Exhibit
1(a)
PUBLIC
SERVICE COMPANY OF OKLAHOMA
Underwriting
Agreement
Dated
November 9, 2009
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.
WITNESSETH:
WHEREAS, the Company proposes to issue
and sell $250,000,000 aggregate principal amount of its 5.15% Senior Notes,
Series H, due 2019 (the Notes) to be issued pursuant to the Indenture dated as
of November 1, 2000, between the Company and The Bank of New York Mellon, 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 persons signing this Agreement (collectively, the
Representatives) 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, as
amended (the Act), with the Securities and Exchange Commission (the Commission),
a registration statement (File No. 333-156319), a pre-effective amendment
thereto, and a prospectus relating to $600,000,000 principal amount of, among
other securities, its Senior Notes and such registration statement has become
effective; and
WHEREAS, such registration statement,
as amended, including the financial statements, the documents incorporated or
deemed incorporated therein by reference, and the exhibits thereto, being herein
called, collectively, the Registration Statement, and the prospectus, including
the documents incorporated or deemed incorporated therein by reference,
constituting a part of such Registration Statement, as it may be last amended or
supplemented prior to the effectiveness of this Agreement, but excluding any
amendment or supplement relating solely to securities other than the Notes,
being herein called the Basic Prospectus, and the Basic Prospectus, as amended
and supplemented, including documents incorporated by reference therein,
together with the Preliminary Prospectus Supplement dated November 9, 2009,
immediately prior to the Applicable Time (as defined below), being herein called
the Pricing Prospectus, and the Basic Prospectus included in the Registration
Statement, as it is to be supplemented by a final prospectus supplement (the
Prospectus Supplement) to include information relating to the Notes, including
the names of the Underwriters, the price and terms of the offering, the interest
rate, maturity date and certain other information relating to the Notes, which
will be filed with the Commission pursuant to 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 called the Prospectus.
For purposes of this Agreement, the
Applicable Time is 1:25 pm (New York Time) on the date of this Agreement and the
documents listed in Exhibit 3, taken together, collectively being herein called
the Pricing Disclosure Package.
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 99.067% 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 November 13, 2009 (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 & LeBoeuf 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
Representative shall accept such delivery on behalf of itself and the other
Underwriters.
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, at the Applicable Time, and at the
Time of Purchase and to the following other conditions:
|
|
(a)
|
That
all legal proceedings to be taken and all legal opinions to be rendered in
connection with the issue and sale of the Notes shall be satisfactory
in form and substance to Dewey & LeBoeuf LLP, counsel to the
Underwriters.
|
|
|
|
|
(b)
|
That,
at the Time of Purchase, the Representative shall be furnished with the
following opinions, dated the day of the Time of Purchase, with 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 & LeBoeuf LLP, counsel to
the Underwriters
|
|
|
|
|
|
|
|
|
(1)
|
Opinion
of Jeffrey D. Cross, Esq. or Thomas G. Berkemeyer, Esq., counsel to the
Company, substantially in the form heretofore previously provided to the
Underwriters; and
|
|
|
|
|
|
|
|
|
(2)
|
Opinion
of Dewey & LeBoeuf LLP, counsel to the Underwriters, substantially in
the form heretofore previously provided to the
Underwriters.
|
|
|
|
|
|
|
|
(c)
|
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 date of the Time of Purchase, respectively,
in form and substance satisfactory to the Representative (which may refer
to the letter 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 and the
Public Company Accounting Oversight Board (United States) thereunder, (ii)
stating that in their opinion the 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 more than three
business days prior to the date of each such letter, as applicable, such
other matters as the Representative reasonably
requests.
|
|
|
|
|
|
|
|
(d)
|
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.
|
|
|
|
|
|
|
|
(e)
|
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 Pricing Prospectus
which is unsatisfactory in substance to the Representative or
unsatisfactory in form to Dewey & LeBoeuf LLP, counsel to the
Underwriters.
|
|
|
|
|
|
|
|
(f)
|
That,
at the Time of Purchase, an appropriate order of the Corporation
Commission of the State 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.
|
|
|
|
|
|
|
|
(g)
|
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.
|
|
|
|
|
|
|
(h)
|
That
the Company shall have performed such of its obligations under this
Agreement as are to be performed at or before the Time of Purchase by the
terms hereof.
|
4.
Certain Covenants of the
Company
: In further consideration of the agreements of the
Underwriters herein contained, the Company covenants as follows:
|
|
(a)
|
As
soon as practicable, and in any event within the time prescribed by Rule
424 under the Act, to file the Prospectus with the Commission 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.
|
|
|
|
|
|
|
(b)
|
To
deliver to the Underwriters, without charge, as soon as practicable (and
in any event within 24 hours after the date hereof), and from time to time
thereafter during such period of time (not 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.
|
|
|
(c)
|
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.
|
|
|
(d)
|
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.
|
|
|
|
|
|
|
(e)
|
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.
|
|
|
|
|
|
|
(f)
|
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 and shall maintain such qualifications so long as required
for the offering and sale of the Notes within six months after the date
hereof and itself to pay, or to reimburse the Underwriters and their
counsel for, reasonable filing fees and expenses in connection therewith
in an amount not exceeding $3,500 in the aggregate (including filing fees
and expenses paid and incurred prior to the effective date hereof),
provided, however, that the Company shall not be required to qualify as a
foreign corporation or to file a consent to service of process or to file
annual reports or to comply with any other requirements deemed by the
Company to be unduly burdensome.
|
|
|
|
|
|
|
(g)
|
To
pay all expenses, fees and taxes (other than transfer taxes on resales of
the 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.
|
|
|
|
|
|
|
(h)
|
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.
|
|
|
|
|
|
|
(i)
|
During
the period from the date hereof and continuing to and including the
earlier of (i) the date which is after the Time of Purchase on which the
distribution of the 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.
|
5.
Warranties of the
Company
: The Company represents and warrants to, and agrees
with you, as set forth below:
|
|
(a)
|
the
Registration Statement on its effective date complied 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 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 and the Prospectus as of their
respective dates 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 the Trustee under the Indenture.
|
|
|
|
|
|
|
(b)
|
As
of the Time of Purchase, the Indenture will have been duly authorized by
the Company and duly qualified under the Trust Indenture Act 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 remedy of specific performance is subject to general
principles of equity (regardless of whether such remedy is sought in a
proceeding in equity or at law), and by an implied covenant of good faith
and fair dealing.
|
|
|
|
|
|
|
(c)
|
The
documents incorporated by reference in the Registration Statement or
Pricing Prospectus, when they were filed with the Commission, complied in
all material respects with the applicable provisions of the Securities
Exchange Act of 1934, as amended and the rules and regulations of the
Commission thereunder, and as of such time of filing, when read together
with the Pricing Prospectus, the Permitted Free Writing Prospectuses and
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. The
information contained in a Permitted Free Writing Prospectus listed in
Exhibit 3 does not conflict with the information contained in the
Registration Statement, the Pricing Prospectus or the Prospectus and no
such Permitted Free Writing Prospectus, taken together with the remainder
of the Pricing Disclosure Package as of the Applicable Time, did contain
an untrue statement of a material fact 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.
|
|
|
|
|
|
|
(d)
|
Since
the respective dates as of which information is given in the Registration
Statement and the Pricing Prospectus, except as otherwise referred to or
contemplated therein, there has been no material adverse change in the
business, properties or financial condition of the
Company.
|
|
|
|
|
|
|
(e)
|
This
Agreement has been duly authorized, executed and delivered by the
Company.
|
|
|
|
|
|
|
(f)
|
The
consummation by the Company of the transactions contemplated herein is not
in violation of its charter or bylaws, will not result in the violation of
any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court having
jurisdiction over the Company or its properties, and 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).
|
|
|
|
|
|
|
(g)
|
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 consummation of 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) the
qualification of the Indenture under the Trust Indenture Act; (C) the
approval of the Corporation Commission of the State of Oklahoma; and (D)
such consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or “Blue Sky”
laws.
|
|
|
|
|
|
|
(h)
|
The
consolidated financial statements of the Company and its consolidated
subsidiaries together with the notes thereto, included or incorporated by
reference in the Pricing Prospectus and the Prospectus present fairly the
financial position of the Company at the dates or for the periods
indicated; said consolidated financial statements have been prepared in
accordance with United States generally accepted accounting principles
applied, apart from reclassifications disclosed therein, on a consistent
basis throughout the periods involved; and the selected consolidated
financial information of the Company included in the Pricing Prospectus
and the Prospectus presents fairly the information shown therein and has
been compiled, apart from reclassifications disclosed therein, on a basis
consistent with that of the audited financial statements of the Company
included or incorporated by reference in the Pricing Prospectus and the
Prospectus.
|
|
|
|
|
|
|
(i)
|
There
is no pending action, suit, investigation, litigation or proceeding,
including, without limitation, any environmental action, affecting the
Company before any court, governmental agency or arbitration that is
reasonably likely to have a material adverse effect on the business,
properties, financial condition or results of operations of the Company,
except as disclosed in the Pricing Prospectus.
|
|
|
|
|
|
|
(j)
|
At
the determination date for purposes of the Notes within the meaning of
Rule 164(h) under the Act, the Company was not an “ineligible issuer” as
defined in Rule 405 under the Act.
|
|
|
|
|
|
|
(k)
|
The
Company has not made any filings pursuant to the Securities Exchange Act
of 1934, as amended, or the rules and regulations thereunder, within 24
hours preceding the Applicable
Time.
|
The Company’s 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 Notes hereunder.
|
6.
|
Free Writing
Prospectuses
:
|
|
|
(a)
|
The
Company represents and agrees that, without the prior consent of the
Representative, it has not made and will not make any offer relating to
the Notes that would constitute a “free writing prospectus” as defined in
Rule 405 under the Act, other than a Permitted Free Writing Prospectus;
each Underwriter, severally and not jointly, represents and agrees that,
without the prior consent of the Company and the Representative, it has
not made and will not make any offer relating to the Notes that would
constitute a “free writing prospectus,” as defined in Rule 405 under the
Act, other than a Permitted Free Writing Prospectus or one or more free
writing prospectuses that contain only preliminary or final terms of the
Notes (which may include prices of bonds from comparable issuers) and is
not required to be filed by the Company pursuant to Rule 433 or one or
more free writing prospectuses that contains information substantially the
same as the information contained in Exhibit 2 hereto (an “Underwriter
Free Writing Prospectus”); any such free writing prospectus the use of
which has been consented to by the Company and the Representative (which
shall include the pricing term sheet discussed in Section 6(b)) is listed
in Exhibit 3 and herein called a “Permitted Free Writing
Prospectus.”
|
|
|
|
|
|
|
(b)
|
The
Company agrees to prepare a pricing term sheet, substantially in the form
of Exhibit 2 hereto and approved by the Representative, and to file such
pricing term sheet pursuant to Rule 433(d) under the Securities Act within
the time period prescribed by such Rule.
|
|
|
|
|
|
|
(c)
|
The
Company and each Underwriter has complied and will comply with the
requirements of Rule 433 applicable to any other Permitted Free Writing
Prospectus, including timely Commission filing where required and
legending.
|
|
|
|
|
|
|
(d)
|
The
Company and each Underwriter agrees that if at any time following issuance
of a Permitted Free Writing Prospectus any event occurred or occurs as a
result of which such Permitted Free Writing Prospectus would conflict in
any material respect with the information in the Registration Statement,
the Pricing Prospectus or the Prospectus or include an untrue statement of
a material fact or omit to state any material fact necessary in order to
make the statements therein, in light of the circumstances then
prevailing, not misleading, then (i) the party that first becomes aware of
the foregoing will give prompt notice thereof to the Representative and/
or the Company, as applicable, and, (ii) if requested by the
Representative or the Company, as applicable, the Company will prepare and
furnish without charge a Permitted Free Writing Prospectus or other
document which will correct such conflict, statement or
omission.
|
|
|
|
|
|
|
(e)
|
Each
Underwriter agrees that (i) no information that is conveyed to investors
by such Underwriter has been or will be inconsistent with the information
contained in the Pricing Disclosure Package, and (ii) if an Underwriter
shall use an Underwriter Free Writing Prospectus that contains information
in addition to, or in conflict with, the Pricing Disclosure Package, the
liability arising from its use of such additional or conflicting
information shall be the sole responsibility of the Underwriter using such
Underwriter Free Writing Prospectus; provided, however, that, for the
avoidance of doubt, this clause 6(e)(ii) shall not be interpreted as
tantamount to the indemnification obligations contained in Section 8(b)
hereof.
|
7.
Warranties of
Underwriters
: 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 any Permitted
Free Writing Prospectus, in the Pricing Prospectus, in the
Prospectus, or in the Prospectus as amended or supplemented is correct as to
such Underwriter. 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 Notes
hereunder.
8.
Indemnification and
Contribution
:
|
|
(a)
|
To
the extent permitted by law, the Company agrees to indemnify and hold each
Underwriter harmless, each Underwriter’s employees, agents, officers and
directors and each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Act, against any and all losses, claims,
damages or liabilities, joint or several, to which an Underwriter, they or
any of you or them may become subject under the Act or otherwise, and to
reimburse the Underwriters, they or any of you or them, 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 (if used prior to the effective date of this
Agreement), in the Pricing Prospectus, in any Permitted Free Writing
Prospectus, in any “issuer free writing prospectus” (as defined in Rule
433 under the Act) or in the Prospectus, or if the Company shall furnish
or cause to be furnished to the Underwriters any amendments or any
supplements to the Pricing Prospectus or the Prospectus, in the Pricing
Prospectus or the Prospectus as so amended or supplemented except to the
extent that such amendments or supplements relate 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, in
the Pricing Prospectus, in any Permitted Free Writing Prospectus, in any
“issuer free writing prospectus” (as defined in Rule 433 under the Act) 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 the Representative 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 the Trustee under the Indenture. Each
Underwriter agrees promptly after its receipt 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 8(a) may be sought
by any such Underwriter, or by any person controlling any such
Underwriter, to notify the Company in writing of the commencement thereof,
but the omission so to notify the Company of any such action shall not
release the Company from any liability which it may have to an Underwriter
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 an Underwriter or any such controlling
person and an Underwriter 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), an Underwriter or any controlling person
shall have the right to employ its own counsel, but, in any such case, the
fees and expenses of such counsel shall be at such Underwriter’s or
controlling person’s 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 an Underwriter or any
controlling person and the Company and such Underwriter or any controlling
person shall have been advised by its counsel that a conflict of interest
between the Company and such Underwriter 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 the Underwriters
or any controlling person (plus any local counsel retained by the
Underwriters or any controlling person in their reasonable judgment),
which firm (or firms) shall be designated in writing by the Underwriters
or any controlling person).
|
|
|
|
|
|
|
(b)
|
Each
Underwriter agrees, to the extent permitted by law, severally and not
jointly, 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 8(a)
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 (if used prior to the effective date
of this Agreement), or in the Pricing Prospectus, or in any Permitted Free
Writing 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 8(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
8(b).
|
|
|
|
|
|
|
(c)
|
If
recovery is not available or insufficient to hold the indemnified party
harmless under Section 8(a) or 8(b) hereof for any reason other than as
specified therein, the indemnified party shall be entitled to contribution
for any and all losses, claims, damages, liabilities and expenses for
which such indemnification is so unavailable or insufficient under this
Section 8(c). In determining the amount of contribution to
which such indemnified party is entitled, there shall be considered the
portion of the proceeds of the offering of the Notes realized by the
Company on the one hand and the Underwriters on the other hand, the
relative knowledge and access to information concerning the matter with
respect to which the claim was asserted, the opportunity to correct and
prevent any statement or omission, and any equitable considerations
appropriate under the circumstances. The Company and the
Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if
the Underwriters were treated as one entity for such purpose) without
reference to the considerations called for in the previous
sentence. No Underwriter or any person controlling such
Underwriter shall be obligated to contribute any amount or amounts
hereunder which in the aggregate exceeds the total price of the Notes
purchased by such Underwriter under this Agreement, less the aggregate
amount of any damages which such Underwriter and its controlling persons
have otherwise been required to pay in respect of the same claim or any
substantially similar claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. An Underwriter’s obligation to
contribute under this Section 8 is in proportion to its purchase
obligation and not joint with any other Underwriter.
|
|
|
|
|
|
|
(d)
|
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
or contribution could be sought under this Section 8 (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 such indemnified party.
|
|
|
|
|
|
|
(e)
|
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.
|
The agreements contained in this
Section 8 hereof 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 Notes hereunder.
9.
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 Notes
which it has agreed to purchase and pay for hereunder, and the aggregate
principal amount of 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 Notes, the other Underwriters shall be
obligated severally in the proportions which the amounts of Notes set forth
opposite their names in Exhibit 1 hereto bear to the aggregate principal amount
of Notes set forth opposite the names of all such non-defaulting Underwriters,
to purchase the 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 Notes which any Underwriter has agreed
to purchase pursuant to Section 1 hereof be increased pursuant to this Section 9
by an amount in excess of one-ninth of such principal amount of Notes without
the written consent of such Underwriter. If any Underwriter or
Underwriters shall fail or refuse to purchase Notes and the aggregate principal
amount of Notes with respect to which such default occurs is more than one-tenth
of the aggregate principal amount of the Notes then this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter;
provided, however, that the non-defaulting Underwriters may agree, in their sole
discretion, to purchase the Notes which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on the terms set forth
herein. In the event of any such termination, the Company shall not
be under any liability to any Underwriter (except to the extent, if any,
provided in Section 4(h) hereof), nor shall any Underwriter (other than an
Underwriter who shall have failed or refused to purchase the 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.
10.
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
Notes shall have been materially adversely affected because:
|
|
|
(i)
|
trading
in securities on the New York Stock Exchange shall have been generally
suspended by the Commission or by the New York Stock Exchange or trading
in the securities of the Company shall have been suspended by the New York
Stock Exchange, or
|
|
|
|
|
|
|
|
|
(ii)
|
there
shall have occurred any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war or other national or
international calamity or crisis, or
|
|
|
|
|
|
|
|
|
(iii)
|
a
general banking moratorium shall have been declared by Federal or New York
State authorities, or
|
|
|
|
|
|
|
|
|
(iv)
|
there
shall have been any decrease in the ratings of the Company’s debt
securities by Moody’s 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 debt securities under consideration for possible
further downgrade.
|
If the Representative elects to
terminate this Agreement, as provided in this Section 10, 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 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.
11.
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 the Representative at Barclays Capital Inc., 745 Seventh
Avenue, New York, New York 10019, Attention: Syndicate Registration, BNY Mellon
Capital Markets, LLC, 32 Old Slip, 15
th
Floor, New York, New York, 10286, Attention: Dan Klinger, Managing Director, and
Citigroup Global Markets Inc., 388 Greenwich Street, New York, New York 10013,
Attention: General Counsel, and, if to the Company, to Public Service Company of
Oklahoma, c/o American Electric Power Service Corporation, 1 Riverside Plaza,
Columbus, Ohio 43215, Attention: General Counsel (fax
614/716-1687).
12.
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 Section 8 hereof,
and their respective successors, assigns, executors and administrators, and,
except as expressly otherwise provided in Section 9 hereof, no other person
shall acquire or have any right under or by the virtue of this
Agreement. The Company acknowledges and agrees that in connection
with all aspects of each transaction contemplated by this Underwriting
Agreement, the Company and the Underwriters have an arms length business
relationship that creates no fiduciary duty on the part of any party and each
expressly disclaims any fiduciary relationship.
13.
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 9 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
Notes from any of the respective Underwriters.
14.
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 Commission shall have issued
appropriate orders, and such orders shall remain in full force and effect,
authorizing the transactions contemplated hereby.
15.
Applicable
Law
: This Agreement will be governed and construed in
accordance with the laws of the State of New York.
16.
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.
|
|
PUBLIC
SERVICE COMPANY OF OKLAHOMA
|
|
By:
/s/ Renee V.
Hawkins
|
|
|
Name: Renee
V. Hawkins
Title: Assistant
Treasurer
|
|
|
|
BARCLAYS
CAPITAL INC.
BNY
MELLON CAPITAL MARKETS, LLC
CITIGROUP
GLOBAL MARKETS INC.
as
Representatives
and
on behalf of the Underwriters
named
in Exhibit 1 hereto
|
|
BARCLAYS
CAPITAL INC.
By:
/s/ Yukari
Saegusa
Name: Yukari
Saegusa
Title: Managing
Director
|
|
|
|
|
BNY
MELLON CAPITAL MARKETS, LLC
By:
/s/ Dan
Klinger
Name: Dan
Klinger
Title: Managing
Director
|
CITIGROUP
GLOBAL MARKETS INC.
By:
/s/ Brian D.
Bednarski
Name: Brian
D. Bednarski
Title: Managing
Director
|
|
|
EXHIBIT
1
|
Name
|
Principal Amount of Series H
Notes
|
|
Barclays
Capital Inc.
|
$62,500,000
|
|
BNY
Mellon Capital Markets, LLC
|
$62,500,000
|
|
Citigroup
Global Markets Inc.
|
$62,500,000
|
|
BBVA
Securities Inc.
SunTrust
Robinson Humphrey, Inc.
Mizuho
Securities USA Inc.
|
$20,835,000
$20,832,500
$20,832,500
|
|
TOTAL
|
$250,000,000
|
EXHIBIT
2
PRICING
TERM SHEET
Underwriting
Agreement dated November 9, 2009
|
Issuer:
|
Public
Service Company of Oklahoma
|
|
Designation:
|
Senior
Notes, Series H, due 2019
|
|
Principal
Amount:
|
$250,000,000
|
|
Maturity
Date:
|
December
1, 2019
|
|
Coupon:
|
5.15%
|
|
Interest
Payment Dates:
|
June
1, December 1
|
|
First
Interest Payment Date:
|
June
1, 2010
|
|
Treasury
Benchmark:
|
3.625%
due August 15, 2019
|
|
Treasury
Price:
|
101-4+
|
|
Treasury
Yield:
|
3.486%
|
|
Reoffer
Spread:
|
T+170
basis points
|
|
Yield
to Maturity:
|
5.186%
|
|
Price
to Public:
|
99.717%
of the principal amount thereof
|
|
Transaction
Date:
|
November
9, 2009
|
|
Settlement
Date:
|
November
13, 2009 (T+3)
|
|
Redemption
Terms:
|
At
any time at a discount rate of the Treasury Rate plus 25 basis
points
|
|
Minimum
Denominations:
|
$1,000
and integral multiples thereof
|
|
CUSIP:
|
744533
BK5
|
|
Joint
Book-Running Managers:
Co-Managers:
|
Barclays
Capital Inc.
BNY
Mellon Capital Markets, LLC
Citigroup
Global Markets Inc.
BBVA
Securities Inc.
Mizuho
Securities USA Inc.
SunTrust
Robinson Humphrey, Inc.
|
|
Ratings:
|
Baa1
by Moody’s Investors Service, Inc.
BBB
by Standard & Poor’s Ratings Services
BBB+
by Fitch Ratings Ltd.
|
Note:
A securities rating is
not a recommendation to buy, sell or hold securities and may be subject to
revision or withdrawal at any time.
The
issuer has filed a registration statement (including a prospectus) with the SEC
for the offering to which this communication relates. Before you
invest, you should read the prospectus in that registration statement and other
documents the issuer has filed with the SEC for more complete information about
the issuer and this offering. You may get these documents for free by
visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the
issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling Barclays Capital Inc.
toll free at 1-888-603-5847, BNY Mellon Capital Markets, LLC toll-free at
1-800-269-6864, or Citigroup Global Markets Inc. toll free at
1-877-858-5407.
EXHIBIT
3
PRICING
DISCLOSURE PACKAGE
|
1)
|
Prospectus
dated February 3, 2009
|
|
2)
|
Preliminary
Prospectus Supplement dated November 9, 2009 (including Incorporated
Documents)
|
|
3)
|
Permitted
Free Writing Prospectus
|
|
|
a) Pricing
Term Sheet attached as Exhibit 2
hereto
|
Exhibit
4(a)
PUBLIC
SERVICE COMPANY OF OKLAHOMA
and
THE BANK
OF NEW YORK MELLON,
AS
TRUSTEE
___________________
EIGHTH
SUPPLEMENTAL INDENTURE
Dated as
of November 13, 2009
Supplemental
to the Indenture
dated as
of November 1, 2000
5.15%
Senior Notes, Series H, Due 2019
EIGHTH SUPPLEMENTAL INDENTURE, dated as
of November 13, 2009, between PUBLIC SERVICE COMPANY OF OKLAHOMA, a corporation
duly organized and existing under the laws of the State of Oklahoma (the
“Company”), and THE BANK OF NEW YORK MELLON, a New York banking corporation
organized and existing under the laws of the State of New York, as Trustee under
the Original Indenture referred to below (the “Trustee”).
RECITALS
OF THE COMPANY
The Company has heretofore executed and
delivered to the Trustee an indenture dated as of November 1, 2000 (the
“Original Indenture”), to provide for the issuance from time to time of its
debentures, notes or other evidences of indebtedness (the “Senior Notes”), the
form and terms of which are to be established as set forth in Section 201 and
301 of the Original Indenture.
Section 901 of the Original Indenture
provides, among other things, that the Company and the Trustee may enter into
indentures supplemental to the Original Indenture for, among other things, the
purpose of establishing the form and terms of the Senior Notes of any series as
permitted in Sections 201 and 301 of the Original Indenture.
The Company desires to create a series
of the Senior Notes in an aggregate principal amount of $250,000,000 to be
designated the “5.15% Senior Notes, Series H, Due 2019” (the “Series H Notes”),
and all action on the part of the Company necessary to authorize the issuance of
the Series H Notes under the Original Indenture and this Eighth Supplemental
Indenture has been duly taken.
All acts and things necessary to make
the Series H Notes, when executed by the Company and completed, authenticated
and delivered by the Trustee as provided in the Original Indenture and this
Eighth Supplemental Indenture, the valid and binding obligations of the Company
and to constitute these presents a valid and binding supplemental indenture and
agreement according to its terms, have been done and performed.
NOW, THEREFORE, THIS EIGHTH
SUPPLEMENTAL INDENTURE WITNESSETH:
That in
consideration of the premises and of the acceptance and purchase of the Series H
Notes by the Holders thereof and of the acceptance of this trust by the Trustee,
the Company covenants and agrees with the Trustee, for the equal benefit of the
Holders of the Series H Notes, as follows:
ARTICLE
ONE
Definitions
SECTION
101.
DEFINITIONS
.
The use of the terms and expressions
herein is in accordance with the definitions, uses and constructions contained
in the Original Indenture and the form of the Series H Notes attached hereto as
Exhibit
A
.
ARTICLE
TWO
Terms and
Issuance of the 5.15% Senior Notes, Series H, Due 2019
SECTION
201.
Issue
of the Series H Notes
.
A series of Senior Notes which shall be
designated the “5.15% Senior Notes, Series H, Due 2019” shall be executed,
authenticated and delivered in accordance with the provisions of, and shall in
all respects be subject to, the terms, conditions and covenants of, the Original
Indenture and this Eighth Supplemental Indenture (including the form of Series H
Notes set forth in
Exhibit A
hereto). The aggregate principal amount of the Series H Notes which
may be authenticated and delivered under this Eighth Supplemental Indenture
shall initially be $250,000,000, and such principal amount of the Series H Notes
may be increased from time to time. All Series H Notes need not be
issued at the same time and such series may be reopened at any time, without the
consent of any Holder, for issuance of additional Series H Notes. Any
such additional Series H Notes will have the same interest rate, maturity and
other terms as those initially issued.
SECTION
202.
Form
of Series H Notes; Incorporation of Terms
.
The Series H Notes shall be issued
initially in the form of one Global Security. The form of the Series
H Notes shall be substantially in the form of
Exhibit A
attached
hereto. The terms of such Series H Notes are herein incorporated by
reference and are part of this Eighth Supplemental Indenture.
SECTION
203.
Depositary for Global
Securities
.
The Depositary for any Global
Securities of the series of which this Series H Note is a part shall be the
Depository Trust Company in The City of New York.
SECTION
204.
Restriction on
Liens
.
The
covenant contained in Section 1007 of the Original Indenture shall not be
applicable to the Series H Notes.
So long
as any of the Series H Notes are outstanding, the Company will not create or
suffer to be created or to exist any additional mortgage, pledge, security
interest, or other lien (collectively “Liens”) on any of its utility properties
or tangible assets now owned or hereafter acquired to secure any indebtedness
for borrowed money (“Secured Debt”), without providing that the Series H Notes
will be similarly secured. This restriction does not apply to the
Company’s subsidiaries, nor will it prevent any of them from creating or
permitting to exist Liens on their property or assets to secure any Secured
Debt. In addition, this restriction does not prevent the creation or
existence of:
|
|
(a)
|
Liens
on property existing at the time of acquisition or construction of such
property (or created within one year after completion of such acquisition
or construction), whether by purchase, merger, construction or otherwise,
or to secure the payment of all or any part of the purchase price or
construction cost thereof, including the extension of any Liens to
repairs, renewals, replacements, substitutions, betterments, additions,
extensions and improvements then or thereafter made on the property
subject thereto;
|
|
|
|
|
|
|
(b)
|
Financing
of the Company’s accounts receivable for electric
service;
|
|
|
|
|
|
|
(c)
|
Any
extensions, renewals or replacements (or successive extensions, renewals
or replacements), in whole or in part, of liens permitted by the foregoing
clauses; and
|
|
|
|
|
|
|
(d)
|
The
pledge of any bonds or other securities at any time issued under any of
the Secured Debt permitted by the above
clauses.
|
In
addition to the permitted issuances above, Secured Debt not otherwise so
permitted may be issued in an amount that does not exceed 15% of Net Tangible
Assets as defined below.
“Net
Tangible Assets” means the total of all assets (including revaluations thereof
as a result of commercial appraisals, price level restatement or otherwise)
appearing on the Company’s balance sheet, net of applicable reserves and
deductions, but excluding goodwill, trade names, trademarks, patents,
unamortized debt discount and all other like intangible assets (which term shall
not be construed to include such revaluations), less the aggregate of the
Company’s current liabilities appearing on such balance sheet. For
purposes of this definition, the Company’s balance sheet does not include assets
and liabilities of its subsidiaries.
This
restriction also does not apply to or prevent the creation or existence of
leases made, or existing on property acquired, in the ordinary course of
business.
SECTION
205.
Place of
Payment
.
The Place of Payment in respect of the
Series H Notes will be at the principal office or place of business of the
Trustee or its successor in trust under the Indenture, which, at the date
hereof, is located at 101 Barclay Street, New York, NY 10286, Attention:
Corporate Trust Administration.
SECTION
206.
Optional
Redemption
.
The
Series H Notes may be redeemed at the Company’s option at any time upon no more
than 60 and not less than 30 days’ notice by mail. The Series H Notes
may be redeemed either as a whole or in part at a redemption price equal to the
greater of (1) 100% of the principal amount of the Series H Notes being redeemed
and (2) the sum of the present values of the remaining scheduled payments of
principal and interest on the Series H Notes being redeemed (excluding the
portion of any such interest accrued to the date of redemption) discounted (for
purposes of determining present value) to the redemption date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate (as defined below) plus 25 basis points; plus, in each case,
accrued interest thereon to the date of redemption.
"Business Day" means any day that is not a day on which
banking institutions in New York City are authorized or required by law or
regulation to close.
“Comparable Treasury Issue” means the
United States Treasury security selected by an Independent Investment Banker as
having a maturity comparable to the remaining term (“remaining life”) of the
Series H Notes that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining life of the Series H
Notes.
“Comparable Treasury Price” means, with
respect to any redemption date, (1) the average of the Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and lowest such
Reference Treasury Dealer Quotations, or (2) if the Company obtains fewer than
four such Reference Treasury Dealer Quotations, the average of all such
quotations.
“Independent Investment Banker” means
one of the Reference Treasury Dealers appointed by the Company and reasonably
acceptable to the Trustee.
“Reference Treasury Dealer” means
Barclays Capital Inc., BNY Mellon Capital Markets, LLC, and Citigroup Global
Markets Inc., and their respective successors; provided, however, that if any of
the foregoing shall cease to be primary U.S. government securities dealers the
Company will substitute therefor another primary U.S. government securities
dealer reasonably acceptable to the Trustee.
“Reference Treasury Dealer Quotations”
means, with respect to each Reference Treasury Dealer and any redemption date,
the average, as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such Reference Treasury
Dealer at or before 3:30 p.m., New York City time, on the third Business Day
preceding such redemption date.
“Treasury Rate” means, with respect to
any redemption date: (i) the yield, under the heading which represents the
average for the week immediately preceding the date on which the notice of
redemption is mailed to the registered Holders of the Securities (the
“calculation date”), appearing in the most recently published statistical
release designated “H.15(519)” or any successor publication which is published
weekly by the Board of Governors of the Federal Reserve System and which
establishes yields on actively traded U.S. Treasury securities adjusted to
constant maturity under the caption “Treasury Constant Maturities,” for the
maturity corresponding to the Comparable Treasury Issue (if no maturity is
within three months before or after the remaining life (as defined above),
yields for the two published maturities most closely corresponding to the
Comparable Treasury Issue will be determined by the Independent Investment
Banker and the Treasury Rate will be interpolated or extrapolated from such
yields by the Independent Investment Banker on a straight line basis, rounding
to the nearest month); or (ii) if such release (or any successor release) is not
published during the week preceding the calculation date or does not contain
such yields, the rate per annum equal to the semiannual equivalent yield to
maturity of the Comparable Treasury Issue, calculated by the Independent
Investment Banker using a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
SECTION
207.
Sinking
Funds
.
Article
Twelve of the Indenture shall not apply to the Series H Notes.
SECTION
208.
Regular Record
Date
.
The
“Regular Record Date” will be the May 15 or November 15, as the case may be,
next preceding an interest payment date.
ARTICLE
THREE
Miscellaneous
SECTION
301.
Execution as Supplemental
Indenture
.
This
Eighth Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture and, as provided in the Original
Indenture, this Eighth Supplemental Indenture forms a part thereof.
SECTION
302.
Conflict with Trust
Indenture Act
.
If any
provision hereof limits, qualifies or conflicts with another provision hereof
which is required to be included in this Eighth Supplemental Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION
303.
Effect
of Headings
.
The
Article and Section headings herein are for convenience only and shall not
affect the construction hereof.
SECTION
304.
Successors and
Assigns
.
All
covenants and agreements by the Company in this Eighth Supplemental Indenture
shall bind its successors and assigns, whether so expressed or not.
SECTION
305.
Separability
Clause
.
In case
any provision in this Eighth Supplemental Indenture or in the Series H Notes
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION
306.
Benefits of Eighth
Supplemental Indenture
.
Nothing
in this Eighth Supplemental Indenture or in the Series H Notes, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Eighth Supplemental Indenture.
SECTION
307.
Execution and
Counterparts
.
This
Eighth Supplemental Indenture may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto have caused this Eighth Supplemental
Indenture to be duly executed and attested, all as of the day and year first
above written.
PUBLIC SERVICE COMPANY OF
OKLAHOMA
By______________________________
Name: Renee
V. Hawkins
Title: Assistant
Treasurer
Attest:
_________________________
Name: Thomas
G. Berkemeyer
Title: Assistant
Secretary
THE BANK OF NEW YORK MELLON, as
Trustee
By______________________________
Authorized Signatory
Attest:
_________________________
Authorized
Signatory
STATE OF
OHIO )
COUNTY OF
FRANKLIN )
On the 13
th
day
of November, 2009, personally appeared before me, a Notary Public within and for
said County in the State of Ohio, Renee V. Hawkins and Thomas G. Berkemeyer, to
me known and known to me to be respectively the Assistant Treasurer and
Assistant Secretary of Public Service Company of Oklahoma, one of the
corporations named in and which executed the foregoing instrument, who severally
acknowledged that they did sign said instrument as such Assistant Treasurer and
Assistant Secretary for and on behalf of said corporation and that the same is
their free act and deed as such Assistant Treasurer and Assistant Secretary,
respectively, and the free and corporate act and deed of said
corporation.
In
witness whereof, I have hereunto set my hand notarial seal this 13
th
day
of November, 2009.
STATE OF
NEW
YORK )
COUNTY OF
NEW
YORK )
On the 13
th
day
of November, 2009, personally appeared before me, a Notary Public within and for
said County in the State of New York, ______________ and _______________, to me
known and known to me to be respectively the ______________ and ______________
of The Bank of New York Mellon, one of the corporations named in and which
executed the foregoing instrument, who severally acknowledged that they did sign
said instrument as such ______________ and ______________ for and on behalf of
said corporation and that the same is their free act and deed as such
______________ and ______________, respectively, and the free and corporate act
and deed of said corporation.
In
witness whereof, I have hereunto set my hand notarial seal this 13
th
day
of November, 2009.
_____________________________
Exhibit
A
THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A
DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO
A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
Unless
this certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation (“DTC”), to Public Service Company of
Oklahoma or its agent for registration of transfer, exchange or payment, and any
definitive certificate issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered
owner hereof, Cede & Co., has an interest herein.
No.
R-1
PUBLIC
SERVICE COMPANY OF OKLAHOMA
5.15%
Senior Notes, Series H, due 2019
CUSIP No.
744533
BK5 $250,000,000
PUBLIC
SERVICE COMPANY OF OKLAHOMA, a corporation duly organized and existing under the
laws of the State of Oklahoma (the “Company”, which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to CEDE & CO. or registered assigns, the principal sum of
TWO HUNDRED FIFTY MILLION DOLLARS ($250,000,000) on December 1, 2019 (the “Final
Maturity”), and to pay interest thereon from November 13, 2009 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on June 1 and December 1 each year, commencing June 1, 2010,
at the interest rate per annum specified above, until the principal amount shall
have been paid or duly provided for. Interest shall be computed on
the basis of a 360-day year of twelve 30-day months.
The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the May 15 or November 15 (whether or not a Business Day) immediately preceding
the Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.
Payment
of the principal of (and premium, if any) and interest on this Security will be
made at the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, The City of New York, New York, in such coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts; provided, however, that at the option
of the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register.
This
Security has initially been issued in the form of a Global Security, and the
Company has initially designated The Depository Trust Company (the “Depositary”,
which term shall include any successor depositary) as the depositary for this
Security. For as long as this Security or any portion hereof is
issued in such form, and notwithstanding the previous paragraph, all payments of
interest, principal and other amounts in respect of this Security or portion
thereof shall be made to the Depositary or its nominee in accordance with the
Applicable Procedures in the coin or currency specified above and as further
provided herein.
This
Security is one of a duly authorized issue of securities of the Company (the
“Securities”), issued and to be issued in one or more series under an Indenture,
dated as of November 1, 2000, as amended and supplemented from time to time (the
“Indenture”, which term shall have the meaning assigned to it in such
instrument), between the Company and The Bank of New York Mellon, a New York
banking corporation, as Trustee (the “Trustee”, which term includes any
successor trustee under the Indenture), as to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the
series designated on the face hereof, limited in aggregate principal amount to
$250,000,000; provided, however, the aggregate principal amount hereof can be
increased, without the consent of the Holder, as permitted by the provisions of
the Original Indenture. The provisions of this Security, together
with the provisions of the Indenture, shall govern the rights, obligations,
duties and immunities of the Holder, the Company and the Trustee with respect to
this Security, provided that, if any provision of this Security necessarily
conflicts with any provision of the Indenture, the provision of this Security
shall be controlling to the fullest extent permitted under the
Indenture.
The
Securities of this Series are subject to redemption upon not less than 30 nor
more than 60 days’ notice by mail to the Holders of such Securities at their
addresses in the Security Register for such Series at the option of the Company,
in whole or in part, from time to time at a Redemption Price equal to the
greater of (i) 100% of the principal amount of the Securities being redeemed and
(ii) the sum of the present values of the remaining scheduled payments of
principal and interest on the Securities being redeemed (excluding the portion
of any such interest accrued to the date of redemption) discounted (for purposes
of determining present value) to the redemption date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate (as defined below) plus 25 basis points, plus, in each case, accrued
interest thereon to the date of redemption.
“Comparable
Treasury Issue” means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining
term ("remaining life") of the Securities that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining life
of the Securities.
“Comparable
Treasury Price” means, with respect to any redemption date, (1) the average of
the Reference Treasury Dealer Quotations for such redemption date after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(2) if fewer than four such Reference Treasury Dealer Quotations are obtained,
the average of all such quotations.
“Independent
Investment Banker” means one of the Reference Treasury Dealers appointed by the
Company and reasonably acceptable to the Trustee.
“Reference
Treasury Dealer” means Barclays Capital Inc., BNY Mellon Capital Markets, LLC,
and Citigroup Global Markets Inc., and their respective successors; provided,
however, that if any of the foregoing shall cease to be primary U.S. government
securities dealers the Company will substitute therefor another primary U. S.
government securities dealer reasonably acceptable to the Trustee.
“Reference
Treasury Dealer Quotations” mean, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by the Trustee, of the bid
and asked prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at or before 3:30 p.m., New York City time, on the
third Business Day preceding such redemption date.
“Treasury
Rate” means, with respect to any redemption date: (i) the yield, under the
heading which represents the average for the week immediately preceding the date
on which the notice of redemption is mailed to the registered Holders of the
Securities (the “calculation date”), appearing in the most recently published
statistical release designated “H.15(519)” or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve System and
which establishes yields on actively traded U.S. Treasury securities adjusted to
constant maturity under the caption “Treasury Constant Maturities,” for the
maturity corresponding to the Comparable Treasury Issue (if no maturity is
within three months before or after the remaining life (as defined above),
yields for the two published maturities most closely corresponding to the
Comparable Treasury Issue will be determined by the Independent Investment
Banker and the Treasury Rate will be interpolated or extrapolated from such
yields by the Independent Investment Banker on a straight line basis, rounding
to the nearest month); or (ii) if such release (or any successor release) is not
published during the week preceding the calculation date or does not contain
such yields, the rate per annum equal to the semiannual equivalent yield to
maturity of the Comparable Treasury Issue, calculated by the Independent
Investment Banker using a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
If notice
has been given as provided in the Indenture and funds for redemption of any
Securities (or any portion thereof) called for redemption shall have been made
available on the Redemption Date referred to in such notice, such Securities (or
any portion thereof) will cease to bear interest on the date fixed for such
redemption specified in such notice and the only right of the Holders of such
Securities will be to receive payment of the Redemption Price.
In the
event of redemption of this Security in part only, a new Security or Securities
of this Series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation
hereof.
The
Securities of this series will not be subject to any sinking fund.
If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the
Indenture.
Interest
payments with respect to this Security will be computed and paid on the basis of
a 360-day year of twelve 30-day months for the actual number of days
elapsed.
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in principal amount of the Securities at the time
Outstanding of all series to be affected (voting as a class). The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each Series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No
reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of, premium, if any, and interest on
this Security at the times, place and rate, and in the coin or currency, herein
prescribed.
This
Security shall be exchangeable for Securities registered in the names of Persons
other than the Depositary with respect to such series or its nominee only as
provided in the Indenture. This Security shall be so exchangeable if
(x) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such series or at any time ceases to be a clearing
agency registered as such under the Exchange Act, (y) the Company executes and
delivers to the Trustee an Officers’ Certificate providing that this Security
shall be so exchangeable or (z) there shall have occurred and be continuing an
Event of Default with respect to the Securities of such
series. Securities so issued in exchange for this Security shall be
of the same series, having the same interest rate, if any, and maturity and
having the same terms as this Security, in authorized denominations and in the
aggregate having the same principal amount as this Security and registered in
such names as the Depositary for such Global Security shall direct.
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of a Security of the series of which this Security is a part is
registrable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in any place
where the principal of and any premium and interest on this Security are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities of this Series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The
Securities of this Series are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this Series are exchangeable for a like aggregate principal amount
of Securities of this Series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to
due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
For so
long as this Security is issued in the form of a Global Security, any notice to
be given to the Holder of this Security shall be deemed to have been duly given
to such Holder when given to the Depositary, or its nominee, in accordance with
its Applicable Procedures. Neither the Company nor the Trustee will
have any responsibility with respect to those policies and procedures or for any
notices or other communications among the Depositary, its direct and indirect
participants and the beneficial owners of this Security in global
form.
If at
any time this Security is not represented by a Global Security, any notice to be
given to the Holder of this Security shall be deemed to have been duly given to
such Holder upon the mailing of such notice to the Holder at such Holder’s
address as it appears on the Security Register maintained by the Company or its
agent as of the close of business preceding the day such notice is
given.
Neither
the failure to give any notice nor any defect in any notice given to the Holder
of this Security or any other Security of this series will affect the
sufficiency of any notice given to another Holder of any Securities of this
series.
Prior to
due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
The
Indenture provides that the Company, at its option, (a) will be discharged from
any and all obligations in respect of the Securities (except for certain
obligations to register the transfer or exchange of Securities, replace stolen,
lost or mutilated Securities, maintain paying agencies and hold moneys for
payment in trust) or (b) need not comply with certain restrictive covenants of
the Indenture, in each case if the Company deposits, in trust, with the Trustee
money or U.S. Government Obligations which, through the payment of interest
thereon and principal thereof in accordance with their terms, will provide
money, in an amount sufficient to pay all the principal of, and premium, if any,
and interest, if any, on the Securities on the dates such payments are due in
accordance with the terms of such Securities, and certain other conditions are
satisfied.
No
recourse shall be had for the payment of the principal of or the interest on
this Security, or for any claim based hereon, or otherwise in respect hereof, or
based on or in respect of the Indenture or any indenture supplemental thereto,
against any incorporator, organizer, member, limited partner, stockholder,
officer or director, as such, past, present or future, of the Company or any
successor Person, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issuance hereof, expressly waived and released.
This
Security shall be governed by and construed in accordance with the laws of the
State of New York without regard to principles of conflict of law except Section
5-1401 of the New York General Obligations Law.
All terms
used in this Security which are defined in the Indenture shall have the meanings
ascribed to them in the Indenture.
Unless
the certificate of authentication hereon has been executed by the Trustee
referred to herein by manual signature, this Security shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any
purpose.
IN
WITNESS WHEREOF, Public Service Company of Oklahoma has caused this instrument
to be duly executed.
|
|
PUBLIC
SERVICE COMPANY OF OKLAHOMA
|
|
|
|
|
|
|
By:
|
/s/ Renee V. Hawkins
|
|
|
|
Assistant
Treasurer
|
This is
one of the Securities of the series designated herein and referred to in the
within-mentioned Indenture.
|
Dated: November
13, 2009
|
THE
BANK OF NEW YORK MELLON
|
|
|
|
|
|
|
By:
|
/s/ Mary Miselis
|
|
|
|
Authorized
Signatory
|
FOR VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(PLEASE
INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING
NUMBER OF ASSIGNEE)
_______________________________________
________________________________________________________________
________________________________________________________________
(PLEASE
PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
________________________________________________________________
ASSIGNEE)
the within Note and all rights thereunder, hereby
________________________________________________________________
irrevocably
constituting and appointing such person attorney to
________________________________________________________________
transfer
such Note on the books of the Issuer, with full
________________________________________________________________
power of
substitution in the premises.
Dated:________________________ _________________________
NOTICE: The
signature to this assignment must correspond with the name as written upon the
face of the within Note in every particular, without alteration or enlargement
or any change whatever and NOTICE: Signature(s) must be guaranteed by
a financial institution that is a member of the Securities Transfer Agents
Medallion Program (“STAMP”), the Stock Exchange Medallion Program (“SEMP”) or
the New York Stock Exchange, Inc. Medallion Signature Program
(“MSP”).
Exhibit
5(a)
Barclays
Capital Inc.
745
Seventh Avenue
New York,
NY 10019
BNY
Mellon Capital Markets, LLC
32 Old
Slip, 15
th
Floor
New York,
NY 10286
Citigroup
Global Markets Inc.
388/390
Greenwich Street
New York,
NY 10013
as
the Representatives for the Underwriters
named
in the Underwriting Agreement
referred
to below
November
13, 2009
Ladies
and Gentlemen:
I am an
employee of American Electric Power Service Corporation, an affiliate of Public
Service Company of Oklahoma (the “Company”), and have acted as counsel to the
Company in connection with the purchase by the underwriters named in Exhibit 1
to the Underwriting Agreement (as defined below) (the “Underwriters”)
of $250,000,000 aggregate principal amount of 5.15% Senior Notes,
Series H, due 2019 (the “Notes”), issued by the Company pursuant to the
Underwriting Agreement, dated November 9, 2009, among the Company and the
Underwriters (the “Underwriting Agreement”).
I have
examined the Registration Statement on Form S-3 (File No. 333-156319), as
amended by the Pre-Effective amendment No. 1, filed by the Company under the
Securities Act of 1933, as amended (the “Securities Act”), as it became
effective under the Securities Act (the “Registration Statement”), and the
Company’s prospectus, dated February 3, 2009 (the “Basic Prospectus”), as
supplemented by a preliminary prospectus supplement dated November 9, 2009,
including all documents incorporated by reference therein (the Basic Prospectus
as so supplemented, the “Preliminary Prospectus”) and a prospectus supplement,
dated November 9, 2009 (the “Prospectus Supplement”, and together with the Basic
Prospectus, the “Prospectus”), filed by the Company pursuant to Rule 424(b) of
the rules and regulations of the Securities and Exchange Commission (the
“Commission”) under the Securities Act, which, pursuant to Form S-3,
incorporates by reference or is deemed to incorporate by reference the Annual
Report on Form 10-K for the fiscal year ended December 31, 2008, as modified by
the Quarterly Reports on Form 10-Q for the quarters ended March 31, 2009, June
30, 2009, and September 30, 2009 (collectively, the “Exchange Act Documents”),
each as filed under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”). I have also examined the free writing prospectus
prepared by the Company (the “Permitted Free Writing Prospectus”) and filed
under Rule 433 of the Securities Act. The documents listed in Exhibit
3 to the Underwriting Agreement taken together, are collectively referred to as
the “Pricing Disclosure Package”.
In
addition, I also have examined (i) the Indenture, dated as of November 1, 2000,
between the Company and The Bank of New York Mellon, as Trustee (the “Trustee”),
as previously supplemented (the “Original Indenture”) and as to be further
supplemented by a Eighth Supplemental Indenture, dated as of November 13, 2009
(the “Supplemental Indenture”; the Original Indenture as supplemented by the
Supplemental Indenture, the “Indenture”); (ii) the Underwriting Agreement; and
(iii) a duplicate of the global note representing the Notes. In
addition, I have examined, and have relied as to matters of fact upon, the
documents delivered to you at closing, and upon originals or copies, certified
or otherwise identified to my satisfaction, of such corporate records,
agreements, documents and other instruments and such certificates or comparable
documents or oral statements of public officials and of officers and
representatives of the Company, and have made such other and further
investigations as I have deemed relevant and necessary as a basis for the
opinions hereinafter set forth.
In such
examination, I have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to me
as originals, the conformity to original documents of all documents submitted to
me as certified or photostatic copies, and the authenticity of the originals of
such latter documents.
In
furnishing this opinion, with your permission, I have assumed that (i) the
Indenture and the Notes have been duly authorized, executed and delivered (and
in the case of the Notes, authenticated) by the Trustee; (ii) the Trustee has
the power and authority to execute, authenticate, deliver and perform the
Indenture and the Notes; (iii) the execution, authorization, delivery and
performance of the Indenture and the Notes by the Trustee fully comply in all
material respects with all laws, rules, regulations, judgments and orders
applicable to the Trustee and its property; and (iv) the Indenture constitutes
the valid and legally binding obligation of the Trustee.
Based on
the foregoing, and subject to the qualifications, assumptions and limitations
stated herein, I am of the opinion that:
|
(a)
|
The
Company is a corporation duly organized and existing under the laws of the
state of Oklahoma, is duly qualified to do business as a foreign
corporation under the laws of the state of Texas and has due corporate
authority to carry on the public utility business in which it is engaged
and to own and operate the properties used by it in such
business.
|
|
(b)
|
The
Indenture has been duly qualified under the Trust Indenture Act of 1939,
as amended.
|
|
(c)
|
The
Company has full power and authority to execute and deliver the Indenture,
and the Indenture has been duly authorized, executed and delivered by the
Company and constitutes a valid and legally binding obligation of the
Company enforceable against the Company in accordance with its
terms. The Underwriting Agreement has been duly authorized,
executed and delivered by the
Company.
|
|
(d)
|
The
Company has full power and authority to execute and deliver the Notes, the
Notes have been duly authorized, executed and delivered by the Company,
and, upon payment and delivery in accordance with the Underwriting
Agreement, constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms and
entitled to the benefits of the
Indenture.
|
|
(e)
|
The
Corporation Commission of the State of Oklahoma has issued an appropriate
order authorizing, among other things, the issuance and the sale of the
Notes; such order is sufficient for the issuance and the sale of the
Notes; and the issuance and the sale of the Notes in accordance with the
Underwriting Agreement are in conformity with the terms of such
order. The Commission has issued an appropriate order under the
Securities Act with respect to the sale of the Notes. No other
approval or consent of any governmental body is required for the issuance
and the sale of the Notes to you or the performance by the Company of its
obligations under the Underwriting Agreement or the
Indenture. I have not considered whether any approval or
consent is required under the “blue sky” laws of any
jurisdiction.
|
|
(f)
|
The
statements made in the Prospectus under the captions “Description of the
Notes” (other than under the heading “Book-Entry Notes-Registration,
Transfer, and Payment of Interest and Principal”) and “Supplemental
Description of the Senior Notes”, insofar as they purport to constitute
summaries of certain terms of documents referred to therein, constitute
accurate summaries of the terms of such documents in all material
respects.
|
My
opinions set forth in paragraphs (c) and (d) above are subject to (1) the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors’ rights
generally; (2) general equitable principles (whether considered in a proceeding
in equity or at law); and (3) an implied covenant of good faith and fair
dealing.
I have
not independently verified the accuracy, completeness or fairness of the
statements made in the Registration Statement, the Preliminary Prospectus, the
Prospectus, the Permitted Free Writing Prospectus or the Exchange Act Documents,
and I take no responsibility therefore, except as and to the extent set forth in
paragraph (f) above. In connection with, and under the circumstances
applicable to the offering of the Notes, I participated in conferences with
certain officers and employees of the Company, with representatives of Deloitte
& Touche LLP, with your representatives and with your counsel in the course
of the preparation by the Company of the Registration Statement, the Preliminary
Prospectus, the Prospectus, the Permitted Free Writing Prospectus and the
Exchange Act Documents and also reviewed certain records and documents furnished
to me by the Company, as well as documents delivered to you at
closing. I did not prepare the Exchange Act Documents; however, I
reviewed the Exchange Act Documents prior to their filing with the
Commission.
Based
upon my review of the Registration Statement, the Preliminary Prospectus, the
Prospectus, the Permitted Free Writing Prospectus and the Exchange Act
Documents, my reviews made in connection with the preparation of the
Registration Statement, the Preliminary Prospectus and the Prospectus, my
participation in the conferences referred to above, my review of the records and
documents as described above, as well as my understanding of the U.S. federal
securities laws and the experience I have gained in my practice thereunder, (i)
I advise you that each of the Registration Statement, on the date of the
Underwriting Agreement, and the Preliminary Prospectus, the Permitted Free
Writing Prospectus and the Prospectus, as of their respective dates, appeared on
its face to be appropriately responsive, in all material respects, to the
requirements of the Securities Act and the applicable rules and regulations of
the Commission thereunder, except that in each case I express no view with
respect to the financial statements or other financial or statistical data
contained in, incorporated or deemed incorporated by reference in, or omitted
from such documents, and (ii) nothing has come to my attention that causes me to
believe that the Registration Statement on the date of the Underwriting
Agreement (including the Exchange Act Documents on file with the Commission as
of such date), contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Pricing Disclosure
Package, as of the Applicable Time (as defined in the Underwriting Agreement),
included an untrue statement of a material fact or omitted 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, or that the Prospectus
(including the Exchange Act Documents), as of its date or as of the date hereof,
contained or contains any untrue statement of a material fact or omitted or
omits to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except that in each case I express no belief with respect to the
financial statements or other financial or statistical data contained in,
incorporated or deemed incorporated by reference in, or omitted from the
Registration Statement, the Prospectus or the Exchange Act
Documents.
I am
today delivering an executed copy of this opinion to the Trustee and Dewey &
LeBoeuf LLP, who are entitled to rely upon this opinion to the same extent as if
such opinion were addressed to them. This opinion is rendered to you,
the Trustee and Dewey & LeBoeuf LLP, in connection with the above-described
transaction. This opinion may not be relied upon by you, the Trustee
or Dewey & LeBoeuf LLP for any other purpose, or relied upon or furnished to
any other person, firm or corporation without my prior written
permission.
Very
truly yours,
/s/ Thomas G.
Berkemeyer
Thomas G.
Berkemeyer