Exhibit 1.01
OKLAHOMA GAS AND ELECTRIC COMPANY
(an Oklahoma corporation)
$ Senior Notes, Series due
PURCHASE AGREEMENT
Dated: ,
TABLE OF CONTENTS
PAGE
PURCHASE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1. Representations and Warranties. . . . . . . . . . . . . 3
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY . . . . . 3
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS . . . 3
(ii) INCORPORATED DOCUMENTS. . . . . . . . . . . . . 4
(iii) INDEPENDENT ACCOUNTANTS . . . . . . . . . . . . 5
(iv) FINANCIAL STATEMENTS. . . . . . . . . . . . . . 5
(v) NO MATERIAL ADVERSE CHANGE. . . . . . . . . . . 5
(vi) GOOD STANDING OF THE COMPANY. . . . . . . . . . 5
(vii) NO SUBSIDIARIES . . . . . . . . . . . . . . . . 5
(viii) CAPITALIZATION. . . . . . . . . . . . . . . . . 6
(ix) AUTHORIZATION OF AGREEMENT. . . . . . . . . . . 6
(x) AUTHORIZATION OF THE INDENTURE [AND THE FIRST
MORTGAGE INDENTURE] . . . . . . . . . . . . . . 6
(xi) AUTHORIZATION OF THE SENIOR NOTES . . . . . . . 6
(xii) AUTHORIZATION OF THE BONDS. . . . . . . . . . . 6
(xiii) DESCRIPTION OF THE SENIOR NOTES, [THE BONDS,]
THE INDENTURE [AND THE FIRST MORTGAGE
INDENTURE]. . . . . . . . . . . . . . . . . . . 6
(xiv) ABSENCE OF DEFAULTS AND CONFLICTS . . . . . . . 7
(xv) ABSENCE OF PROCEEDINGS. . . . . . . . . . . . . 7
(xvi) ACCURACY OF EXHIBITS. . . . . . . . . . . . . . 8
(xvii) REGULATORY APPROVALS; ABSENCE OF FURTHER
REQUIREMENTS . . . . . . . . . . . . . . . . . 8
(xviii) POSSESSION OF LICENSES AND PERMITS. . . . . . . 8
(xix) TITLE TO PROPERTY . . . . . . . . . . . . . . . 8
(b) OFFICER'S CERTIFICATES. . . . . . . . . . . . . . . . . 9
SECTION 2. Sale and Delivery to Underwriters; Closing. . . . . . . 9
(a) SENIOR NOTES. . . . . . . . . . . . . . . . . . . . . . 9
(b) PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . 9
(c) DENOMINATIONS; REGISTRATION . . . . . . . . . . . . . . 9
(d) PAYMENT OF OKLAHOMA REAL ESTATE MORTGAGE TAX. . . . . .10
SECTION 3. Covenants of the Company. . . . . . . . . . . . . . . .10
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION
REQUESTS. . . . . . . . . . . . . . . . . . . . . . . .10
(b) FILING OF AMENDMENTS. . . . . . . . . . . . . . . . . .10
(c) DELIVERY OF REGISTRATION STATEMENTS . . . . . . . . . .10
(d) DELIVERY OF PROSPECTUSES. . . . . . . . . . . . . . . .11
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS . . . . . . .11
(f) RULE 158. . . . . . . . . . . . . . . . . . . . . . . .11
(g) USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . .11
(h) REAL ESTATE MORTGAGE TAX. . . . . . . . . . . . . . . .11
(i) RESTRICTION ON SALE OF SECURITIES . . . . . . . . . . .12
SECTION 4. Payment of Expenses . . . . . . . . . . . . . . . . . .12
i
(a) EXPENSES. . . . . . . . . . . . . . . . . . . . . . . .12
(b) TERMINATION OF AGREEMENT. . . . . . . . . . . . . . . .12
SECTION 5. Conditions of Underwriters' Obligations . . . . . . . .13
(a) EFFECTIVENESS OF REGISTRATION STATEMENT; FILING OF
PROSPECTUS. . . . . . . . . . . . . . . . . . . . . . .13
(b) SECURITY FOR SENIOR NOTES . . . . . . . . . . . . . . .13
(c) OPINIONS OF COUNSEL FOR COMPANY . . . . . . . . . . . .13
(i) OPINION OF OKLAHOMA COUNSEL . . . . . . . . . .13
(ii) OPINION OF ARKANSAS COUNSEL . . . . . . . . . .17
(iii) OPINION OF XXXXXXX, CARTON & XXXXXXX. . . . . .18
(d) OPINION OF COUNSEL FOR UNDERWRITERS . . . . . . . . . .19
(e) OFFICERS' CERTIFICATE . . . . . . . . . . . . . . . . .19
(f) ACCOUNTANT'S COMFORT LETTER . . . . . . . . . . . . . .20
(g) BRING-DOWN COMFORT LETTER . . . . . . . . . . . . . . .20
(h) MAINTENANCE OF RATING . . . . . . . . . . . . . . . . .20
(i) ADDITIONAL DOCUMENTS. . . . . . . . . . . . . . . . . .20
(j) TERMINATION OF AGREEMENT. . . . . . . . . . . . . . . .20
SECTION 6. Conditions of Company's Obligations . . . . . . . . . .21
SECTION 7. Indemnification . . . . . . . . . . . . . . . . . . . .21
(a) INDEMNIFICATION OF UNDERWRITERS . . . . . . . . . . . .21
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. . .22
(c) ACTIONS AGAINST PARTIES; NOTIFICATION . . . . . . . . .23
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. . .23
SECTION 8. Contribution. . . . . . . . . . . . . . . . . . . . . .23
SECTION 9. Representations, Warranties and Agreements to
Survive Delivery. . . . . . . . . . . . . . . . . . . .25
SECTION 10. Termination of Agreement. . . . . . . . . . . . . . . .25
(a) TERMINATION; GENERAL. . . . . . . . . . . . . . . . . .25
(b) LIABILITIES . . . . . . . . . . . . . . . . . . . . . .25
SECTION 11. Default by One or More of the Underwriters. . . . . . .26
SECTION 12. Notices . . . . . . . . . . . . . . . . . . . . . . . .26
SECTION 13. Parties . . . . . . . . . . . . . . . . . . . . . . . .27
SECTION 14. Governing Law and Time. . . . . . . . . . . . . . . . .27
SECTION 15. Effect of Headings. . . . . . . . . . . . . . . . . . .27
SCHEDULES
Schedule A -- List of Underwriters . . . . . . . . . . . . . .Sch. A-1
Schedule B -- Pricing Information. . . . . . . . . . . . . . .Sch. B-1
Schedule C -- Information Provided by Underwriters . . . . . .Sch. C-1
ii
[Note: The language in brackets in this form of Purchase Agreement relating to
the Bonds, Additional Bonds and the First Mortgage Indenture will be deleted if
the applicable Senior Notes will not be secured by Bonds, and the language in
brackets relating to Additional Senior Notes will be deleted if a concurrent
offering of Senior Notes is not contemplated.]
OKLAHOMA GAS AND ELECTRIC COMPANY
(AN OKLAHOMA CORPORATION)
$
SENIOR NOTES, SERIES DUE ,
PURCHASE AGREEMENT
To the Representatives of the several Underwriters
named in Schedule A hereto.
Ladies and Gentlemen:
Oklahoma Gas and Electric Company, an Oklahoma corporation (the
"Company"), confirms its agreement with
and each of the other Underwriters named in Schedule A hereto (collectively,
the "Underwriters", which term includes any underwriter substituted as
hereinafter provided in Section 11 hereof), for whom
are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of the
respective principal amounts set forth in said Schedule A of $
aggregate principal amount of the Company's Senior Notes,
Series due , (the "Senior Notes"). The Senior
Notes are to be issued pursuant to the Indenture dated as of October 1, 1995
between the Company and The Bank of New York, as successor trustee (the
"Trustee"), as heretofore amended and supplemented and as amended and
supplemented by Supplemental Indenture No. , dated as of
, , creating the series in which the Senior Notes are to be
issued. The term "Indenture," as used herein, means such Indenture dated as
of October 1, 1995, as so amended and supplemented, and includes
the Company Order (as defined in the Indenture), if any, establishing the
form and terms of the Senior Notes pursuant to the Indenture.
[Until such time as all of the first mortgage bonds of the Company (the
"First Mortgage Bonds") issued prior to the date of the Indenture have been
retired through payment or redemption, the Senior Notes will be secured as to
payment of principal and interest by one or more series of First Mortgage Bonds
issued, pledged and delivered by the Company to the Trustee. Prior to the
issuance of the Senior Notes, the Company will deliver to the Trustee, as
security for the payment of principal and interest on the Senior Notes, a series
of First Mortgage Bonds (the "Bonds") in the same aggregate principal amount and
with the same stated rate or rates of interest (or interest calculated in the
same manner), payment dates, maturity dates, repayment provisions and redemption
provisions as the Senior Notes. The Bonds will be issued by the Company under
its Trust Indenture, dated February 1, 1945, between the Company and The Bank of
New York, as successor trustee (the "First Mortgage Trustee"), as heretofore
amended and supplemented and as to be further amended and supplemented by the
Supplemental Trust Indenture dated , creating the
Bonds. The term "First Mortgage Indenture," as used herein, means such Trust
Indenture, dated February 1, 1945, as so amended and supplemented.]
[Concurrently with the offering of the Senior Notes, the Company proposes
to issue and sell $ of its % Senior
Notes, Series due , (the "Additional Senior
Notes"). Prior to the issuance of the Additional Senior Notes, the Company will
deliver to the Trustee, as security for the payment of principal and interest on
the Senior Notes, a series of First Mortgage Bonds (the "Additional Bonds") in
the same aggregate principal amount and with the same stated rate or rates of
interest (or interest calculated in the same manner), payment dates, maturity
dates, repayment provisions and redemption provisions as the Additional Senior
Notes.] [The Additional Bonds will also be issued by the Company under the
First Mortgage Indenture.] [The sale of the Senior Notes and the Additional
Senior Notes are not contingent upon each other.]
The Company understands that the Underwriters propose to make a public
offering of the Senior Notes as soon as the Representatives deem advisable after
this Agreement has been executed and delivered and the Indenture [and the First
Mortgage Indenture have] has been qualified under the Trust Indenture Act of
1939, as amended (the "1939 Act").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333- )
covering the registration of the Senior Notes, the Bonds, [the Additional
Senior Notes and the Additional Bonds] under the Securities Act of 1933, as
amended (the "1933 Act"), including the related preliminary prospectus or
prospectuses. Promptly after execution and delivery of this Agreement, the
Company will either (i) prepare and file a prospectus in accordance with
paragraph (b) of Rule 424 ("Rule 424(b)") of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations") or (ii) if the
Company has elected to rely upon Rule 434 ("Rule 434") of the 1933 Act
Regulations, prepare and file a term sheet (a "Term Sheet") in accordance with
the provisions of Rule 434 and Rule 424(b). The information included in such
prospectus or in such Term Sheet, as the case may be, that was omitted from such
registration statement at the time it became
2
effective is referred to as the "Offering Terms." Each prospectus used
before such registration statement became effective, and any prospectus that
omitted the Offering Terms, that was used after such effectiveness and prior
to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus." Such registration statement, including the
exhibits thereto, schedules thereto, if any, and the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, at
the time it became effective and including the Offering Terms, is herein
called the "Registration Statement." Any registration statement filed
pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred to as
the "Rule 462(b) Registration Statement," and after such filing the term
"Registration Statement" shall include the Rule 462(b) Registration
Statement. The final prospectus, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the
form first furnished to the Underwriters for use in connection with the
offering of the Senior Notes [and the Bonds] is herein called the
"Prospectus." If Rule 434 is relied on, the term "Prospectus" shall refer to
the preliminary prospectus dated ,
together with the Term Sheet and all references in this Agreement to the date
of the Prospectus shall mean the date of the Term Sheet. For purposes of
this Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any Term Sheet or any amendment or supplement
to any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("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.
SECTION 1. REPRESENTATIONS AND WARRANTIES
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to each Underwriter as of the date hereof and as of
the Closing Time referred to in Section 2(b) hereof, and agrees with each
Underwriter, as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with.
3
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time, the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations and the 1939 Act and the rules
and regulations of the Commission under the 1939 Act (the "1939 Act
Regulations"), and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Neither the Prospectus nor any amendments or supplements thereto, at the
time the Prospectus or any such amendment or supplement was issued and at
the Closing Time, included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If Rule 434 is used, the
Company will comply with the requirements of Rule 434. The representations
and warranties in this subsection shall not apply to (A) that part of the
Registration Statement which constitutes the Statements of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act (the "Statements of
Eligibility") of the Trustee [and the trustee for the First Mortgage
Bonds], (B) information contained in the Registration Statement or the
Prospectus relating to The Depository Trust Company and its book-entry
system, or (C) statements in or omissions from the Registration Statement
or Prospectus made in reliance upon and in conformity with the information
furnished to the Company in writing by any Underwriter through
expressly for use in the Registration Statement or Prospectus that
is set forth on Schedule C hereto.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to 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, and regular
quarterly dividends on the Company's Preferred Stock, there has been no
dividend or distribution of any kind declared, paid or made by the Company
on any class of its capital stock.
(vi) GOOD STANDING OF THE COMPANY. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Oklahoma and has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its obligations
under this Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not result
in a Material Adverse Effect.
(vii) NO SUBSIDIARIES. The Company has no subsidiaries.
5
(viii) CAPITALIZATION. The authorized, issued and outstanding
capital stock of the Company is as stated in the Prospectus.
(ix) AUTHORIZATION OF AGREEMENT. This Agreement has been duly
authorized, executed and delivered by the Company.
(x) AUTHORIZATION OF THE INDENTURE [AND THE FIRST MORTGAGE
INDENTURE]. [Each of] the Indenture [and the First Mortgage Indenture] has
been duly authorized by the Company and duly qualified under the 1939 Act
and, when duly executed and delivered by the Company and the Trustee [or
the First Mortgage Trustee, as applicable,] will constitute a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
[ (xi) AUTHORIZATION OF THE SENIOR NOTES. The Senior Notes have
been duly authorized and, at the Closing Time, will have been duly executed
by the Company and, when authenticated, issued and delivered in the manner
provided for in the Indenture and delivered against payment of the purchase
price therefor as provided in this Agreement, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law),
and will be in the form contemplated by, and entitled to the benefits
provided by, the Indenture.]
[ (xii) AUTHORIZATION OF THE BONDS. The Bonds have been duly
authorized and, at the Closing Time, will have been duly executed by the
Company and, when authenticated, issued and delivered in the manner
provided for in the First Mortgage Indenture, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law),
and will be in the form contemplated by, and secured by the lien of and
entitled to the benefits provided by, the First Mortgage Indenture.]
(xiii) DESCRIPTION OF THE SENIOR NOTES, [THE BONDS,] THE INDENTURE
[AND THE FIRST MORTGAGE INDENTURE]. The Senior Notes, [the Bonds,] the
Indenture and [the First Mortgage Indenture] will conform in all material
respects to the respective statements relating thereto contained in the
Prospectus and will be in substantially the respective
6
forms filed or incorporated by reference, as the case may be, as exhibits
to the Registration Statement.
(xiv) ABSENCE OF DEFAULTS AND CONFLICTS. The Company is not in
violation of its Restated Certificate of Incorporation or By-Laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or
instrument to which it is a party or by which it may be bound, or to which
any of its property or assets is subject (collectively, "Agreements and
Instruments") except for such defaults that would not result in a Material
Adverse Effect; and the execution, delivery and performance of this
Agreement, the Indenture, [the First Mortgage Indenture,] the Senior Notes
and [the Bonds] and the consummation of the transactions contemplated
herein and in the Registration Statement (including the issuance and sale
of the Senior Notes and the use of the proceeds from the sale of the Senior
Notes as described in the Prospectus under the caption "Use of Proceeds")
and compliance by the Company with its obligations hereunder and under the
Indenture, [the First Mortgage Indenture,] the Senior Notes [and the Bonds]
have been duly authorized by all necessary corporate action and do not and
will not, whether with or without the giving of notice or passage of time
or both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company
pursuant to, the Agreements and Instruments (except for such conflicts,
breaches, defaults or liens, charges or encumbrances that would not result
in a Material Adverse Effect), nor will such action result in any violation
of the provisions of the Restated Certificate of Incorporation or By-Laws
of the Company or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any of
its assets, properties or operations. As used herein, a "Repayment Event"
means any event or condition which gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company, other than such
events or conditions that are contemplated by the terms of this Agreement,
the Indenture, [the First Mortgage Indenture], the Senior Notes,
[Additional Senior Notes,] [the Bonds and the Additional Bonds].
(xv) ABSENCE OF PROCEEDINGS. Other than as disclosed in the
Registration Statement, there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company, which is required
to be disclosed in the Registration Statement or which might reasonably be
expected to result in a Material Adverse Effect, or which might reasonably
be expected to materially and adversely affect its properties or assets or
the consummation of the transactions contemplated in this Agreement or the
performance by the Company of its obligations hereunder. The aggregate of
all pending legal or governmental proceedings to which the Company is a
party or of which any of its property or assets is the subject which are
not described in the Registration Statement, including ordinary routine
litigation
7
incidental to the business, could not reasonably be expected to result in a
Material Adverse Effect.
(xvi) ACCURACY OF EXHIBITS. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
(xvii) REGULATORY APPROVALS; ABSENCE OF FURTHER REQUIREMENTS. The
Corporation Commission of the State of Oklahoma (the "Oklahoma Commission")
and the Arkansas Public Service Commission (the "Arkansas Commission") have
each duly authorized the issuance and sale of the Senior Notes [and the
issuance of the Bonds] on terms consistent with this Agreement. No filing
with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale
of the Senior Notes hereunder [and the issuance of the Bonds] or the
consummation of the transactions contemplated by this Agreement or for
the due execution, delivery or performance of the Indenture [or the First
Mortgage Indenture] by the Company, except such as have been already
obtained, including from the Oklahoma Commission and the Arkansas
Commission.
(xviii) POSSESSION OF LICENSES AND PERMITS. The Company possesses
such permits, licenses, approvals, consents and other authorizations
issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct in all material respects the
business now operated by it and as described in the Registration Statement
and Prospectus (collectively, "Governmental Licenses"); the Company is in
compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the
aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be in
full force and effect would not have a Material Adverse Effect; and the
Company has not received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xix) TITLE TO PROPERTY. The Company has good and sufficient
title to all real property, principal plants and all other property owned
by it and which is material to the Company's operations, in each case, free
and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are described
in the Prospectus or (b) do not, singly or in the aggregate, materially
affect the value of such property and do not interfere with the use made
and proposed to be made of such property by the Company; and all of the
leases and subleases material to the business of the Company, and under
which the Company holds properties described in the Prospectus, are in
full force and effect, and the Company does not have notice of any material
claim of any sort that has been asserted by anyone adverse to the rights of
the
8
Company under any of the leases or subleases mentioned above, or affecting
or questioning the rights of the Company to the continued possession of the
leased or subleased premises under any such lease or sublease.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING
(a) SENIOR NOTES. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth,
the Company agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from the
Company, at the price set forth in Schedule B, the aggregate principal amount
of Senior Notes set forth in Schedule A opposite the name of such
Underwriter, plus any additional principal amount of Senior Notes which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 11 hereof.
(b) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Senior Notes shall be made at the offices of
, or at such other place as shall
be agreed upon by the Representatives and the Company, at .M. (
time) on the fourth business day after the date hereof
(unless postponed in accordance with the provisions of Section 11), or such
other time not later than ten business days after such date as shall be
agreed upon by the Representatives and the Company (such time and date of
payment and delivery being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery
to the Representatives for the respective accounts of the Underwriters of
certificates for the Senior Notes to be purchased by them. It is understood
that each Underwriter had authorized the Representatives, for its account, to
accept delivery of, receipt for, and make payment of the purchase price for,
the Senior Notes which it has agreed to purchase.
, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the Senior
Notes to be purchased by any Underwriter whose funds have not been received
by the Closing Time, but such payment shall not relieve such Underwriter from
its obligations hereunder.
(c) DENOMINATIONS; REGISTRATION. One certificate for the Senior
Notes shall be in the amount of $ and
registered in the name of Cede & Co., as nominee of the Depository Trust
Company. The Company will make the Senior Notes, which may be in temporary
form, available for examination and packaging by the Representatives in
not later than .M. (
time) on the business day prior to the Closing Time.
9
[ (d) PAYMENT OF OKLAHOMA REAL ESTATE MORTGAGE TAX. The Representatives
agree to deposit with the Company within two business days after the date of
this Agreement the amount set forth in Schedule B hereto as the Oklahoma Real
Estate Mortgage Tax. It is understood that such payment shall not constitute
partial or full payment for the Senior Notes, but shall be applied solely in
accordance with Section 3(h) hereof.]
SECTION 3. COVENANTS OF THE COMPANY
The Company covenants with each Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS.
The Company, subject to Section 3(b), will comply with the requirements of
Rule 424 of the 1933 Act Regulations ("Rule 424") or Rule 434, as applicable,
and will notify the Representatives immediately, and confirm the notice in
writing, (i) of the effectiveness of any post-effective amendment to the
Registration Statement, or of the filing of any supplement to the Prospectus
or any amended Prospectus, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for additional information, and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of
any order preventing or suspending the use of any preliminary prospectus, or
of the suspension of the qualification of the Senior Notes [or the Bonds] for
offering or sale in any jurisdiction, or of the initiation or threatening of
any proceedings for any of such purposes. The Company will promptly effect
the filings necessary pursuant to Rule 424(b) and will take such steps as it
deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representatives with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file
or use any such document to which the Representatives or counsel for the
Underwriters reasonably objects.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished
or will deliver to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents and
certificates of experts, in such number as the Representatives reasonably
request, and will also deliver to the Representatives, without charge, a
conformed copy of the Registration Statement as originally
10
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.
(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) REAL ESTATE MORTGAGE TAX. The Company will use the amount deposited
by the Representatives with it pursuant to the last paragraph of Section 2
hereof to the extent necessary to pay for the account of the several
Underwriters, in the same proportion as the principal amount
11
of Senior Notes to be purchased by each of them bears to the total principal
amount of Senior Notes, any Oklahoma Real Estate Mortgage Tax required to be
paid by them on the Senior Notes and/or the Bonds. Any amount not so applied
by the Company before the Closing Time shall be remitted in same day funds by
the Company to the Representatives for the account of the several
Underwriters at the Closing Time.]
(i) RESTRICTION ON SALE OF SECURITIES. During the period beginning
on the date of this Agreement and continuing until the Closing Time, which
period shall in no event exceed 15 business days, the Company will not,
without the prior written consent of , in its
sole discretion, directly or indirectly, issue, sell, offer or contract to
sell, grant any option for the sale of, or otherwise transfer or dispose of,
any debt securities of the Company which mature more than one year after the
Closing Time and which are substantially similar to the Senior Notes.
SECTION 4. PAYMENT OF EXPENSES
(a) EXPENSES. Whether or not the transactions contemplated hereunder
are consummated or this Agreement is terminated, the Company will pay all
expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits) as originally filed
and of each amendment thereto, (ii) the preparation, printing and delivery to
the Underwriters of this Agreement, any Agreement among Underwriters, the
Indenture, [the First Mortgage Indenture] and such other documents as may be
required in connection with the offering, purchase, sale, issuance or
delivery of the Senior Notes [and the Bonds], (iii) all costs, taxes
[(other than any Oklahoma Real Estate Mortgage Tax)] and expenses incident to
the preparation, issuance and delivery of the Senior Notes to the
Underwriters [and the Bonds to the Trustee], (iv) the fees and disbursements
of the Company's counsel, accountants and other advisors, (v) the printing
and delivery to the Underwriters of copies of each preliminary prospectus,
any Term Sheets and of the Prospectus and any amendments or supplements
thereto, (vi) the fees and expenses of the Trustee
[and the First Mortgage Trustee], including the fees and disbursements of
counsel for the Trustee [and the First Mortgage Trustee] in connection with
the Indenture, [the First Mortgage Indenture], the Senior Notes
[and the Bonds], and (vii) any fees payable in connection with the rating of
the Senior Notes [and the Bonds].
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5, Section 6 or
Section 10(a)(i) hereof, the Company shall reimburse the Underwriters for all
of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
12
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS
The obligations of the several Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof and in certificates of any officer of the Company delivered
pursuant to the provisions hereof, to the performance by the Company of its
covenants and other obligations hereunder and to the following further
conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT; FILING OF PROSPECTUS.
The Registration Statement, including any Rule 462(b) Registration Statement,
has become effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission,
and any request on the part of the Commission for additional information
shall have been complied with to the reasonable satisfaction of counsel to
the Underwriters. A prospectus containing the Offering Terms shall have been
filed with the Commission in accordance with Rule 424(b) or, if the Company
has elected to rely upon Rule 434, a Term Sheet shall have been filed with
the Commission in accordance with Rule 424(b).
[ (b) SECURITY FOR SENIOR NOTES. The Company shall have issued and
delivered to the Trustee the Bonds, as security for, among other things, the
Senior Notes.]
(c) OPINIONS OF COUNSEL FOR COMPANY. At Closing Time, the
Representatives shall have received the favorable opinions, dated as of
Closing Time, of ,
and
, each counsel for the Company, in form and substance satisfactory
to counsel for the Underwriters, together with signed or reproduced copies of
such letter for each of the other Underwriters to the effect set forth below
and to such further effect as counsel to the Underwriters may reasonably
request.
(i) OPINION OF OKLAHOMA COUNSEL
(A) the Company is a legally existing corporation and
is in good standing under the laws of the State of Oklahoma and
has corporate power, right and authority to do business and to own
property in the State of Oklahoma in the manner and as set forth
in the Prospectus;
(B) the Indenture has been duly and validly executed
and delivered by the Company, which has full power and authority
to enter into and perform its obligations thereunder; and the
Indenture constitutes the binding and enforceable agreement of
the Company in accordance with its terms, except as enforcement
of provisions of the Indenture may be limited by bankruptcy or
other applicable laws affecting the enforcement of creditors'
rights;
(C) the Senior Notes [and the Bonds] are in the form
contemplated by the Indenture [and the First Mortgage Indenture,
respectively], have been duly and validly authorized by the
Company, constitute valid and binding obligations of the
13
Company and will be entitled to the benefits of the Indenture [and
the First Mortgage Indenture, respectively];
(D) while, except as otherwise stated in said opinion,
such counsel are not passing upon and do not assume responsibility
for and shall not be deemed to have independently verified the
accuracy, completeness or fairness of the Registration Statement or
the Prospectus, nothing has come to the attention of such counsel
that would lead them to believe that the Registration Statement at
the time it became effective contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus at the time it was filed pursuant
to Rule 424 and/or Rule 434 under the 1933 Act or at the Closing
Time contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading;
(E) the execution and delivery of this Agreement have
been duly authorized by the necessary action on the part of the
Company and this Agreement constitutes the valid and binding
agreement of the Company except to the extent that the provisions
for indemnities or contribution may be held to be unenforceable as
against public policy;
(F) except in localities where the Company has no
franchises, which are relatively few and not of large population,
or where the failure to have such franchises will not have a
material adverse effect on the business or operations of the
Company, the Company has sufficient authority under statutory
provisions or by grant of franchises or permits by municipalities
or counties to conduct its business in Oklahoma as presently
conducted and as described in the Prospectus;
(G) such counsel does not know of any legal or
governmental proceedings required to be described in the Prospectus
which are not described as required, nor of any contracts or
documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to
the Registration Statement which are not described and filed as
required;
(H) the Indenture, the Senior Notes, [the First
Mortgage Indenture, the First Mortgage Bonds and the Bonds] conform
in all material respects to the statements concerning them in the
Prospectus;
(I) all statements contained in the Registration
Statement and Prospectus purporting to set forth the advice or the
opinion of such counsel or to be based upon the opinion of such
counsel correctly set forth the opinion of such counsel on such
respective matters;
14
(J) the execution and delivery of this Agreement and
the issuance of the Senior Notes [and the Bonds], and compliance
with the provisions thereof, under the circumstances contemplated
hereby and thereby, do not and will not violate the Restated
Certificate of Incorporation or By-Laws of the Company, or in any
material respect conflict with or constitute on the part of the
Company a breach of or default under any indenture, lease,
mortgage, deed of trust, note, agreement or other instrument known
to such counsel to which the Company is a party or any law,
regulation, consent decree or administrative, arbitration or
court order known to such counsel to which the Company is subject;
(K) the Oklahoma Commission has duly issued its order
authorizing the issuance by the Company of the Senior Notes [and
the Bonds] on terms consistent with this Agreement and, to the best
of such counsel's knowledge, such order is still in force and
effect; the issuance and sale of the Senior Notes to the
Underwriters [and the issuance of the Bonds to the Trustee] is
[are] in conformity with the terms of such order; and no further
approval, authorization, consent, certificate or order of any
Oklahoma commission or regulatory authority is necessary with
respect to the due authorization, execution and delivery of this
Agreement, the due execution, delivery or performance of the
Indenture [and the First Mortgage Indenture] by the Company or
for the offering, issuance, sale or delivery of the Senior Notes
to the Underwriters [and the issuance or delivery of the Bonds
by the Company to the Trustee] as contemplated in this Agreement;
(L) to the best of such counsel's knowledge, the Company
does not have any subsidiaries;
[ (M) the First Mortgage Indenture has been duly and
validly executed and delivered by the Company, which has full power
and authority to enter into and perform its obligations thereunder;
and the First Mortgage Indenture constitutes the binding and
enforceable agreement of the Company in accordance with its terms,
except as enforcement of provisions of the First Mortgage Indenture
may be limited by bankruptcy or other applicable laws affecting the
enforcement of creditors' rights and except as provisions of the
United States Bankruptcy Code may affect the validity of the lien
thereof with respect to property acquired or proceeds realized by
the Company within the 90-day period immediately preceding, or
property acquired or proceeds realized by the Company after, the
commencement of bankruptcy proceedings with respect to the
Company;]
[ (N) the Bonds have been duly and validly authorized by
the Company, and constitute valid and binding obligations of the
Company and, with like exception as noted in the foregoing
subdivision (M), are entitled to the lien of and benefits provided
by the First Mortgage Indenture;]
[ (O) The First Mortgage Indenture is in proper form,
conforming to the laws of the State of Oklahoma, to give and create
the lien which it purports to
15
create and has been and at the Closing Time is duly and properly
recorded or filed in all places in Oklahoma necessary to
effectuate the lien of the First Mortgage Indenture;] and
[ (P) The Bonds are equally and ratably secured with all
other First Mortgage Bonds outstanding under the First Mortgage
Indenture by the First Mortgage Indenture subject to the provisions
of the First Mortgage Indenture relating to any sinking fund or a
similar fund for the benefit of the first mortgage bonds of
any particular series. The First Mortgage Indenture constitutes a
first mortgage lien, subject only to permissible encumbrances,
as defined in the First Mortgage Indenture, on all of the property,
real, personal, and mixed (except as hereinafter noted),
in Oklahoma now owned by the Company. The First Mortgage Indenture
also constitutes a first mortgage lien, subject to permissible
encumbrances as defined in the First Mortgage Indenture, on all
property, real, personal, and mixed (except as hereinafter noted),
hereafter acquired by the Company in Oklahoma in conformity with
the terms of the First Mortgage Indenture, except as the
United States Bankruptcy Code may affect the validity of the lien
of the First Mortgage Indenture on property acquired or proceeds
realized by the Company within the 90-day period immediately
preceding, or property acquired or proceeds realized by the
Company after, the commencement of a case under such Code, except
as to the prior lien of the First Mortgage Trustee under the
First Mortgage Indenture in certain events specified therein
and except as otherwise provided in the First Mortgage Indenture in
case of consolidation or merger. There are excepted from the lien
of the First Mortgage Indenture, as more fully set forth in the
granting clauses thereof, (1) all shares of stock, bonds, notes,
evidences of indebtedness and other securities other than such
as may be or are required to be deposited from time to time with
the First Mortgage Trustee, (2) cash other than such as may be or
are required to be deposited from time to time with the
First Mortgage Trustee, (3) contracts, claims, bills and accounts
receivable, and choses in action other than such as may be or are
required to be from time to time assigned to the First Mortgage
Trustee, (4) motor vehicles, (5) any oil, gas and other minerals
under or on lands owned by the Company, (6) goods, wares and
merchandise, equipment and supplies acquired for the purpose of
sale or resale in the usual course of business or for the purpose
of consumption in the operation, construction or repair of any of
the properties of the Company, and (7) certain properties
specifically described in Schedule B to the First Mortgage
Indenture not used or useful in the business of the Company. The
Company, except as to permissible encumbrances, as defined in the
First Mortgage Indenture, has good and valid title to the real and
fixed properties in Oklahoma and franchises from Oklahoma or
federal authorities now owned by it (however, such opinion need not
cover titles to rights-of-way or easements for transmission or
distribution lines).]
16
(ii) OPINION OF ARKANSAS COUNSEL
(A) the Company is duly qualified as a foreign
corporation and is in good standing under the laws of the State of
Arkansas and has corporate power, right and authority to do
business and to own property in the State of Arkansas in the
manner and as set forth in the Prospectus;
[ (B) the First Mortgage Indenture is in proper form,
conforming to the laws of the State of Arkansas, to give and create
the lien which it purports to create and has been and at the
Closing Time is duly and properly recorded or filed in all places
in Arkansas necessary to effectuate the lien of the First Mortgage
Indenture;]
[ (C) the First Mortgage Indenture constitutes a first
mortgage lien, subject only to permissible encumbrances, as defined
in the First Mortgage Indenture, on all of the property, real,
personal, and mixed (except as hereinafter noted), in Arkansas now
owned by the Company. The First Mortgage Indenture also constitutes
a first mortgage lien, subject to permissible encumbrances as
defined in the First Mortgage Indenture, on all property, real,
personal, and mixed (except as hereinafter noted) hereafter
acquired by the Company in Arkansas in conformity with the terms of
the First Mortgage Indenture, except as the United States
Bankruptcy Code may affect the validity of the lien of the First
Mortgage Indenture on property acquired or proceeds realized by the
Company within the 90-day period immediately preceding, or property
acquired or proceeds realized by the Company after, the
commencement of a case under such Code, except as to the prior lien
of the First Mortgage Trustee under the First Mortgage Indenture in
certain events specified therein and except as otherwise provided
in the First Mortgage Indenture in case of consolidation or merger.
There are excepted from the lien of the First Mortgage Indenture,
as more fully set forth in the granting clauses thereof, (1) all
shares of stock, bonds, notes, evidences of indebtedness and other
securities other than such as may be or are required to be
deposited from time to time with the First Mortgage Trustee,
(2) cash other than such as may be or are required to be deposited
from time to time with the First Mortgage Trustee, (3) contracts,
claims, bills and accounts receivable, and choses in action other
than such as may be or are required to be from time to time
assigned to the First Mortgage Trustee, (4) motor vehicles, (5) any
oil, gas and other minerals under or on lands owned by the Company,
(6) goods, wares and merchandise, equipment and supplies acquired
for the purpose of sale or resale in the usual course of business
or for the purpose of consumption in the operation, construction
or repair of any of the properties of the Company, and (7) certain
properties specifically described in Schedule B to the First
Mortgage Indenture not used or useful in the business of the
Company. The Company, except as to permissible encumbrances, as
defined in the First Mortgage Indenture, has good and valid title
to the real and fixed properties in Arkansas and franchises from
Arkansas authorities now owned
17
by it (however, such opinion need not cover titles to
rights-of-way or easements for transmission or distribution
lines);]
(D) except in localities where the Company has no
franchises, which are relatively few and not of large population,
or where the failure to have such franchises will not have a
material adverse effect on the business or operations of the
Company, the Company has sufficient authority under statutory
provisions or by grant of franchises or permits by municipalities
or counties to conduct its business in Arkansas as presently
conducted and as described in the Prospectus;
(E) all statements contained in the Registration
Statement and Prospectus purporting to set forth the advice or the
opinion of such counsel or to be based upon the opinion of such
counsel correctly set forth the opinion of such counsel on such
respective matters;
(F) the Arkansas Commission has duly issued its order
authorizing the issuance and sale by the Company of the Senior
Notes and the issuance of the Bonds on terms consistent with this
Agreement and such order is still in force and effect; the issuance
and sale of the Senior Notes to the Underwriters [and the issuance
of the Bonds to the Trustee] are in conformity with the terms of
such order; and no further approval, authorization, consent,
certificate or order of the Arkansas Commission or any other
governmental or regulatory authority is necessary with respect to
the due authorization, execution and delivery of this Agreement,
the due execution, delivery or performance of the Indenture [and
the First Mortgage Indenture] by the Company or for the offering,
issuance, sale and delivery of the Senior Notes [and the issuance
or delivery of the Bonds] by the Company to the Trustee as
contemplated in this Agreement; and
(G) such counsel is not handling any litigation
relating to the Company except as set forth in a schedule attached
to such opinion.
(iii) OPINION OF XXXXXXX, CARTON & XXXXXXX.
(A) such opinion shall cover the matters set forth in
subdivisions (A), (B), (C), (D), (E), (G), (H), (J), (L), [(M) and
(N)] of paragraph (c)(i) of this Section 5;
(B) the Registration Statement, including any
Rule 462(b) Registration Statement, has become effective under the
1933 Act, the Prospectus Supplement has been filed pursuant to
Rule 424(b) and/or Rule 434 under the 1933 Act, and, to the best
knowledge of said counsel, no proceedings for a stop order in
respect thereof are pending or threatened under Section 8(d) or
8(e) of the 1933 Act;
(C) the Registration Statement, including any
Rule 462(b) Registration Statement, the Offering Terms and the
Prospectus (except as to the financial
18
statements and financial or statistical data contained therein,
with respect to which said counsel need express no opinion) comply
as to form, in all material respects, with the requirements of the
1933 Act, the 1934 Act and the 1939 Act and the rules and
regulations of the Commission under such Acts; and the documents
incorporated or deemed to be incorporated by reference in the
Registration Statement and the Prospectus (except as to the
financial statements and financial or statistical data contained
therein, with respect to which said counsel need express no
opinion) as of their respective dates of filing with the
Commission complied as to form in all material respects with the
1934 Act and the 1934 Act Regulations;
(D) the Indenture [and the First Mortgage Indenture]
[have each] has been qualified under the 1939 Act as and to the
extent required by the provisions of the 1939 Act; and
(E) all approvals, authorizations, consents,
certificates or orders of any state or federal commission or
regulatory authority that are necessary with respect to the
issuance and sale of the Senior Notes [and the issuance of the
Bonds] by the Company as contemplated in this Agreement have been
obtained.
Such opinion may be subject to the reservation that, in
giving such opinion, said counsel has relied on the opinion of
Oklahoma counsel as to all matters of Oklahoma law and on the
opinion of Arkansas counsel as to all matters of Arkansas law
(including without limiting the foregoing [all opinions as to
titles of the Company to its properties, the lien of the
First Mortgage Indenture thereon,] the validity and sufficiency of
franchises and permits, and the validity and sufficiency of the
orders described in subdivision (K) of subsection (c)(i) of this
Section 5 and subdivision (F) of subsection (c)(i) of this
Section 5), provided that such opinion shall state that said
counsel believes that the Underwriters and they are justified in
relying on the opinions of Oklahoma counsel and of Arkansas
counsel.
(d) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of 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 Representatives may reasonably require, and
the Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters. In
giving such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of Illinois and the
federal law of the United States, upon the opinions of Oklahoma counsel,
Arkansas counsel or other counsel satisfactory to the Representatives.
(e) OFFICERS' CERTIFICATE. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, results of
19
operations, properties, business affairs or business prospects of the
Company, whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting
officer of the Company, dated as of Closing Time, to the effect that (i)
there has been no such material adverse change, (ii) the representations and
warranties in this Agreement are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii) the Company
has complied with all agreements and satisfied all conditions on its part to
be performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending or,
to their knowledge, are contemplated by the Commission.
(f) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of
this Agreement, the Representatives shall have received from Xxxxxx Xxxxxxxx
LLP a letter, dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus.
(g) BRING-DOWN COMFORT LETTER. At Closing Time, the Representatives
shall have received from 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.
(h) MAINTENANCE OF RATING. At Closing Time, the Senior Notes shall
be rated at least by Moody's Investor's Service, Inc. and by
Standard & Poor's Rating Service, Inc. Since the date of this Agreement,
there shall not have occurred a downgrading in the rating assigned to any of
the Company's securities by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of Rule
436(g)(2) under the 1933 Act, and no such organization shall have publicly
announced that it has under surveillance or review its rating of the Senior
Notes[, the First Mortgage Bonds] or any of the Company's other securities.
(i) ADDITIONAL DOCUMENTS. At Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance
and sale of the Senior Notes [and issuance and delivery of the Bonds] as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Senior Notes [and issuance and delivery
of the Bonds] as herein contemplated shall be satisfactory in form and
substance to the Representatives and counsel for the
Underwriters.
(j) TERMINATION OF AGREEMENT. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Representatives by notice to the
Company at any time at or prior to Closing Time, and such
20
termination shall be without liability of any party to any other party except
as provided in Section 4 and except that Sections 1, 7, 8 and 9 shall survive
any such termination and remain in full force and effect.
In giving the opinions contemplated by paragraphs (c) and (d) of this
Section 5, counsel may rely upon certificates of state officials as to the
Company's good standing and upon certificates of officers of the Company as
to matters of fact relevant to such opinions. In giving such opinions,
counsel may assume (i) that the Senior Notes [and the Bonds] have been
executed on behalf of the Company by the manual or facsimile signatures of
the President or a Vice President and the Secretary or an Assistant Secretary
of the Company and have been manually authenticated by an authorized official
of the Trustee [and First Mortgage Trustee, respectively], (ii) that the
signatures on all documents examined by them are genuine, and (iii) that the
written information supplied by the Representatives and the other
Underwriters expressly for use in the Registration Statement or the
Prospectus is adequate.
SECTION 6. CONDITIONS OF COMPANY'S OBLIGATIONS
The obligation of the Company to deliver the Senior Notes [and the First
Mortgage Bonds] upon payment therefor shall be subject to the following
conditions:
At the Closing Time, (a) the orders of the Oklahoma Commission and the
Arkansas Commission referred to in paragraph (xvii) of Section 1(a) hereof
shall be in full force and effect substantially in the form in which
originally entered and (b) no stop order suspending the effectiveness of the
Registration Statement shall be in effect and no proceedings for that purpose
shall then be pending before, or threatened by, the Commission.
In case any of the conditions specified above in this Section 6 shall
not have been fulfilled, this Agreement may be terminated by the Company by
delivering written notice of termination to the Representatives. Any such
termination shall be without liability of any party to any other party except
to the extent provided in Section 4 hereof.
SECTION 7. INDEMNIFICATION
(a) INDEMNIFICATION OF UNDERWRITERS. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Offering Terms, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact
21
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
7(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by
), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with the written information furnished to the
Company by any Underwriter through
expressly for use in the Registration Statement (or any amendment thereto),
including the Offering Terms, or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), which information is set forth on
Schedule C hereto. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Underwriter or to any
controlling person of that Underwriter.
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements
or omissions, made in the Registration Statement (or any amendment thereto),
including the Offering Terms, or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity
with the written information furnished to the Company by such Underwriter
through expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), which
information is set forth on Schedule C hereto. The foregoing indemnity is in
addition to any liability which any Underwriter may otherwise have to the
Company or any such director, officer or controlling person.
22
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it
is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. In the case of parties indemnified pursuant to
Section 7(a) above, counsel to the indemnified parties shall be selected by
, and, in the case of parties
indemnified pursuant to Section 7(b) above, counsel to the indemnified
parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; PROVIDED,
HOWEVER, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their
own counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances. No indemnifying party
shall, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 7 or
Section 8 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all
liability (including any obligation to pay any amounts in settlements)
arising out of such litigation, investigation, proceeding or claim and (ii)
does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 7(a)(ii) effected without its written consent
if (i) such settlement is entered into more than 45 days after receipt by
such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with
such request prior to the date of such settlement.
SECTION 8. CONTRIBUTION
If the indemnification provided for in Section 7 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party
in respect of any losses, liabilities, claims, damages or expenses referred
to therein, then each indemnifying party shall contribute to the aggregate
amount of such losses, liabilities, claims, damages and expenses incurred by
such indemnified party, as incurred, (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and
the Underwriters on the other hand from the offering of the Senior Notes
pursuant to this Agreement or (ii) if the allocation provided by
23
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and of
the Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Senior
Notes pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Senior Notes
pursuant to this Agreement (before deducting expenses) received by the
Company and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, or, if Rule 434 is
used, the corresponding location on the Term Sheet, bear to the aggregate
initial public offering price of the Senior Notes as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 8. The
aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 8
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Senior Notes underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 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
24
rights to contribution as such Underwriter, and each director of the Company,
each officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The Underwriters' respective obligations to
contribute pursuant to this Section 8 are several in proportion to the
principal amount of Senior Notes set forth opposite their respective names in
Schedule A hereto and not joint.
SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of the Senior Notes to the Underwriters.
SECTION 10. TERMINATION OF AGREEMENT
(a) TERMINATION; GENERAL. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time
(i) if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the Prospectus, any
loss sustained by the Company by strike, fire, flood, accident or other
calamity of such character as to interfere materially with the conduct of the
business and operations of the Company regardless of whether or not such loss
shall have been insured, or any material adverse change in the condition,
financial or otherwise, or in the earnings, results of operations,
properties, business affairs or business prospects of the Company, whether or
not arising in the ordinary course of business, or (ii) if there has occurred
any material adverse change in the financial markets in the United States,
any outbreak of hostilities or escalation thereof or other calamity or crisis
or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Senior Notes or to enforce
contracts for the sale of the Senior Notes, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq
National Market has been suspended or materially limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either Federal, New York or Oklahoma authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 1, 7, 8 and 9 shall survive such termination and remain in full
force and effect.
25
SECTION 11. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS
If one or more of the Underwriters fails at Closing Time to purchase the
Senior Notes which it or they are obligated to purchase under this Agreement
(the "Defaulted Senior Notes"), the Representatives will have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriter or underwriters, to
purchase all, but not less than all, of the Defaulted Senior Notes in such
amounts as may be agreed upon and upon the terms herein set forth; if,
however, the Representatives do not complete such arrangements within such
24-hour period, then:
(a) if the number of Defaulted Senior Notes does not exceed 10% of
the aggregate principal amount of the Senior Notes to be purchased
hereunder, each of the non-defaulting Underwriters will be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear
to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Senior Notes exceeds 10% of the
aggregate principal amount of the Senior Notes to be purchased hereunder,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section will relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representatives or the Company will have the
right to postpone Closing Time for a period not exceeding seven days in order
to effect any required changes in the Registration Statement or Prospectus or
in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 11.
SECTION 12. NOTICES
All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Underwriters shall be
directed to the Representatives at attention of;
each with a copy to 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 Xxxxxxxx, 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.
26
SECTION 13. PARTIES
This Agreement shall each inure to the benefit of and be binding upon
the Underwriters and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 7 and 8 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Senior Notes from any
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 14. GOVERNING LAW AND TIME
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF OKLAHOMA. Except as otherwise set forth herein,
specified times of day refer to New York City time.
SECTION 15. EFFECT OF HEADINGS
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
[This space intentionally left blank]
27
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its
terms.
Very truly yours,
OKLAHOMA GAS AND ELECTRIC COMPANY
By___________________________________________________
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
BY:
By___________________________________________________
Title:
SCHEDULE A
Principal
Amount of
Name of Underwriter Senior Notes
_______________________________________________________ ____________
. . . . . . . . $
. . . . . . . .
. . . . . . . .
. . . . . . . .
____________
Total . . . . . . . . . . . . . . . . . . . . . . . . . $
____________
Sch. A-1
SCHEDULE B
OKLAHOMA GAS AND ELECTRIC COMPANY
$ Senior Notes, Series due ,
1. The initial public offering price of the Senior Notes is % of
the principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Underwriters for the Senior Notes
is % of the principal amount thereof.
3. The interest rate on the Senior Notes is % per annum.
4. The Company, at its option, may redeem on any date on or after
, all or, from time to time, any part of the Senior Notes
at a redemption price equal to the greater of (i) % of the principal
amount of such Senior Notes and (ii) the sum of the present values of the
remaining scheduled payments of principal and interest thereon from and after
the date of redemption discounted to the redemption date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate (as defined in the Indenture), plus in each case accrued and unpaid
interest thereon to the date of redemption.
[5. The holder of each Senior Note may elect to have such Senior Note, or
any portion thereof which is a multiple of $ , repaid on
, at % of its principal amount plus accrued and unpaid
interest to , .]
[6. The Oklahoma Real Estate Mortgage Tax is %.]
Sch. B-1
SCHEDULE C
The information set forth below constitutes the only information
furnished to the Company by any Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or preliminary prospectus
or the Prospectus (or any amendment or supplement thereto):
Sch. C-1
