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OKLAHOMA GAS AND ELECTRIC COMPANY
(an Oklahoma corporation)
$100,000,000 Senior Notes, Series due April 15, 2028
PURCHASE AGREEMENT
Dated: April 13, 1998
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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. . . . . . . . . . . . . . . . . . .4
(iv) FINANCIAL STATEMENTS . . . . . . . . . . . . . . . . . . . .4
(v) NO MATERIAL ADVERSE CHANGE . . . . . . . . . . . . . . . . .4
(vi) GOOD STANDING OF THE COMPANY . . . . . . . . . . . . . . . .5
(vii) NO SUBSIDIARIES. . . . . . . . . . . . . . . . . . . . . . .5
(viii) CAPITALIZATION . . . . . . . . . . . . . . . . . . . . . . .5
(ix) AUTHORIZATION OF AGREEMENT . . . . . . . . . . . . . . . . .5
(x) AUTHORIZATION OF THE INDENTURE . . . . . . . . . . . . . . .5
(xi) AUTHORIZATION OF THE SENIOR NOTES. . . . . . . . . . . . . .5
(xii) DESCRIPTION OF THE SENIOR NOTES AND THE INDENTURE. . . . . .5
(xiii) ABSENCE OF DEFAULTS AND CONFLICTS. . . . . . . . . . . . . .6
(xiv) ABSENCE OF PROCEEDINGS . . . . . . . . . . . . . . . . . . .6
(xv) ACCURACY OF EXHIBITS . . . . . . . . . . . . . . . . . . . .6
(xvi) REGULATORY APPROVALS; ABSENCE OF FURTHER REQUIREMENTS. . . .7
(xvii) POSSESSION OF LICENSES AND PERMITS . . . . . . . . . . . . .7
(xviii) TITLE TO PROPERTY . . . . . . . . . . . . . . . . . . . . .7
(b) Officer's Certificates. . . . . . . . . . . . . . . . . . . . . . . .8
SECTION 2. Sale and Delivery to Underwriters; Closing. . . . . . . . . . . . . .8
(a) Senior Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
(b) Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
(c) Denominations; Registration . . . . . . . . . . . . . . . . . . . . .8
SECTION 3. Covenants of the Company. . . . . . . . . . . . . . . . . . . . . . .9
(a) Compliance with Securities Regulations and Commission Requests. . . .9
(b) Filing of Amendments. . . . . . . . . . . . . . . . . . . . . . . . .9
(c) Delivery of Registration Statements . . . . . . . . . . . . . . . . .9
(d) Delivery of Prospectuses. . . . . . . . . . . . . . . . . . . . . . 10
(e) Continued Compliance with Securities Laws . . . . . . . . . . . . . 10
(f) Rule 158. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(g) Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(h) Restriction on Sale of Securities . . . . . . . . . . . . . . . . . 10
SECTION 4. Payment of Expenses . . . . . . . . . . . . . . . . . . . . . . . . 11
(a) Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(b) Termination of Agreement. . . . . . . . . . . . . . . . . . . . . . 11
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TABLE OF CONTENTS
(Continued)
PAGE
SECTION 5. Conditions of Underwriters' Obligations . . . . . . . . . . . . . . 11
(a) Effectiveness of Registration Statement; Filing of Prospectus . . . 11
(b) Opinions of Counsel for Company . . . . . . . . . . . . . . . . . . 11
(i) OPINION OF OKLAHOMA COUNSEL. . . . . . . . . . . . . . . . . 12
(ii) OPINION OF ARKANSAS COUNSEL. . . . . . . . . . . . . . . . . 14
(iii) OPINION OF XXXXXXX, CARTON & XXXXXXX . . . . . . . . . . . . 14
(c) Opinion of Counsel for Underwriters . . . . . . . . . . . . . . . . 15
(d) Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . 15
(e) Accountant's Comfort Letter . . . . . . . . . . . . . . . . . . . . 16
(f) Bring-down Comfort Letter . . . . . . . . . . . . . . . . . . . . . 16
(g) Maintenance of Rating . . . . . . . . . . . . . . . . . . . . . . . 16
(h) Additional Documents. . . . . . . . . . . . . . . . . . . . . . . . 16
(i) Termination of Agreement. . . . . . . . . . . . . . . . . . . . . . 16
SECTION 6. Conditions of Company's Obligations . . . . . . . . . . . . . . . . 17
SECTION 7. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(a) Indemnification of Underwriters . . . . . . . . . . . . . . . . . . 17
(b) Indemnification of Company, Directors and Officers. . . . . . . . . 18
(c) Actions against Parties; Notification . . . . . . . . . . . . . . . 18
(d) Settlement without Consent if Failure to Reimburse. . . . . . . . . 19
SECTION 8. Contribution. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 9. Representations, Warranties and Agreements to Survive Delivery. . . 21
SECTION 10. Termination of Agreement. . . . . . . . . . . . . . . . . . . . . . 21
(a) Termination; General. . . . . . . . . . . . . . . . . . . . . . . . 21
(b) Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 11. Default by One or More of the Underwriters. . . . . . . . . . . . . 21
SECTION 12. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 13. Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 14. Governing Law and Time. . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 15. Effect of Headings. . . . . . . . . . . . . . . . . . . . . . . . . 23
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
OKLAHOMA GAS AND ELECTRIC COMPANY
(AN OKLAHOMA CORPORATION)
$100,000,000
SENIOR NOTES, SERIES DUE APRIL 15, 2028
PURCHASE AGREEMENT
April 13, 1998
To: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
CIBC Xxxxxxxxxxx Corp.
Xxxxxx Brothers Inc.
Ladies and Gentlemen:
Oklahoma Gas and Electric Company, an Oklahoma corporation (the "Company"),
confirms its agreement with Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
CIBC Xxxxxxxxxxx Corp. and Xxxxxx Brothers Inc. (collectively, the
"Underwriters," which term includes any underwriter substituted as hereinafter
provided in Section 11 hereof), 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 Schedule A hereto of
$100,000,000 aggregate principal amount of the Company's Senior Notes, Series
due April 15, 2028 (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. 3, dated as of April 1, 1998, 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 the Company Order (as defined in the Indenture), if any, establishing
the form and terms of the Senior Notes pursuant to the Indenture.
The Company understands that the Underwriters propose to make a public
offering of the Senior Notes as soon as they deem advisable after this Agreement
has been executed and delivered and the Indenture 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. 333-46169) covering the
registration of the Senior Notes 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
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 is herein called the
"Prospectus." If Rule 434 is relied on, the term "Prospectus" shall refer to
the preliminary prospectus dated February 26, 1998 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 ("XXXXX").
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.
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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.
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
Company's previously outstanding 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 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated 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
3
transmitted copies thereof filed with the Commission pursuant to XXXXX,
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. Xxxxxx Xxxxxxxx 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, regular quarterly dividends on the
Company's Preferred Stock and the redemption of all the Company's
Preferred Stock, there has been no dividend or
4
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.
(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. The 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, 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) DESCRIPTION OF THE SENIOR NOTES AND THE INDENTURE. The
Senior Notes and the Indenture will conform in all material respects to
the respective statements relating
5
thereto contained in the Prospectus and will be in substantially the
respective forms filed or incorporated by reference, as the case may be, as
exhibits to the Registration Statement.
(xiii) 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 and the Senior Notes, 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 and the Senior Notes 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 and the
Indenture.
(xiv) 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 incidental
to the business, could not reasonably be expected to result in a
Material Adverse Effect.
6
(xv) 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.
(xvi) 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, to the extent necessary, each duly authorized the
issuance and sale of the Senior Notes 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 or the
consummation of the transactions contemplated by this Agreement or for
the due execution, delivery or performance of the Indenture by the
Company, except such as have been already obtained, including from the
Oklahoma Commission and the Arkansas Commission.
(xvii) 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.
(xviii) 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 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.
7
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to any Underwriter 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.
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 Xxxxxxx,
Carton & Xxxxxxx, Chicago, Illinois, or at such other place as shall be
agreed upon by Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and the
Company, at 9:00 A.M. (Chicago time) on the third 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 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 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 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 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
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, 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. Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, 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 $100,000,000 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 Underwriters in New York, New York not later than 10:00 A.M.
(New York time) on the business day prior to the Closing Time.
8
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 Underwriters 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 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 Underwriters
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 xxxxxxx
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 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
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or counsel for the
Underwriters reasonably objects.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished or
will deliver to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 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
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated reasonably requests, and
will also deliver to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
without charge, a conformed copy of the Registration Statement as originally
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 XXXXX,
except to the extent permitted by Regulation S-T.
9
(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 XXXXX, 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) 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 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, 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.
10
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, and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Senior Notes, (iii) all
costs, taxes and expenses incident to the preparation, issuance and delivery
of the Senior Notes to the Underwriters, (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, including the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Senior Notes and (vii) any fees payable in connection with the rating of
the Senior Notes.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Underwriters 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.
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) OPINIONS OF COUNSEL FOR COMPANY. At Closing Time, the Underwriters
shall have received the favorable opinions, dated as of Closing Time, of
Rainey, Ross, Rice & Xxxxx, Oklahoma City, Oklahoma, Xxxxxxxxxx, Xxxxxxx &
Julian, P.A., Little Rock, Arkansas, and Xxxxxxx, Carton & Xxxxxxx, Chicago,
Illinois, each counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, together with signed or reproduced copies
11
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 are in the form contemplated by the
Indenture, have been duly and validly authorized by the Company,
constitute valid and binding obligations of the Company and will be
entitled to the benefits of the Indenture;
(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
12
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 and the Senior Notes 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;
(J) the execution and delivery of this Agreement and the
issuance of the Senior Notes, 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 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 is 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 by the Company or for the offering,
issuance, sale or delivery of the Senior Notes to the Underwriters as
contemplated in this Agreement; and
(L) to the best of such counsel's knowledge, the Company does
not have any subsidiaries.
13
(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) 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;
(C) 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;
(D) the Arkansas Commission, to the extent necessary, has duly
issued its order authorizing the issuance and sale by the Company of
the Senior Notes 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 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 by the Company or
for the offering, issuance, sale and delivery of the Senior Notes by
the Company to the Trustee as contemplated in this Agreement; and
(E) 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 XXXXXXX, CARTON & XXXXXXX
(A) such opinion shall cover the matters set forth in
subdivisions (A), (B), (C), (D), (E), (G), (H), (J) and (L) of
paragraph (b)(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;
14
(C) the Registration Statement, including any Rule 462(b)
Registration Statement, the Offering Terms 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) 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 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 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 the validity and sufficiency
of franchises and permits, and the validity and sufficiency of the
orders described in subdivision (K) of subsection (b)(i) of this
Section 5 and subdivision (D) of subsection (b)(ii) 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.
(c) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of Xxxxx, Day, Xxxxxx & Xxxxx, 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 Underwriters 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 Underwriters.
(d) 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 operations,
properties, business affairs or business prospects of the Company, whether or
not
15
arising in the ordinary course of business, and the Underwriters 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.
(e) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of this
Agreement, the Underwriters shall have received from Xxxxxx Xxxxxxxx LLP a
letter, dated such date, in form and substance satisfactory to the
Underwriters, 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.
(f) BRING-DOWN COMFORT LETTER. At Closing Time, the Underwriters shall
have received from Xxxxxx Xxxxxxxx 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.
(g) MAINTENANCE OF RATING. At Closing Time, the Senior Notes shall be
rated at least Aa3 by Xxxxx'x Investors Service, Inc. and AA- by Standard &
Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, 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 or any of the Company's other
securities.
(h) 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 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 as
herein contemplated shall be satisfactory in form and substance to the
Underwriters and counsel for the Underwriters.
(i) 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 Underwriters by notice to the Company
at any time at or prior to Closing Time, and such 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.
16
In giving the opinions contemplated by paragraphs (b) and (c) 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 have been executed on behalf of the Company by
the manual or facsimile signatures of the President or a Vice President and the
Secretary or an Assistant Secretary of the Company and have been manually
authenticated by an authorized official of the Trustee, (ii) that the signatures
on all documents examined by them are genuine, and (iii) that the written
information supplied by the 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 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 (xvi) 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 Underwriters. 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 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
17
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 Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated), 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 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated 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 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 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.
(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
18
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 Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, 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 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.
19
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 0000 Xxx) 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 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.
20
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 Underwriter 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 Underwriters, 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.
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 remaining Underwriter or Underwriters
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
21
amounts as may be agreed upon and upon the terms herein set forth; if, however,
the remaining Underwriter or Underwriters 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 remaining Underwriter or Underwriters 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 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, World
Financial Center, 27th Floor, 000 Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000, attention of Xxxx Xxxxxxxxx; CIBC Xxxxxxxxxxx Corp., 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Debt Capital
Markets; Xxxxxx Brothers Inc., 3 World Financial Center, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, attention of Capital Markets; each with a copy to
Xxxxx, Day, Xxxxxx & Xxxxx, 00 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxx, Esq. Notices to the Company shall be directed
to it at Oklahoma Gas and Electric Company, 000 Xxxxx Xxxxxx, Xxxxxxxx Xxxx,
Xxxxxxxx, Attention: President, with a copy to Xxxxxxx, Carton & Xxxxxxx,
Quaker Tower, Suite 3100, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxx X. Xxxxxx, Esq.
22
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]
23
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 /s/ Xxxxx X. Xxxxxxxx
---------------------------------------------
Title: Vice President and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
CIBC XXXXXXXXXXX CORP.
XXXXXX BROTHERS INC.
BY: XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Title: Vice President
----------------------------------
SCHEDULE A
Principal
Amount of
Name of Underwriter Senior Notes
------------------------------------------------------------ ------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.......... $ 33,400,000
CIBC Xxxxxxxxxxx Corp....................................... 33,300,000
Xxxxxx Brothers Inc......................................... 33,300,000
------------
Total....................................................... $100,000,000
------------
------------
Sch. A-1
SCHEDULE B
OKLAHOMA GAS AND ELECTRIC COMPANY
$100,000,000 Senior Notes, Series due April 15, 2028
1. The initial public offering price of the Senior Notes is 98.431% 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 97.556% of the principal amount thereof.
3. The interest rate on the Senior Notes is 6.50% per annum.
4. The Company, at its option, may redeem on any date all or, from time
to time, any part of the Senior Notes at a redemption price equal to the greater
of (i) 100% 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.
Sch. B-1
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):
The names of the Underwriters on the cover page and page S-4 of the
Prospectus Supplement dated April 13, 1998 (the "Prospectus Supplement"), the
information in the first paragraph on page S-2 of the Prospectus Supplement and
the information in the second paragraph, in the second sentence of the fourth
paragraph and in the fifth, sixth and seventh paragraphs under the caption
"UNDERWRITING" on page S-5 of the Prospectus Supplement.
Sch. C-1
