EXHIBIT 1.02
Oklahoma Gas and Electric Company
Senior Notes
UNDERWRITING AGREEMENT
October 23, 1995
To the Representatives named in
Schedule I hereto of the Under-
writers named in Schedule II hereto.
Ladies and Gentlemen:
1. INTRODUCTION. Oklahoma Gas and Electric Company, an Oklahoma
corporation (the "Company"), proposes to issue and sell $110,000,000 of its
6.250% Senior Notes, due October 15, 2000 (the "Senior Notes"). The Senior
Notes will be issued by the Company under its Indenture dated as of October 1,
1995 between the Company and Boatmen's First National Bank of Oklahoma, as
trustee (the "Trustee"), as amended and supplemented by Supplemental Indenture
No. 1 dated as of October 16, 1995 creating the series in which the Senior Notes
are to be issued. The term "Indenture," as hereinafter used, means such
Indenture dated as of October 1, 1995, as so amended and supplemented. The
Company proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters", which term, when the context permits, shall also include any
substitute underwriter as provided in Section 9 hereof) for whom you are acting
as Representatives (the "Representatives") Senior Notes in the aggregate
principal amount and with the terms specified in Schedule I hereto (the
"Purchased Senior Notes"). Until such time as all of the first mortgage bonds
of the Company (the "First Mortgage Bonds") issued prior to the date of the
Indenture have been retired through payment or redemption (the "Release Date"),
the Senior Notes will be secured as to payment of principal and interest by one
or more series of First Mortgage Bonds issued, pledged and delivered by the
Company to the Trustee. Concurrently with the offering of the Senior Notes, the
Company proposes to issue and sell $110,000,000 of its 7.30% Senior Notes due
October 15, 2025 (the "Additional Senior Notes"). The sale of the Additional
Senior Notes and the Senior Notes are not contingent upon each other.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to, and agrees with, the Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") two registration statements on Form S-3 (having the file
numbers set forth in Schedule I hereto) relating to $220,000,000 aggregate
principal amount of its Senior Notes and First Mortgage Bonds, and the offering
thereof from time to time in accordance with Rule 415 under the Securities Act
of 1933, as amended (the "Act"), and has filed such amendments thereto as may
have been required to the date hereof. Such registration statements have been
declared effective by the Commission. Such registration statements and the
prospectus relating to the sale of the Senior Notes and the First Mortgage Bonds
by the Company constituting a part thereof, including all documents incorporated
therein by reference, as from time to time amended or supplemented pursuant to
the Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
are collectively referred to herein as the "Registration Statement," and the
prospectus relating to the Senior Notes and the First Mortgage Bonds, including
all documents incorporated therein by reference, as from time to time amended or
supplemented pursuant to the Act or the Exchange Act, is referred to herein as
the "Prospectus"; provided that a supplement to the Prospectus relating to an
offering of Senior Notes other than the Purchased Senior Notes shall be deemed
to have supplemented the Prospectus only with respect to the offering of such
other Senior Notes. All documents filed by the Company with the Commission
under the Exchange Act and incorporated or deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as aforesaid, are
hereinafter referred to as the "Incorporated Documents."
(b) The Registration Statement, at the time it became effective,
complied and the Prospectus, at the time Registration Statement No. 33-61821
became effective, complied and each as of the date hereof comply and as of the
Closing Date, as hereinafter defined, will comply, in all material respects with
the requirements of the Act, the Exchange Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and regulations of
the Commission under such Acts; the Incorporated Documents, as of their
respective dates of filing with the Commission, complied as to form in all
material respects with the Exchange Act and the rules and regulations of the
Commission thereunder and any Incorporated Documents filed with the Commission
after the date of this Agreement will, when they are filed with the Commission,
comply in all material respects with the requirements of the Exchange Act and
the rules and regulations of the Commission thereunder; the Registration
Statement and any amendment thereto, at the time it became effective, did not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and the Prospectus, at the time Registration Statement No. 33-61821
became effective, did not, as of the date hereof does not and as of the Closing
Date will not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not
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misleading; provided that the representations and warranties in this
Section 2(b) shall not apply to (A) that part of the Registration Statement
which constitutes the Statements of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act (the "Statements of Eligibility") of the Trustee
and the trustee for the First Mortgage Bonds, (B) information contained in the
Registration Statement or the Prospectus relating to The Depository Trust
Company and its book-entry system, or (C) statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by any Representative
expressly for use in the Registration Statement or the Prospectus.
(c) Xxxxxx Xxxxxxxx LLP, the accountants who certified certain of the
financial statements included or incorporated by reference in the Registration
Statement or the Prospectus, are independent public accountants as required by
the Act and the rules and regulations of the Commission thereunder.
(d) The financial statements included or incorporated by reference in
the Prospectus present fairly the financial position, results of operations and
cash flows of the Company and its consolidated subsidiaries as at the respective
dates and for the respective periods specified and, except as otherwise stated
in the Prospectus, said financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent basis
during the periods involved and the supporting schedules included in the
Registration Statement present fairly the information required to be stated
therein. The Company has no material contingent obligation which is not
disclosed in the Prospectus.
(e) Except as set forth in or expressly contemplated by the
Prospectus, no material transaction has been entered into by the Company or any
of its subsidiaries otherwise than in the ordinary course of business and no
materially adverse change has occurred in the condition, financial or otherwise,
of the Company, or of the Company and its subsidiaries, taken as a whole, in
each case since the respective dates as of which information is given in the
Prospectus.
(f) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Oklahoma, is qualified to do
business as a foreign corporation and is in good standing under the laws of the
State of Arkansas, and is not required to qualify to do business as a foreign
corporation in any other jurisdiction, and has the corporate power to own its
properties and carry on its business as now being conducted.
(g) Enogex Inc. ("Enogex") is a wholly-owned subsidiary of the
Company and has six subsidiaries, which are the only "subsidiaries" of the
Company as defined under Regulation S-X under the Exchange Act. Enogex and each
of its subsidiaries are
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hereinafter referred to collectively as the "Subsidiaries" and individually as a
"Subsidiary." Each Subsidiary is a corporation duly organized, validly existing
and in good standing under the laws of the State of Oklahoma and is duly
qualified as a foreign corporation in each jurisdiction in which its failure to
qualify would have a material adverse effect on the business or operations of
the Company and its Subsidiaries taken as a whole and has the corporate power to
own its properties and carry on its business as now being conducted; all of the
issued and outstanding capital stock of each Subsidiary has been duly authorized
and validly issued and is fully paid and non-assessable; and all the capital
stock of each Subsidiary (except for 20% of the issued and outstanding capital
stock of Centoma Gas Systems, Inc.) is owned by the Company free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(h) Neither the Company nor any Subsidiary is in violation of its
Certificate of Incorporation, or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
mortgage or any material contract, indenture, mortgage, lease, note or other
instrument to which it is a party or by which it may be bound or to which any of
its properties or assets is subject, or materially in violation of any law,
administrative regulation or administrative, arbitration or court order, except
in each case to such extent as may be set forth in the Prospectus; and the
execution and delivery of this Agreement, the incurrence of the obligations
herein set forth and the consummation of the transactions herein contemplated
will not conflict with or constitute a breach of, or default under, the
Certificate of Incorporation or By-Laws of the Company or any Subsidiary or any
mortgage, contract, lease, note or other instrument to which the Company or any
Subsidiary is a party or by which it may be bound, or any law, regulation,
consent decree or administrative, arbitration or court order.
(i) The Corporation Commission of the State of Oklahoma (the
"Oklahoma Commission") and the Arkansas Public Service Commission (the "Arkansas
Commission") have each duly authorized the issuance and sale of the Senior Notes
and the First Mortgage Bonds on terms consistent with this Agreement. No
consent of or approval by any other public board or body or administrative
agency, federal or state, is necessary to authorize the issuance and sale of the
Senior Notes and the First Mortgage Bonds, except that there must be compliance
with the securities laws of the states in which the Senior Notes and the First
Mortgage Bonds are to be sold.
(j) There is no pending or threatened suit or proceeding before any
court or governmental agency, authority or body or any arbitration involving the
Company or any Subsidiary required to be disclosed in the Prospectus which is
not adequately disclosed in the Prospectus and there are no contracts or
documents required to be filed as exhibits to the Registration Statement under
the 1933
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Act and the rules and regulations of the Commission thereunder which have not
been so filed.
(k) This Agreement has been duly authorized, executed and delivered
by the Company.
(l) The Company has sufficient authority under statutory provisions
or by grant of franchises or permits by municipalities or counties to conduct
its business as presently conducted and as described in the Registration
Statement and Prospectus.
(m) The Indenture and the First Mortgage Indenture (as defined
herein) are each in due and proper form, have been duly and validly executed and
delivered and are valid and enforceable instruments in accordance with their
terms, except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and to the extent that general equitable principles
may limit the right to obtain the remedy of specific performance of certain of
the obligations thereunder. The Purchased Senior Notes are in due and proper
form and, when duly executed, authenticated and delivered to the Trustee against
the agreed consideration therefor, will be valid and enforceable obligations of
the Company in accordance with their terms. The First Mortgage Bonds which are
delivered to the Trustee as security for the payment of principal of and
premium, if any, and interest on the Purchased Senior Notes are in due and
proper form and, when duly executed, authenticated and delivered to the Trustee
in accordance with the terms of the Indenture, will be valid and enforceable
obligations of the Company in accordance with their terms, secured by the lien
of and entitled to the benefits provided by the First Mortgage Indenture.
(n) The Company has good and sufficient title to each of the
principal plants and properties purported to be owned by it, subject to the lien
of the First Mortgage Indenture, and to permissible encumbrances as therein
defined.
(o) Except for changes contemplated by the Prospectus, the authorized
and outstanding capital stock of the Company is as set forth in the Prospectus.
(p) The Company meets the requirements for filing on Form S-3 under
the Act.
Any certificate signed by any officer of the Company and delivered to
you or to counsel for the Underwriters shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters covered thereby.
3. PURCHASE, OFFERING AND DELIVERY -- CLOSING DATE. Subject to the terms
and conditions herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase from the
Company at the purchase price
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set forth in Schedule I hereto, the principal amount of the Purchased Senior
Notes set forth opposite such Underwriter's name in Schedule II hereto. It is
understood that the Underwriters propose to offer the Purchased Senior Notes for
sale to the public as set forth in the Prospectus Supplement, as hereinafter
defined, relating to the Purchased Senior Notes. The Company will deliver the
Purchased Senior Notes to the Representatives for the respective accounts of the
Underwriters (in fully registered form issued in such names and in such
denominations as the Representatives may direct by notice in writing to the
Company given at or prior to 3:00 P.M., Oklahoma City Time, on the second full
business day preceding the Closing Date, or, if no such direction is received,
in the names of the respective Underwriters), at the office specified in
Schedule I hereto, against payment of the purchase price thereof by wire
transfer or similar same day funds, payable to such account as the Company shall
direct by notice in writing to the Representatives given at or prior to 3:00
p.m. Oklahoma City Time on the second full business day preceding the Closing
Date. The time and date of delivery and closing shall be the time and date
specified in Schedule I hereto; provided that such time or date may be
accelerated or extended by agreement between the Company and the
Representatives. The time and date of such payment and delivery are herein
sometimes referred to as the "Closing Date."
The Company agrees to make the Purchased Senior Notes available to the
Representatives at the office specified in Schedule I hereto for examination on
behalf of the Underwriters, not later than 11:00 A.M., Oklahoma City Time, on
the business day preceding the Closing Date.
It is understood that the Representatives, either jointly or
individually, and not as representatives of the several Underwriters, may (but
shall not be obligated to) make payment to the Company on behalf of any
Underwriter or Underwriters. Any such payment shall not relieve such
Underwriter or Underwriters from any of its or their other obligations
hereunder.
The Representatives agree to deposit with the Company within two
business days after the date of this Agreement the amount set forth in
Schedule I hereto as the Oklahoma Real Estate Mortgage Tax. It is understood
that such payment shall not constitute partial or full payment for the Purchased
Senior Notes, but shall be applied solely in accordance with Section 4(i)
hereof.
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4. AGREEMENTS. The Company agrees with the several Underwriters that:
(a) Promptly following execution of this Agreement, the Company will
cause the Prospectus, including as part thereof a prospectus supplement relating
to the Purchased Senior Notes (the "Prospectus Supplement"), to be filed with
the Commission pursuant to Rule 424 and/or Rule 434 under the Act and the
Company will promptly advise the Representatives when such filing or mailing has
been made. Prior to such filing or mailing, the Company will cooperate with the
Representatives in the preparation of the Prospectus Supplement to assure that
the Representatives have no reasonable objection to the form or content thereof
when filed.
(b) The Company will promptly advise the Representatives and confirm
in writing (i) when any amendment to the Registration Statement shall have
become effective, (ii) of the receipt of any comments from the Commission, (iii)
of any request by the Commission for any amendment of the Registration Statement
or amendment or supplement to the Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threatening of
any proceeding for that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Purchased Senior Notes or the First Mortgage Bonds for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. The
Company will not file any amendment to the Registration Statement or supplement
to the Prospectus with the Commission unless the Company has furnished you a
copy for your review prior to filing and will not file any such proposed
amendment or supplement to which the Representatives or counsel for the
Underwriters reasonably object. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(c) If, at any time when a prospectus relating to the Purchased
Senior Notes or the First Mortgage Bonds is required to be delivered under the
Act, any event occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it shall be
necessary to amend or supplement the Registration Statement or the Prospectus to
comply with the Act or the Exchange Act or the rules and regulations of the
Commission under such Acts, the Company promptly will prepare and file with the
Commission, subject to paragraph (b) of this Section 4, an amendment or
supplement or a filing pursuant to Section 13 or 14 of the Exchange Act which
will correct such statement or omission or an amendment which will effect such
compliance.
(d) The Company will make generally available to its security holders
and to the Representatives a consolidated earnings
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statement (which need not be audited) of the Company for the 12-month period
beginning after the date of the Prospectus Supplement, as soon as practicable
after the end of such 12-month period, which will satisfy the provisions of
Section 11(a) of the Act and the rules and regulations of the Commission
thereunder (including Rule 158 under the Act).
(e) The Company will furnish without charge to (i) each of the
Representatives and counsel for the Underwriters a signed copy of the
Registration Statement (but without exhibits incorporated by reference), as
originally filed, all amendments thereto filed prior to the Closing Date, all
Incorporated Documents (including exhibits, other than exhibits incorporated by
reference) and the Statements of Eligibility of the Trustee and the trustee for
the First Mortgage Bonds, (ii) each other Underwriter a conformed copy of the
Registration Statement (but without exhibits), as originally filed, all
amendments thereto (but without exhibits) and all Incorporated Documents (but
without exhibits other than the Company's latest annual report to shareowners)
and (iii) each Underwriter as many copies of the Prospectus and the Prospectus
Supplement and, so long as delivery of a prospectus by an Underwriter or dealer
may be required under the Act, any amendments thereof and supplements thereto
(but without Incorporated Documents or exhibits), as soon as available and in
such quantities as the Representatives may reasonably request.
(f) The Company will use its best efforts to arrange for the
qualification of the Purchased Senior Notes and the First Mortgage Bonds for
sale under the laws of such jurisdictions as the Representatives may designate
(provided that the Company shall not be obligated to qualify as a foreign
corporation in, or to execute or file any general consent to service of process
under the laws of, any jurisdiction), will maintain such qualifications in
effect so long as required for the distribution of the Purchased Senior Notes
and the First Mortgage Bonds and will arrange for the determination of the
legality of the Purchased Senior Notes and the First Mortgage Bonds for purchase
by institutional investors.
(g) Whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, the Company will pay all costs and
expenses incident to the performance of the obligations of the Company
hereunder, including, without limiting the generality of the foregoing, all
costs, taxes and expenses incident to the issue and delivery of the Purchased
Senior Notes and the First Mortgage Bonds to the Underwriters, all fees and
expenses of the Company's counsel and accountants, all costs and expenses
incident to the preparing, printing and filing of the Registration Statement
(including all exhibits thereto), any preliminary prospectus, the Prospectus,
the Prospectus Supplement and any amendments thereof or supplements thereto
(except the cost of amending or supplementing the Prospectus after ninety days
following the Closing Date, which shall be at the expense of the Underwriters
requesting same), all costs and expenses (including fees of counsel not
exceeding $10,000 and disbursements) incurred
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in connection with state securities law qualifications, examining the legality
of the Purchased Senior Notes and the First Mortgage Bonds for investment and
the rating of the Purchased Senior Notes, and all costs and expenses of the
printing and distribution of all documents prepared in connection with the
issuance and sale of the Purchased Senior Notes and the First Mortgage Bonds.
Except as provided in this Section 4(g), Section 7 and Section 8 hereof, the
Underwriters will pay all their own costs and expenses, including the fees of
their counsel and any advertising expenses in connection with any offers they
may make.
(h) Except for the issuance and sale of the Additional Senior Notes,
during the period beginning from the date of this Agreement and continuing to
the Closing Date, the Company will not offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company which mature more than
one year after the Closing Date and which are substantially similar to the
Purchased Senior Notes, without the prior written consent of the
Representatives; provided that in no event shall the foregoing period extend
more than fifteen business days from the date of this Agreement.
(i) The Company will use the amount deposited by the Representatives
with it pursuant to the last paragraph of Section 3 hereof to the extent
necessary to pay for the account of the several Underwriters, in the same
proportion as the principal amount of Purchased Senior Notes to be purchased by
each of them bears to the total principal amount of the Purchased Senior Notes,
any Oklahoma Real Estate Mortgage Tax required to be paid by them on the
Purchased Senior Notes and/or the First Mortgage Bonds. Any amount not so
applied by the Company before the Closing Date shall be remitted in same day
funds by the Company to the Representatives for the account of the several
Underwriters on the Closing Date.
(j) The Company will apply the proceeds from the Purchased Senior
Notes in the manner indicated under the caption "Use of Proceeds" in the
Prospectus.
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the Underwriters to purchase and pay for the Purchased Senior Notes shall be
subject to the accuracy of the representations and warranties on the part of the
Company contained herein as of the date hereof and the Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for that purpose shall then be
pending before, or threatened by, the Commission.
(b) The Company shall have delivered to the Trustee, as security for
the payment of the principal and interest on the
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Senior Notes, a series of First Mortgage Bonds (the "Bonds") in the same
aggregate principal amount and with the same stated rate or rates of interest
(or interest calculated in the same manner), payment dates, maturity dates and
redemption provisions as the Purchased Senior Notes they secure. The Bonds will
be issued by the Company under its Trust Indenture dated February 1, 1945
between the Company and Boatmen's First National Bank of Oklahoma, as successor
trustee (the "First Mortgage Trustee") to The First National Bank and Trust
Company of Oklahoma City, as heretofore amended and supplemented and as to be
further amended and supplemented by the Supplemental Trust Indenture dated as of
October 1, 1995 creating the series in which the First Mortgage Bonds are to be
issued. The term "First Mortgage Indenture," as hereinafter used, means such
Trust Indenture dated February 1, 1945, as so amended and supplemented.
(c) The Company shall have furnished to the Representatives the
opinion of Rainey, Ross, Rice & Xxxxx, counsel for the Company, dated the
Closing Date, to the effect that:
(i) the Company is a legally existing corporation under the laws
of the State of Oklahoma and has corporate power, right and authority to do
business and to own property in the State of Oklahoma in the manner and as
set forth in the Prospectus;
(ii) the Indenture has been duly and validly executed and
delivered by the Company, which has full power and authority to enter into
and perform its obligations thereunder, and constitutes the binding and
enforceable agreement of the Company in accordance with its terms, except
as enforcement of provisions of the Indenture may be limited by bankruptcy
or other applicable laws affecting the enforcement of creditors' rights;
(iii) the Purchased Senior Notes and the First Mortgage Bonds have
been duly and validly authorized by the Company and constitute valid and
binding obligations of the Company;
(iv) while, except as otherwise stated in said opinion, such
counsel are not passing upon and do not assume responsibility for and shall
not be deemed to have independently verified the accuracy, completeness or
fairness of the Registration Statement or the Prospectus, nothing has come
to the attention of such counsel that would lead them to believe that the
Registration Statement at the time it became effective contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus at the time it was filed pursuant to Rule
424 and/or Rule 434 under the Act or on the Closing Date contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the
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statements therein, in the light of the circumstances under which they were
made, not misleading;
(v) the execution and delivery of this Agreement have been duly
authorized by the necessary action on the part of the Company and this
Agreement constitutes the valid and binding agreement of the Company except
to the extent that the provisions for indemnities may be held to be
unenforceable as against public policy;
(vi) except in localities where the Company has no franchises,
which are relatively few and not of large population, and where the failure
to have such franchises will not have a material adverse effect on the
business or operations of the Company, the Company has sufficient authority
under statutory provisions or by grant of franchises or permits by
municipalities or counties to conduct its business in Oklahoma as presently
conducted and as described in the Prospectus;
(vii) such counsel does not know of any legal or governmental
proceedings required to be described in the Prospectus which are not
described as required, nor of any contracts or documents of a character
required to be described in the Registration Statement or Prospectus or to
be filed as exhibits to the Registration Statement which are not described
and filed as required;
(viii) the Indenture, the Purchased Senior Notes, the First
Mortgage Indenture and the Bonds conform in all material respects to the
statements concerning them in the Prospectus;
(ix) all statements contained in the Registration Statement and
Prospectus purporting to set forth the advice or the opinion of such
counsel or to be based upon the opinion of such counsel correctly set forth
the opinion of such counsel on such respective matters;
(x) the execution and delivery of this Agreement and the
issuance of the Purchased Senior Notes and the Bonds, and compliance with
the provisions thereof, under the circumstances contemplated hereby and
thereby, do not and will not violate the Certificate of Incorporation or
By-Laws of the Company or any Subsidiary, or in any material respect
conflict with or constitute on the part of the Company or any Subsidiary a
breach of or default under any indenture, lease, mortgage, deed of trust,
note, agreement or other instrument known to such counsel to which the
Company or any Subsidiary is a party or any law, regulation, consent decree
or administrative, arbitration or court order known to us to which the
Company or any Subsidiary is subject;
(xi) the Oklahoma Commission has duly issued its order
authorizing the issuance by the Company of the Purchased
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Senior Notes and the Bonds on terms consistent with this Agreement and, to
the best of such counsel's knowledge, such order is still in force and
effect; the issuance and sale of the Purchased Senior Notes to the
Underwriters and the issuance of the Bonds to the First Mortgage Trustee
are in conformity with the terms of such order; and no further approval,
authorization, consent, certificate or order of any Oklahoma commission or
regulatory authority is necessary with respect to the issuance and sale of
the Purchased Senior Notes and the issuance of the Bonds by the Company as
contemplated in this Agreement, other than approvals that may be required
under Oklahoma state securities laws;
(xii) each Subsidiary is a legally existing corporation under the
laws of the State of Oklahoma, has corporate power, right and authority to
do business and to own property in the State of Oklahoma in the manner and
as set forth in the Prospectus, and is duly qualified as a foreign
corporation in each jurisdiction in which its failure to qualify would have
a material adverse effect on the business and operation of the Company and
its Subsidiaries taken as a whole;
(xiii) the First Mortgage Indenture has been duly and validly
executed and delivered by the Company, which has full power and authority
to enter into and perform its obligations thereunder, and constitutes the
binding and enforceable agreement of the Company in accordance with its
terms, except as enforcement of provisions of the First Mortgage Indenture
may be limited by bankruptcy or other applicable laws affecting the
enforcement of creditors' rights and except as provisions of the United
States Bankruptcy Code may affect the validity of the lien thereof with
respect to property acquired or proceeds realized by the Company after the
commencement of bankruptcy proceedings with respect to the Company;
(xiv) the Bonds have been duly and validly authorized by the
Company, and constitute valid and binding obligations of the Company and,
with like exception as noted in the foregoing subdivision (xiii), are
entitled to the lien of and benefits provided by the First Mortgage
Indenture;
(xv) The First Mortgage Indenture is in proper form, conforming
to the laws of the State of Oklahoma, to give and create the lien which it
purports to create and has been and at the Closing Date is duly and
properly recorded or filed in all places in Oklahoma necessary to
effectuate the lien of the First Mortgage Indenture; and
(xvi) The Bonds are equally and ratably secured with all other
First Mortgage Bonds outstanding under the First Mortgage Indenture by the
First Mortgage Indenture subject to the provisions of the First Mortgage
Indenture relating to any sinking fund or a similar fund for the benefit of
the first
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mortgage bonds of any particular series. The First Mortgage Indenture
constitutes a first mortgage lien, subject only to permissible
encumbrances, as defined in the First Mortgage Indenture, on all of the
property, real, personal, and mixed (except as hereinafter noted), in
Oklahoma now owned by the Company. The First Mortgage Indenture also
constitutes a first mortgage lien, subject to permissible encumbrances as
defined in the First Mortgage Indenture, on all property, real, personal,
and mixed (except as hereinafter noted), hereafter acquired by the Company
in Oklahoma in conformity with the terms of the First Mortgage Indenture,
except as the United States Bankruptcy Code may affect the validity of the
lien of the First Mortgage Indenture on property acquired after the
commencement of a case under such Code, except as to the prior lien of the
First Mortgage Trustee under the First Mortgage Indenture in certain events
specified therein and except as otherwise provided in the First Mortgage
Indenture in case of consolidation or merger. There are excepted from the
lien of the First Mortgage Indenture, as more fully set forth in the
granting clauses thereof, (1) all shares of stock, bonds, notes, evidences
of indebtedness and other securities other than such as may be or are
required to be deposited from time to time with the First Mortgage Trustee,
(2) cash other than such as may be or are required to be deposited from
time to time with the First Mortgage Trustee, (3) contracts, claims, bills
and accounts receivable, and choses in action other than such as may be or
are required to be from time to time assigned to the First Mortgage
Trustee, (4) motor vehicles, (5) any oil, gas and other minerals under or
on lands owned by the Company, (6) goods, wares and merchandise, equipment
and supplies acquired for the purpose of sale or resale in the usual course
of business or for the purpose of consumption in the operation,
construction or repair of any of the properties of the Company, and (7)
certain properties specifically described in Schedule B to the First
Mortgage Indenture not used or useful in the business of the Company. The
Company, except as to permissible encumbrances, as defined in the First
Mortgage Indenture, has good and valid title to the real and fixed
properties in Oklahoma and franchises from Oklahoma or federal authorities
now owned by it; (however, such opinion need not cover titles to rights-of-
way or easements for transmission or distribution lines).
(d) The Company shall have furnished to the Representatives the
opinion of Xxxxxxxx Xxxxxxxxxx, Esq., counsel for the Company in the State of
Arkansas dated the Closing Date, to the effect that:
(i) the Company is duly qualified as a foreign corporation under
the laws of the State of Arkansas and has corporate power, right and
authority to do business and to own property in the State of Arkansas in
the manner and as set forth in the Prospectus;
13
(ii) the First Mortgage Indenture is in proper form, conforming
to the laws of the State of Arkansas, to give and create the lien which it
purports to create and has been and at the Closing Date is duly and
properly recorded or filed in all places in Arkansas necessary to
effectuate the lien of the First Mortgage Indenture;
(iii) the First Mortgage Indenture constitutes a first mortgage
lien, subject only to permissible encumbrances, as defined in the First
Mortgage Indenture, on all of the property, real, personal, and mixed
(except as hereinafter noted), in Arkansas now owned by the Company. The
First Mortgage Indenture also constitutes a first mortgage lien, subject to
permissible encumbrances as defined in the First Mortgage Indenture, on all
property, real, personal, and mixed (except as hereinafter noted) hereafter
acquired by the Company in Arkansas in conformity with the terms of the
First Mortgage Indenture, except as the United States Bankruptcy Code may
affect the validity of the lien of the First Mortgage Indenture on property
acquired after the commencement of a case under such Code, except as to the
prior lien of the First Mortgage Trustee under the First Mortgage Indenture
in certain events specified therein and except as otherwise provided in the
First Mortgage Indenture in case of consolidation or merger. There are
excepted from the lien of the First Mortgage Indenture, as more fully set
forth in the granting clauses thereof, (1) all shares of stock, bonds,
notes, evidences of indebtedness and other securities other than such as
may be or are required to be deposited from time to time with the First
Mortgage Trustee, (2) cash other than such as may be or are required to be
deposited from time to time with the First Mortgage Trustee, (3) contracts,
claims, bills and accounts receivable, and choses in action other than such
as may be or are required to be from time to time assigned to the First
Mortgage Trustee, (4) motor vehicles, (5) any oil, gas and other minerals
under or on lands owned by the Company, (6) goods, wares and merchandise,
equipment and supplies acquired for the purpose of sale or resale in the
usual course of business or for the purpose of consumption in the
operation, construction or repair of any of the properties of the Company,
and (7) certain properties specifically described in Schedule B to the
First Mortgage Indenture not used or useful in the business of the Company.
The Company, except as to permissible encumbrances, as defined in the First
Mortgage Indenture, has good and valid title to the real and fixed
properties in Arkansas and franchises from Arkansas authorities now owned
by it; (however, such opinion need not cover titles to rights-of-way or
easements for transmission or distribution lines);
(iv) except in localities where the Company has no franchises,
which are relatively few and not of large population, and where the failure
to have such franchises will not have a material adverse effect on the
business or
14
operations of the Company, the Company has sufficient authority under
statutory provisions or by grant of franchises or permits by municipalities
or counties to conduct its business in Arkansas as presently conducted and
as described in the Prospectus;
(v) all statements contained in the Registration Statement and
Prospectus purporting to set forth the advice or the opinion of such
counsel or to be based upon the opinion of such counsel correctly set forth
the opinion of such counsel on such respective matters;
(vi) the Arkansas Commission has duly issued its order
authorizing the issuance and sale by the Company of the Purchased Senior
Notes and the issuance of the Bonds on terms consistent with this Agreement
and such order is still in force and effect; the issuance and sale of the
Purchased Senior Notes to the Underwriters and the issuance of the Bonds to
the First Mortgage Trustee is in conformity with the terms of such order;
and no further approval, authorization, consent, certificate or order of
the Arkansas Commission or any other governmental or regulatory authority
is necessary with respect to the issuance and sale of the Purchased Senior
Notes and the issuance of the Bonds by the Company as contemplated in this
Agreement, other than approvals that may be required under Arkansas state
securities laws; and
(vii) he is not handling any litigation relating to the Company
except as set forth in a schedule attached to such opinion.
(e) The Company shall have furnished to the Representatives the
opinion of Xxxxxxx, Carton & Xxxxxxx, counsel for the Company, dated the Closing
Date, covering the matters set forth in subdivisions (i), (ii), (iii), (iv),
(v), (vii), (viii), (x), (xiii) and (xiv) of paragraph (c) of this Section 5 and
to the further effect that:
(i) the Registration Statement has become effective under the
Act and, to the best of the knowledge of said counsel, no proceedings for a
stop order in respect thereof are pending or threatened under Section 8(d)
or 8(e) of the Act;
(ii) the Registration Statement and the Prospectus (except as to
the financial statements and financial or statistical data contained or
incorporated by reference therein, with respect to which said counsel need
express no opinion) comply as to form, in all material respects, with the
requirements of the Act, the Exchange Act and the Trust Indenture Act and
the rules and regulations of the Commission under such Acts; and the
Incorporated Documents (except as to the financial statements and financial
or statistical data contained therein, with respect to which said counsel
need
15
express no opinion) as of their respective dates of filing with the
Commission complied as to form in all material respects with the Exchange
Act and the rules and regulations of the Commission thereunder;
(iii) the Indenture and the First Mortgage Indenture have each
been qualified under the Trust Indenture Act as and to the extent required
by the provisions of such Act; and
(iv) all approvals, authorizations, consents, certificates or
orders of any state or Federal commission or regulatory authority that are
necessary with respect to the issuance and sale of the Purchased Senior
Notes and the issuance of the Bonds by the Company as contemplated in this
Agreement have been obtained, other than approvals that may be required
under state securities laws.
Such opinion may be subject to the reservation that, in giving such
opinion, said counsel have relied on the opinion of Rainey, Ross, Rice & Xxxxx
as to all matters of Oklahoma law and on the opinion of Xxxxxxxx Xxxxxxxxxx,
Esq. as to all matters of Arkansas law (including without limiting the foregoing
all opinions as to titles of the Company to its properties, the lien of the
First Mortgage Indenture thereon, the validity and sufficiency of franchises and
permits, and the validity and sufficiency of the orders described in subdivision
(xi) of subsection (c) of this Section 5 and subdivision (vi) of subsection (d)
of this Section 5), provided that such opinion shall state that said counsel
believes that the Underwriters and they are justified in relying on the opinions
of Rainey, Ross, Rice & Xxxxx and of Xxxxxxxx Xxxxxxxxxx, Esq.
(f) The Representatives shall have received from Xxxxx, Day, Xxxxxx &
Xxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to such matters related to the issuance and sale of the
Purchased Senior Notes as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(g) At the Closing Date there shall not have been, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, any material adverse change in the condition, financial or
otherwise, of the Company or in the earnings, affairs or business prospects of
the Company, whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the Chairman of the Board
and President or a Vice President of the Company, dated the Closing Date, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties contained in this Agreement are true and correct
with the same force and effect as though expressly made at and as of the Closing
Date, (iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or
16
satisfied at or prior to the Closing Date and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been initiated or, to their knowledge, threatened by the
Commission.
(h) At the date of this Agreement and at the Closing Date the
Representatives shall receive from Xxxxxx Xxxxxxxx LLP a letter (in form and
substance satisfactory to them) dated such dates to the effect that they are
independent public accountants within the meaning of the Act and the applicable
published rules and regulations thereunder and that the answer to Item 10 of
Form S-3 is correct insofar as it relates to them, and stating in effect that
(i) in their opinion, the financial statements and schedules audited by them and
contained in the Incorporated Documents comply as to form in all material
respects with the applicable accounting requirements of the Act, the Exchange
Act and the published rules and regulations thereunder; (ii) they have performed
limited procedures, not constituting an audit, including a reading of the latest
available unaudited interim financial statements of the Company and its
Subsidiaries, a reading of all recent minutes of meetings of the Board of
Directors, committees of the Board of Directors and shareowners of the Company
and its Subsidiaries, inquiries of officials of the Company and its Subsidiaries
responsible for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, and on the basis of such limited
review and procedures, nothing came to their attention which caused them to
believe that (a) any unaudited financial statements of the Company included or
incorporated by reference in the Registration Statement or Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Act, the Exchange Act and the rules and regulations
applicable thereto or are not stated on a basis substantially consistent with
that of the audited financial statements of the Company incorporated by
reference in the Registration Statement, or (b) as of a specified date not more
than five business days prior to the date of delivery of each such letter, there
was any decrease in the capital stock or any increase in the consolidated long-
term debt of the Company and its subsidiaries, or any decrease in consolidated
net assets, as compared with amounts shown in the most recent consolidated
balance sheet included or incorporated by reference in the Registration
Statement or for the period from the first day of the month next following the
date of said balance sheet to a specified date not more than five business days
prior to the date of delivery of each such letter there were any decreases, as
compared with the corresponding period in the preceding year, in operating
revenues, operating income and net income, except in all instances for changes
which the Prospectus discloses have occurred or may occur or which are described
in such letter; (iii) they have carried out specified procedures performed for
the purpose of comparing certain specified financial information and percentages
(which is limited to financial information derived from general accounting
records of the Company) included or incorporated by reference in the
Registration Statement with indicated amounts in the financial
17
statements or accounting records of the Company and (excluding any questions of
legal interpretation) have found such information and percentages to be in
agreement with the relevant accounting and financial information of the Company
referred to in such letter in the description of the procedures performed by
them and (iv) they have read any unaudited financial statement information and
financial ratios set forth in the Prospectus Supplement and have performed
specified procedures with respect thereto set forth in such letter, and nothing
came to their attention which caused them to believe that such financial
information does not agree with the latest available unaudited interim financial
statements of the Company and its Subsidiaries or was not determined on a basis
substantially consistent with that of the corresponding amounts in the audited
financial statements incorporated by reference in the Registration Statement.
If additional unaudited financial information is included in the Prospectus,
appropriate statements with respect thereto shall also be set forth in such
letter.
(i) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall not have
been any change or decrease specified in the letter referred to in paragraph (h)
of this Section 5 which makes it impractical or inadvisable in the judgment of
the Representatives to proceed with the public offering or delivery of the
Purchased Senior Notes as contemplated by the Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as the
Representatives may reasonably request.
In giving the opinions contemplated by paragraphs (c), (d), (e) and
(f) of this Section 5, counsel may rely upon certificates of state officials as
to the Company's good standing and upon certificates of officers of the Company
as to matters of fact relevant to such opinions. In giving such opinions,
counsel may assume (i) that the Purchased Senior Notes and the Bonds have been
executed on behalf of the Company by the manual or facsimile signatures of the
President or a Vice President and the Secretary or an Assistant Secretary of the
Company and have been manually authenticated by an authorized official of the
Trustee, (ii) that the signatures on all documents examined by them are genuine,
and (iii) the adequacy of the written information supplied by the
Representatives and the other Underwriters expressly for use in the Registration
Statement or the Prospectus.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
or certificates mentioned above or elsewhere in this Agreement shall not be in
all material respects reasonably satisfactory in form and substance to the
Representatives and their counsel, this Agreement and all
18
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives.
6. CONDITIONS OF COMPANY'S OBLIGATION. The obligation of the Company to
deliver the Purchased Senior Notes and the Bonds upon payment therefor shall be
subject to the following conditions:
On the Closing Date the orders of the Oklahoma Commission and the
Arkansas Commission referred to in paragraph (i) of Section 2 hereof shall be in
full force and effect substantially in the form in which originally entered; the
Indenture and the First Mortgage Indenture, shall be qualified under the Trust
Indenture Act as and to the extent required by such Act; and no stop order
suspending the effectiveness of the Registration Statement shall be in effect
and no proceedings for that purpose shall then be pending before, or threatened
by, the Commission.
In case any of the conditions specified above in this Section 6 shall
not have been fulfilled, this Agreement may be terminated by the Company by
delivering written notice of termination to the Representatives. Any such
termination shall be without liability of any party to any other party except to
the extent provided in paragraph (g) of Section 4 and Section 7 hereof.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the Purchased
Senior Notes provided for herein is not consummated because any condition to the
obligations of the Underwriters or the Company set forth in Section 5 or
Section 6 hereof, respectively, is not satisfied or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel and any amounts deposited by the Representatives with
the Company for payment of the Oklahoma Real Estate Mortgage Tax) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Purchased Senior Notes.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several (including any investigation,
legal or other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim asserted), to
which they or any of them may become subject under the Act, the Exchange Act or
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment
19
thereof, or in any preliminary prospectus or the Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state in any such document a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided that (i) the Company
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation thereof and (ii) such
indemnity with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or liability purchased
any of the Purchased Senior Notes which are the subject thereof if such person
did not receive a copy of the Prospectus (or, if the Prospectus shall have been
amended or supplemented, the Prospectus as then amended or supplemented),
excluding the Incorporated Documents, at or prior to the confirmation of the
sale of such Purchased Senior Notes to such person in any case where such
delivery is required by the Act and the untrue statement or omission of a
material fact contained in such preliminary prospectus was corrected in the
Prospectus (or the Prospectus as then amended or supplemented). This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying
20
party will be entitled to participate therein and, to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expense
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of subparagraph
(a), representing the indemnified parties under subparagraph (a) who are parties
to such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). Any indemnifying party shall not be
liable for any settlement of any action or claim effected without its written
consent, which consent may not be unreasonably withheld, but if settled with
such consent, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
arising out of such proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 8 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company on grounds of policy or otherwise, the
Company and the Underwriters shall contribute to the aggregate losses, claims,
21
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the Company and one
or more of the Underwriters may be subject (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Underwriters from the offering of the Purchased Senior Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above, but also the relative fault of the Company or
the Underwriters in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Underwriters shall be deemed to be in the same respective proportions as the net
proceeds from the offering (before deducting expenses) received by the Company
and the underwriting discount received by the Underwriters, in each case as set
forth on the cover of the Prospectus Supplement, bear to the aggregate public
offering price of the Purchased Senior Notes. The relative fault of the Company
and the Underwriters shall be determined by a reference to, among other things,
whether the untrue or alleged untrue statement of a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this paragraph
(d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in the
foregoing provisions of this paragraph (d). Notwithstanding the provisions of
this paragraph (d), (x) in no case shall any Underwriter (except as may be
provided in any Agreement Among Underwriters) be responsible for any amount in
excess of the aggregate underwriting discounts applicable to the Purchased
Senior Notes purchased by such Underwriter hereunder and (y) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this paragraph (d) are several (and not joint) in proportion to the
respective principal amount of Purchased Senior Notes to be purchased by each of
such Underwriters. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of the Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to clauses (x) and (y) of this paragraph (d). Any party entitled
to contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made
22
against another party or parties under this paragraph (d), notify such party
from whom contributions may be sought, but the omission to so notify such party
or parties shall not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have hereunder or otherwise than
under this paragraph (d).
9. DEFAULT BY AN UNDERWRITER. If any one or more of the Underwriters
shall fail to purchase and pay for the Purchased Senior Notes agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the Representatives may find one or more
substitute underwriters to purchase such Purchased Senior Notes or make such
other arrangements as the Representatives deem advisable or one or more of the
nondefaulting Underwriters may agree to purchase such Purchased Senior Notes in
such proportions as may be agreed upon by the Representatives, in each case upon
the terms set forth in this Agreement. If no such arrangements have been made
within 36 hours after the Closing Date, each of the nondefaulting Underwriters
shall be obligated severally to take up and pay for (in the respective
proportions which the amounts of Purchased Senior Notes set forth opposite their
names in Schedule II hereto bear to the aggregate amount of Purchased Senior
Notes set opposite the names of all the nondefaulting remaining Underwriters)
the Purchased Senior Notes which the defaulting Underwriter or Underwriters
agreed but failed to purchase, provided that in the event that the aggregate
principal amount of Purchased Senior Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of the Purchased Senior Notes set forth in Schedule II hereto,
the nondefaulting Underwriters shall have the right to purchase all, but shall
not be under any obligation to purchase any, of the Purchased Senior Notes and
if such nondefaulting Underwriters do not purchase all the Purchased Senior
Notes, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company, except as provided in Section 11 hereof. In the
event of a default by any Underwriter as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding seven days, as
the Representatives shall determine, in order that the required changes in the
Registration Statement and the Prospectus Supplement or in any other documents
or arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Company and
any nondefaulting Underwriter for damages occasioned by its default hereunder.
10. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Purchased Senior Notes, if prior to such time
(i) there has been, since the date of this Agreement or since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, any loss sustained by the Company or
23
any Subsidiary by strike, fire, flood, accident or other calamity of such
character as to interfere materially with the conduct of the business and
operations of the Company and its Subsidiaries taken as a whole regardless of
whether or not such loss shall have been insured, or any material adverse change
in the earnings, affairs, condition (financial or otherwise) or business
prospects of the Company and its Subsidiaries taken as a whole, whether or not
arising in the ordinary course of business, (ii) trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or
additional material governmental restrictions, not in force on the date of this
Agreement, have been imposed upon trading in securities generally, or minimum or
maximum prices for trading shall have been fixed, or maximum ranges for prices
for securities shall have been required on the New York Stock Exchange, by the
New York Stock Exchange or by order of the Commission or any other governmental
authority having jurisdiction, (iii) a banking moratorium shall have been
declared either by federal or New York State authorities, or (iv) there shall
have occurred any outbreak or material escalation of hostilities or other
calamity or crisis, the effect of which on the financial markets of the United
States is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to market the Purchased Senior Notes.
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Purchased
Senior Notes. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
12. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered in person or transmitted by any form of written telecommunication to
them at the address specified in Schedule I hereto, or, if sent to the Company,
will be mailed, delivered in person or transmitted by any form of written
telecommunication to it, at 000 Xxxxx Xxxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000,
attention of Xxxxx X. Xxxxxxxx, Treasurer.
13. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns and
the officers, directors, employees, agents and controlling persons referred to
in Section 8 hereof, and no other person will have any right or obligation
hereunder. The term "successors and assigns" as used in this Agreement shall
not include any purchaser, as such purchaser, of any of the Purchased Senior
Notes from any of the Underwriters.
24
14. REPRESENTATION OF THE UNDERWRITERS. The Representatives represent and
warrant to the Company that they are authorized to act as the representatives of
the Underwriters in the subject matter of this Agreement, and the
Representatives' execution and delivery of this Agreement and any action under
this Agreement taken by such Representatives will be binding upon all
Underwriters.
15. INTERPRETATION WHEN NO REPRESENTATIVES. In the event no Underwriters
are named in Schedule II hereto, the term "Underwriters" shall be deemed for all
purposes of this Agreement to be the Underwriter or Underwriters named as such
in Schedule I hereto, the principal amount of the Purchased Senior Notes to be
purchased by any such Underwriter shall be that set opposite its name in
Schedule I hereto and all references to the "Representatives" shall be deemed to
be the Underwriter or Underwriters named in such Schedule I.
16. COUNTERPARTS. This Agreement may be executed in counterparts all of
which, taken together, shall constitute a single agreement among the parties to
such counterparts.
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17. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of Oklahoma.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
OKLAHOMA GAS AND ELECTRIC COMPANY
By
-----------------------------------
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
BEAR, XXXXXXX & CO. INC.
XXXXXXX LYNCH, PIERCE,
XXXXXX & XXXXX INCORPORATED
XXXXXX BROTHERS INC.
By: BEAR, XXXXXXX & CO. INC.
By
---------------------------
For themselves and the other
several Underwriters named in
Schedule II hereto.
26
SCHEDULE I
Registration Statement Nos.: 33-32870 and 33-61821
Representatives: Bear, Xxxxxxx & Co. Inc., Xxxxxxx Xxxxx & Co. and Xxxxxx
Brothers Inc.
Amount, Purchase Price and Description of Purchased Senior Notes:
Aggregate Principal Amount: $110,000,000
Purchase Price: 99.090% of the aggregate principal amount
Interest Rate: 6.25% per annum
Initial Public Offering Price: 99.786% of the aggregate
principal amount
Dealer Discount: 0.5% of the aggregate principal amount
Reallowance to Dealers: 0.25% of the aggregate principal
amount
Dated date: October 27, 1995
Maturity: October 15, 2000
Other Provisions:
Time, Date and Place of Delivery and Payment:
Time and Date - 11:00 a.m. New York City Time, October 27, 1995
Place: Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Oklahoma Real Estate Mortgage Tax: 0.96%
Office for Examination of
Purchased Senior Notes: Bear, Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000
Address for Notices to Representatives pursuant to Section 12 of Underwriting
Agreement:
Bear, Xxxxxxx & Co. Inc. Xxxxxxx Xxxxx & Co. Xxxxxx Brothers Inc.
000 Xxxx Xxxxxx World Financial Ctr. 0 Xxxxx Xxxxxxxxx Xxx.
Xxx Xxxx, XX 00000 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
Attn: Capital Markets Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Capital Markets Attn: Capital Markets
SCHEDULE II
Principal Amount
Name of Underwriter of Purchased Senior Notes
------------------- -------------------------
Bear, Xxxxxxx & Co. Inc. $ 36,700,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx 36,650,000
Incorporated
Xxxxxx Brothers Inc. 36,650,000
------------
Total $110,000,000
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