EXHIBIT 4.34
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FORM OF
SUPPLEMENTAL INDENTURE NO.
FROM
OKLAHOMA GAS AND ELECTRIC
COMPANY
TO
THE BANK OF NEW YORK
TRUSTEE
DATED AS OF
SUPPLEMENTAL TO INDENTURE
DATED AS OF OCTOBER 1, 1995
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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
% 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.................................. 2
SECTION 2.04 Office for Payment...................................... 3
SECTION 2.05 Redemption Provisions................................... 3
SECTION 2.06 Mandatory Repurchase Provisions......................... 4
SECTION 2.07 Authorized Denominations................................ 4
[SECTION 2.08 Related Series of First Mortgage Bonds.................. 4]
SECTION 2.09 Form of % Senior Notes, Series Due
, ............................................... 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
(i)
SECTION 4.05 (a) Provision for execution in counterparts............. 9
(b) Table of Contents and descriptive headings
of Articles not to affect meaning................... 9
(ii)
SUPPLEMENTAL INDENTURE No. , made as of the day of , 199 , 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 " % 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;
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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) 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
% 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 or Section
2.06 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 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.
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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 Company, at its option, may redeem on any date on or
after , 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 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
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 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated, Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇▇▇▇ Brothers Inc. and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co.
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Incorporated, 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 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 related series of Senior Note First Mortgage Bonds for
the Senior Notes due is the Company's First Mortgage Bonds, Senior Note
Series.]
SECTION 2.09 The Senior Notes due shall initially be in the form
attached as Exhibit A hereto.
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ARTICLE THREE
ADDITIONAL COVENANTS
SECTION 3.01
[(a) From and after the Release Date and so long as any Senior Notes due
are outstanding, the Company will not 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, and will not permit
to exist any Debt secured by a mortgage on any Operating Property created on or
prior to the Release Date, without in any such case effectively securing, on
the later to occur of the issuance, assumption or guaranty of any such Debt or
the Release Date, 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;
(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
5
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), from and after
the Release Date and 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 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. From and after the Release Date and so long as any Senior
Notes due are outstanding, the Company will not enter into any Sale and
Lease-Back Transaction with respect to any Operating Property and will not
permit to remain in effect any Sale and Lease-Back Transaction entered into on
or prior to the Release Date with respect to any Operating Property if, in any
case, the commitment by or on behalf of the purchaser is obtained more than 18
6
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 Notes of this Series 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 later to occur of the effective date
of such Sale and Lease-Back Transaction or the Release Date, 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.
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
7
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.
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 THE BANK OF NEW YORK,
has caused this Supplemental Indenture to be signed by its President or a Vice
President, and attested by a Vice President, this day of .
OKLAHOMA GAS AND ELECTRIC COMPANY
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
ATTEST:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, SECRETARY.
THE BANK OF NEW YORK, as Trustee
By: , Vice President
ATTEST:
, VICE PRESIDENT.
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FORM OF 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:
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 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
and 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 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 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 $ .
[Prior to the Release Date (as hereinafter defined), the Notes will be
secured by first mortgage bonds (the "SENIOR NOTE FIRST MORTGAGE BONDS")
delivered by the Company to the Trustee for the benefit of the Holders of the
Notes, issued under the Trust Indenture, dated as of February 1, 1945, from the
Company to The Bank of New York, as successor trustee to The First National
Bank and Trust Company of Oklahoma City (the "MORTGAGE TRUSTEE"), as
supplemented and modified (collectively, the "FIRST MORTGAGE"). Reference is
made to the First Mortgage and the Indenture for a description of the rights of
the Trustee as holder of the Senior Note First Mortgage Bonds, the property
mortgaged and pledged, under the First Mortgage and the rights of the Company
and of the Mortgage Trustee in respect thereof, the duties and immunities of
the Mortgage Trustee and the terms and conditions upon which the Senior Note
First Mortgage Bonds are secured and the circumstances under which additional
first mortgage bonds may be issued.
-2-
FROM AND AFTER SUCH TIME AS ALL FIRST MORTGAGE BONDS (OTHER THAN SENIOR
NOTE FIRST MORTGAGE BONDS) ISSUED UNDER THE FIRST MORTGAGE HAVE BEEN RETIRED
THROUGH PAYMENT, REDEMPTION OR OTHERWISE (INCLUDING THOSE FIRST MORTGAGE BONDS
"DEEMED TO BE PAID" WITHIN THE MEANING OF THAT TERM AS USED IN ARTICLE X OF THE
FIRST MORTGAGE) AT, BEFORE OR AFTER THE MATURITY THEREOF (THE "RELEASE DATE"),
THE SENIOR NOTE FIRST MORTGAGE BONDS SHALL CEASE TO SECURE THE NOTES IN ANY
MANNER. IN CERTAIN CIRCUMSTANCES PRIOR TO THE RELEASE DATE AS PROVIDED IN THE
INDENTURE, THE COMPANY IS PERMITTED TO REDUCE THE AGGREGATE PRINCIPAL AMOUNT OF
A SERIES OF SENIOR NOTE FIRST MORTGAGE BONDS HELD BY THE TRUSTEE, BUT IN NO
EVENT PRIOR TO THE RELEASE DATE TO AN AMOUNT LESS THAN THE AGGREGATE
OUTSTANDING PRINCIPAL AMOUNT OF THE SERIES OF NOTES INITIALLY ISSUED
CONTEMPORANEOUSLY WITH SUCH SENIOR NOTE FIRST MORTGAGE BONDS.]
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 on or after , 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 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
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.
-3-
"Reference Treasury Dealer" means each of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated, Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇▇▇▇ Brothers Inc. and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated, 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 portion 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 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 .]
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
-4-
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 [and, upon such declaration, the Trustee can demand
the redemption of the Senior Note First Mortgage Bonds as 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.
-5-
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.
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.
THE BANK OF NEW YORK, AS TRUSTEE
By:-------------------------------------------
AUTHORIZED OFFICER
-6-
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to
repay this Senior Note (or portion thereof specified below) on
pursuant to its terms at a price equal to the principal amount thereof,
together with accrued and unpaid interest to , to the undersigned at:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or type the name and address of the undersigned above)
If less than the entire principal amount of this Senior Note is to be
repaid on , specify the principal amount thereof which the holder elects
to have repaid: __________; and specify the denomination or denominations
(which shall not be less than the minimum authorized denomination) of the
Senior Notes to be issued to the holder for the portion of this Senior Note not
being repaid (in the absence of any such specification, one such Note will be
issued for the portion not being repaid): _________________
Dated: ________________________
_______________________________________
(Signature)
NOTICE: The signature of this Option to Elect Repayment must correspond with
the name as written upon the face of the within Senior Note in every
particular without alteration or enlargement or any change whatever.
-7-
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.
-8-