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FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report: October 23, 1995
Commission file number 1-1097
OKLAHOMA GAS AND ELECTRIC COMPANY
(Exact name of registrant as specified in its charter)
Oklahoma 73-0382390
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
101 North Robinson
P.O. Box 321
Oklahoma City, Oklahoma 73101-0321
(Address of principal executive offices)
(Zip Code)
(405) 553-3000
(Registrant's telephone number, including area code)
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ITEM 5. OTHER EVENTS
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On October 23, 1995, Oklahoma Gas and Electric Company, an Oklahoma corporation
(the "Company") entered into an Underwriting Agreement and filed on October 24,
1995, with the Securities and Exchange Commission a prospectus supplement
relating to $110,000,000 in aggregate principal amount of its 7.30% Senior
Notes, Series due October 15, 2025. On October 23, 1995, the Company also
entered into another Underwriting Agreement and filed with the Securities and
Exchange Commission a prospectus supplement relating to $110,000,000 in
aggregate principal amount of its 6.250% Senior Notes, Series due October 15,
2000.
ITEM 7. FINANCIAL STATEMENT AND EXHIBITS
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Exhibits
1.01 Underwriting Agreement, dated October 23, 1994, between Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Bear, Stearns & Co. Inc. and
Lehman Brothers Inc. relating to $110,000,000 of 7.30% Senior Notes,
Series due October 15, 2025.
1.02 Underwriting Agreement, dated October 23, 1995, between the Company
and Bear, Stearns & Co. Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Lehman Brothers Inc. relating to $110,000,000 of
6.250% Senior Notes, Series due October 15, 2000.
4.01 Supplemental Indenture No. 1, dated as of October 16, 1995, between
the Company and Boatmen's First National Bank of Oklahoma, creating
$110,000,000 principal amount of 7.30% Senior Notes, Series due
October 15, 2025 and $110,000,000 principal amount of 6.250% Senior
Notes, Series due October 15, 2000 (collectively, the "Senior Notes").
4.02 Supplemental Trust Indenture dated as of October 1, 1995, between the
Company and Boatmen's First National Bank of Oklahoma, creating
$110,000,000 principal amount of First Mortgage Bonds, Senior Note
Series A and $110,000,000 principal amount of First Mortgage Bonds,
Senior Note Series B (collectively, the "Senior Note First Mortgage
Bonds").
5.01 Opinion of counsel as to legality of the Senior Notes and the Senior
Note First Mortgage Bonds.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
OKLAHOMA GAS AND ELECTRIC COMPANY
(Registrant)
By: D.L. Young
-----------------------------------
D.L. Young
Controller
(On behalf of the registrant and in
his capacity as Chief Accounting Officer)
October 23, 1995
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EXHIBIT 1.01
Oklahoma Gas and Electric Company
Senior Notes
UNDERWRITING AGREEMENT
October 23, 1995
To the Representatives named in
Schedule I hereto of the Under-
writers named in Schedule II hereto.
Ladies and Gentlemen:
1. INTRODUCTION. Oklahoma Gas and Electric Company, an Oklahoma
corporation (the "Company"), proposes to issue and sell $110,000,000 of its
7.30% Senior Notes, due October 15, 2025 (the "Senior Notes"). The Senior Notes
will be issued by the Company under its Indenture dated as of October 1, 1995
between the Company and Boatmen's First National Bank of Oklahoma, as trustee
(the "Trustee"), as amended and supplemented by Supplemental Indenture No. 1
dated as of October 16, 1995 creating the series in which the Senior Notes are
to be issued. The term "Indenture," as hereinafter used, means such Indenture
dated as of October 1, 1995, as so amended and supplemented. The Company
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters", which term, when the context permits, shall also include any
substitute underwriter as provided in Section 9 hereof) for whom you are acting
as Representatives (the "Representatives") Senior Notes in the aggregate
principal amount and with the terms specified in Schedule I hereto (the
"Purchased Senior Notes"). Until such time as all of the first mortgage bonds
of the Company (the "First Mortgage Bonds") issued prior to the date of the
Indenture have been retired through payment or redemption (the "Release Date"),
the Senior Notes will be secured as to payment of principal and interest by one
or more series of First Mortgage Bonds issued, pledged and delivered by the
Company to the Trustee. Concurrently with the offering of the Senior Notes, the
Company proposes to issue and sell $110,000,000 of its 6.250% Senior Notes due
October 15, 2000 (the "Additional Senior Notes"). The sale of the Additional
Senior Notes and the Senior Notes are not contingent upon each other.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to, and agrees with, the Underwriters that:
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(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") two registration statements on Form S-3 (having the file
numbers set forth in Schedule I hereto) relating to $220,000,000 aggregate
principal amount of its Senior Notes and First Mortgage Bonds, and the offering
thereof from time to time in accordance with Rule 415 under the Securities Act
of 1933, as amended (the "Act"), and has filed such amendments thereto as may
have been required to the date hereof. Such registration statements have been
declared effective by the Commission. Such registration statements and the
prospectus relating to the sale of the Senior Notes and the First Mortgage Bonds
by the Company constituting a part thereof, including all documents incorporated
therein by reference, as from time to time amended or supplemented pursuant to
the Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
are collectively referred to herein as the "Registration Statement," and the
prospectus relating to the Senior Notes and the First Mortgage Bonds, including
all documents incorporated therein by reference, as from time to time amended or
supplemented pursuant to the Act or the Exchange Act, is referred to herein as
the "Prospectus"; provided that a supplement to the Prospectus relating to an
offering of Senior Notes other than the Purchased Senior Notes shall be deemed
to have supplemented the Prospectus only with respect to the offering of such
other Senior Notes. All documents filed by the Company with the Commission
under the Exchange Act and incorporated or deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as aforesaid, are
hereinafter referred to as the "Incorporated Documents."
(b) The Registration Statement, at the time it became effective,
complied and the Prospectus, at the time Registration Statement No. 33-61821
became effective, complied and each as of the date hereof comply and as of the
Closing Date, as hereinafter defined, will comply, in all material respects with
the requirements of the Act, the Exchange Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and regulations of
the Commission under such Acts; the Incorporated Documents, as of their
respective dates of filing with the Commission, complied as to form in all
material respects with the Exchange Act and the rules and regulations of the
Commission thereunder and any Incorporated Documents filed with the Commission
after the date of this Agreement will, when they are filed with the Commission,
comply in all material respects with the requirements of the Exchange Act and
the rules and regulations of the Commission thereunder; the Registration
Statement and any amendment thereto, at the time it became effective, did not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and the Prospectus, at the time Registration Statement No. 33-61821
became effective, did not, as of the date hereof does not and as of the Closing
Date will 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 the light of
the circumstances under which they were made, not
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misleading; provided that the representations and warranties in this
Section 2(b) shall not apply to (A) that part of the Registration Statement
which constitutes the Statements of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act (the "Statements of Eligibility") of the Trustee
and the trustee for the First Mortgage Bonds, (B) information contained in the
Registration Statement or the Prospectus relating to The Depository Trust
Company and its book-entry system, or (C) statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by any Representative
expressly for use in the Registration Statement or the Prospectus.
(c) Arthur Andersen LLP, the accountants who certified certain of the
financial statements included or incorporated by reference in the Registration
Statement or the Prospectus, are independent public accountants as required by
the Act and the rules and regulations of the Commission thereunder.
(d) The financial statements included or incorporated by reference in
the Prospectus present fairly the financial position, results of operations and
cash flows of the Company and its consolidated subsidiaries as at the respective
dates and for the respective periods specified and, except as otherwise stated
in the Prospectus, said financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent basis
during the periods involved and the supporting schedules included in the
Registration Statement present fairly the information required to be stated
therein. The Company has no material contingent obligation which is not
disclosed in the Prospectus.
(e) Except as set forth in or expressly contemplated by the
Prospectus, no material transaction has been entered into by the Company or any
of its subsidiaries otherwise than in the ordinary course of business and no
materially adverse change has occurred in the condition, financial or otherwise,
of the Company, or of the Company and its subsidiaries, taken as a whole, in
each case since the respective dates as of which information is given in the
Prospectus.
(f) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Oklahoma, is qualified to do
business as a foreign corporation and is in good standing under the laws of the
State of Arkansas, and is not required to qualify to do business as a foreign
corporation in any other jurisdiction, and has the corporate power to own its
properties and carry on its business as now being conducted.
(g) Enogex Inc. ("Enogex") is a wholly-owned subsidiary of the
Company and has six subsidiaries, which are the only "subsidiaries" of the
Company as defined under Regulation S-X under the Exchange Act. Enogex and each
of its subsidiaries are
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hereinafter referred to collectively as the "Subsidiaries" and individually as a
"Subsidiary." Each Subsidiary is a corporation duly organized, validly existing
and in good standing under the laws of the State of Oklahoma and is duly
qualified as a foreign corporation in each jurisdiction in which its failure to
qualify would have a material adverse effect on the business or operations of
the Company and its Subsidiaries taken as a whole and has the corporate power to
own its properties and carry on its business as now being conducted; all of the
issued and outstanding capital stock of each Subsidiary has been duly authorized
and validly issued and is fully paid and non-assessable; and all the capital
stock of each Subsidiary (except for 20% of the issued and outstanding capital
stock of Centoma Gas Systems, Inc.) is owned by the Company free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(h) Neither the Company nor any Subsidiary is in violation of its
Certificate of Incorporation, or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
mortgage or any material contract, indenture, mortgage, lease, note or other
instrument to which it is a party or by which it may be bound or to which any of
its properties or assets is subject, or materially in violation of any law,
administrative regulation or administrative, arbitration or court order, except
in each case to such extent as may be set forth in the Prospectus; and the
execution and delivery of this Agreement, the incurrence of the obligations
herein set forth and the consummation of the transactions herein contemplated
will not conflict with or constitute a breach of, or default under, the
Certificate of Incorporation or By-Laws of the Company or any Subsidiary or any
mortgage, contract, lease, note or other instrument to which the Company or any
Subsidiary is a party or by which it may be bound, or any law, regulation,
consent decree or administrative, arbitration or court order.
(i) The Corporation Commission of the State of Oklahoma (the
"Oklahoma Commission") and the Arkansas Public Service Commission (the "Arkansas
Commission") have each duly authorized the issuance and sale of the Senior Notes
and the First Mortgage Bonds on terms consistent with this Agreement. No
consent of or approval by any other public board or body or administrative
agency, federal or state, is necessary to authorize the issuance and sale of the
Senior Notes and the First Mortgage Bonds, except that there must be compliance
with the securities laws of the states in which the Senior Notes and the First
Mortgage Bonds are to be sold.
(j) There is no pending or threatened suit or proceeding before any
court or governmental agency, authority or body or any arbitration involving the
Company or any Subsidiary required to be disclosed in the Prospectus which is
not adequately disclosed in the Prospectus and there are no contracts or
documents required to be filed as exhibits to the Registration Statement under
the 1933
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Act and the rules and regulations of the Commission thereunder which have not
been so filed.
(k) This Agreement has been duly authorized, executed and delivered
by the Company.
(l) The Company has sufficient authority under statutory provisions
or by grant of franchises or permits by municipalities or counties to conduct
its business as presently conducted and as described in the Registration
Statement and Prospectus.
(m) The Indenture and the First Mortgage Indenture (as defined
herein) are each in due and proper form, have been duly and validly executed and
delivered and are valid and enforceable instruments in accordance with their
terms, except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and to the extent that general equitable principles
may limit the right to obtain the remedy of specific performance of certain of
the obligations thereunder. The Purchased Senior Notes are in due and proper
form and, when duly executed, authenticated and delivered to the Trustee against
the agreed consideration therefor, will be valid and enforceable obligations of
the Company in accordance with their terms. The First Mortgage Bonds which are
delivered to the Trustee as security for the payment of principal of and
premium, if any, and interest on the Purchased Senior Notes are in due and
proper form and, when duly executed, authenticated and delivered to the Trustee
in accordance with the terms of the Indenture, will be valid and enforceable
obligations of the Company in accordance with their terms, secured by the lien
of and entitled to the benefits provided by the First Mortgage Indenture.
(n) The Company has good and sufficient title to each of the
principal plants and properties purported to be owned by it, subject to the lien
of the First Mortgage Indenture, and to permissible encumbrances as therein
defined.
(o) Except for changes contemplated by the Prospectus, the authorized
and outstanding capital stock of the Company is as set forth in the Prospectus.
(p) The Company meets the requirements for filing on Form S-3 under
the Act.
Any certificate signed by any officer of the Company and delivered to
you or to counsel for the Underwriters shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters covered thereby.
3. PURCHASE, OFFERING AND DELIVERY -- CLOSING DATE. Subject to the terms
and conditions herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase from the
Company at the purchase price
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set forth in Schedule I hereto, the principal amount of the Purchased Senior
Notes set forth opposite such Underwriter's name in Schedule II hereto. It is
understood that the Underwriters propose to offer the Purchased Senior Notes for
sale to the public as set forth in the Prospectus Supplement, as hereinafter
defined, relating to the Purchased Senior Notes. The Company will deliver the
Purchased Senior Notes to the Representatives for the respective accounts of the
Underwriters (in fully registered form issued in such names and in such
denominations as the Representatives may direct by notice in writing to the
Company given at or prior to 3:00 P.M., Oklahoma City Time, on the second full
business day preceding the Closing Date, or, if no such direction is received,
in the names of the respective Underwriters), at the office specified in
Schedule I hereto, against payment of the purchase price thereof by wire
transfer or similar same day funds, payable to such account as the Company shall
direct by notice in writing to the Representatives given at or prior to 3:00
p.m. Oklahoma City Time on the second full business day preceding the Closing
Date. The time and date of delivery and closing shall be the time and date
specified in Schedule I hereto; provided that such time or date may be
accelerated or extended by agreement between the Company and the
Representatives. The time and date of such payment and delivery are herein
sometimes referred to as the "Closing Date."
The Company agrees to make the Purchased Senior Notes available to the
Representatives at the office specified in Schedule I hereto for examination on
behalf of the Underwriters, not later than 11:00 A.M., Oklahoma City Time, on
the business day preceding the Closing Date.
It is understood that the Representatives, either jointly or
individually, and not as representatives of the several Underwriters, may (but
shall not be obligated to) make payment to the Company on behalf of any
Underwriter or Underwriters. Any such payment shall not relieve such
Underwriter or Underwriters from any of its or their other obligations
hereunder.
The Representatives agree to deposit with the Company within two
business days after the date of this Agreement the amount set forth in
Schedule I hereto as the Oklahoma Real Estate Mortgage Tax. It is understood
that such payment shall not constitute partial or full payment for the Purchased
Senior Notes, but shall be applied solely in accordance with Section 4(i)
hereof.
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4. AGREEMENTS. The Company agrees with the several Underwriters that:
(a) Promptly following execution of this Agreement, the Company will
cause the Prospectus, including as part thereof a prospectus supplement relating
to the Purchased Senior Notes (the "Prospectus Supplement"), to be filed with
the Commission pursuant to Rule 424 and/or Rule 434 under the Act and the
Company will promptly advise the Representatives when such filing or mailing has
been made. Prior to such filing or mailing, the Company will cooperate with the
Representatives in the preparation of the Prospectus Supplement to assure that
the Representatives have no reasonable objection to the form or content thereof
when filed.
(b) The Company will promptly advise the Representatives and confirm
in writing (i) when any amendment to the Registration Statement shall have
become effective, (ii) of the receipt of any comments from the Commission, (iii)
of any request by the Commission for any amendment of the Registration Statement
or amendment or supplement to the Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threatening of
any proceeding for that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Purchased Senior Notes or the First Mortgage Bonds for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. The
Company will not file any amendment to the Registration Statement or supplement
to the Prospectus with the Commission unless the Company has furnished you a
copy for your review prior to filing and will not file any such proposed
amendment or supplement to which the Representatives or counsel for the
Underwriters reasonably object. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(c) If, at any time when a prospectus relating to the Purchased
Senior Notes or the First Mortgage Bonds is required to be delivered under the
Act, any event occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it shall be
necessary to amend or supplement the Registration Statement or the Prospectus to
comply with the Act or the Exchange Act or the rules and regulations of the
Commission under such Acts, the Company promptly will prepare and file with the
Commission, subject to paragraph (b) of this Section 4, an amendment or
supplement or a filing pursuant to Section 13 or 14 of the Exchange Act which
will correct such statement or omission or an amendment which will effect such
compliance.
(d) The Company will make generally available to its security holders
and to the Representatives a consolidated earnings
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statement (which need not be audited) of the Company for the 12-month period
beginning after the date of the Prospectus Supplement, as soon as practicable
after the end of such 12-month period, which will satisfy the provisions of
Section 11(a) of the Act and the rules and regulations of the Commission
thereunder (including Rule 158 under the Act).
(e) The Company will furnish without charge to (i) each of the
Representatives and counsel for the Underwriters a signed copy of the
Registration Statement (but without exhibits incorporated by reference), as
originally filed, all amendments thereto filed prior to the Closing Date, all
Incorporated Documents (including exhibits, other than exhibits incorporated by
reference) and the Statements of Eligibility of the Trustee and the trustee for
the First Mortgage Bonds, (ii) each other Underwriter a conformed copy of the
Registration Statement (but without exhibits), as originally filed, all
amendments thereto (but without exhibits) and all Incorporated Documents (but
without exhibits other than the Company's latest annual report to shareowners)
and (iii) each Underwriter as many copies of the Prospectus and the Prospectus
Supplement and, so long as delivery of a prospectus by an Underwriter or dealer
may be required under the Act, any amendments thereof and supplements thereto
(but without Incorporated Documents or exhibits), as soon as available and in
such quantities as the Representatives may reasonably request.
(f) The Company will use its best efforts to arrange for the
qualification of the Purchased Senior Notes and the First Mortgage Bonds for
sale under the laws of such jurisdictions as the Representatives may designate
(provided that the Company shall not be obligated to qualify as a foreign
corporation in, or to execute or file any general consent to service of process
under the laws of, any jurisdiction), will maintain such qualifications in
effect so long as required for the distribution of the Purchased Senior Notes
and the First Mortgage Bonds and will arrange for the determination of the
legality of the Purchased Senior Notes and the First Mortgage Bonds for purchase
by institutional investors.
(g) Whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, the Company will pay all costs and
expenses incident to the performance of the obligations of the Company
hereunder, including, without limiting the generality of the foregoing, all
costs, taxes and expenses incident to the issue and delivery of the Purchased
Senior Notes and the First Mortgage Bonds to the Underwriters, all fees and
expenses of the Company's counsel and accountants, all costs and expenses
incident to the preparing, printing and filing of the Registration Statement
(including all exhibits thereto), any preliminary prospectus, the Prospectus,
the Prospectus Supplement and any amendments thereof or supplements thereto
(except the cost of amending or supplementing the Prospectus after ninety days
following the Closing Date, which shall be at the expense of the Underwriters
requesting same), all costs and expenses (including fees of counsel not
exceeding $10,000 and disbursements) incurred
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in connection with state securities law qualifications, examining the legality
of the Purchased Senior Notes and the First Mortgage Bonds for investment and
the rating of the Purchased Senior Notes, and all costs and expenses of the
printing and distribution of all documents prepared in connection with the
issuance and sale of the Purchased Senior Notes and the First Mortgage Bonds.
Except as provided in this Section 4(g), Section 7 and Section 8 hereof, the
Underwriters will pay all their own costs and expenses, including the fees of
their counsel and any advertising expenses in connection with any offers they
may make.
(h) Except for the issuance and sale of the Additional Senior Notes,
during the period beginning from the date of this Agreement and continuing to
the Closing Date, the Company will not offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company which mature more than
one year after the Closing Date and which are substantially similar to the
Purchased Senior Notes, without the prior written consent of the
Representatives; provided that in no event shall the foregoing period extend
more than fifteen business days from the date of this Agreement.
(i) The Company will use the amount deposited by the Representatives
with it pursuant to the last paragraph of Section 3 hereof to the extent
necessary to pay for the account of the several Underwriters, in the same
proportion as the principal amount of Purchased Senior Notes to be purchased by
each of them bears to the total principal amount of the Purchased Senior Notes,
any Oklahoma Real Estate Mortgage Tax required to be paid by them on the
Purchased Senior Notes and/or the First Mortgage Bonds. Any amount not so
applied by the Company before the Closing Date shall be remitted in same day
funds by the Company to the Representatives for the account of the several
Underwriters on the Closing Date.
(j) The Company will apply the proceeds from the Purchased Senior
Notes in the manner indicated under the caption "Use of Proceeds" in the
Prospectus.
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the Underwriters to purchase and pay for the Purchased Senior Notes shall be
subject to the accuracy of the representations and warranties on the part of the
Company contained herein as of the date hereof and the Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for that purpose shall then be
pending before, or threatened by, the Commission.
(b) The Company shall have delivered to the Trustee, as security for
the payment of the principal and interest on the
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Senior Notes, a series of First Mortgage Bonds (the "Bonds") in the same
aggregate principal amount and with the same stated rate or rates of interest
(or interest calculated in the same manner), payment dates, maturity dates and
redemption provisions as the Purchased Senior Notes they secure. The Bonds will
be issued by the Company under its Trust Indenture dated February 1, 1945
between the Company and Boatmen's First National Bank of Oklahoma, as successor
trustee (the "First Mortgage Trustee") to The First National Bank and Trust
Company of Oklahoma City, as heretofore amended and supplemented and as to be
further amended and supplemented by the Supplemental Trust Indenture dated as of
October 1, 1995 creating the series in which the First Mortgage Bonds are to be
issued. The term "First Mortgage Indenture," as hereinafter used, means such
Trust Indenture dated February 1, 1945, as so amended and supplemented.
(c) The Company shall have furnished to the Representatives the
opinion of Rainey, Ross, Rice & Binns, counsel for the Company, dated the
Closing Date, to the effect that:
(i) the Company is a legally existing corporation under the laws
of the State of Oklahoma and has corporate power, right and authority to do
business and to own property in the State of Oklahoma in the manner and as
set forth in the Prospectus;
(ii) the Indenture has been duly and validly executed and
delivered by the Company, which has full power and authority to enter into
and perform its obligations thereunder, and constitutes the binding and
enforceable agreement of the Company in accordance with its terms, except
as enforcement of provisions of the Indenture may be limited by bankruptcy
or other applicable laws affecting the enforcement of creditors' rights;
(iii) the Purchased Senior Notes and the First Mortgage Bonds have
been duly and validly authorized by the Company and constitute valid and
binding obligations of the Company;
(iv) while, except as otherwise stated in said opinion, such
counsel are not passing upon and do not assume responsibility for and shall
not be deemed to have independently verified the accuracy, completeness or
fairness of the Registration Statement or the Prospectus, nothing has come
to the attention of such counsel that would lead them to believe that the
Registration Statement at the time it became effective 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 not
misleading or that the Prospectus at the time it was filed pursuant to Rule
424 and/or Rule 434 under the Act or on the Closing Date contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the
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statements therein, in the light of the circumstances under which they were
made, not misleading;
(v) the execution and delivery of this Agreement have been duly
authorized by the necessary action on the part of the Company and this
Agreement constitutes the valid and binding agreement of the Company except
to the extent that the provisions for indemnities may be held to be
unenforceable as against public policy;
(vi) except in localities where the Company has no franchises,
which are relatively few and not of large population, and where the failure
to have such franchises will not have a material adverse effect on the
business or operations of the Company, the Company has sufficient authority
under statutory provisions or by grant of franchises or permits by
municipalities or counties to conduct its business in Oklahoma as presently
conducted and as described in the Prospectus;
(vii) such counsel does not know of any legal or governmental
proceedings required to be described in the Prospectus which are not
described as required, nor of any contracts or documents of a character
required to be described in the Registration Statement or Prospectus or to
be filed as exhibits to the Registration Statement which are not described
and filed as required;
(viii) the Indenture, the Purchased Senior Notes, the First
Mortgage Indenture and the Bonds conform in all material respects to the
statements concerning them in the Prospectus;
(ix) all statements contained in the Registration Statement and
Prospectus purporting to set forth the advice or the opinion of such
counsel or to be based upon the opinion of such counsel correctly set forth
the opinion of such counsel on such respective matters;
(x) the execution and delivery of this Agreement and the
issuance of the Purchased Senior Notes and the Bonds, and compliance with
the provisions thereof, under the circumstances contemplated hereby and
thereby, do not and will not violate the Certificate of Incorporation or
By-Laws of the Company or any Subsidiary, or in any material respect
conflict with or constitute on the part of the Company or any Subsidiary a
breach of or default under any indenture, lease, mortgage, deed of trust,
note, agreement or other instrument known to such counsel to which the
Company or any Subsidiary is a party or any law, regulation, consent decree
or administrative, arbitration or court order known to us to which the
Company or any Subsidiary is subject;
(xi) the Oklahoma Commission has duly issued its order
authorizing the issuance by the Company of the Purchased
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Senior Notes and the Bonds on terms consistent with this Agreement and, to
the best of such counsel's knowledge, such order is still in force and
effect; the issuance and sale of the Purchased Senior Notes to the
Underwriters and the issuance of the Bonds to the First Mortgage Trustee
are in conformity with the terms of such order; and no further approval,
authorization, consent, certificate or order of any Oklahoma commission or
regulatory authority is necessary with respect to the issuance and sale of
the Purchased Senior Notes and the issuance of the Bonds by the Company as
contemplated in this Agreement, other than approvals that may be required
under Oklahoma state securities laws;
(xii) each Subsidiary is a legally existing corporation under the
laws of the State of Oklahoma, has corporate power, right and authority to
do business and to own property in the State of Oklahoma in the manner and
as set forth in the Prospectus, and is duly qualified as a foreign
corporation in each jurisdiction in which its failure to qualify would have
a material adverse effect on the business and operation of the Company and
its Subsidiaries taken as a whole;
(xiii) the First Mortgage Indenture has been duly and validly
executed and delivered by the Company, which has full power and authority
to enter into and perform its obligations thereunder, and constitutes the
binding and enforceable agreement of the Company in accordance with its
terms, except as enforcement of provisions of the First Mortgage Indenture
may be limited by bankruptcy or other applicable laws affecting the
enforcement of creditors' rights and except as provisions of the United
States Bankruptcy Code may affect the validity of the lien thereof with
respect to property acquired or proceeds realized by the Company after the
commencement of bankruptcy proceedings with respect to the Company;
(xiv) the Bonds have been duly and validly authorized by the
Company, and constitute valid and binding obligations of the Company and,
with like exception as noted in the foregoing subdivision (xiii), are
entitled to the lien of and benefits provided by the First Mortgage
Indenture;
(xv) The First Mortgage Indenture is in proper form, conforming
to the laws of the State of Oklahoma, to give and create the lien which it
purports to create and has been and at the Closing Date is duly and
properly recorded or filed in all places in Oklahoma necessary to
effectuate the lien of the First Mortgage Indenture; and
(xvi) The Bonds are equally and ratably secured with all other
First Mortgage Bonds outstanding under the First Mortgage Indenture by the
First Mortgage Indenture subject to the provisions of the First Mortgage
Indenture relating to any sinking fund or a similar fund for the benefit of
the first
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mortgage bonds of any particular series. The First Mortgage Indenture
constitutes a first mortgage lien, subject only to permissible
encumbrances, as defined in the First Mortgage Indenture, on all of the
property, real, personal, and mixed (except as hereinafter noted), in
Oklahoma now owned by the Company. The First Mortgage Indenture also
constitutes a first mortgage lien, subject to permissible encumbrances as
defined in the First Mortgage Indenture, on all property, real, personal,
and mixed (except as hereinafter noted), hereafter acquired by the Company
in Oklahoma in conformity with the terms of the First Mortgage Indenture,
except as the United States Bankruptcy Code may affect the validity of the
lien of the First Mortgage Indenture on property acquired after the
commencement of a case under such Code, except as to the prior lien of the
First Mortgage Trustee under the First Mortgage Indenture in certain events
specified therein and except as otherwise provided in the First Mortgage
Indenture in case of consolidation or merger. There are excepted from the
lien of the First Mortgage Indenture, as more fully set forth in the
granting clauses thereof, (1) all shares of stock, bonds, notes, evidences
of indebtedness and other securities other than such as may be or are
required to be deposited from time to time with the First Mortgage Trustee,
(2) cash other than such as may be or are required to be deposited from
time to time with the First Mortgage Trustee, (3) contracts, claims, bills
and accounts receivable, and choses in action other than such as may be or
are required to be from time to time assigned to the First Mortgage
Trustee, (4) motor vehicles, (5) any oil, gas and other minerals under or
on lands owned by the Company, (6) goods, wares and merchandise, equipment
and supplies acquired for the purpose of sale or resale in the usual course
of business or for the purpose of consumption in the operation,
construction or repair of any of the properties of the Company, and (7)
certain properties specifically described in Schedule B to the First
Mortgage Indenture not used or useful in the business of the Company. The
Company, except as to permissible encumbrances, as defined in the First
Mortgage Indenture, has good and valid title to the real and fixed
properties in Oklahoma and franchises from Oklahoma or federal authorities
now owned by it; (however, such opinion need not cover titles to rights-of-
way or easements for transmission or distribution lines).
(d) The Company shall have furnished to the Representatives the
opinion of Lawrence Chisenhall, Esq., counsel for the Company in the State of
Arkansas dated the Closing Date, to the effect that:
(i) the Company is duly qualified as a foreign corporation under
the laws of the State of Arkansas and has corporate power, right and
authority to do business and to own property in the State of Arkansas in
the manner and as set forth in the Prospectus;
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(ii) the First Mortgage Indenture is in proper form, conforming
to the laws of the State of Arkansas, to give and create the lien which it
purports to create and has been and at the Closing Date is duly and
properly recorded or filed in all places in Arkansas necessary to
effectuate the lien of the First Mortgage Indenture;
(iii) the First Mortgage Indenture constitutes a first mortgage
lien, subject only to permissible encumbrances, as defined in the First
Mortgage Indenture, on all of the property, real, personal, and mixed
(except as hereinafter noted), in Arkansas now owned by the Company. The
First Mortgage Indenture also constitutes a first mortgage lien, subject to
permissible encumbrances as defined in the First Mortgage Indenture, on all
property, real, personal, and mixed (except as hereinafter noted) hereafter
acquired by the Company in Arkansas in conformity with the terms of the
First Mortgage Indenture, except as the United States Bankruptcy Code may
affect the validity of the lien of the First Mortgage Indenture on property
acquired after the commencement of a case under such Code, except as to the
prior lien of the First Mortgage Trustee under the First Mortgage Indenture
in certain events specified therein and except as otherwise provided in the
First Mortgage Indenture in case of consolidation or merger. There are
excepted from the lien of the First Mortgage Indenture, as more fully set
forth in the granting clauses thereof, (1) all shares of stock, bonds,
notes, evidences of indebtedness and other securities other than such as
may be or are required to be deposited from time to time with the First
Mortgage Trustee, (2) cash other than such as may be or are required to be
deposited from time to time with the First Mortgage Trustee, (3) contracts,
claims, bills and accounts receivable, and choses in action other than such
as may be or are required to be from time to time assigned to the First
Mortgage Trustee, (4) motor vehicles, (5) any oil, gas and other minerals
under or on lands owned by the Company, (6) goods, wares and merchandise,
equipment and supplies acquired for the purpose of sale or resale in the
usual course of business or for the purpose of consumption in the
operation, construction or repair of any of the properties of the Company,
and (7) certain properties specifically described in Schedule B to the
First Mortgage Indenture not used or useful in the business of the Company.
The Company, except as to permissible encumbrances, as defined in the First
Mortgage Indenture, has good and valid title to the real and fixed
properties in Arkansas and franchises from Arkansas authorities now owned
by it; (however, such opinion need not cover titles to rights-of-way or
easements for transmission or distribution lines);
(iv) except in localities where the Company has no franchises,
which are relatively few and not of large population, and where the failure
to have such franchises will not have a material adverse effect on the
business or
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operations of the Company, the Company has sufficient authority under
statutory provisions or by grant of franchises or permits by municipalities
or counties to conduct its business in Arkansas as presently conducted and
as described in the Prospectus;
(v) all statements contained in the Registration Statement and
Prospectus purporting to set forth the advice or the opinion of such
counsel or to be based upon the opinion of such counsel correctly set forth
the opinion of such counsel on such respective matters;
(vi) the Arkansas Commission has duly issued its order
authorizing the issuance and sale by the Company of the Purchased Senior
Notes and the issuance of the Bonds on terms consistent with this Agreement
and such order is still in force and effect; the issuance and sale of the
Purchased Senior Notes to the Underwriters and the issuance of the Bonds to
the First Mortgage Trustee is in conformity with the terms of such order;
and no further approval, authorization, consent, certificate or order of
the Arkansas Commission or any other governmental or regulatory authority
is necessary with respect to the issuance and sale of the Purchased Senior
Notes and the issuance of the Bonds by the Company as contemplated in this
Agreement, other than approvals that may be required under Arkansas state
securities laws; and
(vii) he is not handling any litigation relating to the Company
except as set forth in a schedule attached to such opinion.
(e) The Company shall have furnished to the Representatives the
opinion of Gardner, Carton & Douglas, counsel for the Company, dated the Closing
Date, covering the matters set forth in subdivisions (i), (ii), (iii), (iv),
(v), (vii), (viii), (x), (xiii) and (xiv) of paragraph (c) of this Section 5 and
to the further effect that:
(i) the Registration Statement has become effective under the
Act and, to the best of the knowledge of said counsel, no proceedings for a
stop order in respect thereof are pending or threatened under Section 8(d)
or 8(e) of the Act;
(ii) the Registration Statement and the Prospectus (except as to
the financial statements and financial or statistical data contained or
incorporated by reference therein, with respect to which said counsel need
express no opinion) comply as to form, in all material respects, with the
requirements of the Act, the Exchange Act and the Trust Indenture Act and
the rules and regulations of the Commission under such Acts; and the
Incorporated Documents (except as to the financial statements and financial
or statistical data contained therein, with respect to which said counsel
need
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express no opinion) as of their respective dates of filing with the
Commission complied as to form in all material respects with the Exchange
Act and the rules and regulations of the Commission thereunder;
(iii) the Indenture and the First Mortgage Indenture have each
been qualified under the Trust Indenture Act as and to the extent required
by the provisions of such Act; and
(iv) all approvals, authorizations, consents, certificates or
orders of any state or Federal commission or regulatory authority that are
necessary with respect to the issuance and sale of the Purchased Senior
Notes and the issuance of the Bonds by the Company as contemplated in this
Agreement have been obtained, other than approvals that may be required
under state securities laws.
Such opinion may be subject to the reservation that, in giving such
opinion, said counsel have relied on the opinion of Rainey, Ross, Rice & Binns
as to all matters of Oklahoma law and on the opinion of Lawrence Chisenhall,
Esq. as to all matters of Arkansas law (including without limiting the foregoing
all opinions as to titles of the Company to its properties, the lien of the
First Mortgage Indenture thereon, the validity and sufficiency of franchises and
permits, and the validity and sufficiency of the orders described in subdivision
(xi) of subsection (c) of this Section 5 and subdivision (vi) of subsection (d)
of this Section 5), provided that such opinion shall state that said counsel
believes that the Underwriters and they are justified in relying on the opinions
of Rainey, Ross, Rice & Binns and of Lawrence Chisenhall, Esq.
(f) The Representatives shall have received from Jones, Day, Reavis &
Pogue, counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to such matters related to the issuance and sale of the
Purchased Senior Notes as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(g) At the Closing Date there shall not have been, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, any material adverse change in the condition, financial or
otherwise, of the Company or in the earnings, affairs or business prospects of
the Company, whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the Chairman of the Board
and President or a Vice President of the Company, dated the Closing Date, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties contained in this Agreement are true and correct
with the same force and effect as though expressly made at and as of the Closing
Date, (iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or
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satisfied at or prior to the Closing Date and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been initiated or, to their knowledge, threatened by the
Commission.
(h) At the date of this Agreement and at the Closing Date the
Representatives shall receive from Arthur Andersen LLP a letter (in form and
substance satisfactory to them) dated such dates to the effect that they are
independent public accountants within the meaning of the Act and the applicable
published rules and regulations thereunder and that the answer to Item 10 of
Form S-3 is correct insofar as it relates to them, and stating in effect that
(i) in their opinion, the financial statements and schedules audited by them and
contained in the Incorporated Documents comply as to form in all material
respects with the applicable accounting requirements of the Act, the Exchange
Act and the published rules and regulations thereunder; (ii) they have performed
limited procedures, not constituting an audit, including a reading of the latest
available unaudited interim financial statements of the Company and its
Subsidiaries, a reading of all recent minutes of meetings of the Board of
Directors, committees of the Board of Directors and shareowners of the Company
and its Subsidiaries, inquiries of officials of the Company and its Subsidiaries
responsible for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, and on the basis of such limited
review and procedures, nothing came to their attention which caused them to
believe that (a) any unaudited financial statements of the Company included or
incorporated by reference in the Registration Statement or Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Act, the Exchange Act and the rules and regulations
applicable thereto or are not stated on a basis substantially consistent with
that of the audited financial statements of the Company incorporated by
reference in the Registration Statement, or (b) as of a specified date not more
than five business days prior to the date of delivery of each such letter, there
was any decrease in the capital stock or any increase in the consolidated long-
term debt of the Company and its subsidiaries, or any decrease in consolidated
net assets, as compared with amounts shown in the most recent consolidated
balance sheet included or incorporated by reference in the Registration
Statement or for the period from the first day of the month next following the
date of said balance sheet to a specified date not more than five business days
prior to the date of delivery of each such letter there were any decreases, as
compared with the corresponding period in the preceding year, in operating
revenues, operating income and net income, except in all instances for changes
which the Prospectus discloses have occurred or may occur or which are described
in such letter; (iii) they have carried out specified procedures performed for
the purpose of comparing certain specified financial information and percentages
(which is limited to financial information derived from general accounting
records of the Company) included or incorporated by reference in the
Registration Statement with indicated amounts in the financial
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statements or accounting records of the Company and (excluding any questions of
legal interpretation) have found such information and percentages to be in
agreement with the relevant accounting and financial information of the Company
referred to in such letter in the description of the procedures performed by
them and (iv) they have read any unaudited financial statement information and
financial ratios set forth in the Prospectus Supplement and have performed
specified procedures with respect thereto set forth in such letter, and nothing
came to their attention which caused them to believe that such financial
information does not agree with the latest available unaudited interim financial
statements of the Company and its Subsidiaries or was not determined on a basis
substantially consistent with that of the corresponding amounts in the audited
financial statements incorporated by reference in the Registration Statement.
If additional unaudited financial information is included in the Prospectus,
appropriate statements with respect thereto shall also be set forth in such
letter.
(i) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall not have
been any change or decrease specified in the letter referred to in paragraph (h)
of this Section 5 which makes it impractical or inadvisable in the judgment of
the Representatives to proceed with the public offering or delivery of the
Purchased Senior Notes as contemplated by the Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as the
Representatives may reasonably request.
In giving the opinions contemplated by paragraphs (c), (d), (e) and
(f) of this Section 5, counsel may rely upon certificates of state officials as
to the Company's good standing and upon certificates of officers of the Company
as to matters of fact relevant to such opinions. In giving such opinions,
counsel may assume (i) that the Purchased Senior Notes and the Bonds have been
executed on behalf of the Company by the manual or facsimile signatures of the
President or a Vice President and the Secretary or an Assistant Secretary of the
Company and have been manually authenticated by an authorized official of the
Trustee, (ii) that the signatures on all documents examined by them are genuine,
and (iii) the adequacy of the written information supplied by the
Representatives and the other Underwriters expressly for use in the Registration
Statement or the Prospectus.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
or certificates mentioned above or elsewhere in this Agreement shall not be in
all material respects reasonably satisfactory in form and substance to the
Representatives and their counsel, this Agreement and all
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obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives.
6. CONDITIONS OF COMPANY'S OBLIGATION. The obligation of the Company to
deliver the Purchased Senior Notes and the Bonds upon payment therefor shall be
subject to the following conditions:
On the Closing Date the orders of the Oklahoma Commission and the
Arkansas Commission referred to in paragraph (i) of Section 2 hereof shall be in
full force and effect substantially in the form in which originally entered; the
Indenture and the First Mortgage Indenture, shall be qualified under the Trust
Indenture Act as and to the extent required by such Act; and no stop order
suspending the effectiveness of the Registration Statement shall be in effect
and no proceedings for that purpose shall then be pending before, or threatened
by, the Commission.
In case any of the conditions specified above in this Section 6 shall
not have been fulfilled, this Agreement may be terminated by the Company by
delivering written notice of termination to the Representatives. Any such
termination shall be without liability of any party to any other party except to
the extent provided in paragraph (g) of Section 4 and Section 7 hereof.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the Purchased
Senior Notes provided for herein is not consummated because any condition to the
obligations of the Underwriters or the Company set forth in Section 5 or
Section 6 hereof, respectively, is not satisfied or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel and any amounts deposited by the Representatives with
the Company for payment of the Oklahoma Real Estate Mortgage Tax) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Purchased Senior Notes.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several (including any investigation,
legal or other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim asserted), to
which they or any of them may become subject under the Act, the Exchange Act or
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or in any preliminary prospectus
or the Prospectus, or in any amendment
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thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state in any such document a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided that (i) the Company
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation thereof and (ii) such
indemnity with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or liability purchased
any of the Purchased Senior Notes which are the subject thereof if such person
did not receive a copy of the Prospectus (or, if the Prospectus shall have been
amended or supplemented, the Prospectus as then amended or supplemented),
excluding the Incorporated Documents, at or prior to the confirmation of the
sale of such Purchased Senior Notes to such person in any case where such
delivery is required by the Act and the untrue statement or omission of a
material fact contained in such preliminary prospectus was corrected in the
Prospectus (or the Prospectus as then amended or supplemented). This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying
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party will be entitled to participate therein and, to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expense
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of subparagraph
(a), representing the indemnified parties under subparagraph (a) who are parties
to such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). Any indemnifying party shall not be
liable for any settlement of any action or claim effected without its written
consent, which consent may not be unreasonably withheld, but if settled with
such consent, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
arising out of such proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 8 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company on grounds of policy or otherwise, the
Company and the Underwriters shall contribute to the aggregate losses, claims,
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damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the Company and one
or more of the Underwriters may be subject (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Underwriters from the offering of the Purchased Senior Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above, but also the relative fault of the Company or
the Underwriters in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Underwriters shall be deemed to be in the same respective proportions as the net
proceeds from the offering (before deducting expenses) received by the Company
and the underwriting discount received by the Underwriters, in each case as set
forth on the cover of the Prospectus Supplement, bear to the aggregate public
offering price of the Purchased Senior Notes. The relative fault of the Company
and the Underwriters shall be determined by a reference to, among other things,
whether the untrue or alleged untrue statement of a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this paragraph
(d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in the
foregoing provisions of this paragraph (d). Notwithstanding the provisions of
this paragraph (d), (x) in no case shall any Underwriter (except as may be
provided in any Agreement Among Underwriters) be responsible for any amount in
excess of the aggregate underwriting discounts applicable to the Purchased
Senior Notes purchased by such Underwriter hereunder and (y) 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. The Underwriters' obligations to contribute
pursuant to this paragraph (d) are several (and not joint) in proportion to the
respective principal amount of Purchased Senior Notes to be purchased by each of
such Underwriters. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of the Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to clauses (x) and (y) of this paragraph (d). Any party entitled
to contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made
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against another party or parties under this paragraph (d), notify such party
from whom contributions may be sought, but the omission to so notify such party
or parties shall not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have hereunder or otherwise than
under this paragraph (d).
9. DEFAULT BY AN UNDERWRITER. If any one or more of the Underwriters
shall fail to purchase and pay for the Purchased Senior Notes agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the Representatives may find one or more
substitute underwriters to purchase such Purchased Senior Notes or make such
other arrangements as the Representatives deem advisable or one or more of the
nondefaulting Underwriters may agree to purchase such Purchased Senior Notes in
such proportions as may be agreed upon by the Representatives, in each case upon
the terms set forth in this Agreement. If no such arrangements have been made
within 36 hours after the Closing Date, each of the nondefaulting Underwriters
shall be obligated severally to take up and pay for (in the respective
proportions which the amounts of Purchased Senior Notes set forth opposite their
names in Schedule II hereto bear to the aggregate amount of Purchased Senior
Notes set opposite the names of all the nondefaulting remaining Underwriters)
the Purchased Senior Notes which the defaulting Underwriter or Underwriters
agreed but failed to purchase, provided that in the event that the aggregate
principal amount of Purchased Senior Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of the Purchased Senior Notes set forth in Schedule II hereto,
the nondefaulting Underwriters shall have the right to purchase all, but shall
not be under any obligation to purchase any, of the Purchased Senior Notes and
if such nondefaulting Underwriters do not purchase all the Purchased Senior
Notes, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company, except as provided in Section 11 hereof. In the
event of a default by any Underwriter as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding seven days, as
the Representatives shall determine, in order that the required changes in the
Registration Statement and the Prospectus Supplement or in any other documents
or arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Company and
any nondefaulting Underwriter for damages occasioned by its default hereunder.
10. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Purchased Senior Notes, if prior to such time
(i) there has been, since the date of this Agreement or since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, any loss sustained by the Company or
23
<PAGE>
any Subsidiary by strike, fire, flood, accident or other calamity of such
character as to interfere materially with the conduct of the business and
operations of the Company and its Subsidiaries taken as a whole regardless of
whether or not such loss shall have been insured, or any material adverse change
in the earnings, affairs, condition (financial or otherwise) or business
prospects of the Company and its Subsidiaries taken as a whole, whether or not
arising in the ordinary course of business, (ii) trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or
additional material governmental restrictions, not in force on the date of this
Agreement, have been imposed upon trading in securities generally, or minimum or
maximum prices for trading shall have been fixed, or maximum ranges for prices
for securities shall have been required on the New York Stock Exchange, by the
New York Stock Exchange or by order of the Commission or any other governmental
authority having jurisdiction, (iii) a banking moratorium shall have been
declared either by federal or New York State authorities, or (iv) there shall
have occurred any outbreak or material escalation of hostilities or other
calamity or crisis, the effect of which on the financial markets of the United
States is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to market the Purchased Senior Notes.
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Purchased
Senior Notes. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
12. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered in person or transmitted by any form of written telecommunication to
them at the address specified in Schedule I hereto, or, if sent to the Company,
will be mailed, delivered in person or transmitted by any form of written
telecommunication to it, at 101 North Robinson, Oklahoma City, Oklahoma 73101,
attention of James R. Hatfield, Treasurer.
13. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns and
the officers, directors, employees, agents and controlling persons referred to
in Section 8 hereof, and no other person will have any right or obligation
hereunder. The term "successors and assigns" as used in this Agreement shall
not include any purchaser, as such purchaser, of any of the Purchased Senior
Notes from any of the Underwriters.
24
<PAGE>
14. REPRESENTATION OF THE UNDERWRITERS. The Representatives represent and
warrant to the Company that they are authorized to act as the representatives of
the Underwriters in the subject matter of this Agreement, and the
Representatives' execution and delivery of this Agreement and any action under
this Agreement taken by such Representatives will be binding upon all
Underwriters.
15. INTERPRETATION WHEN NO REPRESENTATIVES. In the event no Underwriters
are named in Schedule II hereto, the term "Underwriters" shall be deemed for all
purposes of this Agreement to be the Underwriter or Underwriters named as such
in Schedule I hereto, the principal amount of the Purchased Senior Notes to be
purchased by any such Underwriter shall be that set opposite its name in
Schedule I hereto and all references to the "Representatives" shall be deemed to
be the Underwriter or Underwriters named in such Schedule I.
16. COUNTERPARTS. This Agreement may be executed in counterparts all of
which, taken together, shall constitute a single agreement among the parties to
such counterparts.
25
<PAGE>
17. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of Oklahoma.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
OKLAHOMA GAS AND ELECTRIC COMPANY
By
----------------------------------
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED
BEAR, STEARNS & CO. INC.
LEHMAN BROTHERS INC.
By: MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED
By
---------------------
For themselves and the other
several Underwriters named in
Schedule II hereto.
26
<PAGE>
SCHEDULE I
----------
Registration Statement Nos.: 33-32870 and 33-61821
Representatives: Merrill Lynch & Co., Bear, Stearns & Co. Inc.
and Lehman Brothers Inc.
Amount, Purchase Price and Description of Purchased Senior Notes:
Aggregate Principal Amount: $110,000,000
Purchase Price: 98.251% of the aggregate principal amount
Interest Rate: 7.30% per annum
Initial Public Offering Price: 99.222% of the aggregate
principal amount
Dealer Discount: 0.5% of the aggregate principal amount
Reallowance to Dealers: 0.25% of the aggregate principal
amount
Dated date: October 27, 1995
Maturity: October 15, 2025
Redemption Provisions:
The Senior Notes will not be subject to redemption prior to October 15,
2005. Thereafter, the Senior Notes are subject to redemption, at the
election of the Company, at the following Redemption Prices (expressed in
percentages of the principal amount) if redeemed during the 12 months
beginning October 15 of the years indicated below.
2005 103.261%
2006 102.935%
2007 102.609%
2008 102.283%
2009 101.957%
2010 101.631%
2011 101.304%
2012 100.978%
2013 100.652%
2014 100.326%
2015 and thereafter 100.000%
<PAGE>
SCHEDULE I (CONTINUED)
----------------------
Other Provisions:
Time, Date and Place of Delivery and Payment:
Time and Date - 11:00 a.m. New York City Time,
October 27, 1995
Place: Jones, Day, Reavis & Pogue
599 Lexington Avenue
New York, New York 10022
Oklahoma Real Estate Mortgage Tax: 0.96%
Office for Examination of
Purchased Senior Notes: Merrill Lynch & Co., World Financial
Center, 250 Vesey Street, New York,
New York 10281
Address for Notices to Representatives pursuant to Section 12 of Underwriting
Agreement:
Merrill Lynch & Co. Bear, Stearns & Co. Inc. Lehman Brothers Inc.
World Financial Ctr. 245 Park Avenue 3 World Financial Ctr.
250 Vesey Street New York, NY 10167 200 Vesey Street
New York, NY 10281 Attn: Capital Markets New York, NY 10285
Attn: Capital Markets Attn: Capital Markets
<PAGE>
SCHEDULE II
-----------
<TABLE>
<CAPTION>
Principal Amount
Name of Underwriter of Purchased Senior Notes
- ------------------- -------------------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith $ 36,700,000
Incorporated
Bear, Stearns & Co. Inc. 36,650,000
Lehman Brothers Inc. 36,650,000
------------
Total $110,000,000
------------
------------
</TABLE>
<PAGE>
EXHIBIT 1.02
Oklahoma Gas and Electric Company
Senior Notes
UNDERWRITING AGREEMENT
October 23, 1995
To the Representatives named in
Schedule I hereto of the Under-
writers named in Schedule II hereto.
Ladies and Gentlemen:
1. INTRODUCTION. Oklahoma Gas and Electric Company, an Oklahoma
corporation (the "Company"), proposes to issue and sell $110,000,000 of its
6.250% Senior Notes, due October 15, 2000 (the "Senior Notes"). The Senior
Notes will be issued by the Company under its Indenture dated as of October 1,
1995 between the Company and Boatmen's First National Bank of Oklahoma, as
trustee (the "Trustee"), as amended and supplemented by Supplemental Indenture
No. 1 dated as of October 16, 1995 creating the series in which the Senior Notes
are to be issued. The term "Indenture," as hereinafter used, means such
Indenture dated as of October 1, 1995, as so amended and supplemented. The
Company proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters", which term, when the context permits, shall also include any
substitute underwriter as provided in Section 9 hereof) for whom you are acting
as Representatives (the "Representatives") Senior Notes in the aggregate
principal amount and with the terms specified in Schedule I hereto (the
"Purchased Senior Notes"). Until such time as all of the first mortgage bonds
of the Company (the "First Mortgage Bonds") issued prior to the date of the
Indenture have been retired through payment or redemption (the "Release Date"),
the Senior Notes will be secured as to payment of principal and interest by one
or more series of First Mortgage Bonds issued, pledged and delivered by the
Company to the Trustee. Concurrently with the offering of the Senior Notes, the
Company proposes to issue and sell $110,000,000 of its 7.30% Senior Notes due
October 15, 2025 (the "Additional Senior Notes"). The sale of the Additional
Senior Notes and the Senior Notes are not contingent upon each other.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to, and agrees with, the Underwriters that:
<PAGE>
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") two registration statements on Form S-3 (having the file
numbers set forth in Schedule I hereto) relating to $220,000,000 aggregate
principal amount of its Senior Notes and First Mortgage Bonds, and the offering
thereof from time to time in accordance with Rule 415 under the Securities Act
of 1933, as amended (the "Act"), and has filed such amendments thereto as may
have been required to the date hereof. Such registration statements have been
declared effective by the Commission. Such registration statements and the
prospectus relating to the sale of the Senior Notes and the First Mortgage Bonds
by the Company constituting a part thereof, including all documents incorporated
therein by reference, as from time to time amended or supplemented pursuant to
the Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
are collectively referred to herein as the "Registration Statement," and the
prospectus relating to the Senior Notes and the First Mortgage Bonds, including
all documents incorporated therein by reference, as from time to time amended or
supplemented pursuant to the Act or the Exchange Act, is referred to herein as
the "Prospectus"; provided that a supplement to the Prospectus relating to an
offering of Senior Notes other than the Purchased Senior Notes shall be deemed
to have supplemented the Prospectus only with respect to the offering of such
other Senior Notes. All documents filed by the Company with the Commission
under the Exchange Act and incorporated or deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as aforesaid, are
hereinafter referred to as the "Incorporated Documents."
(b) The Registration Statement, at the time it became effective,
complied and the Prospectus, at the time Registration Statement No. 33-61821
became effective, complied and each as of the date hereof comply and as of the
Closing Date, as hereinafter defined, will comply, in all material respects with
the requirements of the Act, the Exchange Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and regulations of
the Commission under such Acts; the Incorporated Documents, as of their
respective dates of filing with the Commission, complied as to form in all
material respects with the Exchange Act and the rules and regulations of the
Commission thereunder and any Incorporated Documents filed with the Commission
after the date of this Agreement will, when they are filed with the Commission,
comply in all material respects with the requirements of the Exchange Act and
the rules and regulations of the Commission thereunder; the Registration
Statement and any amendment thereto, at the time it became effective, did not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and the Prospectus, at the time Registration Statement No. 33-61821
became effective, did not, as of the date hereof does not and as of the Closing
Date will 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 the light of
the circumstances under which they were made, not
2
<PAGE>
misleading; provided that the representations and warranties in this
Section 2(b) shall not apply to (A) that part of the Registration Statement
which constitutes the Statements of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act (the "Statements of Eligibility") of the Trustee
and the trustee for the First Mortgage Bonds, (B) information contained in the
Registration Statement or the Prospectus relating to The Depository Trust
Company and its book-entry system, or (C) statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by any Representative
expressly for use in the Registration Statement or the Prospectus.
(c) Arthur Andersen LLP, the accountants who certified certain of the
financial statements included or incorporated by reference in the Registration
Statement or the Prospectus, are independent public accountants as required by
the Act and the rules and regulations of the Commission thereunder.
(d) The financial statements included or incorporated by reference in
the Prospectus present fairly the financial position, results of operations and
cash flows of the Company and its consolidated subsidiaries as at the respective
dates and for the respective periods specified and, except as otherwise stated
in the Prospectus, said financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent basis
during the periods involved and the supporting schedules included in the
Registration Statement present fairly the information required to be stated
therein. The Company has no material contingent obligation which is not
disclosed in the Prospectus.
(e) Except as set forth in or expressly contemplated by the
Prospectus, no material transaction has been entered into by the Company or any
of its subsidiaries otherwise than in the ordinary course of business and no
materially adverse change has occurred in the condition, financial or otherwise,
of the Company, or of the Company and its subsidiaries, taken as a whole, in
each case since the respective dates as of which information is given in the
Prospectus.
(f) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Oklahoma, is qualified to do
business as a foreign corporation and is in good standing under the laws of the
State of Arkansas, and is not required to qualify to do business as a foreign
corporation in any other jurisdiction, and has the corporate power to own its
properties and carry on its business as now being conducted.
(g) Enogex Inc. ("Enogex") is a wholly-owned subsidiary of the
Company and has six subsidiaries, which are the only "subsidiaries" of the
Company as defined under Regulation S-X under the Exchange Act. Enogex and each
of its subsidiaries are
3
<PAGE>
hereinafter referred to collectively as the "Subsidiaries" and individually as a
"Subsidiary." Each Subsidiary is a corporation duly organized, validly existing
and in good standing under the laws of the State of Oklahoma and is duly
qualified as a foreign corporation in each jurisdiction in which its failure to
qualify would have a material adverse effect on the business or operations of
the Company and its Subsidiaries taken as a whole and has the corporate power to
own its properties and carry on its business as now being conducted; all of the
issued and outstanding capital stock of each Subsidiary has been duly authorized
and validly issued and is fully paid and non-assessable; and all the capital
stock of each Subsidiary (except for 20% of the issued and outstanding capital
stock of Centoma Gas Systems, Inc.) is owned by the Company free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(h) Neither the Company nor any Subsidiary is in violation of its
Certificate of Incorporation, or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
mortgage or any material contract, indenture, mortgage, lease, note or other
instrument to which it is a party or by which it may be bound or to which any of
its properties or assets is subject, or materially in violation of any law,
administrative regulation or administrative, arbitration or court order, except
in each case to such extent as may be set forth in the Prospectus; and the
execution and delivery of this Agreement, the incurrence of the obligations
herein set forth and the consummation of the transactions herein contemplated
will not conflict with or constitute a breach of, or default under, the
Certificate of Incorporation or By-Laws of the Company or any Subsidiary or any
mortgage, contract, lease, note or other instrument to which the Company or any
Subsidiary is a party or by which it may be bound, or any law, regulation,
consent decree or administrative, arbitration or court order.
(i) The Corporation Commission of the State of Oklahoma (the
"Oklahoma Commission") and the Arkansas Public Service Commission (the "Arkansas
Commission") have each duly authorized the issuance and sale of the Senior Notes
and the First Mortgage Bonds on terms consistent with this Agreement. No
consent of or approval by any other public board or body or administrative
agency, federal or state, is necessary to authorize the issuance and sale of the
Senior Notes and the First Mortgage Bonds, except that there must be compliance
with the securities laws of the states in which the Senior Notes and the First
Mortgage Bonds are to be sold.
(j) There is no pending or threatened suit or proceeding before any
court or governmental agency, authority or body or any arbitration involving the
Company or any Subsidiary required to be disclosed in the Prospectus which is
not adequately disclosed in the Prospectus and there are no contracts or
documents required to be filed as exhibits to the Registration Statement under
the 1933
4
<PAGE>
Act and the rules and regulations of the Commission thereunder which have not
been so filed.
(k) This Agreement has been duly authorized, executed and delivered
by the Company.
(l) The Company has sufficient authority under statutory provisions
or by grant of franchises or permits by municipalities or counties to conduct
its business as presently conducted and as described in the Registration
Statement and Prospectus.
(m) The Indenture and the First Mortgage Indenture (as defined
herein) are each in due and proper form, have been duly and validly executed and
delivered and are valid and enforceable instruments in accordance with their
terms, except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and to the extent that general equitable principles
may limit the right to obtain the remedy of specific performance of certain of
the obligations thereunder. The Purchased Senior Notes are in due and proper
form and, when duly executed, authenticated and delivered to the Trustee against
the agreed consideration therefor, will be valid and enforceable obligations of
the Company in accordance with their terms. The First Mortgage Bonds which are
delivered to the Trustee as security for the payment of principal of and
premium, if any, and interest on the Purchased Senior Notes are in due and
proper form and, when duly executed, authenticated and delivered to the Trustee
in accordance with the terms of the Indenture, will be valid and enforceable
obligations of the Company in accordance with their terms, secured by the lien
of and entitled to the benefits provided by the First Mortgage Indenture.
(n) The Company has good and sufficient title to each of the
principal plants and properties purported to be owned by it, subject to the lien
of the First Mortgage Indenture, and to permissible encumbrances as therein
defined.
(o) Except for changes contemplated by the Prospectus, the authorized
and outstanding capital stock of the Company is as set forth in the Prospectus.
(p) The Company meets the requirements for filing on Form S-3 under
the Act.
Any certificate signed by any officer of the Company and delivered to
you or to counsel for the Underwriters shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters covered thereby.
3. PURCHASE, OFFERING AND DELIVERY -- CLOSING DATE. Subject to the terms
and conditions herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase from the
Company at the purchase price
5
<PAGE>
set forth in Schedule I hereto, the principal amount of the Purchased Senior
Notes set forth opposite such Underwriter's name in Schedule II hereto. It is
understood that the Underwriters propose to offer the Purchased Senior Notes for
sale to the public as set forth in the Prospectus Supplement, as hereinafter
defined, relating to the Purchased Senior Notes. The Company will deliver the
Purchased Senior Notes to the Representatives for the respective accounts of the
Underwriters (in fully registered form issued in such names and in such
denominations as the Representatives may direct by notice in writing to the
Company given at or prior to 3:00 P.M., Oklahoma City Time, on the second full
business day preceding the Closing Date, or, if no such direction is received,
in the names of the respective Underwriters), at the office specified in
Schedule I hereto, against payment of the purchase price thereof by wire
transfer or similar same day funds, payable to such account as the Company shall
direct by notice in writing to the Representatives given at or prior to 3:00
p.m. Oklahoma City Time on the second full business day preceding the Closing
Date. The time and date of delivery and closing shall be the time and date
specified in Schedule I hereto; provided that such time or date may be
accelerated or extended by agreement between the Company and the
Representatives. The time and date of such payment and delivery are herein
sometimes referred to as the "Closing Date."
The Company agrees to make the Purchased Senior Notes available to the
Representatives at the office specified in Schedule I hereto for examination on
behalf of the Underwriters, not later than 11:00 A.M., Oklahoma City Time, on
the business day preceding the Closing Date.
It is understood that the Representatives, either jointly or
individually, and not as representatives of the several Underwriters, may (but
shall not be obligated to) make payment to the Company on behalf of any
Underwriter or Underwriters. Any such payment shall not relieve such
Underwriter or Underwriters from any of its or their other obligations
hereunder.
The Representatives agree to deposit with the Company within two
business days after the date of this Agreement the amount set forth in
Schedule I hereto as the Oklahoma Real Estate Mortgage Tax. It is understood
that such payment shall not constitute partial or full payment for the Purchased
Senior Notes, but shall be applied solely in accordance with Section 4(i)
hereof.
6
<PAGE>
4. AGREEMENTS. The Company agrees with the several Underwriters that:
(a) Promptly following execution of this Agreement, the Company will
cause the Prospectus, including as part thereof a prospectus supplement relating
to the Purchased Senior Notes (the "Prospectus Supplement"), to be filed with
the Commission pursuant to Rule 424 and/or Rule 434 under the Act and the
Company will promptly advise the Representatives when such filing or mailing has
been made. Prior to such filing or mailing, the Company will cooperate with the
Representatives in the preparation of the Prospectus Supplement to assure that
the Representatives have no reasonable objection to the form or content thereof
when filed.
(b) The Company will promptly advise the Representatives and confirm
in writing (i) when any amendment to the Registration Statement shall have
become effective, (ii) of the receipt of any comments from the Commission, (iii)
of any request by the Commission for any amendment of the Registration Statement
or amendment or supplement to the Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threatening of
any proceeding for that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Purchased Senior Notes or the First Mortgage Bonds for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. The
Company will not file any amendment to the Registration Statement or supplement
to the Prospectus with the Commission unless the Company has furnished you a
copy for your review prior to filing and will not file any such proposed
amendment or supplement to which the Representatives or counsel for the
Underwriters reasonably object. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(c) If, at any time when a prospectus relating to the Purchased
Senior Notes or the First Mortgage Bonds is required to be delivered under the
Act, any event occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it shall be
necessary to amend or supplement the Registration Statement or the Prospectus to
comply with the Act or the Exchange Act or the rules and regulations of the
Commission under such Acts, the Company promptly will prepare and file with the
Commission, subject to paragraph (b) of this Section 4, an amendment or
supplement or a filing pursuant to Section 13 or 14 of the Exchange Act which
will correct such statement or omission or an amendment which will effect such
compliance.
(d) The Company will make generally available to its security holders
and to the Representatives a consolidated earnings
7
<PAGE>
statement (which need not be audited) of the Company for the 12-month period
beginning after the date of the Prospectus Supplement, as soon as practicable
after the end of such 12-month period, which will satisfy the provisions of
Section 11(a) of the Act and the rules and regulations of the Commission
thereunder (including Rule 158 under the Act).
(e) The Company will furnish without charge to (i) each of the
Representatives and counsel for the Underwriters a signed copy of the
Registration Statement (but without exhibits incorporated by reference), as
originally filed, all amendments thereto filed prior to the Closing Date, all
Incorporated Documents (including exhibits, other than exhibits incorporated by
reference) and the Statements of Eligibility of the Trustee and the trustee for
the First Mortgage Bonds, (ii) each other Underwriter a conformed copy of the
Registration Statement (but without exhibits), as originally filed, all
amendments thereto (but without exhibits) and all Incorporated Documents (but
without exhibits other than the Company's latest annual report to shareowners)
and (iii) each Underwriter as many copies of the Prospectus and the Prospectus
Supplement and, so long as delivery of a prospectus by an Underwriter or dealer
may be required under the Act, any amendments thereof and supplements thereto
(but without Incorporated Documents or exhibits), as soon as available and in
such quantities as the Representatives may reasonably request.
(f) The Company will use its best efforts to arrange for the
qualification of the Purchased Senior Notes and the First Mortgage Bonds for
sale under the laws of such jurisdictions as the Representatives may designate
(provided that the Company shall not be obligated to qualify as a foreign
corporation in, or to execute or file any general consent to service of process
under the laws of, any jurisdiction), will maintain such qualifications in
effect so long as required for the distribution of the Purchased Senior Notes
and the First Mortgage Bonds and will arrange for the determination of the
legality of the Purchased Senior Notes and the First Mortgage Bonds for purchase
by institutional investors.
(g) Whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, the Company will pay all costs and
expenses incident to the performance of the obligations of the Company
hereunder, including, without limiting the generality of the foregoing, all
costs, taxes and expenses incident to the issue and delivery of the Purchased
Senior Notes and the First Mortgage Bonds to the Underwriters, all fees and
expenses of the Company's counsel and accountants, all costs and expenses
incident to the preparing, printing and filing of the Registration Statement
(including all exhibits thereto), any preliminary prospectus, the Prospectus,
the Prospectus Supplement and any amendments thereof or supplements thereto
(except the cost of amending or supplementing the Prospectus after ninety days
following the Closing Date, which shall be at the expense of the Underwriters
requesting same), all costs and expenses (including fees of counsel not
exceeding $10,000 and disbursements) incurred
8
<PAGE>
in connection with state securities law qualifications, examining the legality
of the Purchased Senior Notes and the First Mortgage Bonds for investment and
the rating of the Purchased Senior Notes, and all costs and expenses of the
printing and distribution of all documents prepared in connection with the
issuance and sale of the Purchased Senior Notes and the First Mortgage Bonds.
Except as provided in this Section 4(g), Section 7 and Section 8 hereof, the
Underwriters will pay all their own costs and expenses, including the fees of
their counsel and any advertising expenses in connection with any offers they
may make.
(h) Except for the issuance and sale of the Additional Senior Notes,
during the period beginning from the date of this Agreement and continuing to
the Closing Date, the Company will not offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company which mature more than
one year after the Closing Date and which are substantially similar to the
Purchased Senior Notes, without the prior written consent of the
Representatives; provided that in no event shall the foregoing period extend
more than fifteen business days from the date of this Agreement.
(i) The Company will use the amount deposited by the Representatives
with it pursuant to the last paragraph of Section 3 hereof to the extent
necessary to pay for the account of the several Underwriters, in the same
proportion as the principal amount of Purchased Senior Notes to be purchased by
each of them bears to the total principal amount of the Purchased Senior Notes,
any Oklahoma Real Estate Mortgage Tax required to be paid by them on the
Purchased Senior Notes and/or the First Mortgage Bonds. Any amount not so
applied by the Company before the Closing Date shall be remitted in same day
funds by the Company to the Representatives for the account of the several
Underwriters on the Closing Date.
(j) The Company will apply the proceeds from the Purchased Senior
Notes in the manner indicated under the caption "Use of Proceeds" in the
Prospectus.
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the Underwriters to purchase and pay for the Purchased Senior Notes shall be
subject to the accuracy of the representations and warranties on the part of the
Company contained herein as of the date hereof and the Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for that purpose shall then be
pending before, or threatened by, the Commission.
(b) The Company shall have delivered to the Trustee, as security for
the payment of the principal and interest on the
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Senior Notes, a series of First Mortgage Bonds (the "Bonds") in the same
aggregate principal amount and with the same stated rate or rates of interest
(or interest calculated in the same manner), payment dates, maturity dates and
redemption provisions as the Purchased Senior Notes they secure. The Bonds will
be issued by the Company under its Trust Indenture dated February 1, 1945
between the Company and Boatmen's First National Bank of Oklahoma, as successor
trustee (the "First Mortgage Trustee") to The First National Bank and Trust
Company of Oklahoma City, as heretofore amended and supplemented and as to be
further amended and supplemented by the Supplemental Trust Indenture dated as of
October 1, 1995 creating the series in which the First Mortgage Bonds are to be
issued. The term "First Mortgage Indenture," as hereinafter used, means such
Trust Indenture dated February 1, 1945, as so amended and supplemented.
(c) The Company shall have furnished to the Representatives the
opinion of Rainey, Ross, Rice & Binns, counsel for the Company, dated the
Closing Date, to the effect that:
(i) the Company is a legally existing corporation under the laws
of the State of Oklahoma and has corporate power, right and authority to do
business and to own property in the State of Oklahoma in the manner and as
set forth in the Prospectus;
(ii) the Indenture has been duly and validly executed and
delivered by the Company, which has full power and authority to enter into
and perform its obligations thereunder, and constitutes the binding and
enforceable agreement of the Company in accordance with its terms, except
as enforcement of provisions of the Indenture may be limited by bankruptcy
or other applicable laws affecting the enforcement of creditors' rights;
(iii) the Purchased Senior Notes and the First Mortgage Bonds have
been duly and validly authorized by the Company and constitute valid and
binding obligations of the Company;
(iv) while, except as otherwise stated in said opinion, such
counsel are not passing upon and do not assume responsibility for and shall
not be deemed to have independently verified the accuracy, completeness or
fairness of the Registration Statement or the Prospectus, nothing has come
to the attention of such counsel that would lead them to believe that the
Registration Statement at the time it became effective 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 not
misleading or that the Prospectus at the time it was filed pursuant to Rule
424 and/or Rule 434 under the Act or on the Closing Date contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the
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statements therein, in the light of the circumstances under which they were
made, not misleading;
(v) the execution and delivery of this Agreement have been duly
authorized by the necessary action on the part of the Company and this
Agreement constitutes the valid and binding agreement of the Company except
to the extent that the provisions for indemnities may be held to be
unenforceable as against public policy;
(vi) except in localities where the Company has no franchises,
which are relatively few and not of large population, and where the failure
to have such franchises will not have a material adverse effect on the
business or operations of the Company, the Company has sufficient authority
under statutory provisions or by grant of franchises or permits by
municipalities or counties to conduct its business in Oklahoma as presently
conducted and as described in the Prospectus;
(vii) such counsel does not know of any legal or governmental
proceedings required to be described in the Prospectus which are not
described as required, nor of any contracts or documents of a character
required to be described in the Registration Statement or Prospectus or to
be filed as exhibits to the Registration Statement which are not described
and filed as required;
(viii) the Indenture, the Purchased Senior Notes, the First
Mortgage Indenture and the Bonds conform in all material respects to the
statements concerning them in the Prospectus;
(ix) all statements contained in the Registration Statement and
Prospectus purporting to set forth the advice or the opinion of such
counsel or to be based upon the opinion of such counsel correctly set forth
the opinion of such counsel on such respective matters;
(x) the execution and delivery of this Agreement and the
issuance of the Purchased Senior Notes and the Bonds, and compliance with
the provisions thereof, under the circumstances contemplated hereby and
thereby, do not and will not violate the Certificate of Incorporation or
By-Laws of the Company or any Subsidiary, or in any material respect
conflict with or constitute on the part of the Company or any Subsidiary a
breach of or default under any indenture, lease, mortgage, deed of trust,
note, agreement or other instrument known to such counsel to which the
Company or any Subsidiary is a party or any law, regulation, consent decree
or administrative, arbitration or court order known to us to which the
Company or any Subsidiary is subject;
(xi) the Oklahoma Commission has duly issued its order
authorizing the issuance by the Company of the Purchased
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Senior Notes and the Bonds on terms consistent with this Agreement and, to
the best of such counsel's knowledge, such order is still in force and
effect; the issuance and sale of the Purchased Senior Notes to the
Underwriters and the issuance of the Bonds to the First Mortgage Trustee
are in conformity with the terms of such order; and no further approval,
authorization, consent, certificate or order of any Oklahoma commission or
regulatory authority is necessary with respect to the issuance and sale of
the Purchased Senior Notes and the issuance of the Bonds by the Company as
contemplated in this Agreement, other than approvals that may be required
under Oklahoma state securities laws;
(xii) each Subsidiary is a legally existing corporation under the
laws of the State of Oklahoma, has corporate power, right and authority to
do business and to own property in the State of Oklahoma in the manner and
as set forth in the Prospectus, and is duly qualified as a foreign
corporation in each jurisdiction in which its failure to qualify would have
a material adverse effect on the business and operation of the Company and
its Subsidiaries taken as a whole;
(xiii) the First Mortgage Indenture has been duly and validly
executed and delivered by the Company, which has full power and authority
to enter into and perform its obligations thereunder, and constitutes the
binding and enforceable agreement of the Company in accordance with its
terms, except as enforcement of provisions of the First Mortgage Indenture
may be limited by bankruptcy or other applicable laws affecting the
enforcement of creditors' rights and except as provisions of the United
States Bankruptcy Code may affect the validity of the lien thereof with
respect to property acquired or proceeds realized by the Company after the
commencement of bankruptcy proceedings with respect to the Company;
(xiv) the Bonds have been duly and validly authorized by the
Company, and constitute valid and binding obligations of the Company and,
with like exception as noted in the foregoing subdivision (xiii), are
entitled to the lien of and benefits provided by the First Mortgage
Indenture;
(xv) The First Mortgage Indenture is in proper form, conforming
to the laws of the State of Oklahoma, to give and create the lien which it
purports to create and has been and at the Closing Date is duly and
properly recorded or filed in all places in Oklahoma necessary to
effectuate the lien of the First Mortgage Indenture; and
(xvi) The Bonds are equally and ratably secured with all other
First Mortgage Bonds outstanding under the First Mortgage Indenture by the
First Mortgage Indenture subject to the provisions of the First Mortgage
Indenture relating to any sinking fund or a similar fund for the benefit of
the first
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mortgage bonds of any particular series. The First Mortgage Indenture
constitutes a first mortgage lien, subject only to permissible
encumbrances, as defined in the First Mortgage Indenture, on all of the
property, real, personal, and mixed (except as hereinafter noted), in
Oklahoma now owned by the Company. The First Mortgage Indenture also
constitutes a first mortgage lien, subject to permissible encumbrances as
defined in the First Mortgage Indenture, on all property, real, personal,
and mixed (except as hereinafter noted), hereafter acquired by the Company
in Oklahoma in conformity with the terms of the First Mortgage Indenture,
except as the United States Bankruptcy Code may affect the validity of the
lien of the First Mortgage Indenture on property acquired after the
commencement of a case under such Code, except as to the prior lien of the
First Mortgage Trustee under the First Mortgage Indenture in certain events
specified therein and except as otherwise provided in the First Mortgage
Indenture in case of consolidation or merger. There are excepted from the
lien of the First Mortgage Indenture, as more fully set forth in the
granting clauses thereof, (1) all shares of stock, bonds, notes, evidences
of indebtedness and other securities other than such as may be or are
required to be deposited from time to time with the First Mortgage Trustee,
(2) cash other than such as may be or are required to be deposited from
time to time with the First Mortgage Trustee, (3) contracts, claims, bills
and accounts receivable, and choses in action other than such as may be or
are required to be from time to time assigned to the First Mortgage
Trustee, (4) motor vehicles, (5) any oil, gas and other minerals under or
on lands owned by the Company, (6) goods, wares and merchandise, equipment
and supplies acquired for the purpose of sale or resale in the usual course
of business or for the purpose of consumption in the operation,
construction or repair of any of the properties of the Company, and (7)
certain properties specifically described in Schedule B to the First
Mortgage Indenture not used or useful in the business of the Company. The
Company, except as to permissible encumbrances, as defined in the First
Mortgage Indenture, has good and valid title to the real and fixed
properties in Oklahoma and franchises from Oklahoma or federal authorities
now owned by it; (however, such opinion need not cover titles to rights-of-
way or easements for transmission or distribution lines).
(d) The Company shall have furnished to the Representatives the
opinion of Lawrence Chisenhall, Esq., counsel for the Company in the State of
Arkansas dated the Closing Date, to the effect that:
(i) the Company is duly qualified as a foreign corporation under
the laws of the State of Arkansas and has corporate power, right and
authority to do business and to own property in the State of Arkansas in
the manner and as set forth in the Prospectus;
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(ii) the First Mortgage Indenture is in proper form, conforming
to the laws of the State of Arkansas, to give and create the lien which it
purports to create and has been and at the Closing Date is duly and
properly recorded or filed in all places in Arkansas necessary to
effectuate the lien of the First Mortgage Indenture;
(iii) the First Mortgage Indenture constitutes a first mortgage
lien, subject only to permissible encumbrances, as defined in the First
Mortgage Indenture, on all of the property, real, personal, and mixed
(except as hereinafter noted), in Arkansas now owned by the Company. The
First Mortgage Indenture also constitutes a first mortgage lien, subject to
permissible encumbrances as defined in the First Mortgage Indenture, on all
property, real, personal, and mixed (except as hereinafter noted) hereafter
acquired by the Company in Arkansas in conformity with the terms of the
First Mortgage Indenture, except as the United States Bankruptcy Code may
affect the validity of the lien of the First Mortgage Indenture on property
acquired after the commencement of a case under such Code, except as to the
prior lien of the First Mortgage Trustee under the First Mortgage Indenture
in certain events specified therein and except as otherwise provided in the
First Mortgage Indenture in case of consolidation or merger. There are
excepted from the lien of the First Mortgage Indenture, as more fully set
forth in the granting clauses thereof, (1) all shares of stock, bonds,
notes, evidences of indebtedness and other securities other than such as
may be or are required to be deposited from time to time with the First
Mortgage Trustee, (2) cash other than such as may be or are required to be
deposited from time to time with the First Mortgage Trustee, (3) contracts,
claims, bills and accounts receivable, and choses in action other than such
as may be or are required to be from time to time assigned to the First
Mortgage Trustee, (4) motor vehicles, (5) any oil, gas and other minerals
under or on lands owned by the Company, (6) goods, wares and merchandise,
equipment and supplies acquired for the purpose of sale or resale in the
usual course of business or for the purpose of consumption in the
operation, construction or repair of any of the properties of the Company,
and (7) certain properties specifically described in Schedule B to the
First Mortgage Indenture not used or useful in the business of the Company.
The Company, except as to permissible encumbrances, as defined in the First
Mortgage Indenture, has good and valid title to the real and fixed
properties in Arkansas and franchises from Arkansas authorities now owned
by it; (however, such opinion need not cover titles to rights-of-way or
easements for transmission or distribution lines);
(iv) except in localities where the Company has no franchises,
which are relatively few and not of large population, and where the failure
to have such franchises will not have a material adverse effect on the
business or
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operations of the Company, the Company has sufficient authority under
statutory provisions or by grant of franchises or permits by municipalities
or counties to conduct its business in Arkansas as presently conducted and
as described in the Prospectus;
(v) all statements contained in the Registration Statement and
Prospectus purporting to set forth the advice or the opinion of such
counsel or to be based upon the opinion of such counsel correctly set forth
the opinion of such counsel on such respective matters;
(vi) the Arkansas Commission has duly issued its order
authorizing the issuance and sale by the Company of the Purchased Senior
Notes and the issuance of the Bonds on terms consistent with this Agreement
and such order is still in force and effect; the issuance and sale of the
Purchased Senior Notes to the Underwriters and the issuance of the Bonds to
the First Mortgage Trustee is in conformity with the terms of such order;
and no further approval, authorization, consent, certificate or order of
the Arkansas Commission or any other governmental or regulatory authority
is necessary with respect to the issuance and sale of the Purchased Senior
Notes and the issuance of the Bonds by the Company as contemplated in this
Agreement, other than approvals that may be required under Arkansas state
securities laws; and
(vii) he is not handling any litigation relating to the Company
except as set forth in a schedule attached to such opinion.
(e) The Company shall have furnished to the Representatives the
opinion of Gardner, Carton & Douglas, counsel for the Company, dated the Closing
Date, covering the matters set forth in subdivisions (i), (ii), (iii), (iv),
(v), (vii), (viii), (x), (xiii) and (xiv) of paragraph (c) of this Section 5 and
to the further effect that:
(i) the Registration Statement has become effective under the
Act and, to the best of the knowledge of said counsel, no proceedings for a
stop order in respect thereof are pending or threatened under Section 8(d)
or 8(e) of the Act;
(ii) the Registration Statement and the Prospectus (except as to
the financial statements and financial or statistical data contained or
incorporated by reference therein, with respect to which said counsel need
express no opinion) comply as to form, in all material respects, with the
requirements of the Act, the Exchange Act and the Trust Indenture Act and
the rules and regulations of the Commission under such Acts; and the
Incorporated Documents (except as to the financial statements and financial
or statistical data contained therein, with respect to which said counsel
need
15
<PAGE>
express no opinion) as of their respective dates of filing with the
Commission complied as to form in all material respects with the Exchange
Act and the rules and regulations of the Commission thereunder;
(iii) the Indenture and the First Mortgage Indenture have each
been qualified under the Trust Indenture Act as and to the extent required
by the provisions of such Act; and
(iv) all approvals, authorizations, consents, certificates or
orders of any state or Federal commission or regulatory authority that are
necessary with respect to the issuance and sale of the Purchased Senior
Notes and the issuance of the Bonds by the Company as contemplated in this
Agreement have been obtained, other than approvals that may be required
under state securities laws.
Such opinion may be subject to the reservation that, in giving such
opinion, said counsel have relied on the opinion of Rainey, Ross, Rice & Binns
as to all matters of Oklahoma law and on the opinion of Lawrence Chisenhall,
Esq. as to all matters of Arkansas law (including without limiting the foregoing
all opinions as to titles of the Company to its properties, the lien of the
First Mortgage Indenture thereon, the validity and sufficiency of franchises and
permits, and the validity and sufficiency of the orders described in subdivision
(xi) of subsection (c) of this Section 5 and subdivision (vi) of subsection (d)
of this Section 5), provided that such opinion shall state that said counsel
believes that the Underwriters and they are justified in relying on the opinions
of Rainey, Ross, Rice & Binns and of Lawrence Chisenhall, Esq.
(f) The Representatives shall have received from Jones, Day, Reavis &
Pogue, counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to such matters related to the issuance and sale of the
Purchased Senior Notes as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(g) At the Closing Date there shall not have been, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, any material adverse change in the condition, financial or
otherwise, of the Company or in the earnings, affairs or business prospects of
the Company, whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the Chairman of the Board
and President or a Vice President of the Company, dated the Closing Date, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties contained in this Agreement are true and correct
with the same force and effect as though expressly made at and as of the Closing
Date, (iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or
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satisfied at or prior to the Closing Date and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been initiated or, to their knowledge, threatened by the
Commission.
(h) At the date of this Agreement and at the Closing Date the
Representatives shall receive from Arthur Andersen LLP a letter (in form and
substance satisfactory to them) dated such dates to the effect that they are
independent public accountants within the meaning of the Act and the applicable
published rules and regulations thereunder and that the answer to Item 10 of
Form S-3 is correct insofar as it relates to them, and stating in effect that
(i) in their opinion, the financial statements and schedules audited by them and
contained in the Incorporated Documents comply as to form in all material
respects with the applicable accounting requirements of the Act, the Exchange
Act and the published rules and regulations thereunder; (ii) they have performed
limited procedures, not constituting an audit, including a reading of the latest
available unaudited interim financial statements of the Company and its
Subsidiaries, a reading of all recent minutes of meetings of the Board of
Directors, committees of the Board of Directors and shareowners of the Company
and its Subsidiaries, inquiries of officials of the Company and its Subsidiaries
responsible for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, and on the basis of such limited
review and procedures, nothing came to their attention which caused them to
believe that (a) any unaudited financial statements of the Company included or
incorporated by reference in the Registration Statement or Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Act, the Exchange Act and the rules and regulations
applicable thereto or are not stated on a basis substantially consistent with
that of the audited financial statements of the Company incorporated by
reference in the Registration Statement, or (b) as of a specified date not more
than five business days prior to the date of delivery of each such letter, there
was any decrease in the capital stock or any increase in the consolidated long-
term debt of the Company and its subsidiaries, or any decrease in consolidated
net assets, as compared with amounts shown in the most recent consolidated
balance sheet included or incorporated by reference in the Registration
Statement or for the period from the first day of the month next following the
date of said balance sheet to a specified date not more than five business days
prior to the date of delivery of each such letter there were any decreases, as
compared with the corresponding period in the preceding year, in operating
revenues, operating income and net income, except in all instances for changes
which the Prospectus discloses have occurred or may occur or which are described
in such letter; (iii) they have carried out specified procedures performed for
the purpose of comparing certain specified financial information and percentages
(which is limited to financial information derived from general accounting
records of the Company) included or incorporated by reference in the
Registration Statement with indicated amounts in the financial
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statements or accounting records of the Company and (excluding any questions of
legal interpretation) have found such information and percentages to be in
agreement with the relevant accounting and financial information of the Company
referred to in such letter in the description of the procedures performed by
them and (iv) they have read any unaudited financial statement information and
financial ratios set forth in the Prospectus Supplement and have performed
specified procedures with respect thereto set forth in such letter, and nothing
came to their attention which caused them to believe that such financial
information does not agree with the latest available unaudited interim financial
statements of the Company and its Subsidiaries or was not determined on a basis
substantially consistent with that of the corresponding amounts in the audited
financial statements incorporated by reference in the Registration Statement.
If additional unaudited financial information is included in the Prospectus,
appropriate statements with respect thereto shall also be set forth in such
letter.
(i) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall not have
been any change or decrease specified in the letter referred to in paragraph (h)
of this Section 5 which makes it impractical or inadvisable in the judgment of
the Representatives to proceed with the public offering or delivery of the
Purchased Senior Notes as contemplated by the Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as the
Representatives may reasonably request.
In giving the opinions contemplated by paragraphs (c), (d), (e) and
(f) of this Section 5, counsel may rely upon certificates of state officials as
to the Company's good standing and upon certificates of officers of the Company
as to matters of fact relevant to such opinions. In giving such opinions,
counsel may assume (i) that the Purchased Senior Notes and the Bonds have been
executed on behalf of the Company by the manual or facsimile signatures of the
President or a Vice President and the Secretary or an Assistant Secretary of the
Company and have been manually authenticated by an authorized official of the
Trustee, (ii) that the signatures on all documents examined by them are genuine,
and (iii) the adequacy of the written information supplied by the
Representatives and the other Underwriters expressly for use in the Registration
Statement or the Prospectus.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
or certificates mentioned above or elsewhere in this Agreement shall not be in
all material respects reasonably satisfactory in form and substance to the
Representatives and their counsel, this Agreement and all
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obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives.
6. CONDITIONS OF COMPANY'S OBLIGATION. The obligation of the Company to
deliver the Purchased Senior Notes and the Bonds upon payment therefor shall be
subject to the following conditions:
On the Closing Date the orders of the Oklahoma Commission and the
Arkansas Commission referred to in paragraph (i) of Section 2 hereof shall be in
full force and effect substantially in the form in which originally entered; the
Indenture and the First Mortgage Indenture, shall be qualified under the Trust
Indenture Act as and to the extent required by such Act; and no stop order
suspending the effectiveness of the Registration Statement shall be in effect
and no proceedings for that purpose shall then be pending before, or threatened
by, the Commission.
In case any of the conditions specified above in this Section 6 shall
not have been fulfilled, this Agreement may be terminated by the Company by
delivering written notice of termination to the Representatives. Any such
termination shall be without liability of any party to any other party except to
the extent provided in paragraph (g) of Section 4 and Section 7 hereof.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the Purchased
Senior Notes provided for herein is not consummated because any condition to the
obligations of the Underwriters or the Company set forth in Section 5 or
Section 6 hereof, respectively, is not satisfied or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel and any amounts deposited by the Representatives with
the Company for payment of the Oklahoma Real Estate Mortgage Tax) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Purchased Senior Notes.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several (including any investigation,
legal or other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim asserted), to
which they or any of them may become subject under the Act, the Exchange Act or
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment
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thereof, or in any preliminary prospectus or the Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state in any such document a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided that (i) the Company
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation thereof and (ii) such
indemnity with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or liability purchased
any of the Purchased Senior Notes which are the subject thereof if such person
did not receive a copy of the Prospectus (or, if the Prospectus shall have been
amended or supplemented, the Prospectus as then amended or supplemented),
excluding the Incorporated Documents, at or prior to the confirmation of the
sale of such Purchased Senior Notes to such person in any case where such
delivery is required by the Act and the untrue statement or omission of a
material fact contained in such preliminary prospectus was corrected in the
Prospectus (or the Prospectus as then amended or supplemented). This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying
20
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party will be entitled to participate therein and, to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expense
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of subparagraph
(a), representing the indemnified parties under subparagraph (a) who are parties
to such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). Any indemnifying party shall not be
liable for any settlement of any action or claim effected without its written
consent, which consent may not be unreasonably withheld, but if settled with
such consent, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
arising out of such proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 8 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company on grounds of policy or otherwise, the
Company and the Underwriters shall contribute to the aggregate losses, claims,
21
<PAGE>
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the Company and one
or more of the Underwriters may be subject (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Underwriters from the offering of the Purchased Senior Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above, but also the relative fault of the Company or
the Underwriters in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Underwriters shall be deemed to be in the same respective proportions as the net
proceeds from the offering (before deducting expenses) received by the Company
and the underwriting discount received by the Underwriters, in each case as set
forth on the cover of the Prospectus Supplement, bear to the aggregate public
offering price of the Purchased Senior Notes. The relative fault of the Company
and the Underwriters shall be determined by a reference to, among other things,
whether the untrue or alleged untrue statement of a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this paragraph
(d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in the
foregoing provisions of this paragraph (d). Notwithstanding the provisions of
this paragraph (d), (x) in no case shall any Underwriter (except as may be
provided in any Agreement Among Underwriters) be responsible for any amount in
excess of the aggregate underwriting discounts applicable to the Purchased
Senior Notes purchased by such Underwriter hereunder and (y) 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. The Underwriters' obligations to contribute
pursuant to this paragraph (d) are several (and not joint) in proportion to the
respective principal amount of Purchased Senior Notes to be purchased by each of
such Underwriters. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of the Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to clauses (x) and (y) of this paragraph (d). Any party entitled
to contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made
22
<PAGE>
against another party or parties under this paragraph (d), notify such party
from whom contributions may be sought, but the omission to so notify such party
or parties shall not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have hereunder or otherwise than
under this paragraph (d).
9. DEFAULT BY AN UNDERWRITER. If any one or more of the Underwriters
shall fail to purchase and pay for the Purchased Senior Notes agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the Representatives may find one or more
substitute underwriters to purchase such Purchased Senior Notes or make such
other arrangements as the Representatives deem advisable or one or more of the
nondefaulting Underwriters may agree to purchase such Purchased Senior Notes in
such proportions as may be agreed upon by the Representatives, in each case upon
the terms set forth in this Agreement. If no such arrangements have been made
within 36 hours after the Closing Date, each of the nondefaulting Underwriters
shall be obligated severally to take up and pay for (in the respective
proportions which the amounts of Purchased Senior Notes set forth opposite their
names in Schedule II hereto bear to the aggregate amount of Purchased Senior
Notes set opposite the names of all the nondefaulting remaining Underwriters)
the Purchased Senior Notes which the defaulting Underwriter or Underwriters
agreed but failed to purchase, provided that in the event that the aggregate
principal amount of Purchased Senior Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of the Purchased Senior Notes set forth in Schedule II hereto,
the nondefaulting Underwriters shall have the right to purchase all, but shall
not be under any obligation to purchase any, of the Purchased Senior Notes and
if such nondefaulting Underwriters do not purchase all the Purchased Senior
Notes, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company, except as provided in Section 11 hereof. In the
event of a default by any Underwriter as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding seven days, as
the Representatives shall determine, in order that the required changes in the
Registration Statement and the Prospectus Supplement or in any other documents
or arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Company and
any nondefaulting Underwriter for damages occasioned by its default hereunder.
10. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Purchased Senior Notes, if prior to such time
(i) there has been, since the date of this Agreement or since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, any loss sustained by the Company or
23
<PAGE>
any Subsidiary by strike, fire, flood, accident or other calamity of such
character as to interfere materially with the conduct of the business and
operations of the Company and its Subsidiaries taken as a whole regardless of
whether or not such loss shall have been insured, or any material adverse change
in the earnings, affairs, condition (financial or otherwise) or business
prospects of the Company and its Subsidiaries taken as a whole, whether or not
arising in the ordinary course of business, (ii) trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or
additional material governmental restrictions, not in force on the date of this
Agreement, have been imposed upon trading in securities generally, or minimum or
maximum prices for trading shall have been fixed, or maximum ranges for prices
for securities shall have been required on the New York Stock Exchange, by the
New York Stock Exchange or by order of the Commission or any other governmental
authority having jurisdiction, (iii) a banking moratorium shall have been
declared either by federal or New York State authorities, or (iv) there shall
have occurred any outbreak or material escalation of hostilities or other
calamity or crisis, the effect of which on the financial markets of the United
States is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to market the Purchased Senior Notes.
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Purchased
Senior Notes. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
12. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered in person or transmitted by any form of written telecommunication to
them at the address specified in Schedule I hereto, or, if sent to the Company,
will be mailed, delivered in person or transmitted by any form of written
telecommunication to it, at 101 North Robinson, Oklahoma City, Oklahoma 73101,
attention of James R. Hatfield, Treasurer.
13. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns and
the officers, directors, employees, agents and controlling persons referred to
in Section 8 hereof, and no other person will have any right or obligation
hereunder. The term "successors and assigns" as used in this Agreement shall
not include any purchaser, as such purchaser, of any of the Purchased Senior
Notes from any of the Underwriters.
24
<PAGE>
14. REPRESENTATION OF THE UNDERWRITERS. The Representatives represent and
warrant to the Company that they are authorized to act as the representatives of
the Underwriters in the subject matter of this Agreement, and the
Representatives' execution and delivery of this Agreement and any action under
this Agreement taken by such Representatives will be binding upon all
Underwriters.
15. INTERPRETATION WHEN NO REPRESENTATIVES. In the event no Underwriters
are named in Schedule II hereto, the term "Underwriters" shall be deemed for all
purposes of this Agreement to be the Underwriter or Underwriters named as such
in Schedule I hereto, the principal amount of the Purchased Senior Notes to be
purchased by any such Underwriter shall be that set opposite its name in
Schedule I hereto and all references to the "Representatives" shall be deemed to
be the Underwriter or Underwriters named in such Schedule I.
16. COUNTERPARTS. This Agreement may be executed in counterparts all of
which, taken together, shall constitute a single agreement among the parties to
such counterparts.
25
<PAGE>
17. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of Oklahoma.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
OKLAHOMA GAS AND ELECTRIC COMPANY
By
-----------------------------------
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
BEAR, STEARNS & CO. INC.
MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED
LEHMAN BROTHERS INC.
By: BEAR, STEARNS & CO. INC.
By
---------------------------
For themselves and the other
several Underwriters named in
Schedule II hereto.
26
<PAGE>
SCHEDULE I
Registration Statement Nos.: 33-32870 and 33-61821
Representatives: Bear, Stearns & Co. Inc., Merrill Lynch & Co. and Lehman
Brothers Inc.
Amount, Purchase Price and Description of Purchased Senior Notes:
Aggregate Principal Amount: $110,000,000
Purchase Price: 99.090% of the aggregate principal amount
Interest Rate: 6.25% per annum
Initial Public Offering Price: 99.786% of the aggregate
principal amount
Dealer Discount: 0.5% of the aggregate principal amount
Reallowance to Dealers: 0.25% of the aggregate principal
amount
Dated date: October 27, 1995
Maturity: October 15, 2000
Other Provisions:
Time, Date and Place of Delivery and Payment:
Time and Date - 11:00 a.m. New York City Time, October 27, 1995
Place: Jones, Day, Reavis & Pogue
599 Lexington Avenue
New York, New York 10022
Oklahoma Real Estate Mortgage Tax: 0.96%
Office for Examination of
Purchased Senior Notes: Bear, Stearns & Co. Inc., 245 Park Avenue, New
York, New York 10167
Address for Notices to Representatives pursuant to Section 12 of Underwriting
Agreement:
Bear, Stearns & Co. Inc. Merrill Lynch & Co. Lehman Brothers Inc.
245 Park Avenue World Financial Ctr. 3 World Financial Ctr.
New York, NY 10167 250 Vesey Street 200 Vesey Street
Attn: Capital Markets New York, NY 10281 New York, NY 10285
Attn: Capital Markets Attn: Capital Markets
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Principal Amount
Name of Underwriter of Purchased Senior Notes
- ------------------- -------------------------
<S> <C>
Bear, Stearns & Co. Inc. $ 36,700,000
Merrill Lynch, Pierce, Fenner & Smith 36,650,000
Incorporated
Lehman Brothers Inc. 36,650,000
------------
Total $110,000,000
------------
------------
</TABLE>
<PAGE>
EXHIBIT 4.01
---------------------------------------------
---------------------------------------------
SUPPLEMENTAL INDENTURE NO. 1
FROM
OKLAHOMA GAS AND ELECTRIC
COMPANY
TO
BOATMEN'S FIRST NATIONAL BANK
OF OKLAHOMA
TRUSTEE
---------
DATED AS OF OCTOBER 16, 1995
SUPPLEMENTAL TO INDENTURE
DATED AS OF OCTOBER 1, 1995
---------------------------------------------
---------------------------------------------
<PAGE>
TABLE OF CONTENTS
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.01 Integral Part of Indenture . . . . . . . . . . . . . 1
SECTION 1.02 (a) Definitions. . . . . . . . . . . . . . . . . . . 1
(b) References to Articles and Sections. . . . . . . 2
(c) Terms Referring to this Supplemental Indenture . 2
ARTICLE TWO
7.30% SENIOR NOTES, SERIES DUE OCTOBER 15, 2025
SECTION 2.01 Designation and Principal Amount . . . . . . . . . . 2
SECTION 2.02 Stated Maturity Date . . . . . . . . . . . . . . . . 2
SECTION 2.03 Interest Payment Dates . . . . . . . . . . . . . . . 2
SECTION 2.04 Office for Payment . . . . . . . . . . . . . . . . . 2
SECTION 2.05 Redemption Provisions. . . . . . . . . . . . . . . . 2
SECTION 2.06 Authorized Denominations . . . . . . . . . . . . . . 3
SECTION 2.07 Related Series of First Mortgage Bonds . . . . . . . 3
SECTION 2.08 Form of 7.30% Senior Notes, Series Due
October 15, 2025 . . . . . . . . . . . . . . . . . 3
ARTICLE THREE
6.250% SENIOR NOTES, SERIES DUE OCTOBER 15, 2000
SECTION 3.01 Designation and Principal Amount . . . . . . . . . . 3
SECTION 3.02 Stated Maturity Date . . . . . . . . . . . . . . . . 3
SECTION 3.03 Interest Payment Dates . . . . . . . . . . . . . . . 3
SECTION 3.04 Office for Payment . . . . . . . . . . . . . . . . . 3
SECTION 3.05 Redemption Provisions. . . . . . . . . . . . . . . . 3
SECTION 3.06 Authorized Denominations . . . . . . . . . . . . . . 4
SECTION 3.07 Related Series of First Mortgage Bonds . . . . . . . 4
SECTION 3.08 Form of 6.250% Senior Notes, Series Due
October 15, 2000 . . . . . . . . . . . . . . . . . 4
(i)
<PAGE>
ARTICLE FOUR
ADDITIONAL COVENANTS
SECTION 4.01 Limitations on Liens . . . . . . . . . . . . . . . . 4
SECTION 4.02 Limitations on Sale and Lease-Back Transactions. . . 6
SECTION 4.03 Definitions. . . . . . . . . . . . . . . . . . . . . 6
ARTICLE FIVE
MISCELLANEOUS
SECTION 5.01 Recitals of fact, except as stated, are statements
of the Company . . . . . . . . . . . . . . . . . . . 8
SECTION 5.02 Supplemental Indenture to be construed as a part
of the Indenture . . . . . . . . . . . . . . . . . . 8
SECTION 5.03 (a) Trust Indenture Act to control . . . . . . . . . 8
(b) Severability of provisions contained in
Supplemental Indenture and Notes . . . . . . . . 8
SECTION 5.04 References to either party in Supplemental Indenture
include successors or assigns. . . . . . . . . . . . 8
SECTION 5.05 (a) Provision for execution in counterparts. . . . . 8
(b) Table of Contents and descriptive headings
of Articles not to affect meaning. . . . . . . . 8
(ii)
<PAGE>
SUPPLEMENTAL INDENTURE NO. 1, made as of the 16th day of October, by and
between OKLAHOMA GAS AND ELECTRIC COMPANY, a corporation duly organized and
existing under the laws of the State of Oklahoma (the "Company"), and Boatmen's
First National Bank of Oklahoma, a national banking association duly organized
and existing under the laws of the United States of America, as trustee (the
"Trustee"):
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered its Indenture
(hereinafter referred to as the "Indenture"), made as of October 1, 1995; and
WHEREAS, Section 2.05 of the Indenture provides that Notes shall be issued
in series and that a Company Order shall specify the terms of each series; and
WHEREAS, the Company has this day delivered a Company Order setting forth
the terms of two series of Notes designated "7.30% Senior Notes, Series due
October 15, 2025" (hereinafter sometimes referred to as the "Senior Notes due
2025") and "6.250% Senior Notes, Series due October 15, 2000" (hereinafter
sometimes referred to as the "Senior Notes due 2000"); and
WHEREAS, Section 13.01 of the Indenture provides that the Company and the
Trustee may enter into indentures supplemental thereto for the purposes, among
others, of establishing the form of Notes or establishing or reflecting any
terms of any Note and adding to the covenants of the Company; and
WHEREAS, the execution and delivery of this Supplemental Indenture No. 1
(herein, "this Supplemental Indenture") have been duly authorized by a
resolution adopted by the Board of Directors of the Company;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to set forth the terms and conditions upon which the Senior
Notes due 2025 and the Senior Notes due 2000 are, and are to be, authenticated,
issued and delivered, and in consideration of the premises of the purchase and
acceptance of the Senior Notes due 2025 and Senior Notes due 2000 by the Holders
thereof and the sum of one dollar duly paid to it by the Trustee at the
execution of this Supplemental Indenture, the receipt whereof is hereby
acknowledged, the Company covenants and agrees with the Trustee for the equal
and proportionate benefit of the respective Holders from time to time of the
Senior Notes due 2025 and Senior Notes due 2000, as follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.01 This Supplemental Indenture constitutes an integral part of
the Indenture.
SECTION 1.02 For all purposes of this Supplemental Indenture:
1
<PAGE>
(a) Capitalized terms used herein without definition shall have the
meanings specified in the Indenture;
(b) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture No. 1; and
(c) The terms "hereof," "herein," "hereby," "hereto," "hereunder" and
"herewith" refer to this Supplemental Indenture.
ARTICLE TWO
7.30% SENIOR NOTES, SERIES DUE OCTOBER 15, 2025
SECTION 2.01 There shall be a series of Notes designated the "7.30%
Senior Notes, Series due October 15, 2025" (the "Senior Notes due 2025"). The
Senior Notes due 2025 shall be limited to $110,000,000 aggregate principal
amount.
SECTION 2.02 Except as otherwise provided in Section 2.05 hereof, the
principal amount of the Senior Notes due 2025 shall be payable on the stated
maturity date of October 15, 2025.
SECTION 2.03 The Senior Notes due 2025 shall be dated their date of
authentication as provided in the Indenture and shall bear interest at the rate
of 7.30% per annum, payable semi-annually on April 15 and October 15 of each
year, commencing April 15, 1996. The Regular Record Dates with respect to such
April 15 and October 15 interest payment dates shall be March 31 and September
30, respectively. Principal and interest shall be payable to the persons and in
the manner provided in Sections 2.04 and 2.12 of the Indenture.
SECTION 2.04 The Senior Notes due 2025 shall be payable at the corporate
trust office of the Trustee and at the offices of such paying agents as the
Company may appoint by Company Order in the future.
SECTION 2.05 The Senior Notes due 2025 shall not be redeemable prior to
October 15, 2005. On or after October 15, 2005, the Company, at its option, may
redeem all, or, from time to time, any part of the Senior Notes due 2025, upon
notice as provided in the Indenture at the following redemption prices
(expressed as a percentage of the principal amount) during the 12-month periods
beginning:
Year Redemption Price
---- ----------------
October 15, 2005 103.261
October 15, 2006 102.935
October 15, 2007 102.609
October 15, 2008 102.283
2
<PAGE>
October 15, 2009 101.957
October 15, 2010 101.631
October 15, 2011 101.304
October 15, 2012 100.978
October 15, 2013 100.652
October 15, 2014 100.326
and at 100% of principal amount at all times on and after October 15, 2015,
plus, in each case, accrued interest to the date of redemption.
The Senior Notes due 2025 shall not be subject to any sinking fund.
SECTION 2.06 The Senior Notes due 2025 shall be issued in fully
registered form without coupons in denominations of $1,000 and integral
multiples thereof.
SECTION 2.07 The related series of Senior Note First Mortgage Bonds for
the Senior Notes due 2025 is the Company's First Mortgage Bonds, Senior Note
Series A.
SECTION 2.08 The Senior Notes due 2025 shall initially be in the form
attached as Exhibit A to the Indenture.
ARTICLE THREE
6.250% SENIOR NOTES, SERIES DUE OCTOBER 15, 2000
SECTION 3.01 There shall be a series of Notes designated the "6.250%
Senior Notes, Series due October 15, 2000" (the "Senior Notes due 2000"). The
Senior Notes due 2000 shall be limited to $110,000,000 aggregate principal
amount.
SECTION 3.02 The principal amount of the Senior Notes due 2000 shall be
payable on the stated maturity date of October 15, 2000.
SECTION 3.03 The Senior Notes due 2000 shall be dated their date of
authentication as provided in the Indenture and shall bear interest at the rate
of 6.250% per annum, payable semi-annually on April 15 and October 15 of each
year, commencing April 15, 1996. The Regular Record Dates with respect to such
April 15 and October 15 interest payment dates shall be March 31 and September
30, respectively. Principal and interest shall be payable to the persons and in
the manner provided in Sections 2.04 and 2.12 of the Indenture.
SECTION 3.04 The Senior Notes due 2000 shall be payable at the corporate
trust office of the Trustee and at the offices of such paying agents as the
Company may appoint by Company Order in the future.
SECTION 3.05 The Senior Notes due 2000 shall not be redeemable at the
option of the Company prior to stated maturity for any reason and are not
subject to any sinking fund.
3
<PAGE>
SECTION 3.06 The Senior Notes due 2000 shall be issued in fully
registered form without coupons in denominations of $1,000 and integral
multiples thereof.
SECTION 3.07 The related series of Senior Note First Mortgage Bonds for
the Senior Notes due 2000 shall be the First Mortgage Bonds, Senior Note Series
B.
SECTION 3.08 The Senior Notes due 2000 shall initially be in the form
attached as Exhibit A to the Indenture.
ARTICLE FOUR
ADDITIONAL COVENANTS
SECTION 4.01
(a) From and after the Release Date and so long as any Senior Notes due
2025 or Senior Notes due 2000 are outstanding, the Company will not issue,
assume or guarantee any Debt secured by any mortgage, security interest, pledge
or lien (herein referred to as a "mortgage") of or upon any Operating Property
of the Company, whether owned at the date of the Indenture or thereafter
acquired, and will not permit to exist any Debt secured by a mortgage on any
Operating Property created on or prior to the Release Date, without in any such
case effectively securing, on the later to occur of the issuance, assumption or
guaranty of any such Debt or the Release Date, the outstanding Senior Notes due
2025 and Senior Notes due 2000 (together with, if the Company shall so
determine, any other Notes or indebtedness or obligation of or guaranteed by the
Company ranking senior to, or equally with, the Notes and then existing or
thereafter created) equally and ratably with such Debt; provided, however, that
the foregoing restriction shall not apply to Debt secured by any of the
following:
(1) mortgages on any property existing at the time of acquisition thereof;
(2) mortgages on property of a corporation existing at the time such
corporation is merged into or consolidated with the Company, or at the time of a
sale, lease or other disposition of the properties of such corporation or a
division thereof as an entirety or substantially as an entirety to the Company,
provided that such mortgage as a result of such merger, consolidation, sale,
lease or other disposition is not extended to property owned by the Company
immediately prior thereto;
(3) mortgages on property to secure all or part of the cost of acquiring,
substantially repairing or altering, constructing, developing or substantially
improving such property, or to secure indebtedness incurred to provide funds for
any such purpose or for reimbursement of funds previously expended for any such
purpose, provided such mortgages are created or assumed contemporaneously with,
or within 18 months after, such acquisition or completion of substantial repair
or alteration, construction, development or substantial improvement or within
six months thereafter pursuant to a commitment for financing arranged with a
lender or investor within such 18 month period;
4
<PAGE>
(4) mortgages in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political subdivision
of the United States of America or any state thereof, or for the benefit of
holders of securities issued by any such entity, to secure any Debt incurred for
the purpose of financing all or any part of the purchase price or the cost of
substantially repairing or altering, constructing, developing or substantially
improving the property subject to such mortgages; or
(5) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any mortgage referred to in
the foregoing clauses (1) to (4), inclusive; provided, however, that the
principal amount of indebtedness secured thereby and not otherwise authorized by
said clauses (1) to (4), inclusive, shall not exceed the principal amount of
indebtedness, plus any premium or fee payable in connection with any such
extension, renewal or replacement, so secured at the time of such extension,
renewal or replacement.
(b) Notwithstanding the provisions of Section 4.01(a), from and after the
Release Date and so long as any Senior Notes due 2025 or Senior Notes due 2000
are outstanding, the Company may issue, assume or guarantee Debt, or permit to
exist Debt, secured by mortgages which would otherwise be subject to the
restrictions of Section 4.01(a) up to an aggregate principal amount that,
together with the principal amount of all other Debt of the Company secured by
mortgages (other than mortgages permitted by Section 4.01(a) that would
otherwise be subject to the foregoing restrictions) and the Value of all Sale
and Lease-Back Transactions in existence at such time (other than any Sale and
Lease-Back Transaction that, if such Sale and Lease-Back Transaction had been a
mortgage, would have been permitted by Section 4.01(a), other than Sale and
Lease-Back Transactions permitted by Section 4.02 because the commitment by or
on behalf of the purchaser was obtained no later than 18 months after the later
of events described in clause (i) or (ii) of Section 4.02, and other than Sale
and Lease-Back Transactions as to which application of amounts have been made in
accordance with clause (z) of Section 4.02), does not at the time exceed the
greater of 10% of Net Tangible Assets or 10% of Capitalization.
(c) If at any time the Company shall issue, assume or guarantee any Debt
secured by any mortgage and if Section 4.01(a) requires that the outstanding
Senior Notes due 2025 or outstanding Senior Notes due 2000 be secured equally
and ratably with such Debt, the Company will promptly execute, at its expense,
any instruments necessary to so equally and ratably secure such series of Notes
and deliver the same to the Trustee along with:
(1) An Officers' Certificate stating that the covenant of
the Company contained in Section 4.01(a) has been
complied with; and
(2) An Opinion of Counsel to the effect that such covenant
has been complied with, and that any instruments
executed by the Company in the performance of such
covenant comply with the requirements of such covenant.
In the event that the Company shall hereafter secure outstanding Senior
Notes due 2025 or outstanding Senior Notes due 2000 equally and ratably with any
other obligation or
5
<PAGE>
indebtedness (including other Notes) pursuant to the provisions of this Section
4.01, the Trustee is hereby authorized to enter into an indenture or agreement
supplemental hereto and to take such action, if any, as it may deem advisable to
enable it to enforce effectively the rights of the holders of such series of
Notes so secured, equally and ratably with such other obligation and
indebtedness.
SECTION 4.02. From and after the Release Date and so long as any Senior
Notes due 2025 or Senior Notes due 2000 are outstanding, the Company will not
enter into any Sale and Lease-Back Transaction with respect to any Operating
Property and will not permit to remain in effect any Sale and Lease-Back
Transaction entered into on or prior to the Release Date with respect to any
Operating Property if, in any case, the commitment by or on behalf of the
purchaser is obtained more than 18 months after the later of (i) the completion
of the acquisition, substantial repair or alteration, construction, development
or substantial improvement of such Operating Property or (ii) the placing in
operation of such Operating Property or of such Operating Property as so
substantially repaired or altered, constructed, developed or substantially
improved, unless (x) the Company would be entitled pursuant to Section 4.01(a)
to issue, assume or guarantee Debt secured by a mortgage on such Operating
Property without equally and ratably securing the Notes of this Series or (y)
the Company would be entitled pursuant to Section 4.01(b), after giving effect
to such Sale and Lease-Back Transaction, to incur $1.00 of additional Debt
secured by mortgages (other than mortgages permitted by Section 4.01(a)) or (z)
the Company shall apply or cause to be applied, in the case of a sale or
transfer for cash, an amount equal to the net proceeds thereof (but not in
excess of the net book value of such Operating Property at the date of such sale
or transfer) and, in the case of a sale or transfer otherwise than for cash, an
amount equal to the fair value (as determined by the Board of Directors) of the
Operating Property so leased, to the retirement, within 180 days after the later
to occur of the effective date of such Sale and Lease-Back Transaction or the
Release Date, of Notes or other Debt of the Company ranking senior to, or
equally with, the Notes; provided, however, that any such retirement of Notes
shall be in accordance with the terms and provisions of the Indenture and the
Notes and provided, further, that the amount to be applied to such retirement of
Notes or other Debt shall be reduced by an amount equal to the sum of (a) an
amount equal to the redemption price with respect to Notes delivered within such
180-day period to the Trustee for retirement and cancellation and (b) the
principal amount, plus any premium or fee paid in connection with any redemption
in accordance with the terms of other Debt voluntarily retired by the Company
within such 180-day period, excluding in each case retirements pursuant to
mandatory sinking fund or prepayment provisions and payments at maturity.
SECTION 4.03. Definitions
For purposes of Section 4.01 and Section 4.02, the following terms shall
have the following meanings:
CAPITALIZATION: The term "Capitalization" shall mean the total of all the
following items appearing on, or included in, the balance sheet of the Company:
(1) liabilities for indebtedness maturing more than 12 months from
the date of determination; and
6
<PAGE>
(2) common stock, preferred stock, capital surplus, premium on
capital stock, capital in excess of par value and retained earnings
(however the foregoing may be designated), less to the extent not otherwise
deducted, the cost of shares of capital stock of the Company held in its
treasury.
Capitalization shall be determined in accordance with generally accepted
accounting principles and practices applicable to the type of business in which
the Company is engaged and that are approved by independent accountants
regularly retained by the Company, and may be determined as of a date not more
than 60 days prior to the happening of an event for which such determination is
being made.
DEBT: The term "Debt" shall mean any outstanding debt for money borrowed.
NET TANGIBLE ASSETS: The term "Net Tangible Assets" shall mean the amount
shown as total assets on the balance sheet of the Company, less the following:
(1) intangible assets including, but without limitation, such items
as goodwill, trademarks, trade names, patents and unamortized debt discount
and expense carried as an asset on said balance sheet; and
(2) appropriate adjustments, if any, on account of minority
interests.
Net Tangible Assets shall be determined in accordance with generally
accepted accounting principles and practices applicable to the type of business
in which the Company is engaged and that are approved by the independent
accountants regularly retained by the Company, and may be determined as of a
date not more than 60 days prior to the happening of the event for which such
determination is being made.
OPERATING PROPERTY: The term "Operating Property" shall mean (i) any
interest in real property owned by the Company and (ii) any asset owned by the
Company that is depreciable in accordance with generally accepted accounting
principles.
SALE AND LEASE-BACK TRANSACTION: The term "Sale and Lease-Back
Transaction" shall mean any arrangement with any person providing for the
leasing to the Company of any Operating Property (except for temporary leases
for a term, including any renewal thereof, of not more than 48 months), which
Operating Property has been or is to be sold or transferred by the Company to
such person.
VALUE: The term "Value" shall mean, with respect to a Sale and Lease-Back
Transaction, as of any particular time, the amount equal to the greater of (1)
the net proceeds to the Company from the sale or transfer of the property leased
pursuant to such Sale and Lease-Back Transaction or (2) the net book value of
such property, as determined in accordance with generally accepted accounting
principles by the Company at the time of entering into such Sale and Lease-Back
Transaction, in either case multiplied by a fraction, the numerator of which
shall be equal to the number of full years of the term of the lease that is part
of such Sale and Lease-Back Transaction
7
<PAGE>
remaining at the time of determination and the denominator of which shall be
equal to the number of full years of such term, without regard, in any case, to
any renewal or extension options contained in such lease.
ARTICLE FIVE
MISCELLANEOUS
SECTION 5.01 The recitals of fact herein and in the Senior Notes due 2025
and in the Senior Notes due 2000 (except the Trustee's Certificate) shall be
taken as statements of the Company and shall not be construed as made by the
Trustee.
SECTION 5.02 This Supplemental Indenture shall be construed in connection
with and as a part of the Indenture.
SECTION 5.03
(a) If any provision of this Supplemental Indenture limits, qualifies, or
conflicts with another provision of the Indenture required to be included in
indentures qualified under the Trust Indenture Act of 1939 (as enacted prior to
the date of this Supplemental Indenture) by any of the provisions of
Sections 310 to 317, inclusive, of the said Act, such required provisions shall
control.
(b) In case any one or more of the provisions contained in this
Supplemental Indenture or in the notes issued hereunder should be invalid,
illegal, or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected, impaired, prejudiced or disturbed thereby.
SECTION 5.04 Whenever in this Supplemental Indenture either of the
parties hereto is named or referred to, this shall be deemed to include the
successors or assigns of such party, and all the covenants and agreements in
this Supplemental Indenture contained by or on behalf of the Company or by or on
behalf of the Trustee shall bind and inure to the benefit of the respective
successors and assigns of such parties, whether so expressed or not.
SECTION 5.05
(a) This Supplemental Indenture may be simultaneously executed in several
counterparts, and all said counterparts executed and delivered, each as an
original, shall constitute but one and the same instrument.
(b) The Table of Contents and the descriptive headings of the several
Articles of this Supplemental Indenture were formulated, used and inserted in
this Supplemental Indenture for convenience only and shall not be deemed to
affect the meaning or construction of any of the provisions hereof.
8
<PAGE>
IN WITNESS WHEREOF, OKLAHOMA GAS AND ELECTRIC COMPANY has caused this
Supplemental Indenture to be signed by its President or a Vice President, and
attested by its Secretary or an Assistant Secretary and Boatmen's First National
Bank of Oklahoma, has caused this Supplemental Indenture to be signed by its
President or a Vice President, and attested by a Vice President, as of October
16, 1995.
OKLAHOMA GAS AND ELECTRIC COMPANY
By: , Vice President
------------------------
ATTEST:
, VICE PRESIDENT.
- -------------------
BOATMEN'S FIRST NATIONAL BANK OF
OKLAHOMA, as Trustee
By: , Vice President
-------------------------
ATTEST:
, ASSISTANT SECRETARY.
- ----------------------
9
<PAGE>
----------------------------------------------------------------------
----------------------------------------------------------------------
SUPPLEMENTAL TRUST INDENTURE
FROM
GAS
----
OKLAHOMA ELECTRIC
AND
COMPANY
TO
BOATMEN'S FIRST NATIONAL BANK
OF OKLAHOMA
TRUSTEE
---------
DATED OCTOBER 1, 1995
---------
SUPPLEMENTAL TO TRUST INDENTURE
DATED FEBRUARY 1, 1945
----------------------------------------------------------------------
----------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
--------------
PAGE
Parties................................................................... 1
Recitals.................................................................. 1
Form of Bond.............................................................. 3
Form of Trustee's Certificate............................................. 5
Further Recitals.......................................................... 5
ARTICLE I.
SPECIFIC SUBJECTION OF PROPERTY TO THE LIEN
OF THE ORIGINAL INDENTURE
SECTION 1.01 -- Grant of certain property, including personal
property to comply with the Uniform Commercial Code,
subject to permissible encumbrances and other
exceptions contained in Original Indenture.......... 6
ARTICLE II.
FORM AND EXECUTION OF BONDS OF SENIOR NOTE SERIES A
SECTION 2.01 -- Terms of bonds of Senior Note Series A.............. 7
SECTION 2.02 -- Bonds of Senior Note Series A deemed fully paid upon
payment of Senior Notes............................. 8
SECTION 2.03 -- Redemption provisions may be incorporated by
reference........................................... 8
SECTION 2.04 -- Interchangeability of bonds of Senior Note
Series A............................................ 8
SECTION 2.05 -- Charges for exchange or transfer of bonds........... 8
I
<PAGE>
<TABLE>
<S> <C><C> <C> <C>
ARTICLE III.
FORM AND EXECUTION OF BONDS OF SENIOR NOTE SERIES B
SECTION 3.01 -- Terms of bonds of Senior Note Series B.............. 8
SECTION 3.02 -- Bonds of Senior Note Series B deemed fully paid upon
payment of Senior Notes............................. 9
SECTION 3.03 -- Redemption provisions may be incorporated by
reference........................................... 9
SECTION 3.04 -- Interchangeability of bonds of Senior Note
Series B............................................ 9
SECTION 3.05 -- Charges for exchange or transfer of bonds........... 9
ARTICLE IV.
REDEMPTION OF BONDS OF SENIOR NOTE SERIES A AND OF SENIOR NOTE SERIES B
SECTION 4.01 -- Redemption of Bonds................................. 10
SECTION 4.02 -- Sinking Fund for Bonds.............................. 10
SECTION 4.03 -- Payment on Redemption............................... 10
SECTION 4.04 -- Other Principal Repayments.......................... 10
ARTICLE V.
FINANCING STATEMENT TO COMPLY WITH THE UNIFORM COMMERCIAL CODE
SECTION 5.01 -- Names and addresses of debtor and secured party..... 11
SECTION 5.02 -- Property subject to lien............................ 11
SECTION 5.03 -- Maturity dates and principal amounts of obligations
secured............................................. 11
SECTION 5.04 -- Financing Statement adopted for all First Mortgage
Bonds listed in Section 5.03........................ 11
SECTION 5.05 -- Recording data for Original Indenture and prior
Supplemental Indentures............................. 12
SECTION 5.06 -- Financing Statement covers additional series of
First Mortgage Bonds................................ 12
</TABLE>
II
<PAGE>
<TABLE>
<S> <C><C> <C> <C>
ARTICLE VI.
MISCELLANEOUS
SECTION 6.01 -- Recitals of fact, except as stated, are statements
of the Company...................................... 12
SECTION 6.02 -- Supplemental Trust Indenture to be construed as a
part of the Original Indenture...................... 12
SECTION 6.03 -- (a) Trust Indenture Act to control...................... 12
(b) Severability of provisions contained in Supplemental
Trust Indenture and bonds........................... 13
SECTION 6.04 -- Word "Indenture" as used herein includes in its
meaning the Original Indenture and all indentures
supplemental thereto................................ 13
SECTION 6.05 -- References to either party in Supplemental Trust
Indenture include successors or assigns............. 13
SECTION 6.06 -- (a) Provision for execution in counterparts............. 13
(b) Table of Contents and descriptive headings of
Articles not to affect meaning...................... 13
SCHEDULE A................................................................ A-1
</TABLE>
III
<PAGE>
SUPPLEMENTAL TRUST INDENTURE, made as of the first day of October 1995 by
and between OKLAHOMA GAS AND ELECTRIC COMPANY, a corporation duly organized
under the laws of the Territory of Oklahoma and existing under and by virtue of
the laws of the State of Oklahoma, having its principal office in the City of
Oklahoma City, in said State of Oklahoma (hereinafter sometimes called the
"Company"), the party of the first part, and Boatmen's First National Bank of
Oklahoma, a national banking association duly organized and existing under the
National Banking Laws of the United States of America, having its principal
office in the City of Oklahoma City, in the State of Oklahoma, as Trustee, party
of the second part:
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered its Trust
Indenture (hereinafter referred to as the "Original Indenture"), made as of
February 1, 1945, whereby the Company granted, bargained, sold, warranted,
released, conveyed, assigned, transferred, mortgaged, pledged, set over and
confirmed unto the trustee under said indenture and to its respective successors
in trust (herein the "Trustee"), all property, real, personal and mixed then
owned or thereafter acquired or to be acquired by the Company (except as therein
excepted from the lien thereof) and subject to the rights reserved by the
Company in and by the provisions of the Original Indenture, to be held by said
Trustee and its respective successors in trust in accordance with the provisions
of the Original Indenture for the equal pro rata benefit and security of all and
each of the bonds issued and to be issued thereunder in accordance with the
provisions thereof; and
WHEREAS, The First National Bank and Trust Company of Oklahoma City was
formerly the Trustee under the Original Indenture as supplemented; and
WHEREAS, pursuant to Article XVI of the Original Indenture, Boatmen's First
National Bank of Oklahoma has succeeded The First National Bank and Trust
Company of Oklahoma City as Trustee under the Original Indenture, as
supplemented; and
WHEREAS, Section 2.01 of the Original Indenture provides that bonds may be
issued thereunder in one or more series, each series to have such distinctive
designation as the Board of Directors of the Company may select for such series;
and
WHEREAS, the Company has heretofore issued in accordance with the provisions
of the Original Indenture, bonds of a series designated "First Mortgage Bonds,
Series due February 1, 1975," bearing interest at the rate of 2 3/4% per annum,
which were paid at maturity and are no longer outstanding; and
WHEREAS, the Company has heretofore executed and delivered to the Trustee
the following additional Supplemental Trust Indentures which, in addition to
conveying, assigning, transferring, mortgaging, pledging, setting over and
confirming to the Trustee, and its respective successors in said trust,
additional property acquired by it subsequent to the preparation of the Original
Indenture and
1
<PAGE>
of the next preceding Supplemental Trust Indenture and adding to the covenants,
conditions and agreements of the Original Indenture certain additional
covenants, conditions and agreements to be observed by the Company, created the
following series of First Mortgage Bonds:
<TABLE>
<CAPTION>
DATE OF
SUPPLEMENTAL TRUST INDENTURE DESIGNATION OF SERIES
- -------------------------------------- ------------------------------------------------------
<S> <C>
December 1, 1948...................... Series due December 1, 1978 (redeemed)
June 1, 1949.......................... Series due June 1, 1979 (paid at maturity)
May 1, 1950........................... Series due May 1, 1980 (paid at maturity)
March 1, 1952......................... Series due March 1, 1982 (paid at maturity)
June 1, 1955.......................... Series due June 1, 1985 (paid at maturity)
January 1, 1957....................... Series due January 1, 1987 (paid at maturity)
June 1, 1958.......................... Series due June 1, 1988 (paid at maturity)
March 1, 1963......................... Series due March 1, 1993 (paid at maturity)
March 1, 1965......................... Series due March 1, 1995 (paid at maturity)
January 1, 1967....................... Series due January 1, 1997
January 1, 1968....................... Series due January 1, 1998
January 1, 1969....................... Series due January 1, 1999
January 1, 1970....................... Series due January 1, 2000
January 1, 1972....................... Series due January 1, 2002
January 1, 1974....................... Series due January 1, 2004
January 1, 1975....................... Series due January 1, 2005
January 1, 1976....................... Series due January 1, 2006
January 1, 1977....................... Series due January 1, 2007
November 1, 1977...................... Series due November 1, 2007
December 1, 1977...................... Pollution Control Series A (redeemed)
February 1, 1980...................... Series due February 5, 2000 (redeemed)
April 15, 1982........................ Pollution Control Series B (redeemed)
August 15, 1986....................... Series due August 15, 2016
March 1, 1987......................... Pollution Control Series C
November 15, 1990..................... Series due December 1, 2020; and
</TABLE>
WHEREAS, the Company has heretofore executed and delivered to the Trustee a
Supplemental Trust Indenture, dated September 14, 1976, and a Supplemental Trust
Indenture, dated December 9, 1991, setting forth duly adopted modifications and
alterations to the Original Indenture and all Supplemental Trust Indentures
thereto; and
WHEREAS, the Company has agreed to issue $110,000,000 principal amount of
its Senior Notes, 7.30% Series due October 15, 2025 (the "Senior Notes due
2025") and $110,000,000 principal amount of its Senior Notes, 6.250% Series due
October 15, 2000 (the "Senior Notes due 2000") pursuant to the provisions of the
Indenture dated as of October 1, 1995 and all indentures supplemental thereto
(the "Senior Note Indenture") between the Company and Boatmen's First National
Bank of Oklahoma, as trustee (said trustee or any successor trustee under the
Senior Note Indenture being hereinafter referred to as the "Senior Note
Trustee"); and
2
<PAGE>
WHEREAS, in order to secure the Company's obligations to pay principal,
premium, if any, and interest on the Senior Notes due 2025, the Senior Notes due
2000 and any other series of notes issued under the Senior Note Indenture prior
to the Release Date (as hereinafter defined) (the Senior Notes due 2025, the
Senior Notes due 2000 and other notes collectively, the "Senior Notes"), the
Company desires to provide for the issuance under the Original Indenture to the
Senior Note Trustee of a new series of bonds designated "First Mortgage Bonds,
Senior Note Series A", having the same stated rate of interest, interest payment
dates, stated maturity date and redemption provisions and in the same aggregate
principal amount as the Senior Notes due 2025, and of a new series of bonds
designated "First Mortgage Bonds, Senior Note Series B", having the same stated
rate of interest, interest payment dates, stated maturity date and redemption
provisions and in the same aggregate principal amount as the Senior Notes due
2000, all of such Bonds to be issued as registered bonds without coupons in
denominations of a multiple of $1,000 and to be substantially in the form and of
the tenor following, to-wit:
(Form of Bond of Senior Note Series A and of Senior Note Series B)
OKLAHOMA GAS AND ELECTRIC COMPANY
(Incorporated under the laws of Oklahoma)
First Mortgage Bonds
Senior Note Series A [B]
This Bond is not transferable except to a successor trustee under the Indenture,
dated October 1, 1995, as supplemented, between Oklahoma Gas and Electric
Company and Boatmen's First National Bank of Oklahoma, as trustee.
No. $
OKLAHOMA GAS AND ELECTRIC COMPANY, a corporation organized under the laws of
the Territory of Oklahoma and existing under and by virtue of the laws of the
State of Oklahoma (hereinafter called the Company), for value received, hereby
promises to pay to Boatmen's First National Bank of Oklahoma, trustee, under the
Indenture dated as of October 1, 1995 (the "Senior Note Indenture") between the
Company and Boatmen's First National Bank of Oklahoma or to any successor
trustee under the Senior Note Indenture (said trustee and any successor trustee
under the Senior Note Indenture being hereinafter referred to as the "Senior
Note Trustee"), at the office of Boatmen's First National Bank of Oklahoma, at
Oklahoma City, Oklahoma, the sum of Dollars in lawful money of the
United States of America, on the fifteenth day of *, and to pay
interest hereon from the date hereof at the rate of ** per cent per
annum, in like money, until the principal hereof becomes due and payable, said
interest being payable at the office of Boatmen's First National Bank of
Oklahoma, at Oklahoma City, Oklahoma, on the fifteenth day of April and on the
fifteenth day of October in each year; provided that, as long as there is no
existing default in the payment of interest and except for the payment of
defaulted interest, the interest payable on any April 15 or October 15 will be
paid to the person in whose name this bond was registered at the close of
business on the record date (the March 31 prior to such April 15 or the
September 30 prior to such October 15 unless any such date is not a business
day, in which event it will be the next preceding business day).
This bond is one of a duly authorized issue of bonds of the Company, known
as its First Mortgage Bonds, of the series and designation indicated on the face
hereof, which issue of bonds consists, or may consist, of several series of
varying denominations, dates and tenors, all issued and to be issued under and
equally secured (except insofar as a sinking fund, or similar fund, established
in accordance with the provisions of the Indenture may afford additional
security for the bonds of any specific series) by a
- ------------------------
* October 2025 for Bonds of the Senior Note Series A and October 2000 for Bonds
of the Senior Note Series B.
** 7.30 per cent for Bonds of the Senior Note Series A and 6.250 per cent for
Bonds of the Senior Note Series B.
3
<PAGE>
Trust Indenture dated February 1, 1945, and Supplemental Trust Indentures
thereto, dated December 1, 1948, June 1, 1949, May 1, 1950, March 1, 1952, June
1, 1955, January 1, 1957, June 1, 1958, March 1, 1963, March 1, 1965, January 1,
1967, January 1, 1968, January 1, 1969, January 1, 1970, January 1, 1972,
January 1, 1974, January 1, 1975, January 1, 1976, September 14, 1976, January
1, 1977, November 1, 1977, December 1, 1977, February 1, 1980, April 15, 1982,
August 15, 1986, March 1, 1987, November 15, 1990, December 9, 1991 and October
1, 1995 (all of which instruments are herein collectively called the Indenture),
between the Company and Boatmen's First National Bank of Oklahoma (herein called
the Trustee), as successor trustee to The First National Bank and Trust Company
of Oklahoma City, to which Indenture reference is hereby made for a description
of the property mortgaged and pledged, the nature and extent of the security,
the rights of the holders of the bonds as to such security, and the terms and
conditions upon which the bonds may be issued under the Indenture and are
secured. The principal hereof may be declared or may become due on the
conditions, in the manner and at the time set forth in the Indenture, upon the
happening of a completed default as in the Indenture provided.
The Bonds of this Series are required to be redeemed upon the occurrence of
certain events and upon the terms and conditions provided in the Supplemental
Trust Indenture dated October 1, 1995.
The Bonds of this Series are being issued in connection with the issuance
pursuant to the Senior Note Indenture of a series of notes designated the %
Senior Notes, Series due * (the "Senior Notes due
**"). The Company's obligations to make payments with respect
to the principal of, premium and/or interest on the Bonds of this Series shall
be fully or partially, as the case may be, satisfied and discharged to the
extent that, at the time any such payment shall be due, the then due principal,
premium*** and/or interest on the Senior Notes due shall have
been fully or partially paid or there shall have been deposited with the Senior
Note Trustee pursuant to Section 2.12 of the Senior Note Indenture sufficient
available funds to fully or partially pay the then due principal of, premium, if
any, and/or interest on the Senior Notes due .
Upon payment of the principal of, premium, if any, and interest on the
Senior Notes due **, whether at maturity or prior to maturity
by redemption*** or otherwise, or upon provision for the payment thereof having
been made in accordance with Section 5.01 of the Senior Note Indenture, Bonds of
this Series in a principal amount equal to the principal amount of the Senior
Notes due ** so paid or for which provision for payment has
been made shall be deemed fully paid, satisfied and discharged and the
obligations of the Company thereunder shall be terminated and such Bonds of this
Series shall be surrendered to and cancelled by the Trustee. From and after such
time as all bonds (other than Bonds of this Series and bonds of any other series
delivered to the Senior Note Trustee pursuant to Section 4.09 of the Senior Note
Indenture) have been retired through payment, redemption or otherwise (including
those bonds "deemed to be paid" within the meaning of that term as used in
Article X of the Original Indenture) at, before or after the maturity thereof
(the "Release Date"), the Bonds of this Series shall be deemed fully paid,
satisfied and discharged and the obligations of the Company hereunder and
thereunder shall be terminated. On the Release Date, the Bonds of this Series
shall be surrendered to and cancelled by the Trustee.
With the consent of the Company and to the extent permitted by and as
provided in the Indenture, the rights and obligations of the Company and/or of
the holders of the bonds, and/or the terms and provisions of the Indenture
and/or of any instruments supplemental thereto, may be modified or altered by
affirmative vote of the holders of at least 70% in principal amount of the bonds
then
- ------------------------
* The 7.30% Series Notes, Series due October 15, 2025 for the Bonds of Senior
Note Series A and the 6.250% Senior Notes, Series due October 15, 2000 for
the Bonds of Senior Note Series B.
** 2025 for the Bonds of Senior Notes Series A and 2000 for the Bonds of Senior
Note Series B.
*** This reference to premium or to redemption and all subsequent references to
premium will be deleted from the Bonds of Senior Note Series B.
4
<PAGE>
outstanding under the Indenture and any instruments supplemental thereto
(excluding bonds disqualified from voting by reason of the interest of the
Company or of certain related persons therein as provided in the Indenture);
provided that no such modification or alteration shall permit the extension of
the maturity of the principal of this bond or the reduction in the rate of
interest hereon or any
other modification in the terms of payment of such principal or interest or the
taking of certain other action as more fully set forth in the Indenture, without
the consent of the holder hereof.
No recourse shall be had for the payment of principal of, premium, if any,
or interest on this bond, or any part thereof, or of any claim based hereon or
in respect hereof or of the Indenture, against any incorporator, or any past,
present or future stockholder, officer or director of the Company or of any
predecessor or successor corporation, either directly or through the Company, or
through any such predecessor or successor corporation, or through any receiver
or a trustee in bankruptcy, 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 issue hereof, expressly waived and released, as more fully provided in
the Indenture.
This bond shall not be valid or become obligatory for any purpose unless and
until the certificate of authentication hereon shall have been signed by or on
behalf of Boatmen's First National Bank of Oklahoma, as Trustee under the
Indenture, or its successor thereunder.
IN WITNESS WHEREOF, OKLAHOMA GAS AND ELECTRIC COMPANY has caused this
instrument to be signed in its name by its President or a Vice President or with
the facsimile signature of its President, and its corporate seal, or a facsimile
thereof, to be hereto affixed and attested by its Secretary or an Assistant
Secretary or with the facsimile signature of its Secretary.
Dated:
OKLAHOMA GAS AND ELECTRIC COMPANY
By ----------------------------------------
ATTEST: PRESIDENT
- -----------------------------
SECRETARY
(Form of Trustee's Certificate)
This bond is one of the bonds of the series designated therein, described in
the within mentioned Indenture.
BOATMEN'S FIRST NATIONAL BANK OF
OKLAHOMA
By ----------------------------------------
AUTHORIZED SIGNATURE
and
WHEREAS, the Company is desirous of assigning, conveying, mortgaging,
pledging, transferring and setting over unto the Trustee and to its respective
successors in trust, additional property acquired by it subsequent to the date
of the preparation of the Supplemental Trust Indenture dated November 15, 1990;
and
5
<PAGE>
WHEREAS, Sections 4.01 and 20.03 of the Original Indenture provide in
substance that the Company and the Trustee may enter into indentures
supplemental thereto for the purposes, among others, of creating and setting
forth the particulars of any new series of bonds and of providing the terms and
conditions of the issue of the bonds of any series not expressly provided for in
the Original Indenture and of assigning, conveying, mortgaging, pledging and
transferring unto the Trustee additional property of the Company, and for any
other purpose not inconsistent with the terms of the Original Indenture; and
WHEREAS, the execution and delivery of this Supplemental Trust Indenture
have been duly authorized by a resolution adopted by the Board of Directors of
the Company;
Now, THEREFORE, THIS INDENTURE WITNESSETH:
Oklahoma Gas and Electric Company, in consideration of the premises and of
one dollar to it duly paid by the Trustee at or before the ensealing and
delivery of these presents, the receipt whereof is hereby acknowledged, and
other good and valuable considerations, does hereby covenant and agree to and
with Boatmen's First National Bank of Oklahoma, as Trustee, and its successors
in the trust under the Indenture for the benefit of those who hold or shall hold
the bonds and coupons, or any of them, issued or to be issued thereunder, as
follows:
ARTICLE I.
SPECIFIC SUBJECTION OF PROPERTY TO
THE LIEN OF THE ORIGINAL INDENTURE
SECTION 1.01. The Company in order to better secure the payment, both of
the principal and interest, of all bonds of the Company at any time outstanding
under the Indenture, according to their tenor and effect, and the performance of
and compliance with the covenants and conditions in the Indenture contained, has
granted, bargained, sold, warranted, released, conveyed, assigned, transferred,
mortgaged, pledged, set over and confirmed and by these presents does grant,
bargain, sell, warrant, release, convey, assign, transfer, mortgage, pledge, set
over and confirm unto Boatmen's First National Bank of Oklahoma, as Trustee and
to its respective successors in said trust forever, subject to the rights
reserved by the Company in and by the provisions of the Indenture, all of the
property described and mentioned or enumerated in a schedule hereto annexed and
marked Schedule A, reference to said schedule being hereby made with the same
force and effect as if the same were incorporated herein at length; together
with all and singular the tenements, hereditaments and appurtenances belonging
or in anywise appertaining to the aforesaid property or any part thereof with
the reversion and reversions, remainder and remainders, tolls, rents and
revenues, issues, income, product and profits thereof;
Also, in order to subject the personal property and chattels of the Company
to the lien of the Indenture and to conform with the provisions of the Uniform
Commercial Code of the State of Arkansas, all power houses, substations,
electric generating plants, including buildings and other structures,
transmission and distribution systems, generating apparatus, machinery, engines,
boilers, tanks, dynamos, electric machines, regulators, meters, transformers,
generators, motors, conduits, cables, wires, poles, crossarms, insulators,
switches, capacitors, arrestors, and electrical and mechanical appliances and
apparatus; office, shop, garage and other general buildings and structures,
furniture and fixtures; and all municipal and other franchises and all
leaseholds, licenses, permits, and privileges; all as now owned or hereafter
acquired by the Company pursuant to the provisions of the Original Indenture;
and
All the estate, right, title and interest and claim whatsoever, at law as
well as in equity, which the Company now has or may hereafter acquire in and to
the aforesaid property and every part and parcel thereof;
6
<PAGE>
Excluding, however, (1) all shares of stock, bonds, notes, evidences of
indebtedness and other securities other than such as may be or are required to
be deposited from time to time with the Trustee in accordance with the
provisions of the Indenture; (2) cash other than such as may be or is required
to be deposited from time to time with the Trustee in accordance with the
provisions of the Indenture; (3) contracts, claims, bills and accounts
receivable and choses in action other than such as may be or are required to be
from time to time assigned to the Trustee in accordance with the provisions of
the Indenture; (4) motor vehicles; (5) any oil, gas and other minerals under or
on lands owned by the Company; (6) any stock of goods, wares and merchandise,
equipment, and supplies acquired for the purpose of sale or resale in the usual
course of business or for the purpose of consumption in the operation,
construction or repair of any of the properties of the Company; and (7) the
properties described in Schedule B annexed to the Original Indenture.
To have and to hold all property, real, personal and mixed, mortgaged,
pledged or conveyed by the Company, or intended so to be, unto the Trustee and
its successors and assigns forever, subject, however, to permissible
encumbrances as defined in Section 1.09 of the Original Indenture and to the
further reservations, covenants, conditions, uses and trusts set forth in the
Indenture; in trust nevertheless for the same purposes and upon the same
conditions as are set forth in the Indenture.
ARTICLE II.
FORM AND EXECUTION OF BONDS OF SENIOR NOTE SERIES A
SECTION 2.01. There is hereby created for issuance under the Indenture a
series of bonds designated Senior Note Series A, each of which shall bear the
descriptive title "First Mortgage Bond, Senior Note Series A" and the form
thereof shall contain suitable provisions with respect to the matters hereafter
specified in this Section. The bonds of said series shall be substantially of
the tenor and purport hereinbefore recited. The bonds of said series shall
mature October 15, 2025, and shall be issued as registered bonds without coupons
in denominations of $1,000, and any multiple of $1,000 and registered in the
name of the Senior Note Trustee. The bonds of said series shall bear interest at
the rate of 7.30% per annum payable semi-annually on April 15 and October 15 of
each year. The principal and interest shall be payable to the person in whose
name such Bond is registered at the office of the Trustee at Oklahoma City,
Oklahoma, in lawful money of the United States of America.
The Company's obligation to make payments with respect to the principal of,
premium and/or interest on the Bonds of Senior Note Series A shall be fully or
partially, as the case may be, satisfied and discharged to the extent that, at
the time that any such payment shall be due, the then due principal of, premium
and/or interest on the Senior Notes due 2025 shall have been fully or partially
paid or there shall have been deposited with the Senior Note Trustee pursuant to
Section 2.12 of the Senior Note Indenture sufficient available funds to fully or
partially pay the then due principal, premium, if any and/or interest on the
Senior Notes due 2025. Bonds of Senior Note Series A shall be dated as of the
interest payment date next preceding the authentication thereof by the Trustee
except that (i) if any such bond shall be authenticated before April 15, 1996,
it shall be dated as of October 27, 1995, unless (iii) below is applicable, (ii)
if the Company shall at the time of the authentication of a Bond of Senior Note
Series A be in default in the payment of interest upon the Bonds of Senior Note
Series A, such bonds shall be dated as of the date of the beginning of the
period for which such interest is so in default, and (iii) as long as there is
no existing default in the payment of interest on the Bonds of Senior Note
Series A, if any Bond of Senior Note Series A shall be authenticated after the
close of business on any Record Date but on or prior to the interest payment
date relating to such Record Date, it shall be dated as of such interest payment
date.
The term "Record Date" as used herein with respect to any interest payment
date (April 15 or October 15) for Bonds of Senior Note Series A shall mean the
March 31 prior to such April 15 or the September 30 prior to such October 15
unless such March 31 or September 30 shall not be a business
7
<PAGE>
day, in which event Record Date shall mean the next preceding business day. The
term "business day" as used herein shall mean any day other than a Saturday or a
Sunday or a day on which the offices of the Trustee in the City of Oklahoma
City, Oklahoma, are closed pursuant to authorization of law.
SECTION 2.02. Upon payment of the principal of, premium, if any, and/or
interest on the Senior Notes due 2025, whether at maturity or prior to maturity
by redemption or otherwise, or upon provision for the payment thereof having
been made in accordance with Section 5.01 of the Senior Note Indenture, Bonds of
Senior Note Series A in a principal amount equal to the principal amount of the
Senior Notes due 2025 so paid or for which provision for payment has been made
shall be deemed fully paid, satisfied and discharged and the obligations of the
Company thereunder shall be terminated and such Bonds of Senior Note Series A
shall be surrendered to and cancelled by the Trustee. From and after such time
as all bonds (other than Bonds of Senior Note Series A and bonds of any other
series delivered to the Senior Note Trustee pursuant to Section 4.09 of the
Senior Note Indenture) have been retired through payment, redemption or
otherwise (including those bonds "deemed to be paid" within the meaning of that
term as used in Article X of the Original Indenture) at, before or after the
maturity thereof (the "Release Date"), the Bonds of Senior Note Series A shall
be deemed fully paid, satisfied and discharged and the obligation of the Company
thereunder shall be terminated. On the Release Date, the Bonds of Senior Note
Series A shall be surrendered to and cancelled by the Trustee.
SECTION 2.03. The terms and conditions of redemption of the Bonds of Senior
Note Series A need not be specified in any Bond of Senior Note Series A if an
appropriate reference be made in said Bond to the provisions of this
Supplemental Trust Indenture.
SECTION 2.04. The registered holder of any Bond or Bonds of Senior Note
Series A at his option may surrender the same at the office of the Trustee at
Oklahoma City, Oklahoma, or elsewhere if authorized by the Company, for
cancellation, in exchange for other Bonds of Senior Note Series A of the same
aggregate principal amount, bearing interest as provided in Section 2.09 of the
Original Indenture. Thereupon, and upon receipt of any payment required under
the provisions of Section 2.05 hereof, the Company shall execute and deliver to
the Trustee and the Trustee shall authenticate and deliver such other registered
bonds without coupons to such registered holder at its office or at any other
place specified as aforesaid.
SECTION 2.05. No charge shall be made by the Company for any exchange or
transfer of Bonds of Senior Note Series A, other than for taxes or other
governmental charges, if any, that may be imposed in relation thereto.
ARTICLE III.
FORM AND EXECUTION OF BONDS OF SENIOR NOTE SERIES B
SECTION 3.01. There is hereby created for issuance under the Indenture a
series of bonds designated Senior Note Series B, each of which shall bear the
descriptive title "First Mortgage Bond, Senior Note Series B" and the form
thereof shall contain suitable provisions with respect to the matters hereafter
specified in this Section. The bonds of said series shall be substantially of
the tenor and purport hereinbefore recited. The bonds of said series shall
mature October 15, 2000, and shall be issued as registered bonds without coupons
in denominations of $1,000, and any multiple of $1,000 and registered in the
name of the Senior Note Trustee. The bonds of said series shall bear interest at
the rate of 6.250% per annum payable semi-annually on April 15 and October 15 of
each year. The principal and interest shall be payable to the person in whose
name such Bond is registered at the office of the Trustee at Oklahoma City,
Oklahoma, in lawful money of the United States of America.
The Company's obligation to make payments with respect to the principal of
and/or interest on the Bonds of Senior Note Series B shall be fully or
partially, as the case may be, satisfied and discharged to the extent that, at
the time that any such payment shall be due, the then due principal of and/or
interest on the Senior Notes due 2000 shall have been fully or partially paid or
there shall have
8
<PAGE>
been deposited with the Senior Note Trustee pursuant to Section 2.12 of the
Senior Note Indenture sufficient available funds to fully or partially pay the
then due principal of and/or interest on the Senior Notes due 2000. Bonds of
Senior Note Series B shall be dated as of the interest payment date next
preceding the authentication thereof by the Trustee except that (i) if any such
bond shall be authenticated before April 15, 1996, it shall be dated as of
October 27, 1995 unless (iii) below is applicable, (ii) if the Company shall at
the time of the authentication of a Bond of Senior Note Series B be in default
in the payment of interest upon the Bonds of Senior Note Series B, such bonds
shall be dated as of the date of the beginning of the period for which such
interest is so in default, and (iii) as long as there is no existing default in
the payment of interest on the Bonds of Senior Note Series B, if any Bond of
Senior Note Series B shall be authenticated after the close of business on any
Record Date but on or prior to the interest payment date relating to such Record
Date, it shall be dated as of such interest payment date.
The term "Record Date" as used herein with respect to any interest payment
date (April 15 or October 15) for Bonds of Senior Note Series B shall mean the
March 31 prior to such April 15 or the September 30 prior to such October 15
unless such March 31 or September 30 shall not be a business day, in which event
Record Date shall mean the next preceding business day. The term "business day"
as used herein shall mean any day other than a Saturday or a Sunday or a day on
which the offices of the Trustee in the City of Oklahoma City, Oklahoma, are
closed pursuant to authorization of law.
SECTION 3.02. Upon payment of the principal of and/or interest on the
Senior Notes due 2000, whether at maturity or prior to maturity, or upon
provision for the payment thereof having been made in accordance with Section
5.01 of the Senior Note Indenture, Bonds of Senior Note Series B in a principal
amount equal to the principal amount of the Senior Notes due 2000 so paid or for
which provision for payment has been made shall be deemed fully paid, satisfied
and discharged and the obligations of the Company thereunder shall be terminated
and such Bonds of Senior Note Series B shall be surrendered to and cancelled by
the Trustee. From and after such time as all bonds (other than Bonds of Senior
Note Series B and bonds of any other series delivered to the Senior Note Trustee
pursuant to Section 4.09 of the Senior Note Indenture) have been retired through
payment, redemption or otherwise (including those bonds "deemed to be paid"
within the meaning of that term as used in Article X of the Original Indenture)
at, before or after the maturity thereof (the "Release Date"), the Bonds of
Senior Note Series B shall be deemed fully paid, satisfied and discharged and
the obligation of the Company thereunder shall be terminated. On the Release
Date, the Bonds of Senior Note Series B shall be surrendered to and cancelled by
the Trustee.
SECTION 3.03. The terms and conditions of redemption of the Bonds of Senior
Note Series B need not be specified in any Bond of Senior Note Series B if an
appropriate reference be made in said Bond to the provisions of this
Supplemental Trust Indenture.
SECTION 3.04. The registered holder of any Bond or Bonds of Senior Note
Series B at his option may surrender the same at the office of the Trustee at
Oklahoma City, Oklahoma, or elsewhere if authorized by the Company, for
cancellation, in exchange for other Bonds of Senior Note Series B of the same
aggregate principal amount, bearing interest as provided in Section 2.09 of the
Original Indenture. Thereupon, and upon receipt of any payment required under
the provisions of Section 3.05 hereof, the Company shall execute and deliver to
the Trustee and the Trustee shall authenticate and deliver such other registered
bonds without coupons to such registered holder at its office or at any other
place specified as aforesaid.
SECTION 3.05. No charge shall be made by the Company for any exchange or
transfer of Bonds of Senior Note Series B, other than for taxes or other
governmental charges, if any, that may be imposed in relation thereto.
9
<PAGE>
ARTICLE IV.
REDEMPTION OF BONDS OF SENIOR NOTE SERIES A OR OF SENIOR NOTE SERIES B
SECTION 4.01. (a) Upon notice being given of the redemption of all or part
of the Senior Notes due 2025 in accordance with the Senior Note Indenture and
such Senior Notes becoming due and payable in accordance with such notice of
redemption, the Company shall redeem on the redemption date specified in such
notice a principal amount of Bonds of Senior Note Series A equal to the
principal amount of Senior Notes due 2025 to be redeemed, at a redemption price
equal to the principal amount of such Bonds of Senior Note Series A to be
redeemed, plus a premium equal to the premium payable on the redemption of such
Senior Notes due 2025, plus accrued interest to such redemption date.
(b) In the event the principal of all Senior Notes is declared due and
payable pursuant to Section 8.01(a) of the Senior Note Indenture, the Bonds of
Senior Note Series A and the Bonds of Senior Note Series B shall be redeemable
in whole upon receipt by the Trustee of a written demand (hereinafter called a
"Redemption Demand") from the Senior Note Trustee stating that there has been
such declaration, stating that it is acting pursuant to the authorization
granted by Section 8.01(a) of the Senior Note Indenture, and demanding
redemption of all Senior Note First Mortgage Bonds on a date specified in such
Redemption Demand (the "Demand Redemption Date"), which date shall not be less
than 10 days nor more than 35 days after the date of the Redemption Demand. The
Trustee shall, within 3 days after receiving such Redemption Demand, mail a copy
thereof to the Company marked to indicate the date of its receipt by the
Trustee. Upon receipt by the Company of such copy of a Redemption Demand, the
Bonds of Senior Note Series A and the Bonds of Senior Note Series B shall be
redeemed by the Company on the Demand Redemption Date, upon surrender thereof by
the Senior Note Trustee to the Trustee, at a redemption price equal to the
principal amount thereof, plus accrued interest to the Demand Redemption Date.
If a Redemption Demand is rescinded by the Senior Note Trustee by written notice
to the Trustee prior to the Demand Redemption Date, the Company shall not be
obligated to redeem the Bonds of Senior Note Series A or the Bonds of Senior
Note Series B on the Demand Redemption Date; but no such rescission shall extend
to or affect any subsequent acceleration of the Senior Notes or impair any right
consequent thereon.
SECTION 4.02. (a) The Company covenants that, for so long as any Bonds of
Senior Note Series A are outstanding, it will take appropriate action so that
Bonds of Senior Note Series A are not redeemed or purchased pursuant to the
Sinking Fund requirement provided for in Article XII of the Original Indenture.
(b) The Company covenants that, for so long as any Bonds of Senior Note
Series B are outstanding, it will take appropriate action so that Bonds of
Senior Note Series B are not redeemed or purchased pursuant to the Sinking Fund
requirement provided for in Article XII of the Original Indenture.
SECTION 4.03. Redemption of Bonds of Senior Note Series A or of Bonds of
Senior Note Series B shall be effected, without further notice by the Company or
the Trustee, by the payment by the Company of the applicable redemption price
specified in Section 4.01 hereof at the place specified for payment of the
principal of and interest on such bonds.
SECTION 4.04. (a) The Company covenants and agrees that, prior to the
Release Date, it will not take any action (except as required by Section 4.01(b)
hereof) that would cause the outstanding principal amount of the Bonds of Senior
Note Series A to be less than the then outstanding principal amount of the
Senior Notes due 2025.
(b) The Company covenants and agrees that, prior to the Release Date, it
will not take any action (except as required by Section 4.01(b) hereof) that
would cause the outstanding principal amount of the Bonds of Senior Note Series
B to be less than the then outstanding principal amount of the Senior Notes due
2000.
10
<PAGE>
ARTICLE V.
FINANCING STATEMENT TO COMPLY WITH THE UNIFORM COMMERCIAL CODE
SECTION 5.01. The name and address of the debtor and secured party are set
forth below:
Debtor: Oklahoma Gas and Electric Company
101 North Robinson
Oklahoma City, Oklahoma 73101-3405
Secured Party: Boatmen's First National Bank
of Oklahoma, Trustee
120 North Robinson Avenue
Oklahoma City, Oklahoma 73125
SECTION 5.02. Reference to Article I hereof is made for a description of
the property of the debtor covered by this Financing Statement with the same
force and effect as if incorporated in this Section at length.
SECTION 5.03. The maturity dates and respective principal amounts of
obligations of the debtor secured and presently to be secured by the Original
Indenture and Supplemental Indentures, reference to all of which for the terms
and conditions thereof is hereby made with the same force and effect as if
incorporated herein at length, are as follows:
<TABLE>
<CAPTION>
FIRST MORTGAGE BONDS PRINCIPAL AMOUNT
- --------------------------------------------------------------- -------------------
<S> <C>
Series due January 1, 1997..................................... $ 15,000,000
Series due January 1, 1998..................................... $ 25,000,000
Series due January 1, 1999..................................... $ 12,500,000
Series due January 1, 2000..................................... $ 30,000,000
Series due January 1, 2002..................................... $ 40,000,000
Series due January 1, 2004..................................... $ 75,000,000
Series due January 1, 2005..................................... $ 60,000,000
Series due January 1, 2006..................................... $ 55,000,000
Series due January 1, 2007..................................... $ 75,000,000
Series due November 1, 2007.................................... $ 35,000,000
Series due August 15, 2016..................................... $ 100,000,000
Pollution Control Series C..................................... $ 56,000,000
Series due December 1, 2020.................................... $ 75,000,000
Senior Note Series A........................................... $ 110,000,000
Senior Note Series B........................................... $ 110,000,000
</TABLE>
SECTION 5.04. This Financing Statement is hereby adopted for all of the
First Mortgage Bonds of the series mentioned above secured by the Indenture.
11
<PAGE>
SECTION 5.05. The Original Indenture and the Supplemental Indentures as set
forth below were filed and recorded in each and every County in the States of
Oklahoma and Arkansas in which the Company has property:
<TABLE>
<S> <C> <C>
Original Indenture Supplemental Indenture
Dated February 1, 1945 Dated March 1, 1952
Supplemental Indenture Supplemental Indenture
Dated December 1, 1948 Dated June 1, 1955
Supplemental Indenture Supplemental Indenture
Dated June 1, 1949 Dated January 1, 1957
Supplemental Indenture Supplemental Indenture
Dated May 1, 1950 Dated June 1, 1958
Supplemental Indenture
Dated March 1, 1963.
</TABLE>
The Supplemental Indenture dated March 1, 1965, the Supplemental Indenture dated
January 1, 1967, the Supplemental Indenture dated January 1, 1968, the
Supplemental Indenture dated January 1, 1969, the Supplemental Indenture dated
January 1, 1970, the Supplemental Indenture dated January 1, 1972, the
Supplemental Indenture dated January 1, 1974, the Supplemental Indenture dated
January 1, 1975, the Supplemental Indenture dated January 1, 1976, the
Supplemental Indenture dated September 14, 1976, the Supplemental Indenture
dated January 1, 1977, the Supplemental Indenture dated November 1, 1977, the
Supplemental Indenture dated December 1, 1977, the Supplemental Indenture dated
February 1, 1980, the Supplemental Indenture dated April 15, 1982, the
Supplemental Indenture dated August 15, 1986, the Supplemental Indenture dated
March 1, 1987, the Supplemental Indenture dated November 15, 1990 and the
Supplemental Indenture dated December 9, 1991, respectively, were each filed as
a Public Service Mortgage and recorded as a Real Estate Mortgage with the
Secretary of State of the State of Oklahoma at Oklahoma City and were each filed
and recorded in each and every county in the State of Arkansas in which the
Company has property and were filed with the Secretary of State of the State of
Arkansas.
SECTION 5.06. The property covered by this Financing Statement shall also
secure additional series of First Mortgage Bonds of the debtor which may be
issued from time to time in the future in accordance with the provisions of the
Indenture.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.01. The recitals of fact herein and in the bonds (except the
Trustee's Certificate) shall be taken as statements of the Company and shall not
be construed as made by the Trustee. The Trustee makes no representations as to
the value of any of the property subjected to the lien of the Indenture, or any
part thereof, or as to the title of the Company thereto, or as to the security
afforded thereby and hereby, or as to the validity of this Supplemental Trust
Indenture and the Trustee shall incur no responsibility in respect of such
matters.
SECTION 6.02. This Supplemental Trust Indenture shall be construed in
connection with and as a part of the Indenture.
SECTION 6.03. (a) If any provision of this Supplemental Trust Indenture
limits, qualifies, or conflicts with another provision of the Indenture required
to be included in indentures qualified under the Trust Indenture Act of 1939 (as
enacted prior to the date of this Supplemental Trust Indenture) by any of the
provisions of Sections 310 to 317, inclusive, of the said Act, such required
provisions shall control.
12
<PAGE>
(b) In case of any one or more of the provisions contained in this
Supplemental Trust Indenture or in the bonds issued hereunder should be invalid,
illegal, or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected, impaired, prejudiced or disturbed thereby.
SECTION 6.04. Wherever in this Supplemental Trust Indenture the word
"Indenture" is used without either prefix, "Original" or "Supplemental," such
word was used intentionally to include in its meaning both the Original
Indenture and all indentures supplemental thereto.
SECTION 6.05. Whenever in this Supplemental Trust Indenture either of the
parties hereto is named or referred to, this shall be deemed to include the
successors or assigns of such party, and all the covenants and agreements in
this Supplemental Trust Indenture contained by or on behalf of the Company or by
or on behalf of the Trustee shall bind and inure to the benefit of the
respective successors and assigns of such parties, whether so expressed or not.
SECTION 6.06. (a) This Supplemental Trust Indenture may be simultaneously
executed in several counterparts, and all said counterparts executed and
delivered, each as an original, shall constitute but one and the same
instrument.
(b) The Table of Contents and the descriptive headings of the several
Articles of this Supplemental Trust Indenture were formulated, used and inserted
in this Supplemental Trust Indenture for convenience only and shall not be
deemed to affect the meaning or construction of any of the provisions hereof.
13
<PAGE>
IN WITNESS WHEREOF, OKLAHOMA GAS AND ELECTRIC COMPANY, an Oklahoma
corporation, party of the first part, has caused its corporate name and seal to
be hereunto affixed, and this Supplemental Trust Indenture to be signed by its
President or a Vice President, and attested by its Secretary or an Assistant
Secretary, for and in its behalf, and Boatmen's First National Bank of Oklahoma,
a national banking association duly organized under the National Banking Laws of
the United States of America, as Trustee, party of the second part, to evidence
its acceptance of the trust hereby created, has caused its corporate name and
seal to be hereunto affixed, and this Supplemental Trust Indenture to be signed
by its President or a Vice President, and attested by a Vice President, for and
in its behalf, all done this 24th day of October, A.D. 1995.
OKLAHOMA GAS AND ELECTRIC COMPANY
BY A.M. Strecker, SENIOR VICE
PRESIDENT.
(CORPORATE SEAL)
ATTEST:
IRMA B. ELLIOTT, SECRETARY.
Executed by Oklahoma Gas and
Electric Company in presence of:
Leon Smith, Jr.,
R.R. Rice, WITNESSES.
BOATMEN'S FIRST NATIONAL BANK OF
OKLAHOMA
BY Sue Shipman, VICE PRESIDENT.
(CORPORATE SEAL)
ATTEST:
Philip A. Lewis, VICE PRESIDENT.
Executed by Boatmen's First National Bank of
Oklahoma in presence of:
D.A. Fritz,
C.W. Andrews, WITNESSES.
14
<PAGE>
STATE OF OKLAHOMA.
SS:
COUNTY OF OKLAHOMA.
Before me, a Notary Public in and for said County and State, on this 24th
day of October 1995, personally appeared A.M. Strecker, to me known to be the
identical person who subscribed the name of Oklahoma Gas and Electric Company,
one of the makers thereof, to the foregoing instrument as its Vice President,
and acknowledged to me that he executed the same as his free and voluntary act
and deed and as the free and voluntary act and deed of such corporation for the
uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
Susie White, NOTARY PUBLIC.
(NOTARIAL SEAL)
My Commission Expires:
October 21, 1999
STATE OF OKLAHOMA.
SS:
COUNTY OF OKLAHOMA.
Before me, a Notary Public in and for said County and State, on this 24th
day of October 1995, personally appeared Sue Shipman, to me known to be the
identical person who subscribed the name of Boatmen's First National Bank of
Oklahoma, one of the makers thereof, to the foregoing instrument as its Vice
President, and acknowledged to me that she executed the same as her free and
voluntary act and deed and as the free and voluntary act and deed of such
national banking association for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
Shirley Kay Phinney, NOTARY PUBLIC.
(NOTARIAL SEAL)
My Commission Expires:
March 7, 1998
15
<PAGE>
SCHEDULE A
REAL PROPERTIES
IN THE STATE OF OKLAHOMA
The following described real property, situate, lying and being in the
County of Cleveland, State of Oklahoma, to-wit:
(1) All of Lot One (1), Block One (1), PRINCE NO. 1 ADDITION to Norman,
Oklahoma, according to the recorded plan thereof, and
A tract of land in the Northwest Quarter NW 1/4 of Section Fourteen
(14), Township Nine (9) North, Range Three (3) West of the Indian
Meridian, Cleveland County, Oklahoma, more particularly described as
follows: Beginning at a point 415 feet N 00 DEG. 05' 40"W from the
Southwest corner of said NW 1/4 for point of beginning: thence N 89 DEG.
36' 00"E a distance of 250 feet; thence N 00 DEG. 05' 40"W a distance of
285 feet; thence S 89 DEG. 36' 00"W a distance of 250 feet; thence S
00 DEG. 05' 40"E a distance of 285 feet to the point or place of
beginning; and
A tract of land in the NW 1/4 of Section 14, Township 9 North, Range 3
West of the Indian Meridian, Cleveland County, Oklahoma, described as
follows: Beginning at a point 700 feet north of the southwest corner of
said NW 1/4, thence East 1244.57 feet; thence North 350 feet; thence West
1244.57 feet; thence South 350 feet to the point of beginning, containing
10 acres more or less,
Subject to roadway dedications, if any, and restrictions, and easements
of record, LESS AND EXCEPT all oil, gas and other minerals and mineral
rights, not heretofore conveyed of record, which are hereby reserved unto
the grantors, their successors and assigns.
The following described real property, situate, lying and being in the
County of Creek, State of Oklahoma, to-wit:
(1) The West 123.7 feet of Lots Five (5) and Six (6), all of Lots Seven (7)
and Eight (8) and the East 92.5 feet of Lots Nine (9) through Thirteen
(13), all of which are in Reservation A of Drumright's Subdivision of
Reservation A and B of Drumright's Amended Addition to Drumright,
Oklahoma, being a part of the West Half (W/2) of the South West Quarter
(SW/4) of Section Thirty Two (32), Township Eighteen (18) North, Range
Seven (7) East, according to the recorded plat thereof. Subject to
existing easements and mineral rights previously reserved or conveyed of
record.
The following described real property, situate, lying and being in the
County of Garfield, State of Oklahoma, to-wit:
(1) Tract No. 8, Enid Energy Center, First Section, an Addition to the City
of Enid, Oklahoma, according to the recorded plat thereof.
The following described real property, situate, lying and being in the
County of Kay, State of Oklahoma, to-wit:
(1) The Southwest Quarter of the Northwest Quarter (SW 1/4 NW 1/4) and the
South 27.5 acres of the East Half of Northwest Quarter (E 1/2 NW 1/4) of
Section 8, Township 25 North, Range 2 East, LESS AND EXCEPT all oil, gas,
petroleum and other minerals and mineral rights in and under said
property.
The following described real property, situate, lying and being in the
County of Murray, State of Oklahoma, to-wit:
(1) A tract of land commencing 1310 feet West of the Southeast Corner
Southwest Quarter; said point being the true point of beginning, thence
West a distance of 425 feet; thence North a
A-1
<PAGE>
distance of 433 feet; thence East a distance of 425 feet; thence South a
distance of 433 feet to the true point of beginning, containing 4.23
acres, more or less. Less and except oil, gas, or other minerals that may
be running with the property.
The following described real property, situate, lying and being in the
County of Muskogee, State of Oklahoma, to-wit:
(1) The NE-1/4 and the S-1/2 of Lot 1 (NE-1/4 of NE-1/4) of Section 4, Twp
14N, R18E, Muskogee County, Oklahoma, containing 30 acres more or less.
The following described real property, situate, lying and being in the
County of Oklahoma, State of Oklahoma, to-wit:
(1) Lot One (1) Block Eight (8) and the north One (1) foot Six (6) inches of
Lot Two (2) Block Eight (8) Blue Quail Ridge 1st. Addition on a
subdivision of a Part of the Southwest Quarter (SW 1/4), of Section Six
(6), Township Thirteen (13) North, Range Three (3) West of the Indian
Meridian, in the City of Oklahoma, Oklahoma County, Oklahoma.
The following described real property, situate, lying and being in the
County of Pontotoc, State of Oklahoma, to-wit:
(1) A tract of land beginning at a point 165 feet north of the southwest
corner of the Northeast Quarter of Northwest Quarter of Southeast Quarter
(NE 1/4 NW 1/4 SE 1/4) of Section 28, Township 4 North, Range 6 East,
Pontotoc County, Oklahoma, thence N0 DEG.09'01"W along the west line of
said NE 1/4 NW 1/4 SE 1/4 a distance of 672.00 feet to a point on the
south right of way line of State Highways 3 and 99; thence
S89 DEG.40'06"E along said right of way line a distance of 100.00 feet;
thence S0 DEG.09'01"E a distance of 422.00 feet; thence S89 DEG.40'06"E a
distance of 150.00 feet; thence S0 DEG.09'01"E a distance of 250.00 feet;
thence N89 DEG.40'06"W a distance of 250.00 feet to the point of
beginning, containing 2.40 acres.
The following described real property, situate, lying and being in the
County of Pottawatomie, State of Oklahoma, to-wit:
(1) A tract of land lying in the N 1/2 of the NW 1/4, Sec. 13, T10N, R3E,
Pottawatomie County, Oklahoma, more particularly described as follows:
Beginning at a point on the East line of the NW 1/4, Sec. 13, T10N, R3E
823 feet south of the NE corner of the N 1/2 of the NW 1/4, Sec. 13,
T10N, R3E; thence South along the East line of said North half of the
NW 1/4, Sec. 13, T10N, R3E 506.1 feet to the South line of said N 1/2 of
the NW 1/4, Sec. 13, T10N, R3E; thence West along the South line of said
N 1/2 of NW 1/4 of Sec. 13, T10N, R3E, a distance of 1281.85 feet to the
Southerly right of way line of Kickapoo Street connection to U.S. Highway
#270; thence Northeasterly along the Southerly right of way line of
Kickapoo Street connection to U.S. Highway #270, a total distance of
1440.2 feet (Northeasterly on a curve to the right having a radius of 505
feet) a distance of 337.7 feet; thence North 58 DEG.57' East a distance
of 151.7 feet; thence Northeasterly on a curve to the right having a
radius of 1809.9 feet a distance of 836.1 feet; thence North 89 DEG.57'
East a distance of 114.7 feet to the point of beginning and containing 10
acres more or less.
The following described real property, situate, lying and being in the
County of Seminole, State of Oklahoma, to-wit:
(1) Tract of land described as beginning 583 feet west of the Northeast
Corner of Section 21, Township 9 North, Range 6 East, thence west 100
feet, thence south 515 feet, thence east 100 feet, thence north 515 feet
to point of beginning.
A-2
<PAGE>
The following described real property, situate, lying and being in the
County of Woodward, State of Oklahoma, to-wit:
(1) Lots 1 and 2 and the East 30 feet of Lot 3 in Block 82 of the Original
Townsite of Woodward, Woodward County, Oklahoma according to the recorded
plat.
IN THE STATE OF ARKANSAS
The following described real property, situate, lying and being in the
County of Sebastian, State of Arkansas, to-wit:
(1) Part of the Southeast Quarter (SE 1/4) of the Southwest Quarter (SW 1/4)
of Section 32, Township 8 North, Range 31 West, Sebastian County,
Arkansas, more particularly described as follows:
Commencing at the Southeast Corner of said Southeast Quarter (SE 1/4) of
the Southwest Quarter (SW 1/4); thence North 88 degrees 08 minutes 00
seconds West, along the South line of said Southeast Quarter (SE 1/4) of
the Southwest Quarter (SW 1/4), 425.0 feet to the POINT OF BEGINNING;
thence North 88 degrees 08 minutes 00 seconds West, 903.3 feet to the
Southwest corner of said Southeast Quarter (SE 1/4) of the Southwest
Quarter (SW 1/4); thence North 02 degrees 30 minutes 19 seconds East,
along the West line of said Southeast Quarter (SE 1/4) of the Southwest
Quarter (SW 1/4), 330.0 feet; thence South 88 degrees 08 minutes 00
seconds East, parallel to the South Line of said Southeast Quarter (SE
1/4) of the Southwest Quarter (SW 1/4), 899.9 feet to a point 425.0 feet
West of the East line of said Southeast Quarter (SE 1/4) of the Southwest
Quarter (SW 1/4); thence South 01 degrees 54 minutes 25 seconds West,
330.0 feet to the POINT OF BEGINNING, containing 6.83 acres, more or
less, and being subject to easements of record. LESS AND EXCEPT all oil,
gas, petroleum and other minerals in and under said property.
(2) A tract of land situated in the Northwest Quarter (NW 1/4) of Section 5,
Township 7 North, Range 32 West, more particularly described as follows:
Commencing at a point 3638.72 feet north of the southwest corner of
Section 5, Township 7 North, Range 32 West, said point being on the
Arkansas-Oklahoma State Line; thence northerly along said State Line a
distance of 60 feet; thence easterly at an angle of 90 degrees to said
State Line a distance of 95 feet; thence southerly and parallel to said
State Line a distance of 60 feet; thence westerly and at an angle of 90
degrees to said State Line a distance of 95 feet to the point or place of
beginning.
(3) All that part of the South 500 feet of the North half of the Southeast
quarter of Section 3, Township 7 North, Range 32 West, lying west of
Arkansas Highway 45 and East of the Missouri Pacific Railroad spur track,
being more particularly described as follows:
Beginning at the Southwest corner of the said N1/2 SE1/4; thence North 0
degrees 40 minutes 00 seconds West 192.46 feet to the East right of way
line of the Missouri Pacific Railroad; thence North 9 degrees 12 minutes
06 seconds East along said right of way line 312.09 feet to a point
500.00 feet North of the South line of said N1/2 SE1/4; thence North 89
degrees 25 minutes 32 seconds East parallel with the South line of said
N1/2 SE1/4 2516.49 feet to the West right of way line of Arkansas Highway
45; thence South 0 degrees 12 minutes 43 seconds East along said highway
right of way 301.05 feet to a point of curve; thence South 6 degrees 02
minutes 10 seconds East 199.88 feet along the chord of a curve to the
left having a radius of 984.93 feet and an arc length of 200.23 feet to a
point on the South line of said N1/2 SE1/4; thence South 89 degrees 25
minutes 32 seconds West 2586.29 feet to the point of beginning,
containing 29.3193 acres, LESS AND EXCEPT those mineral rights conveyed
to J.T. Stephens in a certain Mineral Deed dated November 9, 1959,
recorded in book 139 page 47, and any other minerals and/or mineral
interests.
(4) Lots 1, 2, 3 and 4, Block "R", Fitzgerald Addition to City of Ft. Smith,
Arkansas.
A-3
<PAGE>
EXHIBIT 5.01
[LETTERHEAD OF RAINEY, ROSS, RICE & BINNS]
October 23, 1995
Oklahoma Gas and Electric Company
101 North Robinson
Oklahoma City, Oklahoma 73101
Re: $120,000,000 Principal Amount of Securities
-------------------------------------------
Gentlemen:
We have examined the Form S-3 Registration Statement, dated August 14, 1995
(the "Registration Statement"), and related Amendment No. 1 thereto, of Oklahoma
Gas and Electric Company (the "Company"), to which this opinion is included as
an exhibit, for the registration under the Securities Act of 1933, as amended
(the "Act"), of an aggregate principal amount of $120,000,000 of (a) First
Mortgage Bonds of one or more series (the "Bonds") to be issued under the Trust
Indenture dated February 1, 1945 as heretofore supplemented and amended by
supplemental trust indentures and a new supplemental trust indenture (the "New
Supplemental Indentures") for each series of Bonds all from the Company to
Boatmen's First National Bank of Oklahoma, as successor trustee (such Trust
Indenture, as supplemented and as to be supplemented, is herein referred to as
the "First Mortgage Indenture") and (b) notes or debentures ("Senior Notes")
issued under the senior note indenture the form of which is an exhibit to the
Registration Statement (the "Senior Note Indenture") between the Company and
Boatmen's First National Bank of Oklahoma, as Trustee. The Bonds and the Senior
Notes are herein referred to collectively as the "Securities". We have examined
all records, instruments, and documents which we have deemed necessary for the
purposes of this opinion, including the Registration Statement on Form S-3 under
the Securities Act of 1933, as amended, relating to the Securities to be filed
by the Company pursuant to said Act.
Based upon the foregoing and upon our general familiarity with the
properties and affairs of the Company, we are of the opinion that:
1. The Company is a validly organized and legally existing corporation,
in good standing under the laws of the State of Oklahoma and is authorized to
conduct and operate its business as a public utility in the State of Oklahoma.
2. The First Mortgage Indenture, other than the New Supplemental
Indentures, is a legal, valid, and binding instrument of the Company.
3. The Senior Note Indenture, when duly executed and delivered by the
Company and the Trustee, will be a valid, legal and binding instrument of the
Company.
<PAGE>
4. With respect to the Bonds, when, as and if the Bonds and one or more
New Supplemental Trust Indentures relating thereto have been duly authorized,
executed, delivered, filed and recorded as required by law, and the
consideration for the Bonds duly received by the Company, all in the manner
contemplated by said Registration Statement, and with respect to the Senior
Notes, when, as and if the Senior Notes and the Senior Note Indenture have been
duly executed and delivered, and the consideration for the Senior Notes duly
received by the Company, and in the manner contemplated by said Registration
Statement, the Bonds and the Senior Notes will be legally issued and binding
obligations of the Company if issued before January 1, 1997.
5. The statements made in the above-mentioned Registration Statement and
in the related Prospectus, purporting to be made or based upon our opinion,
correctly set forth our opinion upon said respective matters.
Respectfully,
RAINEY, ROSS, RICE & BINNS
By: /s/ Hugh D. Rice
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