EXHIBIT 4.07
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SUPPLEMENTAL INDENTURE NO. ___
FROM
OKLAHOMA GAS AND ELECTRIC
COMPANY
TO
UMB BANK, N.A.
TRUSTEE
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DATED AS OF
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SUPPLEMENTAL TO INDENTURE
DATED AS OF OCTOBER 1, 1995
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TABLE OF CONTENTS
(continued)
PAGE
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
______% SENIOR NOTES, SERIES DUE ________
SECTION 2.01 Designation and Principal Amount...........................................2
SECTION 2.02 Stated Maturity Date.......................................................2
SECTION 2.03 Interest Payment Dates.....................................................3
SECTION 2.04 Office for Payment.........................................................3
SECTION 2.05 Redemption Provisions......................................................3
SECTION 2.06 Repayment Provisions.......................................................4
SECTION 2.07 Authorized Denominations...................................................4
SECTION 2.08 Occurrence of Release Date.................................................4
SECTION 2.09 Form of ____% Senior Notes, Series Due ________............................5
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..........8
SECTION 4.02 Supplemental Indenture to be construed as a part of the Indenture..........8
SECTION 4.03 (a) Trust Indenture Act to control.......................................8
(b) Severability of provisions contained in Supplemental
Indenture and Notes..................................................9
-i-
TABLE OF CONTENTS
(continued)
PAGE
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
(b) Table of Contents and descriptive headings of
Articles not to affect meaning.......................................9
Exhibit A - Form of ____% Senior Notes, Series due _____
-ii-
SUPPLEMENTAL INDENTURE No. ___, made as of the _____ day of ____________,
_________, 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 UMB BANK, N.A., a national banking association duly organized and existing
under the laws of the United States, 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, the Company has heretofore executed and delivered its
Supplemental
Indenture No. 3 dated as of April 1, 1998, adding to the covenants, conditions
and agreements of the Indenture certain additional covenants, conditions and
agreements to be observed by the Company, and creating a series of Notes
designated "6 1/2% Senior Notes, Series due April 15, 2028"; and
WHEREAS, the Company has heretofore executed and delivered its
Supplemental
Indenture No. 4 dated as of October 15, 2000, adding to the covenants,
conditions and agreements of the Indenture certain additional covenants,
conditions and agreements to be observed by the Company, and creating a series
of Notes designated "7.125% Senior Notes, Series due October 15, 2005"; and
WHEREAS, the Company, the Trustee and The Bank of New York (the "Prior
Trustee") have heretofore executed and delivered Supplemental Indenture No. 5
dated as of October 24, 2001, providing for the resignation of the Prior Trustee
and the acceptance, by the Trustee, of its appointment as trustee and the
assumption of all duties and responsibilities of the trustee under the
Indenture; 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, 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 UMB Bank, N.A., has subsequently succeeded The
Bank of New York as Trustee pursuant to Section 9.11 of the Indenture; and
WHEREAS, the Company has this day delivered a Company Order setting forth
the terms of a series of Notes designated "____% Senior Notes, Series due
___________, ________" (hereinafter sometimes referred to as the "Senior Notes
due ______") 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. ____
(herein, "this Supplemental Indenture") have been duly authorized by a
resolution adopted by the Board of Directors of the Company;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to set forth the terms and conditions upon which the
Senior Notes due _____ 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 ____ 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 ________, 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) References to Articles and Sections. 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.
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ARTICLE TWO
___% SENIOR NOTES, SERIES DUE _____________
Section 2.01 There shall be a series of Notes designated the "______%
Senior Notes, Series due ________" (the "Senior Notes due ____"). The Senior
Notes due _____ shall be limited to $_______ aggregate principal amount.
Section 2.02 Except as otherwise provided in Section 2.05 hereof, the
principal amount of the Senior Notes due ___ shall be payable on the stated
maturity date of ___________.
Section 2.03 The Senior Notes due ______ shall be dated their date of
authentication as provided in the Indenture and shall bear interest from their
date at the rate of ___% per annum, payable semi-annually on ___________ and
_________ of each year, commencing _____________. The Regular Record Dates with
respect to such ____________ and ______________ interest payment dates shall be
______________ and _______, 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.
Section 2.04 The Senior Notes due ____ 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 Senior Notes due _____ are not redeemable prior to
maturity.] [The Company, at its option, may redeem on any date all or, from time
to time, any part of the Senior Notes due _____, 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 ____ 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 __ 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 ____ 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 ____. "Independent
Investment Banker" means one of the Reference Treasury Dealers appointed by the
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
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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 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 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 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 ___________________ and
______________, 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.
The Senior Notes due ____ shall not be subject to any sinking fund.]
Section 2.06 [The Senior Notes due ____ will be repayable on ______,
at the option of the holders thereof, at 100% of their principal amount,
together with accrued and unpaid interest to _________. In order for a Senior
Note due ____ to be repaid, the Company must receive at the corporate trust
office of the Trustee during the period from and including ________ to and
including the close of business on ________ (or if _________ is not a Business
Day, the next succeeding Business Day): (i) a Senior Note due _____ with the
form entitled "Option to Elect Repayment" on the Senior Note due __________ duly
completed, or (ii) a telegram, telex, facsimile transmission or letter from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or a trust company in the United
States of America setting forth the name of the Holder of the Senior Note due
____, the principal amount of the Senior Note due ____, the principal amount of
the Senior Note due ____ to be repaid, a statement that the option to elect
repayment is being exercised thereby and a guarantee that the Senior Note due
____ to be repaid (with the form entitled "Option to Elect Repayment" on the
Senior Note due ____ duly completed) will be received at the Trustee's corporate
trust office, no later than five Business Days after the date of such telegram,
telex, facsimile transmission or letter and such Note and form duly completed
are received at the Trustee's office, by such fifth Business Day. Effective
exercise of the repayment option by the holder of any Senior Note due ____ shall
be irrevocable. No transfer or exchange of any Senior Note due ___ (or, in the
event that any Senior Note due ___ is to be repaid in part, such portion of the
Senior Note due ____ to be repaid) will be permitted after exercise of the
repayment option. The repayment option may be exercised by the Holder of a
Senior Note due __ for less than the entire principal amount of the Senior Note
due ___, provided the principal amount which is to be repaid is set forth on the
form entitled "Option to Elect Repayment" on the Senior Note due ___ and is
equal to $1,000 or any integral multiple thereof. All questions as to the
validity, eligibility (including time of receipt) and acceptance of any Senior
Note due ____ for repayment will be determined by the Company, whose
determination will be final, binding and non-appealable. Upon timely delivery of
a Senior Note due ____ to the Trustee with the "Option
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to Elect Repayment" form completed in accordance with the foregoing, the
outstanding principal amount of such Senior Note due ___ (or portion thereof
indicated on the "Option to Elect Repayment") shall become due and payable on
________, at a price equal to ____% of the principal amount to be repaid plus
accrued and unpaid interest to -------------.]
Section 2.07 The Senior Notes due ___ shall be issued in fully
registered form without coupons in denominations of $1,000 and integral
multiples thereof.
Section 2.08 The Release Date (as defined in the Indenture) occurred
on April 6, 1998. Accordingly, the Senior Notes due ____ shall be issued as
unsecured general obligations of the Company. The Senior Notes due ______, 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 2.09 The Senior Notes due ____ 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 ____ 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 ____ (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 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;
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(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 ____ 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
(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 _____ 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
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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 _____ 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 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:
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.
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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:
(3) 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
(4) 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.
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.
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ARTICLE FOUR
MISCELLANEOUS
Section 4.01 The recitals of fact herein and in the Senior Notes due
(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.
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.
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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 UMB BANK, N.A. has
caused this Supplemental Indenture to be signed by its President, Vice President
or Assistant Vice President, and attested by a Vice President, this _______ day
of ___________.
OKLAHOMA GAS AND ELECTRIC COMPANY
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
ATTEST:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, SECRETARY.
UMB BANK, N.A., as Trustee
By: ______, Assistant Vice President
ATTEST:
_______________, VICE PRESIDENT.
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EXHIBIT A
FORM OF % SENIOR NOTE, SERIES
DUE ________________
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 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇), 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
________% SENIOR NOTE, SERIES DUE _______
CUSIP: NUMBER: R-
ORIGINAL ISSUE DATE(S): PRINCIPAL AMOUNT(S):
INTEREST RATE: MATURITY DATE:
OKLAHOMA GAS AND ELECTRIC COMPANY, a corporation of the State of Oklahoma
(the "COMPANY"), for value received hereby promises to pay to______________ 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
_________ and ___________ in each year, commencing on the first such Interest
Payment Date succeeding the applicable
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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 ______ or the____ , 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 __________% Senior Notes, Series due _________(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 UMB Bank, N.A., 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 $______.
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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.
[This Global Note is not redeemable prior to maturity.] [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 ____
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 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 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 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 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 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 ___________ 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.
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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.]
[The Notes of this Series will be repayable on ________, at the option of
the Holders thereof, at 100% of their principal amount, together with accrued
and unpaid interest to _________. In order for this Global Note to be repaid,
the Company must receive at the corporate trust office of the Trustee during the
period from and including ____________to and including the close of business on
___________ (or if __________ is not a Business Day, the next succeeding
Business Day): (i) this Global Note with the form entitled "Option to Elect
Repayment" on this Global Note duly completed, or (ii) a telegram, telex,
facsimile transmission or letter from a member of a national securities exchange
or the National Association of Securities Dealers, Inc. or a commercial bank or
a trust company in the United States of America setting forth the name of the
Holder of this Global Note, the principal amount of this Global Note, the
principal amount of this Global Note to be repaid, a statement that the option
to elect repayment is being exercised thereby and a guarantee that this Global
Note (with the form entitled "Option to Elect Repayment" on this Global Note
duly completed) will be received at the Trustee's corporate trust office, no
later than five Business Days after the date of such telegram, telex, facsimile
transmission or letter and this Global Note and form duly completed are received
at the Trustee's office, by such fifth Business Day. Effective exercise of the
repayment option by the Holder of any Note of this Series shall be irrevocable.
No transfer or exchange of any Note of this Series (or, in the event that any
Note of this Series is to be repaid in part, such portion of the Note of this
Series to be repaid) will be permitted after exercise of the repayment option.
The repayment option may be exercised by the Holder of a Note of this Series for
less than the entire principal amount of the Note of this Series, provided the
principal amount which is to be repaid is set forth on the form entitled "Option
to Elect Repayment" on the Note of this Series and is equal to $1,000 or any
integral multiple thereof. All questions as to the validity, eligibility
(including time of receipt) and acceptance of any Note of this Series for
repayment will be determined by the Company, whose determination will be final,
binding and non-appealable. Upon timely delivery of a Note of this Series to the
Trustee with the "Option to Elect Repayment" form completed in accordance with
the foregoing, the outstanding principal amount of such Note of this Series (or
portion thereof indicated in the "Option to Elect Repayment") shall become due
and payable on ___________, at a price equal to __________% of the principal
amount to be repaid plus accrued and unpaid interest to _______________.]
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
14
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 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
15
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 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.
16
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
OKLAHOMA GAS AND ELECTRIC COMPANY
By:
------------------------------------
PRESIDENT
Dated: Attest:
--------------------------------
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.
UMB BANK, N.A., AS TRUSTEE
By:
-------------------------------------
AUTHORIZED OFFICER
17
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 andnot 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.
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