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SUPPLEMENTAL INDENTURE NO. 3
FROM
OKLAHOMA GAS AND ELECTRIC
COMPANY
TO
THE BANK OF NEW YORK
TRUSTEE
--------
DATED AS OF
APRIL 1, 1998
SUPPLEMENTAL TO INDENTURE
DATED AS OF OCTOBER 1, 1995
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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
6 1/2% SENIOR NOTES, SERIES DUE APRIL 15, 2028
SECTION 2.01 Designation and Principal Amount........................ 2
SECTION 2.02 Stated Maturity Date.................................... 2
SECTION 2.03 Interest Payment Dates.................................. 2
SECTION 2.04 Office for Payment...................................... 3
SECTION 2.05 Redemption Provisions................................... 3
SECTION 2.06 Authorized Denominations................................ 4
SECTION 2.07 Occurrence of Release Date.............................. 4
SECTION 2.08 Form of 6 1/2% Senior Notes, Series Due
April 15, 2028.......................................... 4
ARTICLE THREE
ADDITIONAL COVENANTS
SECTION 3.01 Limitations on Liens.................................... 5
SECTION 3.02 Limitations on Sale and Lease-Back Transactions......... 6
SECTION 3.03 Definitions............................................. 7
ARTICLE FOUR
MISCELLANEOUS
SECTION 4.01 Recitals of fact, except as stated, are statements
of the Company......................................... 9
SECTION 4.02 Supplemental Indenture to be construed as a part
of the Indenture....................................... 9
SECTION 4.03 (a) Trust Indenture Act to control.................... 9
(b) Severability of provisions contained in
Supplemental Indenture and Notes.................. 9
SECTION 4.04 References to either party in Supplemental Indenture
include successors or assigns.......................... 9
SECTION 4.05 (a) Provision for execution in counterparts........... 9
(i)
(b) Table of Contents and descriptive headings
of Articles not to affect meaning................. 9
ARTICLE FIVE
CONFIRMATION OF SUCCESSOR TRUSTEE
SECTION 5.01 Confirmation of Successor Trustee...................... 9
Exhibit A - Form of 6 1/2% Senior Notes, Series due April 15, 2028
(ii)
SUPPLEMENTAL INDENTURE No. 3, made as of the 1st day of April, 1998, by
and between OKLAHOMA GAS AND ELECTRIC COMPANY, a corporation duly organized
and existing under the laws of the State of Oklahoma (the "Company"), and THE
BANK OF NEW YORK, a New York banking corporation, as trustee (the "Trustee"):
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered its Indenture
(hereinafter referred to as the "Indenture"), made as of October 1, 1995; and
WHEREAS, the Company has heretofore executed and delivered its
Supplemental Indenture No. 1 dated as of October 16, 1995, adding to the
covenants, conditions and agreements of the Indenture certain additional
covenants, conditions and agreements to be observed by the Company, and
creating two series of Notes designated "7.30% Senior Notes, Series due
October 15, 2025" and "6.250% Senior Notes, Series due October 15, 2000"; and
WHEREAS, the Company has heretofore executed and delivered its
Supplemental Indenture No. 2 dated as of July 1, 1997, adding to the
covenants, conditions and agreements of the Indenture certain additional
covenants, conditions and agreements to be observed by the Company, and
creating two series of Notes designated "6.65% Senior Notes, Series due
October 15, 2027" and "6.50% Senior Notes, Series due July 15, 2017"; and
WHEREAS, Section 2.05 of the Indenture provides that Notes shall be
issued in series and that a Company Order shall specify the terms of each
series; and
WHEREAS, Boatmen's First National Bank of Oklahoma was formerly the
Trustee under the Indenture and NationsBank, N.A. succeeded Boatmen's First
National Bank of Oklahoma as Trustee pursuant to Section 9.13 of the
Indenture and The Bank of New York has subsequently succeeded Boatmen's First
National Bank of Oklahoma as Trustee pursuant to Section 9.13 of the
Indenture; and
WHEREAS, the Company has this day delivered a Company Order setting
forth the terms of a series of Notes designated "6 1/2% Senior Notes, Series
due April 15, 2028" (hereinafter sometimes referred to as the "Senior Notes
due 2028"); and
WHEREAS, Section 13.01 of the Indenture provides that the Company and
the Trustee may enter into indentures supplemental thereto for the purposes,
among others, of establishing the form of Notes or establishing or reflecting
any terms of any Note and adding to the covenants of the Company; and
WHEREAS, the execution and delivery of this Supplemental Indenture No. 3
(herein, "this Supplemental Indenture") have been duly authorized by a
resolution adopted by the Board of Directors of the Company;
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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 2028 are, and are to be, authenticated, issued and
delivered, and in consideration of the premises of the purchase and
acceptance of the Senior Notes due 2028 by the Holders thereof and the sum of
one dollar duly paid to it by the Trustee at the execution of this
Supplemental Indenture, the receipt whereof is hereby acknowledged, the
Company covenants and agrees with the Trustee for the equal and proportionate
benefit of the respective Holders from time to time of the Senior Notes due
2028, as follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.01 This Supplemental Indenture constitutes an integral part
of the Indenture.
SECTION 1.02 For all purposes of this Supplemental Indenture:
(a) Capitalized terms used herein without definition shall have
the meanings specified in the Indenture;
(b) All references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections of
this Supplemental Indenture; and
(c) The terms "hereof," "herein," "hereby," "hereto," "hereunder"
and "herewith" refer to this Supplemental Indenture.
ARTICLE TWO
6 1/2% SENIOR NOTES, SERIES DUE APRIL 15, 2028
SECTION 2.01 There shall be a series of Notes designated the "6 1/2%
Senior Notes, Series due April 15, 2028" (the "Senior Notes due 2028"). The
Senior Notes due 2028 shall be limited to $100,000,000 aggregate principal
amount.
SECTION 2.02 Except as otherwise provided in Section 2.05 hereof, the
principal amount of the Senior Notes due 2028 shall be payable on the stated
maturity date of April 15, 2028.
SECTION 2.03 The Senior Notes due 2028 shall be dated their date of
authentication as provided in the Indenture and shall bear interest from
their date at the rate of 6 1/2% per annum, payable semi-annually on April 15
and October 15 of each year, commencing October 15, 1998. The Regular Record
Dates with respect to such April 15 and October 15 interest payment dates
shall be March 31 and September 30, respectively. Principal and interest
shall be payable to the persons and in the manner provided in Sections 2.04
and 2.12 of the Indenture.
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SECTION 2.04 The Senior Notes due 2028 shall be payable at the
corporate trust office of the Trustee and at the offices of such paying
agents as the Company may appoint by Company Order in the future.
SECTION 2.05 The Company, at its option, may redeem on any date all
or, from time to time, any part of the Senior Notes due 2028, upon notice as
provided in the Indenture, at a redemption price equal to the greater of (i)
100% of the principal amount of such Senior Notes due 2028 to be redeemed and
(ii) the sum of the present values of the remaining scheduled payments of
principal and interest thereon from and after the date of redemption
discounted to the redemption date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate plus 10 basis
points, plus in each case accrued and unpaid interest thereon to the date of
redemption.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed
as a percentage of its principal amount) equal to the Comparable Treasury
Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable
to the remaining term of the Senior Notes due 2028 to be redeemed that would
be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of such Senior Notes due 2028.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Senior Note Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any redemption date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal
Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for
U.S. Government Securities" or (ii) if such release (or any successor
release) is not published or does not contain such prices on such third
business day, (A) the average of the Reference Treasury Dealer Quotations for
such redemption date, after excluding the highest and lowest of such
Reference Treasury Dealer Quotations, or (B) if the Senior Note Trustee is
unable to obtain at least four such Reference Treasury Dealer Quotations, the
average of all such Quotations obtained. "Reference Treasury Dealer
Quotations" means, with respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the Senior Note Trustee, of
the bid and asked prices of the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing to the Senior
Note Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third business day preceding such redemption date.
"Reference Treasury Dealer" means each of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated, CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp. and ▇▇▇▇▇▇ Brothers Inc., and
their respective
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successors; provided, however, that if any of the foregoing shall cease to be
a primary U.S. Government securities dealer in New York City (a "Primary
Treasury Dealer"), the Company shall substitute therefor another Primary
Treasury Dealer.
The Senior Notes due 2028 shall not be subject to any sinking fund.
SECTION 2.06 The Senior Notes due 2028 shall be issued in fully
registered form without coupons in denominations of $1,000 and integral
multiples thereof.
SECTION 2.07 The Release Date (as defined in the Indenture) occurred
on April 6, 1998. Accordingly, the Senior Notes due 2028 shall be issued as
unsecured general obligations of the Company. The Senior Notes due 2028, and
all other Notes issued or to be issued under the Indenture, will not be
secured by First Mortgage Bonds of the Company and will not be entitled to
the lien of or the benefits provided by the First Mortgage.
SECTION 2.08 The Senior Notes due 2028 shall initially be in the form
attached as Exhibit A hereto.
ARTICLE THREE
ADDITIONAL COVENANTS
SECTION 3.01
(a) So long as any Senior Notes due 2028 are outstanding, the Company
will not permit to exist or issue, assume or guarantee any Debt secured by
any mortgage, security interest, pledge or lien (herein referred to as a
"mortgage") of or upon any Operating Property of the Company, whether owned
at the date of the Indenture or thereafter acquired, without in any such case
effectively securing the outstanding Senior Notes due 2028 (together with, if
the Company shall so determine, any other Notes or indebtedness or obligation
of or guaranteed by the Company ranking senior to, or equally with, the Notes
and then existing or thereafter created) equally and ratably with such Debt;
provided, however, that the foregoing restriction shall not apply to Debt
secured by any of the following:
(1) mortgages on any property existing at the time of acquisition
thereof;
(2) mortgages on property of a corporation existing at the time such
corporation is merged into or consolidated with the Company, or at the time
of a sale, lease or other disposition of the properties of such corporation
or a division thereof as an entirety or substantially as an entirety to the
Company, provided that such mortgage as a result of such merger,
consolidation, sale, lease or other disposition is not extended to property
owned by the Company immediately prior thereto;
(3) mortgages on property to secure all or part of the cost of
acquiring, substantially repairing or altering, constructing, developing or
substantially improving such property, or to secure indebtedness incurred to
provide funds for any such purpose or for reimbursement of funds
4
previously expended for any such purpose, provided such mortgages are created
or assumed contemporaneously with, or within 18 months after, such
acquisition or completion of substantial repair or alteration, construction,
development or substantial improvement or within six months thereafter
pursuant to a commitment for financing arranged with a lender or investor
within such 18 month period;
(4) mortgages in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any state thereof, or for the
benefit of holders of securities issued by any such entity, to secure any
Debt incurred for the purpose of financing all or any part of the purchase
price or the cost of substantially repairing or altering, constructing,
developing or substantially improving the property subject to such mortgages;
or
(5) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any mortgage referred to
in the foregoing clauses (1) to (4), inclusive; provided, however, that the
principal amount of indebtedness secured thereby and not otherwise authorized
by said clauses (1) to (4), inclusive, shall not exceed the principal amount
of indebtedness, plus any premium or fee payable in connection with any such
extension, renewal or replacement, so secured at the time of such extension,
renewal or replacement.
(b) Notwithstanding the provisions of Section 3.01(a), so long as any
Senior Notes due are outstanding, the Company may issue, assume or guarantee
Debt, or permit to exist Debt, secured by mortgages which would otherwise be
subject to the restrictions of Section 3.01(a) up to an aggregate principal
amount that, together with the principal amount of all other Debt of the
Company secured by mortgages (other than mortgages permitted by Section
3.01(a) that would otherwise be subject to the foregoing restrictions) and
the Value of all Sale and Lease-Back Transactions in existence at such time
(other than any Sale and Lease-Back Transaction that, if such Sale and
Lease-Back Transaction had been a mortgage, would have been permitted by
Section 3.01(a), other than Sale and Lease-Back Transactions permitted by
Section 3.02 because the commitment by or on behalf of the purchaser was
obtained no later than 18 months after the later of events described in
clause (i) or (ii) of Section 3.02, and other than Sale and Lease-Back
Transactions as to which application of amounts have been made in accordance
with clause (z) of Section 3.02), does not at the time exceed the greater of
10% of Net Tangible Assets or 10% of Capitalization.
(c) If at any time the Company shall issue, assume or guarantee any
Debt secured by any mortgage and if Section 3.01(a) requires that the
outstanding Senior Notes due 2028 be secured equally and ratably with such
Debt, the Company will promptly execute, at its expense, any instruments
necessary to so equally and ratably secure such series of Notes and deliver
the same to the Trustee along with:
(1) An Officers' Certificate stating that the covenant of the
Company contained in Section 3.01(a) has been complied with;
and
5
(2) An Opinion of Counsel to the effect that such covenant has
been complied with, and that any instruments executed by the
Company in the performance of such covenant comply with the
requirements of such covenant.
In the event that the Company shall hereafter secure outstanding Senior
Notes due 2028 equally and ratably with any other obligation or indebtedness
(including other Notes) pursuant to the provisions of this Section 3.01, the
Trustee is hereby authorized to enter into an indenture or agreement
supplemental hereto and to take such action, if any, as it may deem advisable
to enable it to enforce effectively the rights of the holders of such series
of Notes so secured, equally and ratably with such other obligation and
indebtedness.
SECTION 3.02. So long as any Senior Notes due 2028 are outstanding, the
Company will not permit to remain in effect or enter into any Sale and
Lease-Back Transaction with respect to any Operating Property if, in any
case, the commitment by or on behalf of the purchaser is obtained more than
18 months after the later of (i) the completion of the acquisition,
substantial repair or alteration, construction, development or substantial
improvement of such Operating Property or (ii) the placing in operation of
such Operating Property or of such Operating Property as so substantially
repaired or altered, constructed, developed or substantially improved, unless
(x) the Company would be entitled pursuant to Section 3.01(a) to issue,
assume or guarantee Debt secured by a mortgage on such Operating Property
without equally and ratably securing the Senior Notes due 2028 or (y) the
Company would be entitled pursuant to Section 3.01(b), after giving effect to
such Sale and Lease-Back Transaction, to incur $1.00 of additional Debt
secured by mortgages (other than mortgages permitted by Section 3.01(a)) or
(z) the Company shall apply or cause to be applied, in the case of a sale or
transfer for cash, an amount equal to the net proceeds thereof (but not in
excess of the net book value of such Operating Property at the date of such
sale or transfer) and, in the case of a sale or transfer otherwise than for
cash, an amount equal to the fair value (as determined by the Board of
Directors) of the Operating Property so leased, to the retirement, within 180
days after the effective date of such Sale and Lease-Back Transaction, of
Notes or other Debt of the Company ranking senior to, or equally with, the
Notes; provided, however, that any such retirement of Notes shall be in
accordance with the terms and provisions of the Indenture and the Notes and
provided, further, that the amount to be applied to such retirement of Notes
or other Debt shall be reduced by an amount equal to the sum of (a) an amount
equal to the redemption price with respect to Notes delivered within such
180-day period to the Trustee for retirement and cancellation and (b) the
principal amount, plus any premium or fee paid in connection with any
redemption in accordance with the terms of other Debt voluntarily retired by
the Company within such 180-day period, excluding in each case retirements
pursuant to mandatory sinking fund or prepayment provisions and payments at
maturity.
SECTION 3.03. Definitions
For purposes of Section 3.01 and Section 3.02, the following terms shall
have the following meanings:
6
CAPITALIZATION: The term "Capitalization" shall mean the total of all
the following items appearing on, or included in, the balance sheet of the
Company:
(1) liabilities for indebtedness maturing more than 12 months from
the date of determination; and
(2) common stock, preferred stock, capital surplus, premium on
capital stock, capital in excess of par value and retained
earnings (however the foregoing may be designated), less to
the extent not otherwise deducted, the cost of shares of
capital stock of the Company held in its treasury.
Capitalization shall be determined in accordance with generally accepted
accounting principles and practices applicable to the type of business in
which the Company is engaged and that are approved by independent accountants
regularly retained by the Company, and may be determined as of a date not
more than 60 days prior to the happening of an event for which such
determination is being made.
DEBT: The term "Debt" shall mean any outstanding debt for money
borrowed.
NET TANGIBLE ASSETS: The term "Net Tangible Assets" shall mean the
amount shown as total assets on the balance sheet of the Company, less the
following:
(1) intangible assets including, but without limitation, such
items as goodwill, trademarks, trade names, patents and
unamortized debt discount and expense carried as an asset on
said balance sheet; and
(2) appropriate adjustments, if any, on account of minority
interests.
Net Tangible Assets shall be determined in accordance with generally
accepted accounting principles and practices applicable to the type of
business in which the Company is engaged and that are approved by the
independent accountants regularly retained by the Company, and may be
determined as of a date not more than 60 days prior to the happening of the
event for which such determination is being made.
OPERATING PROPERTY: The term "Operating Property" shall mean (i) any
interest in real property owned by the Company and (ii) any asset owned by
the Company that is depreciable in accordance with generally accepted
accounting principles.
SALE AND LEASE-BACK TRANSACTION: The term "Sale and Lease-Back
Transaction" shall mean any arrangement with any person providing for the
leasing to the Company of any Operating Property (except for temporary leases
for a term, including any renewal thereof, of not more than 48 months), which
Operating Property has been or is to be sold or transferred by the Company to
such person.
7
VALUE: The term "Value" shall mean, with respect to a Sale and
Lease-Back Transaction, as of any particular time, the amount equal to the
greater of (1) the net proceeds to the Company from the sale or transfer of
the property leased pursuant to such Sale and Lease-Back Transaction or (2)
the net book value of such property, as determined in accordance with
generally accepted accounting principles by the Company at the time of
entering into such Sale and Lease-Back Transaction, in either case multiplied
by a fraction, the numerator of which shall be equal to the number of full
years of the term of the lease that is part of such Sale and Lease-Back
Transaction remaining at the time of determination and the denominator of
which shall be equal to the number of full years of such term, without
regard, in any case, to any renewal or extension options contained in such
lease.
ARTICLE FOUR
MISCELLANEOUS
SECTION 4.01 The recitals of fact herein and in the Senior Notes due
2028 (except the Trustee's Certificate) shall be taken as statements of the
Company and shall not be construed as made by the Trustee.
SECTION 4.02 This Supplemental Indenture shall be construed in
connection with and as a part of the Indenture.
SECTION 4.03
(a) If any provision of this Supplemental Indenture limits, qualifies,
or conflicts with another provision of the Indenture required to be included
in indentures qualified under the Trust Indenture Act of 1939 (as enacted
prior to the date of this Supplemental Indenture) by any of the provisions of
Sections 310 to 317, inclusive, of said Act, such required provisions shall
control.
(b) In case any one or more of the provisions contained in this
Supplemental Indenture or in the notes issued hereunder should be invalid,
illegal, or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected, impaired, prejudiced or disturbed thereby.
SECTION 4.04 Whenever in this Supplemental Indenture either of the
parties hereto is named or referred to, this shall be deemed to include the
successors or assigns of such party, and all the covenants and agreements in
this Supplemental Indenture contained by or on behalf of the Company or by or
on behalf of the Trustee shall bind and inure to the benefit of the
respective successors and assigns of such parties, whether so expressed or
not.
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SECTION 4.05
(a) This Supplemental Indenture may be simultaneously executed in
several counterparts, and all said counterparts executed and delivered, each
as an original, shall constitute but one and the same instrument.
(b) The Table of Contents and the descriptive headings of the several
Articles of this Supplemental Indenture were formulated, used and inserted in
this Supplemental Indenture for convenience only and shall not be deemed to
affect the meaning or construction of any of the provisions hereof.
ARTICLE FIVE
CONFIRMATION OF SUCCESSOR TRUSTEE
SECTION 5.01 The Bank of New York acquired substantially all of the
corporate trust businesses of NationsBank, N.A. (which itself had become
successor trustee under the Indenture as a result of its merger with
▇▇▇▇▇▇▇'▇ First National Bank of Oklahoma) in, August, 1997. The Bank of New
York hereby represents and warrants that, as of August, 1997, it was
qualified and eligible to act as Trustee under Article Nine of the Indenture
and, accordingly, pursuant to Section 9.13 of the Indenture, The Bank of New
York became the successor Trustee under the Indenture. The Bank of New York
hereby acknowledges and accepts its duties and obligations as Trustee under
the Indenture.
9
IN WITNESS WHEREOF, OKLAHOMA GAS AND ELECTRIC COMPANY has caused this
Supplemental Indenture to be signed by its President or a Vice President, and
attested by its Secretary or an Assistant Secretary and THE BANK OF NEW YORK,
has caused this Supplemental Indenture to be signed by its President, Vice
President or Assistant Vice President, and attested by a Vice President, this
13th day of April, 1998.
OKLAHOMA GAS AND ELECTRIC COMPANY
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
ATTEST:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, SECRETARY.
THE BANK OF NEW YORK, as Trustee
/s/ Van ▇. ▇▇▇▇▇
By: Van ▇. ▇▇▇▇▇, Assistant Vice President
ATTEST:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, VICE PRESIDENT.
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EXHIBIT A
FORM OF 6 1/2% SENIOR NOTE, SERIES
DUE APRIL 15, 2028
REGISTERED REGISTERED
THIS NOTE IS A GLOBAL NOTE REGISTERED IN THE NAME OF THE DEPOSITARY
(REFERRED TO HEREIN) OR A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL
NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇), TO THE TRUSTEE FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
OKLAHOMA GAS AND ELECTRIC COMPANY
6 1/2% SENIOR NOTE, SERIES DUE APRIL 15, 2028
CUSIP: ▇▇▇▇▇▇▇▇▇ NUMBER: R-
ORIGINAL ISSUE DATE(S): PRINCIPAL AMOUNT(S): $100,000,000
April 16, 1998
INTEREST RATE: 6 1/2 % MATURITY DATE: April 15, 2028
OKLAHOMA GAS AND ELECTRIC COMPANY, a corporation of the State of
Oklahoma (the "COMPANY"), for value received hereby promises to pay to Cede &
Co. or registered assigns, the principal sum of
on the Maturity Date set forth above, and to pay interest thereon from the
Original Issue Date (or if this Global Note has two or more Original Issue
Dates, interest shall, beginning on each such Original Issue Date, begin to
accrue for that part of the principal amount to which that Original Issue
Date is applicable) set forth above or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semiannually in
arrears on April 15 and October 15 in each year, commencing on the first such
Interest Payment Date succeeding the applicable Original Issue Date set forth
above, at the per annum Interest Rate set forth above, until the principal
hereof is paid or made available for payment. No interest shall accrue on
the Maturity Date, so long as the principal amount of this Global Note is
paid on the
Maturity Date. The interest so payable and punctually paid or duly provided
for on any such Interest Payment Date will, as provided in the Indenture, be
paid to the Person in whose name this Note is registered at the close of
business on the Regular Record Date for such interest, which shall be the
March 31 or the September 30 , as the case may be, next preceding such
Interest Payment Date; provided that the first Interest Payment Date for any
part of this Note, the Original Issue Date of which is after a Regular Record
Date but prior to the applicable Interest Payment Date, shall be the Interest
Payment Date following the next succeeding Regular Record Date; and provided
that interest payable on the Maturity Date set forth above or, if applicable,
upon redemption, repayment or acceleration, shall be payable to the Person to
whom principal shall be payable. Except as otherwise provided in the
Indenture (as defined below), any such interest not so punctually paid or
duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and shall be paid to the Person in whose name this Note
is registered at the close of business on a Special Record Date for the
payment of such defaulted interest to be fixed by the Trustee, notice whereof
shall be given to Noteholders not more than fifteen days or fewer than ten
days prior to such Special Record Date. On or before 10:00 a.m., New York
City time, or such other time as shall be agreed upon between the Trustee and
the Depositary, of the day on which such payment of interest is due on this
Global Note (other than maturity), the Trustee shall pay to the Depositary
such interest in same day funds. On or before 10:00 a.m., New York City
time, or such other time as shall be agreed upon between the Trustee and the
Depositary, of the day on which principal, interest payable at maturity and
premium, if any, is due on this Global Note, the Trustee shall deposit with
the Depositary the amount equal to the principal, interest payable at
maturity and premium, if any, by wire transfer into the account specified by
the Depositary. As a condition to the payment, on the Maturity Date or upon
redemption, repayment or acceleration, of any part of the principal and
applicable premium of this Global Note, the Depositary shall surrender, or
cause to be surrendered, this Global Note to the Trustee, whereupon a new
Global Note shall be issued to the Depositary.
This Global Note is a global security in respect of a duly authorized
issue of 6 1/2% Senior Notes, Series due April 15, 2028 (the "NOTES OF THIS
SERIES", which term includes any Global Notes representing such Notes) of the
Company issued and to be issued under an Indenture dated as of October 1,
1995 between the Company and The Bank of New York, as successor trustee (the
"TRUSTEE", which term includes any subsequent successor Trustee under the
Indenture) to Boatmen's First National Bank of Oklahoma, and indentures
supplemental thereto (collectively, the "INDENTURE"). Under the Indenture,
one or more series of notes may be issued and, as used herein, the term
"Notes" refers to the Notes of this Series and any other outstanding series
of Notes. Reference is hereby made to the Indenture for a more complete
statement of the respective rights, limitations of rights, duties and
immunities under the Indenture of the Company, the Trustee and the
Noteholders and of the terms upon which the Notes are and are to be
authenticated and delivered. This Global Note has been issued in respect of
the series designated on the first page hereof, limited in aggregate
principal amount to $100,000,000.
Each Note of this Series shall be dated and issued as of the date of its
authentication by the Trustee and shall bear an Original Issue Date or Dates.
Each Note or Global Note issued upon transfer, exchange or substitution of
such Note or Global Note shall bear the Original Issue Date or Dates of such
transferred, exchanged or substituted Note or Global Note, as the case may be.
The Company, at its option, may redeem on any date all or, from time to
time, any part of this Global Note at a redemption price equal to the greater
of (i) 100% of the principal amount of this Global Note to be redeemed and
(ii) the sum of the present values of the remaining scheduled payments of
principal and interest thereon discounted to the redemption date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus 10 basis points, plus in each case accrued
and unpaid interest thereon to the date of redemption.
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"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed
as a percentage of its principal amount) equal to the Comparable Treasury
Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable
to the remaining term of the Notes of this Series to be redeemed that would
be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of Notes of this Series.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Senior Note Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any redemption date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal
Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for
U.S. Government Securities" or (ii) if such release (or any successor
release) is not published or does not contain such prices on such third
business day, (A) the average of the Reference Treasury Dealer Quotations for
such redemption date, after excluding the highest and lowest of such
Reference Treasury Dealer Quotations, or (B) if the Senior Note Trustee is
unable to obtain at least four such Reference Treasury Dealer Quotations, the
average of all such Quotations obtained. "Reference Treasury Dealer
Quotations" means, with respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the Senior Note Trustee, of
the bid and asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing to the Senior
Note Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third business day preceding such redemption date.
"Reference Treasury Dealer" means each of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated, CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp. and ▇▇▇▇▇▇ Brothers Inc., and
their respective successors; provided, however, that if any of the foregoing
shall cease to be a primary U.S. Government securities dealer in New York
City (a "Primary Treasury Dealer"), the Company shall substitute therefor
another Primary Treasury Dealer.
Notice of redemption will be given by mail to Holders of Notes of this
Series not less than 30 or more than 60 days prior to the date fixed for
redemption, all as provided in the Indenture. In the event of redemption of
this Global Note in part only, a new Global Note or Notes of like tenor and
series for the unredeemed interest hereof will be issued in the name of the
Noteholder hereof upon the surrender hereof.
Interest payments for this Global Note shall be computed and paid on the
basis of a 360-day year of twelve 30-day months. If any Interest Payment
Date or date on which the principal of this Global Note is required to be
paid is not a Business Day, then payment of principal, premium or interest
need not be made on such date but may be made on the next succeeding Business
Day with the same force and effect as if made on such Interest Payment Date
or date on which the principal of this Global Note is required to be paid
and, in the case of timely payment thereof, no interest shall accrue for the
period from and after such Interest Payment Date or the date on which the
principal of this Global Note is required to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Notes (except for certain obligations including obligations to
register the transfer or exchange of Notes, replace stolen, lost or mutilated
Notes, maintain paying agencies and hold monies for payment in trust, all as
set forth in the Indenture) if the Company deposits with the Trustee money,
U.S. Government Obligations which through the payment of interest
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thereon and principal thereof in accordance with their terms will provide
money, or a combination of money and U.S. Government Obligations, in any
event in an amount sufficient, without reinvestment, to pay all the principal
of and any premium and interest on the Notes on the dates such payments are
due in accordance with the terms of the Notes.
If an Event of Default shall occur and be continuing, the principal of
the Notes may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Noteholders under the Indenture at any time by
the Company and the Trustee with the consent of the Holders of not less than
a majority in principal amount of the outstanding Notes. Any such consent or
waiver by the Holder of this Global Note shall be conclusive and binding upon
such Holder and upon all future Holders of this Global Note and of any Note
issued upon the registration of transfer hereof or in exchange therefor or in
lieu thereof whether or not notation of such consent or waiver is made upon
the Note.
As set forth in and subject to the provisions of the Indenture, no
Holder of any Notes will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder unless such Holder
shall have previously given to the Trustee written notice of a continuing
Event of Default with respect to such Notes, the Holders of not less than a
majority in principal amount of the outstanding Notes affected by such Event
of Default shall have made written request and offered reasonable indemnity
to the Trustee to institute such proceeding as Trustee and the Trustee shall
have failed to institute such proceeding within 60 days; provided that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of and any premium or interest on
this Note on or after the respective due dates expressed here.
No reference herein to the Indenture and to provisions of this Global
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and any premium
and interest on this Global Note at the times, places and rates and the coin
or currency prescribed in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, this Global Note may be transferred only as permitted by the
legend hereto.
If at any time the Depositary for this Global Note notifies the Company
that it is unwilling or unable to continue as Depositary for this Global Note
or if at any time the Depositary for this Global Note shall no longer be
eligible or in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, the Company shall appoint
a successor Depositary with respect to this Global Note. If a successor
Depositary for this Global Note is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such
ineligibility, the Company's election to issue this Note in global form shall
no longer be effective with respect to this Global Note and the Company will
execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Notes of this Series in exchange
for this Global Note, will authenticate and deliver individual Notes of this
Series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of this Global Note.
The Company may at any time and in its sole discretion determine that
all Notes of this Series (but not less than all) issued or issuable in the
form of one or more Global Notes shall no longer be represented by such
Global Note or Notes. In such event, the Company shall execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery
of individual Notes of this Series in exchange for such
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Global Note, shall authenticate and deliver, individual Notes of this Series
of like tenor and terms in definitive form in an aggregate principal amount
equal to the principal amount of such Global Note or Notes in exchange for
such Global Note or Notes.
Under certain circumstances specified in the Indenture, the Depositary
may be required to surrender any two or more Global Notes which have
identical terms (but which may have differing Original Issue Dates) to the
Trustee, and the Company shall execute and the Trustee shall authenticate and
deliver to, or at the direction of, the Depositary a Global Note in principal
amount equal to the aggregate principal amount of, and with all terms
identical to, the Global Notes surrendered thereto and that shall indicate
all Original Issue Dates and the principal amount applicable to each such
Original Issue Date.
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of Oklahoma.
Unless the certificate of authentication hereon has been executed by the
Trustee, directly or through an Authenticating Agent by manual signature of
an authorized officer, this Global Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
All terms used in this Global Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture unless otherwise
indicated herein.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
OKLAHOMA GAS AND ELECTRIC COMPANY
By: ;/s/ A. M. ▇▇▇▇▇▇▇▇
-----------------------------
PRESIDENT
Dated: Attest: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
SECRETARY
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Notes of the
series herein designated, described or
provided for in the within-mentioned
Indenture.
THE BANK OF NEW YORK, AS TRUSTEE
By: /s/ Van ▇. ▇▇▇▇▇
-------------------------------
AUTHORIZED OFFICER
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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
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Please print or typewrite name and address
including postal zip code of assignee
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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:
-----------------------------
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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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