OKLAHOMA GAS AND ELECTRIC COMPANY (an Oklahoma corporation) $__________ _____% Senior Notes, Series due _____________ FORM OF UNDERWRITING AGREEMENT Dated: _______________
Exhibit
1.03
OKLAHOMA
GAS AND ELECTRIC COMPANY
(an
Oklahoma corporation)
$__________
_____% Senior Notes, Series due _____________
FORM OF
UNDERWRITING AGREEMENT
Dated:
_______________
TABLE
OF CONTENTS
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PAGE
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SECTION 1.
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REPRESENTATIONS
AND WARRANTIES
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2
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SECTION 2.
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SALE
AND DELIVERY TO UNDERWRITERS; CLOSING
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9
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SECTION 3.
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COVENANTS
OF THE COMPANY
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10
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SECTION 4.
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PAYMENT
OF EXPENSES
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13
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SECTION 5.
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CERTAIN
AGREEMENTS OF THE UNDERWRITERS
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13
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SECTION 6.
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CONDITIONS
OF UNDERWRITERS’ OBLIGATIONS
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14
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SECTION 7.
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CONDITIONS
OF COMPANY’S OBLIGATIONS
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19
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SECTION 8.
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INDEMNIFICATION
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20
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SECTION 9.
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CONTRIBUTION
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22
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SECTION 10.
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REPRESENTATIONS,
WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY
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23
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SECTION 11.
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TERMINATION
OF AGREEMENT
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23
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SECTION 12.
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DEFAULT
BY ONE OR MORE OF THE UNDERWRITERS
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24
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SECTION 13.
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NOTICES
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24
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SECTION 14.
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PARTIES
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25
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SECTION 15.
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GOVERNING
LAW AND TIME
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25
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SECTION 16.
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EFFECT
OF HEADINGS
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25
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SCHEDULES
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Schedule
A
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—
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List
of Senior Note Underwriters
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A-1
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Schedule
B
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—
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Pricing
Information
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B-1
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Schedule
C
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—
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Time
of Sale Information
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C-1
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Schedule
D
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—
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Information
Provided by Underwriters
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D-1
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Schedule
E
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—
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Form
of Opinion of Xxxxx Day
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E-1
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OKLAHOMA
GAS AND ELECTRIC COMPANY
(AN
OKLAHOMA CORPORATION)
$__________
_____% SENIOR NOTES, SERIES DUE ____________
_______________
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To:
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Ladies
and Gentlemen:
Oklahoma
Gas and Electric Company, an Oklahoma corporation (the “Company”), confirms its
agreement with _______________________________ (the “Representatives”), and each
of the other entities identified on Schedule A hereto as underwriters
(collectively, with the Representatives, the “Underwriters,” which term
includes any underwriter substituted as hereinafter provided in Section 11
hereof), with respect to the issue and sale by the Company and the purchase by
the Underwriters, acting severally and not jointly, of the respective principal
amounts set forth in Schedule A hereto of $___________ 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 UMB Bank, N.A., 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.
The
Company understands that the Underwriters propose to make a public offering of
the Senior Notes as soon as they deem advisable after this Agreement has been
executed and delivered. The Indenture has been qualified under the Trust
Indenture Act of 1939, as amended (the “1939 Act”).
The
Company has filed with the Securities and Exchange Commission (the “Commission”) a joint
registration statement with OGE Energy Corp. on Form S-3 (File
No. 333-________) covering the registration of an indeterminate amount of
debt securities of the Company under the Securities Act of 1933, as amended (the
“1933 Act”). Such
registration statement was effective upon filing on _____________. Such
registration statement, including the information, if any, deemed pursuant to
Rule 430A, 430B or 430C of the rules and regulations of the Commission
under the 1933 Act (the “1933
Act Regulations”) to be part of the registration statement at the time of
its effectiveness (“Rule
430
Information”) are collectively referred to herein as the “Registration Statement.” As
used herein, the term “Preliminary Prospectus”
means the preliminary prospectus supplement relating to the Senior Notes dated
_____________, including the accompanying prospectus of the Company dated
____________, and the term “Prospectus” means the
prospectus in the form provided by the Company for use
(or made
available upon request of purchasers pursuant to Rule 173 under the 0000
Xxx) in connection with confirmation of sales of the Senior Notes. 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. Any reference in this
Agreement to the Registration Statement, the Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include all amendments made by the
Company prior to the Time of Sale (defined below) and all documents filed by the
Company with the Commission and incorporated by reference therein. For purposes
of this Agreement, all references to the Registration Statement, the Preliminary
Prospectus, the Prospectus 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, the 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, the Preliminary Prospectus or the Prospectus, as the
case may be; and all references in this Agreement to amendments or supplements
to the Registration Statement, the 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.
At or
prior to ____:____ [a.m./p.m.] on _____________, the time when sales of the
Senior Notes were first made on the date of this Agreement (the “Time of Sale”), the Company
had prepared the following information (collectively, the “Time of Sale Information”):
the Preliminary Prospectus and each “free-writing prospectus” (as defined
pursuant to Rule 405 under the 1933 Act Regulations) listed on
Schedule C hereto.
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 (as defined in Section 2(b)
hereof), and agrees with each Underwriter, as follows:
(i) Compliance with Registration
Requirements. With respect to the Registration Statement, (A) the
Registration Statement is an “automatic shelf registration statement” (as
defined in Rule 405 under the 1933 Act), (B) the Company has not
received from the Commission any notice pursuant to Rule 401(g)(2) of the
1933 Act objecting to the use of the automatic shelf registration statement and
(C) the conditions for use of Form S-3, as set forth in the General
Instructions thereof, have been satisfied.
At the
respective times the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendments thereto became effective (and, if
later, at the time of filing of the Company’s annual report on Form 10-K)
and at the Closing Time,
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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. The
Preliminary Prospectus, as of its date, did not contain 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, in the light of the
circumstances under which they were made, not misleading. The representations
and warranties in this subsection shall not apply to (A) that part of the
Registration Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the 1939 Act of the Trustee,
(B) information contained in the Registration Statement, the Prospectus or
the Preliminary Prospectus relating to The Depository Trust Company and its
book-entry system, or (C) statements in or omissions from the Registration
Statement, the Prospectus or the Preliminary Prospectus made in reliance upon
and in conformity with the information furnished to the Company in writing by
any Underwriter through the Representatives expressly for use in the
Registration Statement, the Prospectus or the Preliminary Prospectus, which
information is set forth on Schedule D hereto.
The
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 of the 1933 Act Regulations (“Rule 424”), complied when so filed
in all material respects with the 1933 Act Regulations, and the Preliminary
Prospectus and the Prospectus delivered to the Underwriters for use in
connection with this offering were identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(ii) Time of Sale Information. The
Time of Sale Information, at the Time of Sale did not, and at the Closing Time
will not, contain any 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 misleading. The
representations and warranties in this subsection shall not apply to
(A) information contained in the Time of Sale Information relating to The
Depository Trust Company and its book-entry system or (B) statements in or
omissions from the Time of Sale Information made in reliance upon and in
conformity with the information furnished to the Company in writing by any
Underwriter through the Representatives expressly for use in the Time of Sale
Information, which information is set forth on Schedule D
hereto.
(iii) Issuer Free Writing
Prospectus. Other than the Preliminary Prospectus and the Prospectus, the
Company (including its agents and representatives, other than the
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Underwriters
in their capacity as such) has not made, used, prepared, authorized, approved or
referred to and will not prepare, make, use, authorize, approve or refer to any
“written communication” (as defined in Rule 405 of the 1933 Act
Regulations) that constitutes an offer to sell or solicitation of an offer to
buy the Senior Notes (each such communication by the Company or its agents and
representatives (other than a communication referred to in clause (i)
below) an “Issuer Free Writing
Prospectus”) other than (i) any document not constituting a
prospectus pursuant to Section 2(a)(10)(a) of the 1933 Act or Rule 134
of the 1933 Act Regulations or (ii) the documents listed on
Schedule C hereto or communications (including electronic communications)
containing substantially similar information and other written communications
approved in writing in advance by the Representatives. Each such Issuer Free
Writing Prospectus complied in all material respects with the applicable
requirements of the 1933 Act, has been or will be filed in accordance with
the 1933 Act Regulations (to the extent required thereby) and, when taken
together with the Preliminary Prospectus filed prior to the first use of such
Issuer Free Writing Prospectus, did not, and at the Closing Time will not,
contain any 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 misleading; provided that the Company
makes no representation and warranty with respect to any statements or omissions
made in each such Issuer Free Writing Prospectus in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use in
any Issuer Free Writing Prospectus.
(iv) Incorporated Documents. The
documents incorporated or deemed to be incorporated by reference in the
Registration Statement, the Prospectus or the Time of Sale Information, 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
or the Time of Sale Information, at the time the Registration Statement became
effective (and, if later, at the time of filing of the Company’s annual report
on Form 10-K), at the time the Prospectus or the Time of Sale Information
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.
(v) Independent Accountants.
Ernst & Young LLP, the accountants who examined and audited the
financial statements and supporting schedules included in the Registration
Statement, is an independent registered public accounting firm as required by
the 1933 Act and the 1933 Act Regulations and the Public Company Accounting
Oversight Board (United States).
(vi) Financial Statements. The
financial statements included or incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus, together with the
related schedules and notes, present fairly the financial position of the
Company at the dates indicated and the results of operations, stockholders’
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equity
and cash flows of the Company 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 or incorporated by reference in the Registration Statement present
fairly in accordance with GAAP the information required to be stated therein.
The summary or selected financial information included or incorporated by
reference in the Prospectus and the Time of Sale Information presents fairly the
information shown therein and has been compiled on a basis consistent with that
of the audited financial statements included or incorporated by reference in the
Registration Statement. The Company has no material contingent obligation which
is not disclosed in the Prospectus and the Time of Sale
Information.
(vii) No Material Adverse Change.
Since the respective dates as of which information is given or incorporated by
reference in the Registration Statement, the Time of Sale Information 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, there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(viii) 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.
(ix) No Subsidiaries. The Company
has no subsidiaries that would be considered a “significant subsidiary” under
Rule 1-02(w) of Regulation S-X.
(x) Capitalization. The
authorized, issued and outstanding capital stock of the Company is as stated in
the Registration Statement, Prospectus and the Time of Sale Information. The
shares of issued and outstanding capital stock of the Company have been duly and
validly issued and are fully paid and non-assessable.
(xi) Authorization of Agreement.
This Agreement has been duly authorized, executed and delivered by the
Company.
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(xii) Authorization of the
Indenture. The Indenture has been duly authorized by the Company and duly
qualified under the 1939 Act and, when duly executed and delivered by the
Company and the Trustee, will constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting enforcement of creditors’
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xiii) 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.
(xiv) Description of the Senior Notes and
the Indenture. The Senior Notes and the Indenture will conform in all
material respects to the respective statements relating thereto contained in the
Prospectus and the Time of Sale Information and will be in substantially the
respective forms filed or incorporated by reference, as the case may be, as
exhibits to the Registration Statement. The “Release Date” (as defined in the
Indenture) occurred on April 6, 1998 and no notes issued under the
Indenture are secured by any property of the Company.
(xv) Absence of Defaults and
Conflicts. The Company is not (i) in violation of its Restated
Certificate of Incorporation or By-Laws, (ii) 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”) or (iii) except as disclosed in the Registration
Statement, the Prospectus and the Time of Sale Information, in violation of any
law, ordinance, governmental rule, regulation or court decree to which it or its
property or assets may be subject except in the case of (ii) and (iii) for such
defaults or violations that would not reasonably be expected to result in a
Material Adverse Effect; and the execution, delivery and performance of this
Agreement, the Indenture and the Senior Notes, and the consummation of the
transactions contemplated herein and in the Registration Statement, the
Prospectus and the Time of Sale Information (including the issuance and sale of
the Senior Notes and the use of the proceeds from the sale of the Senior Notes
as described in the Prospectus under the caption “Use of Proceeds”) and
compliance by the Company with its obligations hereunder and under the Indenture
and the Senior Notes have been duly authorized by all
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necessary
corporate action and do not and will not conflict with or constitute a breach
of, or default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to, the Agreements and Instruments (except for
such conflicts, breaches, defaults or liens, charges or encumbrances that would
not result in a Material Adverse Effect), nor will such action result in any
violation of the provisions of the Restated Certificate of Incorporation or
By-Laws of the Company or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any of its
assets, properties or operations. As used herein, a “Repayment Event” means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder’s behalf) the
right to require the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Company, other than such events or conditions that are
contemplated by the terms of this Agreement and the Indenture.
(xvi) Absence of Proceedings. Other
than as disclosed in the Registration Statement, the Prospectus and the Time of
Sale Information, 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
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, the Prospectus and the Time of Sale Information
including ordinary routine litigation incidental to its business, could not
reasonably be expected to result in a Material Adverse Effect.
(xvii) Accuracy of Exhibits. There
are no contracts or documents which are required to be described in the
Registration Statement, the Time of Sale Information, the Prospectus or the
documents incorporated by reference therein or to be filed as exhibits thereto
which have not been so described or filed as required.
(xviii) Regulatory Approvals; Absence of
Further Requirements. The Corporation Commission of the State of Oklahoma
(the “Oklahoma
Commission”) has, to the extent necessary, duly authorized the issuance
and sale of the Senior Notes on terms consistent with this Agreement. No filing
with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency is
necessary or required for the performance by the Company of its obligations
hereunder, in connection with the offering, issuance or sale of the Senior Notes
hereunder or the consummation of the transactions contemplated by this Agreement
and the Registration Statement, the Prospectus and the Time of Sale Information
or for the due execution,
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delivery
or performance of the Indenture by the Company, except such as have been already
obtained, including from the Oklahoma Commission.
(xix) Possession of Licenses and
Permits. The Company possesses such permits, licenses, approvals,
consents, franchises 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, the Time of Sale Information and Prospectus, except
where the failure so to possess such permit, license, approval, consent or
authorization would not, singly or in the aggregate, have a Material Adverse
Effect (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 where 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.
(xx) 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 Registration Statement, Prospectus and Time of
Sale Information or (b) do not, singly or in the aggregate, materially
affect the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company; and all of the leases and
subleases material to the business of the Company, and under which the Company
holds properties described in the Prospectus, are in full force and effect, and
the Company does not have notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company under any of the leases
or subleases mentioned above, or affecting or questioning the rights of the
Company to the continued possession of the leased or subleased premises under
any such lease or sublease.
(xxi) Taxes. The Company, either
directly or through its parent, has filed all federal, state and local income
and franchise tax returns required to be filed through the date hereof (other
than those filings being contested in good faith) and has paid all taxes, either
directly or through its parent, of which it has notice are due thereon (other
than those being contested in good faith and for which adequate reserves have
been provided without penalty or interest), and no tax deficiency has been
determined adversely to the Company which has had (nor does the Company have any
knowledge of any tax deficiency which, if determined adversely to the Company,
might have) a Material Adverse Effect.
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(xxii) No Stabilization. The Company
has not taken, directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in any stabilization or manipulation
of the price of the Senior Notes; provided, however, that this
paragraph shall not apply to, and the Company does not accept any responsibility
for, any stabilization activities conducted by the Underwriters, who shall
remain solely responsible for such activities.
(xxiii) Status under the 1933 Act.
The Company is not an “ineligible issuer” as defined under the 1933 Act at the
times specified in the 1933 Act in connection with the offering of the Senior
Notes.
(b) Officer’s Certificates. Any
certificate signed by any officer of the Company and delivered to any
Underwriter or to counsel for the Underwriters shall be deemed a representation
and warranty by the Company to each Underwriter as to the matters covered
thereby.
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
listed on Schedule A, severally and not jointly, and each Underwriter
listed on Schedule A, severally and not jointly, agrees to purchase from
the Company, at a price equal to _____% of the principal amount thereof, the
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 12 hereof.
(b) Payment. Payment of the
purchase price, 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 9:00 a.m. (________
time) on the third business day after the date hereof (unless postponed in
accordance with the provisions of Section 12), 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 for
each series of Senior Notes being herein called a “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 has 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. The Representatives, individually and not
as representatives 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 $__________,
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
forms,
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available
for examination and packaging by the Underwriters in ________________ not later
than 10:00 a.m. (________ time) on the business day prior to the Closing
Time.
(d) No Fiduciary Duty. The
Company acknowledges and agrees that the Underwriters are acting solely in the
capacity of an arm’s length contractual counterparty to the Company with respect
to the offering of the Senior Notes contemplated hereby (including in connection
with determining the terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Company or any other person. Additionally,
neither the Representatives nor any other Underwriter is advising the Company or
any other person as to any legal, tax, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such
matters and shall be responsible for making its own independent investigation
and appraisal of the transactions contemplated hereby, and, except as otherwise
contemplated in this Agreement, the Underwriters shall have no responsibility or
liability to the Company with respect thereto. Any review by the Underwriters of
the Company, the transactions contemplated hereby or other matters relating to
such transactions will be performed solely for the benefit of the Underwriters
and shall not be on behalf of the Company.
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 and will
notify the Underwriters promptly, 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,
or of any Issuer Free Writing 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 any Issuer Free Writing Prospectus or for additional
information, (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 the Preliminary Prospectus, or of receipt
from the Commission of any notice of objection to the use of the Registration
Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2)
under the 1933 Act, or of the suspension of the qualification of the Senior
Notes for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes or pursuant to
Section 8A of the 1933 Act, and (v) of the occurrence of any
event within the Prospectus Delivery Period (as defined in Section 3(d)
below) as a result of which the Prospectus, the Time of Sale Information or any
Issuer Free Writing Prospectus as then amended or supplemented would 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, in the
light of the circumstances existing when the Prospectus, the Time of Sale
Information or any such Issuer Free Writing Prospectus is delivered to a
purchaser, not misleading. The Company will file the final Prospectus with the
Commission within the time periods specified by Rule 424(b) and
Rule 403A, 430B or 430C under the 1933 Act, will file any Issuer Free
Writing Prospectus (including the Pricing Information set forth in
Schedule B) to the extent required by Rule 433 under the 1933 Act and
will take such steps as it deems necessary to ascertain promptly whether the
form of prospectus
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or Issuer
Free Writing Prospectus transmitted for filing under Rule 424(b) or
Rule 433, as applicable, 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, or notice of objection is received, to obtain the
lifting or removal thereof at the earliest possible moment.
(b) Filing of Amendments; Issuer Free
Writing Prospectus. Prior to the later of the Closing Time or the
termination of the Prospectus Delivery Period, before preparing, using,
authorizing, approving, referring to or filing any Issuer Free Writing
Prospectus, and before filing any amendment or supplement to the Registration
Statement or the Prospectus, the Company will furnish to the Representatives and
counsel for the Underwriters a copy of the proposed Issuer Free Writing
Prospectus, amendment or supplement for review and prior to the later of the
Closing Time or the termination of the Prospectus Delivery Period, will not
prepare, use, authorize, approve, refer to or file any such Issuer Free Writing
Prospectus or file any such proposed amendment or supplement to which the
Representatives reasonably object.
(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 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 the
Preliminary Prospectus and documents incorporated by reference therein as such
Underwriter reasonably requested, and the Company hereby consents to the use of
such copies for purposes permitted by the 1933 Act. During the Prospectus
Delivery Period, the Company will furnish to each Underwriter, without charge,
such number of copies of the Prospectus (as amended or supplemented) and
documents incorporated by reference therein and each Issuer Free Writing
Prospectus as such Underwriter may reasonably request. The Prospectus, each
Issuer Free Writing 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. As used herein, the term “Prospectus Delivery Period”
means such period of time after the first date of the public offering of the
Senior Notes as in the opinion of counsel for the Underwriters a prospectus
relating to the Senior Notes is required by law to be delivered (or required to
be delivered but for Rule 172 under the 0000 Xxx) in connection with sales
of the Senior Notes by any Underwriter or dealer. The Representatives, on behalf
of the Underwriters, shall promptly notify the Company after the Prospectus
Delivery Period has been terminated.
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(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 during the Prospectus Delivery Period, 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 or Time of Sale Information in order that the
Registration Statement, Prospectus or Time of Sale Information, as applicable,
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 or Time of Sale Information 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, the Prospectus or Time of Sale
Information 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 Registration Statement, the Prospectus and the Time
of Sale Information under “Use of Proceeds.”
(h) Restriction on Sale of
Securities. During the period beginning on the date of this Agreement and
continuing until the Closing Time, which period shall in no event exceed
15 business days, the Company will not, without the prior written consent
of the Representatives, in their 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.
(i) Blue Sky Qualifications. The
Company will furnish such information, execute such instruments and take such
action as may be required to qualify the Senior Notes for sale under the laws of
such jurisdictions as the Representatives may designate and will maintain such
qualifications in effect so long as required for the distribution of the Senior
Notes; provided that
the Company shall not be required to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which would subject it to
general or unlimited service of process in any jurisdiction where it is not now
so subject.
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(j) Record Retention. The Company
will, pursuant to reasonable procedures developed in good faith, retain, as and
to the extent required under Rule 433 of the 1933 Act Regulations, copies
of each Issuer Free Writing Prospectus that is not filed with the Commission in
accordance with Rule 433 of the 1933 Act Regulations.
(k) No Stabilization. The Company
will not take, directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in any stabilization or manipulation
of the price of the Senior Notes; provided, however, that this
paragraph shall not apply to, and the Company does not accept any responsibility
for, any stabilization activities conducted by the Underwriters, who shall
remain solely responsible for such activities.
SECTION 4. PAYMENT
OF EXPENSES.
(a) Expenses. Whether or not the
transactions contemplated hereunder are consummated or this Agreement is
terminated, the Company will pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation, printing
and filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, any
Agreement among Underwriters, the Indenture, and such other documents as may be
reasonably required in connection with the offering, purchase, sale, issuance or
delivery of the Senior Notes, (iii) all costs, taxes and expenses incident
to the preparation, issuance and delivery of the Senior Notes to the
Underwriters, (iv) the fees and disbursements of the Company’s counsel
and accountants, (v) the printing and delivery to the
Underwriters of copies of the Preliminary Prospectus, the Prospectus, any Issuer
Free Writing Prospectus and any amendments or supplements thereto, (vi) the
fees and expenses of the Trustee, including the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the Senior Notes,
(vii) any fees payable in connection with the rating of the Senior Notes
and (viii) all costs and expenses (including reasonable fees and expenses
of counsel) incurred in connection with “blue sky” qualifications.
(b) Termination of Agreement. If
this Agreement is terminated by the Underwriters in accordance with the
provisions of Section 6 or Section 11(a)(i) hereof or in accordance
with Section 7 hereof, the Company shall reimburse the Underwriters for all
of their reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters. If this Agreement is terminated
by the Underwriters in accordance with the provisions of Section 11(a)(ii)
through (v) hereof, the Company shall reimburse the Underwriters for one half of
all of their reasonable out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the Underwriters.
SECTION 5. CERTAIN
AGREEMENTS OF THE UNDERWRITERS.
Each
Underwriter, severally and not jointly, hereby represents and agrees as
follows:
(a) Without
the prior consent of the Company and the Representatives, other than
(i) any free writing prospectus that contains only information describing
the preliminary terms of the Senior Notes or their offering or (ii) any
Issuer Free Writing Prospectus listed on Schedule C
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or
prepared pursuant to Section 1(a)(iii) or Section 3(b) above, it has
not made and will not make any offer relating to the Senior Notes that would
constitute a “free writing prospectus” as defined in Rule 405 under the
1933 Act, required to be filed with the SEC.
(b) It
is not subject to any pending proceeding under Section 8A of the 1933 Act
Regulations with respect to the offering (and will promptly notify the Company
if any such proceeding against it is initiated).
(c) [If
applicable, add representations regarding overseas jurisdictions]
SECTION 6. 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. At the Closing Time, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor or pursuant to Section 8A
of the 1933 Act initiated or threatened by the Commission, no notice of
objection by the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933
Act shall have been received by the Company and not removed by such date, 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. The Prospectus and each Issuer Free Writing Prospectus shall have
been timely filed with the Commission under the 1933 Act (in the case of a
Issuer Free Writing Prospectus, to the extent required by Rule 433 under
the 0000 Xxx) and in accordance with Section 3(b) hereof; and all requests
by the Commission for additional information shall have been complied with to
the reasonable satisfaction of the Representatives.
(b) Opinions of Counsel for
Company. At the Closing Time, the Representatives shall have received the
favorable opinions, dated as of the Closing Time, of The Xxxxxx Law
Firm, Oklahoma City, Oklahoma, Xxxxxxxxxx, Xxxxxxx & Julian, P.A.,
Little Rock, Arkansas, and Xxxxx Day, Chicago, Illinois, each counsel for the
Company, in form and substance satisfactory to counsel for the Underwriters,
together with signed original or reproduced copies of such opinions 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
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manner
and as set forth in the Registration Statement, Prospectus and Time of Sale
Information;
(B) the
Indenture has been duly and validly executed and delivered by the Company, which
has full power and authority to enter into and perform its obligations
thereunder; and the Indenture constitutes the binding and enforceable agreement
of the Company in accordance with its terms, except as enforcement of provisions
of the Indenture may be limited by bankruptcy or other applicable laws affecting
the enforcement of creditors’ rights;
(C) the
Senior Notes are in the forms contemplated by the Indenture, have been duly and
validly authorized by the Company, constitute valid and binding obligations of
the Company enforceable in accordance with their terms, except as enforcement of
provisions of the Indenture may be limited by bankruptcy or other applicable
laws affecting the enforcement of creditors’ rights, and will be entitled to the
benefits of the Indenture;
(D) while,
except as otherwise stated in said opinion, such counsel are not passing upon
and do not assume responsibility for and shall not be deemed to have
independently verified the accuracy, completeness or fairness of the
Registration Statement, the Prospectus or the Time of Sale Information, 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 Time of Sale Information, at the Time of Sale (which such counsel may
assume to be the date of this Agreement or as otherwise agreed by such counsel
and the Underwriters) contained any untrue statement of a material fact or
omitted 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
that the Prospectus at the time it was filed pursuant to Rule 424 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) this
Agreement has been duly authorized, executed and delivered by the
Company;
(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 Registration Statement,
Prospectus and Time of Sale Information;
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(G) such
counsel does not know of any legal or governmental proceedings required to be
described in the Registration Statement, the Prospectus and Time of Sale
Information which are not described as required, nor of any contracts or
documents of a character required to be described in the Registration Statement,
the Prospectus and Time of Sale Information or to be filed as exhibits to the
Registration Statement which are not described and filed as
required;
(H) the
Indenture and the Senior Notes conform in all material respects to the
statements concerning them in the Registration Statement, Prospectus and Time of
Sale Information;
(I) all
statements contained in the Registration Statement, the Time of Sale Information
and Prospectus purporting to set forth the advice or the opinion of such counsel
or to be based upon the opinion of such counsel correctly set forth the opinion
of such counsel on such respective matters;
(J) the
execution and delivery of this Agreement and the issuance of the Senior Notes,
and compliance with the provisions thereof, under the circumstances contemplated
hereby and thereby, do not and will not violate the Restated Certificate of
Incorporation or By-Laws of the Company, or in any material respect conflict
with or constitute on the part of the Company a breach of or default under any
indenture, lease, mortgage, deed of trust, note, agreement or other instrument
known to such counsel to which the Company is a party or any law, regulation,
consent decree or administrative, arbitration or court order known to such
counsel to which the Company is subject;
(K) the
Oklahoma Commission has duly issued its order authorizing the issuance by the
Company of the Senior Notes on terms consistent with this Agreement and, to the
best of such counsel’s knowledge, such order is still in force and effect; the
issuance and sale of the Senior Notes to the Underwriters is in conformity with
the terms of such order; and no further approval, authorization, consent,
certificate or order of any Oklahoma commission or regulatory authority is
necessary with respect to the due authorization, execution and delivery of this
Agreement, the due execution, delivery or performance of the Indenture by the
Company or for the offering, issuance, sale or delivery of the Senior Notes to
the Underwriters as contemplated in this Agreement; and
(L) the
Company has no subsidiaries that would be considered a “significant subsidiary”
under Rule 1-02(w) of Regulation S-X.
(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;
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(B) except
in localities where the Company has no franchises, which are relatively few and
not of large population, or where the failure to have such franchises will not
have a material adverse effect on the business or operations of the Company, the
Company has sufficient authority under statutory provisions or by grant of
franchises or permits by municipalities or counties to conduct its business in
Arkansas as presently conducted and as described in the Prospectus;
(C) no
approval, authorization, consent, certificate or order of the Arkansas Public
Service Commission or any other governmental or regulatory authority is
necessary with respect to the due authorization, execution and delivery of this
Agreement, the due execution, delivery or performance of the Indenture by the
Company or for the offering, issuance, sale and delivery of the Senior Notes by
the Company as contemplated in this Agreement; and
(D) such
counsel is not handling any material litigation relating to the Company except
as set forth in a schedule attached to such opinion.
(iii) Opinion of Xxxxx Day. Such
opinion shall cover the matters set forth in the form attached hereto as
Schedule E.
(c) Opinion of Counsel for
Underwriters. At the Closing Time, the Representatives shall have
received the favorable opinion, dated as of the Closing Time, of Xxxxxxx and
Xxxxxx LLP, counsel for the Underwriters, together with signed original or
reproduced copies of such letter for each of the other Underwriters with respect
to such matters related to the issuance and sale of the Senior Notes as the
Underwriters may reasonably require, and the Company shall have furnished to
such counsel such documents as they request for the purpose of enabling them to
pass upon such matters. In giving such opinion such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of the State of
Illinois and the federal law of the United States, upon the opinions of Oklahoma
counsel, Arkansas counsel or other counsel satisfactory to the
Underwriters.
(d) Officers’ Certificate. At the
Closing Time, the Underwriters shall have received a certificate of the chief
executive officer or a vice president of the Company and of the chief financial
or chief accounting officer of the Company, dated as of the Closing Time, to the
effect that (i) there shall not have been, since the date hereof or since
the respective dates as of which information is given in the Prospectus and the
Time of Sale Information, 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, (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 the 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 the Closing Time, and (iv) no stop
order suspending the effectiveness of the Registration Statement has been
issued, no proceedings for that purpose or pursuant to Section 8A of the
1933 Act have been instituted or are pending or, to their knowledge, are
contemplated by the Commission and no notice of objection by the Commission to
the use of the Registration Statement or any post-effective amendment thereto
pursuant to
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Rule 401(g)(2)
under the 1933 Act shall have been received by the Company and not removed by
such date.
(e) Accountants’ Comfort Letter.
At the time of the execution of this Agreement, the Representatives shall have
received from Ernst & Young LLP a letter, dated such date, in
form and substance satisfactory to the Underwriters, together with signed
original 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 or incorporated by
reference in the Registration Statement, the Time of Sale Information and the
Prospectus.
(f) Bring-down Comfort Letter. At
the Closing Time, the Representatives shall have received from Ernst &
Young LLP a letter, dated as of the Closing Time, together with signed original
or reproduced copies of such letter for each of the other Underwriters, to the
effect that Ernst & Young LLP reaffirms the statements made in the
letter furnished pursuant to subsection (e) of this Section, except that
the specified date referred to shall be a date not more than three business days
prior to the Closing Time.
(g) Maintenance of Rating. At the
Closing Time, the Senior Notes shall be rated at least ____ by Xxxxx’x Investors
Service, Inc., ____ by Standard & Poor’s Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc. and ____ by Fitch, 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, or
changed its outlook with negative implications with respect to its rating of the
Senior Notes or any of the Company’s other securities.
(h) Material Adverse Change.
(i) Since the date hereof or since the respective dates as of which
information is given in the Time of Sale Information and the Prospectus, the
Company shall not have sustained any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Time of Sale Information and
the Prospectus or (ii) since the date hereof or since the respective dates
as of which information is given in the Time of Sale Information and the
Prospectus there shall not have been any material change in the capital stock or
long-term debt of the Company or any change, or any development involving a
prospective change, in or affecting the condition, financial or otherwise, or in
the earnings, results of operations, properties, management, business affairs or
business prospects of the Company, whether or not arising in the ordinary course
of business, otherwise than as set forth or contemplated in the Time of Sale
Information and the Prospectus, the effect of which, in any such case described
in clause (i) or (ii), is, in the judgment of the Representatives, so
material and adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Senior Notes being delivered at such
Closing Time on the terms and in the manner contemplated in the Time of Sale
Information and the Prospectus.
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(i) Additional Documents. At the
Closing Time, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them to
pass upon the issuance and sale of the Senior Notes as herein contemplated, or
in order to evidence the accuracy of any of the representations or warranties,
or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and sale of the
Senior Notes as herein contemplated shall be satisfactory in form and substance
to the Underwriters and counsel for the Underwriters.
(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
Underwriters by notice to the Company at any time at or prior to the Closing
Time, and such termination shall be without liability of any party to any other
party except as provided in Section 4 and except that Sections 1, 8, 9
and 10 shall survive any such termination and remain in full force and
effect.
In giving
the opinions contemplated by paragraphs (b) and (c) of this Section 6,
counsel may rely upon certificates of state officials as to the Company’s good
standing and upon certificates of officers of the Company as to matters of fact
relevant to such opinions. In giving such opinions, counsel may assume
(i) that the Senior Notes have been executed on behalf of the Company by
the manual or facsimile signatures of the President or a Vice President and the
Secretary or an Assistant Secretary of the Company and have been manually
authenticated by an authorized official of the Trustee, (ii) that the
signatures on all documents examined by them are genuine, and (iii) that
the written information supplied by the Underwriters expressly for use in the
Registration Statement or the Prospectus is adequate.
SECTION 7. CONDITIONS
OF COMPANY’S OBLIGATIONS.
The
obligation of the Company to deliver the Senior Notes upon payment therefor
shall be subject to the following conditions:
At the
Closing Time, (a) the order of the Oklahoma Commission referred to in
subparagraph (a)(xviii) of Section 1 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, no proceedings for that purpose or pursuant to Section 8A of the
1933 Act shall then be pending before, or threatened by, the Commission and no
notice of objection by the Commission to the use of the Registration Statement
or any post-effective amendment thereto pursuant to Rule 401(g)(2) under
the 1933 Act shall have been received by the Company and not removed by such
date.
In case
any of the conditions specified above in this Section 7 shall not have been
fulfilled, this Agreement may be terminated by the Company by delivering written
notice of termination to the Underwriters. Any such termination shall be without
liability of any party to any other party except to the extent provided in
Section 4 hereof and except that Sections 1, 8, 9 and 10 shall survive
any such termination and remain in full force and effect.
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SECTION 8. INDEMNIFICATION.
(a) The
Company shall indemnify and hold harmless each Underwriter, its affiliates,
directors and officers and each person who controls such Underwriter within the
meaning of the 1933 Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not limited
to, any loss, claim, damage, liability or action relating to purchases and sales
of Senior Notes), to which that Underwriter or controlling person may become
subject, under the 1933 Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus, any Issuer Free Writing Prospectus or any Time of Sale Information
or the Registration Statement or in any amendment or supplement thereto, or
(ii) the omission or alleged omission to state in the Prospectus, any
Issuer Free Writing Prospectus or any Time of Sale Information or the
Registration Statement, or in any amendment or supplement thereto, any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and shall reimburse each Underwriter and each such controlling
person promptly upon demand for any legal or other expenses reasonably incurred
by that Underwriter or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
the Prospectus, any Issuer Free Writing Prospectus or any Time of Sale
Information or the Registration Statement, or in any such amendment or
supplement, in reliance upon and in conformity with written information
concerning such Underwriter furnished to the Company through the Representatives
by or on behalf of any Underwriter specifically for inclusion therein which
information consists solely of the information specified in Schedule D. The
foregoing indemnity agreement is in addition to any liability which the Company
may otherwise have to any Underwriter or to any officer, employee or controlling
person of that Underwriter.
(b) Each
Underwriter, severally and not jointly, shall indemnify and hold harmless the
Company, each of its officers who signed the Registration Statement, each of its
directors and each person, if any, who controls the Company within the meaning
of the 1933 Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under the 1933 Act
or otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus, any Issuer Free
Writing Prospectus or any Time of Sale Information or the Registration Statement
or in any amendment or supplement thereto, or (ii) the omission or alleged
omission to state in the Prospectus, any Issuer Free Writing Prospectus or any
Time of Sale Information or the Registration Statement, or in any amendment or
supplement thereto, any material fact required to be stated therein or necessary
to make the statements therein not misleading, but in each case only to the
extent that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company through the
Representatives by or on behalf of that Underwriter specifically for inclusion
therein, and shall reimburse the Company and any such director, officer or
controlling person for any legal or other
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expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information consists
of the information set forth on Schedule D. The foregoing indemnity
agreement is in addition to any liability which any Underwriter may otherwise
have to the Company or any such director, officer or controlling
person.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of any
claim or the commencement of any action, the indemnified party shall, 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 claim or the
commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have under this Section 8 except to the extent it has been
materially prejudiced by such failure and, provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this
Section 8. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that the
Representatives shall have the right to employ counsel to represent jointly the
Representatives and those other Underwriters and their respective controlling
persons who may be subject to liability arising out of any claim in respect of
which indemnity may be sought by the Underwriters against the Company under this
Section 8 if, in the reasonable judgment of the Representatives, the
Representatives shall have reasonably concluded that there may be legal defenses
available to them and the other Underwriters that are different from or in
addition to those available to the indemnifying party, and in that event the
fees and expenses of such separate counsel shall be paid by the Company (provided that the
indemnifying party shall not be liable for the fees and expenses of more than
one separate counsel and one local counsel). No indemnifying party shall
(i) without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and does not
include any statement as to or an admission of fault, culpability or a failure
to act, by or on behalf of any indemnified party, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
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SECTION 9. CONTRIBUTION.
If the
indemnification provided for in Section 8 shall for any reason be
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a) or 8(b) in respect of any loss, claim, damage or liability, or
any action in respect thereof, referred to therein, then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such proportion
as shall be appropriate to reflect the relative benefits received by the Company
on the one hand and the Underwriters on the other from the offering of the
applicable series of Senior Notes to which such liability relates 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 on the one hand and the Underwriters on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, 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 with respect to such offering shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the applicable series of Senior Notes to which such liability
relates purchased under this Agreement (before deducting expenses) received by
the Company, on the one hand, and the total underwriting discount received by
the Underwriters with respect to the applicable series of Senior Notes to which
such liability relates purchased under this Agreement, on the other hand, bear
to the total gross proceeds from the offering of such Senior Notes under this
Agreement, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to whether the
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 the Underwriters, the intent of the parties and their relative 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 contributions pursuant to this Section were to be 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 into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section shall be deemed to
include, for purposes of this Section, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section with
respect to a series of Senior Notes is to which liability relates, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which such applicable series of Senior Notes to
which such liability relates underwritten by it and distributed to the public
was offered to the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay with respect to such
series of Senior Notes by reason of any 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. The Underwriters’ obligations to contribute as provided in
this Section 9 are several in proportion to their respective underwriting
obligations with respect to each series of Senior Notes and not
joint.
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|
SECTION 10.
|
REPRESENTATIONS,
WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
|
All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company 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 11. TERMINATION
OF AGREEMENT.
(a) Termination; General. This
Agreement may be terminated in the absolute discretion of the Representatives,
by notice to the Company, at any time at or prior to the Closing Time if:
(i) 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, (ii) trading in securities generally on the
New York Stock Exchange or the Nasdaq Stock Market or in the
over-the-counter market, or trading in any securities of the Company or OGE
Energy Corp. on any exchange or in the over-the-counter market, shall have been
suspended or minimum prices shall have been established on any such exchange or
such market by the Commission, by such exchange or by any other regulatory body
or governmental authority having jurisdiction, (iii) a banking moratorium
shall have been declared by federal or state authorities or there is a material
disruption in securities settlement or clearance services in the United States,
(iv) since the time of the execution of this Agreement, the United States
shall have become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States, (v) there shall have
occurred any calamity or crisis or such a material adverse change in general
economic, political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be such) as to
make it, in the judgment of the Representatives impracticable or inadvisable to
proceed with the public offering, sale or delivery of the Senior Notes being
delivered at such Closing Time on the terms and in the manner contemplated by
this Agreement, the Time of Sale Information and in the Prospectus or
(vi) the representations in Section 1(a)(ii) are incorrect in any
respect.
(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, 8, 9 and 10 shall survive such termination and remain in full
force and effect.
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SECTION 12. DEFAULT
BY ONE OR MORE OF THE UNDERWRITERS.
(a) If
one or more of the Underwriters set forth in Schedule A fails at the
Closing Time to purchase the Senior Notes which it or they are obligated to
purchase under this Agreement (the “Defaulted Senior Notes”),
the remaining Underwriter or Underwriters set forth in Schedule A (the
“Non-Defaulting
Underwriters”) will have the right, within 36 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 Non-Defaulting Underwriters do not complete
such arrangements within such 36-hour period, then:
(i) if
the principal amount of Defaulted Senior Notes does not exceed one-eleventh 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
(ii) if
the principal amount of Defaulted Senior Notes exceeds one-eleventh of the
aggregate principal amount of the Senior Notes to be purchased hereunder, this
Agreement will terminate with respect to the Senior Notes without liability on
the part of any Non-Defaulting Underwriters.
No action
taken pursuant to this Section 12(a) 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 with respect to the Senior Notes, either the Non-Defaulting
Underwriters or the Company will have the right to postpone the Closing Time for
the Senior Notes for a period not exceeding seven days in order to effect any
required changes in the Registration Statement, Time of Sale Information or
Prospectus or in any other documents or arrangements.
(b) As
used herein, the term “Underwriter” includes any
person substituted for an Underwriter under this Section 12.
SECTION 13. 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
__________________________________, Fax: __________, Attention:
_______________________ ___________________________; each with a copy to Xxxxxxx
and Xxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention:
___________________. Notices to the Company shall be directed to it at Oklahoma
Gas and Electric Company, 000 Xxxxx Xxxxxx, X.X. Xxx 000, Xxxxxxxx Xxxx,
Xxxxxxxx,
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73101-0321,
Attention: Treasurer, with a copy to Xxxxx Day, 00 Xxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000, Attention: ___________________.
SECTION 14. PARTIES.
This
Agreement shall 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 8 and 9 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 15. GOVERNING
LAW AND TIME.
This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York. Except as otherwise set forth herein, specified times of day
refer to New York City time.
SECTION 16. 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.
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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:
|
|
CONFIRMED
AND ACCEPTED, as of the date
first
above written:
[Names of
Representatives]
Acting
severally on behalf of themselves and the several
Underwriters
named on Schedule A hereto
|
By: __________________,
as Representative
|
|
By:
|
|
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SCHEDULE
A
LIST
OF SENIOR NOTE UNDERWRITERS
|
NAME
OF UNDERWRITER
|
PRINCIPAL
AMOUNT
OF
SENIOR
NOTES
|
|
TOTAL
|
A-1
SCHEDULE
B
PRICING
INFORMATION
OKLAHOMA
GAS AND ELECTRIC COMPANY
$__________
_____% SENIOR NOTES, SERIES DUE _______________
|
Issuer
|
Oklahoma
Gas & Electric Company
|
|
Ratings
(Xxxxx’x / S&P / Fitch)
|
|
|
Amount
|
|
|
Collateral
Type
|
Senior
Unsecured Notes
|
|
Type
|
SEC
Registered
|
|
Trade
Date
|
|
|
Settlement
Date (T+3)
|
|
|
Maturity
|
|
|
Coupon
Payment Dates
|
Semi-annual
payments on _____ and _____
of
each year, beginning __________
|
|
Coupon
Record Dates
|
Semi-annual
on ______ and ______
|
|
Call
Structure
|
|
|
Benchmark
|
|
|
Benchmark
Price
|
|
|
Benchmark
Yield
|
|
|
Reoffer
Spread
|
|
|
Reoffer
Yield
|
|
|
Coupon
|
|
|
Price
|
|
|
Joint
bookrunners
|
|
|
Co-manager(s)
|
|
|
CUSIP
|
|
|
ISIN
|
The
issuer has filed a registration statement (including a prospectus) with the SEC
for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer
and this offering. You may get these documents for free by visiting XXXXX on the
SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any underwriter or any
dealer participating in the offering will arrange to send you the prospectus if
you request it by calling ______________________ toll-free at
___________________________________.
B-1
SCHEDULE
C
TIME
OF SALE INFORMATION
Preliminary
Prospectus dated ________________.
Pricing
Information for the Senior Notes as set forth in Schedule B
hereto.
C-1
SCHEDULE
D
INFORMATION
PROVIDED BY UNDERWRITERS
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): statements with respect to the public offering
price of the Senior Notes by the Underwriters set forth on the cover page of,
and the statements in the ________________ paragraphs appearing under, the
caption “Underwriting” in the Prospectus.
D-1
SCHEDULE
E
FORM
OF OPINION OF XXXXX DAY
1. Except
as disclosed in the Prospectus, to such counsel’s Actual Knowledge, there is no
litigation or any governmental proceedings, pending or threatened, that would be
required to be described in the Prospectus that are not described as
required.
2. The
statements contained in the Prospectus under the captions “Description of Debt
Securities” and “Supplemental Description of Senior Notes,” insofar as such
statements purport to summarize the legal matters or provisions of documents
referred to therein, present fair summaries of such legal matters and
documents.
3. The
execution, delivery and performance of the Underwriting Agreement by the
Company, issuance and sale of the Senior Notes by the Company and the compliance
with the terms and provisions thereof by the Company will not violate any law or
regulation known to such counsel generally to be applicable to transactions of
this type, or any order or decree known to such counsel of any court, arbitrator
or governmental agency that is binding upon the Company or its respective
properties or violate or result in a default under any of the terms and
provisions of any agreement to which the Company is a party or bound (this
opinion being limited (A) to those orders, decrees and agreements
identified on Exhibit A attached hereto and (B) in that such counsel
expresses no opinion with respect to any violation (1) not readily
ascertainable from the face of any such order, decree or agreement,
(2) arising under or based upon any cross default provision insofar as it
relates to a default under an agreement not so identified on Exhibit A
attached hereto or (3) arising as a result of any violation of any
agreement or covenant by failure to comply with any financial or numerical
requirement requiring computation).
4. The
Indenture has been qualified under the 1939 Act.
5. Assuming
that the issuance and sale of the Senior Notes have been duly authorized and
approved by an order of the Oklahoma Corporation Commission and such order is in
full force and effect on the date hereof, no consent, approval, authorization or
order of, or filing with, any governmental agency or body or any court is
required in connection with the issuance or sale of the Senior Notes by the
Company, except (i) for the registration of the Senior Notes under the 1933
Act and the rules and regulations thereunder, (ii) periodic and other
reporting requirements under the 1934 Act and the rules and regulations
thereunder or (iii) as may be required under state securities or “blue sky”
laws.
Such
counsel has participated in the preparation of the Company’s registration
statement on Form S-3 (Registration No.
333- )
(the “Registration Statement”), the prospectus, dated
,
2010 (the “Base Prospectus”), the preliminary prospectus supplement, dated
,
(together with the Base
Prospectus, the “Preliminary Prospectus”), the final pricing term sheet attached
to the Underwriting Agreement as Schedule B (together with the Preliminary
Prospectus, the “Time of Sale Information”) and the prospectus supplement, dated
,
(together with the Base
Prospectus, the “Prospectus”). From time to time,
E-1
such
counsel has had discussions with certain officers, directors and employees of
the Company, with representatives of Ernst & Young LLP, the independent
registered public accounting firm who examined the financial statements of the
Company included or incorporated by reference in the Registration Statement, the
Time of Sale Information and the Prospectus, with the Underwriters and with
counsel to the Underwriters, concerning the information contained in or
incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus and the proposed responses to various items in
Form S-3. Based solely upon such counsel’s participation and
discussions described above, such counsel is of the view that the Registration
Statement (including all information deemed to be part of and included therein
pursuant to Rule 430B under the 1933 Act, as of
,
, which is the date the
Underwriters have identified as the earlier of the date the Prospectus was first
used or the date of the first contract of sale of the Senior Notes (such date,
the “Effective Date”), and the Prospectus, as of its date, complied as to form
in all material respects with the requirements of the 1933 Act and the rules and
regulations of the Commission thereunder, and that the documents incorporated by
reference or deemed to be incorporated by reference into the Registration
Statement, the Preliminary Prospectus, the Time of Sale Information and the
Prospectus that were filed prior to the date hereof at the time they were filed
complied as to form in all material respects with the requirements of the 1934
Act and the rules and regulations of the Commission thereunder, except that such
counsel expresses no view with respect to (i) the financial statements,
financial schedules and other financial and statistical data included or
incorporated by reference therein or (ii) the information referred to under
the caption “Experts” as having been included or incorporated by reference
therein on the authority of Ernst & Young LLP as experts.
Such
counsel has not independently verified and is not passing upon, and does not
assume any responsibility for, the accuracy, completeness or fairness (except as
and to the extent set forth in paragraph 2 above) of the information
included or incorporated by reference in the Registration Statement, the
Preliminary Prospectus, the Time of Sale Information and the
Prospectus. Based on the participation and discussions set forth
above, however, no facts have come to such counsel’s attention that cause such
counsel to believe that the Registration Statement (including all information
deemed to be part of and included therein pursuant to Rule 430B under the
1933 Act), as of the Effective Date, contained any 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, that the Time of
Sale Information, as of
[a.m./p.m.], Eastern Standard Time, on
,
(which is the time that the Underwriters have informed
such counsel was prior to the first contract of sale of any Senior Notes by the
Underwriters) included any 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, or that
the Prospectus, as of its date or on the date hereof, included or includes any
untrue statement of a material fact or omitted or omits 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, except that we express
no view with respect to (i) the financial statements, financial schedules
and other financial and statistical data included or incorporated by reference
therein or (ii) the information referred to under the caption “Experts” as
having been included or incorporated by reference therein on the authority of
Ernst & Young LLP as experts.
