FORM OF SUPPLEMENTAL INDENTURE

Exhibit 4.10

 

FORM OF

SUPPLEMENTAL INDENTURE NO. __

FROM

OKLAHOMA GAS AND ELECTRIC

COMPANY

TO

UMB BANK, N.A.

TRUSTEE

______________

DATED AS OF [__________]

___________________________

SUPPLEMENTAL TO INDENTURE

DATED AS OF OCTOBER   1, 1995

 

 

 

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TABLE OF CONTENTS

 

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ARTICLE ONE

RELATION TO INDENTURE; DEFINITIONS

 

 

ARTICLE TWO

[____]% SENIOR NOTES, SERIES DUE [__________]

 

 

ARTICLE THREE

MISCELLANEOUS

 

 

Exhibit A – Form of [____]% Senior Notes, Series due [__________]

 

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SUPPLEMENTAL INDENTURE No. __, made as of the [_____] day of [__________] by and between OKLAHOMA GAS AND ELECTRIC COMPANY, a corporation duly organized and existing under the laws of the State of Oklahoma (the “Company”), and UMB BANK, N.A., a national banking association duly organized and existing under the laws of the United States, as trustee (the “Trustee”):

WITNESSETH:

WHEREAS, the Company has heretofore executed and delivered its Indenture (hereinafter referred to as the “Indenture”), made as of October 1, 1995; and

WHEREAS, the Company has heretofore executed and delivered its Supplemental Indenture No. 1 dated as of October 16, 1995, adding to the covenants, conditions and agreements of the Indenture certain additional covenants, conditions and agreements to be observed by the Company, and creating two series of Notes designated “7.30% Senior Notes, Series due October 15, 2025” and “6.250% Senior Notes, Series due October 15, 2000”; and

WHEREAS, the Company has heretofore executed and delivered its Supplemental Indenture No. 2 dated as of July 1, 1997, adding to the covenants, conditions and agreements of the Indenture certain additional covenants, conditions and agreements to be observed by the Company, and creating two series of Notes designated “6.65% Senior Notes, Series due October 15, 2027” and “6.50% Senior Notes, Series due July 15, 2017”; and

WHEREAS, the Company has heretofore executed and delivered its Supplemental Indenture No. 3 dated as of April 1, 1998, adding to the covenants, conditions and agreements of the Indenture certain additional covenants, conditions and agreements to be observed by the Company, and creating a series of Notes designated “6½% Senior Notes, Series due April 15, 2028”; and

WHEREAS, the Company has heretofore executed and delivered its Supplemental Indenture No. 4 dated as of October 15, 2000, adding to the covenants, conditions and agreements of the Indenture certain additional covenants, conditions and agreements to be observed by the Company, and creating a series of Notes designated “7.125% Senior Notes, Series due October 15, 2005”; and

WHEREAS, the Company, the Trustee and The Bank of New York (the “Prior Trustee”) have heretofore executed and delivered Supplemental Indenture No. 5 dated as of October 24, 2001, providing for the resignation of the Prior Trustee and the acceptance, by the Trustee, of its appointment as trustee and the assumption of all duties and responsibilities of the trustee under the Indenture; and

WHEREAS, the Company has heretofore executed and delivered its Supplemental Indenture No. 6 dated as of August 1, 2004, adding to the covenants, conditions and agreements of the Indenture certain additional covenants, conditions and agreements to be observed by the Company, and creating a series of Notes designated “6.50% Senior Notes, Series due August 1, 2034”; and

 

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WHEREAS, the Company has heretofore executed and delivered its Supplemental Indenture No. 7 dated as of January 1, 2006, 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 “5.15% Senior Notes, Series due January 15, 2016” and “5.75% Senior Notes, Series due January 15, 2036”; and

WHEREAS, the Company has heretofore executed and delivered its Supplemental Indenture No. 8 dated as of January 15, 2008, adding to the covenants, conditions and agreements of the Indenture certain additional covenants, conditions and agreements to be observed by the Company, and creating a series of Notes designated “6.45% Senior Notes, Series due February 1, 2038”; and

WHEREAS, Section 2.05 of the Indenture provides that Notes shall be issued in series and that a Company Order shall specify the terms of each series; and

WHEREAS, Boatmen’s First National Bank of Oklahoma was formerly the Trustee under the Indenture and NationsBank, N.A. succeeded Boatmen’s First National Bank of Oklahoma as Trustee pursuant to Section 9.13 of the Indenture, The Bank of New York subsequently succeeded Boatmen’s First National Bank of Oklahoma as Trustee pursuant to Section 9.13 of the Indenture and UMB Bank, N.A., has subsequently succeeded The Bank of New York as Trustee pursuant to Section 9.11 of the Indenture; and

WHEREAS, the Company has this day delivered a Company Order setting forth the terms of a series of Notes designated “[_____]% Senior Notes, Series due [__________]” (hereinafter sometimes referred to as the “Senior Notes due [_____]”); and

WHEREAS, Section 13.01 of the Indenture provides that the Company and the Trustee may enter into indentures supplemental thereto for the purposes, among others, of establishing the form of Notes or establishing or reflecting any terms of any Note and adding to the covenants of the Company; and

WHEREAS, the execution and delivery of this Supplemental Indenture No. __ (herein, “this Supplemental Indenture”) have been duly authorized by a resolution adopted by the Board of Directors of the Company;

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

That in order to set forth the terms and conditions upon which the Senior Notes due [_____] are, and are to be, authenticated, issued and delivered, and in consideration of the premises of the purchase and acceptance of the Senior Notes due [_____] by the Holders thereof and the sum of one dollar duly paid to it by the Trustee at the execution of this Supplemental Indenture, the receipt whereof is hereby acknowledged, the Company covenants and agrees with the Trustee for the equal and proportionate benefit of the respective Holders from time to time of the Senior Notes due [_____], as follows:

 

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ARTICLE ONE

RELATION TO INDENTURE; DEFINITIONS

(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 hereof, the principal amount of the Senior Notes due [____] shall be payable on the stated maturity date of [__________].

Section 2.03    The Senior Notes due [____] shall be dated their date of authentication as provided in the Indenture and shall bear interest from their date at the rate of [____]% per annum, payable semiannually on [________] and [________] of each year, commencing [________]. The Regular Record Dates with respect to such [________] and [________] interest payment dates shall be [________] and [________], respectively. Principal and interest shall be payable to the persons and in the manner provided in Sections 2.04 and 2.12 of the Indenture.

Section 2.04    The Senior Notes due [____] shall be payable at the corporate trust office of the Trustee and at the offices of such paying agents as the Company may appoint by Company Order in the future.

Section 2.05    [The Senior Notes due _____ shall not be redeemable prior to _____. On or after _____,] [the Company, at its option, may redeem on any date all or, from time to time, any part of the Senior Notes due [____], upon notice as provided in the Indenture, at a redemption price equal [Insert Redemption Terms, if applicable.]]

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

 

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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 participant of the Depository 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, and a statement that the option to elect repayment is being exercised thereby and that the participant shall deliver such form entitled “Option to Elect Repayment” on the Senior Note due          duly completed to 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 Release Date (as defined in the Indenture) occurred on April 6, 1998. Accordingly, the Senior Notes due [____] shall be issued as unsecured general obligations of the Company. The Senior Notes due [____], and all other Notes issued or to be issued under the Indenture, will not be secured by First Mortgage Bonds of the Company and will not be entitled to the lien of or the benefits provided by the First Mortgage, which has been extinguished.

Section 2.09    The Senior Notes due [____] shall initially be in the form attached as Exhibit A hereto.

ARTICLE THREE

MISCELLANEOUS

Section 3.01    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.

 

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Section 3.02    This Supplemental Indenture shall be construed in connection with and as a part of the Indenture.

(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)      &nbs