, pursuant
to Rule 424 under the Securities Act, a Prospectus Supplement (the "Supplement")
for the purpose of supplying information in respect of the public offering of
the Offered Securities, the names of the underwriter or group of underwriters
and other matters. The registration statement, as amended at the time it became
effective, including the information contained in the final prospectus filed
with the Commission pursuant to Rule 424(b) of the Securities Act, and the
prospectus, as supplemented by the Supplement, relating to the Offered
Securities in final form as filed with the Commission pursuant to Rule 424 under
the Securities Act, are hereinafter called the "Registration Statement" and the
"Prospectus", respectively. The term "Basic Prospectus" means the prospectus
included in the Registration Statement.
The term "preliminary prospectus" means a preliminary
prospectus supplement, if any, relating to the Offered Securities together with
the Basic Prospectus. Whenever the word "Registration Statement", "registration
statement", "Prospectus", "preliminary prospectus" or "prospectus" is used
herein it shall be deemed to include all documents incorporated therein by
reference pursuant to the requirements of Form S-3 under the Securities Act (the
"Incorporated Documents").
(b) The Company is subject to the jurisdiction of the Oklahoma
Corporation Commission ("OCC") which is vested with powers of supervision,
regulation and control over various matters including the issuance of
securities. No authorization, approval or consent of any Federal or Oklahoma
court or governmental authority or agency is necessary in connection with the
sale of the Offered Securities hereunder, including under the Public Utility
Holding Company Act of 1935, as amended (the "1935 Act"), except (i) for such
order as is required by the OCC authorizing the issuance and sale of the Offered
Securities on terms consistent with this Agreement, which order has been
obtained, is in full force and effect and has been heretofore delivered to the
several underwriters named in the Underwriting Agreement, and (ii) as otherwise
may be required under the Securities Act and the rules and regulations of the
Commission thereunder or state securities or Blue Sky laws.
(c) The Basic Prospectus relating to the Offered Securities as
originally filed, or as a part of any amendment thereto, any preliminary
prospectus at the time of its issuance, and the Registration Statement and the
Prospectus and any amendment or supplement to the Registration Statement or the
Prospectus as of their effective or issue dates, and as of the Closing Date (as
hereinafter defined), complied or will comply, in each case in all material
respects, with the provisions of the Securities Act and the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), and the rules and regulations
of the Commission under said Acts, and neither the Registration Statement nor
any amendment thereto contains or will contain an untrue statement of a material
fact or omits or will omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading and
the Basic Prospectus, any preliminary prospectus, the Prospectus or any
amendment or supplement thereto does not include and will not include an untrue
statement of a material fact and does not omit and will not omit to state a
material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances under which they were made not misleading;
provided that the foregoing representations and warranties in this subsection
(c) shall not apply to omissions from the Registration Statement or Prospectus
resulting from the failure of any of the Underwriters to furnish the Company
with the information pertaining to such Underwriters and the underwriting of the
Offered Securities required to complete the Registration Statement or the
Prospectus, to statements in the Form T-1 filed by the Trustee as exhibit to the
Registration Statement or to statements in or omissions from the Prospectus made
in reliance upon and in conformity with information furnished in writing to the
Company by any of the Underwriters for use in connection with the preparation of
the Prospectus. The Incorporated Documents that were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), complied at their
respective times of filing, and any documents deemed to be incorporated in the
Registration Statement and Prospectus at all times during which a prospectus is
required to be delivered under the Securities Act will comply at their
respective times of filing, with the provisions of the Exchange Act and the
rules and regulations of the Commission thereunder.
(d) Except as the Company may have furnished supplemental
information to each prospective Underwriter or to the Managers prior to the
receipt of proposals to purchase the Offered Securities as to matters to be
reflected in the Prospectus, since the respective dates as of which information
is given in the Registration Statement and in the Prospectus, there has been no
(A) material adverse change in the condition, financial or otherwise, or in the
earnings of the Company, or (B) adverse development concerning the Company's
business or assets which would result in a material adverse change in its
prospective financial condition or results of operations, except such changes as
are set forth or contemplated in such Registration Statement (including the
financial statements and notes thereto included or incorporated by reference in
the Registration Statement) or the Prospectus.
(e) At or prior to the acceptance by the Company of a proposal
for the purchase of the Offered Securities, the Company will have taken all
corporate action necessary to be taken by it to authorize the acceptance of such
proposal and, at or before the Closing Date, will have taken all corporate
action necessary to be taken by it to authorize the performance by it of all
obligations on its part to be performed under the Underwriting Agreement; and
the consummation of the transactions contemplated in, and the fulfillment of the
terms of, the Underwriting Agreement will not result in a breach of any of the
terms and provisions of, or constitute a default under, any indenture, mortgage,
deed of trust or other agreement or instrument to which the Company is a party
at the Closing Date, or the Restated Articles of Incorporation of the Company,
as amended, or any order, rule or regulation applicable to the Company of any
court or of any state or Federal regulatory body or administrative agency having
jurisdiction over the Company or over its property.
(f) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P. are independent accountants with
respect to the Company as required by the Securities Act and the applicable
rules and regulations thereunder.
2. Purchase, Sale and Delivery of Offered Securities.
The Company is advised by the Managers that the Underwriters
propose to make a public offering of their respective portions of the Offered
Securities as soon after the Underwriting Agreement is entered into as in the
Managers' judgment is advisable. The terms of the public offering of the Offered
Securities are or will be set forth in the Prospectus.
Payment for the Offered Securities shall be made in
immediately available funds by wire transfer to an account designated in writing
by the Company (unless the Underwriting Agreement shall otherwise specify) at
the time and place set forth in the Underwriting Agreement upon delivery to the
Managers for the respective accounts of the several Underwriters of the Offered
Securities registered in such names and in such denominations as the Managers
shall request in writing not less than two full business days prior to the date
of delivery. The Company agrees to have the Offered Securities available for
inspection, checking and packaging by the Managers at the location indicated in
the Underwriting Agreement not later than 1:00 P.M. on the business day next
prior to the Closing Date. The time and date of such payment and delivery with
respect to the Offered Securities are herein referred to as the "Closing Date".
3. Covenants of the Company.
The Company covenants and agrees with each of the Underwriters
that:
(a) As soon as practicable after the acceptance of a proposal
to purchase the Offered Securities, the Company will file the Supplement with
the Commission pursuant to Rule 424(b) of the Securities Act. The Company will
not file at any time prior to the Closing Date any other amendment to the
Registration Statement or any supplement to the Prospectus, or any other amended
prospectus or any document that upon the filing thereof would become an
Incorporated Document of which Sidley & Austin ("Underwriters' Counsel") shall
not previously have been advised and furnished with a copy or to which the
Managers shall reasonably object in writing.
(b) The Company will advise the Managers immediately, and
confirm such advice promptly in writing, of the effectiveness of any amendment
to the Registration Statement.
(c) The Company will notify promptly each of the Underwriters
in the event of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or in the event of the institution
or notice of intended institution by the Commission of any action or proceeding
for that purpose. In the event the Commission shall enter a stop order
suspending the effectiveness of the Registration Statement, whether before or
after the Offered Securities have been delivered to the Managers or the
Underwriters and paid for as provided in the Underwriting Agreement, the Company
will make every reasonable effort to obtain, as promptly as possible, the entry
by the Commission of an order setting aside any such stop order or otherwise
reinstating the effectiveness of the Registration Statement.
(d) The Company will deliver to the Managers, on or before the
Closing Date, one signed copy of the registration statement as originally filed
and of each amendment thereto (in each case including all exhibits thereto,
other than exhibits incorporated by reference), and will also deliver to the
Managers, for distribution to the Underwriters, a sufficient number of conformed
copies of each of the foregoing (but without exhibits) so that one copy of each
may be distributed to each of the Underwriters. The Company will also send to
the Managers or to the Underwriters, without expense to them, as soon as
practicable after the date hereof, and thereafter from time to time during a
period of nine months after such date, as many copies of any preliminary
prospectus and the Prospectus as the Managers may reasonably request for the
purposes contemplated by the Securities Act.
(e) The Company will use its best efforts, when and as
requested by the Managers, to furnish information and otherwise cooperate in
qualifying or registering the Offered Securities for offer and sale under the
securities or "blue sky" laws of such jurisdictions as the Managers may
designate, but the Company shall not thereby be obligated to qualify as a
foreign corporation in, or to execute or file any general consent to service of
process under the laws of, any jurisdiction. The Company will pay the
Underwriters' Counsel all reasonable fees (including counsel fees) and expenses
incurred by them in connection with such qualification or registration of the
Offered Securities for offer or sale, not exceeding, however, $6,000 in the
aggregate.
(f) If the Underwriting Agreement shall be terminated pursuant
to the provisions of Section 4 or 6(a), the Company will pay the reasonable fees
and disbursements of Underwriters' Counsel in connection with the contemplated
issue and sale of the Offered Securities, unless such termination is caused by
any default by the Managers or any of the Underwriters in the performance of
their respective obligations hereunder. Except as provided in this subsection
(f), the Underwriters shall pay the fees of Underwriters' Counsel and reimburse
such counsel for their reasonable expenses paid or incurred in connection with
the issue and sale of the Offered Securities. The Company shall not in any event
be liable to any of the Underwriters for damages on account of loss of
anticipated profits.
(g) The Company will, so long as any of the Offered Securities
shall be outstanding, deliver to the Managers upon their request, and to each
other Underwriter who may so request, copies of all public reports and all
reports and financial statements furnished by the Company to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder.
(h) During a period of nine months after the date of the
Prospectus, if any event relating to or affecting the Company or its
subsidiaries, if any, or of which the Company shall be advised in writing by the
Managers, shall occur as a result of which it is necessary, in the opinion of
counsel for the Company, to supplement or amend the Prospectus in order to make
the Prospectus not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser of Offered Securities from any of the
Underwriters, the Company will forthwith at its expense prepare and furnish to
the Managers or to the Underwriters a reasonable number of copies of a
supplement or supplements or an amendment or amendments to the Prospectus (in
form satisfactory to Underwriters' Counsel) which will supplement or amend the
Prospectus so that, as so supplemented or amended, it will not include 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, in
the light of the circumstances existing at the time the Prospectus is delivered
to such a purchaser, not misleading. In case any of the Underwriters is required
to deliver a prospectus descriptive of the Offered Securities after the
expiration of nine months after the date of the Prospectus, the Company, upon
the request of the Managers, will furnish to the Managers, at the expense of
such Underwriter, a reasonable quantity of amendments or supplements to the
Prospectus complying with Section 10 of the Securities Act. For the purpose of
this subsection (h), the Company will furnish such information with respect to
itself and its subsidiaries, if any, as the Managers may from time to time
reasonably request, and during said nine-month period, the Company will prepare
and continue to file with the Commission all documents required to be filed
under the Exchange Act.
(i) The Company will make generally available to its security
holders, as soon as practicable, an earnings statement (which need not be
audited) covering a period of at least twelve months beginning not earlier than
the date of the Prospectus, which earnings statement shall satisfy the
requirements of Section 11(a) of the Securities Act.
4. Conditions of Underwriters' Obligations.
The obligations of the Underwriters to purchase and pay for
the Offered Securities shall be subject to the performance by the Company of its
obligations to be performed under the Underwriting Agreement at or prior to the
Closing Date, to the continued accuracy in all material respects of the
representations and warranties of the Company contained in the Underwriting
Agreement, and to the following conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing and in accordance with Section 1(a) of this Agreement; no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the Securities Act, or proceedings therefor instituted or
threatened by the Commission, on or prior to the Closing Date.
(b) At or prior to the Closing Date, the Underwriters shall
have received from Underwriters' Counsel an opinion (subject to the reservation
that they have relied upon the opinions of several counsel for the Company
referred to in subsection (d) of this Section 4 as to matters governed by the
laws of Oklahoma and Texas, respectively), to the effect set forth in Annex I.
(c) At or prior to the Closing Date, the Underwriters shall
have received from Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company,
an opinion in form and substance satisfactory to Underwriters' Counsel, to the
effect set forth in Annex II.
(d) At or prior to the Closing Date, the Underwriters shall
have received the following opinions in the form and substance satisfactory to
Underwriters' Counsel:
(i) The opinion from [Doerner, Saunders, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, L.L.P., Tulsa, Oklahoma,] Oklahoma
counsel for the Company, to the effect set
forth in Annex III; and
(ii) The opinion from [Wagstaff, Alvis, Stubbeman,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP,] Texas counsel for
the Company, to the effect set forth in Annex
IV.
(e) At or prior to the Closing Date, the Underwriters shall
have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P. a letter dated the Closing Date to the
effect set forth in Annex V.
The form of letter shall reflect the inclusion of any
subsequently dated financial information, the incorporation by reference of any
subsequently filed Annual Report on Form 10-K or Quarterly Report on Form 10-Q
and/or the inclusion in the Prospectus of any financial information.
Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall not have
been any change or decrease specified in the letter required by this subsection
(e) which is, in the judgment of the Managers, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or the delivery
of the Offered Securities as contemplated by the Registration Statement and the
Prospectus.
(f) At the Closing Date the Managers shall have received a
certificate, dated as of the Closing Date, signed by the President or a Vice
President and the Treasurer or the Secretary of the Company, to the effect that
(A) to the best of the knowledge of the signers, no stop order suspending the
effectiveness of the Registration Statement has been issued under the Securities
Act and no proceedings therefor have been instituted or threatened by the
Commission, (B) the order of the OCC referred to in subsection (b) of Section 1
of the Underwriting Agreement is, to the best of the knowledge of the signers,
in full force and effect, and (C) since the respective dates as of which
information is given in the Registration Statement or Prospectus, there has been
no (x) material adverse change in the condition, financial or otherwise, or in
the earnings of the Company or (y) adverse development concerning the Company's
business or assets which would result in a material adverse change in its
prospective financial condition or results of operations, except such changes as
are set forth or contemplated in the Registration Statement or the Prospectus
(including financial statements and notes thereto contained in the Incorporated
Documents).
(g) All proceedings to be taken in connection with the
issuance and sale of the Offered Securities by the Company as contemplated in
the Underwriting Agreement shall be satisfactory in form and substance to
Underwriters' Counsel.
In case any of the conditions specified in this Section 4
shall not have been fulfilled, the Underwriting Agreement may be terminated by
the Managers with the consent of Underwriters who have agreed to purchase in the
aggregate more than fifty percent of the total principal amount of the Offered
Securities upon delivering written notice thereof to the Company. Any such
termination shall be without liability of any party to any other party except as
otherwise provided in subsection (f) of Section 3 of the Underwriting Agreement.
5. Indemnification.
(a) The Company agrees to indemnify and hold harmless each of
the Underwriters and each person, if any, who controls any of the Underwriters
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages or
liabilities, joint or several, to which such Underwriter or such controlling
person may become subject under the Securities Act, the Exchange Act or the
common law or otherwise, and to reimburse each such Underwriter or such
controlling person for any reasonable legal or other expenses (including, to the
extent hereinafter provided, reasonable counsel fees) incurred by it or them in
connection with defending against any such losses, claims, damages or
liabilities, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in (1) the Registration Statement, the
Basic Prospectus, any preliminary prospectus, or the Prospectus or any amendment
to the Registration Statement or amendment or supplement to the Prospectus, or
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(2) the Prospectus or the Prospectus as amended or supplemented, if such losses,
claims, damages or liabilities arise out of or are based upon the use of the
Prospectus or the Prospectus as amended or supplemented after the Company shall
have amended or supplemented the Prospectus, or any omission or alleged omission
to state therein 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 indemnity agreement contained in this
subsection (a) shall not apply to any such losses, claims, damages or
liabilities arising out of or based upon (i) any such untrue statement or
alleged untrue statement, or any such omission or alleged omission, if such
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company by any of the Underwriters for
use in the Registration Statement or the Prospectus or any amendment or
supplement to either thereof, (ii) any statement made in the Form T-1 filed by
the Trustee as an exhibit to the Registration Statement or (iii) the failure of
any Underwriter to deliver (either directly or through the Managers) a copy of
the Prospectus (excluding the Incorporated Documents), or of the Prospectus as
amended or supplemented after it shall have been amended or supplemented by the
Company (excluding the Incorporated Documents), to any person to whom a copy of
any preliminary prospectus shall have been delivered by or on behalf of such
Underwriter to whom any Offered Securities shall have been sold by such
Underwriter, as such delivery may be required by the Securities Act and the
rules and regulations of the Commission thereunder.
(b) Each of the Underwriters agrees to indemnify and hold
harmless the Company, each of its officers who signs the Registration Statement,
each of its directors, each person who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, each
other Underwriter and each person, if any, who so controls any such other
Underwriter, from and against any and all losses, claims, damages or
liabilities, joint or several, to which any one or more of them may become
subject under the Securities Act, the Exchange Act or the common law or
otherwise, and to reimburse each of them for any reasonable legal or other
expenses (including, to the extent hereinafter provided, reasonable counsel
fees) incurred by them in connection with defending against any such losses,
claims, damages or liabilities of the character above specified arising out of
or based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus or any amendment
to the Registration Statement or amendment or supplement to the Prospectus or
upon any omission or alleged omission to state in any thereof a material fact
required to be stated therein or necessary to make the statements therein not
misleading if such statement or omission was made in reliance upon and in
conformity with information furnished in writing to the Company by such
Underwriter for use in the Registration Statement or the Prospectus or any
amendment or supplement to either thereof, or (ii) the failure of such
Underwriter to deliver (either directly or through the Managers) a copy of the
Prospectus (excluding the Incorporated Documents), or of the Prospectus as
amended or supplemented after it shall have been amended or supplemented by the
Company (excluding the Incorporated Documents), to any person to whom a copy of
any preliminary prospectus shall have been delivered by or on behalf of such
Underwriter and to whom any Offered Securities shall have been sold by such
Underwriter, as such delivery may be required by the Securities Act and the
rules and regulations of the Commission thereunder.
(c) Promptly after receipt by a party indemnified under this
Section 5 (an "indemnified party") of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to be made against
a party granting an indemnity under this Section 5 (the "indemnifying party"),
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 5. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof (thereby conceding that the action in question is subject to
indemnification by the indemnifying party hereunder), with counsel satisfactory
to such indemnified party; provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert and
conduct such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 5 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
Managers in the case of subsection (a), representing the indemnified parties
under subsection (a) who are parties to such action), (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (i)
or (iii).
(d) If the indemnification provided for in this Section 5
shall be unenforceable under applicable law by an indemnified party, the Company
agrees to contribute to such indemnified party with respect to any and all
losses, claims, damages and liabilities for which such indemnification provided
for in this Section 5 shall be unenforceable, in such proportion as shall be
appropriate to reflect the relative fault of the Company on the one hand and the
indemnified party on the other in connection with the statements or omissions
which have resulted in such losses, claims, damages and liabilities, as well as
any other relevant equitable considerations; provided, however, that no
indemnified party guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from the
Company if the Company is not guilty of such fraudulent misrepresentation.
Relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or the indemnified party and each such party's relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and each of the Underwriters agree
that it would not be just and equitable if contributions pursuant to this
subparagraph were to be determined solely by pro rata allocation or by any other
method of allocation which does not take account of the equitable considerations
referred to above.
(e) The indemnity and contribution agreements contained in
this Section 5 and the representations and warranties of the Company in the
Underwriting Agreement shall remain operative and in full force regardless of
(i) any termination of the Underwriting Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the Company, its directors or officers or any person
controlling the Company and (iii) delivery of and payment for any of the Offered
Securities.
6. Termination.
(a) If the Offered Securities are being purchased for the
purpose of resale, the Underwriting Agreement may be terminated, at any time
prior to the Closing Date, by the Managers with the consent of Underwriters who
have agreed to purchase in the aggregate more than fifty percent of the total
principal amount of the Offered Securities, if (a) there shall have occurred any
general suspension or material limitation on trading in securities on the New
York Stock Exchange or by the Commission or by any federal or state agency or by
the decision of any court, any limitation on prices for such trading or any
restrictions on the distribution of securities, (b) trading in any securities of
the Company shall have been suspended by the Commission or a national securities
exchange, (c) a general banking moratorium on commercial banking activities in
New York shall have been declared either by federal or New York State
authorities, (d) the rating assigned by any nationally recognized securities
rating agency to any securities of the Company as of the date of the
Underwriting Agreement shall have been lowered since that date, or (e) there
shall have occurred any outbreak or material escalation of hostilities or other
calamity or crisis, the effect of which on the financial markets of the United
States is such as to make it, in the judgment of the Managers, impracticable to
market the Offered Securities.
(b) Any termination of the Underwriting Agreement pursuant to
this Section 6 shall be without liability of any party to any other party except
as otherwise provided in subsection (f) of Section 3.
7. Default by an Underwriter.
If any one or more Underwriters shall fail to purchase and pay
for any of the Offered Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall constitute a default
in the performance of its or their obligations under the Underwriting Agreement,
the remaining Underwriters shall be obligated severally to take up and pay for
(in the respective proportions which the amount of Offered Securities set forth
opposite their names in Schedule I to the Underwriting Agreement bears to the
aggregate amount of Offered Securities set opposite the names of all the
remaining Underwriters) the Offered Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate amount of Offered Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase (less such aggregate
amount of Offered Securities as are purchased by substituted underwriters
selected by the Managers with the approval of the Company or selected by the
Company with the approval of the Managers) shall exceed 10% of the aggregate
amount of Offered Securities set forth in such Schedule I, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Offered Securities, and if such nondefaulting
Underwriters do not purchase all the Offered Securities, the Underwriting
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company (except as otherwise provided in subsection (f) of Section 3). In
the event of a default by an Underwriter as set forth in this Section 7, the
Closing Date shall be postponed for such period, not exceeding seven calendar
days, as the Company and the Managers shall determine in order that the required
changes in the Registration Statement and the Prospectus or in any other
documents or arrangements may be effected. Nothing contained in the Underwriting
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default thereunder.
8. Notice.
All communications under the Underwriting Agreement will be
effective only on receipt, and, if sent to the Managers, will be mailed,
delivered or faxed and confirmed to them, at the address, or telephoned to them
at the number, specified in the Underwriting Agreement and to Sidley & Austin,
Bank One Plaza, ▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it in care of Central and South West Corporation,
1616 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Freeway, ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, attention of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, in each case with written confirmation of such communication
sent to Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
9. Successors.
The Underwriting Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 5 of the
Underwriting Agreement, and no other person will have any right or obligation
hereunder and no other person (including a purchaser, as a purchaser, from any
Underwriter of any of the Offered Securities) shall acquire or have any rights
under or by virtue of the Underwriting Agreement.
10. Governing Law.
The Underwriting Agreement shall be governed by and construed
in accordance with the laws of the State of New York.