-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EqoNgWBEXnFZWWm9NLri2+Kh2yJ9WL+smdqfHlv1RCefzXDoQOHEnzqUzCOG0fxM jIuEt/dKflbOHZ9mws6wOg== 0001047469-98-015233.txt : 19980417 0001047469-98-015233.hdr.sgml : 19980417 ACCESSION NUMBER: 0001047469-98-015233 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 19980413 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19980416 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: OKLAHOMA GAS & ELECTRIC CO CENTRAL INDEX KEY: 0000074145 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 730382390 STATE OF INCORPORATION: OK FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 033-01532 FILM NUMBER: 98595031 BUSINESS ADDRESS: STREET 1: 101 N ROBINSON CITY: OKLAHOMA CITY STATE: OK ZIP: 73102 BUSINESS PHONE: 4055533000 MAIL ADDRESS: STREET 1: RAE RICE STREET 2: P O BOX 321 MC208 CITY: OKLAHOMA CITY STATE: OK ZIP: 73101 8-K 1 8-K ----------------------------------------------------------------------------- FORM 8-K SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report: April 13, 1998 Commission file number 1-1097 OKLAHOMA GAS AND ELECTRIC COMPANY (exact name of registrant as specified in its charter) Oklahoma 73-0382390 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 321 North Harvey P.O. Box 321 Oklahoma City, Oklahoma 73101-0321 (Address of principal executive offices) (Zip Code) (405) 553-3000 (Registrant's telephone number, including area code) ----------------------------------------------------------------------------- ITEM 5. OTHER EVENTS On April 13, 1998, Oklahoma Gas and Electric Company, an Oklahoma corporation (the "Company") entered into a Purchase Agreement and filed on April 13, 1998, with the Securities and Exchange Commission a prospectus supplement relating to $100,000,000 in aggregate principal amount of its 6-1/2% Senior Notes, Series due April 15, 2028. ITEM 7. FINANCIAL STATEMENT AND EXHIBITS
Exhibits 1.01 Purchase Agreement, dated April 13, 1998, between Merrill Lynch, Pierce, Fenner & Smith Incorporated, CIBC Oppenheimer Corp. and Lehman Brothers Inc. relating to $100,000,000 of 6-1/2% Senior Notes, Series due April 15, 2028. 4.01 Supplemental Indenture No. 3 dated as of April 1, 1998, between the Company and The Bank of New York, creating $100,000,000 principal amount of 6-1/2% Senior Notes, Series due April 15, 2028 (the "Senior Notes"). 4.02 Supplemental Trust Indenture dated April 6, 1998 between the Company and The Bank of New York, releasing the lien of the Company's First Mortgage Indenture. 5.01 Opinion of counsel as to legality of the Senior Notes.
SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. OKLAHOMA GAS AND ELECTRIC COMPANY (Registrant) By: /s/ James R. Hatfield ----------------------------------------------- James R. Hatfield, Vice President and Treasurer (On behalf of the registrant and in his capacity as Vice President and Treasurer) April 14, 1998
EX-1.01 2 EXHIBIT 1.01 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- OKLAHOMA GAS AND ELECTRIC COMPANY (an Oklahoma corporation) $100,000,000 Senior Notes, Series due April 15, 2028 PURCHASE AGREEMENT Dated: April 13, 1998 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- TABLE OF CONTENTS
PAGE PURCHASE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 SECTION 1. Representations and Warranties. . . . . . . . . . . . . . . . . . . .3 (a) Representations and Warranties by the Company . . . . . . . . . . . .3 (i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. . . . . . . . . .3 (ii) INCORPORATED DOCUMENTS . . . . . . . . . . . . . . . . . . .4 (iii) INDEPENDENT ACCOUNTANTS. . . . . . . . . . . . . . . . . . .4 (iv) FINANCIAL STATEMENTS . . . . . . . . . . . . . . . . . . . .4 (v) NO MATERIAL ADVERSE CHANGE . . . . . . . . . . . . . . . . .4 (vi) GOOD STANDING OF THE COMPANY . . . . . . . . . . . . . . . .5 (vii) NO SUBSIDIARIES. . . . . . . . . . . . . . . . . . . . . . .5 (viii) CAPITALIZATION . . . . . . . . . . . . . . . . . . . . . . .5 (ix) AUTHORIZATION OF AGREEMENT . . . . . . . . . . . . . . . . .5 (x) AUTHORIZATION OF THE INDENTURE . . . . . . . . . . . . . . .5 (xi) AUTHORIZATION OF THE SENIOR NOTES. . . . . . . . . . . . . .5 (xii) DESCRIPTION OF THE SENIOR NOTES AND THE INDENTURE. . . . . .5 (xiii) ABSENCE OF DEFAULTS AND CONFLICTS. . . . . . . . . . . . . .6 (xiv) ABSENCE OF PROCEEDINGS . . . . . . . . . . . . . . . . . . .6 (xv) ACCURACY OF EXHIBITS . . . . . . . . . . . . . . . . . . . .6 (xvi) REGULATORY APPROVALS; ABSENCE OF FURTHER REQUIREMENTS. . . .7 (xvii) POSSESSION OF LICENSES AND PERMITS . . . . . . . . . . . . .7 (xviii) TITLE TO PROPERTY . . . . . . . . . . . . . . . . . . . . .7 (b) Officer's Certificates. . . . . . . . . . . . . . . . . . . . . . . .8 SECTION 2. Sale and Delivery to Underwriters; Closing. . . . . . . . . . . . . .8 (a) Senior Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 (b) Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 (c) Denominations; Registration . . . . . . . . . . . . . . . . . . . . .8 SECTION 3. Covenants of the Company. . . . . . . . . . . . . . . . . . . . . . .9 (a) Compliance with Securities Regulations and Commission Requests. . . .9 (b) Filing of Amendments. . . . . . . . . . . . . . . . . . . . . . . . .9 (c) Delivery of Registration Statements . . . . . . . . . . . . . . . . .9 (d) Delivery of Prospectuses. . . . . . . . . . . . . . . . . . . . . . 10 (e) Continued Compliance with Securities Laws . . . . . . . . . . . . . 10 (f) Rule 158. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 (g) Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . 10 (h) Restriction on Sale of Securities . . . . . . . . . . . . . . . . . 10 SECTION 4. Payment of Expenses . . . . . . . . . . . . . . . . . . . . . . . . 11 (a) Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 (b) Termination of Agreement. . . . . . . . . . . . . . . . . . . . . . 11
i TABLE OF CONTENTS (Continued)
PAGE SECTION 5. Conditions of Underwriters' Obligations . . . . . . . . . . . . . . 11 (a) Effectiveness of Registration Statement; Filing of Prospectus . . . 11 (b) Opinions of Counsel for Company . . . . . . . . . . . . . . . . . . 11 (i) OPINION OF OKLAHOMA COUNSEL. . . . . . . . . . . . . . . . . 12 (ii) OPINION OF ARKANSAS COUNSEL. . . . . . . . . . . . . . . . . 14 (iii) OPINION OF GARDNER, CARTON & DOUGLAS . . . . . . . . . . . . 14 (c) Opinion of Counsel for Underwriters . . . . . . . . . . . . . . . . 15 (d) Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . 15 (e) Accountant's Comfort Letter . . . . . . . . . . . . . . . . . . . . 16 (f) Bring-down Comfort Letter . . . . . . . . . . . . . . . . . . . . . 16 (g) Maintenance of Rating . . . . . . . . . . . . . . . . . . . . . . . 16 (h) Additional Documents. . . . . . . . . . . . . . . . . . . . . . . . 16 (i) Termination of Agreement. . . . . . . . . . . . . . . . . . . . . . 16 SECTION 6. Conditions of Company's Obligations . . . . . . . . . . . . . . . . 17 SECTION 7. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . 17 (a) Indemnification of Underwriters . . . . . . . . . . . . . . . . . . 17 (b) Indemnification of Company, Directors and Officers. . . . . . . . . 18 (c) Actions against Parties; Notification . . . . . . . . . . . . . . . 18 (d) Settlement without Consent if Failure to Reimburse. . . . . . . . . 19 SECTION 8. Contribution. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 SECTION 9. Representations, Warranties and Agreements to Survive Delivery. . . 21 SECTION 10. Termination of Agreement. . . . . . . . . . . . . . . . . . . . . . 21 (a) Termination; General. . . . . . . . . . . . . . . . . . . . . . . . 21 (b) Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 SECTION 11. Default by One or More of the Underwriters. . . . . . . . . . . . . 21 SECTION 12. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 SECTION 13. Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 SECTION 14. Governing Law and Time. . . . . . . . . . . . . . . . . . . . . . . 23 SECTION 15. Effect of Headings. . . . . . . . . . . . . . . . . . . . . . . . . 23 SCHEDULES Schedule A -- List of Underwriters . . . . . . . . . . . . . . . . . . . . Sch. A-1 Schedule B -- Pricing Information. . . . . . . . . . . . . . . . . . . . . Sch. B-1 Schedule C -- Information Provided by Underwriters . . . . . . . . . . . . Sch. C-1
ii OKLAHOMA GAS AND ELECTRIC COMPANY (AN OKLAHOMA CORPORATION) $100,000,000 SENIOR NOTES, SERIES DUE APRIL 15, 2028 PURCHASE AGREEMENT April 13, 1998 To: Merrill Lynch, Pierce, Fenner & Smith Incorporated CIBC Oppenheimer Corp. Lehman Brothers Inc. Ladies and Gentlemen: Oklahoma Gas and Electric Company, an Oklahoma corporation (the "Company"), confirms its agreement with Merrill Lynch, Pierce, Fenner & Smith Incorporated, CIBC Oppenheimer Corp. and Lehman Brothers Inc. (collectively, the "Underwriters," which term includes any underwriter substituted as hereinafter provided in Section 11 hereof), with respect to the issue and sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of the respective principal amounts set forth in Schedule A hereto of $100,000,000 aggregate principal amount of the Company's Senior Notes, Series due April 15, 2028 (the "Senior Notes"). The Senior Notes are to be issued pursuant to the Indenture dated as of October 1, 1995 between the Company and The Bank of New York, as successor trustee (the "Trustee"), as heretofore amended and supplemented and as amended and supplemented by Supplemental Indenture No. 3, dated as of April 1, 1998, creating the series in which the Senior Notes are to be issued. The term "Indenture," as used herein, means such Indenture dated as of October 1, 1995, as so amended and supplemented, and includes the Company Order (as defined in the Indenture), if any, establishing the form and terms of the Senior Notes pursuant to the Indenture. The Company understands that the Underwriters propose to make a public offering of the Senior Notes as soon as they deem advisable after this Agreement has been executed and delivered and the Indenture has been qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act"). The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (No. 333-46169) covering the registration of the Senior Notes under the Securities Act of 1933, as amended (the "1933 Act"), including the related preliminary prospectus or prospectuses. Promptly after execution and delivery of this Agreement, the Company will either (i) prepare and file a prospectus in accordance with paragraph (b) of Rule 424 ("Rule 424(b)") of the rules and regulations of the Commission under the 1933 Act (the "1933 Act Regulations") or (ii) if the Company has elected to rely upon Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a "Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). The information included in such prospectus or in such Term Sheet, as the case may be, that was omitted from such registration statement at the time it became effective is referred to as the "Offering Terms." Each prospectus used before such registration statement became effective, and any prospectus that omitted the Offering Terms, that was used after such effectiveness and prior to the execution and delivery of this Agreement, is herein called a "preliminary prospectus." Such registration statement, including the exhibits thereto, schedules thereto, if any, and the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it became effective and including the Offering Terms, is herein called the "Registration Statement." Any registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b) Registration Statement," and after such filing the term "Registration Statement" shall include the Rule 462(b) Registration Statement. The final prospectus, including the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the form first furnished to the Underwriters for use in connection with the offering of the Senior Notes is herein called the "Prospectus." If Rule 434 is relied on, the term "Prospectus" shall refer to the preliminary prospectus dated February 26, 1998 together with the Term Sheet and all references in this Agreement to the date of the Prospectus shall mean the date of the Term Sheet. For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any Term Sheet or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system ("EDGAR"). All references in this Agreement to financial statements and schedules and other information which is "contained," "included" or "stated" in the Registration Statement, any preliminary prospectus or the Prospectus (or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is incorporated by reference in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to mean and include the filing of any document under the Securities Exchange Act of 1934, as amended (the "1934 Act") which is incorporated by reference in the Registration Statement, such preliminary prospectus or the Prospectus, as the case may be. 2 REPRESENTATIONS AND WARRANTIES (a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company represents and warrants to each Underwriter as of the date hereof and as of the Closing Time referred to in Section 2(b) hereof, and agrees with each Underwriter, as follows: (i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Company meets the requirements for use of Form S-3 under the 1933 Act. Each of the Registration Statement and any Rule 462(b) Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with. At the respective times the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto became effective and at the Closing Time, the Registration Statement, the Rule 462(b) Registration Statement and any amendments and supplements thereto complied and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and the rules and regulations of the Commission under the 1939 Act (the "1939 Act Regulations"), and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued and at the Closing Time, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If Rule 434 is used, the Company will comply with the requirements of Rule 434. The representations and warranties in this subsection shall not apply to (A) that part of the Registration Statement which constitutes the Statements of Eligibility and Qualification (Form T-1) under the Trust Indenture Act (the "Statements of Eligibility") of the Trustee and the trustee for the Company's previously outstanding first mortgage bonds, (B) information contained in the Registration Statement or the Prospectus relating to The Depository Trust Company and its book-entry system, or (C) statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with the information furnished to the Company in writing by any Underwriter through Merrill Lynch, Pierce, Fenner & Smith Incorporated expressly for use in the Registration Statement or Prospectus that is set forth on Schedule C hereto. Each preliminary prospectus and the prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all material respects with the 1933 Act Regulations and each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with this offering was identical to the electronically 3 transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. (ii) INCORPORATED DOCUMENTS. The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act and the rules and regulations of the Commission thereunder (the "1934 Act Regulations"), as applicable, and, when read together with the other information in the Prospectus, at the time the Registration Statement became effective, at the time the Prospectus was issued and at the Closing Time, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (iii) INDEPENDENT ACCOUNTANTS. Arthur Andersen LLP, the accountants who examined the financial statements and supporting schedules included in the Registration Statement, are independent public accountants as required by the 1933 Act and the 1933 Act Regulations. (iv) FINANCIAL STATEMENTS. The financial statements included in the Registration Statement and the Prospectus, together with the related schedules and notes, present fairly the financial position of the Company and its consolidated subsidiaries at the dates indicated and the statement of operations, stockholders' equity and cash flows of the Company and its consolidated subsidiaries for the periods specified; said financial statements have been prepared in conformity with generally accepted accounting principles ("GAAP") applied on a consistent basis throughout the periods involved, except as otherwise stated in the notes thereto. The supporting schedules, if any, included in the Registration Statement present fairly in accordance with GAAP the information required to be stated therein. The selected financial information included in the Prospectus presents fairly the information shown therein and has been compiled on a basis consistent with that of the audited financial statements included in the Registration Statement. The Company has no material contingent obligation which is not disclosed in the Prospectus. (v) NO MATERIAL ADVERSE CHANGE. Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, properties, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business (a "Material Adverse Effect"), (B) there have been no transactions entered into by the Company, other than those in the ordinary course of business, which are material with respect to the Company, and (C) except for regular quarterly dividends on the Common Stock, par value $2.50 per share, of the Company in amounts consistent with past practice, regular quarterly dividends on the Company's Preferred Stock and the redemption of all the Company's Preferred Stock, there has been no dividend or 4 distribution of any kind declared, paid or made by the Company on any class of its capital stock. (vi) GOOD STANDING OF THE COMPANY. The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Oklahoma and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under this Agreement; and the Company is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect. (vii) NO SUBSIDIARIES. The Company has no subsidiaries. (viii) CAPITALIZATION. The authorized, issued and outstanding capital stock of the Company is as stated in the Prospectus. (ix) AUTHORIZATION OF AGREEMENT. This Agreement has been duly authorized, executed and delivered by the Company. (x) AUTHORIZATION OF THE INDENTURE. The Indenture has been duly authorized by the Company and duly qualified under the 1939 Act and, when duly executed and delivered by the Company and the Trustee, will constitute a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). (xi) AUTHORIZATION OF THE SENIOR NOTES. The Senior Notes have been duly authorized and, at the Closing Time, will have been duly executed by the Company and, when authenticated, issued and delivered in the manner provided for in the Indenture and delivered against payment of the purchase price therefor as provided in this Agreement, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law), and will be in the form contemplated by, and entitled to the benefits provided by, the Indenture. (xii) DESCRIPTION OF THE SENIOR NOTES AND THE INDENTURE. The Senior Notes and the Indenture will conform in all material respects to the respective statements relating 5 thereto contained in the Prospectus and will be in substantially the respective forms filed or incorporated by reference, as the case may be, as exhibits to the Registration Statement. (xiii) ABSENCE OF DEFAULTS AND CONFLICTS. The Company is not in violation of its Restated Certificate of Incorporation or By-Laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound, or to which any of its property or assets is subject (collectively, "Agreements and Instruments") except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Senior Notes, and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Senior Notes and the use of the proceeds from the sale of the Senior Notes as described in the Prospectus under the caption "Use of Proceeds") and compliance by the Company with its obligations hereunder and under the Indenture and the Senior Notes have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or By-Laws of the Company or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its assets, properties or operations. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, other than such events or conditions that are contemplated by the terms of this Agreement and the Indenture. (xiv) ABSENCE OF PROCEEDINGS. Other than as disclosed in the Registration Statement, there is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting the Company, which is required to be disclosed in the Registration Statement or which might reasonably be expected to result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect its properties or assets or the consummation of the transactions contemplated in this Agreement or the performance by the Company of its obligations hereunder. The aggregate of all pending legal or governmental proceedings to which the Company is a party or of which any of its property or assets is the subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, could not reasonably be expected to result in a Material Adverse Effect. 6 (xv) ACCURACY OF EXHIBITS. There are no contracts or documents which are required to be described in the Registration Statement, the Prospectus or the documents incorporated by reference therein or to be filed as exhibits thereto which have not been so described and filed as required. (xvi) REGULATORY APPROVALS; ABSENCE OF FURTHER REQUIREMENTS. The Corporation Commission of the State of Oklahoma (the "Oklahoma Commission") and the Arkansas Public Service Commission (the "Arkansas Commission") have, to the extent necessary, each duly authorized the issuance and sale of the Senior Notes on terms consistent with this Agreement. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Company of its obligations hereunder, in connection with the offering, issuance or sale of the Senior Notes hereunder or the consummation of the transactions contemplated by this Agreement or for the due execution, delivery or performance of the Indenture by the Company, except such as have been already obtained, including from the Oklahoma Commission and the Arkansas Commission. (xvii) POSSESSION OF LICENSES AND PERMITS. The Company possesses such permits, licenses, approvals, consents and other authorizations issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct in all material respects the business now operated by it and as described in the Registration Statement and Prospectus (collectively, "Governmental Licenses"); the Company is in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, have a Material Adverse Effect; all of the Governmental Licenses are in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not have a Material Adverse Effect; and the Company has not received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect. (xviii) TITLE TO PROPERTY. The Company has good and sufficient title to all real property, principal plants and all other property owned by it and which is material to the Company's operations, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of any kind except such as (a) are described in the Prospectus or (b) do not, singly or in the aggregate, materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company; and all of the leases and subleases material to the business of the Company, and under which the Company holds properties described in the Prospectus, are in full force and effect, and the Company does not have notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Company to the continued possession of the leased or subleased premises under any such lease or sublease. 7 (b) OFFICER'S CERTIFICATES. Any certificate signed by any officer of the Company or any of its subsidiaries delivered to any Underwriter or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby. SALE AND DELIVERY TO UNDERWRITERS; CLOSING (a) SENIOR NOTES. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at the price set forth in Schedule B, the aggregate principal amount of Senior Notes set forth in Schedule A opposite the name of such Underwriter, plus any additional principal amount of Senior Notes which such Underwriter may become obligated to purchase pursuant to the provisions of Section 11 hereof. (b) PAYMENT. Payment of the purchase price for, and delivery of certificates for, the Senior Notes shall be made at the offices of Gardner, Carton & Douglas, Chicago, Illinois, or at such other place as shall be agreed upon by Merrill Lynch, Pierce, Fenner & Smith Incorporated and the Company, at 9:00 A.M. (Chicago time) on the third business day after the date hereof (unless postponed in accordance with the provisions of Section 11), or such other time not later than ten business days after such date as shall be agreed upon by Merrill Lynch, Pierce, Fenner & Smith Incorporated and the Company (such time and date of payment and delivery being herein called "Closing Time"). Payment shall be made to the Company by wire transfer of immediately available funds to a bank account designated by the Company, against delivery to Merrill Lynch, Pierce, Fenner & Smith Incorporated for the respective accounts of the Underwriters of certificates for the Senior Notes to be purchased by them. It is understood that each Underwriter had authorized Merrill Lynch, Pierce, Fenner & Smith Incorporated, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Senior Notes which it has agreed to purchase. Merrill Lynch, Pierce, Fenner & Smith Incorporated, individually and not as representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Senior Notes to be purchased by any Underwriter whose funds have not been received by the Closing Time, but such payment shall not relieve such Underwriter from its obligations hereunder. (c) DENOMINATIONS; REGISTRATION. One certificate for the Senior Notes shall be in the amount of $100,000,000 and registered in the name of Cede & Co., as nominee of the Depository Trust Company. The Company will make the Senior Notes, which may be in temporary form, available for examination and packaging by the Underwriters in New York, New York not later than 10:00 A.M. (New York time) on the business day prior to the Closing Time. 8 SECTION 3. COVENANTS OF THE COMPANY The Company covenants with each Underwriter as follows: (a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The Company, subject to Section 3(b), will comply with the requirements of Rule 424 of the 1933 Act Regulations ("Rule 424") or Rule 434, as applicable, and will notify the Underwriters immediately, and confirm the notice in writing, (i) of the effectiveness of any post-effective amendment to the Registration Statement, or of the filing of any supplement to the Prospectus or any amended Prospectus, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Senior Notes for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment. (b) FILING OF AMENDMENTS. The Company will give the Underwriters notice of its intention to file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b)), any Term Sheet or any amendment, supplement or revision to either the prospectus included in the Registration Statement at the time it became effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish Merrill Lynch, Pierce, Fenner & Smith Incorporated with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which Merrill Lynch, Pierce, Fenner & Smith Incorporated or counsel for the Underwriters reasonably objects. (c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished or will deliver to Merrill Lynch, Pierce, Fenner & Smith Incorporated and counsel for the Underwriters, without charge, signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and signed copies of all consents and certificates of experts, in such number as Merrill Lynch, Pierce, Fenner & Smith Incorporated reasonably requests, and will also deliver to Merrill Lynch, Pierce, Fenner & Smith Incorporated, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. 9 (d) DELIVERY OF PROSPECTUSES. The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. (e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations so as to permit the completion of the distribution of the Senior Notes as contemplated in this Agreement and in the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Senior Notes, any event occurs or condition exists as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it is necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request. (f) RULE 158. The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act. (g) USE OF PROCEEDS. The Company will use the net proceeds received by it from the sale of the Senior Notes in the manner specified in the Prospectus under "Use of Proceeds." (h) 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 Merrill Lynch, Pierce, Fenner & Smith Incorporated, in its sole discretion, directly or indirectly, issue, sell, offer or contract to sell, grant any option for the sale of, or otherwise transfer or dispose of, any debt securities of the Company which mature more than one year after the Closing Time and which are substantially similar to the Senior Notes. 10 SECTION 4. PAYMENT OF EXPENSES (a) EXPENSES. Whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, the Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and of each amendment thereto, (ii) the preparation, printing and delivery to the Underwriters of this Agreement, any Agreement among Underwriters, the Indenture, and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Senior Notes, (iii) all costs, taxes and expenses incident to the preparation, issuance and delivery of the Senior Notes to the Underwriters, (iv) the fees and disbursements of the Company's counsel, accountants and other advisors, (v) the printing and delivery to the Underwriters of copies of each preliminary prospectus, any Term Sheets and of the Prospectus and any amendments or supplements thereto, (vi) the fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Senior Notes and (vii) any fees payable in connection with the rating of the Senior Notes. (b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the Underwriters in accordance with the provisions of Section 5, Section 6 or Section 10(a)(i) hereof, the Company shall reimburse the Underwriters for all of their out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters. SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS The obligations of the several Underwriters hereunder are subject to the accuracy of the representations and warranties of the Company contained in Section 1 hereof and in certificates of any officer of the Company delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following further conditions: (a) EFFECTIVENESS OF REGISTRATION STATEMENT; FILING OF PROSPECTUS. The Registration Statement, including any Rule 462(b) Registration Statement, has become effective and at Closing Time no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. A prospectus containing the Offering Terms shall have been filed with the Commission in accordance with Rule 424(b) or, if the Company has elected to rely upon Rule 434, a Term Sheet shall have been filed with the Commission in accordance with Rule 424(b). (b) OPINIONS OF COUNSEL FOR COMPANY. At Closing Time, the Underwriters shall have received the favorable opinions, dated as of Closing Time, of Rainey, Ross, Rice & Binns, Oklahoma City, Oklahoma, Chisenhall, Nestrud & Julian, P.A., Little Rock, Arkansas, and Gardner, Carton & Douglas, Chicago, Illinois, each counsel for the Company, in form and substance satisfactory to counsel for the Underwriters, together with signed or reproduced copies 11 of such letter for each of the other Underwriters to the effect set forth below and to such further effect as counsel to the Underwriters may reasonably request. (i) OPINION OF OKLAHOMA COUNSEL (A) the Company is a legally existing corporation and is in good standing under the laws of the State of Oklahoma and has corporate power, right and authority to do business and to own property in the State of Oklahoma in the manner and as set forth in the Prospectus; (B) the Indenture has been duly and validly executed and delivered by the Company, which has full power and authority to enter into and perform its obligations thereunder; and the Indenture constitutes the binding and enforceable agreement of the Company in accordance with its terms, except as enforcement of provisions of the Indenture may be limited by bankruptcy or other applicable laws affecting the enforcement of creditors' rights; (C) the Senior Notes are in the form contemplated by the Indenture, have been duly and validly authorized by the Company, constitute valid and binding obligations of the Company and will be entitled to the benefits of the Indenture; (D) while, except as otherwise stated in said opinion, such counsel are not passing upon and do not assume responsibility for and shall not be deemed to have independently verified the accuracy, completeness or fairness of the Registration Statement or the Prospectus, nothing has come to the attention of such counsel that would lead them to believe that the Registration Statement at the time it became effective contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus at the time it was filed pursuant to Rule 424 and/or Rule 434 under the 1933 Act or at the Closing Time contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (E) the execution and delivery of this Agreement have been duly authorized by the necessary action on the part of the Company and this Agreement constitutes the valid and binding agreement of the Company except to the extent that the provisions for indemnities or contribution may be held to be unenforceable as against public policy; (F) except in localities where the Company has no franchises, which are relatively few and not of large population, or where the failure to have such franchises will not have a material adverse effect on the business or operations of the Company, the Company has sufficient authority under statutory provisions or 12 by grant of franchises or permits by municipalities or counties to conduct its business in Oklahoma as presently conducted and as described in the Prospectus; (G) such counsel does not know of any legal or governmental proceedings required to be described in the Prospectus which are not described as required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not described and filed as required; (H) the Indenture and the Senior Notes conform in all material respects to the statements concerning them in the Prospectus; (I) all statements contained in the Registration Statement and Prospectus purporting to set forth the advice or the opinion of such counsel or to be based upon the opinion of such counsel correctly set forth the opinion of such counsel on such respective matters; (J) the execution and delivery of this Agreement and the issuance of the Senior Notes, and compliance with the provisions thereof, under the circumstances contemplated hereby and thereby, do not and will not violate the Restated Certificate of Incorporation or By-Laws of the Company, or in any material respect conflict with or constitute on the part of the Company a breach of or default under any indenture, lease, mortgage, deed of trust, note, agreement or other instrument known to such counsel to which the Company is a party or any law, regulation, consent decree or administrative, arbitration or court order known to such counsel to which the Company is subject; (K) the Oklahoma Commission has duly issued its order authorizing the issuance by the Company of the Senior Notes on terms consistent with this Agreement and, to the best of such counsel's knowledge, such order is still in force and effect; the issuance and sale of the Senior Notes to the Underwriters is in conformity with the terms of such order; and no further approval, authorization, consent, certificate or order of any Oklahoma commission or regulatory authority is necessary with respect to the due authorization, execution and delivery of this Agreement, the due execution, delivery or performance of the Indenture by the Company or for the offering, issuance, sale or delivery of the Senior Notes to the Underwriters as contemplated in this Agreement; and (L) to the best of such counsel's knowledge, the Company does not have any subsidiaries. 13 (ii) OPINION OF ARKANSAS COUNSEL (A) the Company is duly qualified as a foreign corporation and is in good standing under the laws of the State of Arkansas and has corporate power, right and authority to do business and to own property in the State of Arkansas in the manner and as set forth in the Prospectus; (B) except in localities where the Company has no franchises, which are relatively few and not of large population, or where the failure to have such franchises will not have a material adverse effect on the business or operations of the Company, the Company has sufficient authority under statutory provisions or by grant of franchises or permits by municipalities or counties to conduct its business in Arkansas as presently conducted and as described in the Prospectus; (C) all statements contained in the Registration Statement and Prospectus purporting to set forth the advice or the opinion of such counsel or to be based upon the opinion of such counsel correctly set forth the opinion of such counsel on such respective matters; (D) the Arkansas Commission, to the extent necessary, has duly issued its order authorizing the issuance and sale by the Company of the Senior Notes on terms consistent with this Agreement and such order is still in force and effect; the issuance and sale of the Senior Notes to the Underwriters are in conformity with the terms of such order; and no further approval, authorization, consent, certificate or order of the Arkansas Commission or any other governmental or regulatory authority is necessary with respect to the due authorization, execution and delivery of this Agreement, the due execution, delivery or performance of the Indenture by the Company or for the offering, issuance, sale and delivery of the Senior Notes by the Company to the Trustee as contemplated in this Agreement; and (E) such counsel is not handling any litigation relating to the Company except as set forth in a schedule attached to such opinion. (iii) OPINION OF GARDNER, CARTON & DOUGLAS (A) such opinion shall cover the matters set forth in subdivisions (A), (B), (C), (D), (E), (G), (H), (J) and (L) of paragraph (b)(i) of this Section 5; (B) the Registration Statement, including any Rule 462(b) Registration Statement, has become effective under the 1933 Act, the Prospectus Supplement has been filed pursuant to Rule 424(b) and/or Rule 434 under the 1933 Act, and, to the best knowledge of said counsel, no proceedings for a stop order in respect thereof are pending or threatened under Section 8(d) or 8(e) of the 1933 Act; 14 (C) the Registration Statement, including any Rule 462(b) Registration Statement, the Offering Terms and the Prospectus (except as to the financial statements and financial or statistical data contained therein, with respect to which said counsel need express no opinion) comply as to form, in all material respects, with the requirements of the 1933 Act, the 1934 Act and the 1939 Act and the rules and regulations of the Commission under such Acts; and the documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus (except as to the financial statements and financial or statistical data contained therein, with respect to which said counsel need express no opinion) as of their respective dates of filing with the Commission complied as to form in all material respects with the 1934 Act and the 1934 Act Regulations; (D) the Indenture has been qualified under the 1939 Act as and to the extent required by the provisions of the 1939 Act; and (E) all approvals, authorizations, consents, certificates or orders of any state or federal commission or regulatory authority that are necessary with respect to the issuance and sale of the Senior Notes by the Company as contemplated in this Agreement have been obtained. Such opinion may be subject to the reservation that, in giving such opinion, said counsel has relied on the opinion of Oklahoma counsel as to all matters of Oklahoma law and on the opinion of Arkansas counsel as to all matters of Arkansas law (including without limiting the foregoing all opinions as to the validity and sufficiency of franchises and permits, and the validity and sufficiency of the orders described in subdivision (K) of subsection (b)(i) of this Section 5 and subdivision (D) of subsection (b)(ii) of this Section 5), provided that such opinion shall state that said counsel believes that the Underwriters and they are justified in relying on the opinions of Oklahoma counsel and of Arkansas counsel. (c) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, the Underwriters shall have received the favorable opinion, dated as of Closing Time, of Jones, Day, Reavis & Pogue, counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters with respect to such matters related to the issuance and sale of the Senior Notes as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of Illinois and the federal law of the United States, upon the opinions of Oklahoma counsel, Arkansas counsel or other counsel satisfactory to the Underwriters. (d) OFFICERS' CERTIFICATE. At Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, properties, business affairs or business prospects of the Company, whether or not 15 arising in the ordinary course of business, and the Underwriters shall have received a certificate of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties in this Agreement are true and correct with the same force and effect as though expressly made at and as of Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to their knowledge, are contemplated by the Commission. (e) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of this Agreement, the Underwriters shall have received from Arthur Andersen LLP a letter, dated such date, in form and substance satisfactory to the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus. (f) BRING-DOWN COMFORT LETTER. At Closing Time, the Underwriters shall have received from Arthur Andersen LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. (g) MAINTENANCE OF RATING. At Closing Time, the Senior Notes shall be rated at least Aa3 by Moody's Investors Service, Inc. and AA- by Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc. Since the date of this Agreement, there shall not have occurred a downgrading in the rating assigned to any of the Company's securities by any "nationally recognized statistical rating organization," as that term is defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such organization shall have publicly announced that it has under surveillance or review its rating of the Senior Notes or any of the Company's other securities. (h) ADDITIONAL DOCUMENTS. At Closing Time, counsel for the Underwriters shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Senior Notes as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Senior Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (i) TERMINATION OF AGREEMENT. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Underwriters by notice to the Company at any time at or prior to Closing Time, and such termination shall be without liability of any party to any other party except as provided in Section 4 and except that Sections 1, 7, 8 and 9 shall survive any such termination and remain in full force and effect. 16 In giving the opinions contemplated by paragraphs (b) and (c) of this Section 5, counsel may rely upon certificates of state officials as to the Company's good standing and upon certificates of officers of the Company as to matters of fact relevant to such opinions. In giving such opinions, counsel may assume (i) that the Senior Notes have been executed on behalf of the Company by the manual or facsimile signatures of the President or a Vice President and the Secretary or an Assistant Secretary of the Company and have been manually authenticated by an authorized official of the Trustee, (ii) that the signatures on all documents examined by them are genuine, and (iii) that the written information supplied by the Underwriters expressly for use in the Registration Statement or the Prospectus is adequate. SECTION 6. CONDITIONS OF COMPANY'S OBLIGATIONS The obligation of the Company to deliver the Senior Notes upon payment therefor shall be subject to the following conditions: At the Closing Time, (a) the orders of the Oklahoma Commission and the Arkansas Commission referred to in paragraph (xvi) of Section 1(a) hereof shall be in full force and effect substantially in the form in which originally entered and (b) no stop order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for that purpose shall then be pending before, or threatened by, the Commission. In case any of the conditions specified above in this Section 6 shall not have been fulfilled, this Agreement may be terminated by the Company by delivering written notice of termination to the Underwriters. Any such termination shall be without liability of any party to any other party except to the extent provided in Section 4 hereof. SECTION 7. INDEMNIFICATION (a) INDEMNIFICATION OF UNDERWRITERS. The Company agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including the Offering Terms, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any 17 litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 7(d) below) any such settlement is effected with the written consent of the Company; and (iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by Merrill Lynch, Pierce, Fenner & Smith Incorporated), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with the written information furnished to the Company by any Underwriter through Merrill Lynch, Pierce, Fenner & Smith Incorporated expressly for use in the Registration Statement (or any amendment thereto), including the Offering Terms, or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), which information is set forth on Schedule C hereto. The foregoing indemnity agreement is in addition to any liability which the Company may otherwise have to any Underwriter or to any controlling person of that Underwriter. (b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), including the Offering Terms, or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the written information furnished to the Company by such Underwriter through Merrill Lynch, Pierce, Fenner & Smith Incorporated expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto), which information is set forth on Schedule C hereto. The foregoing indemnity is in addition to any liability which any Underwriter may otherwise have to the Company or any such director, officer or controlling person. (c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability 18 which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 7(a) above, counsel to the indemnified parties shall be selected by Merrill Lynch, Pierce, Fenner & Smith Incorporated, and, in the case of parties indemnified pursuant to Section 7(b) above, counsel to the indemnified parties shall be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action; PROVIDED, HOWEVER, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 or Section 8 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability (including any obligation to pay any amounts in settlements) arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party. (d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 7(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement. SECTION 8. CONTRIBUTION If the indemnification provided for in Section 7 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Senior Notes pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations. 19 The relative benefits received by the Company on the one hand and the Underwriters on the other hand in connection with the offering of the Senior Notes pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Senior Notes pursuant to this Agreement (before deducting expenses) received by the Company and the total underwriting discount received by the Underwriters, in each case as set forth on the cover of the Prospectus, or, if Rule 434 is used, the corresponding location on the Term Sheet, bear to the aggregate initial public offering price of the Senior Notes as set forth on such cover. The relative fault of the Company on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 8 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 8 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 8, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Senior Notes underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The Underwriters' respective obligations to contribute pursuant to this Section 8 are several in proportion to the principal amount of Senior Notes set forth opposite their respective names in Schedule A hereto and not joint. 20 SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY All representations, warranties and agreements contained in this Agreement or in certificates of officers of the Company or any of its subsidiaries submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or controlling person, or by or on behalf of the Company, and shall survive delivery of the Senior Notes to the Underwriters. SECTION 10. TERMINATION OF AGREEMENT (a) TERMINATION; GENERAL. The Underwriter may terminate this Agreement, by notice to the Company, at any time at or prior to Closing Time (i) if there has been, since the time of execution of this Agreement or since the respective dates as of which information is given in the Prospectus, any loss sustained by the Company by strike, fire, flood, accident or other calamity of such character as to interfere materially with the conduct of the business and operations of the Company regardless of whether or not such loss shall have been insured, or any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, properties, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or (ii) if there has occurred any material adverse change in the financial markets in the United States, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Underwriters, impracticable to market the Senior Notes or to enforce contracts for the sale of the Senior Notes, or (iii) if trading in any securities of the Company has been suspended or materially limited by the Commission or the New York Stock Exchange, or if trading generally on the American Stock Exchange or the New York Stock Exchange or in the Nasdaq National Market has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or (iv) if a banking moratorium has been declared by either Federal, New York or Oklahoma authorities. (b) LIABILITIES. If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party except as provided in Section 4 hereof, and provided further that Sections 1, 7, 8 and 9 shall survive such termination and remain in full force and effect. SECTION 11. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS If one or more of the Underwriters fails at Closing Time to purchase the Senior Notes which it or they are obligated to purchase under this Agreement (the "Defaulted Senior Notes"), the remaining Underwriter or Underwriters will have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriter or underwriters, to purchase all, but not less than all, of the Defaulted Senior Notes in such 21 amounts as may be agreed upon and upon the terms herein set forth; if, however, the remaining Underwriter or Underwriters do not complete such arrangements within such 24-hour period, then: (a) if the number of Defaulted Senior Notes does not exceed 10% of the aggregate principal amount of the Senior Notes to be purchased hereunder, each of the non-defaulting Underwriters will be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or (b) if the number of Defaulted Senior Notes exceeds 10% of the aggregate principal amount of the Senior Notes to be purchased hereunder, this Agreement will terminate without liability on the part of any non-defaulting Underwriter. No action taken pursuant to this Section will relieve any defaulting Underwriter from liability in respect of its default. In the event of any such default which does not result in a termination of this Agreement, either the remaining Underwriter or Underwriters or the Company will have the right to postpone Closing Time for a period not exceeding seven days in order to effect any required changes in the Registration Statement or Prospectus or in any other documents or arrangements. As used herein, the term "Underwriter" includes any person substituted for an Underwriter under this Section 11. SECTION 12. NOTICES All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to Merrill Lynch, Pierce, Fenner & Smith Incorporated, World Financial Center, 27th Floor, 250 Vesey Street, North Tower, New York, New York 10281-1327, attention of John Thorndike; CIBC Oppenheimer Corp., 425 Lexington Avenue, New York, New York 10017, attention of Debt Capital Markets; Lehman Brothers Inc., 3 World Financial Center, 16th Floor, New York, New York 10285-0900, attention of Capital Markets; each with a copy to Jones, Day, Reavis & Pogue, 77 West Wacker, Chicago, Illinois 60601, Attention: Robert A. Yolles, Esq. Notices to the Company shall be directed to it at Oklahoma Gas and Electric Company, 321 North Harvey, Oklahoma City, Oklahoma, Attention: President, with a copy to Gardner, Carton & Douglas, Quaker Tower, Suite 3100, 321 North Clark Street, Chicago, Illinois 60610, Attention: Peter D. Clarke, Esq. 22 SECTION 13. PARTIES This Agreement shall each inure to the benefit of and be binding upon the Underwriters and the Company and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters and the Company and their respective successors and the controlling persons and officers and directors referred to in Sections 7 and 8 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Company and their respective successors, and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Senior Notes from any Underwriter shall be deemed to be a successor by reason merely of such purchase. SECTION 14. GOVERNING LAW AND TIME THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OKLAHOMA. Except as otherwise set forth herein, specified times of day refer to New York City time. SECTION 15. EFFECT OF HEADINGS The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. [This space intentionally left blank] 23 If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Underwriters and the Company in accordance with its terms. Very truly yours, OKLAHOMA GAS AND ELECTRIC COMPANY By /s/ James R. Hatfield --------------------------------------------- Title: Vice President and Treasurer CONFIRMED AND ACCEPTED, as of the date first above written: MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED CIBC OPPENHEIMER CORP. LEHMAN BROTHERS INC. BY: MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED By: /s/ James D. Hempstead ------------------------------------- Title: Vice President ---------------------------------- SCHEDULE A
Principal Amount of Name of Underwriter Senior Notes - ------------------------------------------------------------ ------------ Merrill Lynch, Pierce, Fenner & Smith Incorporated.......... $ 33,400,000 CIBC Oppenheimer Corp....................................... 33,300,000 Lehman Brothers Inc......................................... 33,300,000 ------------ Total....................................................... $100,000,000 ------------ ------------
Sch. A-1 SCHEDULE B OKLAHOMA GAS AND ELECTRIC COMPANY $100,000,000 Senior Notes, Series due April 15, 2028 1. The initial public offering price of the Senior Notes is 98.431% of the principal amount thereof, plus accrued interest, if any, from the date of issuance. 2. The purchase price to be paid by the Underwriters for the Senior Notes is 97.556% of the principal amount thereof. 3. The interest rate on the Senior Notes is 6.50% per annum. 4. The Company, at its option, may redeem on any date all or, from time to time, any part of the Senior Notes at a redemption price equal to the greater of (i) 100% of the principal amount of such Senior Notes and (ii) the sum of the present values of the remaining scheduled payments of principal and interest thereon from and after the date of redemption discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined in the Indenture), plus in each case accrued and unpaid interest thereon to the date of redemption. Sch. B-1 SCHEDULE C The information set forth below constitutes the only information furnished to the Company by any Underwriter expressly for use in the Registration Statement (or any amendment thereto) or preliminary prospectus or the Prospectus (or any amendment or supplement thereto): The names of the Underwriters on the cover page and page S-4 of the Prospectus Supplement dated April 13, 1998 (the "Prospectus Supplement"), the information in the first paragraph on page S-2 of the Prospectus Supplement and the information in the second paragraph, in the second sentence of the fourth paragraph and in the fifth, sixth and seventh paragraphs under the caption "UNDERWRITING" on page S-5 of the Prospectus Supplement. Sch. C-1
EX-4.01 3 EXHIBIT 4.01 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SUPPLEMENTAL INDENTURE NO. 3 FROM OKLAHOMA GAS AND ELECTRIC COMPANY TO THE BANK OF NEW YORK TRUSTEE -------- DATED AS OF APRIL 1, 1998 SUPPLEMENTAL TO INDENTURE DATED AS OF OCTOBER 1, 1995 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- TABLE OF CONTENTS Parties................................................................ 1 Recitals............................................................... 1 ARTICLE ONE RELATION TO INDENTURE; DEFINITIONS SECTION 1.01 Integral Part of Indenture.............................. 2 SECTION 1.02 (a) Definitions........................................ 2 (b) References to Articles and Sections................ 2 (c) Terms Referring to this Supplemental Indenture..... 2 ARTICLE TWO 6 1/2% SENIOR NOTES, SERIES DUE APRIL 15, 2028 SECTION 2.01 Designation and Principal Amount........................ 2 SECTION 2.02 Stated Maturity Date.................................... 2 SECTION 2.03 Interest Payment Dates.................................. 2 SECTION 2.04 Office for Payment...................................... 3 SECTION 2.05 Redemption Provisions................................... 3 SECTION 2.06 Authorized Denominations................................ 4 SECTION 2.07 Occurrence of Release Date.............................. 4 SECTION 2.08 Form of 6 1/2% Senior Notes, Series Due April 15, 2028.......................................... 4 ARTICLE THREE ADDITIONAL COVENANTS SECTION 3.01 Limitations on Liens.................................... 5 SECTION 3.02 Limitations on Sale and Lease-Back Transactions......... 6 SECTION 3.03 Definitions............................................. 7 ARTICLE FOUR MISCELLANEOUS SECTION 4.01 Recitals of fact, except as stated, are statements of the Company......................................... 9 SECTION 4.02 Supplemental Indenture to be construed as a part of the Indenture....................................... 9 SECTION 4.03 (a) Trust Indenture Act to control.................... 9 (b) Severability of provisions contained in Supplemental Indenture and Notes.................. 9 SECTION 4.04 References to either party in Supplemental Indenture include successors or assigns.......................... 9 SECTION 4.05 (a) Provision for execution in counterparts........... 9 (i) (b) Table of Contents and descriptive headings of Articles not to affect meaning................. 9 ARTICLE FIVE CONFIRMATION OF SUCCESSOR TRUSTEE SECTION 5.01 Confirmation of Successor Trustee...................... 9
Exhibit A - Form of 6 1/2% Senior Notes, Series due April 15, 2028 (ii) SUPPLEMENTAL INDENTURE No. 3, made as of the 1st day of April, 1998, by and between OKLAHOMA GAS AND ELECTRIC COMPANY, a corporation duly organized and existing under the laws of the State of Oklahoma (the "Company"), and THE BANK OF NEW YORK, a New York banking corporation, as trustee (the "Trustee"): WITNESSETH: WHEREAS, the Company has heretofore executed and delivered its Indenture (hereinafter referred to as the "Indenture"), made as of October 1, 1995; and WHEREAS, the Company has heretofore executed and delivered its Supplemental Indenture No. 1 dated as of October 16, 1995, adding to the covenants, conditions and agreements of the Indenture certain additional covenants, conditions and agreements to be observed by the Company, and creating two series of Notes designated "7.30% Senior Notes, Series due October 15, 2025" and "6.250% Senior Notes, Series due October 15, 2000"; and WHEREAS, the Company has heretofore executed and delivered its Supplemental Indenture No. 2 dated as of July 1, 1997, adding to the covenants, conditions and agreements of the Indenture certain additional covenants, conditions and agreements to be observed by the Company, and creating two series of Notes designated "6.65% Senior Notes, Series due October 15, 2027" and "6.50% Senior Notes, Series due July 15, 2017"; and WHEREAS, Section 2.05 of the Indenture provides that Notes shall be issued in series and that a Company Order shall specify the terms of each series; and WHEREAS, Boatmen's First National Bank of Oklahoma was formerly the Trustee under the Indenture and NationsBank, N.A. succeeded Boatmen's First National Bank of Oklahoma as Trustee pursuant to Section 9.13 of the Indenture and The Bank of New York has subsequently succeeded Boatmen's First National Bank of Oklahoma as Trustee pursuant to Section 9.13 of the Indenture; and WHEREAS, the Company has this day delivered a Company Order setting forth the terms of a series of Notes designated "6 1/2% Senior Notes, Series due April 15, 2028" (hereinafter sometimes referred to as the "Senior Notes due 2028"); and WHEREAS, Section 13.01 of the Indenture provides that the Company and the Trustee may enter into indentures supplemental thereto for the purposes, among others, of establishing the form of Notes or establishing or reflecting any terms of any Note and adding to the covenants of the Company; and WHEREAS, the execution and delivery of this Supplemental Indenture No. 3 (herein, "this Supplemental Indenture") have been duly authorized by a resolution adopted by the Board of Directors of the Company; 1 NOW, THEREFORE, THIS INDENTURE WITNESSETH: That in order to set forth the terms and conditions upon which the Senior Notes due 2028 are, and are to be, authenticated, issued and delivered, and in consideration of the premises of the purchase and acceptance of the Senior Notes due 2028 by the Holders thereof and the sum of one dollar duly paid to it by the Trustee at the execution of this Supplemental Indenture, the receipt whereof is hereby acknowledged, the Company covenants and agrees with the Trustee for the equal and proportionate benefit of the respective Holders from time to time of the Senior Notes due 2028, as follows: ARTICLE ONE RELATION TO INDENTURE; DEFINITIONS SECTION 1.01 This Supplemental Indenture constitutes an integral part of the Indenture. SECTION 1.02 For all purposes of this Supplemental Indenture: (a) Capitalized terms used herein without definition shall have the meanings specified in the Indenture; (b) All references herein to Articles and Sections, unless otherwise specified, refer to the corresponding Articles and Sections of this Supplemental Indenture; and (c) The terms "hereof," "herein," "hereby," "hereto," "hereunder" and "herewith" refer to this Supplemental Indenture. ARTICLE TWO 6 1/2% SENIOR NOTES, SERIES DUE APRIL 15, 2028 SECTION 2.01 There shall be a series of Notes designated the "6 1/2% Senior Notes, Series due April 15, 2028" (the "Senior Notes due 2028"). The Senior Notes due 2028 shall be limited to $100,000,000 aggregate principal amount. SECTION 2.02 Except as otherwise provided in Section 2.05 hereof, the principal amount of the Senior Notes due 2028 shall be payable on the stated maturity date of April 15, 2028. SECTION 2.03 The Senior Notes due 2028 shall be dated their date of authentication as provided in the Indenture and shall bear interest from their date at the rate of 6 1/2% per annum, payable semi-annually on April 15 and October 15 of each year, commencing October 15, 1998. The Regular Record Dates with respect to such April 15 and October 15 interest payment dates shall be March 31 and September 30, respectively. Principal and interest shall be payable to the persons and in the manner provided in Sections 2.04 and 2.12 of the Indenture. 2 SECTION 2.04 The Senior Notes due 2028 shall be payable at the corporate trust office of the Trustee and at the offices of such paying agents as the Company may appoint by Company Order in the future. SECTION 2.05 The Company, at its option, may redeem on any date all or, from time to time, any part of the Senior Notes due 2028, upon notice as provided in the Indenture, at a redemption price equal to the greater of (i) 100% of the principal amount of such Senior Notes due 2028 to be redeemed and (ii) the sum of the present values of the remaining scheduled payments of principal and interest thereon from and after the date of redemption discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 10 basis points, plus in each case accrued and unpaid interest thereon to the date of redemption. "Treasury Rate" means, with respect to any redemption date, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date. "Comparable Treasury Issue" means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Senior Notes due 2028 to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Senior Notes due 2028. "Independent Investment Banker" means one of the Reference Treasury Dealers appointed by the Senior Note Trustee after consultation with the Company. "Comparable Treasury Price" means, with respect to any redemption date, (i) the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) on the third business day preceding such redemption date, as set forth in the daily statistical release (or any successor release) published by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S. Government Securities" or (ii) if such release (or any successor release) is not published or does not contain such prices on such third business day, (A) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (B) if the Senior Note Trustee is unable to obtain at least four such Reference Treasury Dealer Quotations, the average of all such Quotations obtained. "Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Senior Note Trustee, of the bid and asked prices of the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Senior Note Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third business day preceding such redemption date. "Reference Treasury Dealer" means each of Merrill Lynch, Pierce, Fenner & Smith Incorporated, CIBC Oppenheimer Corp. and Lehman Brothers Inc., and their respective 3 successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a "Primary Treasury Dealer"), the Company shall substitute therefor another Primary Treasury Dealer. The Senior Notes due 2028 shall not be subject to any sinking fund. SECTION 2.06 The Senior Notes due 2028 shall be issued in fully registered form without coupons in denominations of $1,000 and integral multiples thereof. SECTION 2.07 The Release Date (as defined in the Indenture) occurred on April 6, 1998. Accordingly, the Senior Notes due 2028 shall be issued as unsecured general obligations of the Company. The Senior Notes due 2028, and all other Notes issued or to be issued under the Indenture, will not be secured by First Mortgage Bonds of the Company and will not be entitled to the lien of or the benefits provided by the First Mortgage. SECTION 2.08 The Senior Notes due 2028 shall initially be in the form attached as Exhibit A hereto. ARTICLE THREE ADDITIONAL COVENANTS SECTION 3.01 (a) So long as any Senior Notes due 2028 are outstanding, the Company will not permit to exist or issue, assume or guarantee any Debt secured by any mortgage, security interest, pledge or lien (herein referred to as a "mortgage") of or upon any Operating Property of the Company, whether owned at the date of the Indenture or thereafter acquired, without in any such case effectively securing the outstanding Senior Notes due 2028 (together with, if the Company shall so determine, any other Notes or indebtedness or obligation of or guaranteed by the Company ranking senior to, or equally with, the Notes and then existing or thereafter created) equally and ratably with such Debt; provided, however, that the foregoing restriction shall not apply to Debt secured by any of the following: (1) mortgages on any property existing at the time of acquisition thereof; (2) mortgages on property of a corporation existing at the time such corporation is merged into or consolidated with the Company, or at the time of a sale, lease or other disposition of the properties of such corporation or a division thereof as an entirety or substantially as an entirety to the Company, provided that such mortgage as a result of such merger, consolidation, sale, lease or other disposition is not extended to property owned by the Company immediately prior thereto; (3) mortgages on property to secure all or part of the cost of acquiring, substantially repairing or altering, constructing, developing or substantially improving such property, or to secure indebtedness incurred to provide funds for any such purpose or for reimbursement of funds 4 previously expended for any such purpose, provided such mortgages are created or assumed contemporaneously with, or within 18 months after, such acquisition or completion of substantial repair or alteration, construction, development or substantial improvement or within six months thereafter pursuant to a commitment for financing arranged with a lender or investor within such 18 month period; (4) mortgages in favor of the United States of America or any State thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, or for the benefit of holders of securities issued by any such entity, to secure any Debt incurred for the purpose of financing all or any part of the purchase price or the cost of substantially repairing or altering, constructing, developing or substantially improving the property subject to such mortgages; or (5) any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any mortgage referred to in the foregoing clauses (1) to (4), inclusive; provided, however, that the principal amount of indebtedness secured thereby and not otherwise authorized by said clauses (1) to (4), inclusive, shall not exceed the principal amount of indebtedness, plus any premium or fee payable in connection with any such extension, renewal or replacement, so secured at the time of such extension, renewal or replacement. (b) Notwithstanding the provisions of Section 3.01(a), so long as any Senior Notes due are outstanding, the Company may issue, assume or guarantee Debt, or permit to exist Debt, secured by mortgages which would otherwise be subject to the restrictions of Section 3.01(a) up to an aggregate principal amount that, together with the principal amount of all other Debt of the Company secured by mortgages (other than mortgages permitted by Section 3.01(a) that would otherwise be subject to the foregoing restrictions) and the Value of all Sale and Lease-Back Transactions in existence at such time (other than any Sale and Lease-Back Transaction that, if such Sale and Lease-Back Transaction had been a mortgage, would have been permitted by Section 3.01(a), other than Sale and Lease-Back Transactions permitted by Section 3.02 because the commitment by or on behalf of the purchaser was obtained no later than 18 months after the later of events described in clause (i) or (ii) of Section 3.02, and other than Sale and Lease-Back Transactions as to which application of amounts have been made in accordance with clause (z) of Section 3.02), does not at the time exceed the greater of 10% of Net Tangible Assets or 10% of Capitalization. (c) If at any time the Company shall issue, assume or guarantee any Debt secured by any mortgage and if Section 3.01(a) requires that the outstanding Senior Notes due 2028 be secured equally and ratably with such Debt, the Company will promptly execute, at its expense, any instruments necessary to so equally and ratably secure such series of Notes and deliver the same to the Trustee along with: (1) An Officers' Certificate stating that the covenant of the Company contained in Section 3.01(a) has been complied with; and 5 (2) An Opinion of Counsel to the effect that such covenant has been complied with, and that any instruments executed by the Company in the performance of such covenant comply with the requirements of such covenant. In the event that the Company shall hereafter secure outstanding Senior Notes due 2028 equally and ratably with any other obligation or indebtedness (including other Notes) pursuant to the provisions of this Section 3.01, the Trustee is hereby authorized to enter into an indenture or agreement supplemental hereto and to take such action, if any, as it may deem advisable to enable it to enforce effectively the rights of the holders of such series of Notes so secured, equally and ratably with such other obligation and indebtedness. SECTION 3.02. So long as any Senior Notes due 2028 are outstanding, the Company will not permit to remain in effect or enter into any Sale and Lease-Back Transaction with respect to any Operating Property if, in any case, the commitment by or on behalf of the purchaser is obtained more than 18 months after the later of (i) the completion of the acquisition, substantial repair or alteration, construction, development or substantial improvement of such Operating Property or (ii) the placing in operation of such Operating Property or of such Operating Property as so substantially repaired or altered, constructed, developed or substantially improved, unless (x) the Company would be entitled pursuant to Section 3.01(a) to issue, assume or guarantee Debt secured by a mortgage on such Operating Property without equally and ratably securing the Senior Notes due 2028 or (y) the Company would be entitled pursuant to Section 3.01(b), after giving effect to such Sale and Lease-Back Transaction, to incur $1.00 of additional Debt secured by mortgages (other than mortgages permitted by Section 3.01(a)) or (z) the Company shall apply or cause to be applied, in the case of a sale or transfer for cash, an amount equal to the net proceeds thereof (but not in excess of the net book value of such Operating Property at the date of such sale or transfer) and, in the case of a sale or transfer otherwise than for cash, an amount equal to the fair value (as determined by the Board of Directors) of the Operating Property so leased, to the retirement, within 180 days after the effective date of such Sale and Lease-Back Transaction, of Notes or other Debt of the Company ranking senior to, or equally with, the Notes; provided, however, that any such retirement of Notes shall be in accordance with the terms and provisions of the Indenture and the Notes and provided, further, that the amount to be applied to such retirement of Notes or other Debt shall be reduced by an amount equal to the sum of (a) an amount equal to the redemption price with respect to Notes delivered within such 180-day period to the Trustee for retirement and cancellation and (b) the principal amount, plus any premium or fee paid in connection with any redemption in accordance with the terms of other Debt voluntarily retired by the Company within such 180-day period, excluding in each case retirements pursuant to mandatory sinking fund or prepayment provisions and payments at maturity. SECTION 3.03. Definitions For purposes of Section 3.01 and Section 3.02, the following terms shall have the following meanings: 6 CAPITALIZATION: The term "Capitalization" shall mean the total of all the following items appearing on, or included in, the balance sheet of the Company: (1) liabilities for indebtedness maturing more than 12 months from the date of determination; and (2) common stock, preferred stock, capital surplus, premium on capital stock, capital in excess of par value and retained earnings (however the foregoing may be designated), less to the extent not otherwise deducted, the cost of shares of capital stock of the Company held in its treasury. Capitalization shall be determined in accordance with generally accepted accounting principles and practices applicable to the type of business in which the Company is engaged and that are approved by independent accountants regularly retained by the Company, and may be determined as of a date not more than 60 days prior to the happening of an event for which such determination is being made. DEBT: The term "Debt" shall mean any outstanding debt for money borrowed. NET TANGIBLE ASSETS: The term "Net Tangible Assets" shall mean the amount shown as total assets on the balance sheet of the Company, less the following: (1) intangible assets including, but without limitation, such items as goodwill, trademarks, trade names, patents and unamortized debt discount and expense carried as an asset on said balance sheet; and (2) appropriate adjustments, if any, on account of minority interests. Net Tangible Assets shall be determined in accordance with generally accepted accounting principles and practices applicable to the type of business in which the Company is engaged and that are approved by the independent accountants regularly retained by the Company, and may be determined as of a date not more than 60 days prior to the happening of the event for which such determination is being made. OPERATING PROPERTY: The term "Operating Property" shall mean (i) any interest in real property owned by the Company and (ii) any asset owned by the Company that is depreciable in accordance with generally accepted accounting principles. SALE AND LEASE-BACK TRANSACTION: The term "Sale and Lease-Back Transaction" shall mean any arrangement with any person providing for the leasing to the Company of any Operating Property (except for temporary leases for a term, including any renewal thereof, of not more than 48 months), which Operating Property has been or is to be sold or transferred by the Company to such person. 7 VALUE: The term "Value" shall mean, with respect to a Sale and Lease-Back Transaction, as of any particular time, the amount equal to the greater of (1) the net proceeds to the Company from the sale or transfer of the property leased pursuant to such Sale and Lease-Back Transaction or (2) the net book value of such property, as determined in accordance with generally accepted accounting principles by the Company at the time of entering into such Sale and Lease-Back Transaction, in either case multiplied by a fraction, the numerator of which shall be equal to the number of full years of the term of the lease that is part of such Sale and Lease-Back Transaction remaining at the time of determination and the denominator of which shall be equal to the number of full years of such term, without regard, in any case, to any renewal or extension options contained in such lease. ARTICLE FOUR MISCELLANEOUS SECTION 4.01 The recitals of fact herein and in the Senior Notes due 2028 (except the Trustee's Certificate) shall be taken as statements of the Company and shall not be construed as made by the Trustee. SECTION 4.02 This Supplemental Indenture shall be construed in connection with and as a part of the Indenture. SECTION 4.03 (a) If any provision of this Supplemental Indenture limits, qualifies, or conflicts with another provision of the Indenture required to be included in indentures qualified under the Trust Indenture Act of 1939 (as enacted prior to the date of this Supplemental Indenture) by any of the provisions of Sections 310 to 317, inclusive, of said Act, such required provisions shall control. (b) In case any one or more of the provisions contained in this Supplemental Indenture or in the notes issued hereunder should be invalid, illegal, or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected, impaired, prejudiced or disturbed thereby. SECTION 4.04 Whenever in this Supplemental Indenture either of the parties hereto is named or referred to, this shall be deemed to include the successors or assigns of such party, and all the covenants and agreements in this Supplemental Indenture contained by or on behalf of the Company or by or on behalf of the Trustee shall bind and inure to the benefit of the respective successors and assigns of such parties, whether so expressed or not. 8 SECTION 4.05 (a) This Supplemental Indenture may be simultaneously executed in several counterparts, and all said counterparts executed and delivered, each as an original, shall constitute but one and the same instrument. (b) The Table of Contents and the descriptive headings of the several Articles of this Supplemental Indenture were formulated, used and inserted in this Supplemental Indenture for convenience only and shall not be deemed to affect the meaning or construction of any of the provisions hereof. ARTICLE FIVE CONFIRMATION OF SUCCESSOR TRUSTEE SECTION 5.01 The Bank of New York acquired substantially all of the corporate trust businesses of NationsBank, N.A. (which itself had become successor trustee under the Indenture as a result of its merger with Boatman's First National Bank of Oklahoma) in, August, 1997. The Bank of New York hereby represents and warrants that, as of August, 1997, it was qualified and eligible to act as Trustee under Article Nine of the Indenture and, accordingly, pursuant to Section 9.13 of the Indenture, The Bank of New York became the successor Trustee under the Indenture. The Bank of New York hereby acknowledges and accepts its duties and obligations as Trustee under the Indenture. 9 IN WITNESS WHEREOF, OKLAHOMA GAS AND ELECTRIC COMPANY has caused this Supplemental Indenture to be signed by its President or a Vice President, and attested by its Secretary or an Assistant Secretary and THE BANK OF NEW YORK, has caused this Supplemental Indenture to be signed by its President, Vice President or Assistant Vice President, and attested by a Vice President, this 13th day of April, 1998. OKLAHOMA GAS AND ELECTRIC COMPANY /s/ Steven E. Moore By: Steven E. Moore, President ATTEST: /s/ Irma B. Elliott Irma B. Elliott, SECRETARY. THE BANK OF NEW YORK, as Trustee /s/ Van K. Brown By: Van K. Brown, Assistant Vice President ATTEST: /s/ Walter Gitlin Walter Gitlin, VICE PRESIDENT. 10 EXHIBIT A FORM OF 6 1/2% SENIOR NOTE, SERIES DUE APRIL 15, 2028 REGISTERED REGISTERED THIS NOTE IS A GLOBAL NOTE REGISTERED IN THE NAME OF THE DEPOSITARY (REFERRED TO HEREIN) OR A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK), TO THE TRUSTEE FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. OKLAHOMA GAS AND ELECTRIC COMPANY 6 1/2% SENIOR NOTE, SERIES DUE APRIL 15, 2028 CUSIP: 678858BC4 NUMBER: R- ORIGINAL ISSUE DATE(S): PRINCIPAL AMOUNT(S): $100,000,000 April 16, 1998 INTEREST RATE: 6 1/2 % MATURITY DATE: April 15, 2028 OKLAHOMA GAS AND ELECTRIC COMPANY, a corporation of the State of Oklahoma (the "COMPANY"), for value received hereby promises to pay to Cede & Co. or registered assigns, the principal sum of on the Maturity Date set forth above, and to pay interest thereon from the Original Issue Date (or if this Global Note has two or more Original Issue Dates, interest shall, beginning on each such Original Issue Date, begin to accrue for that part of the principal amount to which that Original Issue Date is applicable) set forth above or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semiannually in arrears on April 15 and October 15 in each year, commencing on the first such Interest Payment Date succeeding the applicable Original Issue Date set forth above, at the per annum Interest Rate set forth above, until the principal hereof is paid or made available for payment. No interest shall accrue on the Maturity Date, so long as the principal amount of this Global Note is paid on the Maturity Date. The interest so payable and punctually paid or duly provided for on any such Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note is registered at the close of business on the Regular Record Date for such interest, which shall be the March 31 or the September 30 , as the case may be, next preceding such Interest Payment Date; provided that the first Interest Payment Date for any part of this Note, the Original Issue Date of which is after a Regular Record Date but prior to the applicable Interest Payment Date, shall be the Interest Payment Date following the next succeeding Regular Record Date; and provided that interest payable on the Maturity Date set forth above or, if applicable, upon redemption, repayment or acceleration, shall be payable to the Person to whom principal shall be payable. Except as otherwise provided in the Indenture (as defined below), any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and shall be paid to the Person in whose name this Note is registered at the close of business on a Special Record Date for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to Noteholders not more than fifteen days or fewer than ten days prior to such Special Record Date. On or before 10:00 a.m., New York City time, or such other time as shall be agreed upon between the Trustee and the Depositary, of the day on which such payment of interest is due on this Global Note (other than maturity), the Trustee shall pay to the Depositary such interest in same day funds. On or before 10:00 a.m., New York City time, or such other time as shall be agreed upon between the Trustee and the Depositary, of the day on which principal, interest payable at maturity and premium, if any, is due on this Global Note, the Trustee shall deposit with the Depositary the amount equal to the principal, interest payable at maturity and premium, if any, by wire transfer into the account specified by the Depositary. As a condition to the payment, on the Maturity Date or upon redemption, repayment or acceleration, of any part of the principal and applicable premium of this Global Note, the Depositary shall surrender, or cause to be surrendered, this Global Note to the Trustee, whereupon a new Global Note shall be issued to the Depositary. This Global Note is a global security in respect of a duly authorized issue of 6 1/2% Senior Notes, Series due April 15, 2028 (the "NOTES OF THIS SERIES", which term includes any Global Notes representing such Notes) of the Company issued and to be issued under an Indenture dated as of October 1, 1995 between the Company and The Bank of New York, as successor trustee (the "TRUSTEE", which term includes any subsequent successor Trustee under the Indenture) to Boatmen's First National Bank of Oklahoma, and indentures supplemental thereto (collectively, the "INDENTURE"). Under the Indenture, one or more series of notes may be issued and, as used herein, the term "Notes" refers to the Notes of this Series and any other outstanding series of Notes. Reference is hereby made to the Indenture for a more complete statement of the respective rights, limitations of rights, duties and immunities under the Indenture of the Company, the Trustee and the Noteholders and of the terms upon which the Notes are and are to be authenticated and delivered. This Global Note has been issued in respect of the series designated on the first page hereof, limited in aggregate principal amount to $100,000,000. Each Note of this Series shall be dated and issued as of the date of its authentication by the Trustee and shall bear an Original Issue Date or Dates. Each Note or Global Note issued upon transfer, exchange or substitution of such Note or Global Note shall bear the Original Issue Date or Dates of such transferred, exchanged or substituted Note or Global Note, as the case may be. The Company, at its option, may redeem on any date all or, from time to time, any part of this Global Note at a redemption price equal to the greater of (i) 100% of the principal amount of this Global Note to be redeemed and (ii) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 10 basis points, plus in each case accrued and unpaid interest thereon to the date of redemption. -2- "Treasury Rate" means, with respect to any redemption date, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date. "Comparable Treasury Issue" means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Notes of this Series to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of Notes of this Series. "Independent Investment Banker" means one of the Reference Treasury Dealers appointed by the Senior Note Trustee after consultation with the Company. "Comparable Treasury Price" means, with respect to any redemption date, (i) the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) on the third business day preceding such redemption date, as set forth in the daily statistical release (or any successor release) published by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S. Government Securities" or (ii) if such release (or any successor release) is not published or does not contain such prices on such third business day, (A) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (B) if the Senior Note Trustee is unable to obtain at least four such Reference Treasury Dealer Quotations, the average of all such Quotations obtained. "Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Senior Note Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Senior Note Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third business day preceding such redemption date. "Reference Treasury Dealer" means each of Merrill Lynch, Pierce, Fenner & Smith Incorporated, CIBC Oppenheimer Corp. and Lehman Brothers Inc., and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a "Primary Treasury Dealer"), the Company shall substitute therefor another Primary Treasury Dealer. Notice of redemption will be given by mail to Holders of Notes of this Series not less than 30 or more than 60 days prior to the date fixed for redemption, all as provided in the Indenture. In the event of redemption of this Global Note in part only, a new Global Note or Notes of like tenor and series for the unredeemed interest hereof will be issued in the name of the Noteholder hereof upon the surrender hereof. Interest payments for this Global Note shall be computed and paid on the basis of a 360-day year of twelve 30-day months. If any Interest Payment Date or date on which the principal of this Global Note is required to be paid is not a Business Day, then payment of principal, premium or interest need not be made on such date but may be made on the next succeeding Business Day with the same force and effect as if made on such Interest Payment Date or date on which the principal of this Global Note is required to be paid and, in the case of timely payment thereof, no interest shall accrue for the period from and after such Interest Payment Date or the date on which the principal of this Global Note is required to be paid. The Company, at its option, and subject to the terms and conditions provided in the Indenture, will be discharged from any and all obligations in respect of the Notes (except for certain obligations including obligations to register the transfer or exchange of Notes, replace stolen, lost or mutilated Notes, maintain paying agencies and hold monies for payment in trust, all as set forth in the Indenture) if the Company deposits with the Trustee money, U.S. Government Obligations which through the payment of interest -3- thereon and principal thereof in accordance with their terms will provide money, or a combination of money and U.S. Government Obligations, in any event in an amount sufficient, without reinvestment, to pay all the principal of and any premium and interest on the Notes on the dates such payments are due in accordance with the terms of the Notes. If an Event of Default shall occur and be continuing, the principal of the Notes may be declared due and payable in the manner and with the effect provided in the Indenture. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modifications of the rights and obligations of the Company and the rights of the Noteholders under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in principal amount of the outstanding Notes. Any such consent or waiver by the Holder of this Global Note shall be conclusive and binding upon such Holder and upon all future Holders of this Global Note and of any Note issued upon the registration of transfer hereof or in exchange therefor or in lieu thereof whether or not notation of such consent or waiver is made upon the Note. As set forth in and subject to the provisions of the Indenture, no Holder of any Notes will have any right to institute any proceeding with respect to the Indenture or for any remedy thereunder unless such Holder shall have previously given to the Trustee written notice of a continuing Event of Default with respect to such Notes, the Holders of not less than a majority in principal amount of the outstanding Notes affected by such Event of Default shall have made written request and offered reasonable indemnity to the Trustee to institute such proceeding as Trustee and the Trustee shall have failed to institute such proceeding within 60 days; provided that such limitations do not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal of and any premium or interest on this Note on or after the respective due dates expressed here. No reference herein to the Indenture and to provisions of this Global Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Global Note at the times, places and rates and the coin or currency prescribed in the Indenture. As provided in the Indenture and subject to certain limitations therein set forth, this Global Note may be transferred only as permitted by the legend hereto. If at any time the Depositary for this Global Note notifies the Company that it is unwilling or unable to continue as Depositary for this Global Note or if at any time the Depositary for this Global Note shall no longer be eligible or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, the Company shall appoint a successor Depositary with respect to this Global Note. If a successor Depositary for this Global Note is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company's election to issue this Note in global form shall no longer be effective with respect to this Global Note and the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual Notes of this Series in exchange for this Global Note, will authenticate and deliver individual Notes of this Series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of this Global Note. The Company may at any time and in its sole discretion determine that all Notes of this Series (but not less than all) issued or issuable in the form of one or more Global Notes shall no longer be represented by such Global Note or Notes. In such event, the Company shall execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual Notes of this Series in exchange for such -4- Global Note, shall authenticate and deliver, individual Notes of this Series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of such Global Note or Notes in exchange for such Global Note or Notes. Under certain circumstances specified in the Indenture, the Depositary may be required to surrender any two or more Global Notes which have identical terms (but which may have differing Original Issue Dates) to the Trustee, and the Company shall execute and the Trustee shall authenticate and deliver to, or at the direction of, the Depositary a Global Note in principal amount equal to the aggregate principal amount of, and with all terms identical to, the Global Notes surrendered thereto and that shall indicate all Original Issue Dates and the principal amount applicable to each such Original Issue Date. The Indenture and the Notes shall be governed by, and construed in accordance with, the laws of the State of Oklahoma. Unless the certificate of authentication hereon has been executed by the Trustee, directly or through an Authenticating Agent by manual signature of an authorized officer, this Global Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. All terms used in this Global Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture unless otherwise indicated herein. IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed. OKLAHOMA GAS AND ELECTRIC COMPANY By: ;/s/ A. M. Strecker ----------------------------- PRESIDENT Dated: Attest: /s/ Irma B. Elliott ------------------------- SECRETARY TRUSTEE'S CERTIFICATE OF AUTHENTICATION This Note is one of the Notes of the series herein designated, described or provided for in the within-mentioned Indenture. THE BANK OF NEW YORK, AS TRUSTEE By: /s/ Van K. Brown ------------------------------- AUTHORIZED OFFICER -5- ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations. TEN COM -- as tenants in common UNIF GIFT MIN ACT -- _____ Custodian _________ (Cust) (Minor) TEN ENT -- as tenants by the entireties Under Uniform Gifts to Minors JT TEN -- as joint tenants with right of survivorship and not as tenants in common ------------------------------ State Additional abbreviations may also be used though not in the above list. ____________ FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- Please print or typewrite name and address including postal zip code of assignee - ------------------------------------------------------ the within note and all rights thereunder, hereby irrevocably constituting and appointing attorney to transfer said note on the books of the Company, with full power of substitution in the premises. Dated: ----------------------------- -------------------------------------------- NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within instrument in every particular, without alteration or enlargement or any change whatever. -6-
EX-4.02 4 EXHIBIT 4.02 ---------------------------------------------------------------------- ---------------------------------------------------------------------- SUPPLEMENTAL TRUST INDENTURE RELEASING AND DISCHARGING THE TRUST INDENTURE DATED FEBRUARY 1, 1945 FROM OKLAHOMA GAS AND ELECTRIC COMPANY TO THE BANK OF NEW YORK TRUSTEE --------- DATED AS OF APRIL 6, 1998 --------- SUPPLEMENTAL TO TRUST INDENTURE DATED FEBRUARY 1, 1945 ---------------------------------------------------------------------- ---------------------------------------------------------------------- TABLE OF CONTENTS -------------- PAGE Parties................................................................... 1 Recitals.................................................................. 1 ARTICLE I. RELEASE AND TERMINATION STATEMENT TO COMPLY WITH THE UNIFORM COMMERCIAL CODE SECTION 1.01 -- Names and addresses of debtor and secured party..... 3 SECTION 1.02 -- Recording data for Original Indenture and prior Supplemental Indentures............................. 3 SECTION 1.03 -- Grant of property in Original Indenture............. 3 SECTION 1.04 -- No First Mortgage Bonds outstanding................. 4 SECTION 1.05 -- Release and discharge of lien of Indenture.......... 4 ARTICLE II. MISCELLANEOUS SECTION 2.01 -- Recitals of fact, except as stated, are statements of the Company...................................... 4 SECTION 2.02 -- Supplemental Trust Indenture to be construed as a part of the Original Indenture...................... 4 SECTION 2.03 -- (a) Trust Indenture Act to control...................... 4 (b) Severability of provisions contained in Supplemental Trust Indenture and bonds........................... 4 SECTION 2.04 -- Word "Indenture" as used herein includes in its meaning the Original Indenture and all indentures supplemental thereto................................ 4 SECTION 2.05 -- References to either party in Supplemental Trust Indenture include successors or assigns............. 4 SECTION 2.06 -- (a) Provision for execution in counterparts............. 4 (b) Table of Contents and descriptive headings of Articles not to affect meaning...................... 4 SCHEDULE A................................................................ A-1 i SUPPLEMENTAL TRUST INDENTURE, made as of the 6th day of April, 1998 by and between OKLAHOMA GAS AND ELECTRIC COMPANY, a corporation duly organized under the laws of the Territory of Oklahoma and existing under and by virtue of the laws of the State of Oklahoma, having its principal office in the City of Oklahoma City, in said State of Oklahoma (hereinafter sometimes called the "Company"), the party of the first part, and The Bank of New York, a New York banking corporation, having its principal office in the City of New York City, in the State of New York, as Trustee, party of the second part: WITNESSETH: WHEREAS, the Company has heretofore executed and delivered its Trust Indenture (hereinafter referred to as the "Original Indenture"), made as of February 1, 1945, whereby the Company granted, bargained, sold, warranted, released, conveyed, assigned, transferred, mortgaged, pledged, set over and confirmed unto the trustee under said indenture and to its respective successors in trust (herein the "Trustee"), all property, real, personal and mixed then owned or thereafter acquired or to be acquired by the Company (except as therein excepted from the lien thereof) and subject to the rights reserved by the Company in and by the provisions of the Original Indenture, to be held by said Trustee and its respective successors in trust in accordance with the provisions of the Original Indenture for the equal pro rata benefit and security of all and each of the bonds issued and to be issued thereunder in accordance with the provisions thereof; and WHEREAS, The First National Bank and Trust Company of Oklahoma City was formerly the Trustee under the Original Indenture as supplemented; and WHEREAS, pursuant to Article XVI of the Original Indenture, The Bank of New York has succeeded The First National Bank and Trust Company of Oklahoma City as Trustee under the Original Indenture, as supplemented; and WHEREAS, the Company has heretofore issued in accordance with the provisions of the Original Indenture, bonds of a series designated "First Mortgage Bonds, Series due February 1, 1975," bearing interest at the rate of 2 3/4% per annum, which were paid at maturity and are no longer outstanding; and WHEREAS, the Company has heretofore executed and delivered to the Trustee the following additional Supplemental Trust Indentures which, in addition to conveying, assigning, transferring, mortgaging, pledging, setting over and confirming to the Trustee, and its respective successors in said trust, additional property acquired by it subsequent to the preparation of the Original Indenture and 1 of the next preceding Supplemental Trust Indenture and adding to the covenants, conditions and agreements of the Original Indenture certain additional covenants, conditions and agreements to be observed by the Company, created the following series of First Mortgage Bonds:
DATE OF SUPPLEMENTAL TRUST INDENTURE DESIGNATION OF SERIES - -------------------------------------- ------------------------------------------------------ December 1, 1948...................... Series due December 1, 1978 (redeemed) June 1, 1949.......................... Series due June 1, 1979 (paid at maturity) May 1, 1950........................... Series due May 1, 1980 (paid at maturity) March 1, 1952......................... Series due March 1, 1982 (paid at maturity) June 1, 1955.......................... Series due June 1, 1985 (paid at maturity) January 1, 1957....................... Series due January 1, 1987 (paid at maturity) June 1, 1958.......................... Series due June 1, 1988 (paid at maturity) March 1, 1963......................... Series due March 1, 1993 (paid at maturity) March 1, 1965......................... Series due March 1, 1995 (paid at maturity) January 1, 1967....................... Series due January 1, 1997 (paid at maturity) January 1, 1968....................... Series due January 1, 1998 (paid at maturity) January 1, 1969....................... Series due January 1, 1999 (redeemed) January 1, 1970....................... Series due January 1, 2000 (redeemed) January 1, 1972....................... Series due January 1, 2002 (redeemed) January 1, 1974....................... Series due January 1, 2004 (redeemed) January 1, 1975....................... Series due January 1, 2005 (redeemed) January 1, 1976....................... Series due January 1, 2006 (redeemed) January 1, 1977....................... Series due January 1, 2007 (redeemed) November 1, 1977...................... Series due November 1, 2007 (redeemed) December 1, 1977...................... Pollution Control Series A (redeemed) February 1, 1980...................... Series due February 5, 2000 (redeemed) April 15, 1982........................ Pollution Control Series B (redeemed) August 15, 1986....................... Series due August 15, 2016 (redeemed) March 1, 1987......................... Pollution Control Series C (redeemed) November 15, 1990..................... Series due December 1, 2020 (redeemed) October 1, 1995....................... Senior Note Series A and Senior Note Series B (redeemed) July 1, 1997.......................... Senior Note Series C and Senior Note Series D (redeemed); and
WHEREAS, the Company has heretofore executed and delivered to the Trustee a Supplemental Trust Indenture, dated September 14, 1976, and a Supplemental Trust Indenture, dated December 9, 1991, setting forth duly adopted modifications and alterations to the Original Indenture and all Supplemental Trust Indentures thereto; and WHEREAS, there are no First Mortgage Bonds outstanding, all such First Mortgage Bonds issued under the Indenture having been paid at maturity, redeemed or otherwise discharged and all indebtedness secured hereby has been paid; WHEREAS, Section 17.01 of the Indenture provides that the Trustee shall, at the request of the Company, cancel and discharge the lien of the Indenture, and reconvey and transfer to the Company the mortgaged and pledged property, whenever all indebtedness secured by the Indenture shall have been paid; WHEREAS, the Company is desirous of having the lien of the Indenture canceled and discharged, and having the mortgaged and pledged property reconveyed and transferred to the Company; WHEREAS, the execution and delivery of this Supplemental Trust Indenture have been duly authorized by a resolution adopted by the Board of Directors of the Company; Now, THEREFORE, THIS INDENTURE WITNESSETH: 2 Oklahoma Gas and Electric Company, in consideration of the premises and of one dollar to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and other good and valuable considerations, does hereby covenant and agree to and with The Bank of New York, as Trustee, as follows: ARTICLE I. RELEASE AND TERMINATION STATEMENT TO COMPLY WITH THE UNIFORM COMMERCIAL CODE SECTION 1.01. The name and address of the debtor and secured party are set forth below: Debtor: Oklahoma Gas and Electric Company 101 North Robinson Oklahoma City, Oklahoma 73101-3405 Secured Party: The Bank of New York, Trustee 101 Barclay Street New York, New York SECTION 1.02. The Original Indenture and the Supplemental Indentures as set forth below were filed and recorded in each and every County in the States of Oklahoma and Arkansas in which the Company has property: Original Indenture Supplemental Indenture Dated February 1, 1945 Dated March 1, 1952 Supplemental Indenture Supplemental Indenture Dated December 1, 1948 Dated June 1, 1955 Supplemental Indenture Supplemental Indenture Dated June 1, 1949 Dated January 1, 1957 Supplemental Indenture Supplemental Indenture Dated May 1, 1950 Dated June 1, 1958 Supplemental Indenture Dated March 1, 1963.
The Supplemental Indenture dated March 1, 1965, the Supplemental Indenture dated January 1, 1967, the Supplemental Indenture dated January 1, 1968, the Supplemental Indenture dated January 1, 1969, the Supplemental Indenture dated January 1, 1970, the Supplemental Indenture dated January 1, 1972, the Supplemental Indenture dated January 1, 1974, the Supplemental Indenture dated January 1, 1975, the Supplemental Indenture dated January 1, 1976, the Supplemental Indenture dated September 14, 1976, the Supplemental Indenture dated January 1, 1977, the Supplemental Indenture dated November 1, 1977, the Supplemental Indenture dated December 1, 1977, the Supplemental Indenture dated February 1, 1980, the Supplemental Indenture dated April 15, 1982, the Supplemental Indenture dated August 15, 1986, the Supplemental Indenture dated March 1, 1987, the Supplemental Indenture dated November 15, 1990, the Supplemental Indenture dated December 9, 1991, the Supplemental Indenture dated October 1, 1995, and the Supplemental Indenture dated July 1, 1997, respectively, were each filed as a Public Service Mortgage and recorded as a Real Estate Mortgage with the Secretary of State of the State of Oklahoma at Oklahoma City and were each filed and recorded in each and every county in the State of Arkansas in which the Company has property and were filed with the Secretary of State of the State of Arkansas. SECTION 1.03 Pursuant to the Original Indenture and the Supplemental Indentures described in Section 1.02, the Company conveyed, assigned and mortgaged to the Trustee, upon the Trusts set 3 out in the Indenture, all of the property of the Company whether owned at the time of execution of said Original Indenture or thereafter acquired or to be acquired, except as in said Original Indenture excepted. SECTION 1.04 There are no outstanding obligations of the debtor secured or presently to be secured by the Original Indenture and Supplemental Indentures. All indebtedness of the debtor secured by the Original Indenture and the Supplemental Indentures has been paid and the Company has duly complied with all the requirements set forth in the Original Indenture and the Supplemental Indenture that are necessary to discharge and cancel the lien of the Indenture. SECTION 1.05 The Trustee does hereby remise, release, and quit-claim unto the Company, its successors and assigns, all right, title and interest vested in it as Trustee under and by virtue of said Original Indenture and said Supplemental Trust Indentures, in and to all property, real, personal and mixed, in which the Trustee, by virtue of the Original Indenture or any Supplemental Indenture, has any interest, including without limitation the property described in Schedule A attached hereto, and the Trustee does hereby cancel and discharge the lien of the Indenture. ARTICLE II. MISCELLANEOUS SECTION 2.01. The recitals of fact herein shall be taken as statements of the Company and shall not be construed as made by the Trustee. SECTION 2.02. This Supplemental Trust Indenture shall be construed in connection with and as a part of the Indenture. SECTION 2.03. (a) If any provision of this Supplemental Trust Indenture limits, qualifies, or conflicts with another provision of the Indenture required to be included in indentures qualified under the Trust Indenture Act of 1939 (as enacted prior to the date of this Supplemental Trust Indenture) by any of the provisions of Sections 310 to 317, inclusive, of the said Act, such required provisions shall control. (b) In case of any one or more of the provisions contained in this Supplemental Trust Indenture should be invalid, illegal, or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected, impaired, prejudiced or disturbed thereby. SECTION 2.04. Wherever in this Supplemental Trust Indenture the word "Indenture" is used without either prefix, "Original" or "Supplemental," such word was used intentionally to include in its meaning both the Original Indenture and all indentures supplemental thereto. SECTION 2.05. Whenever in this Supplemental Trust Indenture either of the parties hereto is named or referred to, this shall be deemed to include the successors or assigns of such party, and all the covenants and agreements in this Supplemental Trust Indenture contained by or on behalf of the Company or by or on behalf of the Trustee shall bind and inure to the benefit of the respective successors and assigns of such parties, whether so expressed or not. SECTION 2.06. (a) This Supplemental Trust Indenture may be simultaneously executed in several counterparts, and all said counterparts executed and delivered, each as an original, shall constitute but one and the same instrument. (b) The Table of Contents and the descriptive headings of the several Articles of this Supplemental Trust Indenture were formulated, used and inserted in this Supplemental Trust Indenture for convenience only and shall not be deemed to affect the meaning or construction of any of the provisions hereof. 4 IN WITNESS WHEREOF, OKLAHOMA GAS AND ELECTRIC COMPANY, an Oklahoma corporation, party of the first part, has caused its corporate name and seal to be hereunto affixed, and this Supplemental Trust Indenture to be signed by its President or a Vice President, and attested by its Secretary or an Assistant Secretary, for and in its behalf, and The Bank of New York, a New York banking corporation, as Trustee, party of the second part, to evidence its acceptance of the trust hereby created, has caused its corporate name and seal to be hereunto affixed, and this Supplemental Trust Indenture to be signed by its President, Vice President or Assistant Vice President, and attested by a Vice President, for and in its behalf, all done this 9th day of April, A.D. 1998. OKLAHOMA GAS AND ELECTRIC COMPANY BY /s/ A.M. STRECKER ---------------------------------- A.M. Strecker, EXECUTIVE VICE PRESIDENT. (CORPORATE SEAL) ATTEST: /s/ IRMA B. ELLIOTT - ------------------------------------ Irma B. Elliott, SECRETARY. Executed by Oklahoma Gas and Electric Company in presence of: /s/ SUSIE WHITE - ------------------------------------ Susie White /s/ GERTRUDE A. WHALEY - ------------------------------------ Gertrude A. Whaley, WITNESSES. THE BANK OF NEW YORK BY /s/ VAN K. BROWN ---------------------------------- Van K. Brown, ASSISTANT VICE PRESIDENT. (CORPORATE SEAL) ATTEST: /s/ WALTER GITLIN - ------------------------------------ Walter Gitlin, VICE PRESIDENT. 5 STATE OF OKLAHOMA. SS: COUNTY OF OKLAHOMA. Before me, a Notary Public in and for said County and State, on this 9th day of April, 1998, personally appeared A.M. Strecker, to me known to be the identical person who subscribed the name of Oklahoma Gas and Electric Company, one of the makers thereof, to the foregoing instrument as its Vice President, and acknowledged to me that he executed the same as his free and voluntary act and deed and as the free and voluntary act and deed of such corporation for the uses and purposes therein set forth. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. /s/ JIMMYE COACHMAN ------------------------------- Jimmye Coachman, NOTARY PUBLIC. (NOTARIAL SEAL) My Commission Expires: May 10, 1998 STATE OF NEW YORK. SS: COUNTY OF NEW YORK. Before me, a Notary Public in and for said County and State, on this 9th day of April, 1998, personally appeared Van K. Brown, to me known to be the identical person who subscribed the name of The Bank of New York, one of the makers thereof, to the foregoing instrument as its Assistant Vice President, and acknowledged to me that he executed the same as his free and voluntary act and deed and as the free and voluntary act and deed of such national banking association for the uses and purposes therein set forth. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. /s/ BILL CASSELS ---------------------------- Bill Cassels, NOTARY PUBLIC. (NOTARIAL SEAL) My Commission Expires: May 16, 1998 6
EX-5.01 5 EXHIBIT 5.01 EXHIBIT 5.01 [LETTERHEAD OF RAINEY, ROSS, RICE & BINNS] April 13, 1998 Oklahoma Gas and Electric Company 101 North Robinson Oklahoma City, OK 73102 RE: $112,500,000 PRINCIPAL AMOUNT OF SECURITIES Gentlemen: We have examined the Form S-3 Registration Statement, dated February 12, 1998 (the "Registration Statement"), of Oklahoma Gas and Electric Company (the "Company"), to which this opinion is an exhibit, for the registration under the Securities Act of 1933, as amended (the "Act"), of an aggregate principal amount of $112,500,000 of notes ("Senior Notes") issued under the Indenture, dated October 1, 1995, as heretofore supplemented and amended by a supplemental indenture and a new supplemental indenture for each series of Senior Notes, all from the Company to The Bank of New York, as successor trustee (such Indenture, as supplemented and as to be supplemented, is herein referred to as the "Senior Note Indenture"). We have examined all records, instruments, and documents which we have deemed necessary for the purposes of this opinion, including the Registration Statement on Form S-3 under the Securities Act of 1933, as amended, relating to the Securities filed by the Company pursuant to the Act. Based upon the foregoing and upon our general familiarity with the properties and affairs of the Company, we are of the opinion that: 1. The Company is a validly organized and legally existing corporation, in good standing under the laws of the State of Oklahoma and is authorized to conduct and operate its business as a public utility in the State of Oklahoma. 2. The Senior Note Indenture, other than any new supplemental indentures, is a valid, legal and binding instrument of the Company. 3. When, as and if the Senior Notes and one or more new supplemental indentures relating thereto have been duly executed and delivered, and the consideration for the Senior Notes duly received by the Company, all in the manner contemplated by the said Registration Statement, the Senior Notes will be legally issued and binding obligations of the Company. Oklahoma Gas and Electric Company April 13, 1998 Page 2 4. The statements made in the above-mentioned Registration Statement and in the related Prospectus, purporting to be made or based upon our opinion correctly set forth our opinion upon said respective matters. Very truly yours, RAINEY, ROSS, RICE & BINNS By: /s/ Hugh D. Rice -------------------------- HUGH D. RICE
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