<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 12, 1998.
REG. NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
OKLAHOMA GAS AND ELECTRIC COMPANY
(Exact name of registrant as specified in its charter)
------------------------------
<TABLE>
<S> <C>
OKLAHOMA 73-0382390
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
101 NORTH ROBINSON, P.O. BOX 321, OKLAHOMA CITY, OKLAHOMA 73101-0321 TELEPHONE:
(405) 553-3000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
STEVEN E. MOORE
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
OKLAHOMA GAS AND ELECTRIC COMPANY
101 NORTH ROBINSON, P.O. BOX 321
OKLAHOMA CITY, OKLAHOMA 73101-0321
(405) 553-3000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
<TABLE>
<S> <C>
WITH COPY TO: WITH COPY TO:
PETER D. CLARKE, ESQ. ROBERT A. YOLLES, ESQ.
Gardner, Carton & Douglas Jones, Day, Reavis & Pogue
321 North Clark Street 77 West Wacker
Chicago, Illinois 60610 Chicago, Illinois 60601
(312) 245-8685 (312) 269-4145
</TABLE>
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the Registration Statement becomes effective.
------------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT OFFERING PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
First Mortgage Bonds........................ (1) (1) (2) NA
Senior Notes................................ (1) (1) (2) NA
Total....................................... $112,500,000(3) $33,188
</TABLE>
(1) Not applicable pursuant to the Note following the Calculation Fee table and
General Instruction II.D. to Form S-3.
(2) In no event will the aggregate maximum offering price of all securities
issued pursuant to this Registration Statement exceed $112,500,000.
(3) Calculated pursuant to Rule 457(o) under the Securities Act of 1933.
------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, FEBRUARY 12, 1998
PROSPECTUS
OKLAHOMA GAS AND ELECTRIC COMPANY
SENIOR NOTES
---------------
Oklahoma Gas and Electric Company, an Oklahoma corporation (the "Company"),
may offer from time to time up to $112,500,000 aggregate principal amount of its
senior notes (the "New Notes"), in one or more series on terms to be determined
at the time or times of sale. The specific terms of each issue of New Notes,
together with the terms of the offering of such issue, will be set forth in an
accompanying prospectus supplement (a "Prospectus Supplement"). The applicable
Prospectus Supplement will set forth with regard to the particular New Notes
being offered (the "Offered Notes") the designation or designations, aggregate
principal amount, rate or rates (or method of calculation) and times and place
of any payment of interest, maturity or maturities, offering price, any sinking
fund or other redemption terms and other specific terms of such Offered Notes.
The New Notes will be represented either by Global Securities registered in
the name of The Depository Trust Company ("DTC"), as depository ("Depository"),
or its nominee, or by securities in certificated form issued to the registered
owners thereof, as set forth in the applicable Prospectus Supplement. Interests
in Global Securities will be shown on, and transfers thereof will be effected
only through, records maintained by the Depository and its participants. Global
Securities will not be issuable as certificated securities except in
circumstances described herein or in the applicable Prospectus Supplement.
The New Notes may be sold through underwriters or dealers, directly to a
limited number of institutional purchasers or through agents. See "PLAN OF
DISTRIBUTION." The applicable Prospectus Supplement will set forth the names of
such underwriters, dealers or agents, if any, any applicable commissions or
discounts and the amount and use of net proceeds from such sale. See "PLAN OF
DISTRIBUTION" for possible indemnification arrangements for such underwriters,
dealers, agents, if any, and purchasers.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS , 1998.
<PAGE>
OKLAHOMA GAS AND ELECTRIC COMPANY
Oklahoma Gas and Electric Company, an Oklahoma corporation (the "Company")
incorporated in 1902 under the laws of the Territory of Oklahoma, is an electric
public utility company with its principal executive offices located at 101 North
Robinson, P.O. Box 321, Oklahoma City, Oklahoma 73101-0321. Telephone (405)
553-3000. The Company is a subsidiary of OGE Energy Corp. ("OGE Energy"), which
is a public utility holding company incorporated in the State of Oklahoma and
located in Oklahoma City, Oklahoma.
The Company is the largest operating electric utility in Oklahoma. The
Company owns and operates an interconnected electric production, transmission
and distribution system which includes eight active generating stations with a
total capability of 5,647,300 kilowatts. The Company furnishes retail electric
service in 274 communities and contiguous rural and suburban territories in
Oklahoma and western Arkansas (population served estimated by the Company at
1,700,000). It also sells electric energy at wholesale for resale in 5
communities and to 2 rural electric cooperatives in those states. The area
served by the Company embraces approximately 30,000 square miles, which includes
Oklahoma City, the largest city in Oklahoma, and the section of Arkansas in the
general area of Ft. Smith, the second largest city in Arkansas. Of the total 279
communities served, 248 are located in Oklahoma and 31 in Arkansas.
Approximately 91% of the Company's electric operating revenues for the year
ended December 31, 1997, was derived from sales in Oklahoma and approximately 9%
from sales in Arkansas.
RESTRUCTURING
The Company and its former subsidiary, Enogex Inc., and Enogex Inc.'s
subsidiaries (collectively, "Enogex") became subsidiaries of OGE Energy on
December 31, 1996 pursuant to a mandatory share exchange whereby each share of
outstanding common stock of the Company was exchanged on a share-for-share basis
for common stock of OGE Energy. Immediately following this exchange, the Company
transferred its shares of Enogex stock to OGE Energy and Enogex became a direct
subsidiary of OGE Energy. OGE Energy now serves as the parent company to the
Company and Enogex. For purposes of the Company's financial statements, Enogex
is shown as discontinued operations. The New Notes will be obligations solely of
the Company and not of OGE Energy or Enogex.
INFORMATION INCORPORATED BY REFERENCE
The following documents, as filed by the Company with the Securities and
Exchange Commission (the "Commission"), are incorporated herein by reference:
(i) Form 10-K Annual Report of the Company for the year ended December 31, 1996,
(ii) Form 10-Q Quarterly Reports of the Company for the quarters ended March 31,
1997, June 30, 1997 and September 30, 1997 and (iii) Form 8-K Current Reports of
the Company dated January 29, 1997, January 31, 1997, June 19, 1997, July 17,
1997 and November 21, 1997.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
after the date of this Prospectus and prior to the termination of this offering
shall be deemed to be incorporated by reference in this Prospectus from the
respective dates of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference in this
Prospectus shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained in this Prospectus or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference in this Prospectus modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person
(including any beneficial owner) to whom this Prospectus has been delivered, on
the request of any such person, a copy of any or all of the documents referred
to above which have been or may be incorporated in this Prospectus by reference,
other than certain exhibits to such documents. Written or telephone requests for
such copies
2
<PAGE>
should be directed to Ms. Irma B. Elliott, Secretary, Oklahoma Gas and Electric
Company, 101 North Robinson, P.O. Box 321, Oklahoma City, Oklahoma 73101-0321,
(405) 553-3196.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Exchange
Act, and in accordance therewith files reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information on file can be inspected and copied at the public reference offices
of the Commission currently at Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549; 500 West Madison Street, Chicago, Illinois 60661; and 7 World Trade
Center, New York, New York 10048; and copies of such material can be obtained
from the Public Reference Section of the Commission at its principal office at
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. In
addition, reports, proxy material and other information concerning the Company
may be inspected at the Library of the New York Stock Exchange, 20 Broad Street,
New York, New York 10015. In addition, electronically filed documents, including
reports, proxy statements and other information concerning the Company, can be
obtained from the Commission's web site at http://www.sec.gov. The Company is
not required to, and does not, provide annual reports to holders of its debt
securities unless specifically requested by a holder.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended. This
Prospectus does not contain all of the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the Commission. For further information, reference is made to the
Registration Statement.
USE OF PROCEEDS
The net proceeds to be received by the Company from the sale of the New
Notes will be used in connection with the payment at maturity or the redemption,
refunding, refinancing or purchase of certain first mortgage bonds of the
Company (the "Prior Securities"), including payment of short-term indebtedness
incurred for such purpose. The specific allocation of the net proceeds of a
particular series of Offered Notes and information relating to the particular
Prior Securities to be paid at maturity, redeemed, refunded, refinanced or
purchased, as well as any such short-term indebtedness incurred for such
purpose, will be described in the applicable Prospectus Supplement. Unless
otherwise indicated in the applicable Prospectus Supplement, any Prior
Securities purchased will be purchased at a price not in excess of the
then-current redemption price applicable to such securities. In case of the
redemption, refunding or purchase of Prior Securities, proceeds of the Offered
Notes may be applied to pay any redemption premium or purchase price in excess
of the principal amount.
3
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
(UNAUDITED)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------------
1997 1996 1995 1994
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Consolidated Ratio of Earnings to Fixed Charges............................... 4.40 4.06 3.48 3.63
<CAPTION>
1993
---------
<S> <C>
Consolidated Ratio of Earnings to Fixed Charges............................... 3.33
</TABLE>
For purposes of this ratio, "Earnings" consist of the aggregate of income
from continuing operations (which excludes Enogex), taxes on income, investment
tax credit (net) and "fixed charges." "Fixed charges" consist of interest on
long-term debt, related amortization, interest on short-term borrowings and a
calculated portion of rents considered to be interest.
The annual interest requirements on the long-term debt of the Company
outstanding at December 31, 1997, was approximately $44 million.
SELECTED FINANCIAL INFORMATION
The following consolidated financial information of the Company, except
percentages, is presented in thousands. Such financial information does not
include Enogex, which, as stated previously, is shown in the Company's financial
statements as discontinued operations for all periods prior to January 1, 1997.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------------------
1997 1996 1995
----------- ---------- ----------
(UNAUDITED)
<S> <C> <C> <C>
Income Summary:
Operating Revenues........................ $ 1,191,691 $1,200,337 $1,168,287
Operating Income.......................... 174,717 177,349 181,017
Income from Continuing Operations......... 120,994 116,869 112,544
</TABLE>
<TABLE>
<CAPTION>
AS OF DECEMBER 31, 1997
-------------------------
AMOUNT %
------------ -----------
(UNAUDITED)
<S> <C> <C>
Capitalization Summary:
Long-Term Debt (including current portion)............................................. $ 716,924 44.3%
Preferred Stock (1).................................................................... 49,266 3.1
Common Stock Equity.................................................................... 851,391 52.6
------------ -----
$ 1,617,581 100.0%
------------ -----
------------ -----
</TABLE>
- ------------------------
(1) All outstanding shares of the Company's preferred stock were redeemed in
January 1998.
DESCRIPTION OF NEW NOTES
GENERAL
Each series of New Notes is to be an initial issue of a new series of senior
notes (the "Senior Notes") issued under the Indenture dated as of October 1,
1995, as supplemented by Supplemental Indenture No. 1, dated as of October 16,
1995, Supplemental Indenture No. 2, dated as of July 1, 1997, and as to be
further supplemented by a new supplemental indenture for such series of New
Notes (collectively, the "Senior Note Indenture") between the Company and The
Bank of New York, as successor trustee (the "Senior Note Trustee") to Boatmen's
First National Bank of Oklahoma. The following summaries of certain provisions
of the Senior Note Indenture do not purport to be complete and are subject to,
and qualified in their entirety by, all of the provisions of the Senior Note
Indenture which is an exhibit to the Registration Statement of which this
Prospectus is a part and which is incorporated herein by this
4
<PAGE>
reference. Unless otherwise indicated, references to Section numbers under this
caption are references to the Section numbers of the Senior Note Indenture.
Until the Release Date (as defined below), the Senior Notes (including any
New Notes issued prior to the Release Date) will be secured by one or more
series of the Company's first mortgage bonds issued and delivered by the Company
to the Senior Note Trustee. See "Security; Release Date." ON THE RELEASE DATE,
ANY THEN OUTSTANDING SENIOR NOTES (INCLUDING ANY NEW NOTES ISSUED PRIOR TO THE
RELEASE DATE) WILL CEASE TO BE SECURED BY FIRST MORTGAGE BONDS, WILL BECOME
UNSECURED GENERAL OBLIGATIONS OF THE COMPANY AND WILL RANK ON A PARITY WITH
OTHER UNSECURED INDEBTEDNESS OF THE COMPANY. AS OF JANUARY 31, 1998, THERE WERE
OUTSTANDING THREE SERIES OF FIRST MORTGAGE BONDS IN AN AGGREGATE PRINCIPAL
AMOUNT EQUAL TO $87.5 MILLION. The Release Date will occur when all such first
mortgage bonds are retired or redeemed. SENIOR NOTES (INCLUDING NEW NOTES)
ISSUED ON OR AFTER THE RELEASE DATE WILL NOT BE SECURED BY ANY FIRST MORTGAGE
BONDS AND WILL BE UNSECURED GENERAL OBLIGATIONS OF THE COMPANY. The Prospectus
Supplement applicable to each series of Offered Notes will specify whether such
Offered Notes will be secured or unsecured. As of December 31, 1997, the Company
had issued four series of Senior Notes in the aggregate principal amount of $470
million (the "Prior Senior Notes"). The Senior Note Indenture provides that, in
addition to the New Notes offered hereby, additional Senior Notes may be issued
thereunder, without limitation as to aggregate principal amount, provided that,
prior to the Release Date, the amount of Senior Notes that may be issued and
outstanding cannot exceed the amount of first mortgage bonds that the Company is
able to issue under its First Mortgage Indenture. See "FIRST MORTGAGE BONDS AND
FIRST MORTGAGE INDENTURE--Issuance of Additional Bonds." At December 31, 1997,
the Company could issue more than $1.1 billion of additional first mortgage
bonds at an assumed 7.60% interest rate.
There is no requirement under the Senior Note Indenture that future issues
of debt securities of the Company be issued under the Senior Note Indenture, and
the Company will be free to employ other indentures or documentation, containing
provisions different from those included in the Senior Note Indenture or
applicable to one or more issues of Senior Notes (including the New Notes), in
connection with future issues of such other debt securities.
The Senior Note Indenture provides that the New Notes will be issued in one
or more series, may be issued at various times, may have differing maturity
dates and may bear interest at differing rates. The Prospectus Supplement
applicable to each issue of Offered Notes will specify: (1) the designation and
aggregate principal amount of such Offered Notes; (2) the date on which such
Offered Notes will mature; (3) the interest rate or rates, or method of
calculation of such rate or rates, on such Offered Notes, and the date from
which such interest shall accrue; (4) the dates on which such interest will be
payable; (5) the record dates for payments of interest; (6) any redemption
terms; (7) the period or periods within which, the price or prices at which and
the terms and conditions upon which such Offered Notes may be repaid, in whole
or in part, at the option of the holder thereof; and (8) other specific terms
applicable to such Offered Notes, including whether such Offered Notes will be
secured or unsecured. Unless otherwise indicated in the applicable Prospectus
Supplement, the New Notes will be denominated in United States currency in
minimum denominations of $1,000 and integral multiples thereof.
Unless otherwise indicated in the applicable Prospectus Supplement, there
are no provisions in the Senior Note Indenture or the New Notes that require the
Company to redeem, or permit the holders to cause a redemption of, the New Notes
or that otherwise protect the holders in the event that the Company incurs
substantial additional indebtedness, whether or not in connection with a change
in control of the Company. However, any change in control transaction that
involves the incurrence of additional long-term indebtedness (as notes, first
mortgage bonds or otherwise) by the Company in such a transaction would require
approval of state utility regulatory authorities and, possibly, of federal
utility regulatory authorities. Management believes that such approvals would be
unlikely in any transaction that would result in the Company, or a successor to
the Company, having a highly leveraged capital structure.
5
<PAGE>
REGISTRATION, TRANSFER AND EXCHANGE
New Notes of any series will be exchangeable for other New Notes of the same
series of any authorized denominations and of a like aggregate principal amount
and tenor. (Section 2.06)
Unless otherwise indicated in the applicable Prospectus Supplement, New
Notes may be presented for registration of transfer (duly endorsed or
accompanied by a duly executed written instrument of transfer), at the office of
the Senior Note Trustee and maintained for such purpose with respect to any
series of New Notes and referred to in the applicable Prospectus Supplement,
without service charge and upon payment of any taxes and other governmental
charges as described in the Senior Note Indenture. Such transfer or exchange
will be effected upon the Senior Note Trustee being satisfied with the documents
of title and indemnity of the person making the request. (Sections 2.06 and
2.07)
In the event of any redemption of New Notes of any series, the Senior Note
Trustee will not be required to exchange or register a transfer of any New Notes
of such series selected, called or being called for redemption except, in the
case of any New Note to be redeemed in part, the portion thereof not to be so
redeemed. (Section 2.06) See "BOOK-ENTRY SYSTEM."
PAYMENT AND PAYING AGENTS
Principal of and interest and premium, if any, on New Notes issued in the
form of Global Securities will be paid in the manner described below under the
caption "BOOK-ENTRY SYSTEM." Unless otherwise indicated in the applicable
Prospectus Supplement, interest on New Notes that are in the form of
certificated securities will be paid by check to the person entitled thereto as
such person's name appears in the register for the New Notes maintained by the
Senior Note Trustee; however, a holder of Senior Notes of one or more series
under the Senior Note Indenture in the aggregate principal amount of $10,000,000
or more having the same interest payment dates will be entitled to receive
payments of interest on such series by wire transfer of immediately available
funds to a bank within the continental United States if appropriate wire
transfer instructions have been received by the Senior Note Trustee on or prior
to the applicable regular record date. (Section 2.12) Unless otherwise indicated
in the applicable Prospectus Supplement, the principal of, and interest at
maturity or redemption and premium, if any, on New Notes in the form of
certificated securities will be payable in immediately available funds at the
office of the Senior Note Trustee. (Section 2.12)
All monies paid by the Company to a paying agent for the payment of
principal of, interest or premium, if any, on any New Note which remain
unclaimed at the end of two years after such principal, interest or premium
shall have become due and payable will be repaid to the Company and the holder
of such New Note will thereafter look only to the Company for payment thereof.
(Section 5.04)
SECURITY; RELEASE DATE
Until the Release Date, the Senior Notes (including any New Notes issued
prior thereto) will be secured by one or more series of the Company's first
mortgage bonds ("Senior Note Mortgage Bonds") issued and delivered by the
Company to the Senior Note Trustee (see "FIRST MORTGAGE BONDS AND FIRST MORTGAGE
INDENTURE"). Upon the issuance of a series of Senior Notes (including New Notes)
prior to the Release Date, the Company will simultaneously issue and deliver to
the Senior Note Trustee, as security for all Senior Notes, a series of Senior
Note Mortgage Bonds that will have the same stated rate or rates of interest (or
interest calculated in the same manner), interest payment dates, stated maturity
date and redemption provisions, and will be in the same aggregrate principal
amount as the series of the Senior Notes (including New Notes) being issued.
(Section 4.10) Payment by the Company to the Senior Note Trustee of principal
of, premium, if any, and interest on, a series of Senior Note Mortgage Bonds
will be applied by the Senior Note Trustee to satisfy the Company's obligations
with respect to principal of, premium, if any, and interest on, the Senior
Notes. (Section 4.11) SENIOR NOTES (INCLUDING NEW NOTES) ISSUED ON OR AFTER THE
RELEASE DATE WILL NOT BE SECURED BY ANY FIRST MORTGAGE BONDS AND WILL BE
UNSECURED GENERAL OBLIGATIONS OF THE COMPANY.
6
<PAGE>
THE RELEASE DATE WILL BE THE DATE THAT ALL FIRST MORTGAGE BONDS ("FIRST
MORTGAGE BONDS") OF THE COMPANY ISSUED AND OUTSTANDING UNDER THE FIRST MORTGAGE
INDENTURE (HEREINAFTER DEFINED), OTHER THAN SENIOR NOTE MORTGAGE BONDS, HAVE
BEEN RETIRED (AT, BEFORE OR AFTER THE MATURITY THEREOF) THROUGH PAYMENT,
REDEMPTION OR OTHERWISE (INCLUDING THOSE FIRST MORTGAGE BONDS DEEMED TO BE PAID
WITHIN THE MEANING OF THE FIRST MORTGAGE INDENTURE). AS OF JANUARY 31, 1998,
THERE WERE OUTSTANDING THREE SERIES OF FIRST MORTGAGE BONDS OTHER THAN SENIOR
NOTE MORTGAGE BONDS IN AN AGGREGATE PRINCIPAL AMOUNT EQUAL TO $87.5 MILLION. ON
THE RELEASE DATE, THE SENIOR NOTE TRUSTEE WILL DELIVER TO THE COMPANY FOR
CANCELLATION ALL SENIOR NOTE MORTGAGE BONDS AND THE COMPANY WILL CAUSE THE
SENIOR NOTE TRUSTEE TO PROVIDE NOTICE TO ALL HOLDERS OF SENIOR NOTES (INCLUDING
ANY NEW NOTES ISSUED PRIOR TO THE RELEASE DATE) OF THE OCCURRENCE OF THE RELEASE
DATE. AS A RESULT, ON THE RELEASE DATE, THE SENIOR NOTE MORTGAGE BONDS SHALL
CEASE TO SECURE THE SENIOR NOTES (INCLUDING ANY NEW NOTES ISSUED PRIOR TO THE
RELEASE DATE), AND ANY THEN OUTSTANDING SENIOR NOTES (INCLUDING NEW NOTES) WILL
BECOME UNSECURED GENERAL OBLIGATIONS OF THE COMPANY. (Section 4.11) Each series
of Senior Note Mortgage Bonds will be a series of First Mortgage Bonds of the
Company, all of which are secured by a lien on certain property owned by the
Company. In certain circumstances prior to the Release Date, the Company is
permitted to reduce the aggregate principal amount of a series of Senior Note
Mortgage Bonds held by the Senior Note Trustee, but in no event to an amount
lower than the aggregate outstanding principal amount of the series of Senior
Notes initially issued contemporaneously with such Senior Note Mortgage Bonds.
(Section 4.08) Following the Release Date, the Company will cause the First
Mortgage Indenture to be closed and the Company will not issue any additional
First Mortgage Bonds under the First Mortgage Indenture. (Section 4.11) While
the Company will be precluded after the Release Date from issuing additional
First Mortgage Bonds, the Company will not be precluded under the Senior Note
Indenture or New Notes from issuing or assuming other secured debt, or incurring
liens on its property, except to the extent indicated below under "Limitation on
Liens" and except as otherwise indicated in the applicable Prospectus
Supplement.
EVENTS OF DEFAULT
The following constitute events of default under the Senior Note Indenture:
(a) default in the payment of principal of or premium, if any, on any Senior
Note when due and payable and continuance of such default for five days; (b)
default in the payment of interest on any Senior Note when due which continues
for 30 days; (c) default in the performance or breach of any other covenant or
warranty of the Company in the Senior Note Indenture and the continuation
thereof for 90 days after written notice to the Company as provided in the
Senior Note Indenture; (d) prior to the Release Date, the occurrence of a
Completed Default (hereinafter defined) under the First Mortgage Indenture, of
which the First Mortgage Trustee (hereinafter defined), the Company or the
holders of at least 25% in aggregate principal amount of the outstanding Senior
Notes have given written notice thereof to the Senior Note Trustee; and (e)
certain events of bankruptcy, insolvency, assignment or receivership of the
Company. (Section 8.01)
If an event of default occurs and is continuing, either the Senior Note
Trustee or the holders of a majority in aggregate principal amount of the
outstanding Senior Notes may declare the principal amount of all Senior Notes to
be due and payable immediately. Upon such acceleration of the Senior Notes prior
to the Release Date, the Senior Note Trustee is empowered to cause the mandatory
redemption of the Senior Note Mortgage Bonds. At any time after an acceleration
of the Senior Notes has been declared, but before a judgment or decree of the
immediate payment of the principal amount of the Senior Notes has been obtained
and, prior to the Release Date, so long as all First Mortgage Bonds have not
been accelerated, if the Company pays or deposits with the Senior Note Trustee a
sum sufficient to pay all matured installments of interest and the principal and
any premium which has become due otherwise than by acceleration and all defaults
shall have been cured or waived, then such payment or deposit will cause an
automatic rescission and annulment of the acceleration of the Senior Notes.
(Section 8.01)
7
<PAGE>
The Senior Note Indenture provides that the Senior Note Trustee generally
will be under no obligation to exercise any of its rights or powers under the
Senior Note Indenture at the request or direction of any of the holders unless
such holders have offered to the Senior Note Trustee reasonable security or
indemnity. (Section 9.02) The holders of a majority in principal amount of the
outstanding Senior Notes generally will have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Senior Note Trustee, or of exercising any trust or power conferred on the Senior
Note Trustee. (Section 8.07) Each holder of any Senior Note has the right to
institute a proceeding with respect to the Senior Note Indenture, but such right
is subject to certain conditions precedent specified in the Senior Note
Indenture. (Section 8.04) The Senior Note Indenture provides that the Senior
Note Trustee, within 90 days after the occurrence of a default with respect to
the Senior Notes, is required to give the holders of the Senior Notes notice of
such default, unless cured or waived, but, except in the case of default in the
payment of principal of, or premium, if any, or interest on, any Senior Notes,
the Senior Note Trustee may withhold such notice if it determines in good faith
that it is in the interest of such holders to do so. (Section 8.08) The Company
is required to deliver to the Senior Note Trustee each year a certificate as to
whether or not, to the knowledge of the officers signing such certificate, the
Company is in compliance with the conditions and covenants under the Senior Note
Indenture. (Section 6.06)
MODIFICATION
Modification and amendment of the Senior Note Indenture may be effected by
the Company and the Senior Note Trustee with the consent of the holders of a
majority in principal amount of the outstanding Senior Notes affected thereby,
provided that no such modification or amendment may, without the consent of the
holder of each outstanding Senior Note affected thereby, (a) change the maturity
date of any Senior Note; (b) reduce the rate or extend the time of payment of
interest on any Senior Note; (c) reduce the principal amount of, or premium
payable on, any Senior Note; (d) change the coin or currency of any payment of
principal of, or any premium or interest on, any Senior Note; (e) change the
date on which any Senior Note may be redeemed or repaid at the option of the
holder thereof or adversely affect the rights of a holder to institute suit for
the enforcement of any payment on or with respect to any Senior Note; (f) impair
the interest of the Senior Note Trustee in the Senior Note Mortgage Bonds held
by it or, prior to the Release Date, reduce the principal amount of any series
of Senior Note Mortgage Bonds securing the Senior Notes to an amount less than
the principal amount of the related series of Senior Notes or alter the payment
provisions of such Senior Note Mortgage Bonds in a manner adverse to the holders
of the Senior Notes; or (g) modify the foregoing requirements or reduce the
percentage of outstanding Senior Notes necessary to modify or amend the Senior
Note Indenture or to waive any past default to less than a majority.
Modification and amendment of the Senior Note Indenture may be effected by the
Company and the Senior Note Trustee without the consent of the holders (a) to
add to the covenants of the Company for the benefit of the holders or to
surrender a right conferred on the Company in the Senior Note Indenture; (b) to
add further security for the Senior Notes; or (c) to make certain other
modifications, generally of a ministerial or immaterial nature. (Sections 13.01
and 13.02)
DEFEASANCE AND DISCHARGE
The Senior Note Indenture provides that the Company will be discharged from
any and all obligations in respect to the Senior Notes and the Senior Note
Indenture (except for certain obligations such as obligations to register the
transfer or exchange of Senior Notes, replace stolen, lost or mutilated Senior
Notes and maintain paying agencies) if, among other things, the Company
irrevocably deposits with the Senior Note Trustee, in trust for the benefit of
holders of Senior Notes, money or certain United States government obligations,
or any combination thereof, which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money in an amount
sufficient, without reinvestment, to make all payments of principal of, and any
premium and interest on, the Senior Notes on the dates such payments are due in
accordance with the terms of the Senior Note Indenture and the Senior Notes;
provided that, unless all of the Senior Notes are to be due within 90 days of
such deposit by redemption or otherwise, the Company shall also have delivered
to the Senior Note Trustee an opinion of
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counsel to the effect that the holders of the Senior Notes will not recognize
income, gain or loss for federal income tax purposes as a result of such
defeasance or discharge of the Senior Note Indenture. Thereafter, the holders of
Senior Notes must look only to such deposit for payment of the principal of, and
interest and any premium on, the Senior Notes. (Section 5.01)
CONSOLIDATION, MERGER AND SALE OR DISPOSITION OF ASSETS
The Company will not consolidate with or merge into any other corporation or
sell, transfer or otherwise dispose of all or substantially all of its assets
unless the successor or transferee corporation assumes by supplemental indenture
the due and punctual payment of the principal of and premium and interest on all
the Senior Notes and the performance of every covenant of the Senior Note
Indenture to be performed or observed by the Company and, prior to the Release
Date, unless the successor or transferee corporation assumes the Company's
obligations under the First Mortgage Indenture with respect to the Senior Note
Mortgage Bonds. Upon any such consolidation, merger, sale, transfer or other
disposition of all or substantially all of the assets of the Company, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under the Senior
Note Indenture with the same effect as if such successor corporation had been
named as the Company therein and the Company will be released from all
obligations under the Senior Note Indenture. The Senior Note Indenture defines
all or substantially all of the assets of the Company as being 50% or more of
the total assets of the Company as shown on the balance sheet of the Company as
of the end of the prior year and specifically permits any such sale, transfer or
other disposition during a calendar year of less than 50% of total assets
without the consent of the holders of the Senior Notes. (Sections 12.01 and
12.02)
LIMITATIONS ON LIENS
Unless otherwise specified in the applicable Prospectus Supplement with
respect to any series of Offered Notes, the related supplemental indenture will
provide that, from and after the Release Date and so long as any such Offered
Notes are outstanding, the Company may not issue, assume or guarantee any debt
for money borrowed ("Debt") that is secured by any mortgage, security interest,
pledge or lien ("mortgage") of or upon any Operating Property of the Company,
whether owned at the date of the Senior Note Indenture or thereafter acquired,
and will not permit to exist any Debt secured by any such mortgage created on or
prior to the Release Date, without in any case effectively securing the Offered
Notes and all series of Senior Notes issued prior to or contemporaneously with
such Offered Notes (together with, if the Company shall so determine, any other
Senior Notes or indebtedness of the Company ranking senior to, or equally with,
the Senior Notes) with such Debt equally and ratably, except that this
restriction will not apply to: (1) mortgages on any property existing at the
time of its acquisition; (2) mortgages on property of a corporation existing at
the time such corporation is merged into or consolidated with, or disposes of
substantially all its properties (or those of a division) to, the Company; (3)
mortgages to secure the cost of acquisition, construction, development or
substantial repair, alteration or improvement of 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) mortgages in favor of the United States of America or any
State thereof, or for the benefit of holders of securities issued by any such
entity, or any department, agency or instrumentality or political subdivision of
the United States of America or any State thereof, 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 clauses (1)
through (4), 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,
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renewal or replacement, so secured at the time of such extension, renewal or
replacement. However, the foregoing restriction does not apply to the issuance,
assumption or guarantee by the Company of Debt secured by a mortgage which would
otherwise be subject to the foregoing restrictions up to an aggregate amount
which, together with all other secured Debt of the Company (not including
secured Debt permitted under the foregoing exceptions) and the Value (as defined
below) of Sale and Lease-Back Transactions (as defined below) existing at such
time (other than Sale and Lease-Back Transactions the proceeds of which have
been applied to the retirement of certain indebtedness, Sale and Lease-Back
Transactions in which the property involved would have been permitted to be
mortgaged under the foregoing exceptions and Sale and Lease-Back Transactions
that are permitted by the first sentence of "Limitations on Sale and Lease-Back
Transactions" below), does not exceed the greater of 10% of Net Tangible Assets
(as defined below) or 10% of Capitalization (as defined below). (Section 3.01 of
Form of Supplemental Indenture). The supplemental indentures relating to the
Prior Senior Notes contain a covenant with respect to limitations on liens
substantively identical to the foregoing for the benefit of the Prior Senior
Notes. (Section 4.01 of Supplemental Indenture No. 1 and Section 4.01 of
Supplemental Indenture No. 2).
LIMITATIONS ON SALE AND LEASE-BACK TRANSACTIONS
Unless otherwise specified in the applicable Prospectus Supplement with
respect to any series of Offered Notes, the related supplemental indenture will
provide that, from and after the Release Date and for so long as such Offered
Notes are outstanding, the Company may 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 (except in each case, for
transactions involving leases for a term, including renewals, of not more than
48 months), if the purchaser's commitment is obtained more than 18 months after
the later of the completion of the acquisition or the placing in operation of
such Operating Property or of such Operating Property as constructed or
developed or substantially repaired, altered or improved. This restriction will
not apply if (a) the Company would be entitled pursuant to the provisions
described in the first sentence under "Limitations on Liens" above to issue,
assume or guarantee Debt secured by a mortgage on such Operating Property
without equally and ratably securing the Offered Notes and all series of Senior
Notes issued prior to or contemporaneously with such Offered Notes, (b) after
giving effect to such Sale and Lease-Back Transaction, the Company could incur
pursuant to the provisions described in the second sentence under "Limitations
on Liens," additional Debt secured by mortgages, or (c) the Company applies
within 180 days an amount equal to, in the case of a sale or transfer for cash,
the net proceeds (not exceeding the net book value), and, otherwise, an amount
equal to the fair value (as determined by its Board of Directors) of the
Operating Property so leased to the retirement of Senior Notes or other Debt of
the Company ranking senior to, or equally with, the Senior Notes, subject to
reduction for Senior Notes and such Debt retired during such 180-day period
otherwise than pursuant to mandatory sinking fund or prepayment provisions and
payments at stated maturity. (Section 3.02 of Form of Supplemental Indenture).
The supplemental indentures relating to the Prior Senior Notes contain a
covenant with respect to limitations on Sale and Lease-Back Transactions
substantively identical to the foregoing for the benefit of the Prior Senior
Notes. (Section 4.02 of Supplemental Indenture No. 1 and Section 4.02 of
Supplemental Indenture No. 2).
DEFINITIONS
"Capitalization" means the total of all the following items appearing on, or
included in, the balance sheet of the Company: (i) liabilities for indebtedness
maturing more than 12 months from the date of determination; and (ii) common
stock, preferred stock, premium on capital stock, capital surplus, capital in
excess of par value, and retained earnings, less to the extent not otherwise
deducted, the cost of shares of capital stock of the Company held in its
treasury.
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"Net Tangible Assets" means the amount shown as total assets on the balance
sheet of the Company, less the following: (i) 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 (ii) appropriate adjustments, if any, on account of minority interests.
"Operating Property" means (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" means 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" means, with respect to a Sale and Lease-Back Transaction, as of any
particular time, the amount equal to the greater of (i) the net proceeds to the
Company from the sale or transfer of the property leased pursuant to such Sale
and Lease-Back Transaction or (ii) 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 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. (Section 3.03 of Form of Supplemental Indenture)
VOTING OF SENIOR NOTE MORTGAGE BONDS HELD BY SENIOR NOTE TRUSTEE
Prior to the Release Date, the Senior Note Trustee, as a holder of Senior
Note Mortgage Bonds, will attend any meeting of bondholders under the First
Mortgage Indenture as to which it receives due notice, or, at its option, will
deliver its proxy in connection therewith. Either at such meeting, or otherwise
where the consent of holders of first mortgage bonds issued under the First
Mortgage Indenture is sought without a meeting, the Senior Note Trustee will
vote all of the Senior Note Mortgage Bonds held by it, or will consent or
withhold its consent with respect thereto, as directed by the holders of a
majority in aggregate principal amount of the outstanding Senior Notes;
provided, however, the Senior Note Trustee may not vote the Senior Note Mortgage
Bonds of any particular series in favor of, or give consent to, any action
which, in the Senior Note Trustee's opinion, would materially adversely affect
such series of Senior Note Mortgage Bonds in a manner not shared generally by
all other Senior Note Mortgage Bonds, except upon notification by the Senior
Note Trustee to the holders of the related series of Senior Notes of such
proposal and consent thereto of the holders of a majority in principal amount of
the outstanding Senior Notes of such series. (Section 4.03)
RESIGNATION OR REMOVAL OF NOTE TRUSTEE
The Senior Note Trustee may resign at any time upon written notice to the
Company specifying the day upon which the resignation is to take effect and such
resignation will take effect immediately upon the later of the appointment of a
successor Senior Note Trustee and such specified day. (Section 9.10)
The Senior Note Trustee may be removed at any time by an instrument or
concurrent instruments in writing filed with the Senior Note Trustee and signed
by the holders, or their attorneys-in-fact, of at least a majority in principal
amount of the then outstanding Senior Notes. In addition, so long as no event of
default or event which, with the giving of notice or lapse of time or both,
would become an event of default has occurred and is continuing, the Company may
remove the Senior Note Trustee upon notice to the holder of each Senior Note
outstanding and the Senior Note Trustee, and appointment of a successor Senior
Note Trustee. (Section 9.10)
CONCERNING THE SENIOR NOTE TRUSTEE
The Bank of New York is the Senior Note Trustee under the Senior Note
Indenture. The Company maintains banking relationships with the Senior Note
Trustee in the ordinary course of business. The Senior Note Trustee also acts as
trustee for the Company's First Mortgage Bonds and as issuing and paying agent
for medium-term notes of Enogex.
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FIRST MORTGAGE BONDS AND FIRST MORTGAGE INDENTURE
GENERAL
Any series of Senior Note Mortgage Bonds issued as security for Senior Notes
prior to the Release Date will be a series of First Mortgage Bonds issued under
the Trust Indenture dated February 1, 1945 as heretofore supplemented and
amended by supplemental trust indentures and a new supplemental trust indenture
for such series of Senior Note Mortgage Bonds (the "New Supplemental
Indenture"), all from the Company to The Bank of New York, as successor Trustee
(the "First Mortgage Trustee") to Boatmen's First National Bank of Oklahoma and
to the First National Bank and Trust Company of Oklahoma City (such Trust
Indenture, as supplemented and as to be supplemented, is herein referred to as
the "First Mortgage Indenture"). Copies of the First Mortgage Indenture, the
supplemental indentures and the form of the New Supplemental Indenture are filed
as exhibits to the Registration Statement of which this Prospectus is a part.
The following summaries of certain provisions of the First Mortgage Indenture do
not purport to be complete and are subject to, and qualified in their entirety
by, the detailed provisions of the First Mortgage Indenture which are
incorporated herein by this reference. References to Article and Section numbers
under this caption are references to Article and Section numbers of the First
Mortgage Indenture unless otherwise indicated. Unless the context indicates
otherwise, words or phrases defined in the First Mortgage Indenture are
capitalized and used with the same meanings herein. As of January 31, 1998,
seven series of First Mortgage Bonds in an aggregate principal amount of $557.5
million were outstanding under the First Mortgage Indenture, including four
series of Senior Note Mortgage Bonds in an aggregate principal amount of $470
million issued as security for the Prior Senior Notes.
TERMS OF SENIOR NOTE MORTGAGE BONDS
Prior to the Release Date and upon the issuance of a series of Senior Notes
(including New Notes), a series of Senior Note Mortgage Bonds will be issued and
delivered to the Senior Note Trustee in an aggregate principal amount equal to
the aggregate principal amount of such series of Senior Notes and with the same
stated rate or rates of interest (or interest calculated in the same manner),
interest payment dates, stated maturity date and redemption provisions as such
series of Senior Notes. The Company's obligations to make payments with respect
to the principal of, premium, if any, and/or interest on a series of Senior Note
Mortgage Bonds shall be fully or partially, as the case may be, discharged to
the extent that, at the time that any such payment shall be due, the then due
principal of, premium, if any, and/or interest on the related series of Senior
Notes shall have been fully or partially paid or there shall have been deposited
with the Senior Note Trustee pursuant to the Senior Note Indenture sufficient
funds to fully or partially pay the then due principal, premium, if any, and/or
interest on such series of Senior Notes.
SECURITY FOR SENIOR NOTE MORTGAGE BONDS
In the opinions of counsel for the Company, the Senior Note Mortgage Bonds,
if and when issued, will be secured by the First Mortgage Indenture, which
constitutes a first mortgage lien, subject only to Permissible Encumbrances,
upon all the property of the Company (except as summarized in the following
paragraph) for the equal pro rata security of each series of First Mortgage
Bonds, subject to the provisions related to any sinking fund or similar fund for
the benefit of First Mortgage Bonds of any particular series. The opinion does
not cover title to easements or rights-of-way as counsel believes the expense of
examination would exceed the cost of acquiring, by condemnation or purchase, any
easements or rights-of-way held under defective titles.
There are excepted from the lien of the First Mortgage Indenture certain
securities, cash, contracts, receivables, motor vehicles, merchandise, equipment
and supplies, and certain non-utility real property. (Granting Clause of the
First Mortgage Indenture).
The First Mortgage Indenture contains provisions for subjecting to the lien
thereof (subject to the limitations in Article XV in the case of consolidation
or merger) all property acquired by the Company after the date of the First
Mortgage Indenture other than property of the kind mentioned in the preceding
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paragraph. (Granting Clause of the First Mortgage Indenture) Such provisions
might not be effective as to property acquired within the 90-day period
immediately preceding or acquired subsequent to the filing of a case with
respect to the Company under the United States Bankruptcy Code.
MAINTENANCE PROVISIONS
As a Maintenance Fund for the First Mortgage Bonds, the Company covenants to
pay to the First Mortgage Trustee annually on May 1 an amount equal to 15% of
its Gross Operating Revenues for the preceding calendar year, after deducting
from such revenues (i) cost of electricity purchased for resale and (ii) rentals
paid for utility property, less credits at the Company's option for (a)
maintenance, (b) property retirements offset by Permanent Additions, (c)
retirements of First Mortgage Bonds, (d) Amounts of Established Permanent
Additions and (e) 15% of the portion of Gross Operating Revenues during such
calendar year attributable to increases since January 6, 1975, in the Company's
cost of fuel used in electric generation. Withdrawals from the Maintenance Fund
may be made on the basis of retirements of First Mortgage Bonds and Amounts of
Established Permanent Additions, but cash in excess of $100,000 remaining on
deposit in the Maintenance Fund for more than two years must be used for the
retirement of First Mortgage Bonds. Any such retirement through redemption would
be at the applicable regular redemption price of the First Mortgage Bonds to be
redeemed and subject to any restriction on the redemption of such First Mortgage
Bonds. (Article IX, Section 3.03 of Supplemental Indenture dated March 1, 1952,
and Section 1.01 of Supplemental Indenture dated September 14, 1976)
The Company has covenanted to maintain its properties in adequate repair,
working order and condition. The First Mortgage Indenture contains provisions
for a periodic inspection of the Company's properties and report by an
independent engineer as to compliance with this covenant. (Section 8.06)
SINKING FUND PROVISIONS
As an annual sinking fund for each series of First Mortgage Bonds, the
Company covenants to pay to the First Mortgage Trustee annually on December 1 an
amount sufficient to redeem, on the following February 1, for sinking fund
purposes, 1 1/4% of the highest principal amount at any time outstanding of
First Mortgage Bonds of the series for which the sinking fund is applicable.
Sinking fund payments may be offset by (a) application of Amounts of Established
Permanent Additions equal to 166 2/3% of the principal amount of First Mortgage
Bonds which would otherwise be required to be retired by the sinking fund and
(b) retirement or delivery to the First Mortgage Trustee of First Mortgage Bonds
of the series for which the sinking fund is applicable. The First Mortgage
Trustee is required to apply sinking fund money to the purchase or redemption of
First Mortgage Bonds of the series for which such funds are applicable. (Article
XII and Section 3.01 of Supplemental Indenture dated February 1, 1980)
ISSUANCE OF ADDITIONAL BONDS
Additional First Mortgage Bonds secured by the First Mortgage Indenture may
be issued on the basis of (a) 60% of the Cost or Fair Value, whichever is less,
of net Permanent Additions (which become available upon proper certification by
the Company), after making the required deductions on account of Retired
Property (Article V); (b) an equal principal amount of retired First Mortgage
Bonds, the retirement whereof has not been otherwise used under the First
Mortgage Indenture (Article VI); and (c) deposit of an equal amount of cash with
the First Mortgage Trustee, which cash may be withdrawn by applying Amounts of
Established Permanent Additions equal to 166 2/3% of such cash to be withdrawn
or by retirement of First Mortgage Bonds. (Article VII and Section 3.04 of
Supplemental Indenture dated March 1, 1952) No additional First Mortgage Bonds
may be issued on basis (a), basis (b) under specified conditions or basis (c),
unless the Earnings Applicable to Bond Interest for a specified twelve-month
period are equal to twice the annual interest requirements on the First Mortgage
Bonds including those about to be issued. (Sections 5.03, 6.01 and 7.01)
Earnings Applicable to Bond Interest for the twelve months ended December 31,
1997, were 5.6 times the annual interest requirement on the First Mortgage Bonds
of the Company. Additional First Mortgage Bonds may vary from the New Bonds as
to maturity,
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interest rate, redemption prices, sinking fund and in certain other respects.
(Article II) Any Senior Note Mortgage Bonds issued will be issued under (a)
and/or (b) above. At December 31, 1997, the amount of net Permanent Additions
which may be used for the issuance of First Mortgage Bonds exceeded $1.2
billion. At December 31, 1997, the amount of retired First Mortgage Bonds which
may be used for the issuance of First Mortgage Bonds was $299 million.
PROVISIONS OF FIRST MORTGAGE INDENTURE LIMITING DIVIDENDS ON COMMON STOCK
The Company covenants that, so long as any First Mortgage Bonds are
outstanding, earned surplus (retained earnings) equal to the sum of (1) the
amount by which the aggregate of (a) provisions for retirement and depreciation
and (b) expenditures for maintenance, during the period from June 1, 1955, to
the last date for which a statement of income is available, is less than 15% of
Gross Operating Revenues (after deducting cost of electricity and/or gas
purchased for resale, rentals paid for utility property and the portion of gross
operating revenues attributable to increases since January 6, 1975, in the
Company's cost of fuel used in electric generation) for that period and (2) the
amount, if any, by which all of the consideration paid by the Company in
acquiring any shares of its Common Stock during the above period exceeds
$217,301,128 plus any consideration received by the Company from the sale after
September 30, 1991 of its Common Stock, shall not be available for the payment
of cash dividends on Common Stock; and that the Company shall not acquire shares
of its Common Stock for a valuable consideration if after such acquisition the
sum of (1) and (2) above would exceed its then earned surplus (retained
earnings). (Section 3.01 of Supplemental Indenture dated January 1, 1957,
Section 1.01 of Supplemental Indenture dated September 14, 1976 and Section 1.01
of Supplemental Indenture dated December 9, 1991)
RELEASE PROVISIONS
The First Mortgage Indenture contains provisions permitting the release from
its lien of any property upon depositing or pledging cash or certain other
property of comparable Fair Value (Fair Value being defined in substance as the
current value of the property as certified by an engineer, appraiser or similar
expert). The First Mortgage Indenture also contains provisions for the
cancellation, change or alteration of leases, rights-of-way and easements, and
for the surrender and modification of any franchise or governmental consent
subject to certain restrictions, in each case without any release or consent by
the First Mortgage Trustee or accountability thereto for any consideration
received by the Company. (Article XI)
MODIFICATION OF THE FIRST MORTGAGE INDENTURE
With the consent of the Company, the provisions of the First Mortgage
Indenture may be changed by the affirmative vote of the holders of 70% in
principal amount of the First Mortgage Bonds then outstanding except, among
other things, the maturity of a First Mortgage Bond may not be extended, the
interest rate reduced nor the terms of payment of principal or interest changed
without the consent of the holder of such First Mortgage Bond. (Article XVIII)
CONCERNING THE FIRST MORTGAGE TRUSTEE
The Bank of New York is the First Mortgage Trustee under the First Mortgage
Indenture. The Company maintains banking relationships in the ordinary course of
business with the First Mortgage Trustee. The First Mortgage Trustee also serves
as trustee for the Senior Notes and as issuing and paying agent for medium-term
notes of Enogex.
In case of a Completed Default under the First Mortgage Indenture (see
"--Events of Default" below), the First Mortgage Trustee may, and upon request
of the holders of a majority in principal amount of the First Mortgage Bonds
shall, declare the First Mortgage Bonds due and payable. In case of a Completed
Default, it is obligatory upon the First Mortgage Trustee to take the action or
actions provided in the First Mortgage Indenture to enforce payment of the First
Mortgage Bonds and for the enforcement of the lien of the First Mortgage
Indenture upon being requested to do so by the holders of a majority in
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principal amount of the First Mortgage Bonds and upon being indemnified against
the costs, expenses and liabilities to be incurred therein or thereby without
negligence or bad faith. (Sections 13.01, 13.04 and 13.15)
EVENTS OF DEFAULT
The following is a summary of events defined in the First Mortgage Indenture
as "Completed Defaults": (a) failure to pay principal of any First Mortgage Bond
when due and payable, (b) failure to pay interest on any First Mortgage Bond
within 30 days after it becomes due and payable, (c) failure to meet any payment
to the sinking fund on any First Mortgage Bond within 10 days after same is
payable, (d) the expiration of 30 days after (1) the adjudication of the Company
as a bankrupt or (2) the entry of an order approving a petition filed against
the Company seeking reorganization of the Company, unless during such period
such adjudication or order shall be vacated, (e) the expiration of 90 days
following the appointment of a receiver unless during such period such
appointment shall be vacated, (f) the filing by the Company of a voluntary
petition in bankruptcy or the making of a general assignment for the benefit of
creditors or the consent by the Company to the appointment of a receiver or the
filing by the Company of a petition or answer seeking reorganization or the
filing by the Company of a petition to take advantage of any insolvency act and
(g) failure to perform any other covenant or agreement contained in the First
Mortgage Indenture or First Mortgage Bonds within 60 days following the mailing
by the First Mortgage Trustee or by the holders of at least 15% in principal
amount of the First Mortgage Bonds then Outstanding of a written demand that
such failure be cured. (Section 13.01 and Section 4.01 of Supplemental Indenture
dated February 1, 1980)
The First Mortgage Trustee is required to give notice to bondholders (1)
within 90 days after the occurrence of a default known to the First Mortgage
Trustee within such period, or (2) if a default be not known to the First
Mortgage Trustee within such period, within 30 days after such default shall be
known to the First Mortgage Trustee, unless such default shall have been cured
before the giving of such notice; provided that, except in the case of a default
resulting from the failure to make any payment of principal of or interest on
any First Mortgage Bonds or to make any sinking fund or purchase fund payment,
the First Mortgage Trustee may withhold such notice upon determination in good
faith by the board of directors, the executive committee or a trust committee of
directors and/or responsible officers of the First Mortgage Trustee that the
withholding of such notice is in the interest of the bondholders. (Section
16.07)
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BOOK-ENTRY SYSTEM
Each series of New Notes may be issued in the form of one or more Global
Securities representing all or part of such series of New Notes and which will
be deposited with or on behalf of the Depository and registered in the name of
the Depository or a nominee of the Depository.
The following is based solely on information furnished by DTC:
Unless otherwise specified in the applicable Prospectus Supplement, DTC will
act as Depository for those New Notes issued as Global Securities. The Global
Securities will be issued as fully-registered securities registered in the name
of Cede & Co. (DTC's partnership nominee). DTC is a limited-purpose trust
company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code, and a "clearing agency" registered pursuant to the provisions
of Section 17A of the Exchange Act. DTC holds securities that its participants
("Participants") deposit with DTC. DTC also facilitates the settlement among
Participants of securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry changes in
Participants' accounts, thereby eliminating the need for physical movement of
securities certificates. "Direct Participants" include securities brokers and
dealers, banks, trust companies, clearing corporations, and certain other
organizations. DTC is owned by a number of its Direct Participants and by the
New York Stock Exchange, Inc., the American Stock Exchange, Inc., and the
National Association of Securities Dealers, Inc. Access to the DTC system is
also available to others such as securities brokers and dealers, banks, and
trust companies that clear through or maintain a custodial relationship with a
Direct Participant, either directly or indirectly ("Indirect Participants"). The
rules applicable to DTC and its Participants are on file with the Commission.
Purchases of New Notes under the DTC system must be made by or through
Direct Participants, which will receive a credit for the New Notes on DTC's
records. The ownership interest of each actual purchaser of each New Note
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmation providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the New Notes are to be accomplished by entries made on the books
of Participants acting on behalf of Beneficial Owners. Beneficial Owners will
not receive certificates representing their ownership interests in the New
Notes, except in the event that use of the book-entry system for the New Notes
is discontinued.
To facilitate subsequent transfers, all New Notes deposited by Participants
with DTC are registered in the name of DTC's partnership nominee, Cede & Co. The
deposit of the New Notes with DTC and their registration in the name of Cede &
Co. effect no change in beneficial ownership. DTC has no knowledge of the actual
Beneficial Owners of the New Notes so deposited; DTC's records reflect only the
identity of the Direct Participants to whose accounts such New Notes are
credited, which may or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of the holdings on behalf of their
customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants or Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
If the Global Securities are redeemable, redemption notices shall be sent to
Cede & Co. If less than all of the Global Securities are being redeemed, DTC's
practice is to determine by lot the amount of the interest of each Direct
Participant in such issue to be redeemed.
Neither DTC nor Cede & Co. will consent or vote with respect to the New
Notes. Under its usual procedures, DTC mails an Omnibus Proxy to the Company as
soon as possible after the record date. The
16
<PAGE>
Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the New Notes are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
Principal, interest and any premium payments on the New Notes will be made
to DTC. DTC's practice is to credit Direct Participants' accounts on the payable
date in accordance with their respective holdings shown on DTC's records unless
DTC has reason to believe that it will not receive payment on such payable date.
Payments by Participants to Beneficial Owners will be governed by standing
instructions and customary practices, as in the case with securities held for
the accounts of customers in bearer form or registered in "street name," and
will be the responsibility of such Participant and not of DTC, the Senior Note
Trustee or the Company, subject to any statutory or regulatory requirements as
may be in effect from time to time. Payment of principal, interest and any
premium to DTC is the responsibility of the Company or the Senior Note Trustee,
disbursement of such payments to Direct Participants shall be the responsibility
of DTC, and disbursement of such payments to the Beneficial Owners shall be the
responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository with
respect to a series of New Notes at any time by giving reasonable notice to the
Company or the Senior Note Trustee. Under such circumstances, if a successor
securities depository is not obtained, certificates for such series of New Notes
are required to be printed and delivered.
The Company may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository) for any series of
New Notes. In that event, certificates for such series of New Notes will be
printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from DTC, and the Company and any underwriters, dealers or
agents take no responsibility for the accuracy thereof.
The underwriters, dealers or agents of any Offered Notes may be Direct
Participants of DTC.
NONE OF THE COMPANY, THE SENIOR NOTE TRUSTEE, THE FIRST MORTGAGE TRUSTEE, OR
ANY AGENT FOR PAYMENT ON OR REGISTRATION OF TRANSFER OR EXCHANGE OF THE GLOBAL
SECURITY WILL HAVE ANY RESPONSIBILITY OR LIABILITY FOR ANY ASPECT OF THE RECORDS
RELATING TO OR PAYMENTS MADE ON ACCOUNT OF BENEFICIAL INTERESTS IN SUCH GLOBAL
SECURITY OR FOR MAINTAINING, SUPERVISING OR REVIEWING ANY RECORDS RELATING TO
SUCH BENEFICIAL INTERESTS.
LEGAL OPINIONS
Legal opinions relating to the New Notes will be rendered by Rainey, Ross,
Rice & Binns, Oklahoma City, Oklahoma, Chisenhall, Nestrud & Julian, P.A.,
Little Rock, Arkansas, and Gardner, Carton & Douglas, Chicago, Illinois, counsel
for the Company, and by Jones, Day, Reavis & Pogue, Chicago, Illinois, counsel
for any underwriters, dealers or agents named in the Prospectus Supplement. As
to matters involving conformity to local laws, the other counsel will rely upon
the opinion of Rainey, Ross, Rice & Binns with respect to laws of Oklahoma and
upon the opinion of Chisenhall, Nestrud & Julian, P.A., with respect to laws of
Arkansas.
The statement contained in this Prospectus under the subcaption "Security
for Senior Note Mortgage Bonds" under the caption "FIRST MORTGAGE BONDS AND
FIRST MORTGAGE INDENTURE" is the opinion of Rainey, Ross, Rice & Binns, counsel
for the Company, to the extent that such statement pertains to Oklahoma law and
is the opinion of Chisenhall, Nestrud & Julian, P.A., to the extent that such
statement pertains to Arkansas law. As of December 31, 1997, attorneys with
Rainey, Ross, Rice & Binns owned beneficial interests in an aggregate of 5,259
shares of Common Stock of OGE Energy, of which Mr. William J. Ross, a partner in
that firm, owned a beneficial interest in 4,659 shares of such Common Stock.
17
<PAGE>
EXPERTS
The consolidated financial statements and schedule of the Company included
in the Company's Form 10-K Annual Report for the fiscal year ended December 31,
1996, to the extent and for the periods indicated in their reports included in
said Form 10-K, have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports with respect thereto, and are
incorporated by reference herein in reliance upon the authority of said firm as
experts in accounting and auditing in giving said reports.
PLAN OF DISTRIBUTION
The New Notes may be sold (i) through underwriters or dealers; (ii) directly
to one or more institutional purchasers; or (iii) through agents. The Prospectus
Supplement with respect to each series of New Notes will set forth the terms of
the offering of such New Notes, including the name or names of any underwriters,
the purchase price of such New Notes and the proceeds to the Company from such
sale, any underwriting discounts and other items constituting underwriters'
compensation, any initial public offering price, any discounts or concessions
allowed or reallowed or paid to dealers and any securities exchanges on which
said New Notes may be listed.
If underwriters are used in the sale, the New Notes will be acquired by the
underwriters for their own account and may be resold from time to time in one or
more transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. The New Notes may be
offered to the public either through underwriting syndicates represented by one
or more managing underwriters or directly by one or more of such firms. The
specific managing underwriter or underwriters, if any, will be set forth in the
Prospectus Supplement relating to the New Notes together with the members of the
underwriting syndicate, if any. Unless otherwise set forth in the applicable
Prospectus Supplement, the obligations of the underwriters to purchase the New
Notes offered thereby will be subject to certain conditions precedent and the
underwriters will be obligated to purchase all such New Notes if any are
purchased.
New Notes may be sold directly by the Company or through agents designated
by the Company from time to time. The Prospectus Supplement will set forth the
name of any agent involved in the offer or sale of the New Notes in respect of
which the Prospectus Supplement is delivered and any commission payable by the
Company to such agent. Unless otherwise indicated in the applicable Prospectus
Supplement, any such agent is acting on a best efforts basis for the period of
its appointment.
Any underwriters, dealers or agents participating in the distribution of the
New Notes may be deemed to be underwriters and any discounts or commissions
received by them on the sale or resale of the New Notes may be deemed to be
underwriting discounts and commissions under the Securities Act of 1933, as
amended. Agents and underwriters may be entitled, under agreements entered into
with the Company, to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act of 1933, as amended,
and to contribution with respect to payments which the agents or underwriters
may be required to make in respect thereof. Agents and underwriters may engage
in transactions with or perform services for the Company in the ordinary course
of business.
Any underwriter of New Notes issued prior to the Release Date may be
required under Oklahoma law to pay a mortgage registration tax in an amount
estimated by the Company to be .096% of the principal amount of New Notes
purchased.
18
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Registration fee under the Securities Act of 1933, as amended............. $ 33,188
State qualification fees and mortgage filing fees......................... 10,000
Authentication of New Notes by trustee.................................... 14,000
Fees of rating agencies................................................... 55,000
Printing and engraving.................................................... 30,000
Accounting services....................................................... 30,000
Legal fees of Company counsel............................................. 50,000
Miscellaneous, including traveling, telephone tolls, stationery, postage
and other out-of-pocket expenses........................................ 7,812
---------
Total................................................................... $ 230,000
---------
---------
</TABLE>
All items are estimated except the first.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 1031 of Title 18 of the Annotated Oklahoma Statutes provides that
the Company may, and in some circumstances must, indemnify the directors and
officers of the Company against liabilities and expenses incurred by any such
person by reason of the fact that such person was serving in such capacity,
subject to certain limitations and conditions set forth in the statute.
Substantially similar provisions that require such indemnification are contained
in the Company's Restated Certificate of Incorporation, which is filed as
Exhibit 4.01 to the Company's Registration Statement No. 33-59805, which is
incorporated herein by this reference. The Company's Restated Certificate of
Incorporation also contains provisions limiting the liability of the Company's
officers and directors in certain instances. The Company has an insurance policy
covering its directors and officers against certain personal liability which may
include liabilities under the Securities Act of 1933, as amended. The form of
Underwriting Agreement filed as Exhibit 1.01 includes provisions requiring the
underwriters to indemnify the directors and officers of the Company in certain
circumstances.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
- -----------
<C> <S>
1.01 Form of Underwriting Agreement for New Notes.
4.01 Copy of Trust Indenture, dated February 1, 1945, from the Company to The First National Bank and Trust
Company of Oklahoma City, Trustee. (Filed as Exhibit 7-A to Registration Statement No. 2-5566 and
incorporated by reference herein)
4.02 Copy of Supplemental Trust Indenture, dated December 1, 1948, being a supplemental instrument to Exhibit
4.01 hereto. (Filed as Exhibit 7.03 to Registration Statement No. 2-7744 and incorporated by reference
herein)
4.03 Copy of Supplemental Trust Indenture, dated June 1, 1949, being a supplemental instrument to Exhibit 4.01
hereto. (Filed as Exhibit 7.03 to Registration Statement No. 2-7964 and incorporated by reference
herein)
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
- -----------
<C> <S>
4.04 Copy of Supplemental Trust Indenture, dated May 1, 1950, being a supplemental instrument to Exhibit 4.01
hereto. (Filed as Exhibit 7.04 to Registration Statement No. 2-8421 and incorporated by reference
herein)
4.05 Copy of Supplemental Trust Indenture, dated March 1, 1952, being a supplemental instrument to Exhibit
4.01 hereto. (Filed as Exhibit 4.08 to Registration Statement No. 2-9415 and incorporated by reference
herein)
4.06 Copy of Supplemental Trust Indenture, dated June 1, 1955, being a supplemental instrument to Exhibit 4.01
hereto. (Filed as Exhibit 4.07 to Registration Statement No. 2-12274 and incorporated by reference
herein)
4.07 Copy of Supplemental Trust Indenture, dated January 1, 1957, being a supplemental instrument to Exhibit
4.01 hereto. (Filed as Exhibit 2.07 to Registration Statement No. 2-14115 and incorporated by reference
herein)
4.08 Copy of Supplemental Trust Indenture, dated June 1, 1958, being a supplemental instrument to Exhibit 4.01
hereto. (Filed as Exhibit 4.09 to Registration Statement No. 2-19757 and incorporated by reference
herein)
4.09 Copy of Supplemental Trust Indenture, dated March 1, 1963, being a supplemental instrument to Exhibit
4.01 hereto. (Filed as Exhibit 2.09 to Registration Statement No. 2-23127 and incorporated by reference
herein)
4.10 Copy of Supplemental Trust Indenture, dated March 1, 1965, being a supplemental instrument to Exhibit
4.01 hereto. (Filed as Exhibit 4.10 to Registration Statement No. 2-25808 and incorporated by reference
herein)
4.11 Copy of Supplemental Trust Indenture, dated January 1, 1967, being a supplemental instrument to Exhibit
4.01 hereto. (Filed as Exhibit 2.11 to Registration Statement No. 2-27854 and incorporated by reference
herein)
4.12 Copy of Supplemental Trust Indenture, dated January 1, 1968, being a supplemental instrument to Exhibit
4.01 hereto. (Filed as Exhibit 2.12 to Registration Statement No. 2-31010 and incorporated by reference
herein)
4.13 Copy of Supplemental Trust Indenture, dated January 1, 1969, being a supplemental instrument to Exhibit
4.01 hereto. (Filed as Exhibit 2.13 to Registration Statement No. 2-35419 and incorporated by reference
herein)
4.14 Copy of Supplemental Trust Indenture, dated January 1, 1970, being a supplemental instrument to Exhibit
4.01 hereto. (Filed as Exhibit 2.14 to Registration Statement No. 2-42393 and incorporated by reference
herein)
4.15 Copy of Supplemental Trust Indenture, dated January 1, 1972, being a supplemental instrument to Exhibit
4.01 hereto. (Filed as Exhibit 2.15 to Registration Statement No. 2-49612 and incorporated by reference
herein)
4.16 Copy of Supplemental Trust Indenture, dated January 1, 1974, being a supplemental instrument to Exhibit
4.01 hereto. (Filed as Exhibit 2.16 to Registration Statement No. 2-52417 and incorporated by reference
herein)
4.17 Copy of Supplemental Trust Indenture, dated January 1, 1975, being a supplemental instrument to Exhibit
4.01 hereto. (Filed as Exhibit 2.17 to Registration Statement No. 2-55085 and incorporated by reference
herein)
4.18 Copy of Supplemental Trust Indenture, dated January 1, 1976, being a supplemental instrument to Exhibit
4.01 hereto. (Filed as Exhibit 2.18 to Registration Statement No. 2-57730 and incorporated by reference
herein)
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
- -----------
<C> <S>
4.19 Copy of Supplemental Trust Indenture, dated September 14, 1976, being a supplemental instrument to
Exhibit 4.01 hereto. (Filed as Exhibit 2.19 to Registration Statement No. 2-59887 and incorporated by
reference herein)
4.20 Copy of Supplemental Trust Indenture, dated January 1, 1977, being a supplemental instrument to Exhibit
4.01 hereto. (Filed as Exhibit 2.20 to Registration Statement No. 2-59887 and incorporated by reference
herein)
4.21 Copy of Supplemental Trust Indenture, dated November 1, 1977, being a supplemental instrument to Exhibit
4.01 hereto. (Filed as Exhibit 4.21 to Registration Statement No. 2-70539 and incorporated by reference
herein)
4.22 Copy of Supplemental Trust Indenture, dated December 1, 1977, being a supplemental instrument to Exhibit
4.01 hereto. (Filed as Exhibit 4.22 to Registration Statement No. 2-70539 and incorporated by reference
herein)
4.23 Copy of Supplemental Trust Indenture, dated February 1, 1980, being a supplemental instrument to Exhibit
4.01 hereto. (Filed as Exhibit 4.23 to Registration Statement No. 2-70539 and incorporated by reference
herein)
4.24 Copy of Supplemental Trust Indenture, dated August 15, 1986, being a supplemental instrument to Exhibit
4.01 hereto. (Filed as Exhibit 4.25 to the Company's Form 10-K Annual Report, File No. 1-1097, for the
year ended December 31, 1986, and incorporated by reference herein)
4.25 Copy of Supplemental Trust Indenture, dated March 1, 1987, being a supplemental instrument to Exhibit
4.01 hereto. (Filed as Exhibit 4.26 to the Company's Form 10-K Annual Report, File No. 1-1097, for the
year ended December 31, 1987, and incorporated by reference herein)
4.26 Copy of Supplemental Trust Indenture, dated November 15, 1990, being a supplemental instrument to Exhibit
4.01 hereto. (Filed as Exhibit 4.28 to the Company's Form 10-K Annual Report for the year ended
December 31, 1990, File No. 1-1097, and incorporated by reference herein)
4.27 Copy of Supplemental Trust Indenture, dated December 9, 1991, being a supplemental instrument to Exhibit
4.01 hereto. (Filed as Exhibit 4.29 to the Company's Form 10-K Annual Report for the year ended
December 31, 1991, File No. 1-1097, and incorporated by reference herein)
4.28 Copy of Supplemental Trust Indenture, dated October 1, 1995, being a supplemental instrument to Exhibit
4.01 hereto. (Filed as Exhibit 4.02 to the Company's Form 8-K Current Report, File No. 1-1097, dated
October 23, 1995, and incorporated by reference herein)
4.29 Copy of Supplemental Trust Indenture, dated July 1, 1997, being a supplemental instrument to Exhibit 4.01
hereto. (Filed as Exhibit 4.02 to the Company's Form 8-K Current Report, File No. 1-1097, dated July
15, 1997, and incorporated by reference herein)
4.30 Form of Supplemental Trust Indenture for each series of Senior Note Mortgage Bonds, being a supplemental
instrument to Exhibit 4.01 hereto.
4.31 Copy of Senior Note Indenture dated as of October 1, 1995 between the Company and The Bank of New York,
as successor trustee. (Filed as Exhibit 4.30 to Registration Statement No. 333-02319 and incorporated
by reference herein)
4.32 Supplemental Indenture No. 1, dated as of October 16, 1995, being a supplemental instrument to Exhibit
4.31 hereto. (Filed as Exhibit 4.01 to the Company's Form 8-K Current Report, File No. 1-1097, dated
October 23, 1995, and incorporated by reference herein)
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
- -----------
<C> <S>
4.33 Supplemental Indenture No. 2, dated as of July 1, 1997, being a supplemental instrument to Exhibit 4.31
hereto (Filed as Exhibit 4.01 to the Company's Form 8-K Current Report, File No. 1-1097, dated July 15,
1997, and incorporated by reference herein)
4.34 Form of Supplemental Indenture for each series of Senior Notes, being a supplemental instrument to
Exhibit 4.31 hereto.
5.01 Opinion of counsel as to legality of the New Notes to be issued by the Company.
12.01 Computation of ratio of earnings to fixed charges.
23.01 Consents of accountants and legal counsel.
24.01 Powers of Attorney.
25.01 Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under the Senior Note
Indenture.
25.02 Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under the First Mortgage
Indenture.
</TABLE>
II-4
<PAGE>
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by the controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
The undersigned Registrant hereby also undertakes:
(1) to file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10 (a) (3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or event arising after the
effective date of this Registration Statement (or the most recent
post-effective amendment thereto) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in this Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
II-5
<PAGE>
(4) that, for the purposes of determining any liability under the
Securities Act of 1933:
(i) The information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained
in the form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed
to be part of this Registration Statement as of the time it was
declared effective.
(ii) Each post-effective amendment that contains a form of prospectus
shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Oklahoma Gas and Electric Company certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Oklahoma City, and State
of Oklahoma on the 12th day of February, 1998.
OKLAHOMA GAS AND ELECTRIC COMPANY
(Registrant)
By: /s/ STEVEN E. MOORE
---------------------------------------
Steven E. Moore
CHAIRMAN OF THE BOARD
AND CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- -------------------------------------------- -------------------------------------------- ----------------------
<C> <S> <C>
/s/ STEVEN E. MOORE
---------------------------------- Chairman of the Board of Directors and February 12, 1998
Steven E. Moore Principal Executive Officer and Director;
/s/ A.M. STRECKER
---------------------------------- Principal Financial Officer; and February 12, 1998
A.M. Strecker
/s/ DONALD R. ROWLETT
---------------------------------- Principal Accounting Officer February 12, 1998
Donald R. Rowlett
*
---------------------------------- Director;
Herbert H. Champlin
*
---------------------------------- Director;
Luke R. Corbett
*
---------------------------------- Director;
William E. Durrett
*
---------------------------------- Director;
Martha W. Griffin
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- -------------------------------------------- -------------------------------------------- ----------------------
<C> <S> <C>
*
---------------------------------- Director;
Hugh L. Hembree III
*
---------------------------------- Director;
Robert Kelley
*
---------------------------------- Director; and
Bill Swisher
*
---------------------------------- Director.
Ronald H. White, M.D.
*By /s/ STEVEN E. MOORE
----------------------------------
Steven E. Moore February 12, 1998
(ATTORNEY-IN-FACT)
</TABLE>
II-8
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT METHOD OF FILING
- ----------- -----------------
<C> <S> <C>
1.01 Form of Underwriting Agreement for New Notes. DT
4.01 Copy of Trust Indenture, dated February 1, 1945, from the Company to The First
National Bank and Trust Company of Oklahoma City, Trustee. (Filed as Exhibit 7-A to
Registration Statement No. 2-5566 and incorporated by reference herein)
4.02 Copy of Supplemental Trust Indenture, dated December 1, 1948, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 7.03 to Registration Statement
No. 2-7744 and incorporated by reference herein)
4.03 Copy of Supplemental Trust Indenture, dated June 1, 1949, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 7.03 to Registration Statement
No. 2-7964 and incorporated by reference herein)
4.04 Copy of Supplemental Trust Indenture, dated May 1, 1950, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 7.04 to Registration Statement
No. 2-8421 and incorporated by reference herein)
4.05 Copy of Supplemental Trust Indenture, dated March 1, 1952, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 4.08 to Registration Statement
No. 2-9415 and incorporated by reference herein)
4.06 Copy of Supplemental Trust Indenture, dated June 1, 1955, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 4.07 to Registration Statement
No. 2-12274 and incorporated by reference herein)
4.07 Copy of Supplemental Trust Indenture, dated January 1, 1957, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 2.07 to Registration Statement
No. 2-14115 and incorporated by reference herein)
4.08 Copy of Supplemental Trust Indenture, dated June 1, 1958, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 4.09 to Registration Statement
No. 2-19757 and incorporated by reference herein)
4.09 Copy of Supplemental Trust Indenture, dated March 1, 1963, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 2.09 to Registration Statement
No. 2-23127 and incorporated by reference herein)
4.10 Copy of Supplemental Trust Indenture, dated March 1, 1965, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 4.10 to Registration Statement
No. 2-25808 and incorporated by reference herein)
4.11 Copy of Supplemental Trust Indenture, dated January 1, 1967, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 2.11 to Registration Statement
No. 2-27854 and incorporated by reference herein)
4.12 Copy of Supplemental Trust Indenture, dated January 1, 1968, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 2.12 to Registration Statement
No. 2-31010 and incorporated by reference herein)
4.13 Copy of Supplemental Trust Indenture, dated January 1, 1969, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 2.13 to Registration Statement
No. 2-35419 and incorporated by reference herein)
4.14 Copy of Supplemental Trust Indenture, dated January 1, 1970, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 2.14 to Registration Statement
No. 2-42393 and incorporated by reference herein)
4.15 Copy of Supplemental Trust Indenture, dated January 1, 1972, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 2.15 to Registration Statement
No. 2-49612 and incorporated by reference herein)
</TABLE>
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4.16 Copy of Supplemental Trust Indenture, dated January 1, 1974, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 2.16 to Registration Statement
No. 2-52417 and incorporated by reference herein)
4.17 Copy of Supplemental Trust Indenture, dated January 1, 1975, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 2.17 to Registration Statement
No. 2-55085 and incorporated by reference herein)
4.18 Copy of Supplemental Trust Indenture, dated January 1, 1976, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 2.18 to Registration Statement
No. 2-57730 and incorporated by reference herein)
4.19 Copy of Supplemental Trust Indenture, dated September 14, 1976, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 2.19 to Registration Statement
No. 2-59887 and incorporated by reference herein)
4.20 Copy of Supplemental Trust Indenture, dated January 1, 1977, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 2.20 to Registration Statement
No. 2-59887 and incorporated by reference herein)
4.21 Copy of Supplemental Trust Indenture, dated November 1, 1977, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 4.21 to Registration Statement
No. 2-70539 and incorporated by reference herein)
4.22 Copy of Supplemental Trust Indenture, dated December 1, 1977, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 4.22 to Registration Statement
No. 2-70539 and incorporated by reference herein)
4.23 Copy of Supplemental Trust Indenture, dated February 1, 1980, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 4.23 to Registration Statement
No. 2-70539 and incorporated by reference herein)
4.24 Copy of Supplemental Trust Indenture, dated August 15, 1986, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 4.25 to the Company's Form 10-K
Annual Report, File No. 1-1097, for the year ended December 31, 1986, and
incorporated by reference herein)
4.25 Copy of Supplemental Trust Indenture, dated March 1, 1987, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 4.26 to the Company's Form 10-K
Annual Report, File No. 1-1097, for the year ended December 31, 1987, and
incorporated by reference herein)
4.26 Copy of Supplemental Trust Indenture, dated November 15, 1990, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 4.28 to the Company's Form 10-K
Annual Report for the year ended December 31, 1990, File No. 1-1097, and incorporated
by reference herein)
4.27 Copy of Supplemental Trust Indenture, dated December 9, 1991, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 4.29 to the Company's Form 10-K
Annual Report for the year ended December 31, 1991, File No. 1-1097, and incorporated
by reference herein)
4.28 Copy of Supplemental Trust Indenture, dated October 1, 1995, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 4.02 to the Company's Form 8-K
Current Report, File No. 1-1097, dated October 23, 1995, and incorporated by
reference herein)
4.29 Copy of Supplemental Trust Indenture, dated July 1, 1997, being a supplemental
instrument to Exhibit 4.01 hereto. (Filed as Exhibit 4.02 to the Company's Form 8-K
Current Report, File No. 1-1097, dated July 15, 1997, and incorporated by reference
herein)
</TABLE>
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4.30 Form of Supplemental Trust Indenture for each series of Senior Note Mortgage Bonds,
being a supplemental instrument to Exhibit 4.01 hereto. DT
4.31 Copy of Senior Note Indenture dated as of October 1, 1995 between the Company and The
Bank of New York, as successor trustee. (Filed as Exhibit 4.30 to Registration
Statement No. 333-02319 and incorporated by reference herein)
4.32 Supplemental Indenture No. 1, dated as of October 16, 1995, being a supplemental
instrument to Exhibit 4.31 hereto. (Filed as Exhibit 4.01 to the Company's Form 8-K
Current Report, File No. 1-1097, dated October 23, 1995, and incorporated by
reference herein)
4.33 Supplemental Indenture No. 2, dated as of July 1, 1997, being a supplemental
instrument to Exhibit 4.31 hereto (Filed as Exhibit 4.01 to the Company's Form 8-K
Current Report, File No. 1-1097, dated July 15, 1997, and incorporated by reference
herein)
4.34 Form of Supplemental Indenture for each series of Senior Notes, being a supplemental
instrument to Exhibit 4.31 hereto. DT
5.01 Opinion of counsel as to legality of the New Notes to be issued by the Company. DT
12.01 Computation of ratio of earnings to fixed charges. DT
23.01 Consents of accountants and legal counsel. DT
24.01 Powers of Attorney. DT
25.01 Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under the
Senior Note Indenture. DT
25.02 Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under the
First Mortgage Indenture. DT
</TABLE>
<PAGE>
Exhibit 1.01
OKLAHOMA GAS AND ELECTRIC COMPANY
(an Oklahoma corporation)
$ Senior Notes, Series due
PURCHASE AGREEMENT
Dated: ,
<PAGE>
TABLE OF CONTENTS
PAGE
PURCHASE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1. Representations and Warranties. . . . . . . . . . . . . 3
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY . . . . . 3
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS . . . 3
(ii) INCORPORATED DOCUMENTS. . . . . . . . . . . . . 4
(iii) INDEPENDENT ACCOUNTANTS . . . . . . . . . . . . 5
(iv) FINANCIAL STATEMENTS. . . . . . . . . . . . . . 5
(v) NO MATERIAL ADVERSE CHANGE. . . . . . . . . . . 5
(vi) GOOD STANDING OF THE COMPANY. . . . . . . . . . 5
(vii) NO SUBSIDIARIES . . . . . . . . . . . . . . . . 5
(viii) CAPITALIZATION. . . . . . . . . . . . . . . . . 6
(ix) AUTHORIZATION OF AGREEMENT. . . . . . . . . . . 6
(x) AUTHORIZATION OF THE INDENTURE [AND THE FIRST
MORTGAGE INDENTURE] . . . . . . . . . . . . . . 6
(xi) AUTHORIZATION OF THE SENIOR NOTES . . . . . . . 6
(xii) AUTHORIZATION OF THE BONDS. . . . . . . . . . . 6
(xiii) DESCRIPTION OF THE SENIOR NOTES, [THE BONDS,]
THE INDENTURE [AND THE FIRST MORTGAGE
INDENTURE]. . . . . . . . . . . . . . . . . . . 6
(xiv) ABSENCE OF DEFAULTS AND CONFLICTS . . . . . . . 7
(xv) ABSENCE OF PROCEEDINGS. . . . . . . . . . . . . 7
(xvi) ACCURACY OF EXHIBITS. . . . . . . . . . . . . . 8
(xvii) REGULATORY APPROVALS; ABSENCE OF FURTHER
REQUIREMENTS . . . . . . . . . . . . . . . . . 8
(xviii) POSSESSION OF LICENSES AND PERMITS. . . . . . . 8
(xix) TITLE TO PROPERTY . . . . . . . . . . . . . . . 8
(b) OFFICER'S CERTIFICATES. . . . . . . . . . . . . . . . . 9
SECTION 2. Sale and Delivery to Underwriters; Closing. . . . . . . 9
(a) SENIOR NOTES. . . . . . . . . . . . . . . . . . . . . . 9
(b) PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . 9
(c) DENOMINATIONS; REGISTRATION . . . . . . . . . . . . . . 9
(d) PAYMENT OF OKLAHOMA REAL ESTATE MORTGAGE TAX. . . . . .10
SECTION 3. Covenants of the Company. . . . . . . . . . . . . . . .10
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION
REQUESTS. . . . . . . . . . . . . . . . . . . . . . . .10
(b) FILING OF AMENDMENTS. . . . . . . . . . . . . . . . . .10
(c) DELIVERY OF REGISTRATION STATEMENTS . . . . . . . . . .10
(d) DELIVERY OF PROSPECTUSES. . . . . . . . . . . . . . . .11
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS . . . . . . .11
(f) RULE 158. . . . . . . . . . . . . . . . . . . . . . . .11
(g) USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . .11
(h) REAL ESTATE MORTGAGE TAX. . . . . . . . . . . . . . . .11
(i) RESTRICTION ON SALE OF SECURITIES . . . . . . . . . . .12
SECTION 4. Payment of Expenses . . . . . . . . . . . . . . . . . .12
i
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(a) EXPENSES. . . . . . . . . . . . . . . . . . . . . . . .12
(b) TERMINATION OF AGREEMENT. . . . . . . . . . . . . . . .12
SECTION 5. Conditions of Underwriters' Obligations . . . . . . . .13
(a) EFFECTIVENESS OF REGISTRATION STATEMENT; FILING OF
PROSPECTUS. . . . . . . . . . . . . . . . . . . . . . .13
(b) SECURITY FOR SENIOR NOTES . . . . . . . . . . . . . . .13
(c) OPINIONS OF COUNSEL FOR COMPANY . . . . . . . . . . . .13
(i) OPINION OF OKLAHOMA COUNSEL . . . . . . . . . .13
(ii) OPINION OF ARKANSAS COUNSEL . . . . . . . . . .17
(iii) OPINION OF GARDNER, CARTON & DOUGLAS. . . . . .18
(d) OPINION OF COUNSEL FOR UNDERWRITERS . . . . . . . . . .19
(e) OFFICERS' CERTIFICATE . . . . . . . . . . . . . . . . .19
(f) ACCOUNTANT'S COMFORT LETTER . . . . . . . . . . . . . .20
(g) BRING-DOWN COMFORT LETTER . . . . . . . . . . . . . . .20
(h) MAINTENANCE OF RATING . . . . . . . . . . . . . . . . .20
(i) ADDITIONAL DOCUMENTS. . . . . . . . . . . . . . . . . .20
(j) TERMINATION OF AGREEMENT. . . . . . . . . . . . . . . .20
SECTION 6. Conditions of Company's Obligations . . . . . . . . . .21
SECTION 7. Indemnification . . . . . . . . . . . . . . . . . . . .21
(a) INDEMNIFICATION OF UNDERWRITERS . . . . . . . . . . . .21
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. . .22
(c) ACTIONS AGAINST PARTIES; NOTIFICATION . . . . . . . . .23
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. . .23
SECTION 8. Contribution. . . . . . . . . . . . . . . . . . . . . .23
SECTION 9. Representations, Warranties and Agreements to
Survive Delivery. . . . . . . . . . . . . . . . . . . .25
SECTION 10. Termination of Agreement. . . . . . . . . . . . . . . .25
(a) TERMINATION; GENERAL. . . . . . . . . . . . . . . . . .25
(b) LIABILITIES . . . . . . . . . . . . . . . . . . . . . .25
SECTION 11. Default by One or More of the Underwriters. . . . . . .26
SECTION 12. Notices . . . . . . . . . . . . . . . . . . . . . . . .26
SECTION 13. Parties . . . . . . . . . . . . . . . . . . . . . . . .27
SECTION 14. Governing Law and Time. . . . . . . . . . . . . . . . .27
SECTION 15. Effect of Headings. . . . . . . . . . . . . . . . . . .27
SCHEDULES
Schedule A -- List of Underwriters . . . . . . . . . . . . . .Sch. A-1
Schedule B -- Pricing Information. . . . . . . . . . . . . . .Sch. B-1
Schedule C -- Information Provided by Underwriters . . . . . .Sch. C-1
ii
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[Note: The language in brackets in this form of Purchase Agreement relating to
the Bonds, Additional Bonds and the First Mortgage Indenture will be deleted if
the applicable Senior Notes will not be secured by Bonds, and the language in
brackets relating to Additional Senior Notes will be deleted if a concurrent
offering of Senior Notes is not contemplated.]
OKLAHOMA GAS AND ELECTRIC COMPANY
(AN OKLAHOMA CORPORATION)
$
SENIOR NOTES, SERIES DUE ,
PURCHASE AGREEMENT
To the Representatives of the several Underwriters
named in Schedule A hereto.
Ladies and Gentlemen:
Oklahoma Gas and Electric Company, an Oklahoma corporation (the
"Company"), confirms its agreement with
and each of the other Underwriters named in Schedule A hereto (collectively,
the "Underwriters", which term includes any underwriter substituted as
hereinafter provided in Section 11 hereof), for whom
are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of the
respective principal amounts set forth in said Schedule A of $
aggregate principal amount of the Company's Senior Notes,
Series due , (the "Senior Notes"). The Senior
Notes are to be issued pursuant to the Indenture dated as of October 1, 1995
between the Company and The Bank of New York, as successor trustee (the
"Trustee"), as heretofore amended and supplemented and as amended and
supplemented by Supplemental Indenture No. , dated as of
, , creating the series in which the Senior Notes are to be
issued. The term "Indenture," as used herein, means such Indenture dated as
of October 1, 1995, as so amended and supplemented, and includes
<PAGE>
the Company Order (as defined in the Indenture), if any, establishing the
form and terms of the Senior Notes pursuant to the Indenture.
[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 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. Prior to the
issuance of the Senior Notes, the Company will deliver to the Trustee, as
security for the payment of principal and interest on the 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, repayment provisions and redemption
provisions as the Senior Notes. The Bonds will be issued by the Company under
its Trust Indenture, dated February 1, 1945, between the Company and The Bank of
New York, as successor trustee (the "First Mortgage Trustee"), as heretofore
amended and supplemented and as to be further amended and supplemented by the
Supplemental Trust Indenture dated , creating the
Bonds. The term "First Mortgage Indenture," as used herein, means such Trust
Indenture, dated February 1, 1945, as so amended and supplemented.]
[Concurrently with the offering of the Senior Notes, the Company proposes
to issue and sell $ of its % Senior
Notes, Series due , (the "Additional Senior
Notes"). Prior to the issuance of the Additional Senior Notes, the Company will
deliver to the Trustee, as security for the payment of principal and interest on
the Senior Notes, a series of First Mortgage Bonds (the "Additional 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, repayment provisions and redemption provisions as the Additional Senior
Notes.] [The Additional Bonds will also be issued by the Company under the
First Mortgage Indenture.] [The sale of the Senior Notes and the Additional
Senior Notes are not contingent upon each other.]
The Company understands that the Underwriters propose to make a public
offering of the Senior Notes as soon as the Representatives deem advisable after
this Agreement has been executed and delivered and the Indenture [and the First
Mortgage Indenture have] has been qualified under the Trust Indenture Act of
1939, as amended (the "1939 Act").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333- )
covering the registration of the Senior Notes, the Bonds, [the Additional
Senior Notes and the Additional Bonds] under the Securities Act of 1933, as
amended (the "1933 Act"), including the related preliminary prospectus or
prospectuses. Promptly after execution and delivery of this Agreement, the
Company will either (i) prepare and file a prospectus in accordance with
paragraph (b) of Rule 424 ("Rule 424(b)") of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations") or (ii) if the
Company has elected to rely upon Rule 434 ("Rule 434") of the 1933 Act
Regulations, prepare and file a term sheet (a "Term Sheet") in accordance with
the provisions of Rule 434 and Rule 424(b). The information included in such
prospectus or in such Term Sheet, as the case may be, that was omitted from such
registration statement at the time it became
2
<PAGE>
effective is referred to as the "Offering Terms." Each prospectus used
before such registration statement became effective, and any prospectus that
omitted the Offering Terms, that was used after such effectiveness and prior
to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus." Such registration statement, including the
exhibits thereto, schedules thereto, if any, and the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, at
the time it became effective and including the Offering Terms, is herein
called the "Registration Statement." Any registration statement filed
pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred to as
the "Rule 462(b) Registration Statement," and after such filing the term
"Registration Statement" shall include the Rule 462(b) Registration
Statement. The final prospectus, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the
form first furnished to the Underwriters for use in connection with the
offering of the Senior Notes [and the Bonds] is herein called the
"Prospectus." If Rule 434 is relied on, the term "Prospectus" shall refer to
the preliminary prospectus dated ,
together with the Term Sheet and all references in this Agreement to the date
of the Prospectus shall mean the date of the Term Sheet. For purposes of
this Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any Term Sheet or any amendment or supplement
to any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("EDGAR").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is
incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934, as
amended (the "1934 Act") which is incorporated by reference in the
Registration Statement, such preliminary prospectus or the Prospectus, as the
case may be.
SECTION 1. REPRESENTATIONS AND WARRANTIES
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to each Underwriter as of the date hereof and as of
the Closing Time referred to in Section 2(b) hereof, and agrees with each
Underwriter, as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with.
3
<PAGE>
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time, the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations and the 1939 Act and the rules
and regulations of the Commission under the 1939 Act (the "1939 Act
Regulations"), and did not and will 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.
Neither the Prospectus nor any amendments or supplements thereto, at the
time the Prospectus or any such amendment or supplement was issued and at
the Closing Time, included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If Rule 434 is used, the
Company will comply with the requirements of Rule 434. The representations
and warranties in this subsection 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 Prospectus made in reliance upon and in conformity with the information
furnished to the Company in writing by any Underwriter through
expressly for use in the Registration Statement or Prospectus that
is set forth on Schedule C hereto.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(ii) INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and
the Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act
and the rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), as applicable, and, when read together with the other
information in the Prospectus, at the time the Registration Statement
became effective, at the time the Prospectus was issued and at the
Closing Time, did not and will 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.
(iii) INDEPENDENT ACCOUNTANTS. Arthur Andersen LLP, the
accountants who examined the financial statements and supporting schedules
included in the Registration Statement, are independent public accountants
as required by the 1933 Act and the 1933 Act Regulations.
(iv) FINANCIAL STATEMENTS. The financial statements included in
the Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the Company
and its consolidated subsidiaries at the dates indicated and the statement
of operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved, except as otherwise stated in the notes thereto. The
supporting schedules, if any, included in the Registration Statement
present fairly in accordance with GAAP the information required to be
stated therein. The selected financial information included in the
Prospectus presents fairly the information shown therein and has been
compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement. The Company has no
material contingent obligation which is not disclosed in the Prospectus.
(v) NO MATERIAL ADVERSE CHANGE. Since the respective dates as
of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, results of operations, properties, business affairs or business
prospects of the Company, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company, other than those in the ordinary course of
business, which are material with respect to the Company, and (C) except
for regular quarterly dividends on the Common Stock, par value $2.50 per
share, of the Company in amounts consistent with past practice, and regular
quarterly dividends on the Company's Preferred Stock, there has been no
dividend or distribution of any kind declared, paid or made by the Company
on any class of its capital stock.
(vi) GOOD STANDING OF THE COMPANY. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Oklahoma and has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its obligations
under this Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not result
in a Material Adverse Effect.
(vii) NO SUBSIDIARIES. The Company has no subsidiaries.
5
<PAGE>
(viii) CAPITALIZATION. The authorized, issued and outstanding
capital stock of the Company is as stated in the Prospectus.
(ix) AUTHORIZATION OF AGREEMENT. This Agreement has been duly
authorized, executed and delivered by the Company.
(x) AUTHORIZATION OF THE INDENTURE [AND THE FIRST MORTGAGE
INDENTURE]. [Each of] the Indenture [and the First Mortgage Indenture] has
been duly authorized by the Company and duly qualified under the 1939 Act
and, when duly executed and delivered by the Company and the Trustee [or
the First Mortgage Trustee, as applicable,] will constitute a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
[ (xi) AUTHORIZATION OF THE SENIOR NOTES. The Senior Notes have
been duly authorized and, at the Closing Time, will have been duly executed
by the Company and, when authenticated, issued and delivered in the manner
provided for in the Indenture and delivered against payment of the purchase
price therefor as provided in this Agreement, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law),
and will be in the form contemplated by, and entitled to the benefits
provided by, the Indenture.]
[ (xii) AUTHORIZATION OF THE BONDS. The Bonds have been duly
authorized and, at the Closing Time, will have been duly executed by the
Company and, when authenticated, issued and delivered in the manner
provided for in the First Mortgage Indenture, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law),
and will be in the form contemplated by, and secured by the lien of and
entitled to the benefits provided by, the First Mortgage Indenture.]
(xiii) DESCRIPTION OF THE SENIOR NOTES, [THE BONDS,] THE INDENTURE
[AND THE FIRST MORTGAGE INDENTURE]. The Senior Notes, [the Bonds,] the
Indenture and [the First Mortgage Indenture] will conform in all material
respects to the respective statements relating thereto contained in the
Prospectus and will be in substantially the respective
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forms filed or incorporated by reference, as the case may be, as exhibits
to the Registration Statement.
(xiv) ABSENCE OF DEFAULTS AND CONFLICTS. The Company is not in
violation of its Restated Certificate of Incorporation or By-Laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or
instrument to which it is a party or by which it may be bound, or to which
any of its property or assets is subject (collectively, "Agreements and
Instruments") except for such defaults that would not result in a Material
Adverse Effect; and the execution, delivery and performance of this
Agreement, the Indenture, [the First Mortgage Indenture,] the Senior Notes
and [the Bonds] and the consummation of the transactions contemplated
herein and in the Registration Statement (including the issuance and sale
of the Senior Notes and the use of the proceeds from the sale of the Senior
Notes as described in the Prospectus under the caption "Use of Proceeds")
and compliance by the Company with its obligations hereunder and under the
Indenture, [the First Mortgage Indenture,] the Senior Notes [and the Bonds]
have been duly authorized by all necessary corporate action and do not and
will not, whether with or without the giving of notice or passage of time
or both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company
pursuant to, the Agreements and Instruments (except for such conflicts,
breaches, defaults or liens, charges or encumbrances that would not result
in a Material Adverse Effect), nor will such action result in any violation
of the provisions of the Restated Certificate of Incorporation or By-Laws
of the Company or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any of
its assets, properties or operations. As used herein, a "Repayment Event"
means any event or condition which gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company, other than such
events or conditions that are contemplated by the terms of this Agreement,
the Indenture, [the First Mortgage Indenture], the Senior Notes,
[Additional Senior Notes,] [the Bonds and the Additional Bonds].
(xv) ABSENCE OF PROCEEDINGS. Other than as disclosed in the
Registration Statement, there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company, which is required
to be disclosed in the Registration Statement or which might reasonably be
expected to result in a Material Adverse Effect, or which might reasonably
be expected to materially and adversely affect its properties or assets or
the consummation of the transactions contemplated in this Agreement or the
performance by the Company of its obligations hereunder. The aggregate of
all pending legal or governmental proceedings to which the Company is a
party or of which any of its property or assets is the subject which are
not described in the Registration Statement, including ordinary routine
litigation
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incidental to the business, could not reasonably be expected to result in a
Material Adverse Effect.
(xvi) ACCURACY OF EXHIBITS. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
(xvii) REGULATORY APPROVALS; ABSENCE OF FURTHER REQUIREMENTS. 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
issuance of the Bonds] on terms consistent with this Agreement. No filing
with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale
of the Senior Notes hereunder [and the issuance of the Bonds] or the
consummation of the transactions contemplated by this Agreement or for
the due execution, delivery or performance of the Indenture [or the First
Mortgage Indenture] by the Company, except such as have been already
obtained, including from the Oklahoma Commission and the Arkansas
Commission.
(xviii) POSSESSION OF LICENSES AND PERMITS. The Company possesses
such permits, licenses, approvals, consents and other authorizations
issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct in all material respects the
business now operated by it and as described in the Registration Statement
and Prospectus (collectively, "Governmental Licenses"); the Company is in
compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the
aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be in
full force and effect would not have a Material Adverse Effect; and the
Company has not received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xix) TITLE TO PROPERTY. The Company has good and sufficient
title to all real property, principal plants and all other property owned
by it and which is material to the Company's operations, in each case, free
and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are described
in the Prospectus or (b) do not, singly or in the aggregate, materially
affect the value of such property and do not interfere with the use made
and proposed to be made of such property by the Company; and all of the
leases and subleases material to the business of the Company, and under
which the Company holds properties described in the Prospectus, are in
full force and effect, and the Company does not have notice of any material
claim of any sort that has been asserted by anyone adverse to the rights of
the
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Company under any of the leases or subleases mentioned above, or affecting
or questioning the rights of the Company to the continued possession of the
leased or subleased premises under any such lease or sublease.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Representatives 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.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING
(a) SENIOR NOTES. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth,
the Company agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from the
Company, at the price set forth in Schedule B, the aggregate principal amount
of Senior Notes set forth in Schedule A opposite the name of such
Underwriter, plus any additional principal amount of Senior Notes which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 11 hereof.
(b) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Senior Notes shall be made at the offices of
, or at such other place as shall
be agreed upon by the Representatives and the Company, at .M. (
time) on the fourth business day after the date hereof
(unless postponed in accordance with the provisions of Section 11), or such
other time not later than ten business days after such date as shall be
agreed upon by the Representatives and the Company (such time and date of
payment and delivery being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery
to the Representatives for the respective accounts of the Underwriters of
certificates for the Senior Notes to be purchased by them. It is understood
that each Underwriter had authorized the Representatives, for its account, to
accept delivery of, receipt for, and make payment of the purchase price for,
the Senior Notes which it has agreed to purchase.
, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the Senior
Notes to be purchased by any Underwriter whose funds have not been received
by the Closing Time, but such payment shall not relieve such Underwriter from
its obligations hereunder.
(c) DENOMINATIONS; REGISTRATION. One certificate for the Senior
Notes shall be in the amount of $ and
registered in the name of Cede & Co., as nominee of the Depository Trust
Company. The Company will make the Senior Notes, which may be in temporary
form, available for examination and packaging by the Representatives in
not later than .M. (
time) on the business day prior to the Closing Time.
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[ (d) PAYMENT OF OKLAHOMA REAL ESTATE MORTGAGE TAX. The Representatives
agree to deposit with the Company within two business days after the date of
this Agreement the amount set forth in Schedule B hereto as the Oklahoma Real
Estate Mortgage Tax. It is understood that such payment shall not constitute
partial or full payment for the Senior Notes, but shall be applied solely in
accordance with Section 3(h) hereof.]
SECTION 3. COVENANTS OF THE COMPANY
The Company covenants with each Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS.
The Company, subject to Section 3(b), will comply with the requirements of
Rule 424 of the 1933 Act Regulations ("Rule 424") or Rule 434, as applicable,
and will notify the Representatives immediately, and confirm the notice in
writing, (i) of the effectiveness of any post-effective amendment to the
Registration Statement, or of the filing of any supplement to the Prospectus
or any amended Prospectus, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for additional information, and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of
any order preventing or suspending the use of any preliminary prospectus, or
of the suspension of the qualification of the Senior Notes [or the Bonds] for
offering or sale in any jurisdiction, or of the initiation or threatening of
any proceedings for any of such purposes. The Company will promptly effect
the filings necessary pursuant to Rule 424(b) and will take such steps as it
deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representatives with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file
or use any such document to which the Representatives or counsel for the
Underwriters reasonably objects.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished
or will deliver to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents and
certificates of experts, in such number as the Representatives reasonably
request, and will also deliver to the Representatives, without charge, a
conformed copy of the Registration Statement as originally
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<PAGE>
filed and of each amendment thereto (without exhibits) for each of the
Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will
comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the
1934 Act Regulations and the 1939 Act and the 1939 Act Regulations so as to
permit the completion of the distribution of the Senior Notes as contemplated
in this Agreement and in the Prospectus. If at any time when a prospectus is
required by the 1933 Act to be delivered in connection with sales of the
Senior Notes, any event occurs or condition exists as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the Company,
to amend the Registration Statement or amend or supplement the Prospectus in
order that the Prospectus will not include any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading in the light
of the circumstances existing at the time it is delivered to a purchaser, or
if it is necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to
Section 3(b), such amendment or supplement as may be necessary to correct
such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish to the
Underwriters such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) RULE 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(g) USE OF PROCEEDS. The Company will use the net proceeds received
by it from the sale of the Senior Notes in the manner specified in the
Prospectus under "Use of Proceeds."
(h) REAL ESTATE MORTGAGE TAX. The Company will use the amount deposited
by the Representatives with it pursuant to the last paragraph of Section 2
hereof to the extent necessary to pay for the account of the several
Underwriters, in the same proportion as the principal amount
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<PAGE>
of Senior Notes to be purchased by each of them bears to the total principal
amount of Senior Notes, any Oklahoma Real Estate Mortgage Tax required to be
paid by them on the Senior Notes and/or the Bonds. Any amount not so applied
by the Company before the Closing Time shall be remitted in same day funds by
the Company to the Representatives for the account of the several
Underwriters at the Closing Time.]
(i) RESTRICTION ON SALE OF SECURITIES. During the period beginning
on the date of this Agreement and continuing until the Closing Time, which
period shall in no event exceed 15 business days, the Company will not,
without the prior written consent of , in its
sole discretion, directly or indirectly, issue, sell, offer or contract to
sell, grant any option for the sale of, or otherwise transfer or dispose of,
any debt securities of the Company which mature more than one year after the
Closing Time and which are substantially similar to the Senior Notes.
SECTION 4. PAYMENT OF EXPENSES
(a) EXPENSES. Whether or not the transactions contemplated hereunder
are consummated or this Agreement is terminated, the Company will pay all
expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits) as originally filed
and of each amendment thereto, (ii) the preparation, printing and delivery to
the Underwriters of this Agreement, any Agreement among Underwriters, the
Indenture, [the First Mortgage Indenture] and such other documents as may be
required in connection with the offering, purchase, sale, issuance or
delivery of the Senior Notes [and the Bonds], (iii) all costs, taxes
[(other than any Oklahoma Real Estate Mortgage Tax)] and expenses incident to
the preparation, issuance and delivery of the Senior Notes to the
Underwriters [and the Bonds to the Trustee], (iv) the fees and disbursements
of the Company's counsel, accountants and other advisors, (v) the printing
and delivery to the Underwriters of copies of each preliminary prospectus,
any Term Sheets and of the Prospectus and any amendments or supplements
thereto, (vi) the fees and expenses of the Trustee
[and the First Mortgage Trustee], including the fees and disbursements of
counsel for the Trustee [and the First Mortgage Trustee] in connection with
the Indenture, [the First Mortgage Indenture], the Senior Notes
[and the Bonds], and (vii) any fees payable in connection with the rating of
the Senior Notes [and the Bonds].
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5, Section 6 or
Section 10(a)(i) hereof, the Company shall reimburse the Underwriters for all
of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
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<PAGE>
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS
The obligations of the several Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof and in certificates of any officer of the Company delivered
pursuant to the provisions hereof, to the performance by the Company of its
covenants and other obligations hereunder and to the following further
conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT; FILING OF PROSPECTUS.
The Registration Statement, including any Rule 462(b) Registration Statement,
has become effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission,
and any request on the part of the Commission for additional information
shall have been complied with to the reasonable satisfaction of counsel to
the Underwriters. A prospectus containing the Offering Terms shall have been
filed with the Commission in accordance with Rule 424(b) or, if the Company
has elected to rely upon Rule 434, a Term Sheet shall have been filed with
the Commission in accordance with Rule 424(b).
[ (b) SECURITY FOR SENIOR NOTES. The Company shall have issued and
delivered to the Trustee the Bonds, as security for, among other things, the
Senior Notes.]
(c) OPINIONS OF COUNSEL FOR COMPANY. At Closing Time, the
Representatives shall have received the favorable opinions, dated as of
Closing Time, of ,
and
, each counsel for the Company, in form and substance satisfactory
to counsel for the Underwriters, together with signed or reproduced copies of
such letter for each of the other Underwriters to the effect set forth below
and to such further effect as counsel to the Underwriters may reasonably
request.
(i) OPINION OF OKLAHOMA COUNSEL
(A) the Company is a legally existing corporation and
is in good standing 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;
(B) 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 the
Indenture 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;
(C) the Senior Notes [and the Bonds] are in the form
contemplated by the Indenture [and the First Mortgage Indenture,
respectively], have been duly and validly authorized by the
Company, constitute valid and binding obligations of the
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<PAGE>
Company and will be entitled to the benefits of the Indenture [and
the First Mortgage Indenture, respectively];
(D) 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 1933 Act or at the Closing
Time contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading;
(E) 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 or contribution may be held to be unenforceable as
against public policy;
(F) except in localities where the Company has no
franchises, which are relatively few and not of large population,
or 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;
(G) 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;
(H) the Indenture, the Senior Notes, [the First
Mortgage Indenture, the First Mortgage Bonds and the Bonds] conform
in all material respects to the statements concerning them in the
Prospectus;
(I) 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;
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<PAGE>
(J) the execution and delivery of this Agreement and
the issuance of the 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 Restated
Certificate of Incorporation or By-Laws of the Company, or in any
material respect conflict with or constitute on the part of the
Company 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 is a party or any law,
regulation, consent decree or administrative, arbitration or
court order known to such counsel to which the Company is subject;
(K) the Oklahoma Commission has duly issued its order
authorizing the issuance by the Company of the 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 Senior Notes to the
Underwriters [and the issuance of the Bonds to the Trustee] is
[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 due authorization, execution and delivery of this
Agreement, the due execution, delivery or performance of the
Indenture [and the First Mortgage Indenture] by the Company or
for the offering, issuance, sale or delivery of the Senior Notes
to the Underwriters [and the issuance or delivery of the Bonds
by the Company to the Trustee] as contemplated in this Agreement;
(L) to the best of such counsel's knowledge, the Company
does not have any subsidiaries;
[ (M) 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 the First Mortgage Indenture 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 within the 90-day period immediately preceding, or
property acquired or proceeds realized by the Company after, the
commencement of bankruptcy proceedings with respect to the
Company;]
[ (N) 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 (M), are entitled to the lien of and benefits provided
by the First Mortgage Indenture;]
[ (O) 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
15
<PAGE>
create and has been and at the Closing Time is duly and properly
recorded or filed in all places in Oklahoma necessary to
effectuate the lien of the First Mortgage Indenture;] and
[ (P) 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 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 or proceeds
realized by the Company within the 90-day period immediately
preceding, or property acquired or proceeds realized by the
Company 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).]
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(ii) OPINION OF ARKANSAS COUNSEL
(A) the Company is duly qualified as a foreign
corporation and is in good standing 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;
[ (B) 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 Time is duly and properly recorded or filed in all places
in Arkansas necessary to effectuate the lien of the First Mortgage
Indenture;]
[ (C) 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 or proceeds realized by the
Company within the 90-day period immediately preceding, or property
acquired or proceeds realized by the Company 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
17
<PAGE>
by it (however, such opinion need not cover titles to
rights-of-way or easements for transmission or distribution
lines);]
(D) except in localities where the Company has no
franchises, which are relatively few and not of large population,
or 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 Arkansas as presently
conducted and as described in the Prospectus;
(E) 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;
(F) the Arkansas Commission has duly issued its order
authorizing the issuance and sale by the Company of the 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 Senior Notes to the Underwriters [and the issuance
of the Bonds to the Trustee] are 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 due authorization, execution and delivery of this Agreement,
the due execution, delivery or performance of the Indenture [and
the First Mortgage Indenture] by the Company or for the offering,
issuance, sale and delivery of the Senior Notes [and the issuance
or delivery of the Bonds] by the Company to the Trustee as
contemplated in this Agreement; and
(G) such counsel is not handling any litigation
relating to the Company except as set forth in a schedule attached
to such opinion.
(iii) OPINION OF GARDNER, CARTON & DOUGLAS.
(A) such opinion shall cover the matters set forth in
subdivisions (A), (B), (C), (D), (E), (G), (H), (J), (L), [(M) and
(N)] of paragraph (c)(i) of this Section 5;
(B) the Registration Statement, including any
Rule 462(b) Registration Statement, has become effective under the
1933 Act, the Prospectus Supplement has been filed pursuant to
Rule 424(b) and/or Rule 434 under the 1933 Act, and, to the best
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 1933 Act;
(C) the Registration Statement, including any
Rule 462(b) Registration Statement, the Offering Terms and the
Prospectus (except as to the financial
18
<PAGE>
statements and financial or statistical data contained therein,
with respect to which said counsel need express no opinion) comply
as to form, in all material respects, with the requirements of the
1933 Act, the 1934 Act and the 1939 Act and the rules and
regulations of the Commission under such Acts; and the documents
incorporated or deemed to be incorporated by reference in the
Registration Statement and the Prospectus (except as to the
financial statements and financial or statistical data contained
therein, with respect to which said counsel need express no
opinion) as of their respective dates of filing with the
Commission complied as to form in all material respects with the
1934 Act and the 1934 Act Regulations;
(D) the Indenture [and the First Mortgage Indenture]
[have each] has been qualified under the 1939 Act as and to the
extent required by the provisions of the 1939 Act; and
(E) 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 Senior Notes [and the issuance of the
Bonds] by the Company as contemplated in this Agreement have been
obtained.
Such opinion may be subject to the reservation that, in
giving such opinion, said counsel has relied on the opinion of
Oklahoma counsel as to all matters of Oklahoma law and on the
opinion of Arkansas counsel 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 (K) of subsection (c)(i) of this
Section 5 and subdivision (F) of subsection (c)(i) 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 Oklahoma counsel and of Arkansas
counsel.
(d) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Jones, Day, Reavis & Pogue, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the
other Underwriters with respect to such matters related to the issuance and
sale of the 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. In
giving such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of Illinois and the
federal law of the United States, upon the opinions of Oklahoma counsel,
Arkansas counsel or other counsel satisfactory to the Representatives.
(e) OFFICERS' CERTIFICATE. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, results of
19
<PAGE>
operations, properties, business 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 President or a Vice
President of the Company and of the chief financial or chief accounting
officer of the Company, dated as of Closing Time, to the effect that (i)
there has been no such material adverse change, (ii) the representations and
warranties in this Agreement are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii) the Company
has complied with all agreements and satisfied all conditions on its part to
be performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending or,
to their knowledge, are contemplated by the Commission.
(f) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of
this Agreement, the Representatives shall have received from Arthur Andersen
LLP a letter, dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus.
(g) BRING-DOWN COMFORT LETTER. At Closing Time, the Representatives
shall have received from Arthur Andersen LLP a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (f) of this Section, except that the
specified date referred to shall be a date not more than three business days
prior to Closing Time.
(h) MAINTENANCE OF RATING. At Closing Time, the Senior Notes shall
be rated at least by Moody's Investor's Service, Inc. and by
Standard & Poor's Rating Service, Inc. Since the date of this Agreement,
there shall not have occurred a downgrading in the rating assigned to any of
the Company's securities by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of Rule
436(g)(2) under the 1933 Act, and no such organization shall have publicly
announced that it has under surveillance or review its rating of the Senior
Notes[, the First Mortgage Bonds] or any of the Company's other securities.
(i) ADDITIONAL DOCUMENTS. At Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance
and sale of the Senior Notes [and issuance and delivery of the Bonds] as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Senior Notes [and issuance and delivery
of the Bonds] as herein contemplated shall be satisfactory in form and
substance to the Representatives and counsel for the
Underwriters.
(j) TERMINATION OF AGREEMENT. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Representatives by notice to the
Company at any time at or prior to Closing Time, and such
20
<PAGE>
termination shall be without liability of any party to any other party except
as provided in Section 4 and except that Sections 1, 7, 8 and 9 shall survive
any such termination and remain in full force and effect.
In giving the opinions contemplated by paragraphs (c) and (d) 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 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 [and First Mortgage Trustee, respectively], (ii) that the
signatures on all documents examined by them are genuine, and (iii) that the
written information supplied by the Representatives and the other
Underwriters expressly for use in the Registration Statement or the
Prospectus is adequate.
SECTION 6. CONDITIONS OF COMPANY'S OBLIGATIONS
The obligation of the Company to deliver the Senior Notes [and the First
Mortgage Bonds] upon payment therefor shall be subject to the following
conditions:
At the Closing Time, (a) the orders of the Oklahoma Commission and the
Arkansas Commission referred to in paragraph (xvii) of Section 1(a) hereof
shall be in full force and effect substantially in the form in which
originally entered and (b) 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 Section 4 hereof.
SECTION 7. INDEMNIFICATION
(a) INDEMNIFICATION OF UNDERWRITERS. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Offering Terms, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact
21
<PAGE>
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
7(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by
), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with the written information furnished to the
Company by any Underwriter through
expressly for use in the Registration Statement (or any amendment thereto),
including the Offering Terms, or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), which information is set forth on
Schedule C hereto. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Underwriter or to any
controlling person of that Underwriter.
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements
or omissions, made in the Registration Statement (or any amendment thereto),
including the Offering Terms, or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity
with the written information furnished to the Company by such Underwriter
through expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), which
information is set forth on Schedule C hereto. The foregoing indemnity is in
addition to any liability which any Underwriter may otherwise have to the
Company or any such director, officer or controlling person.
22
<PAGE>
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it
is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. In the case of parties indemnified pursuant to
Section 7(a) above, counsel to the indemnified parties shall be selected by
, and, in the case of parties
indemnified pursuant to Section 7(b) above, counsel to the indemnified
parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; PROVIDED,
HOWEVER, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their
own counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances. No indemnifying party
shall, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 7 or
Section 8 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all
liability (including any obligation to pay any amounts in settlements)
arising out of such litigation, investigation, proceeding or claim and (ii)
does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 7(a)(ii) effected without its written consent
if (i) such settlement is entered into more than 45 days after receipt by
such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with
such request prior to the date of such settlement.
SECTION 8. CONTRIBUTION
If the indemnification provided for in Section 7 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party
in respect of any losses, liabilities, claims, damages or expenses referred
to therein, then each indemnifying party shall contribute to the aggregate
amount of such losses, liabilities, claims, damages and expenses incurred by
such indemnified party, as incurred, (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and
the Underwriters on the other hand from the offering of the Senior Notes
pursuant to this Agreement or (ii) if the allocation provided by
23
<PAGE>
clause (i) 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 on the one hand and of
the Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Senior
Notes pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Senior Notes
pursuant to this Agreement (before deducting expenses) received by the
Company and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, or, if Rule 434 is
used, the corresponding location on the Term Sheet, bear to the aggregate
initial public offering price of the Senior Notes as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state 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 Section 8 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 above in this Section 8. The
aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 8
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Senior Notes underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same
24
<PAGE>
rights to contribution as such Underwriter, and each director of the Company,
each officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The Underwriters' respective obligations to
contribute pursuant to this Section 8 are several in proportion to the
principal amount of Senior Notes set forth opposite their respective names in
Schedule A hereto and not joint.
SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of the Senior Notes to the Underwriters.
SECTION 10. TERMINATION OF AGREEMENT
(a) TERMINATION; GENERAL. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time
(i) if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the Prospectus, any
loss sustained by the Company 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 regardless of whether or not such loss
shall have been insured, or any material adverse change in the condition,
financial or otherwise, or in the earnings, results of operations,
properties, business affairs or business prospects of the Company, whether or
not arising in the ordinary course of business, or (ii) if there has occurred
any material adverse change in the financial markets in the United States,
any outbreak of hostilities or escalation thereof or other calamity or crisis
or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Senior Notes or to enforce
contracts for the sale of the Senior Notes, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq
National Market has been suspended or materially limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either Federal, New York or Oklahoma authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 1, 7, 8 and 9 shall survive such termination and remain in full
force and effect.
25
<PAGE>
SECTION 11. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS
If one or more of the Underwriters fails at Closing Time to purchase the
Senior Notes which it or they are obligated to purchase under this Agreement
(the "Defaulted Senior Notes"), the Representatives will have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriter or underwriters, to
purchase all, but not less than all, of the Defaulted Senior Notes in such
amounts as may be agreed upon and upon the terms herein set forth; if,
however, the Representatives do not complete such arrangements within such
24-hour period, then:
(a) if the number of Defaulted Senior Notes does not exceed 10% of
the aggregate principal amount of the Senior Notes to be purchased
hereunder, each of the non-defaulting Underwriters will be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear
to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Senior Notes exceeds 10% of the
aggregate principal amount of the Senior Notes to be purchased hereunder,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section will relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representatives or the Company will have the
right to postpone Closing Time for a period not exceeding seven days in order
to effect any required changes in the Registration Statement or Prospectus or
in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 11.
SECTION 12. NOTICES
All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Underwriters shall be
directed to the Representatives at attention of;
each with a copy to Jones,
Day, Reavis & Pogue, 77 West Wacker, Chicago, Illinois 60601, Attention:
Robert A. Yolles, Esq. Notices to the Company shall be directed to it at
Oklahoma Gas and Electric Company, 101 North Robinson, Oklahoma City,
Oklahoma, Attention: President, with a copy to Gardner, Carton & Douglas,
Quaker Tower, Suite 3100, 321 North Clark Street, Chicago, Illinois 60610,
Attention: Peter D. Clarke, Esq.
26
<PAGE>
SECTION 13. PARTIES
This Agreement shall each inure to the benefit of and be binding upon
the Underwriters and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 7 and 8 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Senior Notes from any
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 14. GOVERNING LAW AND TIME
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF OKLAHOMA. Except as otherwise set forth herein,
specified times of day refer to New York City time.
SECTION 15. EFFECT OF HEADINGS
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
[This space intentionally left blank]
27
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its
terms.
Very truly yours,
OKLAHOMA GAS AND ELECTRIC COMPANY
By___________________________________________________
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
BY:
By___________________________________________________
Title:
<PAGE>
SCHEDULE A
Principal
Amount of
Name of Underwriter Senior Notes
_______________________________________________________ ____________
. . . . . . . . $
. . . . . . . .
. . . . . . . .
. . . . . . . .
____________
Total . . . . . . . . . . . . . . . . . . . . . . . . . $
____________
Sch. A-1
<PAGE>
SCHEDULE B
OKLAHOMA GAS AND ELECTRIC COMPANY
$ Senior Notes, Series due ,
1. The initial public offering price of the Senior Notes is % of
the principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Underwriters for the Senior Notes
is % of the principal amount thereof.
3. The interest rate on the Senior Notes is % per annum.
4. The Company, at its option, may redeem on any date on or after
, all or, from time to time, any part of the Senior Notes
at a redemption price equal to the greater of (i) % of the principal
amount of such Senior Notes and (ii) the sum of the present values of the
remaining scheduled payments of principal and interest thereon from and after
the date of redemption discounted to the redemption date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate (as defined in the Indenture), plus in each case accrued and unpaid
interest thereon to the date of redemption.
[5. The holder of each Senior Note may elect to have such Senior Note, or
any portion thereof which is a multiple of $ , repaid on
, at % of its principal amount plus accrued and unpaid
interest to , .]
[6. The Oklahoma Real Estate Mortgage Tax is %.]
Sch. B-1
<PAGE>
SCHEDULE C
The information set forth below constitutes the only information
furnished to the Company by any Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or preliminary prospectus
or the Prospectus (or any amendment or supplement thereto):
Sch. C-1
<PAGE>
EXHIBIT 4.30
----------------------------------------------------------------------
----------------------------------------------------------------------
SUPPLEMENTAL TRUST INDENTURE
FROM
OKLAHOMA GAS AND ELECTRIC COMPANY
TO
THE BANK OF
NEW YORK
TRUSTEE
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DATED
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SUPPLEMENTAL TO TRUST INDENTURE
DATED FEBRUARY 1, 1945
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TABLE OF CONTENTS
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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
SECTION 2.01 -- Terms of bonds of Senior Note Series ............. 7
SECTION 2.02 -- Bonds of Senior Note Series 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.............................................. 8
SECTION 2.05 -- Charges for exchange or transfer of bonds........... 8
ARTICLE III.
REDEMPTION OF BONDS OF SENIOR NOTE SERIES
SECTION 3.01 -- Redemption of Bonds................................. 10
SECTION 3.02 -- Sinking Fund for Bonds.............................. 10
SECTION 3.03 -- Payment on Redemption............................... 10
SECTION 3.04 -- Other Principal Repayments.......................... 10
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<TABLE>
<S> <C><C> <C> <C>
ARTICLE IV.
FINANCING STATEMENT TO COMPLY WITH THE UNIFORM COMMERCIAL CODE
SECTION 4.01 -- Names and addresses of debtor and secured party..... 11
SECTION 4.02 -- Property subject to lien............................ 11
SECTION 4.03 -- Maturity dates and principal amounts of obligations
secured............................................. 11
SECTION 4.04 -- Financing Statement adopted for all First Mortgage
Bonds listed in Section 4.03........................ 11
SECTION 4.05 -- Recording data for Original Indenture and prior
Supplemental Indentures............................. 12
SECTION 4.06 -- Financing Statement covers additional series of
First Mortgage Bonds................................ 12
ARTICLE V.
MISCELLANEOUS
SECTION 5.01 -- Recitals of fact, except as stated, are statements
of the Company...................................... 12
SECTION 5.02 -- Supplemental Trust Indenture to be construed as a
part of the Original Indenture...................... 12
SECTION 5.03 -- (a) Trust Indenture Act to control...................... 12
(b) Severability of provisions contained in Supplemental
Trust Indenture and bonds........................... 13
SECTION 5.04 -- Word "Indenture" as used herein includes in its
meaning the Original Indenture and all indentures
supplemental thereto................................ 13
SECTION 5.05 -- References to either party in Supplemental Trust
Indenture include successors or assigns............. 13
SECTION 5.06 -- (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>
II
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SUPPLEMENTAL TRUST INDENTURE, made as of the day of 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 The Bank of New York, a New York
banking corporation, having its principal office in the City of New York City,
in the State of New York, 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, The Bank of New
York 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
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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 (redeemed)
January 1, 1972....................... Series due January 1, 2002
January 1, 1974....................... Series due January 1, 2004 (redeemed)
January 1, 1975....................... Series due January 1, 2005 (redeemed)
January 1, 1976....................... Series due January 1, 2006 (redeemed)
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
October 1, 1995....................... Senior Note Series A and Senior Note Series B;
July 1, 1997.......................... Senior Note Series C and Senior Note Series D; 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 $ principal amount of its
Senior Notes, % Series due (the "Senior Notes due ")
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 The Bank of New York, as trustee (said trustee or any successor
trustee under the Senior Note Indenture being hereinafter referred to as the
"Senior Note Trustee"); and
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WHEREAS, in order to secure the Company's obligations to pay principal,
premium, if any, and interest on the Senior Notes due and any other series
of notes issued under the Senior Note Indenture prior to the Release Date (as
hereinafter defined) (the Senior Notes due 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 ", 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
, 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 )
OKLAHOMA GAS AND ELECTRIC COMPANY
(Incorporated under the laws of Oklahoma)
First Mortgage Bonds
Senior Note Series
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 The Bank of New York, 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 The Bank of New York, trustee, under the Indenture dated as
of October 1, 1995 (the "Senior Note Indenture") between the Company and The
Bank of New York 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 The Bank
of New York, at New York, New York, the sum of Dollars in lawful
money of the United States of America, on the 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 The Bank of New York, at New York,
New York, on the day of and on the day of 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 or will be paid to the person in whose name this bond was
registered at the close of business on the record date (the prior to
such or the prior to such 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 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, October 1, 1995, July 1, 1997 and
(all of which instruments are herein collectively called the Indenture),
between the Company and The Bank of New York (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
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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.
All or part of the Bonds of this Series are required to be redemed upon the
occurrence of certain events and upon the terms and conditions provided in the
Supplemental Trust Indenture dated . [All or part of the Bonds of
this Series also are subject to repayment at the option of the holders thereof
upon the terms and conditions provided in the Supplemental Trust Indenture dated
.]
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 [, purchase] 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 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.
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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 The Bank of New York, 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.
THE BANK OF NEW YORK
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 ; and
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
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and with The Bank of New York, 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 The Bank of New York, 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;
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,
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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
SECTION 2.01. There is hereby created for issuance under the Indenture a
series of bonds designated Senior Note Series , each of which shall bear the
descriptive title "First Mortgage Bond, Senior Note Series " 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 , 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 % per annum payable semi-annually on and 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 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 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 . Bonds of Senior Note Series 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 , it
shall be dated as of , , unless (iii) below is applicable, (ii)
if the Company shall at the time of the authentication of a Bond of Senior Note
Series be in default in the payment of interest upon the Bonds of Senior Note
Series , 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 , if any Bond of Senior Note Series 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 ( or ) for Bonds of Senior Note Series shall mean the
prior to such or the prior to such unless such
or 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 2.02. Upon payment of the principal of, premium, if any, and/or
interest on the Senior Notes due , whether at maturity or prior to maturity
by redemption [, purchase] 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 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
Senior Note Series shall be surrendered to and cancelled by the Trustee. From
and after such time as all bonds (other than Bonds of Senior Note 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 Senior Note
Series shall
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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 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 need not be specified in any Bond of Senior Note Series if an
appropriate reference be made in said Bond to the provisions of this
Supplemental Trust Indenture. [The terms and conditions for the repayment of the
Bonds of Senior Note Series at the option of the holder of any such Bond
need not be specified in the Bonds of Senior Note Series if an appropriate
reference is 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 at his option may surrender the same at the principal corporate trust
office of the Trustee, or elsewhere if authorized by the Company, for
cancellation, in exchange for other Bonds of Senior Note Series 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 , other than for taxes or other
governmental charges, if any, that may be imposed in relation thereto.
ARTICLE III.
REDEMPTION OF BONDS OF SENIOR NOTE SERIES
SECTION 3.01. (a) Upon notice being given of the redemption of all or part
of the Senior Notes due 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 equal to the
principal amount of Senior Notes due to be redeemed, at a redemption price
equal to the principal amount of such Bonds of Senior Note Series to be
redeemed, plus a premium equal to the premium payable on the redemption of such
Senior Notes due , 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 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 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 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.
8
<PAGE>
[(c) In the event that one or more holders of Senior Notes due properly
elect to have all or a portion of the outstanding principal amount of their
Senior Notes due repurchased by the Company on in accordance with
the Senior Note Indenture so that such principal amount of Senior Notes due
becomes due and payable on under the Senior Note Indenture, then the
Company shall repurchase on a principal amount of Bonds of Senior
Notes Series equal to the principal amount of Senior Notes due to be
repurchased on at a price equal to the principal amount of such Bonds of
Senior Note Series to be repurchased, plus accrued interest to such date.
SECTION 3.02. The Company covenants that, for so long as any Bonds of
Senior Note Series are outstanding, it will take appropriate action so that
Bonds of Senior Note Series are not redeemed or purchased pursuant to the
Sinking Fund requirement provided for in Article XII of the Original Indenture.
SECTION 3.03. Redemption [or purchase] of Bonds of Senior Note Series
shall be effected, without further notice by the Company or the Trustee, by the
payment by the Company of the applicable price specified in Section 3.01 hereof
at the place specified for payment of the principal of and interest on such
bonds.
SECTION 3.04. The Company covenants and agrees that, prior to the Release
Date, it will not take any action (except as required by Section 3.01(b) hereof)
that would cause the outstanding principal amount of the Bonds of Senior Note
Series to be less than the then outstanding principal amount of the Senior
Notes due .
ARTICLE IV.
FINANCING STATEMENT TO COMPLY WITH THE UNIFORM COMMERCIAL CODE
SECTION 4.01. 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: The Bank of New York, Trustee
101 Barclay Street
New York, New York
SECTION 4.02. 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 4.03. 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, 1999..................................... $ 12,500,000
Series due January 1, 2002..................................... $ 40,000,000
Series due November 1, 2007.................................... $ 35,000,000
Senior Note Series A........................................... $ 110,000,000
Senior Note Series B........................................... $ 110,000,000
Senior Note Series C........................................... $ 125,000,000
Senior Note Series D........................................... $ 125,000,000
Senior Note Series E........................................... $
</TABLE>
9
<PAGE>
SECTION 4.04. This Financing Statement is hereby adopted for all of the
First Mortgage Bonds of the series mentioned above secured by the Indenture.
SECTION 4.05. 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, the
Supplemental Indenture dated December 9, 1991, the Supplemental Indenture dated
October 1, 1995, the Supplemental Indenture dated July 1, 1997 and the
Supplemental Indenture dated 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 4.06. 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 V.
MISCELLANEOUS
SECTION 5.01. 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 5.02. This Supplemental Trust Indenture shall be construed in
connection with and as a part of the Indenture.
10
<PAGE>
SECTION 5.03. (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.
(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 5.04. 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 5.05. 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 5.06. (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.
11
<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 The Bank of New York, a New York banking
corporation, 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 day of , A.D. .
OKLAHOMA GAS AND ELECTRIC COMPANY
BY , SENIOR VICE
PRESIDENT.
(CORPORATE SEAL)
ATTEST:
/S/
, SECRETARY.
Executed by Oklahoma Gas and
Electric Company in presence of:
/s/
,
/s/
, WITNESSES.
THE BANK OF NEW YORK
/s/
BY , VICE PRESIDENT.
(CORPORATE SEAL)
ATTEST:
, VICE PRESIDENT.
Executed by The Bank of New York
in presence of:
/s/
,
/s/
, WITNESSES.
12
<PAGE>
STATE OF OKLAHOMA.
SS:
COUNTY OF OKLAHOMA.
Before me, a Notary Public in and for said County and State, on this day
of , personally appeared , 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.
/s/
, NOTARY PUBLIC.
(NOTARIAL SEAL)
My Commission Expires:
STATE OF NEW YORK.
SS:
COUNTY OF .
Before me, a Notary Public in and for said County and State, on this day
of , personally appeared , to me known to be the
identical person who subscribed the name of The Bank of New York, 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.
/s/
, NOTARY PUBLIC.
(NOTARIAL SEAL)
My Commission Expires:
13
<PAGE>
SCHEDULE A
REAL PROPERTIES
IN THE STATE OF OKLAHOMA
The following described real property, situate, lying and being in the
County of , State of Oklahoma, to-wit:
IN THE STATE OF ARKANSAS
The following described real property, situate, lying and being in the
County of , State of Arkansas, to-wit:
A-1
<PAGE>
SUPPLEMENTAL TRUST INDENTURE RECORDING DATA
OKLAHOMA
FILING DATE:
<TABLE>
<CAPTION>
FILED AS REAL ESTATE MORTGAGE
PUBLIC SERVICE ------------------------------
MORTGAGE NO. BOOK PAGE
---------------- --------------- -------------
<S> <C> <C> <C>
Secretary of State
Oklahoma City..................................
</TABLE>
SUPPLEMENTAL TRUST INDENTURE RECORDING DATA
ARKANSAS
FILING DATE:
<TABLE>
<CAPTION>
REAL ESTATE MORTGAGE
DOCUMENT ------------------------------
NUMBER BOOK PAGE
---------------- --------------- -------------
<S> <C> <C> <C>
Secretary of State
Little Rock....................................
Sebastian County.................................
Franklin County..................................
Logan County.....................................
Crawford County..................................
Johnson County...................................
Scott County.....................................
Washington County................................
UCC..............................................
</TABLE>
A-2
<PAGE>
EXHIBIT 4.34
- ------------------------------------------------------------------------------
FORM OF
SUPPLEMENTAL INDENTURE NO.
FROM
OKLAHOMA GAS AND ELECTRIC
COMPANY
TO
THE BANK OF NEW YORK
TRUSTEE
DATED AS OF
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.............................. 2
SECTION 1.02 (a) Definitions......................................... 2
(b) References to Articles and Sections................. 2
(c) Terms Referring to this Supplemental Indenture...... 2
ARTICLE TWO
% SENIOR NOTES, SERIES DUE ,
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...................................... 3
SECTION 2.05 Redemption Provisions................................... 3
SECTION 2.06 Mandatory Repurchase Provisions......................... 4
SECTION 2.07 Authorized Denominations................................ 4
[SECTION 2.08 Related Series of First Mortgage Bonds.................. 4]
SECTION 2.09 Form of % Senior Notes, Series Due
, ............................................... 4
ARTICLE THREE
ADDITIONAL COVENANTS
[SECTION 3.01 Limitations on Liens................................... 5
SECTION 3.02 Limitations on Sale and Lease-Back Transactions........ 6
SECTION 3.03 Definitions............................................ 7]
ARTICLE FOUR
MISCELLANEOUS
SECTION 4.01 Recitals of fact, except as stated, are statements
of the Company.......................................... 9
SECTION 4.02 Supplemental Indenture to be construed as a part
of the Indenture........................................ 9
SECTION 4.03 (a) Trust Indenture Act to control...................... 9
(b) Severability of provisions contained in
Supplemental Indenture and Notes.................... 9
SECTION 4.04 References to either party in Supplemental Indenture
include successors or assigns........................... 9
(i)
<PAGE>
SECTION 4.05 (a) Provision for execution in counterparts............. 9
(b) Table of Contents and descriptive headings
of Articles not to affect meaning................... 9
(ii)
<PAGE>
SUPPLEMENTAL INDENTURE No. , made as of the day of , 199 , 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 THE BANK
OF NEW YORK, a New York banking corporation, 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, the Company has heretofore executed and delivered its
Supplemental Indenture No. 1 dated as of October 16, 1995, adding to the
covenants, conditions and agreements of the Indenture certain additional
covenants, conditions and agreements to be observed by the Company, and
creating two series of Notes designated "7.30% Senior Notes, Series due
October 15, 2025" and "6.250% Senior Notes, Series due October 15, 2000"; and
WHEREAS, the Company has heretofore executed and delivered its
Supplemental Indenture No. 2 dated as of July 1, 1997, adding to the
covenants, conditions and agreements of the Indenture certain additional
covenants, conditions and agreements to be observed by the Company, and
creating two series of Notes designated "6.65% Senior Notes, Series due
October 15, 2027" and "6.50% Senior Notes, Series due July 15, 2017"; 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, Boatmen's First National Bank of Oklahoma was formerly the
Trustee under the Indenture and NationsBank, N.A. succeeded Boatmen's First
National Bank of Oklahoma as Trustee pursuant to Section 9.13 of the Indenture
and The Bank of New York has subsequently succeeded Boatmen's First National
Bank of Oklahoma as Trustee pursuant to Section 9.13 of the Indenture; and
WHEREAS, the Company has this day delivered a Company Order setting forth
the terms of a series of Notes designated " % Senior Notes, Series due
, " (hereinafter sometimes referred to as the "Senior Notes due
"); 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.
(herein, "this Supplemental Indenture") have been duly authorized by a
resolution adopted by the Board of Directors of the Company;
1
<PAGE>
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to set forth the terms and conditions upon which the Senior
Notes due 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 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 , 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:
(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; and
(c) The terms "hereof," "herein," "hereby," "hereto," "hereunder"
and "herewith" refer to this Supplemental Indenture.
ARTICLE TWO
% SENIOR NOTES, SERIES DUE ,
SECTION 2.01 There shall be a series of Notes designated the " %
Senior Notes, Series due " (the "Senior Notes due "). The Senior Notes
due shall be limited to $___________________ aggregate principal amount.
SECTION 2.02 Except as otherwise provided in Section 2.05 or Section
2.06 hereof, the principal amount of the Senior Notes due shall be payable
on the stated maturity date of , .
SECTION 2.03 The Senior Notes due shall be dated their date of
authentication as provided in the Indenture and shall bear interest at the rate
of % per annum, payable semi-annually on and of each year,
commencing . The Regular Record Dates with respect to such
and interest payment dates shall be and , 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.
2
<PAGE>
SECTION 2.04 The Senior Notes due 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 Company, at its option, may redeem on any date on or
after , all or, from time to time, any part of the Senior Notes due
, upon notice as provided in the Indenture, at a redemption price equal to
the greater of (i) 100% of the principal amount of such Senior Notes due
to be redeemed and (ii) the sum of the present values of the remaining
scheduled payments of principal and interest thereon from and after the date of
redemption discounted to the redemption date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate, plus in
each case accrued and unpaid interest thereon to the date of redemption.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed
as a percentage of its principal amount) equal to the Comparable Treasury Price
for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Senior Notes due to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Senior Notes due . "Independent
Investment Banker" means one of the Reference Treasury Dealers appointed by the
Senior Note Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any redemption date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is
not published or does not contain such prices on such third business day,
(A) the average of the Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest of such Reference Treasury Dealer
Quotations, or (B) if the Senior Note Trustee is unable to obtain at least four
such Reference Treasury Dealer Quotations, the average of all such Quotations
obtained. "Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined
by the Senior Note Trustee, of the bid and asked prices of the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Senior Note Trustee by such Reference Treasury Dealer
at 5:00 p.m., New York City time, on the third business day preceding such
redemption date.
"Reference Treasury Dealer" means each of Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Bear, Stearns & Co. Inc., Lehman Brothers Inc. and Morgan
Stanley & Co.
3
<PAGE>
Incorporated, and their respective successors; provided, however, that if any
of the foregoing shall cease to be a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"), the Company shall
substitute therefor another Primary Treasury Dealer.
The Senior Notes due shall not be subject to any sinking fund.
[SECTION 2.06 The Senior Notes due will be repayable on ,
at the option of the holders thereof, at 100% of their principal amount,
together with accrued and unpaid interest to . In order for a Senior
Note due to be repaid, the Company must receive at the corporate trust
office of the Trustee during the period from and including to and
including the close of business on (or if is not a Business
Day, the next succeeding Business Day): (i) a Senior Note due with the
form entitled "Option to Elect Repayment" on the Senior Note due duly
completed, or (ii) a telegram, telex, facsimile transmission or letter from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or a trust company in the United
States of America setting forth the name of the Holder of the Senior Note due
, the principal amount of the Senior Note due , the principal amount of
the Senior Note due to be repaid, a statement that the option to elect
repayment is being exercised thereby and a guarantee that the Senior Note due
to be repaid (with the form entitled "Option to Elect Repayment" on the
Senior Note due duly completed) will be received at the Trustee's
corporate trust office, no later than five Business Days after the date of such
telegram, telex, facsimile transmission or letter and such Note and form duly
completed are received at the Trustee's office, by such fifth Business Day.
Effective exercise of the repayment option by the holder of any Senior Note due
shall be irrevocable. No transfer or exchange of any Senior Note due
(or, in the event that any Senior Note due is to be repaid in part, such
portion of the Senior Note due to be repaid) will be permitted after
exercise of the repayment option. The repayment option may be exercised by the
Holder of a Senior Note due for less than the entire principal amount of
the Senior Note due , provided the principal amount which is to be repaid
is set forth on the form entitled "Option to Elect Repayment" on the Senior
Note due and is equal to $1,000 or any integral multiple thereof. All
questions as to the validity, eligibility (including time of receipt) and
acceptance of any Senior Note due for repayment will be determined by the
Company, whose determination will be final, binding and non-appealable. Upon
timely delivery of a Senior Note due to the Trustee with the "Option to
Elect Repayment" form completed in accordance with the foregoing, the
outstanding principal amount of such Senior Note due (or portion thereof
indicated on the "Option to Elect Repayment") shall become due and payable on
, at a price equal to % of the principal amount to be repaid plus
accrued and unpaid interest to .]
SECTION 2.07 The Senior Notes due shall be issued in fully
registered form without coupons in denominations of $1,000 and integral
multiples thereof.
[SECTION 2.08 The related series of Senior Note First Mortgage Bonds for
the Senior Notes due is the Company's First Mortgage Bonds, Senior Note
Series.]
SECTION 2.09 The Senior Notes due shall initially be in the form
attached as Exhibit A hereto.
4
<PAGE>
ARTICLE THREE
ADDITIONAL COVENANTS
SECTION 3.01
[(a) From and after the Release Date and so long as any Senior Notes due
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 (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) 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
5
<PAGE>
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 3.01(a), from and after
the Release Date and so long as any Senior Notes due
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 3.01(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 3.01(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 3.01(a), other than
Sale and Lease-Back Transactions permitted by Section 3.02 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
3.02, and other than Sale and Lease-Back Transactions as to which application
of amounts have been made in accordance with clause (z) of Section 3.02),
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 3.01(a) requires that the outstanding
Senior Notes due 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 3.01(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 equally and ratably with any other obligation or indebtedness
(including other Notes) pursuant to the provisions of this Section 3.01, 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 3.02. From and after the Release Date and so long as any Senior
Notes due 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
6
<PAGE>
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 3.01(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 3.01(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 3.01(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 3.03. Definitions
For purposes of Section 3.01 and Section 3.02, 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
(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
7
<PAGE>
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 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.]
8
<PAGE>
ARTICLE FOUR
MISCELLANEOUS
SECTION 4.01 The recitals of fact herein and in the Senior Notes due
(except the Trustee's Certificate) shall be taken as statements of the
Company and shall not be construed as made by the Trustee.
SECTION 4.02 This Supplemental Indenture shall be construed in
connection with and as a part of the Indenture.
SECTION 4.03
(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 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 4.04 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 4.05
(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.
9
<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 THE BANK OF NEW YORK,
has caused this Supplemental Indenture to be signed by its President or a Vice
President, and attested by a Vice President, this day of .
OKLAHOMA GAS AND ELECTRIC COMPANY
By: Steven E. Moore, President
ATTEST:
Irma B. Elliott, SECRETARY.
THE BANK OF NEW YORK, as Trustee
By: , Vice President
ATTEST:
, VICE PRESIDENT.
10
<PAGE>
FORM OF EXHIBIT A
FORM OF SENIOR NOTE, SERIES
DUE
REGISTERED REGISTERED
THIS NOTE IS A GLOBAL NOTE REGISTERED IN THE NAME OF THE DEPOSITARY
(REFERRED TO HEREIN) OR A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL
NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK), TO THE TRUSTEE FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS
MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
OKLAHOMA GAS AND ELECTRIC COMPANY
% SENIOR NOTE, SERIES DUE
CUSIP: NUMBER:
ORIGINAL ISSUE DATE(S): PRINCIPAL AMOUNT(S): $
INTEREST RATE: % MATURITY DATE:
OKLAHOMA GAS AND ELECTRIC COMPANY, a corporation of the State of Oklahoma
(the "COMPANY"), for value received hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of
on the Maturity Date set forth above, and to pay interest thereon from the
Original Issue Date (or if this Global Note has two or more Original Issue
Dates, interest shall, beginning on each such Original Issue Date, begin to
accrue for that part of the principal amount to which that Original Issue Date
is applicable) set forth above or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semiannually in arrears on
and in each year, commencing on the first such Interest Payment
Date succeeding the applicable Original Issue Date set forth above, at the per
annum Interest Rate set forth above, until the principal hereof is paid or made
available for payment. No interest shall accrue on the Maturity Date, so long
as the principal amount of this Global Note is paid on the Maturity Date.
<PAGE>
The interest so payable and punctually paid or duly provided for on any such
Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Note is registered at the close of business on the
Regular Record Date for such interest, which shall be the or the ,
as the case may be, next preceding such Interest Payment Date; provided
that the first Interest Payment Date for any part of this Note, the Original
Issue Date of which is after a Regular Record Date but prior to the
applicable Interest Payment Date, shall be the Interest Payment Date
following the next succeeding Regular Record Date; and provided that interest
payable on the Maturity Date set forth above or, if applicable, upon
redemption, repayment or acceleration, shall be payable to the Person to whom
principal shall be payable. Except as otherwise provided in the Indenture
(as defined below), any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the Holder on such Regular Record
Date and shall be paid to the Person in whose name this Note is registered at
the close of business on a Special Record Date for the payment of such
defaulted interest to be fixed by the Trustee, notice whereof shall be given
to Noteholders not more than fifteen days or fewer than ten days prior to
such Special Record Date. On or before 10:00 a.m., New York City time, or
such other time as shall be agreed upon between the Trustee and the
Depositary, of the day on which such payment of interest is due on this
Global Note (other than maturity), the Trustee shall pay to the Depositary
such interest in same day funds. On or before 10:00 a.m., New York City
time, or such other time as shall be agreed upon between the Trustee and the
Depositary, of the day on which principal, interest payable at maturity and
premium, if any, is due on this Global Note, the Trustee shall deposit with
the Depositary the amount equal to the principal, interest payable at
maturity and premium, if any, by wire transfer into the account specified by
the Depositary. As a condition to the payment, on the Maturity Date or upon
redemption, repayment or acceleration, of any part of the principal and
applicable premium of this Global Note, the Depositary shall surrender, or
cause to be surrendered, this Global Note to the Trustee, whereupon a new
Global Note shall be issued to the Depositary.
This Global Note is a global security in respect of a duly authorized
issue of % Senior Notes, Series due (the "NOTES OF THIS SERIES",
which term includes any Global Notes representing such Notes) of the Company
issued and to be issued under an Indenture dated as of October 1, 1995 between
the Company and The Bank of New York, as successor trustee (the "TRUSTEE",
which term includes any subsequent successor Trustee under the Indenture) to
Boatmen's First National Bank of Oklahoma, and indentures supplemental thereto
(collectively, the "INDENTURE"). Under the Indenture, one or more series of
notes may be issued and, as used herein, the term "Notes" refers to the Notes
of this Series and any other outstanding series of Notes. Reference is hereby
made to the Indenture for a more complete statement of the respective rights,
limitations of rights, duties and immunities under the Indenture of the
Company, the Trustee and the Noteholders and of the terms upon which the Notes
are and are to be authenticated and delivered. This Global Note has been
issued in respect of the series designated on the first page hereof, limited in
aggregate principal amount to $ .
[Prior to the Release Date (as hereinafter defined), the Notes will be
secured by first mortgage bonds (the "SENIOR NOTE FIRST MORTGAGE BONDS")
delivered by the Company to the Trustee for the benefit of the Holders of the
Notes, issued under the Trust Indenture, dated as of February 1, 1945, from the
Company to The Bank of New York, as successor trustee to The First National
Bank and Trust Company of Oklahoma City (the "MORTGAGE TRUSTEE"), as
supplemented and modified (collectively, the "FIRST MORTGAGE"). Reference is
made to the First Mortgage and the Indenture for a description of the rights of
the Trustee as holder of the Senior Note First Mortgage Bonds, the property
mortgaged and pledged, under the First Mortgage and the rights of the Company
and of the Mortgage Trustee in respect thereof, the duties and immunities of
the Mortgage Trustee and the terms and conditions upon which the Senior Note
First Mortgage Bonds are secured and the circumstances under which additional
first mortgage bonds may be issued.
-2-
<PAGE>
FROM AND AFTER SUCH TIME AS ALL FIRST MORTGAGE BONDS (OTHER THAN SENIOR
NOTE FIRST MORTGAGE BONDS) ISSUED UNDER THE FIRST MORTGAGE HAVE BEEN RETIRED
THROUGH PAYMENT, REDEMPTION OR OTHERWISE (INCLUDING THOSE FIRST MORTGAGE BONDS
"DEEMED TO BE PAID" WITHIN THE MEANING OF THAT TERM AS USED IN ARTICLE X OF THE
FIRST MORTGAGE) AT, BEFORE OR AFTER THE MATURITY THEREOF (THE "RELEASE DATE"),
THE SENIOR NOTE FIRST MORTGAGE BONDS SHALL CEASE TO SECURE THE NOTES IN ANY
MANNER. IN CERTAIN CIRCUMSTANCES PRIOR TO THE RELEASE DATE AS PROVIDED IN THE
INDENTURE, THE COMPANY IS PERMITTED TO REDUCE THE AGGREGATE PRINCIPAL AMOUNT OF
A SERIES OF SENIOR NOTE FIRST MORTGAGE BONDS HELD BY THE TRUSTEE, BUT IN NO
EVENT PRIOR TO THE RELEASE DATE TO AN AMOUNT LESS THAN THE AGGREGATE
OUTSTANDING PRINCIPAL AMOUNT OF THE SERIES OF NOTES INITIALLY ISSUED
CONTEMPORANEOUSLY WITH SUCH SENIOR NOTE FIRST MORTGAGE BONDS.]
Each Note of this Series shall be dated and issued as of the date of its
authentication by the Trustee and shall bear an Original Issue Date or Dates.
Each Note or Global Note issued upon transfer, exchange or substitution of such
Note or Global Note shall bear the Original Issue Date or Dates of such
transferred, exchanged or substituted Note or Global Note, as the case may be.
The Company, at its option, may redeem on any date on or after , all
or, from time to time, any part of this Global Note at a redemption price equal
to the greater of (i) 100% of the principal amount of this Global Note to be
redeemed and (ii) the sum of the present values of the remaining scheduled
payments of principal and interest thereon discounted to the redemption date on
a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate, plus in each case accrued and unpaid interest
thereon to the date of redemption.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed
as a percentage of its principal amount) equal to the Comparable Treasury Price
for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes of this Series to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of Notes of this Series. "Independent
Investment Banker" means one of the Reference Treasury Dealers appointed by the
Senior Note Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any redemption date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is
not published or does not contain such prices on such third business day,
(A) the average of the Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest of such Reference Treasury Dealer
Quotations, or (B) if the Senior Note Trustee is unable to obtain at least four
such Reference Treasury Dealer Quotations, the average of all such Quotations
obtained. "Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined
by the Senior Note Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Senior Note Trustee by such Reference Treasury Dealer
at 5:00 p.m., New York City time, on the third business day preceding such
redemption date.
-3-
<PAGE>
"Reference Treasury Dealer" means each of Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Bear, Stearns & Co. Inc., Lehman Brothers Inc. and Morgan
Stanley & Co. Incorporated, and their respective successors; provided, however,
that if any of the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), the Company
shall substitute therefor another Primary Treasury Dealer.
Notice of redemption will be given by mail to Holders of Notes of this
Series not less than 30 or more than 60 days prior to the date fixed for
redemption, all as provided in the Indenture. In the event of redemption of
this Global Note in part only, a new Global Note or Notes of like tenor and
series for the unredeemed portion hereof will be issued in the name of the
Noteholder hereof upon the surrender hereof.
[The Notes of this Series will be repayable on , at the option of
the Holders thereof, at 100% of their principal amount, together with accrued
and unpaid interest to . In order for this Global Note to be repaid, the
Company must receive at the corporate trust office of the Trustee during the
period from and including to and including the close of business on
(or if is not a Business Day, the next succeeding Business
Day): (i) this Global Note with the form entitled "Option to Elect Repayment"
on this Global Note duly completed, or (ii) a telegram, telex, facsimile
transmission or letter from a member of a national securities exchange or the
National Association of Securities Dealers, Inc. or a commercial bank or a
trust company in the United States of America setting forth the name of the
Holder of this Global Note, the principal amount of this Global Note, the
principal amount of this Global Note to be repaid, a statement that the option
to elect repayment is being exercised thereby and a guarantee that this Global
Note (with the form entitled "Option to Elect Repayment" on this Global Note
duly completed) will be received at the Trustee's corporate trust office, no
later than five Business Days after the date of such telegram, telex, facsimile
transmission or letter and this Global Note and form duly completed are
received at the Trustee's office, by such fifth Business Day. Effective
exercise of the repayment option by the Holder of any Note of this Series shall
be irrevocable. No transfer or exchange of any Note of this Series (or, in the
event that any Note of this Series is to be repaid in part, such portion of the
Note of this Series to be repaid) will be permitted after exercise of the
repayment option. The repayment option may be exercised by the Holder of a
Note of this Series for less than the entire principal amount of the Note of
this Series, provided the principal amount which is to be repaid is set forth
on the form entitled "Option to Elect Repayment" on the Note of this Series and
is equal to $1,000 or any integral multiple thereof. All questions as to the
validity, eligibility (including time of receipt) and acceptance of any Note of
this Series for repayment will be determined by the Company, whose
determination will be final, binding and non-appealable. Upon timely delivery
of a Note of this Series to the Trustee with the "Option to Elect Repayment"
form completed in accordance with the foregoing, the outstanding principal
amount of such Note of this Series (or portion thereof indicated on the "Option
to Elect Repayment") shall become due and payable on , at a price equal
to % of the principal amount to be repaid plus accrued and unpaid interest
to .]
Interest payments for this Global Note shall be computed and paid on the
basis of a 360-day year of twelve 30-day months. If any Interest Payment Date
or date on which the principal of this Global Note is required to be paid is
not a Business Day, then payment of principal, premium or interest need not be
made on such date but may be made on the next succeeding Business Day with the
same force and effect as if made on such Interest Payment Date or date on which
the principal of this Global Note is required to be paid and, in the case of
timely payment thereof, no interest shall accrue for the period from and after
such Interest Payment Date or the date on which the principal of this Global
Note is required to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Notes (except for certain obligations including obligations to
register the transfer or exchange of Notes, replace stolen, lost or mutilated
Notes, maintain
-4-
<PAGE>
paying agencies and hold monies for payment in trust, all as set forth in the
Indenture) if the Company deposits with the Trustee money, U.S. Government
Obligations which through the payment of interest thereon and principal
thereof in accordance with their terms will provide money, or a combination
of money and U.S. Government Obligations, in any event in an amount
sufficient, without reinvestment, to pay all the principal of and any premium
and interest on the Notes on the dates such payments are due in accordance
with the terms of the Notes.
If an Event of Default shall occur and be continuing, the principal of the
Notes may be declared due and payable in the manner and with the effect
provided in the Indenture [and, upon such declaration, the Trustee can demand
the redemption of the Senior Note First Mortgage Bonds as provided in the
Indenture.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Noteholders under the Indenture at any time by
the Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the outstanding Notes. Any such consent or
waiver by the Holder of this Global Note shall be conclusive and binding upon
such Holder and upon all future Holders of this Global Note and of any Note
issued upon the registration of transfer hereof or in exchange therefor or in
lieu thereof whether or not notation of such consent or waiver is made upon the
Note.
As set forth in and subject to the provisions of the Indenture, no Holder
of any Notes will have any right to institute any proceeding with respect to
the Indenture or for any remedy thereunder unless such Holder shall have
previously given to the Trustee written notice of a continuing Event of Default
with respect to such Notes, the Holders of not less than a majority in
principal amount of the outstanding Notes affected by such Event of Default
shall have made written request and offered reasonable indemnity to the Trustee
to institute such proceeding as Trustee and the Trustee shall have failed to
institute such proceeding within 60 days; provided that such limitations do not
apply to a suit instituted by the Holder hereof for the enforcement of payment
of the principal of and any premium or interest on this Note on or after the
respective due dates expressed here.
No reference herein to the Indenture and to provisions of this Global Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Global Note at the times, places and rates and the coin or
currency prescribed in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, this Global Note may be transferred only as permitted by the legend
hereto.
If at any time the Depositary for this Global Note notifies the Company
that it is unwilling or unable to continue as Depositary for this Global Note
or if at any time the Depositary for this Global Note shall no longer be
eligible or in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, the Company shall appoint a
successor Depositary with respect to this Global Note. If a successor
Depositary for this Global Note is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such ineligibility,
the Company's election to issue this Note in global form shall no longer be
effective with respect to this Global Note and the Company will execute, and
the Trustee, upon receipt of a Company Order for the authentication and
delivery of individual Notes of this Series in exchange for this Global Note,
will authenticate and deliver individual Notes of this Series of like tenor and
terms in definitive form in an aggregate principal amount equal to the
principal amount of this Global Note.
-5-
<PAGE>
The Company may at any time and in its sole discretion determine that all
Notes of this Series (but not less than all) issued or issuable in the form of
one or more Global Notes shall no longer be represented by such Global Note or
Notes. In such event, the Company shall execute, and the Trustee, upon receipt
of a Company Order for the authentication and delivery of individual Notes of
this Series in exchange for such Global Note, shall authenticate and deliver,
individual Notes of this Series of like tenor and terms in definitive form in
an aggregate principal amount equal to the principal amount of such Global Note
or Notes in exchange for such Global Note or Notes.
Under certain circumstances specified in the Indenture, the Depositary may
be required to surrender any two or more Global Notes which have identical
terms (but which may have differing Original Issue Dates) to the Trustee, and
the Company shall execute and the Trustee shall authenticate and deliver to, or
at the direction of, the Depositary a Global Note in principal amount equal to
the aggregate principal amount of, and with all terms identical to, the Global
Notes surrendered thereto and that shall indicate all Original Issue Dates and
the principal amount applicable to each such Original Issue Date.
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of Oklahoma.
Unless the certificate of authentication hereon has been executed by the
Trustee, directly or through an Authenticating Agent by manual signature of an
authorized officer, this Global Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
All terms used in this Global Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture unless otherwise
indicated herein.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
OKLAHOMA GAS AND ELECTRIC COMPANY
By:--------------------------------
PRESIDENT
Dated: Attest:----------------------------
SECRETARY
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Notes of the series
herein designated, described or provided for
in the within-mentioned Indenture.
THE BANK OF NEW YORK, AS TRUSTEE
By:-------------------------------------------
AUTHORIZED OFFICER
-6-
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to
repay this Senior Note (or portion thereof specified below) on
pursuant to its terms at a price equal to the principal amount thereof,
together with accrued and unpaid interest to , to the undersigned at:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or type the name and address of the undersigned above)
If less than the entire principal amount of this Senior Note is to be
repaid on , specify the principal amount thereof which the holder elects
to have repaid: __________; and specify the denomination or denominations
(which shall not be less than the minimum authorized denomination) of the
Senior Notes to be issued to the holder for the portion of this Senior Note not
being repaid (in the absence of any such specification, one such Note will be
issued for the portion not being repaid): _________________
Dated: ________________________
_______________________________________
(Signature)
NOTICE: The signature of this Option to Elect Repayment must correspond with
the name as written upon the face of the within Senior Note in every
particular without alteration or enlargement or any change whatever.
-7-
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM -- as tenants in common UNIF GIFT
MIN ACT -- _____ Custodian _________
(Cust)
(Minor)
TEN ENT -- as tenants by the entireties Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right of
survivorship and not as tenants in common ___________________________
State
Additional abbreviations may also be used
though not in the above list.
____________
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Please print or typewrite name and address
including postal zip code of assignee
________________________________________
the within note and all rights thereunder,
hereby irrevocably constituting and
appointing
attorney to transfer
said note on the books of the Company, with
full power of substitution in the premises.
Dated:_____________________________________
________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within instrument in
every particular, without alteration or
enlargement or any change whatever.
-8-
<PAGE>
EXHIBIT 5.01
[LETTERHEAD OF RAINEY, ROSS, RICE & BINNS]
February 12, 1998
Oklahoma Gas and Electric Company
101 North Robinson
Oklahoma City, Oklahoma 73101
RE: $112,500,000 PRINCIPAL AMOUNT OF SECURITIES
Gentlemen:
We have examined the Form S-3 Registration Statement, dated February 12,
1998 (the "Registration Statement"), of Oklahoma Gas and Electric Company
(the "Company"), to which this opinion is an exhibit, for the registration
under the Securities Act of 1933, as amended (the "Act"), of an aggregate
principal amount of $112,500,000 of notes ("Senior Notes") issued under the
Indenture, dated October 1, 1995, as heretofore supplemented and amended by a
supplemental indenture and a new supplemental indenture for each series of
Senior Notes, all from the Company to The Bank of New York, as successor, as
trustee (such Indenture, as supplemented and as to be supplemented, is herein
referred to as the "Senior Note Indenture"), which Senior Notes are to be
secured by 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 The Bank of New York, as successor
trustee (such Trust Indenture, as supplemented and as to be supplemented, is
herein referred to as the "First Mortgage Indenture"). The Senior Notes and
the Bonds which are to secure such 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 the 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.
<PAGE>
Oklahoma Gas and Electric Company
February 12, 1998
Page 2
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, other than any new supplemental
indentures, is a valid, legal and binding instrument of the Company.
4. When, as and if the Registration Statement on Form S-3, to which this
opinion is an exhibit, becomes effective pursuant to the provisions of the
Securities Act of 1933, as amended and the Oklahoma Corporation Commission has
authorized the issuance and sale of the Securities and (a) with respect to the
Senior Notes, when, as and if the Senior Notes and one or more new supplemental
indentures relating thereto have been duly executed and delivered, and the
consideration for the Senior Notes duly received by the Company, all in the
manner contemplated by the said Registration Statement, and (b) 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, all in the manner contemplated by the
said Registration Statement, the Bonds and the Senior Notes will be legally
issued and binding obligations of the Company.
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
-----------------
<PAGE>
Exhibit 12.01
Oklahoma Gas and Electric Company
S E C Method
Ratio of Earnings to Fixed Charges - Consolidated
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
Year Ended Year Ended Year Ended Year Ended Year Ended
Dec 31, 1993 Dec 31, 1994 Dec 31, 1995 Dec 31, 1996 Dec 31, 1997
------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Earnings:
Net Income $104,730,000 $113,795,000 $112,544,000 $116,869,000 $120,993,623
Plus Income Taxes:
Federal Income Taxes 64,646,000 47,841,000 72,800,000 73,171,000 60,543,945
State Income Taxes
Federal Deferred Taxes 3,268,000 25,312,000 (2,335,000) 2,156,000 15,927,255
State Deferred Taxes
Invest Tax Credit (5,150,000) (5,150,000) (5,150,000) (5,150,000) (5,149,860)
Taxes (below the line) (538,000) 203,000 1,436,000 (515,000) 1,403,000
Plus Fixed Charges 71,764,921 69,182,293 72,434,118 60,971,574 57,043,106
Total Earnings $238,720,921 $251,183,293 $251,729,118 $247,502,574 $250,761,069
Fixed Charges:
Long-term debt interest 61,397,000 61,226,000 63,970,000 54,141,000 53,280,793
Amort. Disc & Exp
Amort. of Prem
Other interest expense 9,431,000 7,197,000 7,999,000 6,134,000 3,265,089
Calculated int. on
leased property 936,921 759,293 465,118 696,574 497,224
Total Fixed Charges $71,764,921 $69,182,293 $72,434,118 $60,971,574 $57,043,106
- -----------------------------------------------------------------------------------------------------------------------
Ratio of Earnings to
Fixed Charges 3.33 3.63 3.48 4.06 4.40
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT 23.01
CONSENT
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our reports dated January 23,
1997, included in the Oklahoma Gas and Electric Company Form 10-K for the year
ended December 31, 1996 and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
Oklahoma City, Oklahoma
February 9, 1998
<PAGE>
EXHIBIT 23.01
CONSENT
We hereby consent to the use of our name in the Registration Statement,
including the accompanying Prospectus, of Oklahoma Gas and Electric Company to
be filed with the Securities and Exchange Commission and to which this consent
is filed as an Exhibit. The statement made in said Registration Statement that
purports to be made or based upon our opinion correctly sets forth our opinion
on such matter.
CHISENHALL, NESTRUD & JULIAN, P.A.
February 10, 1998
<PAGE>
EXHIBIT 23.01
CONSENT
We hereby consent to the use of our name in the Registration Statement,
including the accompanying Prospectus, of Oklahoma Gas and Electric Company to
be filed with the Securities and Exchange Commission and to which this consent
is filed as an Exhibit.
GARDNER, CARTON & DOUGLAS
February 10, 1998
<PAGE>
EXHIBIT 23.01
CONSENT
We hereby consent to the use of our name in the Registration Statement,
including the accompanying Prospectus, of Oklahoma Gas and Electric Company to
be filed with the Securities and Exchange Commission and to which this consent
is filed as an Exhibit and to the use of our opinion filed as Exhibit 5.01 to
the Registration Statement.
RAINEY, ROSS, RICE & BINNS
By: /s/ Hugh D. Rice
-------------------------------
February 12, 1998
<PAGE>
EXHIBIT 24.01
POWER OF ATTORNEY
WHEREAS, Oklahoma Gas and Electric Company, an Oklahoma corporation
(herein referred to as the "Company"), is about to file with the Securities
and Exchange Commission, under the provisions of the Securities Act of 1933,
as amended, a Registration Statement on Form S-3 relating to the issuance and
sale of not more than $112,500,000 principal amount of Senior Notes
(including First Mortgage Bonds to secure such Senior Notes); and
WHEREAS, each of the undersigned holds the office or offices in the
Company hereinbelow set opposite his or her name, respectively;
NOW, THEREFORE, each of the undersigned hereby constitutes and appoints
STEVEN E. MOORE AND A.M. STRECKER and each of them individually, his or her
attorney with full power to act for him or her and in his or her name, place
and stead, to sign his or her name in the capacity or capacities set forth
below to the Form S-3 Registration Statement relating to the issuance and
sale of not more than $112,500,000 principal amount of Senior Notes
(including First Mortgage Bonds to secure such Senior Notes), and to any and
all amendments (including post-effective amendments) to such Registration
Statement, and hereby ratifies and confirms all that said attorney may or
shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands this
29th day of January 1998.
Steven E. Moore, Chairman, Principal /s/ Steven E. Moore
Executive Officer and Director --------------------------------
Herbert H. Champlin, Director /s/ Herbert H. Champlin
--------------------------------
Luke R. Corbett, Director /s/ Luke R. Corbett
--------------------------------
/s/ W. E. Durrett
William E. Durrett, Director --------------------------------
Martha W. Griffin, Director /s/ Martha W. Griffin
--------------------------------
Hugh L. Hembree, III, Director /s/ Hugh L. Hembree
--------------------------------
Robert Kelley, Director /s/ Robert Kelley
--------------------------------
Bill Swisher, Director /s/ Bill Swisher
--------------------------------
/s/ Ronald H. White, M.D.
Ronald H. White, M.D., Director --------------------------------
A.M. Strecker, Principal Financial Officer /s/ A. M. Strecker
--------------------------------
Donald R. Rowlett, Principal Accounting /s/ Donald R. Rowlett
Officer --------------------------------
<PAGE>
STATE OF OKLAHOMA )
) SS
COUNTY OF OKLAHOMA )
On the date indicated above, before me, Shirley Kay Phinney, Notary
Public in and for said County and State, personally appeared the above named
directors and officers of Oklahoma Gas and Electric Company, an Oklahoma
corporation, and known to me to be the persons whose names are subscribed to
the foregoing instrument, and they severally acknowledged to me that they
executed the same as their own free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal on the 29th day of January 1998.
/s/ Shirley Kay Phinney
-----------------------------------
Shirley Kay Phinney
Notary Public in and for the County
of Oklahoma, State of Oklahoma
My Commission Expires:
March 7, 1998
<PAGE>
Exhibit 25.01
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) / /
-----------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
-----------------------------
OKLAHOMA GAS AND ELECTRIC COMPANY
(Exact name of obligor 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)
-----------------------------
Senior Notes
(Title of the indenture securities)
===============================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 5th day of February, 1998.
THE BANK OF NEW YORK
By: /s/ VAN K. BROWN
---------------------------
Name: VAN K. BROWN
Title: ASSISTANT VICE PRESIDENT
-4-
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September
30, 1997, published in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin . . . . . . . . . . . . . $ 5,004,638
Interest-bearing balances .. . . . . . . . . . 1,271,514
Securities:
Held-to-maturity securities .. . . . . . . . . 1,105,782
Available-for-sale securities . . . . . . . . 3,164,271
Federal funds sold and Securities pur-
chased under agreements to resell. . . . . . . . 5,723,829
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ..............34,916,196
LESS: Allowance for loan and
lease losses ...........581,177
LESS: Allocated transfer risk
reserve.....................429
Loans and leases, net of unearned
income, allowance, and reserve . . . . . .34,334,590
Assets held in trading accounts . . . . . . . . 2,035,284
Premises and fixed assets (including
capitalized leases) .. . . . . . . . . . . . . 671,664
Other real estate owned .. . . . . . . . . . . . 13,306
Investments in unconsolidated
subsidiaries and associated
companies .. . . . . . . . . . . . . . . . . . 210,685
Customers' liability to this bank on
acceptances outstanding . . . . . . . . . . . 1,463,446
Intangible assets .. . . . . . . . . . . . . . . 753,190
Other assets . . . . . . . . . . . . . . . . . . 1,784,796
-----------
Total assets . . . . . . . . . . . . . . . . . $57,536,995
-----------
-----------
LIABILITIES
Deposits:
In domestic offices .. . . . . . . . . . . . $27,270,824
Noninterest-bearing........... 12,160,977
Interest-bearing.............. 15,109,847
In foreign offices, Edge and
Agreement subsidiaries, and IBFs . . . . . . . 14,687,806
Noninterest-bearing ..............657,479
Interest-bearing ..............14,030,327
Federal funds purchased and Securities
sold under agreements to repurchase. . . . . . 1,946,099
Demand notes issued to the U.S.
Treasury . . . . . . . . . . . . . . . . . . . 283,793
Trading liabilities . . . . . . . . . . . . . . 1,553,539
Other borrowed money:
With remaining maturity of one year
or less .. . . . . . . . . . . . . . . . . . 2,245,014
With remaining maturity of more than
one year through three years.. . . . . . . . . . 0
With remaining maturity of more than
three years .. . . . . . . . . . . . . . . . 45,664
Bank's liability on acceptances exe-
cuted and outstanding .. . . . . . . . . . . . 1,473,588
Subordinated notes and debentures .. . . . . . . 1,018,940
Other liabilities .. . . . . . . . . . . . . . 2,193,031
-----------
Total liabilities .. . . . . . . . . . . . . . 52,718,298
-----------
EQUITY CAPITAL
Common stock . . . . . . . . . . . . . . . . . . 1,135,284
Surplus .. . . . . . . . . . . . . . . . . . . . 731,319
Undivided profits and capital
reserves ... . . . . . . . . . . . . . . . . . 2,943,008
Net unrealized holding gains
(losses) on available-for-sale
securities . . . . . . . . . . . . . . . . . . 25,428
Cumulative foreign currency transla-
tion adjustments . . . . . . . . . . . . . . (16,342)
-----------
Total equity capital . . . . . . . . . . . . . 4,818,697
-----------
Total liabilities and equity capital . . . . . $ 57,536,995
-----------
-----------
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
J. Carter Bacot ]
Thomas A. Renyi ] Directors
Alan R. Griffith ]
</TABLE>
<PAGE>
Exhibit 25.02
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) / /
-----------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
-----------------------------
OKLAHOMA GAS AND ELECTRIC COMPANY
(Exact name of obligor 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)
-----------------------------
First Mortgage Bonds
(Title of the indenture securities)
===============================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 10th day of February, 1998.
THE BANK OF NEW YORK
By: /s/ MARY JANE MORRISSEY
---------------------------
Name: MARY JANE MORRISSEY
Title: VICE PRESIDENT
-4-
