<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 4, 1999
FILE NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------------------------
<TABLE>
<S> <C> <C>
OGE ENERGY CORP. OKLAHOMA 73-1481638
OGE ENERGY CAPITAL TRUST I DELAWARE TO BE APPLIED FOR
OGE ENERGY CAPITAL TRUST DELAWARE TO BE APPLIED FOR
II
(Exact name of registrant (State or other (IRS Employer
as specified in its jurisdiction of Identification No.)
charter) incorporation or
organization)
</TABLE>
321 NORTH HARVEY, P.O. BOX 321
OKLAHOMA CITY, OKLAHOMA 73101-0321
(405) 553-3000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive office)
------------------------------
STEVEN E. MOORE
CHAIRMAN OF THE BOARD AND PRESIDENT
OGE ENERGY CORP.
321 NORTH HARVEY AVENUE
OKLAHOMA CITY, OKLAHOMA 73102
(405) 553-3000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------------
COPIES TO:
<TABLE>
<S> <C>
PETER D. CLARKE, ESQ. ROBERT YOLLES, ESQ.
GARDNER, CARTON & DOUGLAS JONES, DAY, REAVIS & POGUE
321 NORTH CLARK STREET, SUITE 3100 77 WEST WACKER DRIVE
CHICAGO, ILLINOIS 60610 CHICAGO, ILLINOIS 60601-1692
</TABLE>
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this registration statement.
------------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box: /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: / /
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED UNIT(1) PRICE(2)(3) REGISTRATION FEE
<S> <C> <C> <C> <C>
Junior Subordinated Debt Securities of OGE
Energy Corp.(4)...........................
Preferred Securities of the Trusts(5).......
Guarantees of Preferred Securities of the
Trusts and certain back-up
obligations(5)............................
Total....................................... $200,000,000 $200,000,000 $55,600
</TABLE>
(1) The proposed maximum offering price per unit will be determined from time to
time by the relevant Registrant in connection with the issuance by such
Registrant of the securities registered hereunder.
(2) The proposed maximum aggregate offering price has been estimated solely for
the purpose of calculating the registration fee pursuant to Rule 457 under
the Securities Act of 1933, as amended. The aggregate public offering price
of the Junior Subordinated Debt Securities of OGE Energy Corp. and the
Preferred Securities of the Trusts registered hereby will not exceed
$200,000,000.
(3) Exclusive of accrued interest, distributions and dividends, if any.
(4) There is being registered hereunder an indeterminate number of Preferred
Securities of OGE Energy Capital Trust I and OGE Energy Capital Trust II
(each a "Trust") and such indeterminate principal amount of Junior
Subordinated Debt Securities of OGE Energy Corp. as may from time to time be
issued at indeterminate prices. Junior Subordinated Debt Securities may be
issued and sold to any Trust, in which event such Junior Subordinated Debt
Securities may later be distributed to the holders of Preferred Securities
upon a dissolution of such Trust and the distribution of assets thereof.
(5) Includes the rights of holders of the Preferred Securities under any
Guarantees and certain back-up undertakings, comprised of the obligations of
OGE Energy Corp., to provide certain indemnities in respect of, and pay and
be responsible for certain costs, expenses, debts and liabilities of, each
Trust (other than with respect to the Preferred Securities) and such
obligations of OGE Energy Corp. as set forth in the Amended and Restated
Declaration of Trust of each Trust and the related Indenture, in each case
as further described in the Registration Statement. The Guarantees, when
taken together with OGE Energy Corp.'s obligations under the Junior
Subordinated Debt Securities, the related Indenture and the Amended and
Restated Declaration of Trust, will provide a full and unconditional
guarantee on a subordinated basis by OGE Energy Corp. of payments due on the
Preferred Securities. No separate consideration will be received for any
Guarantees or such back-up obligations.
------------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
Subject to Completion, Dated October 4, 1999
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED , 1999)
PREFERRED SECURITIES
OGE ENERGY CAPITAL TRUST I
% PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED, TO THE EXTENT SET FORTH HEREIN,
BY
OGE ENERGY CORP.
<TABLE>
<C> <S>
Maturity Date , 2039.
Issuer The trust that is issuing the preferred securities will have no assets other than
junior subordinated debt securities issued by OGE Energy. The junior subordinated
debt securities will have essentially the same terms as the preferred securities.
Therefore, the trust can only make payments on the preferred securities if OGE Energy
first makes payments on the junior subordinated debt securities.
Distributions Quarterly, beginning , 1999. May be postponed for one or more periods, each not
Payable exceeding five years, but not past the maturity date.
Redemption At OGE Energy's option at a price of $25 per share plus accrued and unpaid
distributions, on or after , 20 and at any time within 90 days after
specified changes in investment company or tax law.
Subordination The preferred securities are effectively subordinated to all senior indebtedness of
OGE Energy and all existing and future liabilities of its subsidiaries.
Listing Application will be made to trade the preferred securities on the New York Stock
Exchange under the ticker symbol .
</TABLE>
INVESTING IN THE PREFERRED SECURITIES INVOLVES RISKS. RISK FACTORS BEGIN ON
PAGE S-5 OF THIS PROSPECTUS SUPPLEMENT.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED THAT
THIS PROSPECTUS SUPPLEMENT OR THE ACCOMPANYING PROSPECTUS IS TRUTHFUL OR
COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
PER PREFERRED SECURITY TOTAL
------------------------- -------------
<S> <C> <C>
Public offering price...................................................... $ 25 $
Underwriting commissions to be paid by OGE Energy.......................... (1) (1)
Proceeds to the trust...................................................... $ 25 $
</TABLE>
- --------------------------
(1) Underwriting commissions of $0. per preferred security will be paid by OGE
Energy; except that for sales of preferred securities to certain
institutions the underwriting commission will be $0. per preferred
security.
The preferred securities are expected to be ready for delivery in book-entry
form only through the facilities of The Depository Trust Company on or about
, 1999.
LEHMAN BROTHERS
A.G. EDWARDS & SONS, INC.
CIBC WORLD MARKETS
MERRILL LYNCH & CO.
MORGAN STANLEY DEAN WITTER
PRUDENTIAL SECURITIES
The information in this prospectus supplement is not complete and may be
changed. OGE Energy Capital Trust I and OGE Energy Corp. may not sell these
securities until the registration statement filed with the Securities and
Exchange Commission is effective.
, 1999
<PAGE>
OGE ENERGY CORP.
OGE Energy is a public utility holding company, which was incorporated in
August 1995 in the State of Oklahoma. The Company serves as the parent company
to Oklahoma Gas and Electric Company, which operates under the trade name OG&E
Electric Services, and Enogex Inc. and any other companies that may be formed
within the organization in the future.
The Company's principal subsidiary is OG&E and, accordingly, the Company's
financial results and condition are substantially dependent at this time on the
financial results and condition of OG&E. OG&E is a regulated public utility
engaged in the generation, transmission and distribution of electricity to
retail and wholesale customers. OG&E was incorporated in 1902 under the laws of
the Oklahoma Territory and is the largest electric utility in the State of
Oklahoma. OG&E sold its retail gas business in 1928 and now owns and operates an
interconnected electric production, transmission and distribution system which
includes eight active generating stations with a total capability of 5,561,180
kilowatts.
Enogex, with the completion of the Transok acquisition described below, owns
and operates approximately 9,700 miles of natural gas transmission and gathering
pipelines, has interests in fifteen gas processing plants, markets electricity,
natural gas and natural gas products and invests in the drilling for and
production of crude oil and natural gas.
Enogex completed its acquisition of Tejas Transok Holding, L.L.C., a
gatherer, processor, and transporter of natural gas in Oklahoma and Texas on
July 1, 1999. Transok's principal assets included approximately 4,900 miles of
natural gas pipelines in Oklahoma and Texas with a capacity of approximately 1.2
billion cubic feet per day and 18 billion cubic feet of underground gas storage.
Transok also owned 9 gas processing plants, which produced approximately 25,000
barrels per day of natural gas liquids in 1998. Enogex purchased Transok from
Tejas Energy L.L.C. of Houston, an affiliate of Shell Oil Company, for
approximately $710.3 million, which included assumption of $173 million of
long-term debt.
OGE Energy's principal executive office is at 321 North Harvey Avenue, P.O.
Box 321, Oklahoma City, Oklahoma 73101-0321, and its telephone number is (405)
553-3000.
S-2
<PAGE>
SELECTED FINANCIAL DATA
<TABLE>
<CAPTION>
6 MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30, 1999
----------------------------------------------------- 1998 PRO ------------------------
1994 1995 1996 1997 1998 FORMA(1) ACTUAL PRO FORMA(1)
--------- --------- --------- --------- --------- ------------- --------- -------------
($ MILLIONS EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Operating revenues............... $ 1,355.2 $ 1,302.0 $ 1,387.4 $ 1,443.6 $ 1,617.7 $ 2,088.5 $ 829.1 $ 1,080.3
Pre-tax operating income(2)...... 272.5 271.0 279.4 268.5 339.5 329.1 107.2 122.4
Earnings available for common
stock(3)....................... 121.5 122.9 131.0 130.3 165.1 132.0 48.9 44.6
Basic earnings per weighted
average common share........... 1.50 1.52 1.62 1.61 2.04 1.63 0.63 0.57
Dividend declared per share...... 1.33 1.33 1.33 1.33 1.33 1.33 0.67 0.67
Common stock and retained
earnings(4).................... 921.2 937.5 961.6 985.0 1,043.4 1,043.4 962.6 962.6
Preferred stock(4)............... 50.0 49.9 49.4 49.3 0.0 0.0 0.0 0.0
Long-term debt (excluding amount
due within one year)(4)........ 730.6 843.9 829.3 841.9 935.6 1,108.6 934.7 1,107.7
</TABLE>
- ------------------------
(1) Pro forma to give effect to the July 1, 1999 acquisition of Tejas Transok
Holding, L.L.C. and its subsidiaries by Enogex. The pro forma income
statement data gives effect to the acquisition as if it had occurred at the
beginning of the period presented. The pro forma balance sheet data at June
30, 1999 gives effect to the acquisition as if it had occurred at June 30,
1999. The pro forma balance sheet data at December 31, 1998 gives effect to
the transaction as if it had occurred at December 31, 1998. The pro forma
information does not give effect to the proceeds of this offering.
(2) Pre-tax operating income is operating revenues less the aggregate of fuel
costs, purchased power and gas, electricity purchased for resale, other
operation and maintenance expenses, depreciation and amortization and taxes
other than income taxes.
(3) Net income less preferred stock dividends.
(4) End of period.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------------------------------- 1998 PRO
1994 1995 1996 1997 1998 FORMA
--------- --------- --------- --------- --------- -------------
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges................. 3.57 3.46 4.04 4.09 4.80 2.90
<CAPTION>
6 MONTHS ENDED
JUNE 30, 1999
--------------------------
ACTUAL PRO FORMA
----------- -------------
<S> <C> <C>
Ratio of Earnings to Fixed Charges................. 4.47 2.08
</TABLE>
In computing the ratios, "earnings" consist of earnings from continuing
operations before income taxes, investment tax credit (net) and fixed charges;
"fixed charges" consist principally of interest expense and a calculated portion
of office rentals which is deemed to be representative of the interest factor.
The pro forma ratio of earnings to fixed charges for the year ended December 31,
1998 gives effect to the acquisition of Tejas Transok Holding, L.L.C. as if it
had occurred at January 1, 1998. The pro forma ratio of earnings to fixed
charges for the 6 months ended June 30, 1999 gives effect to the acquisition as
if it had occurred January 1, 1999.
S-3
<PAGE>
The annual interest requirements on the long-term debt of OGE Energy
outstanding at June 30, 1999, were approximately $60.0 million.
USE OF PROCEEDS
All of the net proceeds from the sale of the preferred securities will be
invested by the trust in junior subordinated debt securities of OGE Energy. OGE
Energy will use the proceeds from the sale of the junior subordinated debt
securities to the trust for general corporate purposes, primarily to repay
outstanding short-term borrowings incurred in connection with Enogex's
acquisition of the Transok pipeline. Short-term borrowings aggregated $791.1
million as of August 31, 1999 and had a weighted average interest rate of 5.51%.
ACCOUNTING TREATMENT
The financial statements of the trust will be reflected in OGE Energy's
consolidated financial statements, with the preferred securities reflected on
OGE Energy's balance sheet as a separate line item after total liabilities and
before stockholders' equity, similar to a minority interest.
OGE ENERGY CAPITAL TRUST I
OGE Energy Capital Trust I is a statutory business trust organized under
Delaware law. OGE Energy established this trust by (1) filing a certificate of
trust with the Secretary of State of Delaware on September 29, 1999, and (2)
executing a declaration of trust, which was also signed by the property trustee
and the Delaware trustee.
The trust is being established for the following purposes only:
- to issue and sell its common and preferred securities;
- to use the proceeds from the sale of the common and preferred securities
to acquire the junior subordinated debt securities of OGE Energy issued
under the subordinated indenture; and
- to engage in activities that are directly related to these activities,
such as registering the transfer of the preferred securities.
OGE Energy will acquire all of the common securities, which will have a
total liquidation amount equal to at least 3% of the total capital of the trust.
The trust's business and affairs are conducted by its trustees, which are
Wilmington Trust Company, as Delaware trustee, and two regular trustees. The
regular trustees are employees of OGE Energy. Wilmington Trust Company will also
act as trustee under the guarantee agreement relating to the preferred
securities.
OGE Energy has the right to appoint, remove and replace the trustees of the
trust. If an event of default occurs under the subordinated indenture, the
holders of a majority in liquidation amount of the preferred securities will
also have this right.
OGE Energy, as issuer of the junior subordinated debt securities, will pay
all fees and expenses related to the trust and the offering of the preferred
securities. OGE Energy will also pay all ongoing costs, expenses and liabilities
of the trust, except obligations to make distributions and other payments on the
common and preferred securities.
For additional information concerning the trust, see "Summary Information
Q&A" beginning on page 2 in the accompanying prospectus.
OGE Energy and the trust anticipate that the trust will not be required to
make any filings with the Securities and Exchange Commission.
S-4
<PAGE>
RISK FACTORS
Your investment in the preferred securities will involve several risks. You
should carefully consider the following discussion of risks, and the other
information in this prospectus supplement and the accompanying prospectus,
before deciding whether an investment in the preferred securities is suitable
for you.
OGE ENERGY IS NOT REQUIRED TO PAY YOU UNDER THE GUARANTEE AND THE JUNIOR
SUBORDINATED DEBT SECURITIES UNLESS IT FIRST MAKES OTHER REQUIRED PAYMENTS.
OGE Energy's obligations under the junior subordinated debt securities will
rank junior to all of OGE Energy's senior debt as described on page 13 of the
accompanying prospectus. This means that OGE Energy cannot make any payments on
the junior subordinated debt securities if it defaults on a payment of senior
debt and does not cure the default within the applicable grace period or if the
senior debt becomes immediately due because of a default and has not yet been
paid in full. At August 31, 1999, OGE Energy's senior debt for these purposes
aggregated about $791.6 million. In addition, OGE Energy's obligations under the
junior subordinated debt securities will be effectively subordinated to all
existing and future liabilities of OGE Energy's subsidiaries. At August 31,
1999, approximately $2.108 billion of obligations of OGE Energy's subsidiaries
not included in OGE Energy's senior indebtedness was outstanding.
OGE Energy's obligations under the guarantee are subordinated to all of its
other liabilities as described on page 18 of the accompanying prospectus. This
means that OGE Energy cannot make any payments on the guarantee if it defaults
on a payment on any of its other liabilities. In addition, in the event of the
bankruptcy, liquidation or dissolution of OGE Energy, its assets would be
available to pay obligations under the guarantee only after OGE Energy made all
payments on its other liabilities.
Neither the preferred securities, the junior subordinated debt securities
nor the guarantee limit the ability of OGE Energy and its subsidiaries to incur
additional indebtedness or other liabilities, including indebtedness that ranks
senior in priority of payment to the junior subordinated debt securities and the
guarantee. See "Description of the Guarantee--Status of the Guarantee" on page
19 and "Description of the Junior Subordinated Debt Securities--Subordination"
on page 13, of the accompanying prospectus.
OGE ENERGY IS NOT REQUIRED TO PAY YOU UNDER THE GUARANTEE IF THE TRUST DOES NOT
HAVE CASH AVAILABLE.
The ability of the trust to make payments on the preferred securities is
solely dependent upon OGE Energy making the related payments on the junior
subordinated debt securities to the trust, as owner of the junior subordinated
debt securities, when due.
If OGE Energy defaults on its obligations to make payments on the junior
subordinated debt securities, the trust will not have sufficient funds to make
payments on the preferred securities. In those circumstances, you will not be
able to rely upon the guarantee for payment of these amounts.
DEFERRAL OF DISTRIBUTIONS WOULD HAVE ADVERSE TAX CONSEQUENCES FOR YOU AND MAY
ADVERSELY AFFECT THE TRADING PRICE OF THE PREFERRED SECURITIES.
If distributions on the preferred securities are deferred, you will
nonetheless be required to recognize interest income for United States federal
income tax purposes in the form of original issue discount of your ratable share
of the accrued but unpaid interest on the junior subordinated debt securities
held by the trust before you receive any cash distributions relating to this
interest even though you may use the cash method of accounting. In addition, you
will not receive these cash distributions if you sell the preferred securities
before the end of any deferral period or before the record date for
distributions which are paid.
OGE Energy has no current intention of deferring interest payments on the
junior subordinated debt securities and believes that deferral is a remote
possibility. However, if OGE Energy exercises its right in
S-5
<PAGE>
the future, the preferred securities may trade at a price that does not fully
reflect the value of accrued but unpaid interest on the junior subordinated debt
securities. If you sell the preferred securities during an interest deferral
period, you may not receive the same return on investment as someone else who
continues to hold the preferred securities. In addition, the existence of OGE
Energy's right to defer payments of interest on the junior subordinated debt
securities may mean that the market price for the preferred securities, which
represent undivided beneficial interests in the junior subordinated debt
securities, may be more volatile than other securities that do not have these
rights.
See "United States Federal Income Tax Consequences" on page 23 of the
accompanying prospectus for more information regarding the tax consequences of
purchasing, holding and selling the preferred securities.
YOU SHOULD NOT RELY ON RECEIVING DISTRIBUTIONS FROM THE PREFERRED SECURITIES
THROUGH THEIR MATURITY DATE--THEY MAY BE REDEEMED AT ANY TIME IF SPECIFIED
CHANGES IN TAX OR INVESTMENT COMPANY LAW OCCUR AND THEY MAY BE REDEEMED AT THE
OPTION OF OGE ENERGY.
If specified changes, which are more fully described in the accompanying
prospectus, in tax or investment company law occur and specified other
conditions which are more fully described in the accompanying prospectus are
satisfied, all, but not less than all, of the preferred securities could be
redeemed at any time by the trust at a redemption price equal to their aggregate
liquidation price plus any accrued and unpaid distributions. See "Description of
the Preferred Securities--Distribution of the Junior Subordinated Debt
Securities" on page 9 and "--Special Event Redemption" on page 8 of the
accompanying prospectus.
The preferred securities may be redeemed, in whole, at any time, or in part,
from time to time, at the direction of OGE Energy on or after the date specified
on the cover page of this prospectus supplement, at a redemption price equal to
their aggregate liquidation price plus any accrued and unpaid distributions. You
should assume that this redemption option will be exercised if OGE Energy is
able to refinance the junior subordinated debt securities at a lower interest
rate or it is otherwise in the interest of OGE Energy to redeem the junior
subordinated debt securities. If the junior subordinated debt securities are
redeemed in part, the trust must redeem the preferred securities in an aggregate
liquidation amount equal to the aggregate principal amount of junior
subordinated debt securities to be redeemed. See "Description of the Preferred
Securities--Redemption" on page 7 and "Description of the Junior Subordinated
Debt Securities--Redemption" on page 14 of the accompanying prospectus.
THERE CAN BE NO ASSURANCE AS TO THE MARKET PRICES FOR THE PREFERRED SECURITIES
OR THE JUNIOR SUBORDINATED DEBT SECURITIES; THEREFORE, YOU MAY SUFFER A LOSS.
OGE Energy cannot give you any assurance as to the market prices for the
preferred securities or the junior subordinated debt securities that may be
distributed in exchange for preferred securities. Accordingly, the preferred
securities that an investor may purchase, whether pursuant to the offer made by
this prospectus supplement and the accompanying prospectus or in the secondary
market, or the junior subordinated debt securities that a holder of preferred
securities may receive in exchange for preferred securities, may trade at a
discount to the price that the investor paid to purchase the preferred
securities. As a result of the right to defer payments on the preferred
securities, the market price of the preferred securities may be more volatile
than the market prices of other securities to which optional deferrals do not
apply.
THERE COULD BE AN ADVERSE TAX CONSEQUENCE TO YOU IF OGE ENERGY TERMINATES THE
TRUST AND DISTRIBUTES JUNIOR SUBORDINATED DEBT SECURITIES TO HOLDERS, RESULTING
IN POSSIBLE TAX AND LIQUIDITY CONSEQUENCES TO YOU.
OGE Energy has the right to terminate the trust at any time. If OGE Energy
decides to exercise this right, the trust will be liquidated by distributing
junior subordinated debt securities to holders of the common and preferred
securities on a proportionate basis.
S-6
<PAGE>
Under current United States federal income tax law, a distribution of junior
subordinated debt securities to you on the dissolution of the trust should not
be a taxable event to you. However, if the trust is characterized for United
States federal income tax purposes as an association taxable as a corporation at
the time it is dissolved or if there is a change in law, the distribution of
junior subordinated debt securities to you may be a taxable event to you.
SINCE YOU HAVE LIMITED VOTING RIGHTS, YOU CANNOT PREVENT THE TRUST TRUSTEES FROM
TAKING ACTIONS YOU MAY NOT AGREE WITH.
You will have limited voting rights. In particular, except for the limited
exceptions described in the accompanying prospectus, only OGE Energy can elect
or remove any of the trustees. See "Description of the Preferred
Securities--Voting Rights; Control of Remedies" on page 9 of the accompanying
prospectus.
YOU MAY NOT BE ABLE TO DIRECTLY ENFORCE RIGHTS AGAINST OGE ENERGY IF AN EVENT OF
DEFAULT OCCURS.
You may have to rely on the property trustee under the trust agreement of
OGE Energy Capital Trust I to enforce your rights if an event of default under
the subordinated indenture occurs.
If an event of default under the subordinated indenture occurs and is
continuing, that will also be an event of default under the preferred
securities. In that case, the holders of the preferred securities would have to
rely on the enforcement against OGE Energy by the property trustee of its rights
as holder of the junior subordinated debt securities. The holders of at least
25% in liquidation amount of the preferred securities will have the right to
direct the property trustee to enforce its rights. However, if the property
trustee does not enforce its rights any record holder would then, to the extent
permitted by applicable law, have to take action directly against OGE Energy to
enforce the property trustee's rights. In addition, if an event of default under
the preferred securities occurs that is attributable to OGE Energy's failure to
pay interest or principal on the junior subordinated debentures, a record holder
of the preferred securities may proceed directly against OGE Energy. The holders
of preferred securities will not be able to exercise directly any other remedies
available to the holders of the junior subordinated debt securities unless the
property trustee fails to do so.
S-7
<PAGE>
DESCRIPTION OF SECURITIES
This prospectus supplement summarizes the specific terms and provisions of
the preferred securities, the junior subordinated debt securities and the
guarantee, and supplements the general description of the terms and provisions
of these securities in the accompanying prospectus. These summaries are not
meant to be complete descriptions of each security. However, this prospectus
supplement and the accompanying prospectus do contain the material terms and
conditions of each security.
CERTAIN TERMS OF THE PREFERRED SECURITIES
DISTRIBUTIONS
The preferred securities represent undivided beneficial ownership interests
in the assets of the trust. The only assets of the trust will be the junior
subordinated debt securities. Distributions on the preferred securities are
cumulative and will accrue from the date the preferred securities are first
issued at the annual rate of %. Distributions will be payable quarterly in
arrears on March 31, June 30, September 30 and December 31 of each year,
beginning , . Distributions will be payable to the holders named on the
securities register of the trust at the close of business on the relevant record
dates, as described under "Description of the Preferred
Securities--Distributions-- Payment of Distributions" on page 7 of the
accompanying prospectus. Distributions not paid when due will accumulate
additional distributions, at the annual rate of % on the amount of unpaid
distributions, compounded quarterly. When this prospectus supplement or the
accompanying prospectus refers to any payment of distributions, the term
"distributions" includes any additional distributions. The amount of
distributions payable for any period will be computed on the basis of a 360-day
year comprised of twelve 30-day months. The amount of distributions payable for
any period shorter than a full quarterly period will be computed on the basis of
a 30-day month and, for periods of less than a month, the actual number of days
elapsed per 30-day month.
If distributions are payable on a date that is not a business day, as
defined at the end of this paragraph, payment will be made on the next business
day without any interest or other payment resulting from the delay. However, if
the next business day is in the next calendar year, payment of distributions
will be made on the preceding business day. A "business day" means each day
except Saturday, Sunday and any day on which banking institutions in The City of
New York are authorized or required by law to close.
Distributions on the preferred securities will only be paid if the trust has
sufficient funds available to make the payments. The income of the trust
available for the payment of distributions will be limited to payments made by
OGE Energy to the trust, as owner of the junior subordinated debt securities.
DEFERRAL OF DISTRIBUTIONS
OGE Energy may defer interest payments on the junior subordinated debt
securities from time-to-time for one or more periods, each up to five years, but
not beyond the maturity date. If there were a deferral, distributions on the
preferred securities will also be deferred. See "Description of the Preferred
Securities--Distributions--Deferral of Distributions" beginning on page 6 of the
accompanying prospectus for further details.
OGE Energy does not currently intend to defer interest payments on the
junior subordinated debt securities. However, if OGE Energy does defer interest
payments, it will be subject to restrictions relating to the payment of
dividends on, or purchases of, its capital stock and payments on its debt
securities that rank equal with or junior to the junior subordinated debt
securities. See "Description of the Junior Subordinated Debt Securities--Option
to Defer Interest Payments" on page 15 of the accompanying prospectus for
further details.
S-8
<PAGE>
If OGE Energy chooses to defer payments of interest on the junior
subordinated debt securities, the junior subordinated debt securities would at
that time be treated as having been reissued with original issue discount for
United States federal income tax purposes. This means you will be required to
include accrued interest income in gross income for United States federal income
tax purposes in the form of original issue discount before you receive cash
distributions even though you may use the cash method of accounting. This
treatment will apply as long as you own preferred securities. See "United States
Federal Income Tax Consequences--Interest Income and Original Issue Discount"
beginning on page 24 of the accompanying prospectus.
REDEMPTION
OGE Energy may redeem the junior subordinated debt securities before their
maturity:
- in whole or in part on one or more occasions any time on or after
, 20 ; and
- in whole at any time, if specified changes in tax or investment company
law occur as described more fully under "Description of the Preferred
Securities--Special Event Redemption" on page 8 of the accompanying
prospectus).
When OGE Energy makes a payment on the junior subordinated debt securities,
either at maturity on , 20 or upon early redemption in whole or in
part, the trust will use the cash it receives to pay at maturity or redeem a
liquidation amount of the preferred and common securities equal to the principal
amount of junior subordinated debt securities paid. The redemption price for the
junior subordinated debt securities is 100% of their principal amount plus
accrued and unpaid interest.
If less than all the preferred and common securities are redeemed, the
aggregate liquidation amount of preferred and common securities to be redeemed
will be allocated proportionately among the preferred and common securities,
subject to the exceptions described under "--Subordination of Common Securities"
on page S-10. The preferred securities to be redeemed will be selected by the
property trustee on a basis that it deems to be fair and appropriate, including
by lot.
REDEMPTION PROCEDURES
To the extent funds are available for payment, the trust will irrevocably
deposit with DTC sufficient funds to pay the redemption amount for the preferred
securities being redeemed. The trust will also give DTC irrevocable instructions
and authority to pay the redemption amount to the preferred securities holders.
Any distribution to be paid on or before a redemption date for any preferred
securities called for redemption will be payable to the registered holders on
the record date for the distribution.
OPTIONAL LIQUIDATION OF THE TRUST AND DISTRIBUTION OF JUNIOR SUBORDINATED DEBT
SECURITIES
OGE Energy may dissolve the trust at any time, and after paying the
creditors of the trust may cause the junior subordinated debt securities to be
distributed to the holders of the preferred securities in exchange for the
preferred securities.
Assuming that the trust is not taxable as a corporation, a distribution of
junior subordinated debt securities upon a liquidation of the trust would not be
a taxable event to holders of the preferred securities. If, however, the trust
were subject to United Stated federal income tax for income accrued or received
on the junior subordinated debt securities, the distribution of junior
subordinated debt securities by the trust would be a taxable event to the trust
and you.
If OGE Energy elects to dissolve the trust and causes the junior
subordinated debt securities to be distributed to the holders of the preferred
securities in exchange for the preferred securities, OGE Energy will continue to
have the right to redeem the junior subordinated debt securities as described
S-9
<PAGE>
under "Description of the Junior Subordinated Debt Securities--Redemption" on
page 14 of the accompanying prospectus for more information.
SUBORDINATION OF COMMON SECURITIES
Payment of distributions or any redemption or liquidation amounts regarding
the preferred and common securities will be made proportionately based on the
aggregate liquidation amounts of the preferred and common securities. However,
if OGE Energy is in default under the subordinated indenture, no payments may be
made on the common securities until all unpaid amounts on the preferred
securities have been provided for or paid in full.
MERGERS, CONSOLIDATIONS OR AMALGAMATIONS
OGE Energy Capital Trust I may not consolidate, amalgamate, merge with or
into, or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described below. OGE Energy Capital Trust I may at the request of OGE Energy,
with the consent of the property trustee and without the consent of the holders
of the trust securities, the property trustee or the Delaware trustee,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to a
trust organized as such under the laws of any state; provided, that:
- the successor entity either (1) expressly assumes all of the obligations
of OGE Energy Capital Trust I with respect to the preferred securities, or
(2) substitutes for the preferred securities successor securities having
substantially the same terms as the preferred securities, so long as the
successor securities rank the same as the preferred securities rank in
priority with respect to distributions and payments upon liquidation,
redemption and otherwise;
- OGE Energy expressly appoints a trustee of the successor entity possessing
the same powers and duties as the property trustee as the holder of the
junior subordinated debt securities;
- the successor securities are listed or traded, or they will be listed upon
notification of issuance, on any national securities exchange or other
organization on which the preferred securities are then listed or traded;
- the transaction does not cause the preferred securities or the successor
securities to be downgraded by a nationally recognized statistical rating
organization;
- the transaction does not adversely affect the rights, preferences and
privileges of the holders of the preferred securities or the successor
securities in any material respect;
- the successor entity has a purpose substantially identical to that of OGE
Energy Capital Trust I;
- prior to the transaction, OGE Energy has received an opinion of counsel to
the effect that (1) the transaction does not adversely affect the rights,
preferences and privileges of the holders of the preferred securities or
any successor securities in any material respect, and (2) following the
transaction neither OGE Energy Capital Trust I nor the successor entity
will be required to register as an "investment company" under the
Investment Company Act; and
- OGE Energy owns all the common securities of the successor entity and
guarantees the obligations of the successor entity under the successor
securities at least to the extent provided by the preferred securities
guarantee.
Notwithstanding the foregoing, OGE Energy Capital Trust I may not, except with
the consent of holders of all of the preferred securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or lease
its properties and assets substantially as an entirety to any other entity or
permit any other entity to consolidate, amalgamate, merge with or into, or
replace it unless OGE
S-10
<PAGE>
Energy Capital Trust I obtains a tax opinion to the effect that the transaction
would not cause OGE Energy Capital Trust I or the successor entity to be
classified as other than a grantor trust for United States federal income tax
purposes.
Any corporation or other body into which either the property trustee or the
Delaware trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation or any corporation succeeding to all or substantially all the
corporate trust business of either trustee, will be the successor of that
trustee under the trust agreement, provided the resulting or surviving entity is
otherwise qualified and eligible under the trust agreement.
CERTIFICATED SECURITIES--REGISTRATION, TRANSFER AND PAYMENT
If the trust issues certificated securities, each one will be registered in
the name of the relevant security holder. The preferred securities may be
transferred or exchanged without the payment of any service charge, other than
any tax or other governmental charge, by contacting the property trustee,
Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-0001 Attention: Corporate Trust Administration.
Distribution payments on certificated preferred securities will be made by
check. Payment of the redemption price or liquidation amount will be made in
immediately available funds when you surrender a preferred security.
CERTAIN TERMS OF THE JUNIOR SUBORDINATED DEBT SECURITIES
The junior subordinated debt securities will be issued under the
subordinated indenture.
The preferred securities, the junior subordinated debt securities and the
guarantee do not limit the ability of OGE Energy and its subsidiaries to incur
additional indebtedness or other liabilities, including indebtedness that ranks
senior in priority of payment to the subordinated debentures and the guarantee.
At August 31, 1999, approximately $791.6 million of senior debt of OGE Energy
was outstanding. In addition, the junior subordinated debt securities will be
effectively subordinated to all existing and future obligations of OGE Energy's
subsidiaries. At August 31, 1999, approximately $2.108 billion of obligations of
OGE Energy's subsidiaries not included in OGE Energy's senior indebtedness was
outstanding.
The junior subordinated debt securities may be redeemed by OGE Energy as
described above under "Certain Terms of the Preferred Securities--Redemption".
INTEREST RATE AND MATURITY
The junior subordinated debt securities will mature on , 20 and
will bear interest at the annual rate of %, payable quarterly in arrears on
March 31, June 30, September 30 and December 31 of each year, beginning
, . Interest payments not paid when due will accrue additional
interest at the annual rate of % on the amount of unpaid interest, to the
extent permitted by law, compounded quarterly. The interest payment provisions
of the junior subordinated debt securities correspond to the distribution
provisions of the preferred securities. The junior subordinated debt securities
do not have a sinking fund. This means that OGE Energy is not required to make
any principal payments on the junior subordinated debt securities prior to
maturity.
DISTRIBUTION OF JUNIOR SUBORDINATED DEBT SECURITIES
If the property trustee distributes the junior subordinated debt securities
to the preferred and common securities holders upon the dissolution and
liquidation of the trust, the junior subordinated debt securities will be issued
in denominations of $25 principal amount and integral multiples thereof. OGE
Energy anticipates that the junior subordinated debt securities would be
distributed in the form of one or
S-11
<PAGE>
more global securities, and DTC, or any successor depositary for the preferred
securities, would act as depositary for the junior subordinated debt securities.
The depositary arrangements for the junior subordinated debt securities would be
substantially similar to those in effect for the preferred securities.
For a description of DTC and the terms of the depositary arrangements
relating to payments, transfers, voting rights, redemption and other notices and
other matters, see "Description of the Preferred Securities--Book-Entry Only
Issuance--The Depository Trust Company" beginning on page 11 of the accompanying
prospectus.
OPTION TO DEFER INTEREST PAYMENTS
OGE Energy does not currently intend to defer interest payments on the
junior subordinated debt securities. If, however, OGE Energy does decide to
defer interest payments, it could do so from time to time. No particular
deferral period may exceed five years or extend beyond maturity.
During a deferral period, interest will continue to accrue on the junior
subordinated debt securities, compounded quarterly, and deferred interest
payments will accrue additional interest. No interest will be due and payable on
the junior subordinated debt securities until the end of the deferral period
except upon a redemption of the junior subordinated debt securities during a
deferral period.
OGE Energy may pay at any time all or any portion of the interest accrued to
that point during a deferral period.
Once OGE Energy makes all interest payments on the junior subordinated debt
securities, including accrued and unpaid interest, it can again defer interest
payments on the junior subordinated debt securities for a period of up to five
years as described above.
See "Description of the Junior Subordinated Debt Securities--Option to Defer
Interest Payments" beginning on page 15 of the accompanying prospectus.
S-12
<PAGE>
BOOK-ENTRY ISSUANCE
The preferred securities will be represented by one or more global
securities that will be deposited with and registered in the name of DTC or its
nominee. This means that the trust will not issue certificates to you for the
preferred securities. See "Description of the Preferred Securities-- Book-Entry
Only Issuance--The Depository Trust Company" beginning on page 11 of the
accompanying prospectus.
EUROCLEAR AND CEDELBANK
Links have been established among DTC, Cedelbank and Euroclear, to
facilitate the initial issuance of the preferred securities and cross-market
transfers of the preferred securities associated with secondary market trading.
Although DTC, Cedelbank and Euroclear have agreed to the procedures provided
below in order to facilitate transfers of the preferred securities among their
participants, they are under no obligation to perform or continue to perform
those procedures and those procedures may be modified or discontinued at any
time. Cedelbank and Euroclear will hold interests on behalf of their
participants through customers' securities accounts in Cedelbank's and
Euroclear's names on the books of their respective depositaries, which in turn
will hold those interests in customers' securities accounts in the depositories'
names on the books of DTC.
When preferred securities are to be transferred from the account of a DTC
participant to the account of a Cedelbank participant or a Euroclear
participant, the purchaser must send instructions to Cedelbank or Euroclear
through a participant at least one business day prior to settlement. Cedelbank
or Euroclear, as the case may be, will instruct the relevant U.S. depositary to
receive the preferred securities against payment. Payment will then be made by
that U.S. depositary to the DTC participant's account against delivery of the
preferred securities. After settlement has been completed, the preferred
securities will be credited to the respective clearing system and by the
clearing system, in accordance with its usual procedures, to the Cedelbank
participant's or Euroclear participant's account. Credit for the preferred
securities will appear in European time on the next day.
Because the settlement is taking place during New York business hours, DTC
participants can employ their usual procedures for sending preferred securities
to the relevant U.S. depositary for the benefit of Cedelbank participants or
Euroclear participants. The sale proceeds will be available to the DTC seller on
the settlement date. Thus, to the DTC participant, a cross market transaction
will settle no differently than a trade between two DTC participants.
Due to time zone differences in their favor, Cedelbank participants or
Euroclear participants may employ their customary procedures for transactions in
which preferred securities are to be transferred by the respective clearing
system through the relevant U.S. depositary to another DTC participant. The
seller must send instructions to Cedelbank or Euroclear through a participant at
least one business day prior to settlement. In these cases, Cedelbank or
Euroclear will instruct its U.S. depositary to credit the preferred securities
to the DTC participant's account against payment. The payment will then be
reflected in the account of the Cedelbank participant or Euroclear participant
the following day, and receipt of the cash proceeds in the Cedelbank
participant's or Euroclear participant's account will be back-valued to the
value date (which would be the preceding day, when settlement occurs in New
York). If the Cedelbank participant or Euroclear participant has a line of
credit with its respective clearing system and elects to draw on that line of
credit in anticipation of receipt of the sale proceeds in its account, the
back-valuation may substantially reduce or offset any overdraft charges incurred
over the one-day period. If settlement is not completed on the intended value
date (that is, the trade fails), receipt of the cash proceeds in the Cedelbank
participant's or Euroclear participant's account would instead be valued as of
the actual settlement date.
S-13
<PAGE>
UNDERWRITING
Subject to the terms and conditions set forth in the form of underwriting
agreement which was filed as an exhibit to the registration statement under
which the preferred securities are being offered and sold, the trust has agreed
to sell to each of the underwriters named below, the number of preferred
securities set forth opposite its name below:
<TABLE>
<CAPTION>
PREFERRED
SECURITIES
------------------
<S> <C>
Lehman Brothers Inc....................................................... $
A.G. Edwards & Sons, Inc..................................................
CIBC World Markets Corp...................................................
Merrill Lynch, Pierce, Fenner & Smith
Incorporated...................................................
Morgan Stanley Dean Witter................................................
Prudential Securities Incorporated........................................
--------
--------
--------
</TABLE>
The underwriters have advised the trust that they propose to initially offer
the preferred securities to the public at the public offering price of $25 per
preferred security; they may also offer preferred securities to dealers at that
price less a concession not in excess of $0. per preferred security or $0. per
preferred security with respect to some institutions. The underwriters may
allow, and those dealers may reallow a concession not in excess of $0. per
preferred security to some other dealers. After the initial public offering of
the preferred securities is completed, the public offering price and such
concessions may be changed.
Because the proceeds from the sale of the preferred securities will be used
to purchase the subordinated debentures, OGE Energy has agreed to pay to the
underwriters an underwriting commission of $ per preferred security (a total
of $ ); except that for sales of preferred securities to specified
institutions the underwriting commission will be $0. per preferred security.
Therefore, to the extent of those sales, the actual amount of commission will be
less than the aggregate amount specified in the preceding sentence.
OGE Energy will pay specified expenses, expected to be approximately
$ , associated with the offer and sale of the preferred securities.
OGE Energy has agreed to indemnify the underwriters against specified
liabilities, including liabilities under the Securities Act of 1933.
In connection with the offering, the rules of the SEC permit the
underwriters to engage in specified transactions that stabilize the price of the
preferred securities. These transactions may consist of bids or purchases for
the purpose of pegging, fixing or maintaining the price of the preferred
securities. If the underwriters create a short position in the preferred
securities in connection with the offering (that is, if they sell a larger
number of the preferred securities than is set forth on the cover page of this
prospectus supplement), the underwriters may reduce that short position by
purchasing preferred securities in the open market.
In general, purchases of a security for the purpose of stabilization or to
reduce a syndicate short position could cause the price of the security to be
higher than it might otherwise be in the absence of those purchases. Neither the
trust nor any of the underwriters makes any representation or prediction as to
the direction or magnitude of any effect that the transactions described above
may have on the price of the preferred securities. In addition, neither the
trust nor any of the underwriters makes any representation that the underwriters
will in fact engage in those transactions, or that those transactions, once
begun, will not be discontinued without notice.
S-14
<PAGE>
NEW YORK STOCK EXCHANGE LISTING
Before this offering, there has been no established public trading market
for the preferred securities. Application will be made to list the preferred
securities on the NYSE. If listed, trading of the preferred securities is
expected to begin within 30 days of the issuance of the preferred securities. In
order to meet all of the requirements for listing the preferred securities on
the NYSE, the underwriters have agreed to sell the preferred securities to a
minimum of 400 beneficial holders. The underwriters have advised OGE Energy that
they intend to make a market in the preferred securities prior to the
commencement of trading on the NYSE. However, the underwriters are not obligated
to do so and may discontinue market making at any time without notice. No
assurance can be given about the liquidity of the trading market for the
preferred securities.
NO SALES OF SIMILAR SECURITIES
OGE Energy and the trust have agreed that for 30 business days after the
date of this prospectus supplement they will not directly or indirectly offer,
sell, offer to sell, grant any option for the sale of or otherwise dispose of
any preferred securities or junior subordinated debt securities or any
securities convertible or exchangeable into, or exercisable for preferred
securities or junior subordinated debt securities or any debt securities
substantially similar to junior subordinated debt securities or any equity
securities substantially similar to the preferred securities, except for the
preferred securities and junior subordinated debt securities described in this
prospectus supplement, without the prior written consent of Lehman Brothers Inc.
Some of the underwriters are affiliated with commercial banking institutions
that may from time to time in the ordinary course of their businesses loan money
to and have customary banking relationships with OGE Energy and its affiliates.
CONFIRMATION TO DISCRETIONARY ACCOUNTS NOT PERMITTED
The underwriters may not confirm sales to any account over which they
exercise discretionary authority without the prior written approval of the
customer.
UNITED KINGDOM SELLING RESTRICTIONS
Each underwriter has represented and agreed that (i) it has not offered or
sold and prior to the date six months after the date of issue of the preferred
securities will not offer or sell preferred securities in the United Kingdom
except to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the meaning of
the public offers of Securities Regulations 1995; (ii) it has complied and will
comply with all applicable provisions of the Financial Services Act 1986 with
respect to anything done by it in relation to the preferred securities in, from
or otherwise involving the United Kingdom; and (iii) it has only issued or
passed on, and will only issue or pass on, in the United Kingdom any document
received by it in connection with the issue of the preferred securities to a
person who is a kind described in Article 11(3) of the Financial Services Act
1986 (Investment Advertisement) (Exemptions) Order 1996 or is a person to whom
the document may otherwise lawfully be issued or passed on.
S-15
<PAGE>
PROSPECTUS
$200,000,000
OGE ENERGY CAPITAL TRUST I
OGE ENERGY CAPITAL TRUST II
PREFERRED SECURITIES
Fully and Unconditionally Guaranteed, to the Extent Set Forth Herein, By
OGE ENERGY CORP.
---------------
OGE Energy will provide the specific terms of these securities in
supplements to this prospectus. You should read this prospectus and the
accompanying prospectus supplement carefully before you invest.
The securities offered by this prospectus are offered in an aggregate
liquidation amount of up to $200,000,000 subject to reduction as a result of the
sale under specified circumstances of other securities.
YOU ARE URGED TO CAREFULLY READ THE "RISK FACTORS" SECTION IN THE APPLICABLE
PROSPECTUS SUPPLEMENT, WHERE SPECIFIC RISKS ASSOCIATED WITH THESE PREFERRED
SECURITIES ARE DESCRIBED, ALONG WITH THE OTHER INFORMATION IN THIS PROSPECTUS
AND THE PROSPECTUS SUPPLEMENT BEFORE YOU MAKE YOUR INVESTMENT DECISION.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
DETERMINED IF THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
This prospectus may not be used to consummate sales of the offered
securities unless accompanied by a prospectus supplement.
SUBJECT TO COMPLETION, DATED OCTOBER 4, 1999
The information in this prospectus is not complete and may be changed. OGE
Energy Capital Trust I, OGE Energy Capital Trust II and OGE Energy Corp. may not
sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell
these securities and it is not soliciting an offer to buy these securities in
any state where the offer or sale is not permitted.
<PAGE>
SUMMARY INFORMATION-Q&A
This summary provides a brief overview of the key aspects of OGE Energy
Corp., each OGE Energy Capital Trust and the preferred securities. The terms
"trust" and "OGE Energy Capital Trust" refer to the OGE Energy Capital Trust for
a specific transaction. You should carefully read this prospectus to understand
fully the terms of the preferred securities as well as the tax and other
considerations that are important to you in making a decision about whether to
invest in the preferred securities. You should pay special attention to the
"Risk Factors" section in the applicable prospectus supplement to determine
whether an investment in the preferred securities is appropriate for you.
WHAT ARE THE PREFERRED SECURITIES?
Each preferred security represents an undivided beneficial interest in the
assets of a trust. Each preferred security will entitle the holder to receive
cash distributions as described in this prospectus.
WHO IS THE TRUST?
The trust is a Delaware statutory business trust. Its principal place of
business is c/o OGE Energy Corp., 321 North Harvey Avenue, P.O. Box 321,
Oklahoma City, Oklahoma 73101-0321, and its telephone number is (405) 553-3000.
All the common securities of the trust will be owned by OGE Energy. The
trust will use the proceeds from the sale of the preferred securities and the
common securities to buy a series of junior subordinated deferrable interest
debentures from OGE Energy with the same financial terms as the preferred
securities.
There are two regular trustees of the trust who are officers of OGE Energy.
Wilmington Trust Company will act as the Delaware trustee and the property
trustee of the trust.
WHO IS OGE ENERGY CORP.?
OGE Energy is a public utility holding company, which was incorporated in
August 1995 in the State of Oklahoma. The Company serves as the parent company
to Oklahoma Gas and Electric Company, which operates under the trade name OG&E
Electric Services, and Enogex Inc. and any other companies that may be formed
within the organization in the future.
The Company's principal subsidiary is OG&E and, accordingly, the Company's
financial results and condition are substantially dependent at this time on the
financial results and condition of OG&E. OG&E is a regulated public utility
engaged in the generation, transmission and distribution of electricity to
retail and wholesale customers. OG&E was incorporated in 1902 under the laws of
the Oklahoma Territory and is the largest electric utility in the State of
Oklahoma. OG&E sold its retail gas business in 1928 and now owns and operates an
interconnected electric production, transmission and distribution system which
includes eight active generating stations with a total capability of 5,561,180
kilowatts.
Enogex owns and operates approximately 9,700 miles of natural gas
transmission and gathering pipelines, has interests in fifteen gas processing
plants, markets electricity, natural gas and natural gas products and invests in
the drilling for and production of crude oil and natural gas.
Enogex completed its acquisition of Tejas Transok Holding, L.L.C., a
gatherer, processor, and transporter of natural gas in Oklahoma and Texas on
July 1, 1999. Transok's principal assets included approximately 4,900 miles of
natural gas pipelines in Oklahoma and Texas with a capacity of approximately 1.2
billion cubic feet per day and 18 billion cubic feet of underground gas storage.
Transok also owned 9 gas processing plants, which produced approximately 25,000
barrels per day of natural gas liquids in 1998. Enogex purchased Transok from
Tejas Energy L.L.C. of Houston, an
2
<PAGE>
affiliate of Shell Oil Company, for approximately $710.3 million, which included
assumption of $173 million of long-term debt.
OGE Energy's principal executive office is at 321 North Harvey Avenue, P.O.
Box 321, Oklahoma City, Oklahoma 73101-0321, and its telephone number is (405)
553-3000.
WHEN WILL YOU RECEIVE DISTRIBUTIONS ON THE PREFERRED SECURITIES?
The trust's only source of cash to make payments on the preferred securities
are payments on the junior subordinated debt securities it purchases from OGE
Energy.
If you purchase the preferred securities, you are entitled to receive
cumulative cash distributions at the rate specified in the applicable prospectus
supplement. Distributions will accumulate from the date the trust issues the
preferred securities and will be paid in arrears on the dates specified in the
prospectus supplement, unless distributions are deferred as described below.
WHEN WILL PAYMENT OF YOUR DISTRIBUTIONS BE DEFERRED?
OGE Energy may from time to time defer payments of interest on the junior
subordinated debt securities for one or more periods, each of up to five years.
If OGE Energy defers interest payments on the junior subordinated debt
securities, the trust will also defer distributions on the preferred securities
during the deferral period. A deferral of distributions cannot extend, however,
beyond the maturity date of the junior subordinated debt securities.
During any deferral period, except as described beginning on page 15, OGE
Energy will not be permitted to:
- pay a dividend or make any distributions on its capital stock;
- redeem, purchase or make a liquidation payment on any of its capital
stock;
- make an interest, principal or premium payment on, or repay, repurchase or
redeem, any of its debt securities that rank equal with or junior to the
junior subordinated debt securities; or
- make any guarantee payment with respect to any guarantee of debt
securities of any subsidiary, if that guarantee ranks equally with or
junior to the junior subordinated debt securities.
WHAT IS OGE ENERGY'S GUARANTEE OF THE PREFERRED SECURITIES?
OGE Energy's guarantee of the preferred securities consists of:
- its obligations under the subordinated indenture to make payments on the
junior subordinated debt securities;
- its obligations under the preferred securities guarantee; and
- its obligations under the amended and restated declaration of trust, which
sets forth the terms of the trust.
OGE Energy will irrevocably guarantee that if a payment on the junior
subordinated debt securities is made to the trust but, for any reason, the trust
does not make the corresponding distribution or redemption payment to the
holders of the preferred securities, then OGE Energy will make the payments
directly to the holders of the preferred securities. The guarantee will not
cover payments when the trust does not have sufficient funds to make payments on
the preferred securities.
OGE Energy's obligations under the guarantee are subordinated as described
on page 19.
3
<PAGE>
WHEN COULD THE JUNIOR SUBORDINATED DEBT SECURITIES BE DISTRIBUTED TO YOU?
OGE Energy has the right to dissolve the trust at any time. If OGE Energy
terminates the trust, the trust will distribute junior subordinated debt
securities to the holders of the common and preferred securities of the trust on
a proportionate basis.
WILL THE PREFERRED SECURITIES BE LISTED ON A STOCK EXCHANGE?
If specified in an accompanying prospectus supplement, application will be
made to list the preferred securities on the New York Stock Exchange. If
approved for listing, the trust expects the preferred securities will begin
trading within 30 days after they are first issued.
WILL HOLDERS OF THE PREFERRED SECURITIES HAVE ANY VOTING RIGHTS?
Generally, the holders of the preferred securities will not have any voting
rights. See "Description of the Preferred Securities--Voting Rights."
IN WHAT FORM WILL THE PREFERRED SECURITIES BE ISSUED?
The preferred securities will be represented by one or more global
securities that will be deposited with and registered in the name of The
Depository Trust Company or its nominee. This means that you will not receive a
certificate for your preferred securities and that your broker will maintain
your position in the preferred securities.
YOU SHOULD RELY ONLY ON THE INFORMATION PROVIDED IN THIS PROSPECTUS AND THE
ACCOMPANYING PROSPECTUS SUPPLEMENT, AS WELL AS THE INFORMATION INCORPORATED BY
REFERENCE. OGE ENERGY HAS NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH DIFFERENT
INFORMATION. OGE ENERGY IS NOT MAKING AN OFFER OF THESE SECURITIES IN ANY
JURISDICTION WHERE THE OFFER IS NOT PERMITTED. YOU SHOULD NOT ASSUME THAT THE
INFORMATION IN THIS PROSPECTUS, THE ACCOMPANYING PROSPECTUS SUPPLEMENT OR ANY
DOCUMENTS INCORPORATED BY REFERENCE IS ACCURATE AS OF ANY DATE OTHER THAN THE
DATE OF THE APPLICABLE DOCUMENT.
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WHERE YOU CAN FIND MORE INFORMATION
As required by the Securities Act of 1933, OGE Energy filed a registration
statement (No. 333- ) relating to the securities offered by this prospectus
and the relevant prospectus supplement with the Securities and Exchange
Commission. This prospectus is a part of that registration statement, which
includes additional information.
OGE Energy files annual, quarterly and current reports, proxy statements and
other information with the SEC. You may read and copy any document OGE Energy
files at the SEC's public reference rooms in Washington, D.C., New York, New
York and Chicago, Illinois. You can also request copies of the documents, upon
payment of a duplicating fee, by writing the Public Reference Section of the
SEC. Please call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms. These SEC filings are also available to the public from the
SEC's web site at http://www.sec.gov.
The SEC allows OGE Energy to "incorporate by reference" the information it
files with the SEC, which means that it can disclose important information to
you by referring you to those documents. The information incorporated by
reference is considered to be part of this prospectus. Information that OGE
Energy files later with the SEC will automatically update information in this
prospectus. In all cases, you should rely on the later information over
different information included in this prospectus or the prospectus supplement.
OGE Energy incorporates by reference in the registration statement the documents
listed below and any future filings made with the SEC under Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934:
- Annual Report on Form 10-K for the year ended December 31, 1998, filed
with the SEC on March 30, 1999;
- Quarterly Report on Form 10-Q for the quarter ended March 31, 1999, filed
with the SEC on May 14, 1999;
- Quarterly Report on Form 10-Q for the quarter ended June 30, 1999, filed
with the SEC on August 16, 1999; and
- Current Reports on Form 8-K, filed with the SEC on May 20, July 9, July 13
(as amended September 14) and July 16, 1999.
All documents OGE Energy files pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act after the date of this prospectus and before the later of
(1) the completion of the offering of the securities described in this
prospectus and (2) the date OGE Energy stops offering securities pursuant to
this prospectus shall be incorporated by reference in this prospectus from the
date of filing of those documents.
You may request a copy of these filings, at no cost, by writing or
telephoning OGE Energy at the following address:
Treasurer
OGE Energy Corp.
321 North Harvey Avenue, P.O. Box 321
Oklahoma City, Oklahoma 73101-0321
(405) 553-3000
USE OF PROCEEDS
All of the net proceeds from the sale of the preferred securities will be
invested by the trust in junior subordinated debt securities of OGE Energy. OGE
Energy will use the proceeds from the sale of the junior subordinated debt
securities to the trust for general corporate purposes, primarily to fund its
operating units and subsidiaries. The specific allocation of the proceeds of a
particular series of junior subordinated debt securities will be described in
the applicable prospectus supplement.
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DESCRIPTION OF THE PREFERRED SECURITIES
The preferred securities will be issued under an amended and restated
declaration of trust. The declaration will be qualified under the Trust
Indenture Act of 1939. Wilmington Trust Company will act as trustee under the
declaration for purposes of the Trust Indenture Act. The terms of the preferred
securities will include those stated in the declaration and those made part of
the declaration by the Trust Indenture Act. The following summary of the terms
of the preferred securities is not intended to be complete and is qualified by
the applicable prospectus supplement, the declaration, the Trust Indenture Act
and other applicable law. The declaration will be filed as an exhibit to a
document incorporated by reference in the registration statement of which this
prospectus forms a part.
GENERAL
The declaration authorizes the regular trustees to issue both common and
preferred securities representing undivided beneficial interests in the assets
of the trust. All the common securities will be owned by OGE Energy. Absent an
event of default, the common securities rank equally, and payments will be made
on the common securities on a ratable basis, with the preferred securities. If
an event of default under the declaration occurs and continues, however, the
rights of the holders of the common securities to receive payments of periodic
distributions and payments upon liquidation, redemption and otherwise will be
subordinated to the rights of the holders of the preferred securities. The
declaration does not permit the issuance of any other securities or the
incurrence of any indebtedness by the trust.
Pursuant to the declaration, the property trustee will hold title to the
junior subordinated debt securities purchased by the trust for the benefit of
the holders of the trust securities. The payment of distributions out of money
held by the trust, and payments upon redemption of the trust securities or
liquidation of the trust out of money held by the trust, are guaranteed by OGE
Energy to the extent described under "Description of the Guarantee." The
guarantee will be held by Wilmington Trust Company, the guarantee trustee, for
the benefit of the holders of the preferred securities. The guarantee does not
cover payment of distributions when the trust does not have sufficient available
funds to pay those distributions. In that event, the remedy of a holder of
preferred securities is to:
- vote to direct the property trustee to enforce the property trustee's
rights under the junior subordinated debt securities; or
- if the failure of the trust to pay distributions is attributable to the
failure of OGE Energy to pay interest or principal on the junior
subordinated debt securities, directly sue OGE Energy for enforcement of
payment to the holder of an amount equal to the aggregate liquidation
amount of his or her preferred securities.
DISTRIBUTIONS
Distributions on the preferred securities will accrue at the rate specified
in the applicable prospectus supplement. The amount of distributions payable for
any period will be computed on the basis of a 360-day year of twelve 30-day
months. The amount of interest payable for any period shorter than a full
quarterly period will be computed on the basis of a 30-day month and, for
periods of less than a full month, the actual number of days elapsed per 30-day
month.
Distributions on the preferred securities will be cumulative, will accrue
from the date the trust issues the preferred securities and will be paid in
arrears on the dates specified in the applicable prospectus supplement, unless
they are deferred as described below.
DEFERRAL OF DISTRIBUTIONS. OGE Energy has the right under the indenture to
defer interest payments on the junior subordinated debt securities for one or
more periods, none of which may exceed five years. During a deferral period, no
interest will be due and payable. A deferral of interest payments cannot extend,
however, beyond the maturity of the junior subordinated debt securities. As a
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consequence of any such deferral, distributions on the preferred securities also
would be deferred. During a deferral period, the amount of distributions due to
you would continue to accumulate and the deferred distributions will themselves
accrue additional distributions at the same rate. When this prospectus refers to
any payment of distributions, distributions include any additional distributions
unless otherwise stated.
Upon the termination of any deferral period and the payment of all amounts
then due, OGE Energy may commence a new deferral period, subject to the maturity
limitation and the five-year limit discussed above. Consequently, there could be
several deferral periods of varying lengths throughout the term of the junior
subordinated debt securities. The regular trustees will give the holders of the
preferred securities notice of any deferral period upon their receipt of notice
from OGE Energy. If distributions are deferred, the deferred distributions will
be paid to holders of record of the preferred securities as they appear on the
securities register of the trust on the record date following the termination of
the deferral period. See "Description of the Junior Subordinated Debt
Securities-- Interest" and "--Option to Defer Interest Payments."
PAYMENT OF DISTRIBUTIONS. Distributions on the preferred securities will be
payable to the holders named on the securities register of the trust at the
close of business on the relevant record dates. As long as the preferred
securities remain in book-entry only form, the record dates will be one business
day before the distribution dates. Distributions will be paid through the
property trustee who will hold amounts received on the junior subordinated debt
securities in a property account for the benefit of the holders of the
securities. Unless any applicable laws and regulations and the provisions of the
declaration state otherwise, each payment will be made as described under
"--Book-Entry Only Issuance--The Depository Trust Company" below.
If the preferred securities do not continue to remain in book-entry only
form, the relevant record dates will conform to the rules of any securities
exchange on which the preferred securities are listed. If any date on which
distributions are to be made on the preferred securities is not a business day,
then payment of the distributions payable on that date will be made on the next
day that is a business day, and without any interest or other payment resulting
from the delay. However, if the next business day is in the next calendar year,
the payment will be made on the immediately preceding business day. A "business
day" means any day other than Saturday, Sunday or any other day on which banking
institutions in New York City are permitted or required by law to close.
REDEMPTION
The preferred securities will be redeemed upon the maturity of the junior
subordinated debt securities or to the extent the junior subordinated debt
securities are redeemed. The junior subordinated debt securities will mature on
the date specified in the applicable prospectus supplement, and may be redeemed,
in whole or in part, at any time on or after the date specified in the
applicable prospectus supplement. The junior subordinated debt securities can
also be redeemed at any time, in whole but not in part, upon the occurrence of a
tax event or an investment company event as described below.
Upon the maturity of the junior subordinated debt securities, the proceeds
of their repayment will simultaneously be applied to redeem all outstanding
trust securities at the redemption price. Upon the redemption of the junior
subordinated debt securities, whether in whole or in part, either at the option
of OGE Energy or pursuant to a tax or investment company event, the trust will
use the cash it receives upon the redemption to redeem trust securities having
an aggregate liquidation amount equal to the aggregate principal amount of the
junior subordinated debt securities so redeemed at the redemption price. Before
a redemption, holders of preferred securities will be given not less than 30
days' notice.
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SPECIAL EVENT REDEMPTION
"Tax event" means that the regular trustees will have received an opinion of
an independent tax counsel experienced in applicable matters which states that,
as a result of any:
- amendment to, or change in, or announced proposed change in, the laws or
associated regulations of the United States or any political subdivision
or taxing authority of the United States, which is effective after the
date of the original issuance of the preferred securities; or
- official administrative pronouncement, action or judicial decision
interpreting or applying those laws or regulations, which is made after
the date of the original issuance of the preferred securities;
there is more than an insubstantial risk currently or within the 90 days
following such opinion that:
- the trust would be required to pay United States federal income tax
relating to income accrued or received on the junior subordinated debt
securities;
- interest payable to the trust on the junior subordinated debt securities
would not be deductible by OGE Energy in whole or in part for United
States federal income tax purposes; or
- the trust would be required to pay more than a minimal amount of other
taxes, duties or other governmental charges.
"Investment company event" means that the regular trustees will have
received an opinion of a nationally recognized independent counsel which states
that, as a result of the occurrence of a change in law or regulation or a
written change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority, there is
more than an insubstantial risk that the trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act of 1940.
This prospectus refers to a tax event or an investment company event as a
"special event." If a special event occurs and continues, OGE Energy may, upon
not less than 30 days' notice, redeem the junior subordinated debt securities,
in whole but not in part, for cash within 90 days following the occurrence of
that special event.
REDEMPTION PROCEDURES
The trust may not redeem fewer than all of the outstanding preferred
securities unless all accrued and unpaid distributions on all preferred
securities have been paid.
Once notice of redemption is given and funds are irrevocably deposited,
distributions will cease to accrue and all rights of holders of preferred
securities called for redemption will cease, except the right of the holders to
receive the redemption price but without interest on the redemption price. If
any redemption date is not a business day, then payment of the redemption price
payable on that date will be made on the succeeding day that is a business day,
without any interest or other payment resulting from the delay. However, if the
next business day falls in the next calendar year, payment will be made on the
preceding business day.
If payment of the redemption price for any preferred securities is
improperly withheld or refused and not paid either by the trust or by OGE Energy
under the guarantee, distributions on those preferred securities will continue
to accrue at the then-applicable rate from the original redemption date to the
date of payment. In this case, the actual payment date will be the redemption
date for purposes of calculating the redemption price. See "--Book-Entry Only
Issuance--The Depository Trust Company."
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In the event that fewer than all of the outstanding preferred securities are
to be redeemed, the particular preferred securities to be redeemed will be
selected by the property trustee on a basis that it deems to be fair and
appropriate, including by lot.
OGE Energy or its subsidiaries may, at any time, and from time to time,
purchase outstanding preferred securities by tender, in the open market or by
private agreement, provided that it complies with United States federal
securities laws and any other applicable laws.
DISTRIBUTION OF THE JUNIOR SUBORDINATED DEBT SECURITIES
OGE Energy will have the right at any time to dissolve the trust. After
satisfying the liabilities of its creditors, the trust may distribute junior
subordinated debt securities in exchange for the preferred securities.
There can be no assurance as to the market prices for either the preferred
securities or the junior subordinated debt securities that may be distributed in
exchange for the preferred securities if a dissolution and liquidation of the
trust were to occur. This means that the preferred securities that an investor
may purchase, whether pursuant to the offer made by this prospectus and the
relevant prospectus supplement or in the secondary market, or the junior
subordinated debt securities that an investor may receive if a dissolution and
liquidation of the trust were to occur, may trade at a discount to the price
that the investor paid to purchase the preferred securities offered by this
prospectus.
TRUST ENFORCEMENT EVENTS
Upon the occurrence of an indenture event of default (described below), the
property trustee as the sole holder of the junior subordinated debt securities
will have the right under the indenture to declare the principal of and interest
on the junior subordinated debt securities to be immediately due and payable.
If the property trustee fails to enforce its rights as holder of the junior
subordinated debt securities, any holder of preferred securities may directly
institute a legal proceeding against OGE Energy to enforce these rights without
first suing the property trustee or any other person or entity. If a trust
enforcement event (as described below) has occurred and is continuing and that
event is attributable to the failure of OGE Energy to pay interest or principal
on the junior subordinated debt securities on the date the interest or principal
is otherwise payable, then a holder of preferred securities may also bring a
direct action.
An "indenture event of default" is an event of default under the indenture
and also constitutes a "trust enforcement event," which is an event of default
under the declaration relating to the trust securities. Pursuant to the
declaration, however, the holder of the common securities will be deemed to have
waived any trust enforcement event relating to the common securities until all
trust enforcement events relating to the preferred securities have been cured,
waived or otherwise eliminated. Until such trust enforcement events relating to
the preferred securities have been so cured, waived, or otherwise eliminated,
the property trustee will be deemed to be acting solely on behalf of the holders
of the preferred securities and only the holders of the preferred securities
will have the right to direct the property trustee as to matters under the
declaration, and therefore the indenture.
VOTING RIGHTS; CONTROL OF REMEDIES
Except as described in this prospectus under this heading, "--Modification
of the Declaration" and "Description of the Guarantee--Modification of
Guarantee; Assignment," and except as required by law, the holders of the
preferred securities will have no voting rights.
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The holders of a majority in aggregate liquidation amount of the preferred
securities have the right to direct any proceeding for any remedy available to
the property trustee, including to:
- exercise the remedies available to it under the indenture;
- waive any past indenture event of default and its consequences that is
waivable under the indenture; or
- consent to any amendment, modification or termination of the declaration
of trust where that consent is required.
Any required approval or direction of holders of preferred securities may be
given at a separate meeting of holders of preferred securities convened for that
purpose, at a meeting of all of the holders of trust securities or by written
consent.
If an indenture event of default has occurred and not been cured, the
holders of 25% of the aggregate liquidation amount of the preferred securities
may direct the property trustee to declare the principal and interest on the
junior subordinated debt securities due and payable. However, where a consent or
action under the indenture would require the consent of more than a majority of
the aggregate principal amount of debt securities affected thereby, consent from
the holders of that greater percentage would be required. See "Description of
the Junior Subordinated Debt Securities-- Modifications and Amendments."
Despite the fact that holders of preferred securities are entitled to vote
or consent in the circumstances described above, any of the preferred securities
that are owned at the time by OGE Energy or any entity directly or indirectly
controlling or controlled by, or under direct or indirect common control with,
OGE Energy, will not be entitled to vote or consent. Instead, those preferred
securities will be treated as if they were not outstanding.
The procedures by which holders of preferred securities may exercise their
voting rights are described below. See "--Book-Entry Only Issuance--The
Depository Trust Company."
Holders of the preferred securities generally will have no rights to appoint
or remove the regular trustees. Instead, the trustees may be appointed, removed
or replaced solely by OGE Energy as the indirect or direct holder of all of the
common securities.
MODIFICATION OF THE DECLARATION
The declaration may be amended from time to time without the consent of the
holders of the preferred securities:
- to cure any ambiguity or correct or supplement any provisions that may be
defective or inconsistent with any other provision;
- to add to the covenants, restrictions or obligations of OGE Energy in its
capacity as sponsor of the trust;
- to conform to any change in Rule 3a-5 under the Investment Company Act of
1940 or written change in interpretation or application of that rule by
any legislative body, court, government agency or regulatory authority; or
- to modify, eliminate or add to any provisions as necessary to ensure that
the trust will be classified for United States federal income tax purposes
as a grantor trust at all times or to ensure that the trust will not be
required to register as an investment company under the Investment Company
Act of 1940.
Amendments made without the consent of the preferred securities cannot
adversely affect in any material respect the rights of the holders of preferred
or common securities.
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The declaration of trust may also be amended as to other matters with the
consent of holders of a majority of the outstanding preferred securities.
However, without the consent of each affected holder of preferred or common
securities, the declaration of trust may not be amended to:
- change the amount or timing of any distribution or otherwise adversely
affect the amount of any distribution required to be made; or
- restrict the right of a holder to institute suit for the enforcement of
any distribution.
Despite the foregoing, no amendment or modification may be made to the
declaration if the amendment or modification would
- cause the trust to be classified for United States federal income tax
purposes as other than a grantor trust, or
- cause the trust to be deemed an investment company which is required to be
registered under the Investment Company Act of 1940.
BOOK-ENTRY ONLY ISSUANCE--THE DEPOSITORY TRUST COMPANY
The preferred securities will be book-entry securities. Upon issuance, all
book-entry securities will be represented by one or more fully registered global
securities. Each global security will be deposited with, or on behalf of, The
Depository Trust Company, a securities depository, and will be registered in the
name of DTC or a nominee of DTC. DTC will thus be the only registered holder of
these securities.
Purchasers of securities may only hold interests in the global notes through
DTC if they are participants in the DTC system. Purchasers may also hold
interests through a securities intermediary-- banks, brokerage houses and other
institutions that maintain securities accounts for customers--that has an
account with DTC or its nominee. DTC will maintain accounts showing the security
holdings of its participants, and these participants will in turn maintain
accounts showing the security holdings of their customers. Some of these
customers may themselves be securities intermediaries holding securities for
their customers. Thus, each beneficial owner of a book-entry security will hold
that security indirectly through a hierarchy of intermediaries, with DTC at the
"top" and the beneficial owner's own securities intermediary at the "bottom."
The securities of each beneficial owner of a book-entry security will be
evidenced solely by entries on the books of the beneficial owner's securities
intermediary. The actual purchaser of the securities will generally not be
entitled to have the securities represented by the global securities registered
in its name and will not be considered the owner under the declaration. In most
cases, a beneficial owner will also not be able to obtain a paper certificate
evidencing the holder's ownership of securities. The book-entry system for
holding securities eliminates the need for physical movement of certificates and
is the system through which most publicly traded common stock is held in the
United States. However, the laws of some jurisdictions require some purchasers
of securities to take physical delivery of their securities in definitive form.
These laws may impair the ability to transfer book-entry securities.
A beneficial owner of book-entry securities represented by a global security
may exchange the securities for definitive (paper) securities only if:
- DTC is unwilling or unable to continue as depositary for such global
security and OGE Energy does not appoint a qualified replacement for DTC
within 90 days; or
- OGE Energy in its sole discretion decides to allow some or all book-entry
securities to be exchangeable for definitive securities in registered
form.
Unless we indicate otherwise, any global security that is exchangeable will
be exchangeable in whole for definitive securities in registered form, with the
same terms and of an equal aggregate
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principal amount. Definitive securities will be registered in the name or names
of the person or persons specified by DTC in a written instruction to the
registrar of the securities. DTC may base its written instruction upon
directions that it receives from its participants.
In this prospectus, for book-entry securities, references to actions taken
by security holders will mean actions taken by DTC upon instructions from its
participants, and references to payments and notices of redemption to security
holders will mean payments and notices of redemption to DTC as the registered
holder of the securities for distribution to participants in accordance with
DTC's procedures.
DTC is a limited purpose trust company organized under the laws of the State
of New York, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial Code and a "clearing
agency" registered under section 17A of the Securities Exchange Act of 1934. The
rules applicable to DTC and its participants are on file with the SEC.
DTC's management is aware that some computer applications, systems, and the
like for processing dates that are dependent upon calendar dates, including
dates before, on, and after January 1, 2000, may encounter "Year 2000 problems."
DTC has informed its participants and other members of the financial community
that it has developed and is implementing a program so that its systems, as they
relate to the timely payment of distributions to securityholders, book-entry
deliveries, and settlement of trades within DTC, continue to function
appropriately. This program includes a technical assessment and a remediation
plan, each of which is complete. Additionally, DTC's plan includes a testing
phase, which is expected to be completed within appropriate time frames.
OGE Energy and the trustees will not have any responsibility or liability
for any aspect of the records relating to, or payments made on account of,
beneficial ownership interest in the book-entry securities or for maintaining,
supervising or reviewing any records relating to the beneficial ownership
interests.
DTC may discontinue providing its services as securities depositary at any
time by giving reasonable notice. Under those circumstances, in the event that a
successor securities depositary is not obtained, securities certificates are
required to be printed and delivered. Additionally, OGE Energy may decide to
discontinue use of the system of book-entry transfers through DTC or any
successor depositary with respect to the preferred securities. In that event,
certificates for the securities will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that OGE Energy believes to be reliable, but OGE
Energy does not take responsibility for the accuracy thereof.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
Prior to the occurrence of a default relating to the trust securities, the
property trustee undertakes to perform only those duties as are specifically set
forth in the declaration. After a default relating to the trust securities, the
property trustee will exercise the same degree of care as a prudent individual
would exercise in the conduct of his or her own affairs. The property trustee is
under no obligation to exercise any of the powers vested in it by the
declaration at the request of any holder of preferred securities unless offered
reasonable indemnity by that holder against the costs, expenses and liabilities
which might be incurred thereby.
PAYING AGENT
If the preferred securities do not remain in book-entry only form, the
following provisions will apply:
- the property trustee may select a paying agent or may act as paying agent;
and
- registration of transfers of preferred securities will be effected without
charge (other than in respect of any tax or other government charge).
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DESCRIPTION OF THE JUNIOR SUBORDINATED DEBT SECURITIES
The junior subordinated debt securities in which the trust will invest the
proceeds from the issuance and sale of the trust securities will be issued
pursuant to the indenture between OGE Energy and Bank of Oklahoma, National
Association, as the indenture trustee. The indenture will be qualified under the
Trust Indenture Act of 1939. The terms of the junior subordinated debt
securities will include those stated in the indenture and those made a part of
the indenture by the Trust Indenture Act. The following summary of the material
terms of the junior subordinated debt securities is not intended to be complete
and is qualified by the applicable prospectus supplement, the indenture, the
Trust Indenture Act and other applicable law. The indenture, including all
amendments, has been filed with the SEC as an exhibit to, and is incorporated by
reference in, the registration statement of which this prospectus forms a part.
GENERAL
The junior subordinated debt securities will be issued as unsecured debt
under the indenture. The junior subordinated debt securities will be limited in
aggregate principal amount to the sum of the aggregate stated liquidation amount
of the preferred securities and the capital contributed by OGE Energy to the
trust in exchange for the common securities.
The entire principal amount of the junior subordinated debt securities will
mature and become due and payable, together with any accrued and unpaid interest
thereon, on the date specified in the applicable prospectus supplement.
If junior subordinated debt securities are distributed to holders of
preferred securities in liquidation of that holders' interests in the trust,
those junior subordinated debt securities will initially be issued in the form
of one or more global securities under depositary arrangements similar to those
in effect for the preferred securities. See "Description of the Preferred
Securities--Book-Entry Only Issuance--The Depository Trust Company." In the
event junior subordinated debt securities are issued in certificated form,
principal and interest will be payable, the transfer of the junior subordinated
debt securities will be registrable and junior subordinated debt securities will
be exchangeable for securities of other denominations of a like aggregate
principal amount at the corporate trust office of the indenture trustee in
Oklahoma City, Oklahoma.
SUBORDINATION
The indenture provides that the junior subordinated debt securities are
subordinated and junior in right of payment to all senior debt, as defined
below, of OGE Energy. No payment of principal of, or premium, if any, or
interest on the junior subordinated debt securities may be made if (1) a default
has occurred and is continuing in the payment of principal of or premium, if
any, or interest on any senior debt of OGE Energy, or (2) if any event of
default with respect to senior debt of OGE Energy has occurred and is continuing
and has resulted in senior debt becoming or being declared due and payable,
unless and until the event of default shall have been cured or waived or shall
have ceased to exist and acceleration shall have been rescinded or annulled, or
(3) any judicial proceeding is pending with respect to any default in payment or
event of default. In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization or other judicial proceeding relative to
OGE Energy, the holders of senior debt of OGE Energy will be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
senior debt before the holders of the junior subordinated debt securities are
entitled to receive or retain any payment or distribution. Subject to the prior
payment of all senior debt, the rights of holders of the junior subordinated
debt securities will be subrogated to the rights of the holders of senior debt
to receive payments and distributions applicable to the senior debt until all
amounts owing on the junior subordinated debt securities are paid in full. OGE
Energy had $791.6 million of senior debt outstanding at August 31, 1999.
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"Senior debt" means:
(1) the principal, premium, if any, and interest in respect of (A)
indebtedness of OGE Energy for money borrowed and (B) indebtedness
evidenced by securities, notes, debentures, bonds or other similar
instruments issued by OGE Energy;
(2) all capitalized lease obligations of OGE Energy;
(3) all obligations of OGE Energy representing the deferred purchase price
of property, including conditional sales obligations and obligations
under title retention agreements;
(4) all obligations for the reimbursement of the issuer of specified types
of letters of credit; and
(5) all obligations of the type referred to in clauses (1) through (4) of
other persons for which OGE Energy is responsible or liable as guarantor
or otherwise.
but senior debt does not include:
(a) subordinated debt securities;
(b) any indebtedness that by its terms is subordinated to, or ranks on an
equal basis with, subordinated debt securities;
(c) indebtedness for goods or materials purchased in the ordinary course
of business or for services obtained in the ordinary course of
business or indebtedness consisting of trade payables; and
(d) indebtedness which is subordinated to an obligation of OGE Energy of
the type specified in clauses (1) through (4) above.
The debt of OGE Energy's subsidiaries is effectively senior to the junior
subordinated debt securities. At August 31, 1999, approximately $2.108 billion
of obligations of OGE Energy's subsidiaries not included in OGE Energy's senior
indebtedness was outstanding.
The indenture does not limit the aggregate amount of senior debt that may be
issued by OGE Energy.
REDEMPTION
OGE Energy will have the right to redeem the junior subordinated debt
securities as described above under "Description of the Preferred
Securities--Special Event Redemption." The redemption price will be equal to
100% of the principal amount to be redeemed plus any accrued and unpaid interest
to the date of redemption. OGE Energy will also have the right, at any time on
or after the date specified in the applicable prospectus supplement, to redeem
the junior subordinated debt securities in whole or in part at a redemption
price specified in the applicable prospectus supplement.
INTEREST
The junior subordinated debt securities will bear interest at the rate
specified in the applicable prospectus supplement, payable in arrears on the
dates specified in the applicable prospectus supplement, unless interest is
deferred as described below. Interest will be paid to the person in whose name a
junior subordinated debt security is registered, with limited exceptions, at the
close of business on the business day next preceding that interest payment date.
In the event the junior subordinated debt securities no longer remain in
book-entry only form, OGE Energy will select appropriate record dates.
The amount of interest payable for any period will be computed on the basis
of a 360-day year of twelve 30-day months. The amount of interest payable for
any period shorter than a full quarterly
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period will be computed on the basis of a 30-day month and, for periods of less
than a full month, the actual number of days elapsed per 30-day month. If any
date on which interest is payable on the junior subordinated debt securities is
not a business day, then payment of the interest payable on that date will be
made on the succeeding day that is a business day, and without any interest or
other payment in respect of any such delay. However, if the next business day is
in the succeeding calendar year, then payment shall be made on the preceding
business day, in each case with the same force and effect as if made on the
stated date.
OPTION TO DEFER INTEREST PAYMENTS
OGE Energy can defer interest payments for one or more periods of up to five
years. However, no deferral period may extend beyond the maturity of the junior
subordinated debt securities. At the end of the deferral period, OGE Energy will
pay all interest then accrued and unpaid.
During any deferral period, OGE Energy will not be permitted to:
- declare or pay a dividend or make any other payment or distribution on OGE
Energy's capital stock;
- redeem, purchase or make a liquidation payment on any of OGE Energy's
capital stock;
- make an interest, principal or premium payment, or repay, repurchase or
redeem, any of OGE Energy's debt securities that rank equally with or
junior to the junior subordinated debt securities; or
- make any guarantee payment with respect to any guarantee by OGE Energy of
debt securities of any of its subsidiaries, if the guarantee ranks equal
to or junior to the junior subordinated debt securities.
During any deferral period, however, OGE Energy will be permitted to:
- declare and pay dividends or distributions by way of issuance of its
common stock;
- make payments under the guarantee in respect of the preferred and common
securities;
- declare or pay a dividend in connection with the implementation of a
shareholders' rights plan, or the issuing of stock under such a plan or
repurchase such rights; and
- purchase common stock relating to the issuing of common stock or rights
under any of OGE Energy's benefit plans.
OGE Energy has no present intention of exercising its right to defer
payments of interest by extending the interest payment period on the junior
subordinated debt securities.
If the property trustee is the sole holder of the junior subordinated debt
securities, OGE Energy will give the regular trustees, the property trustee and
the indenture trustee notice of its election to defer interest payments one
business day prior to the earlier of:
- the date distributions on the preferred securities would be payable, if
not for the deferral period, or
- the date the regular trustees are required to give notice to the NYSE or
other applicable self-regulatory organization or to holders of the
preferred securities of the record date or the date such distribution
would be payable, if not for the deferral period,
but in any event one business day prior to the record date. The regular trustees
will give notice of OGE Energy's selection of a deferral period to the holders
of the preferred securities.
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If the property trustee is not the sole holder of the junior subordinated
debt securities, OGE Energy shall give the holders of the junior subordinated
debt securities notice of its election to defer interest payments ten business
days prior to the earlier of
- the next succeeding interest payment date or
- the date upon which OGE Energy is required to give notice to the NYSE or
other applicable self-regulatory organization or to holders of the junior
subordinated debt securities of the record or payment date of the related
interest payment,
but in any event two business days prior to the record date.
INDENTURE EVENTS OF DEFAULT
The indenture provides that the following are events of default relating to
the junior subordinated debt securities of a particular series:
- failure to pay required interest on any debt security of that series for
30 days;
- failure to pay principal or premium, if any, on any debt security of that
series when due;
- failure to pay at final maturity, or acceleration of, indebtedness of OGE
Energy having an aggregate principal amount of more than 1% of OGE
Energy's consolidated total assets (determined as of the most recent
fiscal year-end), unless cured within 10 days after notice has been given
to OGE Energy by the trustee or the holders of at least 10% in aggregate
principal amount of the junior subordinated debt securities;
- failure to perform for 60 days after notice any other covenant in the
relevant indenture other than a covenant included in the relevant
indenture solely for the benefit of a series of debt securities other than
that series;
- specified events of bankruptcy or insolvency, whether voluntary or not;
and
- specified dissolutions of the related trust.
If any indenture event of default occurs and is continuing, the property
trustee, as the holder of the junior subordinated debt securities, will have the
right to declare the principal of and the interest on the junior subordinated
debt securities and any other amounts payable under the indenture to be
immediately due and payable. An indenture event of default also constitutes a
trust enforcement event. The holders of preferred securities in limited
circumstances have the right to direct the property trustee to exercise its
rights as the holder of the junior subordinated debt securities. See
"Description of the Preferred Securities--Trust Enforcement Events" and
"--Voting Rights; Control of Remedies."
Despite the foregoing, if a trust enforcement event has occurred and is
continuing and the event is attributable to the failure of OGE Energy to pay
interest or principal on the junior subordinated debt securities when such
interest or principal is payable, OGE Energy acknowledges that a holder of
preferred securities may sue for payment. OGE Energy may not amend the indenture
to remove this right to bring a direct action without the prior written consent
of all of the holders of preferred securities.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OF LEASE
OGE Energy may not consolidate with or merge into any other person or
convey, transfer or lease its properties and assets substantially as an entirety
to any person, unless
- the corporation or entity formed by such consolidation or into which OGE
Energy is merged or which acquires by conveyance or transfer, or which
leases, the properties and assets of OGE Energy substantially as an
entirety, is a corporation, partnership or trust that expressly assumes,
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by supplemental indenture executed and delivered to the indenture trustee,
the payment of the principal of and premium, if any, and interest on all
the junior subordinated debt securities and the performance of every
covenant of the subordinated indenture on the part of OGE Energy to be
performed or observed;
- immediately after giving effect to the transaction, no event of default
under the subordinated indenture, and no event that, after notice or lapse
of time or both, would become an event of default under the subordinated
indenture, shall have happened and be continuing;
- OGE Energy has delivered to the indenture trustee an officers' certificate
and an opinion of counsel, each stating that the transaction complies with
the provisions of the subordinated indenture governing consolidation,
merger, conveyance, transfer or lease and that all conditions precedent
thereto have been complied with; and
- in the case of junior subordinated debt securities issued to an OGE Energy
Capital Trust, the transaction is permitted under the related preferred
securities guarantee and does not give rise to any breach or violation of
the related trust agreement or preferred securities.
For purposes of the foregoing summarized provisions of the indenture, the
phrase "ALL OR SUBSTANTIALLY ALL OF ITS PROPERTIES AND ASSETS" means 50% or more
of the total assets of OGE Energy as shown on the consolidated balance sheet of
OGE Energy as of the end of the calendar year immediately preceding the day of
the year in which such determination is made. Nothing in the indenture prevents
or hinders OGE Energy from selling, transferring or otherwise disposing during
any calendar year (in one transaction or a series of transactions) less than 50%
of the amount of its total assets as shown on the consolidated balance sheet of
OGE Energy as of the end of the immediately preceding calendar year.
MODIFICATIONS AND AMENDMENTS
The indenture may be modified by OGE Energy and the trustee without the
consent of any holders with respect to certain matters, including without
limitation (i) to cure any ambiguity, defect or inconsistency or to correct or
supplement any provision which may be inconsistent with any provision of the
indenture and (ii) to make any change that does not materially adversely affect
the interests of any holder of junior subordinated debt securities of any
series. In addition, under the indenture, certain rights and obligations of OGE
Energy and the rights of holders of the junior subordinated debt securities may
be modified by OGE Energy and the trustee with the written consent of the
holders of a majority in aggregate principal amount of the outstanding junior
subordinated debt securities of each series affected thereby; but no change in
the maturity of any junior subordinated debt securities of any series, reduction
in the interest rate or extension of the time for payment of interest, change in
the redemption provisions in a manner adverse to any holder of junior
subordinated debt securities of any series, other modification in the terms of
payment of the principal of, or interest on, any junior subordinated debt
securities of any series, or reduction of the percentage required for
modification, will be effective against any holder of any outstanding junior
subordinated debt security of any series affected thereby without the holder's
consent. The indenture does not limit the aggregate amount of junior
subordinated debt securities of OGE Energy which may be issued thereunder.
The holders of a majority in aggregate principal amount of the outstanding
junior subordinated debt securities of any series may on behalf of the holders
of all junior subordinated debt securities of that series waive, insofar as that
series is concerned, compliance by OGE Energy with certain restrictive covenants
of the indenture. The holders of a majority in aggregate principal amount of the
outstanding junior subordinated debt securities of any series may on behalf of
the holders of all junior subordinated debt securities of that series waive any
past event of default or default under the indenture with respect to that
series, except an event of default or a default in the payment of the principal
of, or premium, if any, or any interest on any junior subordinated debt security
of that series or in respect of a provision
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which under the indenture cannot be modified or amended without the consent of
the holder of each outstanding junior subordinated debt security of that series
affected.
CONCERNING THE INDENTURE TRUSTEE
OGE Energy and certain of its subsidiaries maintain bank accounts, borrow
money and have other customary commercial banking or investment banking
relationships with the indenture trustee in the ordinary course of business.
MISCELLANEOUS
The indenture provides that OGE Energy will pay all fees and expenses
related to:
- the issuance and exchange of the trust securities and the junior
subordinated debt securities;
- the organization, maintenance and dissolution of the trust;
- the retention of the trustees; and
- the enforcement by the property trustee of the rights of the holders of
the preferred securities.
The indenture is governed and construed in accordance with the laws of
Oklahoma.
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DESCRIPTION OF THE GUARANTEE
The guarantee to be executed and delivered by OGE Energy for the benefit of
the holders of preferred securities will be qualified as an indenture under the
Trust Indenture Act of 1939. Wilmington Trust Company will act as guarantee
trustee for purposes of the Trust Indenture Act. The terms of the guarantee will
include those set forth in the guarantee and those made part of the guarantee by
the Trust Indenture Act. The following summary of the material terms of the
guarantee is not intended to be complete and is qualified in all respects by the
applicable prospectus supplement, the guarantee, the Trust Indenture Act and
other applicable law. The guarantee will be filed as an exhibit to a document
incorporated by reference in the registration statement of which this prospectus
forms a part.
GENERAL
Pursuant to and to the extent set forth in the guarantee, OGE Energy will
irrevocably and unconditionally agree to pay in full to the holders of the
preferred securities, as and when due, regardless of any defense, right of
set-off or counterclaim which the trust may have or assert, the following
payments without duplication:
- any accrued and unpaid distributions that are required to be paid on the
preferred securities, to the extent the trust has funds legally and
immediately available for those distributions;
- the redemption price per preferred security, to the extent the trust has
funds available for those redemptions; and
- upon a voluntary or involuntary dissolution, winding-up or liquidation of
the trust, other than in connection with the distribution of junior
subordinated debt securities to the holders of preferred securities, the
lesser of (1) the aggregate liquidation amount of the preferred securities
and all accrued and unpaid distributions thereon and (2) the amount of
assets of the trust remaining for distribution to holders of the preferred
securities upon a liquidation of the trust.
STATUS OF THE GUARANTEE
The guarantee will constitute an unsecured obligation of OGE Energy and will
rank:
- subordinate and junior in right of payment to all other liabilities of OGE
Energy, except those that rank equally or subordinate by their terms,
- on a parity with the most senior preferred or preference stock now or
hereafter issued by OGE Energy and with any guarantee now or hereafter
entered into by OGE Energy in respect of any preferred securities of any
affiliate of OGE Energy, and
- senior to OGE Energy's common stock.
The guarantee will not place a limitation on the amount of additional senior
debt that may be incurred by OGE Energy.
The guarantee will constitute a guarantee of payment and not of collection
(that is, the guaranteed party may institute a legal proceeding directly against
OGE Energy to enforce its rights under the guarantee without first instituting a
legal proceeding against any other person or entity). The guarantee will not be
discharged except by payment of the guarantee payments in full to the extent not
paid by the trust or upon distribution of the junior subordinated debt
securities to the holders of the preferred securities in exchange for all such
preferred securities.
The guarantee, when taken together with OGE Energy's obligations under the
junior subordinated debt securities, the indenture and the declaration,
including its obligations to pay costs, expenses, debts and liabilities of the
trust, other than those relating to trust securities, will provide a full and
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unconditional guarantee on a subordinated basis by OGE Energy of payments due on
the preferred securities. See "Effect of Obligations Under the Junior
Subordinated Debt Securities and the Guarantee."
IMPORTANT COVENANTS OF OGE ENERGY
In the guarantee, OGE Energy will covenant that, so long as any trust
securities remain outstanding, if:
- there shall have occurred any event of default under the indenture or OGE
Energy shall be in default with respect to its payment of any obligations
under the guarantee, or
- OGE Energy shall have given notice of its election to defer interest
payments and shall not have rescinded such notice, and while such interest
is deferred,
then OGE Energy will not, and will not permit any subsidiary to:
- declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of OGE Energy's
capital stock, or
- make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of OGE Energy that rank on a
parity with or junior in interest to the junior subordinated debt
securities or make any guarantee payments with respect to any guarantee by
OGE Energy of the debt securities of any subsidiary of OGE Energy if such
guarantee ranks on a parity with or junior in interest to such junior
subordinated debt securities, other than:
- dividends or distributions in common stock of OGE Energy,
- payments under the guarantee made by OGE Energy in respect of the trust
securities of the trust,
- any declaration of a dividend in connection with the implementation of
a shareholders' rights plan, or the issuance of stock under any such
plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, and
- purchases of common stock related to the issuance of common stock or
rights under any of OGE Energy's benefit plans.
EVENTS OF DEFAULT
An event of default under the guarantee will occur upon the failure of OGE
Energy to perform any of its payment or other obligations required by the
guarantee. The holders of a majority in aggregate liquidation amount of the
preferred securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the guarantee trustee in
respect of the guarantee or to direct the exercise of any trust or power
conferred upon the guarantee trustee under the guarantee.
If the guarantee trustee fails to enforce the guarantee trustee's rights
under the guarantee, any holder of related preferred securities may directly sue
OGE Energy to enforce the guarantee trustee's rights under the guarantee without
first suing the trust, the guarantee trustee or any other person or entity.
OGE Energy, as guarantor, will be required to file annually with the
guarantee trustee a certificate as to whether or not OGE Energy is in compliance
with all the conditions and covenants applicable to it under the guarantee.
The holders of a majority in liquidation amount of the preferred securities
may vote to waive, on behalf of all holders of preferred securities, any past
event of default under the guarantee.
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MODIFICATION OF GUARANTEE; ASSIGNMENT
The guarantee may be amended only with the prior approval of the holders of
not less than 66 2/3% in aggregate liquidation amount of the outstanding
preferred securities. No vote will be required, however, for any changes that do
not materially adversely affect the rights of holders of preferred securities.
All guarantees and agreements contained in the guarantee shall bind the
successors, assignees, receivers, trustees and representatives of OGE Energy and
shall inure to the benefit of the holders of the preferred securities then
outstanding.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
Prior to the occurrence of a default relating to the guarantee, the
guarantee trustee undertakes to perform only such duties as are specifically set
forth in the guarantee. After such default, the guarantee trustee will exercise
the same degree of care as a prudent individual would exercise in the conduct of
his or her own affairs. Provided that the foregoing requirements have been met,
the guarantee trustee is under no obligation to exercise any of the powers
vested in it by the guarantee at the request of any holder of preferred
securities unless it is offered reasonable indemnity against the costs, expenses
and liabilities that might be incurred thereby.
TERMINATION OF THE GUARANTEE
The guarantee will terminate as to the preferred securities upon full
payment of the redemption price of all preferred securities, upon distribution
of the junior subordinated debt securities to the holders of the preferred
securities or upon full payment of the amounts payable upon liquidation of the
trust. The guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any holder of preferred securities must restore
payment of any sums paid under the preferred securities or the guarantee.
GOVERNING LAW
The guarantee will be governed by and construed in accordance with the laws
of Oklahoma.
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EFFECT OF OBLIGATIONS UNDER THE JUNIOR SUBORDINATED DEBT
SECURITIES AND THE GUARANTEE
As set forth in the declaration, the sole purpose of the trust is to issue
the trust securities and to invest the proceeds from such issuance and sale in
the junior subordinated debt securities. As long as payments of interest and
other payments are made when due on the junior subordinated debt securities,
such payments will be sufficient to cover the distributions and payments due on
the trust securities. This is due to the following factors:
- the aggregate principal amount of junior subordinated debt securities will
be equal to the sum of the aggregate stated liquidation amount of the
trust securities;
- the interest rate and the interest and other payment dates on the junior
subordinated debt securities will match the distribution rate and
distribution and other payment dates for the preferred securities;
- under the indenture, OGE Energy will pay, and the trust will not be
obligated to pay, directly or indirectly, all costs, expenses and
obligations of the trust other than those relating to the trust
securities; and
- the declaration further provides that the OGE Energy trustees may not
cause or permit the trust to engage in any activity that is not consistent
with the purposes of the trust.
Payments of distributions, to the extent there are legally and immediately
available funds, and other payments due on the preferred securities, to the
extent there are legally and immediately available funds, are guaranteed by OGE
Energy to the extent described in this prospectus. If OGE Energy does not make
interest payments on the junior subordinated debt securities, the trust will not
have sufficient funds to pay distributions on the preferred securities. The
guarantee is a subordinated guarantee. The guarantee does not apply to any
payment of distributions unless and until the trust has sufficient funds for the
payment of such distributions. See "Description of the Guarantee."
The guarantee covers the payment of distributions and other payments on the
preferred securities only if and to the extent that OGE Energy has made a
payment of interest or principal or other payments on the junior subordinated
debt securities. The guarantee, when taken together with OGE Energy's
obligations under the junior subordinated debt securities and the indenture and
its obligations under the declaration, will provide a full and unconditional
guarantee of distributions and all other amounts due on the preferred
securities.
OGE Energy acknowledges that the guarantee trustee shall enforce the
guarantee on behalf of the holders of the preferred securities. If OGE Energy
fails to make payments under the guarantee, the guarantee allows the holders of
the preferred securities to direct the guarantee trustee to enforce its rights
thereunder. If the guarantee trustee fails to enforce the guarantee, any holder
of preferred securities may directly sue OGE Energy to enforce the guarantee
trustee's rights under the guarantee. Such holder need not first sue the trust,
the guarantee trustee, or any other person or entity. A holder of preferred
securities may also directly sue OGE Energy to enforce such holder's right to
receive payment under the guarantee. Such holder need not first (1) direct the
guarantee trustee to enforce the terms of the guarantee or (2) sue the trust or
any other person or entity.
OGE Energy will be required to pay all costs and expenses of each OGE Energy
Capital Trust pursuant to the amended and restated declaration of each trust.
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UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
In the opinion of Gardner, Carton & Douglas, special United States tax
counsel to OGE Energy, the following discussion is an accurate summary of the
material United States federal income tax consequences of the purchase,
ownership and disposition of the preferred securities.
Except where we state otherwise, this summary deals only with preferred
securities held as capital assets by a holder who:
- is a United States person (as defined below), and
- purchases the preferred securities upon original issuance at their
original offering price.
A "United States person" is a holder who is one of the following:
- a citizen or individual resident of the United States,
- a corporation, partnership or other entity created or organized in or
under the laws of the United States or any political subdivision of the
United States,
- an estate the income of which is subject to United States federal income
taxation regardless of its source,
- any trust that (x) is subject to the primary supervision of a court within
the United States with respect to its administration and the control of
one or more United States persons or (y) has a valid election in effect
under applicable United States Treasury regulations to be treated as a
United States person.
Your tax treatment may vary depending on your particular situation. This
summary does not address all the tax consequences that may be relevant to
holders that are subject to special tax treatment, such as:
- banks;
- real estate investment trusts;
- regulated investment companies;
- insurance companies;
- dealers in securities or currencies;
- tax-exempt investors;
- individual retirement and tax deferred accounts;
- persons holding preferred securities as part of a (1) hedging, (2)
integrated investment, (3) conversion or (4) constructive sale
transaction;
- persons holding preferred securities as part of a straddle; or
- persons whose functional currency is not the United States Dollar.
In addition, this summary does not include any description of the following,
either of which may be applicable to you:
- any alternative minimum tax consequences; or
- the tax laws of any state, local or foreign government.
This summary is based on the Internal Revenue Code of 1986, as amended (the
"Code"), the Treasury regulations promulgated under the Code and administrative
and judicial interpretations in effect as of the date of the prospectus. These
income tax laws, regulations and interpretations, however,
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may change at any time. Any change could be retroactive to the issuance date of
the preferred securities and could cause the tax consequences to vary
substantially from the consequences described below, possibly having an adverse
effect on a holder of preferred securities.
The authorities on which this summary is based are subject to various
interpretations. No ruling has been received from the Internal Revenue Service
("IRS") on the matters discussed in this summary and either the IRS or the
courts could disagree with the explanations or conclusions contained in this
summary and the opinion of special tax counsel.
YOU SHOULD CONSULT YOUR OWN TAX ADVISOR WITH RESPECT TO THE TAX CONSEQUENCES
TO YOU OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE PREFERRED
SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN, AND
OTHER TAX LAWS. FOR A DISCUSSION OF THE POSSIBLE REDEMPTION OF THE PREFERRED
SECURITIES UPON THE OCCURRENCE OF A TAX EVENT SEE "CERTAIN TERMS OF THE
PREFERRED SECURITIES--SPECIAL EVENT REDEMPTION."
CLASSIFICATION OF THE TRUST
We intend to take the position that the trust will be classified as a
grantor trust for United States federal income tax purposes and not as an
association taxable as a corporation. As a condition to the issuance of the
junior subordinated debt securities, Gardner, Carton & Douglas will deliver an
opinion that under current law and assuming full compliance with the terms of
the trust's amended and restated declaration, and based upon certain facts and
assumptions contained in such opinion, the trust will be classified as a grantor
trust for United States federal income tax purposes. As a result, for United
States federal income tax purposes, you generally will be treated as owning an
undivided beneficial ownership interest in the junior subordinated debt
securities. Thus, you will be required to include in your gross income your pro
rata share of the interest income or original issue discount that is paid or
accrued on the junior subordinated debt securities. See "--Interest Income and
Original Issue Discount."
CLASSIFICATION OF THE JUNIOR SUBORDINATED DEBT SECURITIES
OGE Energy, the trust and you (by your acceptance of a beneficial ownership
interest in a preferred security) will agree to treat the junior subordinated
debt securities as indebtedness for all United States tax purposes. As a
condition to the issuance of the junior subordinated debt securities, Gardner,
Carton & Douglas will deliver an opinion upon issuance of the junior
subordinated debt securities that under current law, and based upon certain
facts and assumptions contained in such opinion, the junior subordinated debt
securities will be classified as indebtedness for United States federal income
tax purposes.
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
We are taking the position that you will generally be taxed on the stated
interest on the junior subordinated debt securities as ordinary income at the
time it is paid or accrued in accordance with your regular method of tax
accounting and will report the interest income to you accordingly. We anticipate
that the junior subordinated debt securities will not be issued with an issue
price that is less than their stated redemption price at maturity. Thus, we are
taking the position that the junior subordinated debt securities are not subject
to the special original issue discount ("OID") rules, at least upon initial
issuance.
If, however, OGE Energy exercises its right to defer payments of interest on
the junior subordinated debt securities, the junior subordinated debt securities
will become OID instruments at such time. In such case, you will be subject to
the special OID rules described below. Once the junior
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subordinated debt securities become OID instruments, they will be taxed as OID
instruments for as long as they remain outstanding.
The Treasury regulations dealing with OID and the right to defer interest
have not yet been addressed in any rulings or other interpretations by the IRS.
It is possible that, because of OGE Energy's right to defer interest, the IRS
could assert that the junior subordinated debt securities were issued initially
with OID. If the IRS were successful, regardless of whether OGE Energy exercises
its option to defer payments of interest on such junior subordinated debt
securities, you would be subject to the special OID rules described below.
Under the OID economic accrual rules, the following occurs:
- you would accrue as OID an amount of interest income each year that
approximates the stated interest payments called for under the terms of
the junior subordinated debt securities using the
constant-yield-to-maturity method of accrual (based on the compounding of
interest) described in section 1272 of the Code regardless of your method
of accounting;
- the actual cash distributions of interest you receive on the preferred
securities in respect of the junior subordinated debt securities would not
be reported separately as taxable income;
- any amount of OID included in your gross income (whether or not during a
deferral period) with respect to the preferred securities will increase
your tax basis in such preferred securities; and
- the amount of cash distributions that you receive in respect of such
accrued OID will reduce your tax basis in such preferred securities.
As a result, if OGE Energy elects to defer payment of interest on the junior
subordinated debentures, you will be required to include an amount of interest
income in your gross income each year as OID, even though you do not receive
actual cash distributions with respect to the preferred securities and even
though you may use the cash method of accounting.
If you are a corporate holder of preferred securities, you will not be
entitled to a dividends-received deduction with respect to any income you
recognize with respect to the preferred securities.
DISTRIBUTION OF JUNIOR SUBORDINATED DEBT SECURITIES OR CASH UPON LIQUIDATION OF
THE TRUST
As described under the caption "Certain Terms of the Preferred
Securities--Distribution of the Junior Subordinated Debt Securities," the junior
subordinated debt securities held by the trust may be distributed to you in
exchange for your preferred securities when the trust is liquidated. Under
current law, except as described below, this type of distribution would not be
taxable. Upon a distribution, you will receive your pro rata share of the junior
subordinated debt securities previously held indirectly through the trust. Your
holding period and aggregate tax basis in the junior subordinated debt
securities will equal the holding period and aggregate tax basis that you had in
your preferred securities before the distribution.
OGE Energy has the option to redeem the junior subordinated debt securities
and distribute the resulting cash in liquidation of the trust. This distribution
of cash would be taxable as described below in "--Sales of Preferred
Securities." Further, in other circumstances described under "Certain Terms of
the Preferred Securities--Special Event Redemption," OGE Energy may redeem the
junior subordinated debt securities and distribute cash in liquidation of the
trust. This distribution of cash would also be taxable as described below in
"--Sales of Preferred Securities."
25
<PAGE>
If you receive junior subordinated debt securities in exchange for your
preferred securities, you would include in gross income interest or OID in
respect of the junior subordinated debt securities received from the trust in
the manner described above under "--Interest Income and Original Issue
Discount."
If the trust is treated as an association taxable as a corporation, a tax
event will occur. If OGE Energy elects to distribute the junior subordinated
debt securities to you at this time, or to redeem the securities and distribute
the resulting cash, the distribution or the redemption and distribution, would
likely constitute a taxable event to the trust and to you.
SALES OF PREFERRED SECURITIES
If you sell or OGE Energy redeems your preferred securities, you will
recognize gain or loss equal to the difference between:
- your amount realized on the sale or redemption of the preferred securities
(less an amount equal to any accrued but unpaid qualified stated interest
that you did not previously include in income, which will be taxable as
such); and
- your adjusted tax basis in your preferred securities sold or redeemed.
Your basis in the preferred securities will generally be your original issue
price increased by any OID previously included in income to the date of
disposition and reduced by cash distributions received with respect to such OID.
If you dispose of the preferred securities between interest payment dates, you
will be required to include in your gross income the amount of any accrued but
unpaid interest as ordinary income and your basis in the preferred securities
will be increased by such amount.
The gain or loss will generally be a long-term capital gain or loss if you
have held your preferred securities for more than one year. Long-term capital
gains of individuals are taxed at a maximum statutory rate of 20%. The
deductibility of capital losses is subject to limitations.
NON-UNITED STATES HOLDERS
The following discussion only applies to you if you are not a United States
person. As discussed above, the preferred securities will be treated as evidence
of an indirect beneficial ownership interest in the junior subordinated debt
securities. See "--Classification of the Trust." Thus, under present United
States federal income tax law, and subject to the discussion below concerning
backup withholding:
(1) no withholding of United States federal income tax will be required with
respect to distributions by the trust or any paying agent of principal or
interest (which for purposes of this discussion includes any OID) to you on
the preferred securities (or the junior subordinated debt securities) if you
meet all of the following requirements (the "portfolio interest exemption"):
- you do not actually or constructively own 10% or more of the total
combined voting power of all classes of stock of OGE Energy entitled to
vote within the meaning of section 871(h)(3) of the Code and the
regulations thereunder;
- you are not a controlled foreign corporation that is related to OGE Energy
through stock ownership;
- you are not a bank whose receipt of interest on the junior subordinated
debt securities is described in section 881(c)(3)(A) of the Code; and
- you satisfy the statement requirement (described generally below) set
forth in section 871(h) and section 881(c) of the Code and the regulations
thereunder; and
26
<PAGE>
(2) no withholding of United States federal income tax generally will be
required with respect to any gain you realize upon the sale or other
disposition of the preferred securities (or the junior subordinated debt
securities).
To satisfy the statement requirement referred to in (1) above, you, or a
financial institution holding the preferred securities on your behalf, must
provide, in accordance with specified procedures, to the trust or its paying
agent, a statement to the effect that you are not a United States person.
Currently, you can meet this requirement if one of the following is performed:
- you provide your name and address, and certify, under penalties of
perjury, that you are not a United States person (this certification may
be made on an IRS Form W-8 (or successor form)); or
- a financial institution holding the preferred securities on your behalf
certifies, under penalties of perjury, that:
(a) you provided it with a statement described above; and
(b) the financial institution furnishes the paying agent with a copy of
the statement.
Under final Treasury regulations (the "Final Regulations"), the statement
requirement referred to in (1) above may also be satisfied with other
documentary evidence for interest paid after December 31, 2000 with respect to
an offshore account or through certain foreign intermediaries.
If you cannot satisfy the requirements of the portfolio interest exemption
described in (1) above, distributions of interest (including any OID) and
premium, in any, made to you with respect to the preferred securities, will be
subject to a 30% United States withholding tax unless you provide OGE Energy or
its paying agent, as the case may be, with one of the following properly
executed forms:
- IRS Form 1001 (or successor form) claiming an exemption from, or a
reduction of, this withholding tax under the benefit of a tax treaty; or
- IRS Form 4224 (or successor form) stating that distributions of interest
with respect to preferred securities (or the junior subordinated debt
securities) is not subject to this withholding tax because it is
effectively connected with your conduct of a trade or business in the
United States.
Under the Final Regulations effective for payments after December 31, 2000,
you will generally be required to provide IRS Form W-8 in lieu of IRS Form 1001
and IRS Form 4224, although alternative documentation may be applicable in
certain situations.
If you are engaged in a trade or business in the United States and interest
on the preferred securities (or junior subordinated debt securities) is
effectively connected with the conduct of your trade or business, you will be
subject to United States federal income tax on such interest on a net income
basis in the same manner as if you were a United States person. However, you
will not be subject to withholding described above.
You will generally not be subject to United States federal income tax on any
gain you realize upon the sale or other disposition of the preferred securities
(or the junior subordinated debt securities) unless:
- the gain is effectively connected with your trade or business in the
United States; or
- you are an individual and you are present in the United States for 183
days or more in the taxable year of such sale, exchange or retirement and
certain other conditions are met.
In addition, in either case, if you are a foreign corporation, you may be
subject to a branch profits tax equal to 30% (or lesser rate under an applicable
tax treaty) of your effectively connected earnings
27
<PAGE>
and profits for the taxable year, subject to adjustments. For this purpose,
interest and gain with respect to the preferred securities would be included in
your earnings and profits.
INFORMATION REPORTING AND BACKUP WITHHOLDING
Income on the preferred securities held of record by United States persons
(other than corporations and other exempt holders) will be reported annually to
such holders and to the IRS. Such income will be reported to you on Forms 1099,
which we intend to mail to the holders of record by January 31 following each
calendar year.
"Backup withholding" at a rate of 31% will apply to payments of interest to
non-exempt United States persons unless you:
- furnish your taxpayer identification number in the manner prescribed in
applicable Treasury regulations;
- certify that such number is correct;
- certify as to no loss of exemption from backup withholding; and
- meet certain other conditions.
In general, no information reporting or backup withholding will be required
with respect to payments made by the trust or any paying agent to non-United
States persons if a statement described in (1) under "Non-United States Holders"
has been received and the payor does not have actual knowledge that you are a
United States person.
In addition, backup withholding and information reporting will apply to the
proceeds from disposition of preferred securities (or junior subordinated debt
securities) within the United States or conducted outside the United States
through certain United States related financial intermediaries unless the
statement described in (1) under "Non-United States Holders" has been received
(and the payor does not have actual knowledge that you are a United States
person) or you otherwise establish an exemption.
Any amounts withheld from you under the backup withholding rules generally
will be allowed as a refund or a credit against your United States federal
income tax liability, provided the required information is furnished to the IRS.
28
<PAGE>
PLAN OF DISTRIBUTION
The trust may offer the preferred securities in one or more of the following
ways from time to time:
- to or through underwriters or dealers;
- by itself directly;
- through agents; or
- through a combination of any of these methods of sale.
The prospectus supplement relating to an offering of preferred securities
will set forth the terms of that offering, including:
- the name or names of any underwriters, dealers or agents;
- the purchase price of the preferred securities and the proceeds to OGE
Energy from the sale;
- any underwriting discounts and commissions or agency fees and other items
constituting underwriters' or agents' compensation;
- the initial public offering price;
- any discounts or concessions to be allowed or reallowed or paid to
dealers; and
- any securities exchanges on which such preferred securities may be listed.
Any initial public offering prices, discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
If underwriters are used in an offering of preferred securities, those
preferred securities will be acquired by the underwriters for their own account
and may be resold from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices
determined at the time of sale. The securities may be either offered to the
public through underwriting syndicates represented by one or more managing
underwriters or by one or more underwriters without a syndicate. Unless
otherwise set forth in the prospectus supplement, the underwriters will not be
obligated to purchase preferred securities unless specified conditions are
satisfied, and if the underwriters do purchase any preferred securities, they
will purchase all preferred securities.
In connection with underwritten offerings of the preferred securities and in
accordance with applicable law and industry practice, underwriters may
over-allot or effect transactions that stabilize, maintain or otherwise affect
the market price of the preferred securities at levels above those that might
otherwise prevail in the open market, including by entering stabilizing bids,
effecting syndicate covering transactions or imposing penalty bids, each of
which is described below.
- A stabilizing bid means the placing of any bid, or the effecting of any
purchase, for the purpose of pegging, fixing or maintaining the price of a
security.
- A syndicate covering transaction means the placing of any bid on behalf of
the underwriting syndicate or the effecting of any purchase to reduce a
short position created in connection with the offering.
- A penalty bid means an arrangement that permits the managing underwriter
to reclaim a selling concession from a syndicate member in connection with
the offering when offered securities originally sold by the syndicate
member are purchased in syndicate covering transactions.
29
<PAGE>
These transactions may be effected on the NYSE, in the over-the-counter
market, or otherwise. Underwriters are not required to engage in any of these
activities, or to continue such activities if commenced.
If dealers are used in the sale of preferred securities, OGE Energy will
sell those preferred securities to the dealers as principals. The dealers may
then resell the preferred securities to the public at varying prices to be
determined by the dealers at the time of resale. The names of the dealers and
the terms of the transaction will be set forth in the prospectus supplement
relating to that transaction.
Preferred securities may be sold directly by OGE Energy to one or more
institutional purchasers, or through agents designated by OGE Energy from time
to time, at a fixed price or prices, which may be changed, or at varying prices
determined at the time of sale. Any agent involved in the offer or sale of the
preferred securities in respect of which this prospectus is delivered will be
named, and any commissions payable by OGE Energy to that agent will be set
forth, in the prospectus supplement relating to that offering. Unless otherwise
indicated in the prospectus supplement, any agent will be acting on a best
efforts basis for the period of its appointment.
If so indicated in the applicable prospectus supplement, OGE Energy will
authorize agents, underwriters or dealers to solicit offers from certain types
of institutions to purchase preferred securities from the trust at the public
offering price set forth in the prospectus supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in the
future. Those contracts will be subject only to those conditions set forth in
the prospectus supplement and the prospectus supplement will set forth the
commission payable for solicitation of the contracts.
This prospectus together with any applicable prospectus supplement may also
be used in connection with offers and sales of the preferred securities in
market-making transactions at negotiated prices related to prevailing market
prices at the time of sale.
Underwriters, dealers and agents may be entitled, under agreements with OGE
Energy and the trust, to indemnification by OGE Energy relating to material
misstatements and omissions. Underwriters, dealers and agents may engage in
transactions with, or perform services for, OGE Energy and affiliates of OGE
Energy in the ordinary course of business.
Each series of preferred securities will be a new issue of securities and
will have no established trading market. Any underwriters to whom preferred
securities are sold for public offering and sale may make a market in those
preferred securities, but the underwriters will not be obligated to do so and
may discontinue any market making at any time without notice. The preferred
securities may or may not be listed on a national securities exchange. No
assurance can be given that there will be a market for the preferred securities.
30
<PAGE>
ERISA CONSIDERATIONS
A fiduciary of a pension, profit-sharing or other employee benefit plan
governed by the Employee Retirement Income Security Act of 1974, should consider
the fiduciary standards of ERISA in the context of the ERISA plan's particular
circumstances before authorizing an investment in the preferred securities of
the trust. Among other factors, the fiduciary should consider whether such an
investment is in accordance with the documents governing the ERISA plan and
whether the investment is appropriate for the ERISA plan in view of its overall
investment policy and diversification of its portfolio.
ERISA and the Code prohibit ERISA plans, as well as individual retirement
accounts and Keogh plans governed by section 4975 of the Code, from engaging in
certain transactions involving "plan assets" with parties that are "parties in
interest" under ERISA or "disqualified persons" under the Code relating to the
plan. The U.S. Department of Labor has issued a final regulation with regard to
whether the underlying assets of an entity in which employee benefit plans
acquire equity interests are deemed to be plan assets.
Under such regulation, for purposes of ERISA and section 4975 of the Code,
the assets of the trust would be deemed to be "plan assets" of a plan whose
assets were used to purchase preferred securities of the trust if the preferred
securities of the trust were considered to be equity interests in the trust and
no exception to plan asset status were applicable under such regulation.
If the assets of the trust were deemed to be plan assets of plans that are
holders of the preferred securities of the trust, a plan's investment in the
preferred securities of the trust might be deemed to constitute a delegation
under ERISA of the duty to manage plan assets by a fiduciary investing in
preferred securities of the trust. Also, OGE Energy might be considered a "party
in interest" or "disqualified person" relating to plans whose assets were used
to purchase preferred securities of the trust. If this were the case, an
investment in preferred securities of the trust by a plan might constitute, or
in the course of the operation of the trust give rise to, a prohibited
transaction under ERISA or the Code. In particular, it is likely that under such
circumstances a prohibited extension of credit to OGE Energy would be considered
to occur under ERISA and the Code.
In addition, OGE Energy might be considered a "party in interest" or
"disqualified person" for certain plans for reasons unrelated to the operation
of the trust, e.g., because of the provision of services by OGE Energy or an
affiliate to the plan. A purchase of preferred securities of the trust by any
such plan would be likely to result in a prohibited extension of credit to OGE
Energy, without regard to whether the assets of the trust constituted plan
assets.
Because of the possibility that a prohibited extension of credit could occur
as a result of the purchase or holding of the preferred securities of the trust
by a plan, the preferred securities of the trust may not be purchased or held by
any plan or any person investing "plan assets" of any plan, unless such
purchaser or holder is eligible for the exemptive relief available under:
- Prohibited Transaction Class Exemption 96-23 for transactions determined
by in-house asset managers,
- PTCE 95-60 for transactions involving insurance company general accounts,
- PTCE 91-38 for transactions involving bank collective investment funds,
- PTCE 90-1 for transactions involving insurance company separate accounts,
or
- PTCE 84-14 for transactions determined by independent qualified asset
managers.
31
<PAGE>
Any purchaser of the preferred securities of the trust or any interest
therein will be deemed to have represented to the trust that either
(a) it is not a plan and is not purchasing such securities or interest
therein on behalf of or with "plan assets" of any plan or
(b) its purchase and holding of the preferred securities of the trust or
interest therein is eligible for the exemptive relief available under
PTCE 96-23, 95-60, 91-38, 90-1 or 84-14.
Due to the complexity of these rules and the penalties imposed upon persons
involved in prohibited transactions, it is important that any person considering
the purchase of preferred securities of the trust with plan assets consult with
its counsel regarding the consequences under ERISA and the Code of the
acquisition and ownership of preferred securities and the availability of
exemptive relief under the class exemptions listed above. In JOHN HANCOCK MUTUAL
LIFE INSURANCE CO. V. HARRIS TRUST AND SAVINGS BANK, 114 S.Ct. 517 (1993), the
Supreme Court ruled that assets held in an insurance company's general account
may be deemed to be "plan assets" for ERISA purposes under certain
circumstances. The issues raised in HARRIS TRUST have also been the subject of
legislative action, and have been addressed in proposed regulations issued by
the U.S. Department of Labor in December 1997.
LEGAL MATTERS
Gardner, Carton & Douglas and Rainey, Ross, Rice & Binns will act as legal
counsel to OGE Energy. Richards, Layton & Finger, Wilmington, Delaware, or
counsel to be identified in the applicable prospectus supplement, will act as
legal counsel to the trust. Jones, Day, Reavis and Pogue, Chicago, Illinois,
will act as legal counsel to the underwriters.
EXPERTS
The consolidated financial statements and schedule of OGE Energy included in
OGE Energy's Form 10-K Annual Report for the fiscal year ended December 31,
1998, to the extent and for the periods indicated in their reports included in
said Form 10-K, have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports with respect thereto, and are
incorporated by reference herein in reliance upon the authority of said firm as
experts in accounting and auditing in giving said reports.
The consolidated financial statements of Tejas Transok Holding, L.L.C.
included in OGE Energy's Form 8-K Current Report dated July 13, 1999, as amended
September 14, 1999, to the extent and for the periods indicated in their report
included in said Form 8-K, have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their reports with respect thereto, and are
incorporated by reference herein in reliance upon the authority of said firm as
experts in accounting and auditing in giving said reports.
32
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS. NO ONE
HAS BEEN AUTHORIZED TO PROVIDE YOU WITH DIFFERENT INFORMATION. YOU SHOULD NOT
ASSUME THAT THE INFORMATION CONTAINED IN THIS PROSPECTUS SUPPLEMENT OR THE
ATTACHED PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT
COVER OF THE DOCUMENT. SECURITIES ARE NOT BEING OFFERED IN ANY STATE OR
JURISDICTION WHERE THE OFFER IS NOT PERMITTED.
---------------------
TABLE OF CONTENTS
<TABLE>
<S> <C>
PROSPECTUS SUPPLEMENT
OGE Energy Corp....................... S-2
Selected Financial Data............... S-3
Ratio of Earnings to Fixed Charges.... S-3
Use of Proceeds....................... S-4
Accounting Treatment.................. S-4
OGE Energy Capital Trust I............ S-4
Risk Factors.......................... S-5
Description of Securities............. S-8
Certain Terms of the Preferred
Securities.......................... S-8
Certain Terms of the Junior
Subordinated Debt Securities........ S-11
Book-Entry Issuance................... S-13
Underwriting.......................... S-14
PROSPECTUS
Summary Information-Q&A............... 2
Where You Can Find More Information... 5
Use of Proceeds....................... 5
Description of Preferred Securities... 6
Description of the Junior Subordinated
Debt Securities..................... 13
Description of the Guarantee.......... 19
Effect of Obligations Under the Junior
Subordinated Debt Securities and the
Guarantee........................... 22
United States Federal Income Tax
Consequences........................ 23
Plan of Distribution.................. 29
ERISA Considerations.................. 31
Legal Matters......................... 32
Experts............................... 32
</TABLE>
PREFERRED SECURITIES
OGE ENERGY
CAPITAL TRUST I
% PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
----------------
FULLY AND UNCONDITIONALLY GUARANTEED, TO THE EXTENT SET FORTH HEREIN, BY
OGE ENERGY CORP.
------------------
PROSPECTUS SUPPLEMENT
, 1999
---------------------------
LEHMAN BROTHERS
A.G. EDWARDS & SONS, INC.
CIBC WORLD MARKETS
MERRILL LYNCH & CO.
MORGAN STANLEY
DEAN WITTER
PRUDENTIAL SECURITIES
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses relating to this registration will be borne by OGE Energy Corp.
Except for the Securities and Exchange Commission registration fee, the
following expenses are estimates:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............... $ 55,600
Rating Agency fee................................................. 100,000*
NYSE Listing fee.................................................. 60,000*
Legal fees and expenses........................................... 50,000*
Accounting fees and expenses...................................... 35,000*
Transfer Agent and Trustees fees and expenses..................... 30,000*
Printing fees and expenses........................................ 200,000*
Miscellaneous..................................................... 19,400*
---------
Total......................................................... $ 550,000
</TABLE>
- ------------------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Provisions of the Annotated Oklahoma Statutes provide that OGE Energy may,
and in some circumstances must, indemnify the directors and officers of OGE
Energy against liabilities and expenses incurred by any such person by reason of
the fact that such person was serving in such capacity subject to certain
limitations and conditions set forth in the statutes. OGE Energy's Restated
Certificate of Incorporation contains substantially similar provisions that
require such indemnification. The Restated Certificate of Incorporation is filed
as Exhibit 3.01 to OGE Energy's Form 10-K for the Fiscal year ended December 31,
1996, File No. 001-12579 and incorporated herein by this reference. OGE Energy's
Restated Certificate of Incorporation also contains provisions limiting the
liability of OGE Energy's directors in certain instances. OGE Energy has an
insurance policy covering its directors and officers against certain personal
liability, which may include liabilities under the Securities Act of 1933, as
amended (the "Act").
The Declaration of each Trust provides that OGE Energy Corp. shall indemnify
the Property Trustee or any of its affiliates, the Delaware Trustee or any of
its affiliates, or any officers, directors, shareholders, members, partners,
employees, representatives, custodians, nominees or agents of the Property
Trustee and the Delaware Trustee (each, a "Fiduciary Indemnified Person") for,
and hold each Fiduciary Indemnified Person harmless against, any loss, liability
or expense incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties under
such Declaration.
The Declaration of each Trust also provides that OGE Energy Corp. will
indemnify, to the full extent permitted by law, any Regular Trustee, affiliate
of any Regular Trustee or any officers, directors, shareholders, members,
partners, employees, representatives or agents of any Regular Trustee or any
affiliate thereof; or any officer, employee or agent of such Trust or its
affiliates (each, a "Debenture Issuer Indemnified Person") who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such Trust) by reason
of the fact that he is or was a Debenture Issuer Indemnified Person against
expenses (including attorney fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action.
II-1
<PAGE>
ITEM 16. EXHIBITS
See Index to Exhibits.
ITEM 17. UNDERTAKINGS
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) or the Securities
Act;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or
any material change to such information in this registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of
the offering.
(4) For purposes of determining any liability under the Securities Act, each
filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, OGE
Energy Corp. certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Oklahoma City and State of Oklahoma on the 4th
day of October, 1999.
OGE ENERGY CORP.
/s/ JAMES R. HATFIELD
--------------------------------------
James R. Hatfield
VICE PRESIDENT AND TREASURER
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 4th day of October, 1999.
<TABLE>
<C> <S>
Chairman, President and
* Chief Executive Officer
- ------------------------------ (Principal Executive
Steven E. Moore Officer)
/s/ JAMES R. HATFIELD
- ------------------------------ Principal Financial
James R. Hatfield Officer
/s/ DONALD R. ROWLETT
- ------------------------------ Principal Accounting
Donald R. Rowlett Officer
*
- ------------------------------ Director
Herbert H. Champlin
*
- ------------------------------ Director
Luke R. Corbett
*
- ------------------------------ Director
William E. Durrett
*
- ------------------------------ Director
Martha W. Griffin
*
- ------------------------------ Director
H.L. Hembree, III
*
- ------------------------------ Director
Robert Kelley
*
- ------------------------------ Director
Bill Swisher
*
- ------------------------------ Director
Ronald H. White, M.D.
</TABLE>
<TABLE>
<S> <C> <C>
*By: /s/ JAMES R. HATFIELD
-------------------------
James R. Hatfield
(ATTORNEY-IN-FACT)
</TABLE>
S-1
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended, OGE
Energy Capital Trust I and OGE Energy Capital Trust II each certifies that it
has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Oklahoma City and State of Oklahoma on the 4th day of October, 1999.
<TABLE>
<S> <C> <C>
OGE ENERGY CAPITAL TRUST I
By: /s/ A. M. STRECKER
-------------------------
A. M. Strecker
TRUSTEE
By: /s/ JAMES R. HATFIELD
-------------------------
James R. Hatfield
TRUSTEE
OGE ENERGY CAPITAL TRUST II
By: /s/ A.M. STRECKER
-------------------------
A.M. Strecker
TRUSTEE
By: /s/ JAMES R. HATFIELD
-------------------------
James R. Hatfield
TRUSTEE
</TABLE>
S-2
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ----------- --------------------------------------------------------------------------------------------------------
<C> <S>
1.01 Form of Underwriting Agreement for Trust Preferred Securities to be filed by amendment
4.01 Copy of Trust Indenture, dated October 1, 1995, from OG&E to Boatmen's First National Bank of Oklahoma,
Trustee. (Filed as Exhibit 4.29 to Registration Statement No. 33-61821 and incorporated by reference
herein.)
4.02 Copy of Supplemental Trust Indenture No. 1, dated October 16, 1995, being a supplemental instrument to
Exhibit 4.01 hereto. (Filed as Exhibit 4.01 to OG&E's Form 8-K Report dated October 23, 1995, File No.
1-1097, and incorporated by reference herein.)
4.03 Supplemental Indenture No. 2, dated as of July 1, 1997, being a supplemental instrument to Exhibit 4.01
hereto. (Filed as Exhibit 4.01 of OG&E's Form 8-K filed on July 17, 1997 (File No. 1-1097) and
incorporated by reference herein.)
4.04 Supplemental Indenture No. 3, dated as of April 1, 1998, being a supplemental instrument to Exhibit 4.01
hereto. (Filed as Exhibit 4.01 to OG&E's Form 8-K filed on April 16, 1998 (File No. 1-1097) and
incorporated by reference herein.)
4.05 Form of Indenture with respect to the subordinated debt securities--filed herewith
4.06 Form of Supplemental Indenture with respect to the subordinated debt securities--filed herewith
4.07 Form of Subordinated debt security to be issued to each trust (included in Exhibit 4.06)
4.08 Certificate of Trust of OGE Energy Capital Trust I--filed herewith
4.09 Certificate of Trust of OGE Energy Capital Trust II--filed herewith
4.10 Declaration of Trust of OGE Energy Capital Trust I--filed herewith
4.11 Declaration of Trust of OGE Energy Capital Trust II--filed herewith
4.12 Form of Amended and Restated Declaration of Trust for each trust (including the forms of preferred
security and common security to be issued thereunder)--filed herewith
4.13 Form of Guarantee with respect to the preferred securities of each trust--filed herewith
5.01 Opinion and consent of Rainey, Ross, Rice & Binns as to the validity of the subordinated debt securities
and guarantees of OGE Energy Corp. being registered--filed herewith
5.02 Opinion and consent of Richards, Layton & Finger as to the validity of the trust preferred securities
being registered--filed herewith
8.01 Opinion and consent of Gardner, Carton & Douglas regarding certain tax matters--filed herewith
12.01 Computation in support of ratio of earnings to fixed charges--filed herewith
23.01 Consent of Rainey, Ross, Rice & Binns (included in Exhibit 5.01)
23.02 Consent of Richards, Layton & Finger (included in Exhibit 5.02)
23.03 Consent of Arthur Andersen LLP--filed herewith
23.04 Consent of Gardner, Carton & Douglas (included in Exhibit 8.01)
24.1 Power of Attorney--filed herewith
25.1 Form T-1 Statement of eligibility and qualification under the Trust Indenture Act of 1939 (a "Form T-1")
of Bank of Oklahoma, N.A. as trustee under the indenture with respect to the subordinated debt
securities--filed herewith
</TABLE>
E-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ----------- --------------------------------------------------------------------------------------------------------
<C> <S>
25.2 Form T-1 of Wilmington Trust Company as trustee under the declaration of trust of OGE Energy Capital
Trust I--filed herewith
25.3 Form of T-1 of Wilmington Trust Company as trustee under the declaration of trust of OGE Energy Capital
Trust II--filed herewith
25.4 Form of T-1 of Wilmington Trust Company as trustee under the guarantee for the benefit of holders of
trust preferred securities of OGE Energy Capital Trust I--filed herewith
25.5 Form of T-1 of Wilmington Trust Company as trustee under the guarantee for the benefit of holders of
trust preferred securities of OGE Energy Capital Trust II--filed herewith
</TABLE>
E-2
<PAGE>
EXHIBIT 4.05
- -------------------------------------------------------------------------------
OGE ENERGY CORP.,
AS ISSUER
TO
BANK OF OKLAHOMA, NATIONAL ASSOCIATION
AS TRUSTEE
------------------------
INDENTURE
SUBORDINATED DEBT SECURITIES
DATED AS OF _________________, 1999
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION...........................1
Section 101. Definitions...........................................................................1
"Act", ...............................................................................................2
"Affiliate".............................................................................................2
"Authenticating Agent"..................................................................................2
"Bankruptcy Law"........................................................................................2
"Board of Directors"....................................................................................2
"Board Resolution"......................................................................................2
"Business Day"..........................................................................................2
"Capitalized Lease Obligation"..........................................................................2
"Capital Stock".........................................................................................2
"Commission"............................................................................................3
"Common Depositary".....................................................................................3
"Company"...............................................................................................3
"Company Request" or "Company Order"....................................................................3
"Corporate Trust Office"................................................................................3
"Covenant Defeasance"...................................................................................3
"Custodian".............................................................................................3
"Default"...............................................................................................3
"Defaulted Interest"....................................................................................3
"Defeasance"............................................................................................3
"Dollars" and "$".......................................................................................3
"Event of Default"......................................................................................3
"Exchange Act"..........................................................................................3
"GAAP"..................................................................................................3
"Holder or Securityholder"..............................................................................4
"Indebtedness"..........................................................................................4
"Indenture".............................................................................................4
"Interest",.............................................................................................4
"Interest Payment Date",................................................................................4
"Lien"..................................................................................................4
"Maturity"..............................................................................................4
"Officer"...............................................................................................5
"Officer's Certificate".................................................................................5
"Opinion of Counsel"....................................................................................5
"Original Issue Discount Security"......................................................................5
"Outstanding",..........................................................................................5
"Paying Agent"..........................................................................................6
"Person"................................................................................................6
i
<PAGE>
"Place of Payment",.....................................................................................6
"Redemption Date",......................................................................................6
"Redemption Price",.....................................................................................6
"Registered Security"...................................................................................6
"Regular Record Date"...................................................................................6
"Responsible Officer",..................................................................................6
"Securities"............................................................................................6
"Security Register" and "Security Registrar"............................................................6
"Senior Indebtedness"...................................................................................7
"Significant Subsidiary"................................................................................7
"Special Record Date"...................................................................................7
"Stated Maturity",......................................................................................7
"Subsidiary"............................................................................................7
"Trust Indenture Act"...................................................................................7
"Trustee"...............................................................................................7
"U.S. Depositary".......................................................................................7
"U.S. Government Obligations"...........................................................................8
"Vice President",.......................................................................................8
Section 102. Compliance Certificates and Opinions..................................................8
Section 103. Form of Documents Delivered to Trustee................................................9
Section 104. Acts of Holders.......................................................................9
Section 105. Notices, Etc., to Trustee and Company................................................10
Section 106. Notice to Holders; Waiver............................................................11
Section 107. Conflict with Trust Indenture Act....................................................11
Section 108. Effect of Headings and Table of Contents.............................................11
Section 109. Successors and Assigns...............................................................12
Section 110. Separability Clause..................................................................12
Section 111. Benefits of Indenture................................................................12
Section 112. Governing Law........................................................................12
Section 113. Legal Holidays.......................................................................12
Section 114. No Recourse Against Others...........................................................12
ARTICLE TWO SECURITY FORMS...................................................................13
Section 201. Forms Generally......................................................................13
Section 202. Form of Face of Security.............................................................13
Section 203. Form of Reverse of Security..........................................................15
Section 204. Form of Trustee's Certificate of Authentication......................................20
Section 205. Securities in Global Form............................................................20
Section 206. CUSIP Number.........................................................................21
Section 207. Form of Legend for the Securities in Global Form.....................................21
ARTICLE THREE SECURITIES..........................................................................21
Section 301. Amount Unlimited; Issuable in Series.................................................21
ii
<PAGE>
Section 302. Denominations........................................................................24
Section 303. Execution, Authentication, Delivery and Dating.......................................24
Section 304. Temporary Securities.................................................................26
Section 305. Registration, Registration of Transfer and Exchange..................................26
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.....................................28
Section 307. Payment of Interest; Interest Rights Preserved.......................................29
Section 308. Persons Deemed Owners................................................................30
Section 309. Cancellation.........................................................................31
Section 310. Computation of Interest..............................................................31
ARTICLE FOUR SATISFACTION AND DISCHARGE.......................................................31
Section 401. Satisfaction and Discharge of Indenture..............................................31
Section 402. Application of Trust Money...........................................................32
ARTICLE FIVE REMEDIES.........................................................................32
Section 501. Events of Default....................................................................32
Section 502. Acceleration of Maturity; Rescission and Annulment...................................34
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee......................35
Section 504. Trustee May File Proofs of Claim.....................................................36
Section 505. Trustee May Enforce Claims Without Possession of Securities..........................37
Section 506. Application of Money Collected.......................................................37
Section 507. Limitation on Suits..................................................................37
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.............................................................................38
Section 509. Restoration of Rights and Remedies...................................................38
Section 510. Rights and Remedies Cumulative.......................................................38
Section 511. Delay or Omission Not Waiver.........................................................39
Section 512. Control by Holders...................................................................39
Section 513. Waiver of Past Defaults..............................................................39
Section 514. Undertaking for Costs................................................................40
ARTICLE SIX THE TRUSTEE......................................................................40
Section 601. Certain Duties and Responsibilities of the Trustee...................................40
Section 602. Notice of Defaults...................................................................40
Section 603. Certain Rights of Trustee............................................................41
Section 604. Not Responsible for Recitals or Issuance of Securities...............................42
Section 605. May Hold Securities..................................................................42
Section 606. Money Held in Trust..................................................................42
Section 607. Compensation and Reimbursement.......................................................42
Section 608. Disqualification; Conflicting Interests..............................................43
Section 609. Corporate Trustee Required; Eligibility..............................................43
Section 610. Resignation and Removal; Appointment of Successor....................................44
Section 611. Acceptance of Appointment by Successor...............................................45
iii
<PAGE>
Section 612. Merger, Conversion, Consolidation or Succession to Business..........................46
Section 613. Preferential Collection of Claims Against Company....................................46
Section 614. Appointment of Authenticating Agent..................................................46
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY................................48
Section 701. Company to Furnish Trustee Names and Addresses of Holders............................48
Section 702. Preservation of Information; Communications to Holders...............................49
Section 703. Reports by Trustee...................................................................50
Section 704. Reports by Company...................................................................50
ARTICLE EIGHT CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER...................................51
Section 801. When Company May Merge, Etc..........................................................51
Section 802. Opinion of Counsel...................................................................52
Section 803. Successor Corporation Substituted....................................................52
ARTICLE NINE SUPPLEMENTAL INDENTURES..........................................................52
Section 901. Supplemental Indentures Without Consent of Holders...................................52
Section 902. Supplemental Indentures with Consent of Holders......................................53
Section 903. Execution of Supplemental Indentures.................................................54
Section 904. Effect of Supplemental Indentures....................................................55
Section 905. Conformity with Trust Indenture Act..................................................55
Section 906. Reference in Securities to Supplemental Indentures...................................55
ARTICLE TEN COVENANTS........................................................................55
Section 1001. Payments of Securities...............................................................55
Section 1002. Maintenance of Office or Agency......................................................55
Section 1003. Payment of Taxes and Other Claims....................................................56
Section 1004. Compliance Certificates..............................................................56
Section 1005. Commission Reports...................................................................57
Section 1006. Waiver of Stay, Extension or Usury Laws..............................................57
Section 1007. Money for Securities Payments to Be Held in Trust....................................58
ARTICLE ELEVEN REDEMPTION OF SECURITIES.............................................................59
Section 1101. Applicability of Article.............................................................59
Section 1102. Election to Redeem; Notice to Trustee................................................59
Section 1103. Selection by Trustee of Securities to Be Redeemed....................................59
Section 1104. Notice of Redemption.................................................................60
Section 1105. Deposit of Redemption Price..........................................................61
Section 1106. Securities Payable on Redemption Date................................................61
iv
<PAGE>
Section 1107. Securities Redeemed in Part..........................................................61
ARTICLE TWELVE SINKING FUNDS....................................................................62
Section 1201. Applicability of Article.............................................................62
Section 1202. Satisfaction of Sinking Fund Payments with Securities................................62
Section 1203. Redemption of Securities for Sinking Fund............................................62
ARTICLE THIRTEEN DEFEASANCE AND COVENANT DEFEASANCE...............................................63
Section 1301. Applicability of Article; Company's Option to Effect Defeasance or
Covenant Defeasance..................................................................63
Section 1302. Defeasance and Discharge.............................................................63
Section 1303. Covenant Defeasance..................................................................64
Section 1304. Conditions to Defeasance or Covenant Defeasance......................................64
Section 1305. Deposited Money and Government Obligations To Be Held In Trust.......................66
ARTICLE FOURTEEN SUBORDINATION....................................................................66
Section 1401. Agreement of Securityholders that Securities Subordinated to Extent
Provided.............................................................................66
Section 1402. Company not to Make Payments with Respect to Securities in Certain
Circumstances........................................................................67
Section 1403. Securities Subordinated to Prior Payment of all Senior Indebtedness on
Dissolution, Liquidation or Reorganization of Company................................68
Section 1404. Securityholders to be Subrogated to Right of Holders of Senior
Indebtedness.........................................................................68
Section 1405. Obligation of the Company Unconditional..............................................69
Section 1406. Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice..............69
Section 1407. Application by Trustee of Monies Deposited With It...................................70
Section 1408. Subordination Rights not Impaired by Acts or Omissions of Company or
Holders of Senior Indebtedness.......................................................70
Section 1409. Securityholders Authorize Trustee to Effectuate Subordination of
Securities...........................................................................70
Section 1410. Right of Trustee to Hold Senior Indebtedness.........................................71
Section 1411. Article Fourteen Not to Prevent Events of Default....................................71
ARTICLE FIFTEEN MISCELLANEOUS....................................................................71
Section 1501. Miscellaneous........................................................................71
</TABLE>
v
<PAGE>
OGE ENERGY CORP.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE DATED AS OF _________ __, 1999
<TABLE>
<CAPTION>
TRUST INDENTURE SECTION INDENTURE
ACT SECTION
<S> <C>
Section 310(a)(1)........................................................................609
(a)(2)........................................................................609
(a)(3)........................................................................Not Applicable
(a)(4)........................................................................Not Applicable
(b)...........................................................................608, 610
Section 311(a)...........................................................................613
(b)...........................................................................613
Section 312(a)...........................................................................701, 702(a)
(b)...........................................................................702(b)
(c)...........................................................................702(c)
Section 313(a)...........................................................................703(a)
(b)...........................................................................Not Applicable
(c)...........................................................................703(a)
(d)...........................................................................703(b)
Section 314(a)...........................................................................704
(b)...........................................................................Not Applicable
(c)(1)........................................................................102
(c)(2)........................................................................102
(c)(3)........................................................................Not Applicable
(d)...........................................................................Not Applicable
(e)...........................................................................102
Section 315(a)...........................................................................601(a)
(b)...........................................................................602
(c)...........................................................................601(b)
(d)...........................................................................601(c)
(d)(1)........................................................................601(a)
(d)(2)........................................................................601(c)
(d)(3)........................................................................601(c)
(e)...........................................................................514
<PAGE>
Section 316(a)(1)(A).....................................................................512
(a)(1)(B).....................................................................502, 513
(a)(2)........................................................................Not Applicable
(b)...........................................................................508
Section 317(a)(1)........................................................................503
(a)(2)........................................................................504
(b)...........................................................................1009
Section 318(a)...........................................................................107
</TABLE>
- --------------------------
NOTE: THIS RECONCILIATION AND TIE SHALL NOT, FOR ANY PURPOSE,
BE DEEMED TO BE A PART OF THIS INDENTURE.
<PAGE>
INDENTURE, dated as of ____________, 1999, between OGE ENERGY CORP.,
a corporation duly organized and existing under the laws of the State of
Oklahoma (herein called the "Company"), having its principal office at 321 N.
Harvey, Oklahoma City, Oklahoma 73102, and Bank of Oklahoma, National
Association, a national banking association, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
<PAGE>
(d) the word "including" (and with correlative meaning "include")
means including, without limiting the generality of, any description
preceding such term; and
(e) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Securities.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors.
"Board of Directors" means the board of directors of the Company;
provided, however, that when the context refers to actions or resolutions of the
Board of Directors, then the term "Board of Directors" shall also mean any duly
authorized committee of the Board of Directors of the Company or Officer
authorized to act with respect to any particular matter to exercise the power of
the Board of Directors of the Company.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or regulation to close.
"Capitalized Lease Obligation" means an obligation under a lease that
is required to be capitalized for financial reporting purposes in accordance
with GAAP, and the amount of Indebtedness represented by such obligation shall
be the capitalized amount of such obligations determined in accordance with such
principles.
"Capital Stock" of any Person shall mean any and all shares, interests,
participations or other equivalents of or interests in (however designated)
equity of such Person, including any preferred stock, but excluding any debt
securities convertible into such equity.
2
<PAGE>
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Controller,
an Assistant Controller, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Corporate Trust Office" means the office of the Trustee in Oklahoma
City, Oklahoma at which at any particular time its corporate trust business
shall be principally administered, which office at the date hereof is located at
Commerce Banking Center, 9520 North May Avenue, Oklahoma City, Oklahoma 73120.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Dollars" and "$" means lawful money of the United States of America.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities and Exchange Act of 1934, as
amended from time to time, and the rules and regulations promulgated thereunder.
"GAAP" means such accounting principles that are generally accepted in
the United States of America as of the date of any computation required
hereunder.
3
<PAGE>
"Holder or Securityholder" means a Person in whose name a Security is
registered in the Security Register.
"Indebtedness" of any Person means, without duplication, (i) the
principal of and premium, if any, in respect of (A) indebtedness of such Person
for money borrowed and (B) indebtedness evidenced by notes, debentures, bonds or
other similar instruments for the payment of which such Person is responsible or
liable; (ii) all Capitalized Lease Obligations of such Person; (iii) all
obligations of such Person issued or assumed as the deferred purchase price of
property, all conditional sale obligations and all obligations under any title
retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of such Person for the
reimbursement of any obligor on any letter of credit, banker's acceptance or
similar credit transaction (other than obligations with respect to letters of
credit securing obligations (other than obligations described in (i) through
(iii) above) entered into in the ordinary course of business of such Person to
the extent such letters of credit are not drawn upon or, if and to the extent
drawn upon, such drawing is reimbursed no later than the third Business Day
following receipt by such Person of a demand for reimbursement following payment
on the letter of credit); (v) all obligations of the type referred to in clauses
(i) through (iv) of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable as
obligor, guarantor or otherwise; and (vi) all obligations of the type referred
to in clauses (i) through (v) of other Persons secured by any Lien on any
property or asset of such Person (whether or not such obligation is assumed by
such Person), the amount of such obligation being deemed to be the lesser of the
value of such property or assets or the amount of the obligation so secured.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, capitalized lease or other title retention
agreement).
"Maturity" when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
4
<PAGE>
"Officer" means the Chairman of the Board, the Chief Executive Officer,
the President, any Vice President, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Assistant Secretary of the Company.
"Officer's Certificate" means a certificate signed by an officer and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company, and who shall be reasonably acceptable
to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities or Securities of
any series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(iv) Securities which have been defeased pursuant to
Section 1302;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
outstanding for such purposes shall be that portion of the principal amount
thereof that could be declared to be due and payable upon the occurrence of an
Event of Default and the continuation thereof pursuant to the terms of such
Original Issue Discount Security as of the date of such determination and (b)
Securities owned by the Company or any other obligor
5
<PAGE>
upon the Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company. The Company may act as Paying Agent with respect to any Securities
issued hereunder.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Redemption Date", when used with respect to any Security of any series
to be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security of any
series to be redeemed, means the price at which it is to be redeemed pursuant to
this Indenture.
"Registered Security" means any Security issued hereunder and
registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee in its Corporate Trust Office and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
6
<PAGE>
"Senior Indebtedness" means, with respect to the Company, Indebtedness
of the Company, except for (1) any such Indebtedness that is by its terms
subordinated to or pari passu with the Securities and (2) any Indebtedness
(including all other debt securities and guarantees in respect of those debt
securities) initially issued to any other trust, or a trustee of such trust,
partnership or other entity affiliated with the Company that is, directly or
indirectly, a financing vehicle of the Company in connection with the issuance
by such entity of preferred securities or other similar securities.
"Significant Subsidiary" means a Subsidiary or Subsidiaries of the
Company possessing assets (including the assets of its own Subsidiaries but
without regard to the Company or any other Subsidiary) having a book value, in
the aggregate, equal to not less than 10% of the book value of the aggregate
assets of the Company and its Subsidiaries calculated on a consolidated basis.
"Special Record Date" for the payment of any Defaulted Interest means
the date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries, or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, association, joint venture or similar business
organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of the Company.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was executed;
provided, however, that in the event that such Act is amended after such date,
"Trust Indenture Act" means the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"U.S. Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more permanent
global Securities, the Person designated as U.S. Depositary by the Company
pursuant to Section 301, which must be a clearing agency
7
<PAGE>
registered under the Exchange Act until a successor U.S. Depositary shall
have become such pursuant to the applicable provisions of this Indenture, and
thereafter "U.S. Depositary" shall mean or include each Person who is then a
U.S. Depositary hereunder, and if at any time there is more than one such
Person, "U.S. Depositary" as used with respect to the Securities of any
series shall mean the U.S. Depositary with respect to the Securities of that
series.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed by the full
faith and credit of the United States of America which, in either case, are not
callable or redeemable at the option of the issuer thereof or otherwise subject
to prepayment, and shall also include a depository receipt issued by a New York
Clearing House bank or trust company as custodian with respect to any such U.S.
Government obligation or a specific payment of interest on or principal of any
such U.S. Government Obligation held by such custodian for the account of the
holder of a depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt or from any amount held by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest on
or principal of the U.S. Government Obligation evidenced by such depository
receipt.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, other than an action permitted
by Sections 205 and 704 hereof, the Company shall furnish to the Trustee an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
8
<PAGE>
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such Officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the matters upon which his certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
Officer or Officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents
duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
601) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
9
<PAGE>
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems
sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is
made upon such Security.
(e) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so. If such a record date
is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only
the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization,
agreement or consent by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee and received by the Trustee at
its Corporate Trust Office, Attention: Corporate Trust Department, or
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company addressed
to it at the address of its principal office specified in
10
<PAGE>
the first paragraph of this Indenture, Attention: Secretary, or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture or any Security provides for notice to Holders of
any event, such notice shall be deemed sufficiently given (unless otherwise
herein or in such Security expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his
address as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders or the validity of the proceedings to which such notice relates.
Where this Indenture or any Security provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or shall be
excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
11
<PAGE>
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws (other than the choice of law provisions) of the State
of Oklahoma.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day, or on such other day as may be set out in an indenture
supplemental hereto or in the Officer's Certificate delivered pursuant to
Section 301, at such Place of Payment with the same force and effect as if made
on the Interest Payment Date or Redemption Date, or at the Stated Maturity,
provided that no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
SECTION 114. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder, by accepting
a Security, waives and releases all such liability. Such waivers and releases
are part of the consideration for the issuance of the Securities.
12
<PAGE>
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
Officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be photocopied, printed, lithographed
or engraved on steel engraved borders or may be produced in any other manner,
all as determined by the Officers executing such Securities, as evidenced by
their execution of such Securities.
SECTION 202. Form of Face of Security.
[If the Security is an Original Issue Discount Security, insert--FOR
PURPOSES OF SECTION 1272 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), THE AMOUNT OF ORIGINAL ISSUE DISCOUNT (AS DEFINED IN SECTION 1273(a)(1)
OF THE CODE AND TREASURY REGULATION SECTION 1.1273-1(a) WITH RESPECT TO THIS
SECURITY IS ________, THE ISSUE PRICE (AS DEFINED IN TREASURY REGULATION SECTION
1.1273-2) OF THIS SECURITY IS _________, THE ISSUE DATE (AS DEFINED IN SECTION
1275(a)(2) OF THE CODE AND TREASURY REGULATION SECTION 1.1273-2) OF THIS
SECURITY IS __________ AND THE YIELD TO MATURITY OF THIS SECURITY IS
__________.]
OGE ENERGY CORP.
. . . . . . . . . . . . . . . . . . . . . . . . . .
No. [$]
------------- --------
OGE ENERGY CORP., a corporation duly organized and existing under the
laws of Oklahoma (herein called the "Company," which term includes any successor
corporation under
13
<PAGE>
the Indenture hereinafter referred to), for value received, hereby promises
to pay to ____________, or registered assigns, the principal sum of
______________ [Dollars] on ____________ [If the Security is to bear interest
prior to Maturity, insert--, and to pay interest thereon from ____________ or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, [semi-annually] [quarterly] [monthly] on ____ and ____ in
each year, commencing __________________ at the rate of __________% per annum,
until the principal hereof is paid or made available for payment. [If applicable
insert--, and (to the extent that the payment of such interest shall be legally
enforceable) at the rate of _________% per annum on any overdue principal and
premium and on any overdue installment of interest]. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more predecessor securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the ___________ of
__________ (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more predecessor securities) 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 Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert--The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ______% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on demand.
Any such interest on any overdue principal that is not so paid on demand shall
bear interest at the rate of ______% per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the date
of such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert--any such] interest on this Security will be made at the office or agency
of the Company maintained for that purpose in Oklahoma City, Oklahoma, in
Dollars [if applicable, insert--; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
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<PAGE>
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
OGE ENERGY CORP.
By:
-----------------------
Attest:
(SEAL)
- -------------------------
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of _________________, 1999 (herein called
the "Indenture"), between the Company and Bank of Oklahoma, National
Association, as Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof [, limited in aggregate principal
amount to $_________].
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 nor more than 45 days' notice by first class
mail, [if applicable, insert--(l) on ________ in any year commencing with the
year ______ and ending with the year ______ through operation of the sinking
fund for this series at a Redemption Price equal to 100% of the principal
amount, and (2)] at any time [on or after __________, _________], as a whole or
in part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount):
If redeemed [on or before __________, _____%, and if redeemed] during
the 12-month period beginning __________ of the years indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
---- ----- ---- -----
<S> <C> <C> <C>
</TABLE>
15
<PAGE>
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued and unpaid
interest to the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more predecessor securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 nor more than 45 days' notice by first class
mail, (1) on __________ in any year commencing with the year __________ and
ending with the year _______ through operation of the sinking fund for this
series at the Redemption Prices for redemption through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after __________], as a whole or in part, at
the election of the Company, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below:
If redeemed during a 12-month period beginning __________ of the years
indicated.
<TABLE>
<CAPTION>
Redemption Price
For Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ------------ -------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to _% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued and unpaid interest to the Redemption
Date, but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more predecessor securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to _____,
redeem any Securities of this series as contemplated by [clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance with generally accepted
financial practice) of less than ___% per annum.]
[The sinking fund for this series provides for the redemption on
________ in each year beginning with the year _____ and ending with the year
________ of [not less than] $__________ [("mandatory sinking fund") and not more
than $__________] aggregate principal amount of Securities of this series.]
[Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made-- in the
[inverse] order in which they become due.]
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<PAGE>
[In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Security is not an Original Issue Discount Security, insert -If
any Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -If an Event of
Default with respect to Securities of this series shall occur and be continuing,
an amount of principal of the Securities of this series may be declared due and
payable in the manner and with the effect provided in the Indenture. Such amount
shall be equal to--insert formula for determining the amount.] Upon payment (i)
of the amount of principal so declared due and payable and (ii) of interest on
any overdue principal and overdue interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of the principal of and interest, if any,
on the Securities of this series shall terminate.
This Security is a general unsecured obligation of the Company and will
be subordinate in right of payment to all existing and future Senior
Indebtedness of the Company.
[This Security is subject to Defeasance as described in the Indenture.]
The Indenture may be modified by the Company and the Trustee without
consent of any Holder with respect to certain matters as described in the
Indenture. In addition, the Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of a majority in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall bind such Holder and all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for
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registration of transfer at the office or agency of the Company in any place
where the principal of (and premium, if any) and interest on this Security
are payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of this series, of authorized
denominations and for the same Stated Maturity and aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of [$1,000] and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture imposes certain limitations on the ability of the Company
to, among other things, merge or consolidate with any other Person or sell,
assign, transfer or lease all or substantially all of its properties or assets
[If other covenants are applicable pursuant to the provisions of Section 301,
insert here]. All such covenants and limitations are subject to a number of
important qualifications and exceptions. The Company must report periodically to
the Trustee on compliance with the covenants in the Indenture.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under this
Security or the Indenture or for any claim based on, in respect of or by reason
of, such obligations or their creation. Each Holder, by accepting a Security,
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of this Security.
[If applicable, insert -- Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures ("CUSIP"), the
Company has caused CUSIP numbers to be printed on the Securities of this series
as a convenience to the Holders of the Securities of this series. No
representation is made as to the correctness or accuracy of such numbers as
printed on the Securities of this series and reliance may be placed only on the
other identification numbers printed hereon.]
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All capitalized terms used in this Security without definition which
are defined in the Indenture shall have the meanings assigned to them in the
Indenture.
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign
and transfer this Security to
- ---------------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint_______________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: ________________________ Your Signature: ________________________
(Sign exactly as your name
appears on the other side
of this Security)
Signature Guaranty:
-----------------------------------------------
[Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements
of the Transfer Agent, which requirements will
include membership or participation in STAMP or
such other "signature guarantee program" as may
be determined by the Transfer Agent in addition
to, or in substitution for, STAMP, all in
accordance with the Exchange Act.]
Social Security Number or Taxpayer Identification
Number:___________________________
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SECTION 204. Form of Trustee's Certificate of Authentication.
Dated:__________________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
BANK OF OKLAHOMA, NATIONAL ASSOCIATION, As
Trustee
By_________________________
Authorized Signatory
SECTION 205. Securities in Global Form.
If Securities of a series are issuable in global form, as
contemplated by Section 301, then, notwithstanding the provisions of Section
302, any such Security shall represent such of the Outstanding Securities of
such series as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced to reflect exchanges.
Any endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made in such manner and upon instructions given by such
Person or Persons as shall be specified therein or in the Company Order to be
delivered to the Trustee pursuant to Section 303 or Section 304. Subject to
the provisions of Section 303 and, if applicable, Section 304, the Trustee
shall deliver and redeliver any Security in permanent global form in the
manner and upon instructions given by the Person or Persons specified therein
or in the applicable Company Order. If a Company Order pursuant to Section
303 or 304 has been, or simultaneously is, delivered, any instructions by the
Company with respect to endorsement or delivery or redelivery of a Security
in global form shall be in writing but need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel.
The provisions of Section 309 shall apply to any Security
represented by a Security in global form if such Security was never issued
and sold by the Company and the Company delivers to the Trustee the Security
in global form together with written instructions (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel) with regard
to the reduction in the principal amount of Securities represented thereby.
Notwithstanding the provisions of Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of,
premium, if any, and interest on any Security in permanent global form shall
be made to the Person or Persons specified therein.
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Notwithstanding the provisions of Section 308 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat a Person as the Holder of such principal
amount of Outstanding Securities represented by a permanent global Security
as shall be specified in a written statement of the Holder of such permanent
global Security.
SECTION 206. CUSIP Number
The Company in issuing Securities of any series may use a "CUSIP"
number, and, if so, the Trustee may use the CUSIP number in notices of
redemption or exchange as a convenience to Holders of such series; provided,
that any such notice may state that no representation is made as to the
correctness or accuracy of the CUSIP number printed on the notice or on the
Securities of such series, and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers. The
Company will promptly notify the Trustee of any change in the CUSIP number of
any series of Securities.
SECTION 207. Form of Legend for the Securities in Global Form.
Any Security in global form authenticated and delivered hereunder
shall bear a legend in substantially the following form:
"This Security is in global form within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Common Depositary or a U.S. Depositary. Unless and until it is exchanged
in whole or in part for Securities in certificated form, this Security may
not be transferred except as a whole by the Common Depositary or a U.S.
Depositary or by a nominee of the Common Depositary or a nominee of the U.S.
Depositary as the case may be."
ARTICLE THREE
SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more
series. There shall be established in or pursuant to a Board Resolution, and
set forth in an Officer's Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series:
(1) the title of the Securities of the series
(which shall distinguish the Securities of the series from all other
Securities);
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(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 304, 305, 306, 906 or
1107);
(3) whether any Securities of the series are to be issuable in
permanent global form with or without coupons and, if so, (i) whether
beneficial owners of interests in any such permanent global Security
may exchange such interests for Securities of such series and of like
tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Section 305, and (ii) the name of the Common Depositary (as
defined in Section 304) or the U.S. Depositary, as the case may be,
with respect to any global Security;
(4) the date or dates on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall
be payable and the Regular Record Date for the interest payable on any
Interest Payment Date and, if applicable to such series of Securities,
the basis points and United States Treasury rate(s) and any other rates
to be used in calculating the reset rate;
(6) the place or places where the principal of (and premium,
if any) and interest on Securities of the series shall be payable;
(7) the right of the Company, if any, to defer any payment of
principal of or interest on the Securities of the series, and the
maximum length of any such deferral period;
(8) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company,
pursuant to any sinking fund or otherwise;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation, and, where applicable, the obligation of the Company to
select the Securities to be redeemed;
(10) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
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(11) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(12) additional Events of Default with respect to Securities
of the series, if any, other than those set forth herein;
(13) if either or both of Section 1302 and Section 1303 shall
be inapplicable to the Securities of the series (provided that if no
such inapplicability shall be specified, then both Section 1302 and
Section 1303 shall be applicable to the Securities of the series);
(14) if other than U.S. dollars, the currency or currencies or
units based on or related to currencies in which the Securities of such
series shall be denominated and in which payments of principal of, and
any premium and interest on, such Securities shall or may be payable;
provided, however, that prior to the issuance of any such Securities,
the Company shall have obtained the written consent of the Trustee,
which consent may be withheld in the sole discretion of the Trustee, to
the currency, currencies, or currency units so established;
(15) additional covenants with respect to Securities of the
series, if any, other than those set forth herein;
(16) if other than the Trustee, the identity of the
Registrar and any Paying Agent; and
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to such Board Resolution and set forth in such Officer's Certificate
or in any such Indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officer's Certificate setting forth, or providing the manner for determining,
the terms of the Securities of such series.
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<PAGE>
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated
by Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
President or one of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or
facsimile. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities. Typographical and other minor errors or defects in any such
reproduction of the seal or any such signature shall not affect the validity
or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities
or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series executed
by the Company to the Trustee for authentication, together with a Company
Order for the authentication and delivery of such Securities, and the Trustee
in accordance with the Company Order shall authenticate and make such
Securities available for delivery. If the form or terms of the Securities of
the series have been established in or pursuant to one or more Board
Resolutions as permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Sections 315(a) through (d) of the Trust Indenture
Act) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such form has
been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company, enforceable in accordance
24
<PAGE>
with their terms, except to the extent enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting the enforcement of creditors' rights generally and by
the effect of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law); and
(d) that no consent, approval, authorization, order, registration or
qualification of or with any court or any governmental agency or body having
jurisdiction over the Company is required for the execution and delivery of
such Securities by the Company, except such as have been obtained (except
that no opinion need be expressed as to state securities or Blue Sky laws).
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee, or in the written opinion
of counsel to the Trustee (which counsel may be an employee of the Trustee)
such authentication may not lawfully be made or would involve the Trustee in
personal liability.
Notwithstanding the provisions of Section 301 and of the immediately
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officer's
Certificate otherwise required pursuant to Section 301 or the Company Order
and Opinion of Counsel otherwise required pursuant to the immediately
preceding paragraph at or prior to the time of authentication of each
Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series to
be issued.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in the form of one or more global
Securities, then the Company shall execute and the Trustee shall, in
accordance with this Section and the Company Order with respect to the
authentication and delivery of such series, authenticate and deliver one or
more global Securities that (i) shall be in an aggregate amount equal to the
aggregate principal amount specified in such Company Order, (ii) shall be
registered in the name of the Common Depositary or U.S. Depositary, as the
case may be, therefor or its nominee, and (iii) shall be made available for
delivery by the Trustee to such depositary or pursuant to such depositary's
instruction.
Each depositary designated pursuant to Section 301 must, at the time
of its designation and at all times while it serves as depositary, be a
clearing agency registered under the Exchange Act and any other applicable
statute or regulation.
Unless otherwise provided for in the form of Security, each Security
shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate
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<PAGE>
upon any Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate
and make available for delivery, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such Securities.
In the case of Securities of any series, such temporary Securities
may be in global form, representing all or a portion of the Outstanding
Securities of such series.
Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with the provisions of Section 305), if
temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series, the Company shall execute and
the Trustee shall authenticate and make available for delivery in exchange
therefor a like principal amount of definitive Securities of the same series
of authorized denominations and of like tenor. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series.
If temporary Securities of any series are issued in global form, any
such temporary global Security shall, unless otherwise provided therein, be
delivered to the office of a depositary or common depositary (the "Common
Depositary") for credit to the respective accounts of the beneficial owners
of such Securities (or to such other accounts as they may direct).
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any
other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of registration of transfers
of Securities. The Trustee is hereby appointed "Security Registrar" for the
purpose of registering Securities and transfers of Securities as herein
provided.
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<PAGE>
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company in Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and
make available for delivery, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and Stated Maturity.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and Stated Maturity,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and make available for delivery,
the Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a permanent global Security are entitled to exchange such
interests for Securities of such series and of like tenor and principal
amount of another authorized form and denomination, as specified and as
subject to the conditions contemplated by Section 301, then without
unnecessary delay but in any event not later than the earliest date on which
such interests may be so exchanged, the Company shall deliver to the Trustee
definitive Securities of that series in aggregate principal amount equal to
the principal amount of such permanent global Security, executed by the
Company. On or after the earliest date on which such interests may be so
exchanged, such permanent global Securities shall be surrendered from time to
time by the Common Depositary or the U.S. Depositary, as the case may be, and
in accordance with instructions given to the Trustee and the Common
Depositary or the U.S. Depositary, as the case may be (which instructions
shall be in writing but need not comply with Section 102 or be accompanied by
an opinion of Counsel), as shall be specified in the Company Order with
respect thereto to the Trustee, as the Company's agent for such purpose, to
be exchanged, in whole or in part, for definitive Securities of the same
series without charge. The Trustee shall authenticate and make available for
delivery, in exchange for each portion of such surrendered permanent global
Security, a like aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of
such permanent global Security to be exchanged which shall be in the form of
the Securities of such series; provided, however, that no such exchanges may
occur during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of Securities of that series
selected for redemption under Section 1103 and ending at the close of
business on the day of such mailing. Promptly following any such exchange in
part, such permanent global Security shall be returned by the Trustee to the
Common Depositary or the U.S. Depositary, as the case may be, or such other
Common Depositary or U.S. Depositary referred to above in accordance with the
written instructions of the Company referred to above. If a Security in the
form specified for such series is issued in exchange for any portion of a
permanent global Security after the close of business at the office or agency
where such exchange occurs on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of interest or
Defaulted Interest, as the case
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<PAGE>
may be, such interest or Defaulted Interest will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Security in the form specified for such series, but will be
payable on such Interest Payment Date or proposed date for payment, as the
case may be, only to the Person to whom interest in respect of such portion
of such permanent global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be transferred or
exchanged, no service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 304, 906 or 1107 not involving any
transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
1103 and ending at the close of business on the day of such mailing, or (ii)
to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same series and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.
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In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Security (or one or more predecessor securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to
the Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective predecessor securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Section 307
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the
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<PAGE>
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at his address as it appears in
the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective predecessor
securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Section 307, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 307) interest on such Security and
for all other purposes whatsoever, whether or not such Security be overdue,
and neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of a beneficial ownership
interest of a Security in global form, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interest.
Notwithstanding the foregoing, with respect to any Security in global form,
nothing herein shall prevent the Company or the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy
or other authorization furnished by any Common Depositary (or its nominee),
as a Holder, with respect to such Security in global form or impair, as
between such Common Depositary and owners of beneficial interests in such
Security in global form, the operation of customary practices governing the
exercise of the right of such Common Depositary (or its nominee) as holder of
such Security in global form.
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SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities shall be held by the
Trustee and may be destroyed (and, if so destroyed, certification of their
destruction shall be delivered to the Company if requested in writing to do
so, unless, by a Company Order, the Company shall direct that cancelled
Securities be returned to it).
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for or in the form of Security for such series), when the
Trustee, upon Company Request and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1007) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
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(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited with
the Trustee as trust funds in trust for the purpose an amount sufficient to
pay and discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and premium, if
any) and interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for herein relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 607, the
obligations of the Company to any Authenticating Agent under Section 614 and,
if money shall have been deposited with the Trustee pursuant to subclause (B)
of clause (1) of this Section, the obligations of the Trustee under Section
402 and the last paragraph of Section 1007 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1007, all
money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with or received by the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or to be
effected by operation of law or pursuant to any
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judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(1) the Company defaults in the payment of interest on any Security
of that series when such interest becomes due and payable and the default
continues for a period of 30 days; provided, however that if the Company is
permitted by the terms of the Securities of the applicable series to defer
the payment in question, the date on which such payment is due and payable
shall be the date on which the Company is required to make payment following
such deferral, if such deferral has been elected pursuant to the terms of the
Securities; or
(2) the Company defaults in the payment of the principal of (or
premium, if any, on) any Security of that series when the same becomes due
and payable at Maturity, upon redemption (including redemptions under Article
Eleven), or otherwise; provided, however, that if the Company is permitted by
the terms of the Securities of the applicable series to defer the payment in
question, the date on which such payment is due and payable shall be the date
on which the Company is required to make payment following such deferral, if
such deferral has been elected pursuant to the terms of the Securities; or
(3) the Company fails to observe or perform any of its other
covenants, warranties or agreements in the Securities of that series or this
Indenture (other than a covenant, agreement or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with or which has expressly been included in this Indenture solely for the
benefit of one or more series of Securities other than that series), and the
failure to observe or perform continues for the period and after the notice
specified in the last paragraph of this Section; or
(4) the Company defaults in the payment of any Indebtedness at the
maturity or acceleration thereof (after giving effect to any applicable grace
period) or upon the acceleration thereof as a result of such Indebtedness
becoming or being declared due and payable prior to the date on which it
would otherwise become due and payable, and such default in payment is not
cured or such acceleration shall not be rescinded or annulled within 10 days
after written notice to the Company from the Trustee or to the Company and to
the Trustee from the Holders of at least 10% in aggregate principal amount of
the Securities of that series at the time outstanding; provided that it shall
not be an Event of Default if the principal amount of Indebtedness (other
than Indebtedness represented by Securities issued pursuant to this
Indenture) which is not paid at maturity or the maturity of which is
accelerated is less than the amount equal to 1% of the Company's consolidated
total assets (determined as of its most recent fiscal year-end); provided
further that if, prior to a declaration of acceleration of the maturity of
the Securities of that series or the entry of judgment in favor of the
Trustee in a suit pursuant to Section 503, such default shall be remedied or
cured by the Company or waived by the holders of such Indebtedness, then the
Event of Default hereunder by reason thereof shall be deemed likewise to have
been thereupon remedied, cured or waived without further action upon the part
of either the Trustee or any of the Holders of the Securities of that series,
and provided further, that, subject to Sections 601 and 602, the Trustee
shall not be charged with knowledge of any such default unless written notice
of such default shall have been given to the Trustee by the Company, by a
holder or an
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agent of a holder of any such Indebtedness, by the trustee then acting under
any indenture or other instrument under which such default shall have
occurred, or by the Holders of at least five percent in aggregate principal
amount of the Securities of that series at the time outstanding; or
(5) the Company pursuant to or within the meaning of any Bankruptcy
Law (A) commences a voluntary case or proceeding under any Bankruptcy Law
with respect to itself, (B) consents to the entry of a judgment, decree or
order for relief against it in an involuntary case or proceeding under any
Bankruptcy Law, (C) consents to or acquiesces in the institution of
bankruptcy or insolvency proceedings against it, (D) applies for, consents to
or acquiesces in the appointment of or taking possession by a Custodian of
the Company or for any material part of its property, (E) makes a general
assignment for the benefit of its creditors or (F) takes any corporate action
in furtherance of or to facilitate, conditionally or otherwise, any of the
foregoing; or
(6) (i) a court of competent jurisdiction enters a judgment, decree
or order for relief in respect of the Company in an involuntary case or
proceeding under any Bankruptcy Law which shall (A) approve as properly filed
a petition seeking reorganization, arrangement, adjustment or composition in
respect of the Company, (B) appoint a Custodian of the Company or for any
material part of its property or (C) order the winding-up or liquidation of
its affairs, and such judgment, decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or (ii) any bankruptcy or
insolvency petition or application is filed, or any bankruptcy or insolvency
proceeding is commenced against the Company and such petition, application or
proceeding is not dismissed within 60 days; or (iii) a warrant of attachment
is issued against any material portion of the property of the Company which
is not released within 60 days of service; or
(7) any other Event of Default provided with respect to Securities
of that series.
A Default under clause (3) above is not an Event of Default until
the Trustee or the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities of that series notify the Company of the Default
and the Company does not cure the Default within 60 days after receipt of the
notice. The notice must specify the Default, demand that it be remedied and
state that the notice is a "Notice of Default." When a Default under clause
(3) above is cured within such 60-day period, it ceases.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series
(other than an Event of Default specified in clause (5) or (6) of Section
501) occurs and is continuing, the Trustee by notice in writing to the
Company, or the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series by notice in writing to the Company and
the Trustee, may declare the unpaid principal of and accrued interest to the
date of acceleration (or, if the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be specified
in the terms of that series) on all the Outstanding Securities of that series
to be due and payable immediately and, upon any such declaration, the
Outstanding
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Securities of that series (or specified principal amount) shall become and be
immediately due and payable.
If an Event of Default specified in clause (5) or (6) of Section 501
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or specified principal amount) shall ipso facto
become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder of any Security of that series.
Upon payment of all such principal and interest, all of the
Company's obligations under the Securities of that series and (upon payment
of the Securities of all series) this Indenture shall terminate, except
obligations under Section 607.
The Holders of a majority in principal amount of the Outstanding
Securities of that series by notice to the Trustee may rescind an
acceleration and its consequences if (i) all existing Events of Default,
other than the nonpayment of the principal and interest of the Securities of
that series that has become due solely by such declaration of acceleration,
have been cured or waived, (ii) to the extent the payment of such interest is
lawful, interest on overdue installments of interest and overdue principal
that has become due otherwise than by such declaration of acceleration have
been paid, (iii) the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction and (iv) all payments due to the
Trustee and any predecessor Trustee under Section 607 have been made.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any
Security of any series when such interest becomes due and
payable and such default continues for a period of 30 days,
or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at the
Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the
extent that payment of such interest shall be legally enforceable, interest
on any overdue principal (and premium, if any) and on any overdue interest,
at the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the reasonable
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and
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may enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other
obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to secure any other proper
remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agent and
counsel) and of the Holders allowed in such judicial proceedings, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
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SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article in
respect of the Securities of any series shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest, upon presentation of the Securities in respect of which moneys have
been collected and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
607 applicable to such series;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities of such
series in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to
the amounts due and payable on such Securities of such series for principal
(and premium, if any) and interest, respectively; and
Third: To the Company.
The Trustee may fix a record date and payment date for any payment
to Holders pursuant to this Section 506. At least fifteen (15) days before
such record date, the Trustee shall mail to each Holder and the Company a
notice that states the record date, the payment date and the amount to be
paid.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
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(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more Holders of Securities of
any series shall have any right in any manner whatever by virtue of, or by
availing himself of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other of such Holders, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all Holders of Securities of the affected
series.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding has been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein
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conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee, with respect to
the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) subject to Section 601, the Trustee need not take any
action which might involve the Trustee in personal liability or be unduly
prejudicial to the Holders not joining therein.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may by written notice to the Trustee on
behalf of the Holders of all the Securities of such series waive any Default
or Event of Default with respect to such series and its consequences, except
a Default or Event of Default
(1) in respect of the payment of the principal of (or
premium, if any) or interest on any Security of such series, or
(2) in respect of a covenant or other provision hereof which
under Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
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Upon any such waiver, such Default or Event of Default shall cease
to exist and shall be deemed to have been cured, for every purpose of this
Indenture and the Securities of such series; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Company, to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder for the enforcement of
the payment of the principal of (or premium, if any) or interest on any
Security on or after the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities of the Trustee.
(a) Except during the continuance of an Event of Default, the
Trustee's duties and responsibilities under this Indenture shall be governed
by Section 315(a) of the Trust Indenture Act.
(b) In case an Event of Default has occurred and is continuing,
and is known to the Trustee, the Trustee shall exercise the rights and powers
vested in it by this Indenture, and shall use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) None of the provisions of Section 315(d) of the Trust
Indenture Act shall be excluded from this Indenture.
SECTION 602. Notice of Defaults.
Within 30 days after the occurrence of any Default or Event of
Default with respect to the Securities of any series, the Trustee shall give
to all Holders of Securities of such series, as their names and addresses
appear in the Security Register, notice of such Default or Event of Default
known to the Trustee, unless such Default or Event of Default shall have been
cured or waived; provided, however, that, except in the case of a Default or
Event of Default in the payment of the
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principal of (or premium, if any) or interest on any Security of such series
or in the payment of any sinking fund installment with respect to Securities
of such series, the Trustee shall be protected in withholding such notice if
and so long as the board of directors, the executive committee or directors
or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders of Securities of
such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written advice
of such counsel or any opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity to its
reasonable satisfaction against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(f) prior to the occurrence of an Event of Default with respect
to the Securities of any series and after the curing or waiving of all such
Events of Default which may have occurred, the Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, approval or other paper or document, or the books
and records of the Company, unless requested in writing to do so by the
Holders of a majority in principal amount of the Outstanding Securities of
any series; provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is not, in the opinion of the Trustee,
reasonably assured to the Trustee by the security afforded to it by the terms
of this Indenture, the Trustee may require reasonable indemnity against such
costs, expenses or liabilities as a condition to so proceeding; the
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reasonable expense of every such investigation shall be paid by the Company
or, if paid by the Trustee, shall be repaid by the Company upon demand;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder; and
(h) the Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder (including amounts held
by the Trustee as Paying Agent) need not be segregated from other funds
except to the extent required by law. The Trustee shall be under no liability
for interest on any money received by it hereunder except as otherwise agreed
upon in writing with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
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(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability, damage, claim or expense, including
taxes (other than taxes based upon or determined or measured by the
income of the Trustee), incurred without gross negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(5) or Section 501(6), the
expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency
or other similar law.
The provisions of this Section 607 shall survive this Indenture.
SECTION 608. Disqualification; Conflicting Interests.
The Trustee shall be disqualified only where such disqualification
is required by Section 310(b) of the Trust Indenture Act. Nothing shall
prevent the Trustee from filing with the Commission the application referred
to in the second to last paragraph of Section 310(b) of the Trust Indenture
Act.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Section 310(a)(1) of the Trust Indenture Act
having a combined capital and surplus of at least $50,000,000 subject to
supervision or examination by federal or State authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. Neither the
Company nor any Person directly or indirectly controlling, controlled by, or
under common control with the Company may serve as Trustee. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
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SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of
the Trust Indenture Act after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security for at
least six months; or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder of a Security who has been a bona fide Holder of
a Security for at least six months; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 315(e) of
the Trust Indenture Act, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the appointment of
a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Securities of one or more series, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 611. If,
within
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one year after such resignation, removal or incapability, or the occurrence
of such vacancy, a successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment in accordance with the applicable
requirements of Section 611, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor Trustee
appointed by the Company with respect to such Securities. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of
a Security of such series for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series as their names and
addresses appear in the Security Register. Each notice shall include the name
of the successor Trustee with respect to the Securities of such series and
the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor
Trustee all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be
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necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees co-trustees
of the same trust and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery
of such supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company
or any successor Trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under the Trust Indenture Act.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship listed in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent indicated
therein.
SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Securities remain outstanding the
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be
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authorized to act on behalf of, and subject to the direction of, the Trustee
to authenticate Securities of such series issued upon exchange, registration
of transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf
of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by federal or State
authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or
any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to
all Holders of Securities of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
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If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
Form of Authenticating Agent's
Certificate of Authentication
Dated:
----------------------------
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
BANK OF OKLAHOMA, NATIONAL
ASSOCIATION, as Trustee
By
--------------------------------------
As Authenticating Agent
By
--------------------------------------
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than January 1 and July 1 in each year,
a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of the preceding December 15 or June 15, as the
case may be; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
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SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states
that the applicants desire to communicate with other Holders with respect to
their rights under this Indenture or under the Securities and is accompanied
by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five Business Days after
the receipt of such application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with
Section 702(a); or
(ii) inform such applicants as to the approximate
number of Holders whose names and addresses appear in the
information preserved at the time by the Trustee in accordance
with Section 702(a), and as to the approximate cost of mailing
to such Holders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appears in the
information preserved at the time by the Trustee in accordance with Section
702(a) a copy of the form of proxy or other communication which is specified
in such request, with reasonable promptness after a tender to the Trustee of
the material to be mailed and of payment, or provision for the payment, of
the reasonable expenses of mailing, unless within five days after such tender
the Trustee shall mail to such applicants and file with the Commission,
together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such mailing would be contrary to
the best interests of the Holders or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in
the written statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining one or more
of such objections, the Commission shall find, after notice and opportunity
for hearing, that all objections so sustained have been met and shall enter
an order so declaring, the Trustee shall mail copies of such material to all
such Holders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
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(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of
the Holders in accordance with Section 702(b), regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made
under Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the
year 2000, the Trustee shall transmit by mail to all Holders of Securities as
provided in Section 313(c) of the Trust Indenture Act, a brief report dated
as of May 15, if required by and in compliance with Section 313(a) of the
Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange
upon which any Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when any Securities are listed
on any stock exchange.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 30 days after the Company is required
to file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company
is not required to file information, documents or reports pursuant to either of
said Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations;
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, (a) concurrently with furnishing the same to
its stockholders but only to the extent the Company is otherwise required to
furnish an annual report to its stockholders, the Company's annual report to
stockholders, containing certified financial statements, and any other financial
reports which the Company generally furnishes to its stockholders, and (b)
within 30
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days after the filing thereof with the Trustee, such summaries of any other
information, documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission; and
(4) furnish to the Trustee, on or before May 1 of each year, a brief
certificate from the principal executive officer, principal financial officer
or principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture. For
purposes of this paragraph, such compliance shall be determined without
regard to any period of grace or requirement of notice provided under this
Indenture. Such certificate need not comply with Section 102.
ARTICLE EIGHT
CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER
SECTION 801. When Company May Merge, Etc.
The Company shall not consolidate with, or merge with or into any other
corporation (whether or not the Company shall be the surviving corporation), or
sell, assign, transfer or lease all or substantially all of its properties and
assets as an entirety or substantially as an entirety to any Person or group of
affiliated Persons, in one transaction or a series of related transactions,
unless:
(1) either the Company shall be the continuing Person or the Person (if
other than the Company) formed by such consolidation or with which or into which
the Company is merged or the Person (or group of affiliated Persons) to which
all or substantially all the properties and assets of the Company as an entirety
or substantially as an entirety are sold, assigned, transferred or leased shall
be a corporation (or constitute corporations) organized and existing under the
laws of the United States of America or any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Company under the Securities and this Indenture; and
(2) immediately before and after giving effect to such transaction or
series of related transactions, no Event of Default, and no Default, shall have
occurred and be continuing.
For purposes of this Article Eight, the phrase "ALL OR SUBSTANTIALLY
ALL OF ITS PROPERTIES AND ASSETS" shall mean 50% or more of the total assets of
the Company as shown on the consolidated balance sheet of the Company as of the
end of the calendar year immediately preceding the day of the year in which such
determination is made and nothing in this Indenture shall prevent or hinder the
Company from selling, transferring or otherwise disposing during any calendar
year (in one transaction or a series of transactions) less than 50% of the
amount of its
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total assets as shown on the consolidated balance sheet of the Company as of
the end of the immediately preceding calendar year.
SECTION 802. Opinion of Counsel.
The Company shall deliver to the Trustee prior to the proposed
transactions covered by Section 801 an Officer's Certificate and an Opinion of
Counsel stating that the transaction(s) and such supplemental indenture comply
with this Indenture and that all conditions precedent to the consummation of the
transaction(s) under this Indenture have been met.
SECTION 803. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any lease, sale, assignment, or transfer of all or
substantially all of the property and assets of the Company in accordance with
Section 801, the successor corporation formed by such consolidation or into
which the Company is merged or the successor corporation or affiliated group of
corporations to which such lease, sale, assignment, or transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation or corporations had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor corporation or
corporations shall be relieved of all obligations and covenants under this
Indenture and the Securities and in the event of such conveyance or transfer,
except in the case of a lease, any such predecessor corporation may be dissolved
and liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without notice to or the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
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(3) to add any additional Events of Default with respect to all or
any series of Securities; or
(4) to add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities
in bearer form, registrable or not registrable as to principal, and with or
without interest coupons; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution
of such supplemental indenture which is entitled to the benefit of such
provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
611(b); or
(9) to cure any ambiguity, defect or inconsistency or to correct or
supplement any provision herein which may be inconsistent with any other
provision herein; or
(10) to make any change that does not materially adversely affect the
interests of the Holders of Securities of any series.
Upon request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon receipt
by the Trustee of the documents described in (and subject to the last sentence
of) Section 903, the Trustee shall join with the Company in the execution of any
supplemental indenture authorized or permitted by the terms of this Indenture.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the written consent of the Holders of a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
shall, subject to Section 903, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such
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supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof or extend the time for payment
thereof, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or change
any Place of Payment where, or the coin or currency in which, any
Security or any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date);
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver of compliance with certain
provisions of this Indenture or Defaults or Events of Default hereunder
and their consequences provided for in this Indenture; or
(3) change the redemption provisions (including Article
Eleven) hereof in a manner adverse to such Holder; or
(4) modify any of the provisions of this Section or Section
513, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section, or
the deletion of this proviso, in accordance with the requirements of
Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
The Trustee shall sign any supplemental indenture authorized pursuant
to this Article, subject to the last sentence of this Section 903. In executing,
or accepting the additional trusts
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created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Section 601) shall be fully
protected in relying upon, an Officer's Certificate and an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payments of Securities.
With respect to each series of Securities, the Company will duly and
punctually pay the principal of (and premium, if any) and interest on such
Securities in accordance with their terms and this Indenture, and will duly
comply with all the other terms, agreements and conditions contained in, or made
in the Indenture for the benefit of, the Securities of such series.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain an office or agency in each Place of Payment
where Securities may be surrendered for registration of transfer or exchange or
for presentation for payment, where notices and demands to or upon the Company
in respect of the Securities and
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this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the address of the Trustee as set forth in Section 105 hereof.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
Unless otherwise set forth in, or pursuant to, a Board Resolution or
Indenture supplemental hereto with respect to a series of Securities, the
Company hereby initially designates the office of Bank of Oklahoma, National
Association, Commerce Banking Center, 9520 North May Avenue, Oklahoma City,
Oklahoma 73120, as such office of the Company.
SECTION 1003. Payment of Taxes and Other Claims.
The Company will pay or discharge, or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a material lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings and for which adequate provision has been made.
SECTION 1004. Compliance Certificates.
(a) The Company shall deliver to the Trustee within 90 days after
the end of each fiscal year of the Company (which fiscal year currently ends
on December 31), an Officer's Certificate stating whether or not the signer
knows of any Default or Event of Default by the Company that occurred prior
to the end of the fiscal year and is then continuing. If the signer does know
of such a Default or Event of Default, the certificate shall describe each
such Default or Event of Default and its status and the specific section or
sections of this Indenture in connection with which such Default or Event of
Default has occurred. The Company shall also promptly notify the Trustee in
writing should the Company's fiscal year be changed so that the end thereof
is on any date other than the date on which the Company's fiscal year
currently ends. The certificate need not comply with Section 102 hereof.
(b) The Company shall deliver to the Trustee, within 10 days after the
occurrence thereof, notice of any acceleration which with the giving of notice
and the lapse of time would be an Event of Default within the meaning of Section
501(4) hereof.
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(c) The Company shall deliver to the Trustee forthwith upon becoming
aware of a Default or Event of Default (but in no event later than 10 days
after the occurrence of each Default or Event of Default that is continuing),
an Officer's Certificate setting forth the details of such Default or Event
of Default and the action that the Company proposes to take with respect
thereto and the specific section or sections of this Indenture in connection
with which such Default or Event of Default has occurred.
SECTION 1005. Commission Reports.
(a) The Company shall file with the Trustee, within 30 days after it
files them with the Commission, copies of the quarterly and annual reports
and of the information, documents, and other reports (or copies of such
portions of any of the foregoing as the Commission may by rules and
regulations prescribe) which the Company is required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act. If the
Company is not subject to the requirement of such Section 13 or 15(d) of the
Exchange Act, the Company shall file with the Trustee, within 30 days after
it would have been required to file such information with the Commission,
financial statements, including any notes thereto and, with respect to annual
reports, an auditors' report by an accounting firm of established national
reputation and a "Management's Discussion and Analysis of Financial Condition
and Results of Operations," both comparable to that which the Company would
have been required to include in such annual reports, information, documents
or other reports if the Company had been subject to the requirements of such
Sections 13 or 15(d) of the Exchange Act. The Company also shall comply with
the other provisions of Section 314(a) of the Trust Indenture Act.
(b) So long as the Securities remain outstanding, the Company shall
cause its annual report to stockholders and any other financial reports
furnished by it to stockholders generally, to be mailed to the Holders at
their addresses appearing in the register of Securities maintained by the
Security Registrar in each case at the time of such mailing or furnishing to
stockholders. If the Company is not required to furnish annual or quarterly
reports to its stockholders pursuant to the Exchange Act, the Company shall
cause its financial statements, including any notes thereto and, with respect
to annual reports, an auditors' report by an accounting firm of established
national reputation and a "Management's Discussion and Analysis of Financial
Condition and Results of Operations," to be so filed with the Trustee and
mailed to the Holders within 90 days after the end of each of the Company's
fiscal years and within 45 days after the end of each of the first three
quarters of each fiscal year.
(c) The Company shall provide the Trustee with a sufficient number
of copies of all reports and other documents and information that the Company
may be required to deliver to the Holders under this Section 1005.
SECTION 1006. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim, and will actively resist any and all efforts to be
compelled to take the benefit or advantage of, any stay or extension law or
any usury law or other law, which would prohibit or forgive the Company from
paying all or any portion of
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the principal of and/or interest on the Securities as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect
the covenants or the performance of this Indenture; and (to the extent that
it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
SECTION 1007. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Securities
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of
(and premium, if any) or interest on any Securities of that series, deposit
with a Paying Agent a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure to so act.
The Company will cause each Paying Agent for any series of
Securities (other than the Trustee) to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal (and premium, if any) or interest on the
Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent
to the
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Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or any such Paying Agent, before
being required to make any such repayment, may at the expense of the Company
cause to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in New
York, New York, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall,
at least 45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series
to be redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officer's Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed,
the particular Securities to be redeemed shall be selected not more than 90
days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption,
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substantially pro rata, by lot or by any other method as the Trustee
considers fair and appropriate and that complies with the requirements of the
principal national securities exchange, if any, on which such Securities are
listed, and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Securities of that series
or any integral multiple thereof) of the principal amount of Securities of
such series of a denomination larger than the minimum authorized denomination
for Securities of that series; provided that in case the Securities of such
series have different terms and maturities, the Securities to be redeemed
shall be selected by the Company and the Company shall give notice thereof to
the Trustee.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of the Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has
been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 45 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date;
(5) the place or places where such Securities are to be surrendered for
payment of the Redemption Price;
(6) that the redemption is for a sinking fund, if such is the case;
(7) the CUSIP number, if any, of the Securities to be redeemed; and
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(8) unless otherwise provided as to a particular series of
Securities, if at the time of publication or mailing of any notice of
redemption the Company shall not have deposited with the Trustee or Paying
Agent and/or irrevocably directed the Trustee or Paying Agent to apply, from
money held by it available to be used for the redemption of Securities, an
amount in cash sufficient to redeem all of the Securities called for
redemption, including accrued interest to the Redemption Date, such notice
shall state that it is subject to the receipt of the redemption moneys by the
Trustee or Paying Agent before the Redemption Date (unless such redemption is
mandatory) and such notice shall be of no effect unless such moneys are so
received before such date.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1007) an
amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all
the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at
the Redemption Price therein specified, and from and after such date (unless
the Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more predecessor
securities, registered as such at the close of business on the relevant
Regular or Special Record Dates according to their terms and the provisions
of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at an office or agency of the Company at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the
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Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and Stated Maturity,
of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series, except as otherwise
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "Mandatory
Sinking Fund Payment," and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to
as an "Optional Sinking Fund Payment." If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided
for by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Securities of a series (other than any
Securities previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be
made pursuant to the terms of such Securities as provided for by the terms of
such series; provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an
Officer's Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 1202 and
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will also deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance.
Unless pursuant to Section 301 provision is made for the
inapplicability of either or both of (a) Defeasance of the Securities of a
series under Section 1302 or (b) Covenant Defeasance of the Securities of a
series under Section 1303, then the provisions of such Section or Sections,
as the case may be, together with the other provisions of this Article, shall
be applicable to the Securities of such series, and the Company may at its
option by Board Resolution, at any time, with respect to the Securities of
such series, elect to have either Section 1302 (unless inapplicable) or
Section 1303 (unless inapplicable) be applied to the Outstanding Securities
of such series upon compliance with the applicable conditions set forth below
in this Article.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 1301
to defease the Outstanding Securities of a particular series, the Company
shall be discharged from its obligations with respect to the Outstanding
Securities of such series on the date the applicable conditions set forth in
Section 1304 are satisfied (hereinafter, "Defeasance"). Defeasance shall mean
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such series and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same); provided, however, that the following rights, obligations, powers,
trusts, duties and immunities shall survive until otherwise terminated or
discharged hereunder: (A) the rights of Holders of Outstanding Securities of
such series to receive, solely from the trust fund provided for in Section
1304, payments in respect of the principal of (and premium, if any) and
interest on such Securities when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 304, 305, 306,
1002 and 1007, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article. Subject to compliance with this
Article, the Company may exercise its option with respect to Defeasance under
this Section 1302 notwithstanding the prior exercise of its option with
respect to Covenant Defeasance under Section 1303 in regard to the Securities
of such series.
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SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 1301
to obtain a Covenant Defeasance with respect to the Outstanding Securities of
a particular series, the Company shall be released from its obligations under
this Indenture (except its obligations under Sections 304, 305, 306, 506,
509, 610, 1001, 1002, 1004, 1006 and 1007) with respect to the Outstanding
Securities of such series on and after the date the applicable conditions set
forth in Section 1304 are satisfied (hereinafter, "Covenant Defeasance").
Covenant Defeasance shall mean that, with respect to the Outstanding
Securities of such series, the Company may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in
this Indenture (except its obligations under Sections 304, 305, 306, 506,
509, 610, 1001, 1002, 1004, 1006 and 1007), whether directly or indirectly by
reason of any reference elsewhere herein or by reason of any reference to any
other provision herein or in any other document, and such omission to comply
shall not constitute an Event of Default under Section 501(4) with respect to
Outstanding Securities of such series, and the remainder of this Indenture
and of the Securities of such series shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to Defeasance under Section
1302 and Covenant Defeasance under Section 1303 with respect to the
Outstanding Securities of a particular series:
(1) the Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article applicable to it), under the terms of an
irrevocable trust agreement in form and substance reasonably
satisfactory to such Trustee, as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such Securities,
(A) Dollars in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than the
due date of any payment, money in an amount, or (C) a combination
thereof, in each case sufficient, after payment of all federal, state
and local taxes or other charges or assessments in respect thereof
payable by the Trustee, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (i) the principal of (and premium, if any, on) and each
installment of principal of (and premium, if any) and interest on the
Outstanding Securities of such series on the Stated Maturity of such
principal or installment of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments applicable to the
Outstanding Securities of such series on the day on which such payments
are due and payable in accordance with the terms of this Indenture and
of such Securities.
(2) No Default or Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit or shall occur as a
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result of such deposit, and no Default or Event of Default under clause
(5) or (6) of Section 501 hereof shall occur and be continuing, at any
time during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(3) Such deposit, Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company is a party or by
which it is bound.
(4) Such Defeasance or Covenant Defeasance shall not cause any
Securities of such series then listed on any national securities
exchange registered under the Exchange Act to be delisted.
(5) In the case of an election with respect to Section 1302,
the Company shall have delivered to the Trustee either (A) a ruling
directed to the Trustee received from the Internal Revenue Service to
the effect that the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for federal income tax
purposes as a result of such Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Defeasance had not occurred
or (B) an Opinion of Counsel, based on such ruling or on a change in
the applicable federal income tax law since the date of this Indenture,
in either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of the Outstanding Securities of such series
will not recognize income, gain or loss for federal income tax purposes
as a result of such Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as
would have been the case if such Defeasance had not occurred.
(6) In the case of an election with respect to Section 1303,
the Company shall have delivered to the Trustee an Opinion of Counsel
or a ruling directed to the Trustee received from the Internal Revenue
Service to the effect that the Holders of the Outstanding Securities of
such series will not recognize income, gain or loss for federal income
tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Covenant
Defeasance had not occurred.
(7) Such Defeasance or Covenant Defeasance shall be effected
in compliance with any additional terms, conditions or limitations
which may be imposed on the Company in connection therewith pursuant to
Section 301.
(8) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the Defeasance
under Section 1302 or the Covenant Defeasance under Section 1303 (as
the case may be) have been complied with.
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SECTION 1305. Deposited Money and U.S. Government Obligations To Be Held In
Trust.
Subject to the provisions of the last paragraph of Section 1007, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee--collectively for purposes of
this Section 1305, the "Trustee") pursuant to Section 1304 in respect of the
Outstanding Securities of a particular series shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Holders of such Securities of all sums due and to
become due thereon in respect of principal (and premium, if any) and
interest, but such money need not be segregated from other funds except to
the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof, other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities of such series.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver to and pay to the Company from time to time upon Company Request
any money or U.S. Government Obligations held by it as provided in Section 1304
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to
be deposited for the purpose for which such money or U.S. Government Obligations
were deposited.
ARTICLE FOURTEEN
SUBORDINATION
SECTION 1401. Agreement of Securityholders that Securities Subordinated
to Extent Provided.
The Company, for itself, its successors and assigns, covenants and
agrees and each Holder of the Securities by his acceptance thereof likewise
covenants and agrees that the payment of the principal of, premium, if any,
and interest on each and all of the Securities is hereby expressly
subordinated, to the extent and in the manner hereinafter set forth, to the
prior payment in full of all Senior Indebtedness. The provisions of this
Article shall constitute a continuing offer to all persons who, in reliance
upon such provisions, become holders of, or continue to hold, Senior
Indebtedness, and such provisions are made for the benefit of the holders of
Senior Indebtedness, and such holders are hereby made obligees hereunder the
same as if their names were written herein as such, and they and/or each of
them may proceed to enforce such provisions.
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SECTION 1402. Company not to Make Payments with Respect to Securities in
Certain Circumstances.
(a) Upon the maturity of any Senior Indebtedness by lapse of time,
acceleration or otherwise, all principal thereof and premium, if any, and
interest thereon shall first be paid in full, or such payment duly provided
for in cash or in a manner satisfactory to the holder or holders of such
Senior Indebtedness, before any payment is made on account of the principal
of or premium, if any, or interest on the Securities or to acquire any of the
Securities or on account of any sinking fund (except sinking fund payments
made in Securities acquired by the Company before the maturity of such Senior
Indebtedness).
(b) No payment of principal of, premium, if any, or interest on the
Securities may be made if, (i) a default has occurred and is continuing in
the payment of principal of or premium, if any, or interest on any Senior
Indebtedness of the Company or (ii) if any event of default with respect to
Senior Indebtedness of the Company has occurred and is continuing and has
resulted in Senior Indebtedness becoming or being declared due and payable
prior to the date on which it would otherwise have become due and payable,
unless and until the event of default shall have been rescinded or annulled,
or (iii) any judicial proceeding is pending with respect to any default in
payment or event of default.
(c) In the event that notwithstanding the provisions of this Section 1402
the Company shall make any payment to the Trustee on account of the principal
of or premium, if any, or interest on the Securities, or on account of any
sinking fund, or the Holders of the Securities shall receive any such
payment, after the happening of a default in payment of the principal of or
premium, if any, or interest on Senior Indebtedness, then, unless and until
such default or event of default shall have been cured or waived or shall
have ceased to exist, such payment (subject to the provisions of Section 1406
and 1407) shall be held by the Trustee or the Holders of the Securities, as
the case may be, in trust for the benefit of, and shall be paid forthwith
over and delivered to, the holders of Senior Indebtedness (pro rata as to
each of such holders on the basis of the respective amounts of Senior
Indebtedness held by them) or their representative or the trustee under the
indenture or other agreement (if any) pursuant to which any instruments
evidencing any Senior Indebtedness may have been issued, as their respective
interests may appear, for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full in accordance with the terms of such Senior
Indebtedness, after giving effect to any concurrent payment or distribution
to or for the holders of Senior Indebtedness. The Company shall give prompt
written notice to a Responsible Officer of the Trustee of any fact known to
the Company that would prohibit the making of any payment of monies to or by
the Trustee in respect of the Securities pursuant to the provisions of this
Article Fourteen.
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SECTION 1403. Securities Subordinated to Prior Payment of all Senior
Indebtedness on Dissolution, Liquidation or Reorganization of Company.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, then:
(a) the holders of Senior Indebtedness of the Company shall be entitled
to receive payment in full of all such Senior Indebtedness, or provision
shall be made for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Indebtedness of the Company
before the Securityholders are entitled to receive or retain any payment or
distribution of any kind or character, whether in cash, property or
securities (including any payment or distribution which may be payable or
deliverable by reason of the payment of any other Indebtedness of the Company
(including any series of the Securities) subordinated to the payment of the
Securities, such payment or distribution being hereinafter referred to as a
"Junior Subordinated Payment"), on account of principal of (or premium, if
any) or interest on the Securities or on account of the purchase or other
acquisition of Securities by the Company and to that end the holders of
Senior Indebtedness of the Company shall be entitled to receive, for
application to the payment thereof; any payment or distribution of any kind
or character, whether in cash, property or securities, including any Junior
Subordinated Payment, which may be payable or deliverable in respect of the
Securities in any such proceeding.
(b) in the event that notwithstanding the foregoing provisions of this
Section 1403, any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, shall be received
by the Trustee or the Holders of the Securities on account of principal,
premium, if any, or interest on the Securities before all Senior Indebtedness
is paid in full, or effective provision made for its payment, such payment or
distribution (subject to the provisions of Section 1406 and 1407) shall be
received and held in trust for and shall be paid over to the holders of the
Senior Indebtedness remaining unpaid or unprovided for or their representative
or representatives, or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may have
been issued, for application to the payment of such Senior Indebtedness until
all such Senior Indebtedness shall have been paid in full, after giving
effect to any concurrent payment or distribution or provision therefor to the
holders of such Senior Indebtedness.
SECTION 1404. Securityholders to be Subrogated to Right of Holders of
Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Securities shall be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of assets of the Company
applicable to the Senior Indebtedness until all amounts owing on the
Securities shall be paid in full, and for the purpose of such subrogation no
payments or distributions to the holders of the Senior Indebtedness by or on
behalf of the Company or by or on behalf of the Holders of the Securities by
virtue of this Article which otherwise would have been made to the Holders of
the Securities shall, as between the Company
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and the Holders of the Securities, be deemed to be payment by the Company to
or on account of the Senior Indebtedness, it being understood that the
provisions of this Article Fourteen are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities, on
the one hand, and the holders of the Senior Indebtedness, on the other hand.
SECTION 1405. Obligation of the Company Unconditional.
Nothing contained in this Article Fourteen or elsewhere in this
Indenture or in the Securities is intended to or shall impair as between the
Company and the Holders of the Securities, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders of the Securities
the principal of, premium, if any, and interest on the Securities as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders of the
Securities and creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or the
Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if
any, under this Article Fourteen of the holders of Senior Indebtedness in
respect of cash, property, or securities of the Company received upon the
exercise of any such remedy. Upon any distribution of assets of the Company
referred to in this Article Fourteen, the Trustee, subject to the provisions
of Section 601, and the Holders of the Securities shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in which
such dissolution, winding up, liquidation or reorganization proceedings are
pending, or a certificate of the liquidating trustee or agent or other person
making any distribution to the Trustee or to the Holders of the Securities,
for the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness
of the Company, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article Fourteen.
SECTION 1406. Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment of
monies to or by the Trustee, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof from the Company or from
one or more holders of Senior Indebtedness or from any trustee therefor; and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 601, shall be entitled to assume conclusively that no
such facts exist.
The Trustee, subject to the provisions of Section 601, shall be entitled
to conclusively rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness of the Company be
or a trustee on behalf of such holder, as the case may, to establish that
such notice has been given by a holder of such Senior Indebtedness or a
trustee on behalf of any such holder or holders. In the event that the
Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of such Senior Indebtedness to
participate in any payment or distribution pursuant to this Article Fourteen,
the
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Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness held
by such Person, the extent to which such Person is entitled to participate in
such payment or distribution and any other facts pertinent to the rights of
such Person under this Article Fourteen, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 1407. Application by Trustee of Monies Deposited With It.
Anything in this Indenture to the contrary notwithstanding, any deposit
of monies by the Company with the Trustee or any paying agent (whether or not
in trust) for the payment of the principal of or premium, if any, or interest
on any Securities shall be subject to the provisions of Sections 1401, 1402,
1403 and 1404 except that, if at least two Business Days prior to the date on
which by the terms of this Indenture any such monies may become payable for
any purpose (including, without limitation, the payment of either the
principal of or the interest or premium, if any, on any Security) a
Responsible Officer of the Trustee shall not have received with respect to
such monies the notice provided for in Section 1406, then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power
and authority to receive such monies and to apply the same to the purpose for
which they were received, and shall not be affected by any notice to the
contrary which may be received by it within two Business Days prior to such
date or on or after such date.
SECTION 1408. Subordination Rights not Impaired by Acts or Omissions of
Company or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof which any
such holder may have or be otherwise charged with.
SECTION 1409. Securityholders Authorize Trustee to Effectuate
Subordination of Securities.
Each Holder of the Securities by his acceptance thereof authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Fourteen and appoints the Trustee his attorney-in-fact for such
purpose, including, in the event of any dissolution, winding up, liquidation
or reorganization of the Company (whether in bankruptcy, insolvency or
receivership proceedings or upon an assignment for the benefit of creditors
or otherwise) tending towards liquidation of the business and assets of the
Company, the immediate filing of a claim for the unpaid balance of its or his
Securities in the form required in said proceedings and cause said claim to
be approved. If the Trustee does not file a proper claim or proof of debt in
the form required in such proceeding prior to 30 days before the expiration
of the time to file such claim or claims, then the
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holder or holders of Senior Indebtedness are hereby authorized to and have
the right to file an appropriate claim for and on behalf of the holders of
said Securities.
SECTION 1410. Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this
Article Fourteen in respect of any Senior Indebtedness at any time held by it
to the same extent as any other holder of Senior Indebtedness, and nothing in
Section 613 or elsewhere in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder.
SECTION 1411. Article Fourteen Not to Prevent Events of Default.
The failure to make a payment on account of principal, interest or
sinking fund by reason of any provision in this Article Fourteen shall not be
construed as preventing the occurrence of an Event of Default under Section 501.
ARTICLE FIFTEEN
MISCELLANEOUS
SECTION 1501. Miscellaneous.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed,
all as of the day and year first above written.
OGE ENERGY CORP.
By ________________________________
Name: James R. Hatfield
Title: Vice President and Treasurer
Attest:
________________________________
Name: __________________________
Title: _________________________
BANK OF OKLAHOMA, NATIONAL
ASSOCIATION
By: _______________________________
Name:
Title:
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<PAGE>
EXHIBIT 4.06
- --------------------------------------------------------------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of __________, 1999
between
OGE ENERGY CORP.,
AS ISSUER
and
BANK OF OKLAHOMA, NATIONAL ASSOCIATION
AS TRUSTEE
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I DEFINITIONS.............................................2
Section 1.1. Definition of Terms................................2
ARTICLE II GENERAL TERMS AND CONDITIONS OF THE DEBENTURES..........3
Section 2.1. Designation and Principal Amount...................3
Section 2.2. Maturity...........................................3
Section 2.3. Form and Payment...................................3
Section 2.4. Global Debenture...................................3
Section 2.5. Interest...........................................5
Section 2.6. Preferred Security Holders' Rights.................6
Section 2.7. Authorized Denominations...........................6
ARTICLE III REDEMPTION OF THE DEBENTURES............................6
Section 3.1. Special Event Redemption...........................6
Section 3.2. Optional Redemption by Company.....................6
Section 3.3. No Sinking Fund....................................7
ARTICLE IV EXTENSION OF INTEREST PAYMENT PERIOD....................7
Section 4.1. Extension of Interest Payment Period...............7
Section 4.2. Notice of Extension................................8
Section 4.3. Limitation of Transactions.........................8
ARTICLE V EXPENSES................................................9
Section 5.1. Payment of Expenses................................9
Section 5.2. Payment Upon Resignation or Removal................9
ARTICLE VI NOTICE.................................................10
Section 6.1. Notice by the Company.............................10
ARTICLE VII COVENANT TO LIST ON EXCHANGE...........................11
Section 7.1. Listing on an Exchange............................11
ARTICLE VIII FORM OF DEBENTURE......................................11
Section 8.1. Form of Debenture.................................11
-i-
<PAGE>
ARTICLE IX ORIGINAL ISSUE OF DEBENTURES...........................19
Section 9.1. Original Issue of Debentures......................19
ARTICLE X MISCELLANEOUS..........................................19
Section 10.1. Ratification of Indenture.........................19
Section 10.2. Trustee Not Responsible for Recitals..............19
Section 10.3. Governing Law.....................................19
Section 10.4. Separability......................................19
Section 10.5. Counterparts......................................20
</TABLE>
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<PAGE>
FIRST SUPPLEMENTAL INDENTURE, dated as of __________, 1999 (the "First
Supplemental Indenture"), between OGE ENERGY CORP., a corporation duly organized
and existing under the laws of the State of Oklahoma, having its principal
office at 321 N. Harvey Avenue, Oklahoma City, Oklahoma 73102, (the "Company"),
and BANK OF OKLAHOMA, NATIONAL ASSOCIATION, as trustee (the "Trustee").
WHEREAS, the Company executed and delivered the indenture dated as of
__________, 1999 (the "Indenture"), to the Trustee to provide for the future
issuance of the Company's unsecured debentures, notes or other evidence of
indebtedness (the "Securities"), to be issued from time to time in one or more
series as might be determined by the Company under the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a new series of its Securities to be known as
its ____% Junior Subordinated Debentures due 2039 (the "Debentures"), the form
and substance of such Debentures and the terms, provisions and conditions
thereof to be set forth as provided in the Indenture and this First Supplemental
Indenture;
WHEREAS, OGE Energy Capital Trust I, a Delaware statutory business
trust (the "Trust"), has offered to the public $__________ aggregate liquidation
amount of its _____% Preferred Securities (the "Preferred Securities"),
representing undivided beneficial interests in the assets of the Trust and
proposes to invest the proceeds from such offering, together with the proceeds
of the issuance and sale by the Trust to the Company of $__________ aggregate
liquidation amount of its ____% Common Securities, in $__________ aggregate
principal amount of the Debentures; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this First Supplemental Indenture and all requirements necessary to make this
First Supplemental Indenture a valid instrument in accordance with its terms,
and to make the Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed, and the execution and delivery of this First Supplemental Indenture
has been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used
in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture has
the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) headings are for convenience of reference only and do not affect
interpretation;
(e) the following terms have the meanings given to them in the
Declaration: (i) Business Day; (ii) Delaware Trustee; (iii) Depositary; (iv)
Preferred Security Certificate; (v) Property Trustee; (vi) Regular Trustees;
(vii) Special Event; (viii) Tax Event; (ix) Investment Company Event; and (x)
Securities;
(f) the following terms have the meanings given to them in this
Section 1.1(f):
"Additional Interest" shall have the meaning set forth in
Section 2.5.(c)
"Compounded Interest" shall have the meaning set forth in Section 4.1.
"Declaration" means the Amended and Restated Declaration of Trust of
OGE Energy Capital Trust I, a Delaware statutory business trust, dated as of
__________, 1999.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Dissolution Event" means that, as a result of the occurrence and
continuation of a Special Event, the Trust is to be dissolved in accordance with
the Declaration, and the Debentures held by the Property Trustee are to be
distributed to the holders of the Securities issued by the Trust pro rata in
accordance with the Declaration.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 4.1.
"Global Debenture" shall have the meaning set forth in Section 2.4.
"Maturity Date" means the date on which the Debentures mature and on
which the principal shall be due and payable together with all accrued and
unpaid interest thereon including Compounded Interest and Additional Interest,
if any.
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<PAGE>
"Non Book-Entry Preferred Securities" shall have the meaning set forth
in Section 2.4.
"Optional Redemption Price" shall have the meaning set forth in
Section 3.2(a).
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
There is hereby authorized a series of Securities designated the "__%
Junior Subordinated Debentures due 2039", limited in aggregate principal amount
to $__________ (the "Debentures"), which amount shall be as set forth in any
written order of the Company for the authentication and delivery of Debentures
pursuant to Section 303 of the Indenture.
SECTION 2.2. Maturity.
The Maturity Date will be ___________, 2039.
SECTION 2.3. Form and Payment.
Except as provided in Section 2.4, the Debentures shall be issued in
fully registered certificated form without interest coupons. Principal and
interest on the Debentures issued in certificated form will be payable, the
transfer of such Debentures will be registrable and such Debentures will be
exchangeable for Debentures bearing identical terms and provisions at the office
or agency of the Trustee; provided, however, that payment of interest may be
made at the option of the Company by check mailed to the Holder at such address
as shall appear in the Security Register. Notwithstanding the foregoing, so long
as the Holder of any Debentures is the Property Trustee, the payment of the
principal of and interest (including Compounded Interest and Additional
Interest, if any) on such Debentures held by the Property Trustee will be made
at such place and to such account as may be designated by the Property Trustee.
SECTION 2.4. Global Debenture. For purposes of the Debentures only,
Section 205 of the Indenture is hereby amended to read in its entirety as
provided in this Section 2.4:
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented to
the Trustee by the Property Trustee in exchange for a global
Debenture in an aggregate principal amount equal to the
aggregate principal amount of all outstanding Debentures (a
"Global Debenture"), to be registered in the name of the
Depositary, or its nominee, and delivered by the Trustee to the
Depositary for crediting to the accounts of its participants
pursuant to the instructions of the Regular Trustees. The
Company upon any such presentation shall execute a Global
Debenture in such aggregate principal amount and deliver the
same to the Trustee for
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<PAGE>
authentication and delivery in accordance with the Indenture
and this First Supplemental Indenture. Payments on the
Debentures issued as a Global Debenture will be made to the
Depositary; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Debentures in certificated form may be
presented to the Trustee by the Property Trustee and any
Preferred Security Certificate which represents Preferred
Securities other than Preferred Securities held by the
Depositary or its nominee ("Non Book-Entry Preferred
Securities") will be deemed to represent beneficial interests
in Debentures presented to the Trustee by the Property Trustee
having an aggregate principal amount equal to the aggregate
liquidation amount of the Non Book-Entry Preferred Securities
until such Preferred Security Certificates are presented to the
Security Registrar for transfer or reissuance at which time
such Preferred Security Certificates will be cancelled and a
Debenture, registered in the name of the holder of the
Preferred Security Certificate or the transferee of the holder
of such Preferred Security Certificate, as the case may be,
with an aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Security Certificate
cancelled, will be executed by the Company and delivered to the
Trustee for authentication and delivery in accordance with the
Indenture and this First Supplemental Indenture.
(b) Unless and until it is exchanged for the Debentures in
registered form, a Global Debenture may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a successor Depositary
selected or approved by the Company or to a nominee of such successor
Depositary.
(c) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or if at any time that the
Depositary for such series is required to be registered as under the
Securities Exchange Act of 1934, such Depositary shall no longer be
registered or in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, and a successor
Depositary for such series is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such condition, as
the case may be, the Company will execute, and, subject to Article III of the
Indenture, the Trustee, upon written notice from the Company, will
authenticate and deliver the Debentures in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Debenture in exchange for such
Global Debenture. In addition, the Company may at any time determine that the
Debentures shall no longer be represented by a Global Debenture. In such
event the Company will execute, and subject to Section 301 of the Indenture,
the Trustee, upon receipt of an Officer's Certificate evidencing such
determination by the Company, will authenticate and deliver the Debentures in
definitive registered form without coupons, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of the Global
Debenture in exchange for such Global Debenture. Upon the exchange of the
Global Debenture for such Debentures in definitive registered form without
coupons, in authorized denominations, the Global Debenture shall be cancelled
by the Trustee. Such Debentures in definitive registered
4
<PAGE>
form issued in exchange for the Global Debenture shall be registered in such
names and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the
Depositary for delivery to the Persons in whose names such Securities are so
registered.
SECTION 2.5. Interest.
(a) Each Debenture will bear interest at the rate of ____% per annum
(the "Coupon Rate") from the original date of issuance until the principal
thereof becomes due and payable, and on any overdue principal and (to the
extent that payment of such interest is enforceable under applicable law) on
any overdue installment of interest at the Coupon Rate, compounded quarterly,
payable (subject to the provisions of Article IV) quarterly in arrears on
March 31, June 30, September 30 and December 31 of each year (each, an
"Interest Payment Date") commencing on December 31, 1999, to the Person in
whose name such Debenture or any predecessor Debenture is registered, at the
close of business on the regular record date for such interest installment,
which, in respect of (i) Debentures of which the Property Trustee is the
Holder and the Preferred Securities are in book-entry only form or (ii) a
Global Debenture, shall be the close of business on the Business Day next
preceding that Interest Payment Date. Notwithstanding the foregoing sentence,
if (i) the Debentures are held by the Property Trustee and the Preferred
Securities are no longer in book-entry only form or (ii) the Debentures are
not represented by a Global Debenture, the regular record date for such
interest installment shall be the fifteenth day next preceding the applicable
Interest Payment Date.
(b) The amount of interest payable for any full quarterly period will be
computed on the basis of a 360-day year of twelve 30-day months. The amount
of interest payable for any period shorter than a full quarterly period will
be computed on the basis of a 30-day month and, for periods of less than a
month, the actual number of days elapsed per 30-day month. In the event that
any date on which interest is payable on the Debentures is not a Business
Day, then payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
(c) If, at any time while the Property Trustee is the Holder of any
Debentures, the Trust or the Property Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing
authority, then, in any case, the Company will pay as additional interest
("Additional Interest") on the Debentures held by the Property Trustee, such
additional amounts as shall be required so that the net amounts received and
retained by the Trust and the Property Trustee after paying such taxes,
duties, assessments or other governmental charges will be equal to the
amounts the Trust or the Property Trustee, as applicable, would have received
had no such taxes, duties, assessments or other government charges been
imposed.
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SECTION 2.6. Preferred Security Holders' Rights.
If an Event of Default constituting the failure to pay interest or
principal on the Debentures on the date such interest or principal is otherwise
payable has occurred and is continuing, then a holder of Preferred Securities
may directly institute a proceeding for enforcement of payment to such holder
directly of the principal of or interest on the Debentures having a principal
amount equal to the aggregate liquidation amount of the Preferred Securities of
such holder on or after the respective due date specified in the Debentures. The
holders of Preferred Securities will not be able to exercise directly any other
remedy available to the holders of the Debentures under this First Supplemental
Indenture or under the Indenture.
SECTION 2.7. Authorized Denominations.
The Debentures are issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Special Event Redemption.
If a Special Event has occurred and is continuing then, notwithstanding
Section 3.2(a) but subject to Section 3.2(b), the Company shall have the right
upon not less than 30 days nor more than 60 days notice to the Holders of the
Debentures to redeem the Debentures, in whole but not in part, for cash within
90 days following the occurrence of such Special Event at a redemption price
equal to 100% of the principal amount to be redeemed plus any accrued and unpaid
interest thereon to the date of such redemption (the "Redemption Price"). The
Redemption Price shall be paid prior to 12:00 noon, New York time, on the date
of such redemption or such earlier time as the Company determines, provided that
the Company shall deposit with the Trustee an amount sufficient to pay the
Redemption Price by 10:00 a.m., New York time, on the date such Redemption Price
is to be paid.
SECTION 3.2. Optional Redemption by Company.
(a) Subject to the provisions of Section 3.2(b) and to the
provisions of Article Eleven of the Indenture, except as otherwise may be
specified in this First Supplemental Indenture, the Company shall have the
right to redeem the Debentures, in whole or in part, from time to time, on or
after ____________, ____, at a redemption price equal to 100% of the
principal amount to be redeemed plus any accrued and unpaid interest thereon
to the date of such redemption (the "Optional Redemption Price"). Any
redemption pursuant to this paragraph will be made upon not less than 30 days
nor more than 60 days notice to the Holder of the Debentures, at the Optional
Redemption Price. If the Debentures are only partially redeemed pursuant to
this Section 3.2, the Debentures will be redeemed pro rata or by lot or by
any other method utilized by the Trustee; provided, that if at the time of
redemption the Debentures are registered as a Global Debenture, the
Depositary shall determine, in accordance with its procedures, the
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principal amount of such Debentures held by each beneficial owner of
Debentures to be redeemed. The Optional Redemption Price shall be paid prior
to 12:00 noon, New York time, on the date of such redemption or at such
earlier time as the Company determines provided that the Company shall
deposit with the Trustee an amount sufficient to pay the Optional Redemption
Price by 10:00 a.m., New York time, on the date such Optional Redemption
Price is to be paid.
(b) If a partial redemption of the Debentures would result in the
delisting of the Preferred Securities issued by the Trust from any national
securities exchange or other organization on which the Preferred Securities
are then listed, the Company shall not be permitted to effect such partial
redemption and may only redeem the Debentures in whole.
SECTION 3.3. No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
The Company shall have the right, at any time and from time to time
during the term of the Debentures, to defer payments of interest for a period
not exceeding 20 consecutive quarters by extending the interest payment
period to a subsequent Interest Payment Date for such Debentures (the
"Extended Interest Payment Period"), during which Extended Interest Payment
Period no interest shall be due and payable; provided that no Extended
Interest Payment Period may extend beyond the Maturity Date. To the extent
permitted by applicable law, interest, the payment of which has been deferred
because of the extension of the interest payment period pursuant to this
Section 4.1, will bear interest thereon at the Coupon Rate compounded
quarterly for each quarter of the Extended Interest Payment Period
("Compounded Interest"). At the end of the Extended Interest Payment Period,
the Company shall pay all interest accrued and unpaid on the Debentures,
including any Additional Interest and Compounded Interest (together,
"Deferred Interest") that shall be payable to the Holders of the Debentures
in whose names the Debentures are registered in the Security Register on the
record date in respect of the Interest Payment Date occurring at the end of
the Extended Interest Payment Period. Before the termination of any Extended
Interest Payment Period, the Company may further extend such period, provided
that such period together with all previous and further extensions thereof
shall not exceed 20 consecutive quarters, or extend beyond the maturity date
of the Debentures. Upon the termination of any Extended Interest Payment
Period and upon the payment of all Deferred Interest then due, the Company
may commence a new Extended Interest Payment Period, subject to the foregoing
requirements. No interest shall be due and payable during an Extended
Interest Payment Period until the end thereof, except upon a redemption of
the Debentures during an Extended Interest Payment Period, but the Company
may prepay at any time all or any portion of the interest accrued during an
Extended Interest Payment Period.
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SECTION 4.2. Notice of Extension.
(a) If the Property Trustee is the only registered Holder of the
Debentures at the time the Company selects an Extended Interest Payment
Period, the Company shall give written notice to the Regular Trustees, the
Property Trustee and the Trustee of its selection of such Extended Interest
Payment Period one Business Day before the earlier of (i) the next succeeding
date on which Distributions on the Securities issued by the Trust are
payable, or (ii) the date the Trust is required to give notice of the record
date, or the date such Distributions are payable, to the New York Stock
Exchange or other applicable self-regulatory organization or to holders of
the Preferred Securities issued by the Trust, but in any event at least one
Business Day before such record date.
(b) If the Property Trustee is not the only Holder of the Debentures
at the time the Company selects an Extended Interest Payment Period, the
Company shall give the Holders of the Debentures and the Trustee written
notice of its selection of such Extended Interest Payment Period at least 10
Business Days before the earlier of (i) the next succeeding Interest Payment
Date, or (ii) the date the Company is required to give notice of the record
or payment date of such interest payment to the New York Stock Exchange or
other applicable self-regulatory organization or to Holders of the Debentures,
but in any event at least two business days prior to the record date.
(c) The quarter in which any notice is given pursuant to paragraphs
(a) or (b) of this Section 4.2 shall be counted as one of the 20 quarters
permitted in the maximum Extended Interest Payment Period permitted under
Section 4.1.
SECTION 4.3. Limitation of Transactions.
If (i) the Company shall exercise its right to defer payment of
interest as provided in Section 4.1, or (ii) there shall have occurred any
Event of Default, as defined in the Indenture, then, during such Extended
Interest Payment Period or until such Event of Default shall have been cured,
waived or cease to exist, (a) the Company shall not declare or pay any
dividend on, make any distributions with respect to, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its capital
stock (other than (i) dividends or distributions by way of issuance of the
Company's common stock, (ii) payment under the guarantee in respect of the
Securities, (iii) dividends in connection with the implementation of a
shareholder's rights plan, or the issuing of stock under such a plan or the
repurchase of such rights or (iv) purchases or acquisitions of shares of its
common stock in connection with the satisfaction by the Company of its
obligations under any employee benefit plans or the satisfaction by the
Company of its obligations pursuant to any contract or security requiring the
Company to purchase shares of its common stock) or make any guarantee payment
with respect thereto, and (b) the Company shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by the Company which rank pari passu with or junior to
the Debentures or make any guarantee payments with respect to the foregoing
(other than pursuant to the Preferred Security Guaranty).
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ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
In connection with the offering, sale and issuance of the Debentures to
the Property Trustee and in connection with the sale of the Securities by the
Trust, the Company, in its capacity as borrower with respect to the Debentures,
shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures, including commissions payable to the underwriters
and compensation of the Trustee under the Indenture in accordance with the
provisions of Section 607 of the Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Securities (including commissions to the
underwriters in connection therewith), the fees and expenses of the Property
Trustee and the Delaware Trustee, the costs and expenses relating to the
operation of the Trust, including without limitation, costs and expenses of
accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying
agent(s), registrar(s), transfer agent(s), duplicating, travel and telephone
and other telecommunications expenses and costs and expenses incurred in
connection with the acquisition, financing, and disposition of Trust assets
and costs relating to the dissolution of the Trust);
(c) be primarily liable for any indemnification obligations arising
with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Trust.
SECTION 5.2. Payment Upon Resignation or Removal.
Upon termination of this First Supplemental Indenture or the Indenture
or the removal or resignation of the Trustee pursuant to Section 610 of the
Indenture, the Company shall pay to the Trustee all amounts accrued to the date
of such termination, removal or resignation. Upon termination of the Declaration
or the removal or resignation of the Delaware Trustee or the Property Trustee,
as the case may be, pursuant to Section 6.6 of the Declaration, the Company
shall pay to the Delaware Trustee or the Property Trustee, as the case may be,
all amounts accrued to the date of such termination, removal or resignation.
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ARTICLE VI
NOTICE
SECTION 6.1. Notice by the Company.
The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company that would prohibit
the making of any payment of monies to or by the Trustee in respect of the
Debentures pursuant to the provisions of Article Fourteen of the Indenture.
Notwithstanding the provisions of this Article VI or any other provision of
the Indenture and this First Supplemental Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts that would prohibit the
making of any payment of monies to or by the Trustee in respect of the
Debentures pursuant to the provisions of this Article VI, unless and until a
Responsible Officer of the Trustee shall have received written notice thereof
from the Company or a holder or holders of Senior Indebtedness or from any
trustee therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Section 601 of the Indenture, shall be
entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice provided for
in this Section 6.1 at least two Business Days prior to the date upon which
by the terms hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of (or premium, if any) or
interest on any Debenture), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such money and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary that may be
received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Section 601 of the
Indenture, shall be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness of the Company, as the case may be (or a trustee on behalf of
such holder), to establish that such notice has been given by a holder of
such Senior Indebtedness or a trustee on behalf of any such holder or
holders. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
such Senior Indebtedness to participate in any payment or distribution
pursuant to Article Fourteen of the Indenture, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of such Senior Indebtedness held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under Article
Fourteen of the Indenture, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
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ARTICLE VII
COVENANT TO LIST ON EXCHANGE
SECTION 7.1. Listing on an Exchange.
If the Debentures are to be issued as a Global Debenture in
connection with the distribution of the Debentures to the holders of the
Preferred Securities issued by the Trust upon a Dissolution Event, the
Company will use its best efforts to list such Debentures on the New York
Stock Exchange, Inc. or on such other exchange as the Preferred Securities
are then listed.
ARTICLE VIII
FORM OF DEBENTURE
SECTION 8.1. Form of Debenture.
The Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This Debenture
is a Global Debenture within the meaning of the Indenture hereinafter referred
to and is registered in the name of a Depositary or a nominee of a Depositary.
This Debenture is exchangeable for Debentures registered in the name of a person
other than the Depositary or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Debenture (other than a
transfer of this Debenture 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) may be registered except in limited circumstances.
Unless this Debenture is presented by an authorized representative of
The Depositary Trust Company (55 Water Street, New York, New York) to the issuer
or its agent for registration of transfer, exchange or payment, and any
Debenture issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depositary Trust Company and
any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.]
No._________________________
$ __________________________
CUSIP No.___________________
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OGE ENERGY CORP.
____% JUNIOR SUBORDINATED DEBENTURE
DUE 2039
OGE ENERGY CORP., an Oklahoma corporation (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to ______________, or registered
assigns, the principal sum of ______________ Dollars ($_________) on
___________, __________, and to pay interest on said principal sum from
____________, 1999, or from the most recent interest payment date (each such
date, an "Interest Payment Date") to which interest has been paid or duly
provided for, quarterly (subject to deferral as set forth herein) in arrears on
March 31, June 30, September 30 and December 31 of each year commencing December
31, 1999, at the rate of ____% per annum until the principal hereof shall have
become due and payable, and on any overdue principal and premium, if any, and
(without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
same rate per annum compounded quarterly. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full quarterly period for which
interest is computed, interest shall be computed on the basis of a 30-day month
and, for periods of less than a month, the actual number of days elapsed per
30-day month. In the event that any date on which interest is payable on this
Debenture is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this Debenture
(or one or more predecessor securities, as defined in said Indenture) is
registered at the close of business on the regular record date for such interest
installment, which shall be the close of business on the business day next
preceding such Interest Payment Date. [IF PURSUANT TO THE PROVISIONS OF THE
INDENTURE THE DEBENTURES ARE NO LONGER REPRESENTED BY A GLOBAL DEBENTURE --
which shall be the close of business on the fifteenth day next preceding such
Interest Payment Date.] Any such interest installment not punctually paid or
duly provided for shall forthwith cease to be payable to the registered Holders
on such regular record date and may be paid to the Person in whose name this
Debenture (or one or more predecessor securities) is registered at the close of
business on a special record date to be fixed by the Trustee for the payment of
such defaulted interest, notice whereof shall be given to the registered Holders
of this series of Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Debentures may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture. The principal of (and premium, if any) and the
interest on this Debenture shall be payable at the office or agency of the
Trustee maintained for that purpose in any coin or currency of the United States
of America that at the time of payment is legal tender for payment of public and
private debts; provided, however, that
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payment of interest may be made at the option of the Company by check mailed
to the registered Holder at such address as shall appear in the Security
Register. Notwithstanding the foregoing, so long as the Holder of this
Debenture is the Property Trustee, the payment of the principal of (and
premium, if any) and interest on this Debenture will be made at such place
and to such account as may be designated by the Property Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is
issued subject to the provisions of the Indenture with respect thereto. Each
Holder of this Debenture, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on his or
her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Each
Holder hereof, by his or her acceptance hereof, hereby waives all notice of
the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed
by or on behalf of the Trustee.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated:___________________________
OGE ENERGY CORP.
By:__________________________________
Name:
Title:
Attest:
By:____________________________
Name:
Title:
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(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures described in
the within-mentioned Indenture.
By:___________________________ By:___________________________
as Trustee as Authentication Agent
or
By:____________________________ By:___________________________
Authorized Signatory Authorized Signatory
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(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Securities of
the Company (herein sometimes referred to as the "Securities"), specified in
the Indenture, all issued or to be issued in one or more series under and
pursuant to an Indenture dated as of __________, 1999, duly executed and
delivered between the Company and Bank of Oklahoma, National Association, as
Trustee (the "Trustee"), as supplemented by the First Supplemented Indenture
dated as of __________, 1999, between the Company and the Trustee (the
Indenture as so supplemented, the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders of the Securities. By
the terms of the Indenture, the Securities are issuable in series that may
vary as to amount, date of maturity, rate of interest and in other respects
as provided in the Indenture. This series of Securities is limited in
aggregate principal amount as specified in said First Supplemental Indenture.
Except as provided in the next paragraph, the Debentures may not be
redeemed by the Company prior to ____________, ________. The Company shall
have the right to redeem this Debenture at the option of the Company, without
premium or penalty, in whole or in part at any time and from time to time on
or after ____________, ________ (an "Optional Redemption"), at a redemption
price equal to 100% of the principal amount plus any accrued but unpaid
interest, including any Compounded Interest, if any, to the date of such
redemption (the "Optional Redemption Price"). Any redemption pursuant to this
paragraph will be made upon not less than 30 nor more than 60 days' notice,
at the Optional Redemption Price.
If, at any time, a Special Event (as defined below) shall occur or
be continuing, the Company shall have the right at any time, upon not less
than 30 nor more than 60 days' notice, to redeem the Debentures in whole or
in part for cash at the Optional Redemption Price within 90 days following
the occurrence of such Special Event.
"Special Event" means a Tax Event or an Investment Company Event.
"Tax Event" means the receipt by the Trust of an opinion of
independent tax counsel experienced in such matters, to the effect that, as a
result of (a) any amendment to, change in or announced proposed change in the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or (b) any official
administrative pronouncement or judicial decision interpreting or applying
such laws or regulations, which amendment or change is effective or proposed
change, pronouncement or decision is announced on or after the Closing Date,
there is more than an insubstantial risk that (i) the Trust is, or will be
within 90 days of the date of such opinion, subject to United States federal
income tax with respect to income received or accrued on the Debentures, (ii)
interest payable by the Company on the Debentures is not, or within 90 days
of the date of such opinion, will not be, deductible by the Company, in whole
or in part, by the Company for United States federal income tax purposes, or
(iii) the Trust is, or will be within 90 days of the date of such opinion,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges.
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"Investment Company Event" means the receipt by the Trust of an
opinion of counsel, rendered by a law firm having a recognized national
securities practice, to the effect that, as a result of the occurrence of a
change in law or regulation or a written change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), there is more
than an insubstantial risk that the Trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act, which Change in 1940 Act Law becomes effective on or after
_________.
Any redemption pursuant to the occurrence of a Tax Event will be
made upon not less than 30 days nor more than 60 days notice, at the Optional
Redemption Price.
If the Debentures are only partially redeemed by the Company
pursuant to an Optional Redemption, the Debentures will be redeemed pro rata
or by lot or by any other method utilized by the Trustee; provided that if,
at the time of redemption, the Debentures are registered as a Global
Debenture, the Depositary shall determine the principal amount of such
Debentures held by each beneficial holder thereof to be redeemed in
accordance with its procedures.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the
time outstanding, as defined in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the
Holders of the Debentures; provided, however, that no such supplemental
indenture shall (i) reduce the principal amount thereof, or reduce the rate
or extend the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof, without the consent of the Holder of
each Debenture so affected, or (ii) reduce the aforesaid percentage of
Debentures, the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holders of each Debenture
then outstanding and affected thereby. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of the
Securities of any series at the time outstanding affected thereby, on behalf
of all of the Holders of the Debentures of such series, to waive any Default
or Event of Default with respect to such series, and its consequences, except
a Default or Event of Default in the payment of the principal of or premium,
if any, or interest on any of the Securities of such series or in respect of
a provision which under the Indenture cannot be
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modified or amended without the consent of the Holder of each Outstanding
Security of that series affected. Any such consent or waiver by the
registered Holder of this Debenture (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of this Debenture and of any Debenture issued in
exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and at
the rate and in the money herein prescribed.
So long as the Company is not in default in the payment of interest
on the Debentures, the Company shall have the right at any time during the
term of the Debentures from time to time to extend the interest payment
period of such Debentures for up to 20 consecutive quarters (an "Extended
Interest Payment Period"), at the end of which period the Company shall pay
all interest then accrued and unpaid (together with the interest thereon at
the rate specified for the Debentures to the extent that payment of such
interest is enforceable under applicable law). In the event that the Company
exercises this right, then (a) the Company shall not declare or pay dividends
on, make distributions with respect to, or redeem, purchase or acquire, or
make a liquidation payment with respect to, any of its capital stock (other
than (i) dividends or distributions by way of issuance of the Company's
common stock, (ii) payment under the guarantee in respect of the Securities,
(iii) dividends in connection with the implementation of a shareholder's
rights plan, or the issuing of stock under such a plan or the repurchase of
such rights or (iv) purchases or acquisitions of shares of its common stock
in connection with the satisfaction by the Company of its obligations under
any employee benefit plans or the satisfaction by the Company of its
obligations pursuant to any contract or security requiring the Company to
purchase shares of its common stock) or make any guarantee payment with
respect thereto, and (b) the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities (including guarantees) issued by the Company that rank pari passu
with or junior to such Debentures or make any guarantee payments with respect
to the foregoing (other than pursuant to the Preferred Securities Guarantee).
Prior to the termination of any such Extended Interest Payment Period, the
Company may further extend the interest payment period; provided, that such
Extended Interest Payment Period, together with all such previous and further
extensions thereof, may not exceed 20 consecutive quarters or extend beyond
the maturity date of the Debentures. The Company may prepay at any time all
or any portion of the interest accrued during an Extended Interest Payment
Period. At the termination of any such Extended Interest Payment Period and
upon the payment of all accrued and unpaid interest and any additional amount
then due, the Company may commence a new Extended Interest Payment Period,
subject to the above requirements.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered Holder
hereof on the Security Register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the Trustee
in Oklahoma City and State of Oklahoma accompanied by a written instrument or
17
<PAGE>
instruments of transfer in form satisfactory to the Company or the Trustee
duly executed by the registered Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Debentures of authorized
denominations and for the same aggregate principal amount and series will be
issued to the designated transferee or transferees. No service charge will be
made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and the Security
Registrar may deem and treat the registered Holder hereof as the absolute
owner hereof (whether or not this Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone
other than the Security Registrar) for the purpose of receiving payment of or
on account of the principal hereof and premium, if any, and interest due
hereon and for all other purposes, and neither the Company nor the Trustee
nor any paying agent nor any Security Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
The Indenture imposes certain limitations on the ability of the
Company to, among other things, merge or consolidate with any other Person or
sell, assign, transfer or lease all or substantially all of its properties or
assets. All such covenants and limitations are subject to a number of
important qualifications and exceptions. The Company must report periodically
to the Trustee on compliance with the covenants in the Indenture.
[The Debentures of this series are issuable only in registered form
without coupons in denominations of $25 and any integral multiple thereof.]
[This Global Debenture is exchangeable for Debentures in definitive form only
under certain limited circumstances set forth in the Indenture. Debentures of
this series so issued are issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof.] As provided in the
Indenture and subject to certain limitations [herein and] therein set forth,
Debentures of this series (so issued) are exchangeable for a like aggregate
principal amount of Debentures of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
18
<PAGE>
ARTICLE IX
ORIGINAL ISSUE OF DEBENTURES
SECTION 9.1. Original Issue of Debentures.
Debentures in the aggregate principal amount of $__________ may,
upon execution of this First Supplemental Indenture, be executed by the
Company and delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver said Debentures to or upon the
written order of the Company, signed by its Chairman, its President, or any
Vice President and its Treasurer or an Assistant Treasurer, without any
further action by the Company.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Ratification of Indenture.
The Indenture, as supplemented by this First Supplemental Indenture,
is in all respects ratified and confirmed, and this First Supplemental
Indenture shall be deemed part of the Indenture in the manner and to the
extent herein and therein provided.
SECTION 10.2. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
First Supplemental Indenture.
SECTION 10.3. Governing Law.
This First Supplemental Indenture and each Debenture shall be deemed to
be a contract made under the internal laws of the State of Oklahoma, and for all
purposes shall be construed in accordance with the laws of said State.
SECTION 10.4. Separability.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Debentures shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
First Supplemental Indenture or of the Debentures, but this First
Supplemental Indenture and the Debentures shall be construed as if such
invalid or illegal or unenforceable provision had never been contained herein
or therein.
19
<PAGE>
SECTION 10.5. Counterparts.
This First Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed, on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
OGE ENERGY CORP.
By:______________________________
Name: James R. Hatfield
Title: Vice President and Treasurer
[Seal]
Attest:
By:__________________________
Name: _______________________
Title: _______________________
BANK OF OKLAHOMA, NATIONAL
ASSOCIATION, as Trustee
By:______________________________
Name:
Title:
20
<PAGE>
EXHIBIT 4.08
CERTIFICATE OF TRUST
OF
OGE ENERGY CAPITAL TRUST I
This Certificate of Trust is being duly executed as of September 29,
1999 for the purposes of forming a business trust pursuant to the Delaware
Business Trust Act (12 Del. C. Section 3801 ET SEQ.) (the "Act").
1. NAME. The name of the business trust formed hereby is "OGE
Energy Capital Trust I" (the "Trust").
2. DELAWARE TRUSTEE. The name and business address of the
Delaware resident trustee of the Trust meeting the requirements of Section
3807 of the Act are as follows:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
3. EFFECTIVE DATE. This Certificate of Trust, which may be
executed in counterparts, shall be effective immediately upon filing with the
Secretary of State of the State of Delaware.
[rest of page intentionally left blank]
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<PAGE>
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have duly executed this Certificate of Trust as of the date first written
above.
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ James P. Lawler
---------------------
Name: James P. Lawler
Title: Authorized Officer
/s/ A. M. Strecker
- ---------------------------------------
A. M. Strecker, as Regular Trustee
/s/ James R. Hatfield
- ---------------------------------------
James R. Hatfield, as Regular Trustee
E-2
<PAGE>
EXHIBIT 4.09
CERTIFICATE OF TRUST
OF
OGE ENERGY CAPITAL TRUST II
This Certificate of Trust is being duly executed as of September 29,
1999 for the purposes of forming a business trust pursuant to the Delaware
Business Trust Act (12 Del. C. Section 3801 ET SEQ.) (the "Act").
1. NAME. The name of the business trust formed hereby is "OGE
Energy Capital Trust II" (the "Trust").
2. DELAWARE TRUSTEE. The name and business address of the
Delaware resident trustee of the Trust meeting the requirements of Section
3807 of the Act are as follows:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
3. EFFECTIVE DATE. This Certificate of Trust, which may be
executed in counterparts, shall be effective immediately upon filing with the
Secretary of State of the State of Delaware.
[rest of page intentionally left blank]
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<PAGE>
IN WITNESS WHEREOF, the undersigned, being all of the trustees of
the Trust, have duly executed this Certificate of Trust as of the date first
written above.
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ James P. Lawler
--------------------
Name: James P. Lawler
Title: Authorized Officer
/s/ A. M. Strecker
- ---------------------------------------
A. M. Strecker, as Regular Trustee
/s/ James R. Hatfield
- ---------------------------------------
James R. Hatfield, as Regular Trustee
E-2
<PAGE>
EXHIBIT 4.10
DECLARATION OF TRUST
OF
OGE ENERGY CAPITAL TRUST I
DECLARATION OF TRUST, dated as of September 29, 1999, between OGE
Energy Corp., an Oklahoma corporation, as Sponsor, Wilmington Trust Company,
as the initial Delaware Trustee, and A. M. Strecker, and James R. Hatfield,
as Regular Trustees (collectively with the Delaware Trustee, the "Trustees").
The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"OGE Energy Corp Capital Trust I", in which name the Trustees, or the Sponsor
to the extent provided herein, may conduct the business of the Trust, make
and execute contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets
over to the Trustees the sum of Ten Dollars ($10.00). The Trustees hereby
acknowledge receipt of such amount in trust from the Sponsor, which amount
shall constitute the initial trust estate. The Trustees hereby declare that
they will hold the trust estate in trust for the Sponsor. It is the intention
of the parties hereto that the Trust created hereby constitute a business
trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del C. Section
3801 et seq. (the "Business Trust Act"), and that this document constitute
the governing instrument of the Trust. The Trustees are hereby authorized and
directed to execute and file a certificate of trust with the Delaware
Secretary of State in the form attached hereto.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party (and
substantially in the form included as an exhibit to the 1933 Act Registration
Statement (as defined below)), to provide for the contemplated operation of
the Trust created hereby and the issuance of preferred securities (the
"Preferred Securities") and common securities by the Trust as such securities
will be described therein. Prior to the execution and delivery of such
amended and restated Declaration of Trust, the Trustees shall not have any
duty or obligation hereunder or with respect to the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain prior
to such execution and delivery and licenses, consents or approvals required
by applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct
the Sponsor, in each case on behalf of the Trust as sponsor of the Trust, (i)
to prepare for filing with the Securities and Exchange Commission (the
"Commission") (a) a Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the
registration under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust and possibly certain other securities and (b) a
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating
to the registration of the Preferred Securities of the Trust under the
Securities Exchange Act of 1934, as amended; (ii) to file with the New York
Stock Exchange or any other national stock exchange or The Nasdaq National
Market (each, an "Exchange") and execute on behalf of the Trust one or more
listing applications
E-1
<PAGE>
and all other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the Preferred
Securities to be listed on any of the Exchanges; (iii) to negotiate and
execute an underwriting agreement among the Trust, the Sponsor and the
underwriter(s) thereto relating to the offer and sale of the Preferred
Securities, substantially in the form included or to be incorporated as an
exhibit to the 1993 Act Registration Statement and (iv) to execute and file
such applications, reports, surety bonds, irrevocable consents, appointments
of attorneys for service of process and other papers and documents as shall
be necessary or desirable to register the Preferred Securities under the
securities or "Blue Sky" laws of such jurisdictions as the Sponsor, on behalf
of the Trust, may deem necessary or desirable.
5. It is hereby acknowledged and agreed that in connection
with any document referred to in clauses (i), (ii) and (iv) above, (A) any
Regular Trustee (or his agent or the Sponsor as permitted herein) is
authorized to execute such document on behalf of the Trust, provided that the
1933 Act Registration Statement and the 1934 Act Registration Statement shall
be signed by the Regular Trustees, and (B) Wilmington Trust Company, in its
capacity as Trustee of the Trust, shall not be required to join in any such
filing or execute on behalf of the Trust any such document unless required by
the rules and regulations of the Commission, the Exchanges or state
securities or blue sky laws, and in such case only to the extent so required.
6. This Declaration of Trust may be executed in one or more
counterparts.
7. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor which may increase
or decrease the number of Trustees; provided that, to the extent required by
the Business Trust Act, one Trustee shall be an entity that has its principal
place of business in the State of Delaware. Subject to the foregoing, the
Sponsor is entitled to appoint or remove without cause any Trustee at any
time. The Trustees may resign upon thirty days prior notice to the Sponsor.
E-2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Declaration
of Trust to be duly executed as of the day and year first above written.
OGE ENERGY CORP.,
as Sponsor
By: /s/ James R. Hatfield
-------------------------------
Name: James R. Hatfield
Title: Vice President and Trustee
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ James P. Lawler
-------------------------------
Name: James P. Lawler
Title: Authorized Officer
/s/ A. M. Strecker
----------------------------------------
A. M. Strecker, as Regular Trustee
/s/ James R. Hatfield
-----------------------------------------
James R. Hatfield, as Regular Trustee
E-3
<PAGE>
EXHIBIT 4.11
DECLARATION OF TRUST
OF
OGE ENERGY CAPITAL TRUST II
DECLARATION OF TRUST, dated as of September 29, 1999, between OGE
Energy Corp., an Oklahoma corporation, as Sponsor, Wilmington Trust Company,
as the initial Delaware Trustee, and A. M. Strecker, and James R. Hatfield,
as Regular Trustees (collectively with the Delaware Trustee, the "Trustees").
The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"OGE Energy Corp Capital Trust II", in which name the Trustees, or the
Sponsor to the extent provided herein, may conduct the business of the Trust,
make and execute contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets
over to the Trustees the sum of Ten Dollars ($10.00). The Trustees hereby
acknowledge receipt of such amount in trust from the Sponsor, which amount
shall constitute the initial trust estate. The Trustees hereby declare that
they will hold the trust estate in trust for the Sponsor. It is the intention
of the parties hereto that the Trust created hereby constitute a business
trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del C. Section
3801 et seq. (the "Business Trust Act"), and that this document constitute
the governing instrument of the Trust. The Trustees are hereby authorized and
directed to execute and file a certificate of trust with the Delaware
Secretary of State in the form attached hereto.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party (and
substantially in the form included as an exhibit to the 1933 Act Registration
Statement (as defined below)), to provide for the contemplated operation of
the Trust created hereby and the issuance of preferred securities (the
"Preferred Securities") and common securities by the Trust as such securities
will be described therein. Prior to the execution and delivery of such
amended and restated Declaration of Trust, the Trustees shall not have any
duty or obligation hereunder or with respect to the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain prior
to such execution and delivery and licenses, consents or approvals required
by applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct
the Sponsor, in each case on behalf of the Trust as sponsor of the Trust, (i)
to prepare for filing with the Securities and Exchange Commission (the
"Commission") (a) a Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the
registration under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust and possibly certain other securities and (b) a
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating
to the registration of the Preferred Securities of the Trust under the
Securities Exchange Act of 1934, as amended; (ii) to file with the New York
Stock Exchange or any other national stock exchange or The Nasdaq National
Market (each, an "Exchange") and execute on behalf of the Trust one or more
listing applications
E-1
<PAGE>
and all other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the Preferred
Securities to be listed on any of the Exchanges; (iii) to negotiate and
execute an underwriting agreement among the Trust, the Sponsor and the
underwriter(s) thereto relating to the offer and sale of the Preferred
Securities, substantially in the form included or to be incorporated as an
exhibit to the 1993 Act Registration Statement and (iv) to execute and file
such applications, reports, surety bonds, irrevocable consents, appointments
of attorneys for service of process and other papers and documents as shall
be necessary or desirable to register the Preferred Securities under the
securities or "Blue Sky" laws of such jurisdictions as the Sponsor, on behalf
of the Trust, may deem necessary or desirable.
5. It is hereby acknowledged and agreed that in connection
with any document referred to in clauses (i), (ii) and (iv) above, (A) any
Regular Trustee (or his agent or the Sponsor as permitted herein) is
authorized to execute such document on behalf of the Trust, provided that the
1933 Act Registration Statement and the 1934 Act Registration Statement shall
be signed by the Regular Trustees, and (B) Wilmington Trust Company, in its
capacity as Trustee of the Trust, shall not be required to join in any such
filing or execute on behalf of the Trust any such document unless required by
the rules and regulations of the Commission, the Exchanges or state
securities or blue sky laws, and in such case only to the extent so required.
6. This Declaration of Trust may be executed in one or more
counterparts.
7. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor which may increase
or decrease the number of Trustees; provided that, to the extent required by
the Business Trust Act, one Trustee shall be an entity that has its principal
place of business in the State of Delaware. Subject to the foregoing, the
Sponsor is entitled to appoint or remove without cause any Trustee at any
time. The Trustees may resign upon thirty days prior notice to the Sponsor.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Declaration
of Trust to be duly executed as of the day and year first above written.
OGE ENERGY CORP.,
as Sponsor
By: /s/ James R. Hatfield
-----------------------------------
Name: James R. Hatfield
Title: Vice President and Trustee
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ James P. Lawler
-----------------------------------
Name: James P. Lawler
Title: Authorized Officer
/s/ A. M. Strecker
----------------------------------------
A. M. Strecker, as Regular Trustee
/s/ James R. Hatfield
----------------------------------------
James R. Hatfield, as Regular Trustee
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<PAGE>
THE FOLLOWING EXHIBIT 4.12 IS THE FORM OF AMENDED AND RESTATED DECLARATION
OF TRUST TO BE USED BY EACH OGE ENERGY CORP. TRUST
AMENDED AND RESTATED DECLARATION OF TRUST
OGE Energy Capital Trust __
Dated as of ____________ __, ____
<PAGE>
TABLE OF CONTENTS
<TABLE>
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2ARTICLE I. INTERPRETATION AND DEFINITIONS.............................................................1
SECTION 1.1. Interpretation and Definitions........................................................1
"Affiliate" ......................................................................................2
"Authorized Officer" ......................................................................................2
"Beneficial Owners" ......................................................................................2
"Business Day" ......................................................................................2
"Business Trust Act" ......................................................................................2
"Cedel" ......................................................................................2
"Certificate" ......................................................................................2
"Certificate of Trust"......................................................................................2
"Closing Date" ......................................................................................2
"Code" ......................................................................................2
"Commission" ......................................................................................2
"Common Securities Holder"..................................................................................2
"Common Security" ......................................................................................2
"Common Security Certificate"...............................................................................3
"Corporate Trust Office"....................................................................................3
"Covered Person" ......................................................................................3
"Debenture Issuer" ......................................................................................3
"Debenture Issuer Indemnified Person".......................................................................3
"Debenture Trustee" ......................................................................................3
"Debentures" ......................................................................................3
"Delaware Trustee" ......................................................................................3
"Depositary" ......................................................................................3
"Depositary Participant"....................................................................................3
"Direct Action" ......................................................................................3
"Distribution" ......................................................................................3
"Euroclear" ......................................................................................3
"Exchange Act" ......................................................................................3
"Fiduciary Indemnified Person"..............................................................................3
"Fiscal Year" ......................................................................................4
"Global Security" ......................................................................................4
"Guarantee" ......................................................................................4
"Holder" ......................................................................................4
"Indemnified Person" ......................................................................................4
"Indenture" ......................................................................................4
"Indenture Event of Default"................................................................................4
"Investment Company" ......................................................................................4
"Investment Company Act"....................................................................................4
"Investment Company Event"..................................................................................4
"Legal Action" ......................................................................................4
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(CONTINUED)
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"List of Holders" ......................................................................................4
"Majority in Liquidation Amount"............................................................................5
"New York Stock Exchange"...................................................................................5
"Officers' Certificate".....................................................................................5
"Paying Agent" ......................................................................................5
"Payment Amount" ......................................................................................5
"Person" ......................................................................................5
"Preferred Security" ......................................................................................5
"Preferred Security Certificate"............................................................................5
"Property Account" ......................................................................................6
"Property Trustee" ......................................................................................6
"Pro Rata" ......................................................................................6
"Quorum" ......................................................................................6
"Redemption/Distribution Notice"............................................................................6
"Redemption Price" ......................................................................................6
"Regular Trustee" ......................................................................................6
"Related Party" ......................................................................................6
"Responsible Officer" ......................................................................................6
"Rule 3a-5" ......................................................................................6
"Securities" ......................................................................................6
"Securities Act" ......................................................................................6
"Special Event" ......................................................................................6
"Sponsor" ......................................................................................6
"Successor Delaware Trustee"................................................................................6
"Successor Entity" ......................................................................................7
"Successor Property Trustee"................................................................................7
"Successor Security" ......................................................................................7
"Super Majority" ......................................................................................7
"Tax Event" ......................................................................................7
"10% in Liquidation Amount".................................................................................7
"Treasury Regulations"......................................................................................7
"Trust" ......................................................................................7
"Trust Enforcement Event"...................................................................................7
"Trust Indenture Act" ......................................................................................7
"Trustee" or "Trustees".....................................................................................7
ARTICLE II. TRUST INDENTURE ACT........................................................................8
SECTION 2.1. Trust Indenture Act; Application......................................................8
SECTION 2.2. Lists of Holders of Securities........................................................8
SECTION 2.3. Reports by the Property Trustee.......................................................9
SECTION 2.4. Periodic Reports to the Property Trustee..............................................9
SECTION 2.5. Evidence of Compliance with Conditions Precedent......................................9
</TABLE>
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(CONTINUED)
<TABLE>
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SECTION 2.6. Trust Enforcement Events; Waiver......................................................9
SECTION 2.7. Trust Enforcement Event; Notice......................................................11
ARTICLE III. ORGANIZATION..............................................................................11
SECTION 3.1. Name and Organization................................................................11
SECTION 3.2. Office...............................................................................11
SECTION 3.3. Purpose..............................................................................12
SECTION 3.4. Authority............................................................................12
SECTION 3.5. Title to Property of the Trust.......................................................12
SECTION 3.6. Powers and Duties of the Regular Trustees............................................13
SECTION 3.7. Prohibition of Actions by the Trust and the Trustees.................................15
SECTION 3.8. Powers and Duties of the Property Trustee............................................16
SECTION 3.9. Certain Duties and Responsibilities of the Property Trustee..........................18
SECTION 3.10. Certain Rights of Property Trustee...................................................20
SECTION 3.11. Delaware Trustee.....................................................................22
SECTION 3.12. Execution of Documents...............................................................22
SECTION 3.13. Not Responsible for Recitals or Issuance of Securities...............................22
SECTION 3.14. Duration of Trust....................................................................22
SECTION 3.15. Mergers..............................................................................22
SECTION 3.16. Property Trustee May File Proofs of Claim............................................24
ARTICLE IV. SPONSOR...................................................................................25
SECTION 4.1. Responsibilities of the Sponsor......................................................25
SECTION 4.2. Indemnification and Expenses of the Trustees.........................................26
ARTICLE V. TRUST COMMON SECURITIES HOLDER............................................................26
SECTION 5.1. Debenture Issuer's Purchase of Common Securities.....................................26
SECTION 5.2. Covenants of the Common Securities Holder............................................26
ARTICLE VI. TRUSTEES..................................................................................27
SECTION 6.1. Number of Trustees...................................................................27
SECTION 6.2. Delaware Trustee; Eligibility........................................................27
SECTION 6.3. Property Trustee; Eligibility........................................................27
SECTION 6.4. Qualifications of Regular Trustees and Delaware Trustee Generally....................28
SECTION 6.5. Initial Regular Trustees.............................................................28
SECTION 6.6. Appointment, Removal and Resignation of Trustees.....................................28
SECTION 6.7. Vacancies among Trustees.............................................................30
SECTION 6.8. Effect of Vacancies..................................................................30
SECTION 6.9. Meetings.............................................................................30
</TABLE>
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(CONTINUED)
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SECTION 6.10. Delegation of Power..................................................................31
SECTION 6.11. Merger, Conversion, Consolidation or Succession to Business..........................31
ARTICLE VII. TERMS OF SECURITIES.......................................................................31
SECTION 7.1. General Provisions Regarding Securities..............................................31
SECTION 7.2. Distributions........................................................................33
SECTION 7.3. Redemption of Securities.............................................................34
SECTION 7.4. Redemption Procedures................................................................35
SECTION 7.5. Voting Rights of Preferred Securities................................................36
SECTION 7.6. Voting Rights of Common Securities...................................................38
SECTION 7.7. Paying Agent.........................................................................39
SECTION 7.8. Listing..............................................................................40
SECTION 7.9. Transfer of Securities...............................................................40
SECTION 7.10. Mutilated, Destroyed, Lost or Stolen Certificates....................................41
SECTION 7.11. Deemed Security Holders..............................................................41
SECTION 7.12. Global Securities....................................................................41
ARTICLE VIII. DISSOLUTION AND TERMINATION OF TRUST......................................................43
SECTION 8.1. Dissolution and Termination of Trust.................................................43
SECTION 8.2. Liquidation Distribution Upon Dissolution of the Trust...............................44
ARTICLE IX. LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, DELAWARE TRUSTEES OR OTHERS.............45
SECTION 9.1. Liability............................................................................45
SECTION 9.2. Exculpation..........................................................................45
SECTION 9.3. Fiduciary Duty.......................................................................46
SECTION 9.4. Indemnification......................................................................47
SECTION 9.5. Outside Businesses...................................................................50
ARTICLE X. ACCOUNTING................................................................................50
SECTION 10.1. Fiscal Year..........................................................................50
SECTION 10.2. Certain Accounting Matters...........................................................50
SECTION 10.3. Banking..............................................................................51
SECTION 10.4. Withholding..........................................................................51
ARTICLE XI. AMENDMENTS AND MEETINGS...................................................................51
SECTION 11.1. Amendments...........................................................................51
SECTION 11.2. Meetings of the Holders of Securities; Action by Written Consent.....................54
</TABLE>
-iv-
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE XII. REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE..................................55
SECTION 12.1. Representations and Warranties of the Property Trustee...............................55
SECTION 12.2. Representations and Warranties of the Delaware Trustee...............................56
ARTICLE XIII. MISCELLANEOUS.............................................................................56
SECTION 13.1. Notices..............................................................................56
SECTION 13.2. Governing Law........................................................................57
SECTION 13.3. Intention of the Parties.............................................................58
SECTION 13.4. Headings.............................................................................58
SECTION 13.5. Successors and Assigns...............................................................58
SECTION 13.6. Partial Enforceability...............................................................58
SECTION 13.7. Counterparts.........................................................................58
</TABLE>
-v-
<PAGE>
CROSS REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of Trust
Indenture Act of Section of
1939, as Amended Agreement
---------------- ----------
<S> <C>
310(a)...................................................................................6.3
310(b)........................................................................6.3(c); 6.3(d)
310(c)..........................................................................Inapplicable
311(a)................................................................................2.2(b)
311(b)............................................................................... 2.2(b)
311(c)..........................................................................Inapplicable
312(a)................................................................................2.2(a)
312(b)................................................................................2.2(b)
312(c)..........................................................................Inapplicable
313(a)...................................................................................2.3
313(b)...................................................................................2.3
313(c)...................................................................................2.3
313(d)...................................................................................2.3
314(a)...........................................................................2.4; 3.6(j)
314(b)..........................................................................Inapplicable
314(c)...................................................................................2.5
314(d)..........................................................................Inapplicable
314(e)...................................................................................2.5
314(f)..........................................................................Inapplicable
315(a)........................................................................3.9(b);3.10(a)
315(b)................................................................................2.7(a)
315(c)................................................................................3.9(a)
315(d)................................................................................3.9(b)
316(a)...................................................................2.6; 7.5(b); 7.6(c)
316(b)..........................................................................Inapplicable
316(c)................................................................................3.6(e)
317(a)..................................................................................3.16
317(b)...........................................................................3.8(h); 7.7
318(a)................................................................................2.1(c)
</TABLE>
- ----------
* This Cross-Reference Table does not constitute part of the Agreement and shall
not have any bearing upon the interpretation of any of its terms or provisions.
-i-
<PAGE>
AMENDED AND RESTATED DECLARATION OF TRUST
THIS AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration"), dated as
of _______ __, ___________, by and among OGE Energy Corp., an Oklahoma
corporation, as Sponsor, and A. M. Strecker and James R. Hatfield as the
initial Regular Trustees, and Wilmington Trust Company, as the initial
Property Trustee and the initial Delaware Trustee, not in their individual
capacities but solely as Trustees, and the holders, from time to time, of
undivided beneficial ownership interests in the Trust to be issued pursuant
to this Declaration.
WHEREAS, the Trustees and the Sponsor established OGE Energy Capital
Trust __ (the "Trust"), a business trust under the Business Trust Act (as
defined, together with other capitalized terms, herein) pursuant to a
Declaration of Trust dated as of September __, 1999, (the "Original
Declaration") and a Certificate of Trust (the "Certificate of Trust") filed
with the Secretary of State of the State of Delaware on September __, 1999;
and
WHEREAS, the sole purpose of the Trust shall be to issue and sell certain
securities representing undivided beneficial ownership interests in the
assets of the Trust, to invest the proceeds from such sales in the Debentures
issued by the Debenture Issuer and to engage in only those activities
necessary or incidental thereto; and
WHEREAS, all of the Trustees and the Sponsor, by this Declaration, amend
and restate each and every term and provision of the Original Declaration.
NOW, THEREFORE, it being the intention of the parties hereto to continue
the Trust as a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees hereby declare that all assets contributed to the Trust be held in
trust for the benefit of the Holders, from time to time, of the Securities
representing undivided beneficial ownership interests in the assets of the
Trust issued hereunder, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 INTERPRETATION AND DEFINITIONS.
Unless the context otherwise requires:
(a) capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration as modified, supplemented or amended from time to time;
<PAGE>
(d) all references in this Declaration to Articles, Sections, Recitals
and Exhibits are to Articles and Sections of, or Recitals and Exhibits to,
this Declaration unless otherwise specified;
(e) unless otherwise defined in this Declaration, a term defined in the
Trust Indenture Act has the same meaning when used in this Declaration; and
(f) a reference to the singular includes the plural and vice versa and
a reference to any masculine form of a term shall include the feminine form
of a term, as applicable.
(g) the following terms have the following meanings:
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Beneficial Owners" means, for Preferred Securities represented by a
Global Security, the person who acquires an interest in the Preferred
Securities which is reflected on the records of the Depositary through the
Depositary Participants.
"Business Day" means any day, other than a Saturday or Sunday, that is
not a day on which banking institutions in the Borough of Manhattan, The City
of New York are authorized or required by law, regulation or executive order
to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code,
12 Del. Code Section 3801 ET SEQ., as it may be amended from time to time, or
any successor legislation.
"Cedel" means Cedel, S.A.
"Certificate" means a Common Security Certificate or a Preferred Security
Certificate.
"Certificate of Trust" has the meaning specified in the Recitals hereto.
"Closing Date" means the date on which the Preferred Securities are
issued and sold.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation. A reference to a specific section of the
Code refers not only to such specific section but also to any corresponding
provision of any federal tax statute enacted after the date of this
Declaration, as such specific section or corresponding provision is in effect
on the date of application of the provisions of this Declaration containing
such reference.
"Commission" means the Securities and Exchange Commission.
"Common Securities Holder" means OGE Energy Corp., in its capacity as
purchaser and holder of all of the Common Securities issued by the Trust.
"Common Security" has the meaning specified in Section 7.1.
2
<PAGE>
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security, substantially in the form of
Exhibit B hereto.
"Corporate Trust Office" means the principal office of the Property
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Declaration is
located at Rodney Square North, 1100 North Market Street, Wilmington, Delaware
19809-0001.
"Covered Person" means (a) any officer, director, shareholder, partner,
member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means OGE Energy Corp., in its capacity as issuer of
the Debentures under the Indenture.
"Debenture Issuer Indemnified Person" means (a) any Regular Trustee; (b)
any Affiliate of any Regular Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Regular Trustee or any Affiliate thereof; or (d) any officer, employee or
agent of the Trust or its Affiliates.
"Debenture Trustee" means Bank of Oklahoma, National Association, in its
capacity as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Debentures" means the series of debentures to be issued by the Debenture
Issuer under the Indenture and held by the Property Trustee.
"Delaware Trustee" has the meaning specified in Section 6.2.
"Depositary" means, with respect to Securities issuable in whole or in
part in the form of one or more Global Securities, a clearing agency registered
under the Exchange Act that is designated to act as Depositary for such
Securities.
"Depositary Participant" means a member of, or participant in, the
Depositary.
"Direct Action" has the meaning specified in Section 3.8(e).
"Distribution" means a distribution payable to Holders of Securities in
accordance with Section 7.2.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section 9.4(b).
3
<PAGE>
"Fiscal Year" has the meaning specified in Section 10.1.
"Global Security" means a fully registered, global Preferred Security
Certificate.
"Guarantee" means the Guarantee Agreement, dated as of _______ __, ____,
of the Sponsor in respect of the Securities.
"Holder" means any holder of Securities, as registered on the books and
records of the Trust; provided, however, that in determining whether the
Holders of the requisite liquidation amount of Preferred Securities have
voted on any matter provided for in this Declaration, then for the purpose of
such determination only (and not for any other purpose hereunder), if the
Preferred Securities remain in the form of one or more Global Securities and
if the Depositary which is the holder of such Global Securities has sent an
omnibus proxy to the Trust assigning voting rights to Depositary Participants
to whose accounts the Preferred Securities are credited on the record date,
the term "Holders" shall mean such Depositary Participants acting at the
direction of the Beneficial Owners.
"Indemnified Person" means a Debenture Issuer Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Indenture, dated as of __________, ____________,
between the Debenture Issuer and Bank of Oklahoma, National Association, as
Trustee, and as amended and supplemented by the First Supplemental Indenture
thereto, dated as of __________, _________, pursuant to which the Debentures are
to be issued.
"Indenture Event of Default" has the meaning given to the term "Event of
Default" in the Indenture.
"Investment Company" means an investment company as defined in the
Investment Company Act and the regulations promulgated thereunder.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Investment Company Event" means the receipt by the Trust of an opinion
of counsel, rendered by a law firm having a recognized national securities
practice, to the effect that, as a result of the occurrence of a change in law
or regulation or a written change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law"), there is more than an insubstantial risk
that the Trust is or will be considered an "investment company" that is required
to be registered under the Investment Company Act, which Change in 1940 Act Law
becomes effective on or after the Closing Date.
"Legal Action" has the meaning specified in Section 3.6(g).
"List of Holders" has the meaning specified in Section 2.2(a).
4
<PAGE>
"Majority in Liquidation Amount" means, except as provided in the terms
of the Preferred Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the context
may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities, voting separately as a class, who are the
record owners of more than 50% of the aggregate liquidation amount (including
the stated amount that would be paid on redemption, liquidation or otherwise,
plus accumulated and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Securities of the relevant
class.
"New York Stock Exchange" means the New York Stock Exchange, Inc. or any
successor thereto.
"Officers' Certificate" means, with respect to any Person, a certificate
signed on behalf of such Person by two Authorized Officers of such Person.
Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Declaration shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer on behalf of such Person in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer on behalf of such Person to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer
acting on behalf of such Person, such condition or covenant has been complied
with; provided, that the term "Officers' Certificate", when used with
reference to Regular Trustees who are natural persons shall mean a
certificate signed by two of the Regular Trustees which otherwise satisfies
the foregoing requirements.
"Paying Agent" has the meaning specified in Section 3.8(h).
"Payment Amount" has the meaning specified in Section 7.2(c).
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever
nature.
"Preferred Security" has the meaning specified in Section 7.1.
"Preferred Security Certificate" means a definitive certificate in fully
registered form representing a Preferred Security, substantially in the
form of Exhibit A.
5
<PAGE>
"Property Account" has the meaning specified in Section 3.8(c).
"Property Trustee" means the Trustee meeting the eligibility requirements
set forth in Section 6.3.
"Pro Rata" means pro rata to each Holder of Securities according to the
aggregate liquidation amount of the Securities held by the relevant Holder in
relation to the aggregate liquidation amount of all Securities outstanding.
"Quorum" means a majority of the Regular Trustees or, if there are only
two Regular Trustees, both of them.
"Redemption/Distribution Notice" has the meaning specified in Section
7.4(a) hereto.
"Redemption Price" means the amount for which the Securities will be
redeemed, which amount will equal (i) the redemption price paid by the
Debenture Issuer to repay or redeem, in whole or in part, the Debentures held
by the Trust plus an amount equal to accumulated and unpaid Distributions on
such Securities through the date of their redemption or (ii) such lesser
amount as will be received by the Trust in respect of the Debentures so
repaid or redeemed.
"Regular Trustee" means any Trustee other than the Property Trustee and
the Delaware Trustee.
"Related Party" means, with respect to the Sponsor, any direct or wholly
owned subsidiary of the Sponsor or any Person that owns, directly or
indirectly, 100% of the outstanding voting securities of the Sponsor.
"Responsible Officer" means, with respect to the Property Trustee, any
officer with direct responsibility for the administration of this Declaration
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act or any
successor rule thereunder.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, or any successor legislation.
"Special Event" means a Tax Event or an Investment Company Event.
"Sponsor" means OGE Energy Corp., an Oklahoma corporation, or any
successor entity in a merger, consolidation, amalgamation or replacement by
or conveyance, transfer or lease of its properties substantially as an
entirety, in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning specified in Section 6.6(b).
6
<PAGE>
"Successor Entity" has the meaning specified in Section 3.15(b)(i).
"Successor Property Trustee" has the meaning specified in Section 6.6(b).
"Successor Security" has the meaning specified in Section 3.15(b)(i)b.
"Super Majority" has the meaning specified in Section 2.6(a)(ii).
"Tax Event" means the receipt by the Trust of an opinion of independent
tax counsel experienced in such matters, to the effect that, as a result of
(a) any amendment to, change in or announced proposed change in the laws (or
any regulations thereunder) of the United States or any political subdivision
or taxing authority thereof or therein, or (b) any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or proposed change,
pronouncement or decision is announced on or after the Closing Date, there is
more than an insubstantial risk that (i) the Trust is, or will be within 90
days of the date of such opinion, subject to United States federal income tax
with respect to income received or accrued on the Debentures, (ii) interest
payable by the Debenture Issuer on the Debentures is not, or within 90 days
of the date of such opinion, will not be, deductible by the Debenture Issuer,
in whole or in part, by the Debenture Issuer for United States federal income
tax purposes, or (iii) the Trust is, or will be within 90 days of the date of
such opinion, subject to more than a de minimis amount of other taxes, duties
or other governmental charges.
"10% in Liquidation Amount" means, except as provided in the terms of the
Preferred Securities or by the Trust Indenture Act, Holder(s) of outstanding
Securities, voting together as a single class, or, as the context may
require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities, voting separately as a class, who are the
record owners of 10% or more of the aggregate liquidation amount (including
the stated amount that would be paid on redemption, liquidation or otherwise,
plus accrued and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Securities of the relevant
class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trust" has the meaning specified in the Recitals hereto.
"Trust Enforcement Event" in respect of the Securities means an Indenture
Event of Default has occurred and is continuing in respect of the Debentures.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"Trustee" or "Trustees" means each Person who has signed this Declaration
as a trustee, so long as such Person shall continue in office in accordance
with the terms hereof, and all other Persons who may from time to time be
duly appointed, qualified and serving as Trustees in
7
<PAGE>
accordance with the provisions hereof, and references herein to a Trustee or
the Trustees shall refer to such Person or Persons solely in their capacity
as trustees hereunder.
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1. TRUST INDENTURE ACT; APPLICATION.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a Trustee
for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the Trust's classification as a grantor trust for United
States federal income tax purposes and shall not affect the nature of the
Securities as equity securities representing undivided beneficial ownership
interests in the assets of the Trust.
SECTION 2.2. LISTS OF HOLDERS OF SECURITIES.
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide the Property Trustee (i), except while the Preferred Securities
are represented by one or more Global Securities, at least one Business Day
prior to the date for payment of Distributions, a list, in such form as the
Property Trustee may reasonably require, of the names and addresses of the
Holders of the Securities ("List of Holders") as of the record date relating
to the payment of such Distributions and (ii) at any other time, within 30
days of receipt by the Trust of a written request from the Property Trustee
for a List of Holders as of a date no more than 15 days before such List of
Holders is given to the Property Trustee; provided that neither the Sponsor
nor the Regular Trustees on behalf of the Trust shall be obligated to provide
such List of Holders at any time the List of Holders does not differ from the
most recent List of Holders given to the Property Trustee by the Sponsor and
the Regular Trustees on behalf of the Trust. The Property Trustee shall
preserve, in as current a form as is reasonably practicable, all information
contained in Lists of Holders given to it or which it receives in the
capacity as Paying Agent (if acting in such capacity), provided that the
Property Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under, and
shall be entitled to the benefits of, Sections 311(a), 311(b) and 312(b) of
the Trust Indenture Act.
8
<PAGE>
SECTION 2.3. REPORTS BY THE PROPERTY TRUSTEE.
Within 60 days after May 15 of each year (commencing with the year of the
first anniversary of the issuance of the Preferred Securities), the Property
Trustee shall provide to the Holders of the Preferred Securities such reports
as are required by Section 313 of the Trust Indenture Act, if any, in the
form and in the manner provided by Section 313 of the Trust Indenture Act.
The Property Trustee shall also comply with the requirements of Section
313(d) of the Trust Indenture Act.
SECTION 2.4. PERIODIC REPORTS TO THE PROPERTY TRUSTEE.
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the
compliance certificate required by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6. TRUST ENFORCEMENT EVENTS; WAIVER.
(a) The Holders of a Majority in Liquidation Amount of the Preferred
Securities may, by vote or written consent, on behalf of the Holders of all
of the Preferred Securities, waive any past Trust Enforcement Event in
respect of the Preferred Securities and its consequences, provided that, if
the underlying Indenture Event of Default:
(i) is not waivable under the Indenture, the Trust Enforcement
Event under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of the Debentures (a "Super
Majority") to be waived under the Indenture, the related Trust
Enforcement Event under the Declaration may only be waived by
the vote or written consent of the Holders of at least the
proportion in liquidation amount of the Preferred Securities
that the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B)
of the Trust Indenture Act is hereby expressly excluded from this Declaration
and the Securities, as permitted by the Trust Indenture Act. Upon such
waiver, any such default shall cease to exist, and any Trust Enforcement
Event with respect to the Preferred Securities arising therefrom shall be
deemed to have been cured, for
9
<PAGE>
every purpose of this Declaration and the Preferred Securities, but no such
waiver shall extend to any subsequent or other Trust Enforcement Event with
respect to the Preferred Securities or impair any right consequent thereon.
Any waiver by the Holders of the Preferred Securities of a Trust Enforcement
Event with respect to the Preferred Securities shall also be deemed to
constitute a waiver by the Holders of the Common Securities of any such Trust
Enforcement Event with respect to the Common Securities for all purposes of
this Declaration without any further act, vote, or consent of the Holders of
the Common Securities.
(b) The Holders of a Majority in Liquidation Amount of the Common
Securities may, by vote or written consent, on behalf of the Holders of all
of the Common Securities, waive any past Trust Enforcement Event in respect
of the Common Securities and its consequences, provided that, if the
underlying Indenture Event of Default:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived
such Trust Enforcement Event under the Declaration as
provided below in this Section 2.6(b), the Trust
Enforcement Event under the Declaration shall also not be
waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived under the Indenture, except where the Holders of
the Common Securities are deemed to have waived such Trust
Enforcement Event under the Declaration as provided below
in this Section 2.6(b), the Trust Enforcement Event under
the Declaration may only be waived by the vote or written
consent of the Holders of at least the proportion in
liquidation amount of the Common Securities that the
relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding;
provided further, each Holder of Common Securities will be deemed to have waived
any Trust Enforcement Event and all Trust Enforcement Events with respect to the
Common Securities and the consequences thereof until all Trust Enforcement
Events with respect to the Preferred Securities have been cured, waived or
otherwise eliminated, and until such Trust Enforcement Events with respect to
the Preferred Securities have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the Preferred Securities and only the Holders of the Preferred Securities will
have the right to direct the Property Trustee in accordance with the terms of
the Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu
of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b),
upon such cure, waiver or other elimination, any such default shall cease to
exist and any Trust Enforcement Event with respect to the Common Securities
arising therefrom shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other Trust
Enforcement Event with respect to the Common Securities or impair any right
consequent thereon.
10
<PAGE>
(c) A waiver of an Indenture Event of Default by the Property Trustee
at the direction of the Holders of the Preferred Securities constitutes a
waiver of the corresponding Trust Enforcement Event with respect to the
Preferred Securities under this Declaration. The foregoing provisions of this
Section 2.6(c) shall be in lieu of Section 316(a)(1)(B) of the Trust
Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act is
hereby expressly excluded from this Declaration and the Securities, as
permitted by the Trust Indenture Act.
SECTION 2.7. TRUST ENFORCEMENT EVENT; NOTICE.
(a) The Property Trustee shall, within 90 days after the occurrence of
a Trust Enforcement Event, transmit by mail, first class postage prepaid, to
the Holders of the Securities, notices of all defaults with respect to the
Securities actually known to a Responsible Officer of the Property Trustee,
unless such defaults have been cured before the giving of such notice (the
term "defaults" for the purposes of this Section 2.7(a) being hereby defined
to be an Indenture Event of Default, not including any periods of grace
provided for therein and irrespective of the giving of any notice provided
therein); provided that, except for a default in the payment of principal of
(or premium, if any) or interest on any of the Debentures, the Property
Trustee shall be protected in withholding such notice if and so long as a
Responsible Officer of the Property Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the
Securities.
(b) The Property Trustee shall not be deemed to have knowledge of any
default except:
(i) a default under Sections 501(1) and 501(2) of the Indenture;
or
(ii) any default as to which the Property Trustee shall have
received written notice or of which a Responsible Officer
of the Property Trustee charged with the administration of
this Declaration shall have actual knowledge.
ARTICLE III.
ORGANIZATION
SECTION 3.1. NAME AND ORGANIZATION.
The Trust hereby continued is named "OGE Energy Capital Trust __" as such
name may be modified from time to time by the Regular Trustees following
written notice to the Holders of Securities. The Trust's activities may be
conducted under the name of the Trust or any other name deemed advisable by
the Regular Trustees.
SECTION 3.2. OFFICE.
The address of the principal office of the Trust is c/o OGE Energy Corp.,
321 North Harvey, Oklahoma City, Oklahoma 73102. On 10 Business Days' written
notice to the Holders of Securities, the Regular Trustees may designate
another principal office.
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SECTION 3.3. PURPOSE.
The exclusive purposes and functions of the Trust are (a) to issue and
sell Securities and use the gross proceeds from such sale to acquire the
Debentures, and (b) except as otherwise limited herein, to engage in only
those other activities necessary or incidental thereto. The Trust shall not
borrow money, issue debt or reinvest proceeds derived from investments,
pledge any of its assets or otherwise undertake (or permit to be undertaken)
any activity that would cause the Trust not to be classified as a grantor
trust for United States federal income tax purposes.
By the acceptance of this Trust, none of the Trustees, the Sponsor, the
Holders of the Preferred Securities or Common Securities or the Preferred
Securities Beneficial Owners will take any position for United States federal
income tax purposes which is contrary to the classification of the Trust as a
grantor trust.
SECTION 3.4. AUTHORITY.
Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Regular Trustees shall have
exclusive authority to carry out the purposes of the Trust. An action taken
by the Regular Trustees in accordance with their powers shall constitute the
act of and serve to bind the Trust and an action taken by the Property
Trustee on behalf of the Trust in accordance with its powers shall constitute
the act of and serve to bind the Trust. In dealing with the Trustees acting
on behalf of the Trust, no person shall be required to inquire into the
authority of the Trustees to bind the Trust. Persons dealing with the Trust
are entitled to rely conclusively on the power and authority of the Trustees
as set forth in this Declaration.
(a) Except as expressly set forth in this Declaration and except if
a meeting of the Regular Trustees is called with respect to any matter over
which the Regular Trustees have power to act, any power of the Regular
Trustees may be exercised by, or with the consent of, any one such Regular
Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except
as otherwise required by the Business Trust Act or applicable law, any
Regular Trustee is authorized to execute on behalf of the Trust any documents
which the Regular Trustees have the power and authority to cause the Trust to
execute pursuant to Section 3.6(b), provided, that the registration
statements referred to in Section 3.6(b)(ii), including any amendments
thereto, shall be signed by or on behalf of a majority of the Regular
Trustees; and
(c) a Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his
or her power for the purposes of signing any documents which the Regular
Trustees have power and authority to cause the Trust to execute pursuant to
Section 3.6.
SECTION 3.5. TITLE TO PROPERTY OF THE TRUST.
Except as provided in Section 3.8 with respect to the Debentures and the
Property Account or as otherwise provided in this Declaration, legal title to
all assets of the Trust shall be
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vested in the Trust. The Holders shall not have legal title to any part of
the assets of the Trust, but shall have an undivided beneficial ownership
interest in the assets of the Trust.
SECTION 3.6. POWERS AND DUTIES OF THE REGULAR TRUSTEES.
The Regular Trustees shall have the exclusive power, duty and authority
to cause the Trust to engage in the following activities:
(a) to establish the terms and form of the Preferred Securities and
the Common Securities in the manner specified in Section 7.1 and issue and
sell the Preferred Securities and the Common Securities in accordance with
this Declaration; provided, however, that the Trust may issue no more than
one series of Preferred Securities and no more than one series of Common
Securities, and, provided further, that there shall be no interests in the
Trust other than the Securities, and the issuance of Securities shall be
limited to a one-time, simultaneous issuance of both Preferred Securities and
Common Securities on the Closing Date;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange or any other
national stock exchange or the NASDAQ Stock Market
for listing of any Preferred Securities, the
Guarantee and the Debentures;
(ii) execute and file with the Commission one or more
registration statements on the applicable forms
prepared by the Sponsor, including any amendments
thereto, pertaining to the Preferred Securities, the
Guarantee and the Debentures;
(iii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the
Sponsor to be necessary, in order to qualify or
register all or part of the Preferred Securities in
any State in which the Sponsor has determined to
qualify or register such Preferred Securities for
sale; and
(iv) negotiate the terms of and execute and enter into an
underwriting agreement and other related agreements
providing for the sale of the Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however, that the
Regular Trustees shall cause legal title to the Debentures to be held of
record in the name of the Property Trustee for the benefit of the Holders of
the Preferred Securities and the Holders of the Common Securities;
(d) to give the Sponsor and the Property Trustee prompt written
notice of the occurrence of a Special Event; provided that the Regular
Trustees shall consult with the Sponsor and the Property Trustee before
taking or refraining from taking any action in relation to any such Special
Event;
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(e) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue
relevant notices to the Holders of Preferred Securities and Holders of Common
Securities as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required
of the Regular Trustees pursuant to the terms of this Declaration and the
Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort
to legal action or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants to conduct only those services that the Regular Trustees have
authority to conduct directly, and to and pay reasonable compensation for
such services;
(i) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the
Trust Indenture Act to the Property Trustee, which certificate may be
executed by any Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry out
any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities
of any notice received from the Debenture Issuer of its election to defer
payments of interest on the Debentures by extending the interest payment
period under the Debentures as authorized by the Indenture;
(n) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Preferred
Securities and the Holders of the Common Securities or to enable the Trust to
effect the purposes for which the Trust was created;
(o) to take any action, not inconsistent with applicable law, that
the Regular Trustees determine in their discretion to be necessary or
desirable in carrying out the purposes and functions of the Trust as set out
in Section 3.3 or the activities of the Trust as set out in this Section 3.6,
including, but not limited to:
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(i) to cause the Trust not to be deemed to be an Investment
Company required to be registered under the Investment
Company Act;
(ii) to cause the Trust to be classified as a grantor trust for
United States federal income tax purposes; and
(iii) to cooperate with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture
Issuer for United States federal income tax purposes.
(p) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed by the Regular Trustees, on behalf of the
Trust; and
(q) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
The Regular Trustees shall exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Regular Trustees shall have no power
to, and shall not, take any action that is inconsistent with the purposes and
functions of the Trust set forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of
the powers or the authority of the Property Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section
3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7. PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES.
(a) The Trust shall not, and the Trustees (including the Property
Trustee) shall cause the Trust not to, engage in any activity other than as
required or authorized by this Declaration. In particular, the Trust shall
not and the Trustees (including the Property Trustee) shall cause the Trust
not to:
(i) invest any proceeds received by the Trust from
holding the Debentures, but shall distribute all such
proceeds to Holders of Securities pursuant to the
terms of this Declaration and of the Securities;
(ii acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness;
(v) possess any power or otherwise act in such a way as to vary
the Trust assets;
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(vi) possess any power or otherwise act in such a way as
to vary the terms of the Securities in any way
whatsoever (except to the extent expressly authorized
in this Declaration or by the terms of the
Securities);
(vii) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust
other than the Securities;
(viii) other than as provided in this Declaration or by the terms
of the Securities, (A) direct the time, method and place of
exercising any trust or power conferred upon the Debenture
Trustee with respect to the Debentures, (B) waive any past
default that is waivable under the Indenture, (C) exercise
any right to rescind or annul any declaration that the
principal of all the Debentures shall be due and payable,
or (D) consent to any amendment, modification or
termination of the Indenture or the Debentures where such
consent shall be required unless the Trust shall have
received an opinion of counsel to the effect that such
modification will not cause more than an insubstantial risk
that the Trust will be deemed an Investment Company
required to be registered under the Investment Company Act,
or the Trust will not be classified as a grantor trust for
United States federal income tax purposes;
(ix) take any action inconsistent with the status of the
Trust as a grantor trust for United States federal
income tax purposes; or
(x) revoke any action previously authorized or approved by vote of
the Holders of the Preferred Securities.
SECTION 3.8. POWERS AND DUTIES OF THE PROPERTY TRUSTEE.
(a) The legal title to the Debentures shall be owned by and held of
record in the name of the Property Trustee in trust for the benefit of the
Trust and the Holders of the Securities. The right, title and interest of the
Property Trustee to the Debentures shall vest automatically in each Person
who may hereafter be appointed as Property Trustee in accordance with Section
6.6. Such vesting and cessation of title shall be effective whether or not
conveyancing documents with regard to the Debentures have been executed and
delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the Delaware Trustee
(if the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Property Account") in the name of and
under the exclusive control of the Property Trustee on
behalf of the Holders of the Securities and, upon the
receipt of payments of funds made in respect of the Debentures
held by the Property Trustee, deposit such funds into the
Property Account and make payments to the Holders of the
Preferred Securities and Holders of
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the Common Securities from the Property Account in
accordance with Section 7.2. Funds in the Property Account
shall be held uninvested until disbursed in accordance with
this Declaration. The Property Account shall be an account
that is maintained with a banking institution the rating on
whose long-term unsecured indebtedness is at least equal to
the rating assigned to the Preferred Securities by a
"nationally recognized statistical rating organization",
within the meaning of Rule 436(g)(2) under the Securities
Act;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Preferred
Securities and the Common Securities to the extent the
debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the Regular
Trustees in accordance with the terms of the Securities, engage
in such ministerial activities as so directed and as shall be
necessary or appropriate to effect the distribution of the
Debentures to Holders of Securities upon the occurrence of a
Special Event.
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to
the terms of this Declaration and the Securities.
(e) The Property Trustee shall take any Legal Action which arises
out of or in connection with a Trust Enforcement Event of which a Responsible
Officer of the Property Trustee has actual knowledge or the Property
Trustee's duties and obligations under this Declaration or the Trust
Indenture Act; provided however, that if a Trust Enforcement Event has
occurred and is continuing and such event is attributable to the failure of
the Debenture Issuer to pay interest, principal or other required payments on
the Debentures on the date such interest, principal or other required
payments are otherwise payable (or in the case of redemption, on the
redemption date), then a Holder of Preferred Securities may directly
institute a proceeding against the Debenture Issuer for enforcement of
payment to such Holder of the principal of or interest on Debentures having a
principal amount equal to the aggregate liquidation amount of the Preferred
Securities of such Holder (a "Direct Action") on or after the respective due
date specified in the Debentures.
(f) The Property Trustee shall continue to serve as a Trustee until
either:
(i) the Trust has been completely liquidated and the proceeds
of the liquidation distributed to the Holders of Securities
pursuant to the terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 6.6.
(g) The Property Trustee shall have the legal power to exercise all
of the rights, powers and privileges of a holder of Debentures under the
Indenture and, if a Trust Enforcement Event actually known to a Responsible
Officer of the Property Trustee occurs and is continuing,
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the Property Trustee shall, for the benefit of Holders of the Securities,
enforce its rights as holder of the Debentures subject to the rights of the
Holders pursuant to the terms of such Securities.
(h) The Property Trustee may authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all Securities and any such
Paying Agent shall comply with Section 317(b) of the Trust Indenture Act. Any
Paying Agent may be removed by the Property Trustee at any time and a
successor Paying Agent or additional Paying Agents may be appointed at any
time by the Property Trustee.
(i) Subject to this Section 3.8, the Property Trustee shall have
none of the duties, liabilities, powers or the authority of the Regular
Trustees set forth in Section 3.6.
The Property Trustee shall exercise the powers set forth in this Section
3.8 in a manner that is consistent with the purposes and functions of the
Trust set out in Section 3.3, and the Property Trustee shall have no power
to, and shall not, take any action that is inconsistent with the purposes and
functions of the Trust set out in Section 3.3.
SECTION 3.9. CERTAIN DUTIES AND RESPONSIBILITIES OF THE PROPERTY TRUSTEE.
(a) The Property Trustee, before the occurrence of any Trust
Enforcement Event and after the curing of all Trust Enforcement Events that
may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Declaration and no implied covenants shall be
read into this Declaration against the Property Trustee. In case a Trust
Enforcement Event has occurred (that has not been cured or waived pursuant to
Section 2.6) of which a Responsible Officer of the Property Trustee has
actual knowledge, the Property Trustee shall exercise such of the rights and
powers vested in it by this Declaration, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) No provision of this Declaration shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of a Trust Enforcement Event and
after the curing or waiving of all such Trust Enforcement
Events that may have occurred:
(a) the duties and obligations of the Property Trustee
shall be determined solely by the express
provisions of this Declaration and the Property
Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Declaration, and no
implied covenants or obligations shall be read into
this Declaration against the Property Trustee; and
(b) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may
conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or
opinions furnished to the Property Trustee
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and conforming to the requirements of this
Declaration; but in the case of any such
certificates or opinions that by any provision
hereof are specifically required to be furnished to
the Property Trustee, the Property Trustee shall be
under a duty to examine the same to determine
whether or not they conform to the requirements of
this Declaration;
(ii) the Property Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer
of the Property Trustee, unless it shall be proved that
the Property Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it without
negligence, in good faith in accordance with the
direction of the Holders of not less than a Majority in
Liquidation Amount of the Securities relating to the
time, method and place of conducting any proceeding for
any remedy available to the Property Trustee, or
exercising any trust or power conferred upon the
Property Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of
any of its rights or powers, if it shall have reasonable
grounds for believing that the repayment of such funds
or liability is not reasonably assured to it under the
terms of this Declaration or indemnity reasonably
satisfactory to the Property Trustee against such risk
or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safe-keeping and physical preservation of the
Debentures and the Property Account shall be to deal
with such property in a similar manner as the Property
Trustee deals with similar property for its own account,
subject to the protections and limitations on liability
afforded to the Property Trustee under this Declaration
and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or
sufficiency of the Debentures or the payment of any
taxes or assessments levied thereon or in connection
therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may
otherwise agree with the Sponsor. Money held by the
Property Trustee need not be segregated from other funds
held by it except in relation to the Property Account
maintained by the Property Trustee pursuant to Section
3.8(c)(i) and except to the extent otherwise required by
law; and
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(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the
Sponsor with their respective duties under this
Declaration, nor shall the Property Trustee be liable
for any default or misconduct of the Regular Trustees or
the Sponsor.
SECTION 3.10. CERTAIN RIGHTS OF PROPERTY TRUSTEE.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it
to be genuine and to have been signed, sent or presented
by the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular
Trustees contemplated by this Declaration shall be
sufficiently evidenced by an Officers' Certificate;
(iii) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or
omitting any action hereunder, the Property Trustee
(unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its
part, request and conclusively rely upon an Officers'
Certificate which, upon receipt of such request, shall
be promptly delivered by the Sponsor or the Regular
Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument
(including any financing or continuation statement or
any filing under tax or securities laws) or any
rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel of its
choice or other experts and the advice or opinion of
such counsel and experts with respect to legal matters
or advice within the scope of such experts' area of
expertise shall be full and complete authorization and
protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance
with such advice or opinion, such counsel may be counsel
to the Sponsor or any of its Affiliates, and may include
any of its employees. The Property Trustee shall have
the right at any time to seek instructions concerning
the administration of this Declaration from any court of
competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Declaration at the request or direction of any
Holder, unless such Holder shall have provided to the
Property Trustee security and indemnity, reasonably
satisfactory to the Property
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Trustee, against the costs, expenses (including
attorneys' fees and expenses and the expenses of the
Property Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying
with such request or direction, including such
reasonable advances as may be requested by the Property
Trustee; provided that, nothing contained in this
Section 3.10(a) shall be taken to relieve the Property
Trustee, upon the occurrence of an Indenture Event of
Default, of its obligation to exercise the rights and
powers vested in it by this Declaration;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Property Trustee, in
its discretion, may make such further inquiry or
investigation into such facts or matters as it may see
fit;
(viii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents, custodians, nominees
or attorneys and the Property Trustee shall not be
responsible for any misconduct or negligence on the part
of any agent or attorney appointed with due care by it
hereunder;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the
Securities, and the signature of the Property Trustee or
its agents alone shall be sufficient and effective to
perform any such action and no third party shall be
required to inquire as to the authority of the Property
Trustee to so act or as to its compliance with any of
the terms and provisions of this Declaration, both of
which shall be conclusively evidenced by the Property
Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders of
the Securities which instructions may only be given by
the Holders of the same proportion in liquidation amount
of the Securities as would be entitled to direct the
Property Trustee under the terms of the Securities in
respect of such remedy, right or action, (ii) may
refrain from enforcing such remedy or right or taking
such other action until such instructions are received,
and (iii) shall be protected in conclusively relying on
or acting in or accordance with such instructions;
(xi) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any
obligation to take any action that is discretionary
under the provisions of this Declaration; and
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(xii) the Property Trustee shall not be liable for any action
taken, suffered or omitted to be taken by it without
negligence, in good faith and reasonably believed by it
to be authorized or within the discretion, rights or
powers conferred upon it by this Declaration.
(b) No provision of this Declaration shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in
any jurisdiction in which it shall be illegal, or in which the Property
Trustee shall be unqualified or incompetent in accordance with applicable
law, to perform any such act or acts, or to exercise any such right, power,
duty or obligation. No permissive power or authority available to the
Property Trustee shall be construed to be a duty.
SECTION 3.11. DELAWARE TRUSTEE.
Notwithstanding any other provision of this Declaration other than
Section 6.2, the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Regular Trustees or the Property Trustee described in
this Declaration. Except as set forth in Section 6.2, the Delaware Trustee
shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Business Trust Act.
SECTION 3.12. EXECUTION OF DOCUMENTS.
Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act, any Regular Trustee is
authorized to execute on behalf of the Trust any documents that the Regular
Trustees have the power and authority to execute pursuant to Section 3.6;
provided that, the registration statements referred to in Section 3.6(b)(ii),
including any amendments thereto, shall be signed by or on behalf of a
majority of the Regular Trustees.
SECTION 3.13. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as
to the value or condition of the property of the Trust or any part thereof.
The Trustees make no representations as to the validity or sufficiency of
this Declaration, the Securities, the Debentures or the Indenture.
SECTION 3.14. DURATION OF TRUST.
The Trust shall exist until terminated pursuant to the provisions of
Article VIII hereof.
SECTION 3.15. MERGERS.
(a) The Trust may not consolidate, amalgamate, merge with or into,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described in Section 3.15(b) and (c).
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(b) The Trust may, at the request of the Sponsor and with the consent
of the Regular Trustees or, if there are more than two, a majority of the
Regular Trustees and without the consent of the Holders of the Securities,
the Delaware Trustee or the Property Trustee, consolidate, amalgamate, merge
with or into, or be replaced by or convey, transfer or lease its properties
substantially as an entirety to a trust organized as such under the laws of any
State; provided, that:
(i) if the Trust is not the successor, such successor entity
(the "Successor Entity") either:
(a) expressly assumes all of the obligations of the
Trust with respect to the Securities; or
(b) substitutes for the Preferred Securities other
securities having substantially the same terms as
the Preferred Securities (the "Successor
Securities") so long as the Successor Securities
rank the same as the Preferred Securities rank in
priority with respect to Distributions and pay-
ments upon liquidation, redemption and otherwise;
(ii) the Debenture Issuer expressly appoints a trustee of such
Successor Entity that possesses the same powers and duties
as the Property Trustee as the holder of the Debentures;
(iii) the Preferred Securities or any Successor Securities are
listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities
exchange or with any other or organization on which the
Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Preferred
Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating
organization;
(v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect
the rights, preferences and privileges of the Holders of
the Preferred Securities (including any Successor
Securities) in any material respect;
(vi) such Successor Entity has a purpose identical to that of
the Trust;
(vii) prior to such merger, consolidation, amalgamation, re-
placement, conveyance, transfer or lease the Sponsor has
received an opinion of independent counsel to the Trust
experienced in such matters to the effect that:
(a) such merger, consolidation, amalgamation, re-
placement, conveyance, transfer or lease does not
adversely affect the rights,
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preferences and privileges of the Holders of the
Preferred Securities (including any Successor
Securities) in any material respect;
(b) following such merger, consolidation, amalgama-
tion, replacement, conveyance, transfer or lease
neither the Trust nor the Successor Entity will
be required to register as an Investment Company;
and
(c) following such merger, consolidation, amalgamation
or replacement, the Trust (or the Successor
Entity) will continue to be classified as a
grantor trust for United States federal income
tax purposes;
(viii) the Sponsor or any permitted successor or assignee owns
all of the Common Securities and guarantees the obligations
of such Successor Entity under the Successor Securities at
least to the extent provided by the Securities Guarantee;
and
(ix) such Successor Entity expressly assumes all of the obliga-
tions of the Trust with respect to the Trustees.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with
the consent of Holders of 100% in aggregate liquidation amount of the
Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to, any other entity or permit any other entity to consolidate, amalgamate,
merge with or into, or replace it, if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust or Successor
Entity to be classified as other than a grantor trust for United States federal
income tax purposes and each Holder of the Securities not to be treated as
owning an undivided interest in the Debentures.
SECTION 3.16. PROPERTY TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Securities (or, if the Securities are
original issue discount Securities, such portion of the liquidation amount as
may be specified in the terms of such Securities) and to file such other papers
or documents as may be necessary or advisable in order to have the claims of the
Property Trustee (including any claim for the reasonable compensation, expenses,
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disbursements and advances of the Property Trustee, its and counsel) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement adjustment or compensation affecting the
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
ARTICLE IV.
SPONSOR
SECTION 4.1. RESPONSIBILITIES OF THE SPONSOR.
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission one or more
registration statements on the applicable forms, including any amendments
thereto, pertaining to the Preferred Securities, the Guarantee and the
Debentures;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and to do
any and all such acts, other than actions which must be taken by the Trust, and
advise the Trust of actions it must take, and prepare for execution and filing
any documents to be executed and filed by the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of any such
States;
(c) to prepare for filing by the Trust an application to the New York
Stock Exchange or any other national stock exchange or the NASDAQ Stock Market
for listing upon notice of issuance of any Preferred Securities, the Guarantee
and the Debentures; and
(d) to negotiate the terms of an underwriting agreement and other re-
lated agreements providing for the sale of the Preferred Securities.
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SECTION 4.2. INDEMNIFICATION AND EXPENSES OF THE TRUSTEES.
The Sponsor, in its capacity as Debenture Issuer, agrees to indemnify
the Property Trustee and the Delaware Trustee for, and to hold each of them
harmless against, any loss, liability or expense incurred on the part of the
Property Trustee or the Delaware Trustee, as the case may be, arising out of or
in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending either of them against
any claim or liability in connection with the exercise or performance of any of
their respective powers or duties hereunder except any such loss, damage, claim,
liability, penalty or expense as may be attributable to the Property Trustee's
negligence, bad faith or willful misconduct or, in the case of the Delaware
Trustee, any such loss, liability or expense as may be attributable to its gross
negligence, bad faith or willful misconduct; the provisions of this Section 4.2
shall survive the resignation or removal of the Delaware Trustee or the Property
Trustee or the termination of this Declaration.
The Sponsor agrees to pay the Property Trustee and the Delaware Trustee
from time to time reasonable compensation for all services rendered by them
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an expressed trust), as set forth in
a separate agreement.
ARTICLE V.
TRUST COMMON SECURITIES HOLDER
SECTION 5.1. DEBENTURE ISSUER'S PURCHASE OF COMMON SECURITIES.
On the Closing Date, the Debenture Issuer will purchase all of the
Common Securities issued by the Trust, for an amount at least equal to 3% of the
capital of the Trust, at the same time as the Preferred Securities are sold.
The aggregate stated liquidation amount of Common Securities out-
standing at any time shall not be less than 3% of the capital of the Trust.
SECTION 5.2. COVENANTS OF THE COMMON SECURITIES HOLDER.
For so long as the Preferred Securities remain outstanding, the Common
Securities Holder will covenant (i) to maintain, directly or indirectly, 100%
ownership of the Common Securities, (ii) to cause the Trust to remain a
statutory business trust and not to voluntarily dissolve, wind up, liquidate or
be terminated, except as permitted by this Declaration, (iii) to use its
commercially reasonable efforts to ensure that the Trust will not be an
investment company for purposes of the Investment Company Act, and (iv) to take
no action which would be reasonably likely to cause the Trust to be classified
as an association or a publicly traded partnership taxable as a corporation for
United States federal income tax purposes.
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ARTICLE VI.
TRUSTEES
SECTION 6.1. NUMBER OF TRUSTEES.
The number of Trustees initially shall be three, and:
(a) at any time before the issuance of any Securities, the Sponsor may,
by written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees may be
increased or decreased by vote of the Holders of a Majority in Liquidation
Amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities or by written consent in lieu of such meeting; provided
that the number of Trustees shall be at least three; and provided further that
(1) the Delaware Trustee, in the case of a natural person, shall be a person who
is a resident of the State of Delaware or that, if not a natural person, is an
entity which has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable law; (2) at least one Regular
Trustee is an employee or officer of, or is affiliated with, the Sponsor; and
(3) one Trustee shall be the Property Trustee for so long as this Declaration is
required to qualify as an indenture under the Trust Indenture Act, and such
Trustee may also serve as Delaware Trustee if it meets the applicable
requirements.
SECTION 6.2. DELAWARE TRUSTEE; ELIGIBILITY.
If required by the Business Trust Act, one Trustee (which may be the
Property Trustee) (the "Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place of
business in the State of Delaware, and otherwise meets the requirements of app-
licable law,
provided that, if the Property Trustee has its principal place of business in
the State of Delaware and otherwise meets the requirements of app-licable
law, then the Property Trustee shall also be the Delaware Trustee and Section
3.11 shall have no application.
SECTION 6.3. PROPERTY TRUSTEE; ELIGIBILITY.
(a) There shall at all times be one Trustee (which shall initially be
the Delaware Trustee) which shall act as Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the laws
of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or
other Person permitted by the Commission to act as an in-
stitutional trustee under the Trust Indenture
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Act, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least
50 million U.S. dollars ($50,000,000), and subject to super-
vision or examination by federal, State, Territorial or Dis-
trict of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining autho-
rity referred to above, then for the purposes of this Sec-
tion 6.3(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition
so published.
(b) If at any time the Property Trustee shall cease to be eligible to
so act under Section 6.3(a), the Property Trustee shall immediately resign in
the manner and with the effect set forth in Section 6.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act,
the Property Trustee and the Holder of the Common Securities (as if it were
the obligor referred to in Section 310(b) of the Trust Indenture Act) shall
in all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
(d) The Guarantee shall be deemed to be specifically described in this
Declaration for purposes of clause (i) of the first proviso contained in Section
310(b) of the Trust Indenture Act.
SECTION 6.4. QUALIFICATIONS OF REGULAR TRUSTEES AND DELAWARE TRUSTEE
GENERALLY.
Each Regular Trustee and the Delaware Trustee (unless the Property Trustee
also acts as Delaware Trustee) shall be either a natural person who is at
least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
SECTION 6.5. INITIAL REGULAR TRUSTEES.
The initial Regular Trustees shall be:
A. M. Strecker and James R. Hatfield, the business address of all of
whom is c/o OGE Energy Corp., 321 North Harvey, Oklahoma City, Oklahoma 73102.
SECTION 6.6. APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.
(a) Subject to Section 6.6(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the
Holders of a Majority in Liquidation Amount of the Common
Securities voting as a class at a meeting of the Holders of
the Common Securities.
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(b) The Trustee that acts as Property Trustee shall not be removed in
accordance with Section 6.6(a) until a successor Trustee possessing the
qualifications to act as Property Trustee under Section 6.3(a) (a "Successor
Property Trustee") has been appointed and has accepted such appointment by
written instrument executed by such Successor Property Trustee and delivered
to the Regular Trustees and the Sponsor. The Trustee that acts as Delaware
Trustee shall not be removed in accordance with Section 6.6(a) until a
successor Trustee possessing the qualifications to act as Delaware Trustee
under Sections 6.2 and 6.4 (a "Successor Delaware Trustee") has been appointed
and has accepted such appointment by written instrument executed by such
Successor Delaware Trustee and delivered to the Regular Trustees and the
Sponsor.
(c) A Trustee appointed to office shall hold office until his or its
successor shall have been appointed, until his death or its dissolution or
until his or its removal or resignation. Any Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing
signed by the Trustee and delivered to the Sponsor and the Trust, which
resignation shall take effect upon such delivery or upon such later date as
is specified therein; provided, however, that:
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(a) until a Successor Property Trustee has been
appointed and has accepted such appointment by
instrument executed by such Successor Property
Trustee and delivered to the Trust, the Sponsor
and the resigning Property Trustee; or
(b) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to
the holders of the Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor
Delaware Trustee has been appointed and has accepted such
appointment by instrument executed by such Successor
Delaware Trustee and delivered to the Trust, the Sponsor
and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best efforts
to promptly appoint a Successor Delaware Trustee or Successor Property Trustee,
as the case may be, if the Property Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with this Section 6.6.
(e) If no Successor Property Trustee or Successor Delaware Trustee, as
the case may be, shall have been appointed and accepted appointment as provided
in this Section 6.6 within 60 days after delivery to the Sponsor and the Trust
of an instrument of resignation or removal, the resigning or removed Property
Trustee or Delaware Trustee, as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Property Trustee or Successor
Delaware Trustee, as applicable. Such court may thereupon, after prescribing
such notice, if any,
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as it may deem proper, appoint a Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
SECTION 6.7. VACANCIES AMONG TRUSTEES.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 6.1, or if the number of Trustees is
increased pursuant to Section 6.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 6.6.
SECTION 6.8. EFFECT OF VACANCIES.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul the Trust. Whenever a vacancy in the number of Regular
Trustees shall occur, until such vacancy is filled by the appointment of a
Regular Trustee in accordance with Section 6.6, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees by
this Declaration.
SECTION 6.9. MEETINGS.
If there is more than one Regular Trustee, meetings of the Regular
Trustees shall be held from time to time upon the call of any Regular Trustee.
Regular meetings of the Regular Trustees may be held at a time and place fixed
by resolution of the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 48
hours before such meeting. Notice of any telephonic meetings of the Regular
Trustees shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before
a meeting. Notices shall contain a brief statement of the time, place and
anticipated purposes of the meeting. The presence (whether in person or by
telephone) of a Regular Trustee at a meeting shall constitute a waiver of notice
of such meeting except where a Regular Trustee attends a meeting for the express
purpose of objecting to the transaction of any activity on the ground that the
meeting has not been lawfully called or convened. Unless provided otherwise in
this Declaration, any action of the Regular Trustees may be taken at a meeting
by vote of a majority of the Regular Trustees present (whether in person or by
telephone) and eligible to vote with respect to such matter, provided that a
Quorum is present, or without a meeting by the unanimous written consent of the
Regular Trustees. In the event there is only one Regular Trustee, any and all
action of such Regular Trustee shall be evidenced by a written consent of such
Regular Trustee.
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SECTION 6.10. DELEGATION OF POWER.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any natural person over the age of 21 his, her or
its power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing.
(b) The Regular Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust
or the names of the Regular Trustees or otherwise as the Regular Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of the Trust, as set forth herein.
SECTION 6.11. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Property Trustee, the Delaware
Trustee or any Regular Trustee that is not a natural person may be merged or
converted or with such Trustee may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such Trustee
shall be a party, or any corporation succeeding to all or substantially all
the corporate trust business of such Trustee shall be the successor of such
Trustee hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or
any further act on the part of any of the parties hereto.
ARTICLE VII.
TERMS OF SECURITIES
SECTION 7.1. GENERAL PROVISIONS REGARDING SECURITIES.
(a) The Regular Trustees shall on behalf of the Trust issue one
class of preferred securities representing undivided beneficial ownership
interests in the assets of the Trust and one class of common securities
representing undivided beneficial ownership interests in the assets of the
Trust.
(i) Preferred Securities. The Preferred Securities of
the Trust have an aggregate liquidation amount with
respect to the assets of the Trust of _____________
dollars ($_____________) and a liquidation amount
with respect to the assets of the Trust of $25
per Preferred Security. The Preferred Securities
are hereby designated for identification purposes
only as ___% Preferred Securities (the
"Preferred Securities"). The Preferred Security
Certificates evidencing the Preferred Securities
shall be substantially in the form of Exhibit A to
the Declaration, with such changes and additions
thereto or deletions therefrom as may be required
by ordinary usage, custom or practice or to conform
to the rules of any stock exchange on which the
Preferred Securities are listed or quoted.
(ii) Common Securities. The Common Securities of the
Trust have an aggregate liquidation amount with
respect to the assets of the Trust of
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_____________ dollars ($_____________) and a
liquidation amount with respect to the assets of the
Trust of $25 per Common Security. The Common
Securities are hereby designated for
identification purposes only as ___% Common
Securities (the "Common Securities" and, together
with the Preferred Securities, the "Securities").
The Common Security Certificates evidencing the
Common Securities shall be substantially in the form
of Exhibit B to the Declaration, with such changes
and additions thereto or deletions therefrom as may
be required by ordinary usage, custom or practice.
(b) Payment of Distributions on, and payment of the Redemption
Price upon a redemption of, the Preferred Securities and the Common
Securities, as applicable, shall be made Pro Rata based on the liquidation
amount of such Preferred Securities and Common Securities; provided, however,
that if on any date on which amounts payable on distribution or redemption an
Indenture Event of Default shall have occurred and be continuing, no payment
of any Distribution on, or Redemption Price of, any of the Common Securities,
and no other payment on account of the redemption, liquidation or other
acquisition of such Common Securities, shall be made unless payment in full
in cash of all accumulated and unpaid Distributions on all of the outstanding
Preferred Securities for all Distribution periods terminating on or prior
thereto, or, in the case of amounts payable on redemption, the full amount of
the Redemption Price for all of the outstanding Preferred Securities then
called for redemption, shall have been made or provided for, and all funds
available to the Property Trustee shall first be applied to the payment in
full in cash of all Distributions on, or the Redemption Price of, the
Preferred Securities then due and payable. The Trust shall issue no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities.
(c) The Certificates shall be signed on behalf of the Trust by a
Regular Trustee. Such signature shall be the manual or facsimile signature of
any present or any future Regular Trustee. In case a Regular Trustee of the
Trust who shall have signed any of the Certificates shall cease to be such
Regular Trustee before the Certificates so signed shall be delivered by the
Trust, such Certificates nevertheless may be delivered as though the person
who signed such Certificates had not ceased to be such Regular Trustee; and
any Certificate may be signed on behalf of the Trust by such persons who, at
the actual date of execution of such Certificate, shall be the Regular
Trustees of the Trust, although at the date of the execution and delivery of
the Declaration any such person was not such a Regular Trustee. Certificates
shall be printed, lithographed or engraved or may be produced in any other
manner as is reasonably acceptable to the Regular Trustees, as evidenced by
their execution thereof, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements as the Regular
Trustees may deem appropriate, or as may be required to comply with any law
or with any rule or regulation of any stock exchange on which Securities may
be listed, or to conform to usage.
A Certificate representing Preferred Securities shall not be valid
until authenticated by the manual signature of an authorized signatory of the
Property Trustee. Such signature shall be conclusive evidence that such
Certificate has been authenticated under this Declaration.
Upon a written order of the Trust signed by one Regular Trustee, the
Property Trustee shall authenticate the Certificates representing Preferred
Securities for original issue. The
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aggregate number of Preferred Securities outstanding at any time shall not
exceed the liquidation amount set forth in Section 7.1(a)(i).
The Property Trustee may appoint an authenticating agent acceptable to
the Trust to authenticate Certificates. An authenticating agent may authenticate
Certificates whenever the Property Trustee may do so. Each reference in this
Declaration to authentication by the Property Trustee includes authentication by
such agent. An authenticating agent has the same rights as the Property Trustee
to deal with the Sponsor or an Affiliate of the Sponsor.
The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
Upon issuance of the Securities as provided in this Declaration, the
Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable beneficial ownership interests in the assets of the Trust.
Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration and the terms of the Securities, the Guarantee,
the Indenture and the Debentures.
The holders of the Securities shall have no preemptive rights.
SECTION 7.2. DISTRIBUTIONS.
(a) Holders of Securities shall be entitled to receive cumulative
cash Distributions at the rate per annum of ____% of the stated liquidation
amount of $25 per Security. The amount of Distributions payable for any
period shall be computed (i) for any full 90-day quarterly distribution
period on the basis of a 360-day year of twelve 30-day months, (ii) for any
period shorter than a full 90 day quarterly distribution period for which
Distributions are computed, on the basis of a 30-day month and (iii) for
periods of less than a month, the actual number of days elapsed per 30-day
month. Subject to Section 7.1(b), Distributions shall be made on the
Preferred Securities and the Common Securities on a Pro Rata basis.
Distributions on the Securities shall, from the date of original issue,
accrue and be cumulative and shall be payable [quarterly], in arrears, on
each March 31st, June 30th, September 30th, and December 31st, commencing
___________ __, ____, when, as and if available for payment, by the Property
Trustee, except as otherwise described below. Distributions are payable only
to the extent that payments are made in respect of the Debentures held by the
Property Trustee and to the extent that the Trust has funds available for the
payment of such Distributions in the Property Account.
(b) Distributions not paid on the scheduled payment date will
accumulate and compound [quarterly] at the rate of ____% per annum
("Compounded Distributions"). "Distributions" shall mean ordinary cumulative
distributions together with any Compounded Distributions.
(c) If and to the extent that the Debenture Issuer makes a payment
of interest, premium and/or principal on the Debentures held by the Property
Trustee (the amount of any such payment being a "Payment Amount"), the
Property Trustee shall and is directed, to the
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extent funds are available for that purpose, to make a Pro Rata distribution
of the Payment Amount to Holders, subject to Section 7.1(b).
(d) Distributions on the Securities shall be payable to the Holders
thereof as they appear on the register of the Trust as of the close of
business on the relevant record dates. While the Preferred Securities are
represented by one or more Global Securities, the relevant record dates shall
be the close of business on the Business Day next preceding such Distribution
payment date, unless a different regular record date is established or
provided for the corresponding interest payment date on the Debentures. The
relevant record dates for the Common Securities shall be the same as for the
Preferred Securities. If the Preferred Securities shall not continue to
remain represented by one or more Global Securities, the relevant record
dates for the Preferred Securities shall conform to the rules of any
securities exchange on which the Preferred Securities are listed and , if not
so listed, the relevant record dates shall be selected by the Regular
Trustees and shall be at least one Business Day prior to the relevant payment
dates. At all times, the Distribution payment dates shall correspond to the
interest payment dates on the Debentures. Distributions payable on any
Securities that are not punctually paid on any Distribution payment date, as
a result of the Debenture Issuer having failed to make a payment under the
Debentures, shall cease to be payable to the Person in whose name such
Securities are registered on the relevant record date, and such defaulted
Distribution will instead be payable to the Person in whose name such
Securities are registered on the special record date or other specified date
determined in accordance with this Declaration. If any date on which
Distributions are payable on the Securities is not a Business Day, then
payment of the Distribution payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, with the same force and effect as if made
on such payment date.
(e) In the event that there is any money or other property held by
or for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata among the Holders of the Securities.
SECTION 7.3. REDEMPTION OF SECURITIES.
(a) Upon the repayment or redemption, in whole or in part, of the
Debentures held by the Trust, whether at the stated maturity of the
Debentures or upon earlier redemption as provided in the Indenture, the
proceeds from such repayment or redemption shall be simultaneously applied
Pro Rata (subject to Section 7.1(b)) to redeem Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures
so repaid or redeemed at the Redemption Price. Holders shall be given not
less than 30 nor more than 60 days notice of such redemption in accordance
with Section 7.4.
(b) If, at any time, a Special Event shall occur and be continuing,
the Regular Trustees may, within 90 days following the occurrence of such
Special Event, elect to dissolve the Trust upon not less than 30 nor more
than 60 days' notice and, after satisfaction of liabilities to creditors, if
any, cause the Debentures to be distributed to the holders of the Securities
in liquidation of the Trust.
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(c) On the date fixed for any distribution of Debentures, upon
dissolution of the Trust, (i) the Securities will no longer be deemed to be
outstanding and (ii) certificates representing Securities will be deemed to
represent the Debentures having an aggregate principal amount equal to the
stated liquidation amount of, and bearing accrued and unpaid distributions
equal to accrued and unpaid distributions on, such Securities until such
certificates are presented to the Sponsor or its agent for transfer or
reissuance.
SECTION 7.4. REDEMPTION PROCEDURES.
(a) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution
Notice"), which notice shall be irrevocable, will be given by the Trust by
mail to each Holder of Securities to be redeemed or exchanged not fewer than
30 nor more than 60 days before the date fixed for redemption or exchange
thereof which, in the case of a redemption, will be the date fixed for
redemption of the Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given pursuant to
this Section 7.4(a), a Redemption/Distribution Notice shall be deemed to be
given on the day such notice is first mailed by first-class mail, postage
prepaid, to Holders of Securities. Each Redemption/Distribution Notice shall
be addressed to the Holders of Securities at the address of each such Holder
appearing in the register of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing of either thereof with
respect to any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(b) If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the Preferred Securities will be redeemed
Pro Rata (subject to Section 7.1(b)) and the Preferred Securities to be
redeemed will be redeemed as described in Section 7.4(c) below. The Trust may
not redeem the Securities in part unless all accumulated and unpaid
Distributions to the date of redemption have been paid in full on all
Securities then outstanding. For all purposes of this Declaration, unless the
context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Security
redeemed or to be redeemed only in part, to the portion of the aggregate
liquidation amount of Preferred Securities which has been or is to be
redeemed.
(c) Subject to the Trust's fulfillment of the notice requirements
set forth in Section 7.4(a) above, if Securities are to be redeemed, then (i)
with respect to Preferred Securities represented by one or more Global
Securities, by 12:00 noon, New York City time, on the redemption date
(provided that the Debenture Issuer has paid the Property Trustee a
sufficient amount of cash in connection with the related redemption or
maturity of the Debentures), the Property Trustee will deposit irrevocably
with the Depositary or its nominee (or successor clearing agency or its
nominee) funds sufficient to pay the applicable Redemption Price with respect
to the Preferred Securities and will give the Depositary irrevocable
instructions and authority to pay the Redemption Price to the Holders of the
Preferred Securities and (ii) with respect to Securities not represented by
one or more Global Securities (provided that the Debenture Issuer has paid
the Property Trustee a sufficient amount of cash in connection with the
related redemption or maturity of the Debentures), the Paying Agent will pay
the relevant Redemption Price to the Holders of such Securities by check
mailed to the address of the relevant Holder appearing on the register of the
Trust on the redemption date. If any date fixed
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for redemption of Securities is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect
of any such delay) except that, if such Business Day falls in the next
calendar year, such payment will be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date fixed for redemption. If payment of the Redemption Price in respect of
any Securities is improperly withheld or refused and not paid either by the
Property Trustee or by the Sponsor as guarantor pursuant to the Guarantee,
Distributions on such Securities will continue to accrue at the then
applicable rate from the original redemption date to the actual date of
payment, in which case the actual payment date will be considered the date
fixed for redemption for purposes of calculating the Redemption Price. For
these purposes, the applicable Redemption Price shall not include
Distributions which are being paid to Holders who were Holders on a relevant
record date. If a Redemption/Distribution Notice shall have been given and
funds deposited or paid as required, then immediately prior to the close of
business on the date of such deposit or payment, Distributions will cease to
accrue on the Securities called for redemption and all rights of Holders of
such Securities so called for redemption will cease, except the right of the
Holders to receive the Redemption Price, but without interest on such
Redemption Price, and from and after the date fixed for redemption, such
Securities will cease to be outstanding.
Neither the Regular Trustees nor the Trust shall be required to
register or cause to be registered the transfer of any Securities that have
been called for redemption, except in the case of any Securities being
redeemed in part, any portion thereof not to be redeemed.
(d) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), the Debenture Issuer or
its subsidiaries may at any time and from time to time purchase outstanding
Preferred Securities by tender, in the open market or by private agreement.
SECTION 7.5. VOTING RIGHTS OF PREFERRED SECURITIES.
(a) Except as provided under Section 11.1 and this Article VII and
as otherwise required by the Business Trust Act, the Trust Indenture Act and
other applicable law, the Holders of the Preferred Securities shall have no
voting rights.
(b) Subject to the requirement of the Property Trustee obtaining a
tax opinion in certain circumstances set forth in Section 7.5(d) below, the
Holders of a Majority in Liquidation Amount of the Preferred Securities
voting separately as a class have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Property
Trustee, or to direct the exercise of any trust or power conferred upon the
Property Trustee under the Declaration, including the right to direct the
Property Trustee, as Holder of the Debentures, to (i) exercise the remedies
available to it under the Indenture as a Holder of the Debentures; (ii)
consent to any amendment or modification of the Indenture or the Debentures
where such consent shall be required or (iii) waive any past default and its
consequences that is waivable under Section 513 of the Indenture; provided,
however, that if an Indenture Event of Default has occurred and is
continuing, then the Holders of 25% of the aggregate liquidation amount of
the Preferred Securities may direct the Property Trustee to declare the
principal of and interest on the Debentures due and payable; provided,
further, that where a consent or action under the
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Indenture would require the consent or act of the Holders of more than a
majority of the aggregate principal amount of Debentures affected thereby,
only the Holders of the percentage of the aggregate stated liquidation amount
of the Preferred Securities which is at least equal to the percentage
required under the Indenture may direct the Property Trustee to give such
consent to take such action.
(c) If the Property Trustee fails to enforce its rights under the
Debentures after a Holder of Preferred Securities has made a written request,
such Holder of Preferred Securities may, to the extent permitted by
applicable law, institute a legal proceeding directly against the Debenture
Issuer to enforce the Property Trustee's rights under the Indenture without
first instituting any legal proceeding against the Property Trustee or any
other person or entity. In addition, if a Trust Enforcement Event has
occurred and is continuing and such event is attributable to the failure of
the Debenture Issuer to make any interest, principal or other required
payments when due under the Indenture, then a Holder of Preferred Securities
may directly institute a Direct Action against the Debenture Issuer on or
after the respective due date specified in the Debentures.
(d) The Property Trustee shall notify all Holders of the Preferred
Securities of any notice of any Indenture Event of Default received from the
Debenture Issuer with respect to the Debentures. Such notice shall state that
such Indenture Event of Default also constitutes a Trust Enforcement Event.
Except with respect to directing the time, method, and place of conducting a
proceeding for a remedy, the Property Trustee shall be under no obligation to
take any of the actions described in clause 7.5(b)(i) and (ii) above unless
the Property Trustee has obtained an opinion of independent tax counsel to
the effect that the Trust will not fail to be classified as a grantor trust
for United States federal income tax purposes as a result of such action, and
each Holder will be treated as owning an undivided beneficial ownership
interest in the Debentures.
(e) In the event the consent of the Property Trustee, as the Holder
of the Debentures, is required under the Indenture with respect to any
amendment or modification of the Indenture, the Property Trustee shall
request the direction of the Holders of the Securities with respect to such
amendment or modification and shall vote with respect to such amendment or
modification as directed by not less than 66-2/3% of the aggregate
liquidation amount of the Securities voting together as a single class;
provided, however, that where a consent under the Indenture would require the
consent of the Holders of more than a majority of the aggregate principal
amount of the Debentures, the Property Trustee may only give such consent at
the direction of the Holders of at least the same proportion in aggregate
stated liquidation amount of the Securities. The Property Trustee shall not
take any such action in accordance with the directions of the Holders of the
Securities unless the Property Trustee has obtained an opinion of independent
tax counsel to the effect that the Trust will not be classified as other than
a grantor trust for United States federal income tax purposes as a result of
such action, and each Holder will be treated as owning an undivided
beneficial ownership interest in the Debentures.
(f) A waiver of an Indenture Event of Default with respect to the
Debentures will constitute a waiver of the corresponding Trust Enforcement
Event.
(g) Any required approval or direction of Holders of Preferred
Securities may be given at a separate meeting of Holders of Preferred
Securities convened for such purpose, at a
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meeting of all of the Holders of Securities or pursuant to written consent.
The Regular Trustees shall cause a notice of any meeting at which Holders of
Preferred Securities are entitled to vote, or of any matter upon which action
by written consent of such Holders is to be taken, to be mailed to each
Holder of record of Preferred Securities. Each such notice shall include a
statement setting forth the following information: (i) the date of such
meeting or the date by which such action is to be taken; (ii) a description
of any resolution proposed for adoption at such meeting on which such Holders
are entitled to vote or of such matter upon which written consent is sought;
and (iii) instructions for the delivery of proxies or consents.
(h) No vote or consent of the Holders of Preferred Securities shall
be required for the Trust to redeem and cancel Preferred Securities or
distribute Debentures in accordance with the Declaration and the terms of the
Securities.
(i) Notwithstanding that Holders of Preferred Securities are
entitled to vote or consent under any of the circumstances described above,
any of the Securities that are owned at such time by the Debenture Issuer,
the Trustees or any entity directly or indirectly controlled by, or under
direct or indirect common control with, the Debenture Issuer or any Trustee,
shall not be entitled to vote or consent and shall, for purposes of such vote
or consent, be treated as if such Securities were not outstanding.
(j) Holders of the Preferred Securities shall have no rights to
appoint or remove the Trustees, who may be appointed, removed or replaced
solely by the Common Securities Holder.
(k) If an Indenture Event of Default has occurred and is
continuing, the Property Trustee and the Delaware Trustee may be removed at
such time by a Majority in Liquidation Amount of the Preferred Securities.
SECTION 7.6. VOTING RIGHTS OF COMMON SECURITIES.
(a) Except as provided under Section 6.1(b), this Section 7.6 or
Section 11.1 or as otherwise required by the Business Trust Act, the Trust
Indenture Act or other applicable law or provided by the Declaration, the
Holders of the Common Securities will have no voting rights.
(b) The Holders of the Common Securities shall be entitled, in
accordance with Article VI of the Declaration, to vote to appoint, remove or
replace any Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only after all
Trust Enforcement Events with respect to the Preferred Securities have been
cured, waived, or otherwise eliminated and subject to the requirement of the
Property Trustee obtaining a tax opinion in certain circumstances set forth
in this paragraph (c), the Holders of a Majority in Liquidation Amount of the
Common Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee,
or direct the exercise of any trust or power conferred upon the Property
Trustee under the Declaration, including the right to direct the Property
Trustee, as Holder of the Debentures, to (i) exercise the remedies available
to it under the Indenture as a Holder of the Debentures, (ii) consent to any
amendment or modification of the Indenture or the Debentures where such
consent shall be required or (iii) waive any past default and its
consequences that is waivable under Section 513 of the
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Indenture; provided, however, that where a consent or action under the
Indenture would require the consent or act of the Holders of more than a
majority of the aggregate principal amount of Debentures affected thereby,
only the Holders of the percentage of the aggregate stated liquidation amount
of the Common Securities which is at least equal to the percentage required
under the Indenture may direct the Property Trustee to have such consent or
take such action. Except with respect to directing the time, method, and
place of conducting a proceeding for a remedy, the Property Trustee shall be
under no obligation to take any of the actions described in clause 7.6(c)(i)
and (ii) above unless the Property Trustee has obtained an opinion of
independent tax counsel to the effect that, as a result of such action, for
United States federal income tax purposes the Trust will not fail to be
classified as a grantor trust and each Holder will be treated as owning an
undivided beneficial ownership interest in the Debentures.
(d) If the Property Trustee fails to enforce its rights under the
Debentures after a Holder of Common Securities has made a written request,
such Holder of Common Securities may, to the extent permitted by applicable
law, directly institute a legal proceeding directly against the Debenture
Issuer to enforce the Property Trustee's rights under the Debentures without
first instituting any legal proceeding against the Property Trustee or any
other person or entity.
(e) A waiver of an Indenture Event of Default with respect to the
Debentures will constitute a waiver of the corresponding Trust Enforcement
Event.
(f) Any required approval or direction of Holders of Common
Securities may be given at a separate meeting of Holders of Common Securities
convened for such purpose, at a meeting of all of the Holders of Securities
or pursuant to written consent. The Regular Trustees will cause a notice of
any meeting at which Holders of Common Securities are entitled to vote, or of
any matter on which action by written consent of such Holders is to be taken,
to be mailed to each Holder of record of Common Securities. Each such notice
will include a statement setting forth the following information: (i) the
date of such meeting or the date by which such action is to be taken; (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote or of such matter upon which written
consent is sought; and (iii) instructions for the delivery of proxies or
consents.
(g) No vote or consent of the Holders of the Common Securities will
be required for the Trust to redeem and cancel Common Securities or to
distribute Debentures in accordance with the Declaration and the terms of the
Securities.
SECTION 7.7. PAYING AGENT.
In the event that any Preferred Securities are not in book-entry
only form, the Trust shall maintain in the Borough of Manhattan, City of New
York, State of New York, an office or agency where the Preferred Securities
may be presented for payment ("Paying Agent"). The Trust may appoint the
paying agent and may appoint one or more additional paying agents in such
other locations as it shall determine. The term "Paying Agent" includes any
additional paying agent. The Trust may change any Paying Agent without prior
notice to the Holders. The Trust shall notify the Property Trustee of the
name and address of any Paying Agent not a party to this Declaration. If the
Trust fails to appoint or maintain another entity as Paying Agent, the
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Property Trustee shall act as such. The Trust or any of its Affiliates may
act as Paying Agent. In the event an appointed Paying Agent shall no longer
be the Paying Agent, the Regular Trustees shall appoint a successor (which
shall be a bank or trust company acceptable to the Debenture Issuer) to act
as Paying Agent. The Paying Agent shall be permitted to resign as Paying
Agent upon 30 days' written notice to the Property Trustee and the Debenture
Issuer.
SECTION 7.8. LISTING.
The Sponsor shall use its best efforts to cause the Preferred
Securities to be listed for quotation on the New York Stock Exchange.
SECTION 7.9. TRANSFER OF SECURITIES.
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. Any transfer or purported transfer of any
Security not made in accordance with this Declaration shall be null and void.
(b) Subject to this Article VII, Preferred Securities shall be
freely transferable.
(c) The Trust shall cause to be kept at the Corporate Trust Office
of the Property Trustee a register (the register maintained in such office
being herein sometimes referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Trust shall
provide for the registration of Preferred Securities and of transfers of
Preferred Securities. The Property Trustee is hereby appointed "Security
Registrar" for the purpose of registering Preferred Securities and transfers
of Preferred Securities as herein provided.
(d) Upon surrender for registration of transfer of any Security at
an office or agency of the Trust designated for such purpose, the Trust shall
execute, and the Property Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Securities of
any authorized denominations and of a like aggregate principal amount.
(e) At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange,
the Trust shall execute, and in the case of Preferred Securities the Property
Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
(f) Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Trust or the Property
Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Trust and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
(g) No service charge shall be made for any registration of
transfer or exchange of Securities, but the Trust may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities.
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(h) If the Securities are to be redeemed in part, the Trust
shall not be required (A) to issue, register the transfer of or exchange any
Securities during a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption of any such
Securities selected for redemption under Section 7.4 and ending at the close
of business on the day of such mailing, or (B) to register the transfer or
exchange of any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
SECTION 7.10. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If:
(a) Trustees shall receive evidence to their satisfaction
of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such
security or indemnity as may be required by them to keep each of them, the
Sponsor and the Trust harmless,
then, in the absence of notice that such Certificate shall have been
acquired by a bona fide purchaser, any Regular Trustee on behalf of the Trust
shall execute and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like denomination.
In connection with the issuance of any new Certificate under this Section 7.10,
the Regular Trustees may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
Any duplicate Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the relevant Securities, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 7.11. DEEMED SECURITY HOLDERS.
The Trustees may treat the Person in whose name any Certificate shall
be registered on the register of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
SECTION 7.12. GLOBAL SECURITIES.
The Preferred Securities may be issued in the form of one or more
Global Securities. If the Preferred Securities are to be issued in the form of
one or more Global Securities, then the Regular Trustee on behalf of the Trust
shall execute and the Property Trustee shall authenticate and deliver one or
more Global Securities that (i) shall represent and shall be denominated in an
amount equal to the aggregate liquidation amount of all of the Preferred
Securities to be issued in the form of Global Securities and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Global Security
or Preferred Securities or the nominee of such Depositary, and (iii) shall be
delivered by the Property Trustee to such Depositary or pursuant to such
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Depositary's instructions. Global Securities shall bear a legend substantially
to the following effect:
"This Preferred Security is a Global Security within the
meaning of the Declaration hereinafter referred to and is registered in
the name of The Depository Trust Company, a New York corporation (the
"Depositary"), or a nominee of the Depositary. This Preferred Security
is exchangeable for Preferred Securities registered in the name of a
person other than the Depositary or its nominee only in the limited
circumstances described in the Declaration and no transfer of this
Preferred Security (other than a transfer of this Preferred Security 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) may be registered except in limited circumstances.
Unless this Preferred Security Certificate is presented by an
authorized representative of the Depositary to OGE Energy Capital Trust
__ or its agent for registration of transfer, exchange or payment, and
any Preferred Security Certificate issued is registered in the name of
Cede & Co. or such other name as requested by an authorized
representative of the Depositary (and any payment hereon is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of the Depositary), 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."
Preferred Securities not represented by a Global Security issued in
exchange for all or a part of a Global Security pursuant to this Section 7.12
shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Property Trustee. Upon execution and
authentication, the Property Trustee shall deliver such Preferred Securities not
represented by a Global Security to the persons in whose names such definitive
Preferred Securities are so registered.
At such time as all interests in Global Securities have been
redeemed, repurchased or cancelled, such Global Securities shall be, upon
receipt thereof, cancelled by the Property Trustee in accordance with
standing procedures of the Depositary. At any time prior to such
cancellation, if any interest in Global Securities is exchanged for Preferred
Securities not represented by a Global Security, redeemed, cancelled or
transferred to a transferee who receives Preferred Securities not represented
by a Global Security therefor or any Preferred Security not represented by a
Global Security is exchanged or transferred for part of Global Securities,
the principal amount of such Global Securities shall, in accordance with the
standing procedures of the Depositary, be reduced or increased, as the case
may be, and an endorsement shall be made on such Global Securities by the
Property Trustee to reflect such reduction or increase.
The Trust and the Property Trustee may for all purposes, including the
making of payments due on the Preferred Securities, deal with the Depositary as
the authorized representative of the Holders for the purposes of exercising the
rights of Holders hereunder. The rights of the owner of any beneficial interest
in a Global Security shall be limited to those established by law and agreements
between such owners and depository participants or Euroclear
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and Cedel; provided, that no such agreement shall give any rights to any
person against the Trust or the Property Trustee without the written consent
of the parties so affected. Multiple requests and directions from and votes
of the Depositary as holder of Preferred Securities in global form with
respect to any particular matter shall not be deemed inconsistent to the
extent they do not represent an amount of Preferred Securities in excess of
those held in the name of the Depositary or its nominee.
If at any time the Depositary for any Preferred Securities represented
by one or more Global Securities notifies the Trust that it is unwilling or
unable to continue as Depositary for such Preferred Securities or if at any time
the Depositary for such Preferred Securities shall no longer be eligible under
this Section 7.12, the Trust shall appoint a successor Depositary with respect
to such Preferred Securities. If a successor Depositary for such Preferred
Securities is not appointed by the Trust within 90 days after the Trust receives
such notice or becomes aware of such ineligibility, the Trust's election that
such Preferred Securities be represented by one or more Global Securities shall
no longer be effective and the Trust shall execute, and the Property Trustee
will authenticate and deliver, Preferred Securities in definitive registered
form, in any authorized denominations, in an aggregate liquidation amount equal
to the principal amount of the Global Security or Preferred Securities
representing such Preferred Securities in exchange for such Global Security or
Preferred Securities.
The Trust may at any time and in its sole discretion determine that the
Preferred Securities issued in the form of one or more Global Securities shall
no longer be represented by a Global Security or Preferred Securities. In such
event the Trust shall execute, and the Property Trustee, shall authenticate and
deliver, Preferred Securities in definitive registered form, in any authorized
denominations, in an aggregate liquidation amount equal to the principal amount
of the Global Security or Preferred Securities representing such Preferred
Securities, in exchange for such Global Security or Preferred Securities.
Notwithstanding any other provisions of this Declaration (other than
the provisions set forth in Section 7.9), Global Securities may not be
transferred as a whole except 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.
Interests of beneficial owners in a Global Security may be transferred
or exchanged for Preferred Securities not represented by a Global Security and
Preferred Securities not represented by a Global Security may be transferred or
exchange for Global Securities in accordance with rules of the Depositary and
the provisions of Section 7.9.
ARTICLE VIII.
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1. DISSOLUTION AND TERMINATION OF TRUST.
(a) The Trust shall dissolve upon the earliest of:
(i) the bankruptcy of the Holder of the Common
Securities or the Sponsor;
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(ii) the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor; the filing of
a certificate of cancellation with respect to the
Trust after obtaining the consent of the Holders of
at least a Majority in Liquidation Amount of the
Securities to the filing of a certificate of
cancellation with respect to the Trust or the
revocation of the Sponsor's charter and the
expiration of 90 days after the date of revocation
without a reinstatement thereof;
(iii) the entry of a decree of judicial dissolution of
the Sponsor or the Trust;
(iv) the time when all of the Securities shall have been
called for redemption and the amounts then due shall
have been paid to the Holders in accordance with the
terms of the Securities;
(v) upon the election of the Regular Trustees, following
the occurrence and continuation of a Special Event
pursuant to which the Trust shall have been dissolved
in accordance with the terms of the Securities, and
all of the Debentures shall have been distributed to
the Holders of Securities in exchange for all of the
Securities;
(vi) at the Sponsor's election by notice and direction
to the Property Trustee to distribute the
Debentures to the Holders of the Securities in
exchange for all of the Securities; provided that
the Sponsor will be required to obtain an opinion
of counsel that the distribution of the Debentures
will not be taxable to the Holders of the Preferred
Securities for United States federal income tax
purposes; or
(vii) the time when all of the Regular Trustees and the
Sponsor shall have consented to dissolution of the
Trust provided such action is taken before the
issuance of any Securities;
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a) and upon completion of the winding up and
liquidation of the Trust, the Trustees shall terminate the Trust by filing a
certificate of cancellation with the Secretary of State of the State of
Delaware.
(c) The provisions of Section 4.2 and Article IX shall survive
the termination of the Trust.
SECTION 8.2. LIQUIDATION DISTRIBUTION UPON DISSOLUTION OF THE
TRUST.
(a) In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Trust (each a "Liquidation"), the Holders
of the Preferred Securities on the date of the Liquidation will be entitled
to receive, out of the assets of the Trust available for distribution to
Holders of Securities after satisfaction of the Trusts' liabilities to
creditors, if any, distributions in cash or other immediately available funds
in an amount equal to the aggregate of the stated liquidation amount of $25
per Security plus accumulated and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"), unless, in
connection with such Liquidation, Debentures in an aggregate stated
liquidation amount equal to the aggregate stated liquidation amount of, with
a distribution rate identical to the distribution rate of, and accrued and
unpaid distributions equal to accumulated and unpaid Distributions on, such
Securities shall be distributed on a Pro Rata basis to the Holders of the
Securities in exchange for such Securities.
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(b) If, upon any such Liquidation, the Liquidation Distribution
can be paid only in part because the Trust has insufficient assets available
to pay in full the aggregate Liquidation Distribution, then the amounts
payable directly by the Trust on the Securities shall be paid on a Pro Rata
basis. The Holders of the Common Securities will be entitled to receive
distributions upon any such Liquidation Pro Rata with the Holders of the
Preferred Securities except that if an Indenture Event of Default has
occurred and is continuing, the Preferred Securities shall have a preference
over the Common Securities with regard to such distributions.
ARTICLE IX.
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, DELAWARE
TRUSTEES OR OTHERS
SECTION 9.1. LIABILITY.
(a) Except as expressly set forth in this Declaration, the
Guarantee and the terms of the Securities, the Sponsor:
(i) shall not be personally liable for the return of any
portion of the capital contributions (or any return
thereon) of the Holders of the Securities which shall
be made solely from assets of the Trust; and
(ii) shall not be required to pay to the Trust or to any
Holder of Securities any deficit upon dissolution of
the Trust or otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust Act, the
Holder of the Common Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of Delaware;
provided, however, the Holders of the Common Securities shall be liable for
all of the debts and obligations of the Trust (other than with respect to the
Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Preferred Securities shall be entitled to the same limitation
of personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of Delaware.
SECTION 9.2. EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed
or omitted by such Indemnified Person in good faith on behalf of the Trust
and in a manner such Indemnified Person reasonably believed to be within the
scope of the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be liable for
any such loss, damage or claim incurred by reason of such Indemnified
Person's gross negligence or willful misconduct with respect to such acts or
omissions.
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(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses or any other facts pertinent to the existence
and amount of assets from which Distributions to Holders of Securities might
properly be paid.
SECTION 9.3. FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to any other Covered Person, an Indemnified Person
acting under this Declaration shall not be liable to the Trust or to an other
Covered Person for its good faith reliance on the provisions of this
Declaration. The provisions of this Declaration, to the extent that they
restrict the duties and liabilities of an Indemnified Person otherwise
existing at law or in equity (other than the duties imposed on the Property
Trustee under the Trust Indenture Act), are agreed by the parties hereto to
replace such other duties and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between any Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an
Indemnified Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the
Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled
to consider such interests and factors as it desires,
including its own interests, and shall have no duty
or obligation to give any consideration to any
interest of or factors affecting the Trust or any
other Person; or
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(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such
express standard and shall not be subject to any
other or different standard imposed by this
Declaration or by applicable law.
SECTION 9.4. INDEMNIFICATION.
(a)
(i) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Debenture Issuer
Indemnified Person who was or is a party or is
threatened to be made a party to any threatened,
pending or completed action, suit or proceeding,
whether civil, criminal, administrative or
investigative (other than an action by or in the
right of the Trust) by reason of the fact that he
is or was a Debenture Issuer Indemnified Person
against expenses (including attorney fees),
judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in
connection with such action, suit or proceeding if
he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the
best interests of the Trust, and, with respect to
any criminal action or proceeding, had no
reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a
presumption that the Debenture Issuer Indemnified
Person did not act in good faith and in a manner
which he reasonably believed to be in or not
opposed to the best interests of the Trust, and,
with respect to any criminal action or proceeding,
had reasonable cause to believe that his conduct
was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Debenture Issuer
Indemnified Person who was or is a party or is
threatened to be made a party to any threatened,
pending or completed action or suit by or in the
right of the Trust to procure a judgment in its
favor by reason of the fact that he is or was a
Debenture Issuer Indemnified Person against
expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the
defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best
interests of the Trust and except that no such
indemnification shall be made in respect of any
claim, issue or matter as to which such Debenture
Issuer Indemnified Person shall have been adjudged
to be liable to the Trust unless and only to the
extent that the Court of Chancery of Delaware or
the court in which such action or suit was brought
shall determine upon application that, despite the
adjudication of liability but in view of all the
circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such
other court shall deem proper.
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(iii) Any indemnification under paragraphs (i) and (ii)
of this Section 9.4(a) (unless ordered by a court)
shall be made by the Debenture Issuer only as
authorized in the specific case upon a
determination that indemnification of the
Debenture Issuer Indemnified Person is proper in
the circumstances because he has met the
applicable standard of conduct set forth in
paragraphs (i) and (ii) Such determination shall
be made (1) by the Regular Trustees by a majority
vote of a quorum consisting of such Regular
Trustees who were not parties to such action, suit
or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion, or
(3) by the Common Security Holder of the Trust.
(iv) Expenses (including attorneys' fees) incurred by a
Debenture Issuer Indemnified Person in defending a
civil, criminal, administrative or investigative
action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 9.4(a)
shall be paid by the Debenture Issuer in advance
of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on
behalf of such Debenture Issuer Indemnified Person
to repay such amount if it shall ultimately be
determined that he is not entitled to be
indemnified by the Debenture Issuer as authorized
in this Section 9.4(a). Notwithstanding the
foregoing, no advance shall be made by the
Debenture Issuer if a determination is reasonably
and promptly made (i) by the Regular Trustees by a
majority vote of a quorum of disinterested Regular
Trustees, (ii) if such a quorum is not obtainable,
or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion or
(iii) by the Common Security Holder of the Trust,
that, based upon the facts known to the Regular
Trustees, counsel or the Common Security Holder at
the time such determination is made, such
Debenture Issuer Indemnified Person acted in bad
faith or in a manner that such person did not
believe to be in or not opposed to the best
interests of the Trust, or, with respect to any
criminal proceeding, that such Debenture Issuer
Indemnified Person believed or had reasonable
cause to believe his conduct was unlawful. In no
event shall any advance be made in instances where
the Regular Trustees, independent legal counsel or
Common Security Holder reasonably determine that
such person deliberately breached his duty to the
Trust or its Common or Preferred Security Holders.
(v) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other
paragraphs of this Section 9.4(a) shall not be
deemed exclusive of any other rights to which
those seeking indemnification and advancement of
expenses may be entitled under any agreement, vote
of stockholders or disinterested directors of the
Debenture Issuer or Preferred Security Holders of
the Trust or otherwise, both as to action in his
official capacity and as to action in another
capacity while holding such office. All rights to
indemnification under this Section 9.4(a) shall be
deemed to be provided by a contract between the
Debenture Issuer and each
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Debenture Issuer Indemnified Person who serves in
such capacity at any time while this Section
9.4(a) is in effect. Any repeal or modification of
this Section 9.4(a) shall not affect any rights or
obligations then existing.
(vi) The Debenture Issuer or the Trust may purchase and
maintain insurance on behalf of any person who is or
was a Debenture Issuer Indemnified Person against any
liability asserted against him and incurred by him in
any such capacity, or arising out of his status as
such, whether or not the Debenture Issuer would have
the power to indemnify him against such liability
under the provisions of this Section 9.4(a).
(vii) For purposes of this Section 9.4(a), references to
"the Trust" shall include, in addition to the
resulting or surviving entity, any constituent
entity (including any constituent of a
constituent) absorbed in a consolidation or
merger, so that any person who is or was a
director, trustee, officer or employee of such
constituent entity, or is or was serving at the
request of such constituent entity as a director,
trustee, officer, employee or agent of another
entity, shall stand in the same position under the
provisions of this Section 9.4(a) with respect to
the resulting or surviving entity as he would have
with respect to such constituent entity if its
separate existence had continued.
(viii) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section
9.4(a) shall, unless otherwise provided when
authorized or ratified, continue as to a person who
has ceased to be a Debenture Issuer Indemnified
Person and shall inure to the benefit of the heirs,
executors and administrators of such a person. The
obligation to indemnify as set forth in this Section
9.4(a) shall survive the resignation or removal of
the Delaware Trustee or the Property Trustee or the
termination of this Declaration.
(b) The Debenture Issuer agrees to indemnify the (i) Property
Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the Property
Trustee and the Delaware Trustee, and (iv) any officers, directors,
shareholders, members, partners, employees, representatives, custodians,
nominees or agents of the Property Trustee and the Delaware Trustee (each of
the Persons in (i) through (iv) being referred to as a "Fiduciary Indemnified
Person") for, and to hold each Fiduciary Indemnified Person harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
obligation to indemnify as set forth in this Section 9.4(b) shall survive the
satisfaction and discharge of this Declaration.
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SECTION 9.5. OUTSIDE BUSINESSES.
Any Covered Person, the Sponsor, the Delaware Trustee and the Property
Trustee may engage in or possess an interest in other business ventures of any
nature or description, independently or with others, similar or dissimilar to
the activities of the Trust, and the Trust and the Holders of Securities shall
have no rights by virtue of this Declaration in and to such independent ventures
or the income or profits derived therefrom, and the pursuit of any such venture,
even if competitive with the activities of the Trust, shall not be deemed
wrongful or improper. No Covered Person, the Sponsor, the Delaware Trustee or
the Property Trustee shall be obligated to present any particular investment or
other opportunity to the Trust even if such opportunity is of a character that,
if presented to the Trust, could be taken by the Trust, and any Covered Person,
the Sponsor, the Delaware Trustee and the Property Trustee shall have the right
to take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Property Trustee may engage or be
interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
ARTICLE X.
ACCOUNTING
SECTION 10.1. FISCAL YEAR.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year, or such other year as is required by the Code.
SECTION 10.2. CERTAIN ACCOUNTING MATTERS.
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail, each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted
accounting principles, consistently applied. The Trust shall use the accrual
method of accounting for United States federal income tax purposes. The books
of account and the records of the Trust shall be examined by and reported
upon as of the end of each Fiscal Year of the Trust by a firm of independent
certified public accountants selected by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared and
delivered to each of the Holders of Securities, within 90 days after the end
of each Fiscal Year of the Trust, annual financial statements of the Trust,
including a balance sheet of the Trust as of the end of such Fiscal Year, and
the related statements of income or loss.
(c) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, an annual United States
federal income tax information statement, required by the Code, containing
such information with regard to the Securities held by each Holder as is
required by the Code and the Treasury Regulations. Notwithstanding any right
under the Code
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to deliver any such statement at a later date, the Regular Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and
filed with the appropriate taxing authority, an annual United States federal
income tax return, on a Form 1041 or such other form required by United
States federal income tax law, and any other annual income tax returns
required to be filed by the Regular Trustees on behalf of the Trust with any
state or local taxing authority.
SECTION 10.3. BANKING.
The Trust shall maintain one or more bank accounts in the name and for
the sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Debentures held by the Property Trustee shall be made directly to
the Property Account and no other funds of the Trust shall be deposited in the
Property Account. The sole signatories for such accounts shall be designated by
the Regular Trustees; provided, however, that the Property Trustee shall
designate the signatories for the Property Account.
SECTION 10.4. WITHHOLDING.
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust
shall request, and the Holders shall provide to the Trust, such forms or
certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably
be requested by the Trust to assist it in determining the extent of, and in
fulfilling, its withholding obligations. The Regular Trustees shall file
required forms with applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, shall remit amounts withheld
with respect to the Holder to applicable jurisdictions. To the extent that
the Trust is required to withhold and pay over any amounts to any authority
with respect to distributions or allocations to any Holder, the amount
withheld shall be deemed to be a distribution in the amount of the
withholding to the Holder. In the event of any claimed over withholding,
Holders shall be limited to an action against the applicable jurisdiction. If
the amount required to be withheld was not withheld from actual Distributions
made, the Trust may reduce subsequent Distributions by the amount of such
withholding.
ARTICLE XI.
AMENDMENTS AND MEETINGS
SECTION 11.1. AMENDMENTS.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by a
written instrument approved and executed by the Sponsor and (i) the Regular
Trustees (or, if there are more than two Regular Trustees, a majority of the
Regular Trustees) and (ii) the Property Trustee if the amendment affects the
rights, powers, duties, obligations or immunities of the Property Trustee;
and (iii) by the Delaware Trustee if the amendment affects the rights,
powers, duties, obligations or immunities of the Delaware Trustee.
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(b) No amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an
Officers' Certificate from each of the Trust and the
Sponsor that such amendment is permitted by, and
conforms to, the terms of this Declaration (including
the terms of the Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or
immunities of the Property Trustee, the Property
Trustee shall have first received:
(a) an Officers' Certificate from each of the
Trust and the Sponsor that such amendment is
permitted by, and conforms to, the terms of
this Declaration (including the terms of the
Securities); and
(b) an opinion of counsel (who may be counsel to
the Sponsor or the Trust) that such
amendment is permitted by, and conforms to,
the terms of this Declaration (including the
terms of the Securities); and
(iii) to the extent the result of such amendment would be
to:
(a) cause the Trust to be classified other
than as a grantor trust for United States
federal income tax purposes;
(b) reduce or otherwise adversely affect the
powers of the Property Trustee in
contravention of the Trust Indenture Act; or
(c) cause the Trust to be deemed to be an
Investment Company required to be registered
under the Investment Company Act.
(c) If the Trust has issued any Securities that remain
outstanding:
(i) any amendment that would (a) change the amount or
timing of any distribution of the Securities or
otherwise adversely affect the amount of any
distribution required to be made in respect of the
Securities as of a specified date or (b) restrict
the right of a Holder of Securities to institute
suit for the enforcement of any such payment on or
after such date, will entitle the Holders of such
Securities, voting together as a single class, to
vote on such amendment or proposal and such
amendment or proposal shall not be effective
except with the approval of each of the Holders of
the Securities affected thereby; and
(ii) any amendment that would (a) adversely affect the
powers, preferences or special rights of the
Securities, whether by way of amendment to this
Declaration or otherwise or (b) result in the
dissolution, winding-up or termination of the
Trust other than pursuant to the terms of this
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Declaration, will entitle the Holders of the
Securities voting together as a single class to
vote on such amendment or proposal and such
amendment or proposal shall not be effective
except with the approval of a Majority in
Liquidation Amount of each class of the Securities
as affected thereby; provided that, if any
amendment or proposal referred to in clause (a)
above would adversely affect on the Preferred
Securities or the Common Securities, then only the
affected class will be entitled to vote on such
amendment or proposal and such amendment or
proposal shall not be effective except with the
approval of a Majority in Liquidation Amount of
the class of Securities affected thereby.
(iii) amendment that would (a) adversely affect the
powers, preferences or special rights of the
Securities, whether by way of amendment to the
Declaration or otherwise or (b) result in the
dissolution, winding-up or termination of the
Trust other than pursuant to the terms of this
Declaration or (c) change the amount or timing of
any distribution of the Securities or otherwise
adversely affect the amount of any distribution
required to be made in respect of the Securities
as of a specified date or (d) restrict the right
of a Holder of Securities to institute suit for
the enforcement of any such payment on or after
such date, then the holders of the Securities
voting together as a single class will be entitled
to vote on such amendment or proposal and such
amendment or proposal shall not be effective
except with the approval of a Majority Liquidation
Amount of Securities affected thereby; provided
that, if any amendment or proposal referred to in
clause (a) above would adversely affect only the
Preferred Securities or the Common Securities,
then only the affected class will be entitled to
vote on such amendment or proposal and such
amendment or proposal shall not be effective
except with the approval of a Majority in
Liquidation Amount of such class of Securities
affected thereby.
(d) This Section 11.1 shall not be amended without the consent
of all of the Holders of the Securities.
(e) Article IV shall not be amended without the consent of the
Holders of a Majority in Liquidation Amount of the Common Securities.
(f) The rights of the Holders of the Common Securities under
Article V to increase or decrease the number of, and appoint and remove
Trustees shall not be amended without the consent of the Holders of a
Majority in Liquidation Amount of the Common Securities.
(g) Notwithstanding Section 11.1(c), this Declaration may be
amended without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Declaration that may be defective or inconsistent
with any other provision of this Declaration;
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(iii) add to the covenants, restrictions or obligations of
the Sponsor;
(iv) to conform to any change in Rule 3a-5 or written
change in interpretation or application of Rule 3a-5
by any legislative body, court, government agency or
regulatory authority which amendment does not have a
material adverse effect on the rights, preferences or
privileges of the Holders; or
(v) to modify, eliminate and add to any provision of this
Declaration to ensure that the Trust will be
classified as a grantor trust for United States
federal income tax purposes at all times that any
Securities are outstanding or to ensure that the
Trust will not be required to register as an
Investment Company under the Investment Company Act;
provided, however, that such modification,
elimination or addition would not adversely affect in
any material respect the rights, privileges or
preferences of any Holder of the Securities.
SECTION 11.2. MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY
WRITTEN CONSENT.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Regular Trustees (or as provided in the terms of
the Securities) to consider and act on any matter on which Holders of such
class of Securities are entitled to act under the terms of this Declaration,
the terms of the Securities or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading. The Regular Trustees
shall call a meeting of the Holders of such class if directed to do so by the
Holders of at least 10% in Liquidation Amount of such class of Securities.
Such direction shall be given by delivering to the Regular Trustees one or
more calls in a writing stating that the signing Holders of Securities wish
to call a meeting and indicating the general or specific purpose for which
the meeting is to be called. Any Holders of Securities calling a meeting
shall specify in writing the Certificates held by the Holders of Securities
exercising the right to call a meeting and only those Securities specified
shall be counted for purposes of determining whether the required percentage
set forth in the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to
all the Holders of Securities having a right
to vote thereat at least 7 days and not more
than 60 days before the date of such meeting.
Whenever a vote, consent or approval of the
Holders of Securities is permitted or required
under this Declaration or the rules of any
stock exchange on which the Preferred
Securities are listed or admitted for
trading, such vote, consent or approval may
be given at a meeting of the Holders of
Securities. Any action that may be taken at a
meeting of the Holders of Securities may be
taken without a meeting if a consent in writing
setting forth the action so taken is signed by
the Holders of Securities owning not less than
the minimum amount of Securities in liquidation
amount that would be necessary to authorize
or take such action at a meeting at which all
Holders of Securities having a right to vote
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thereon were present and voting. Prompt notice
of the taking of action without a meeting
shall be given to the Holders of Securities
entitled to vote who have not consented in
writing. The Regular Trustees may specify that
any written ballot submitted to the Security
Holders for the purpose of taking any action
without a meeting shall be returned to the Trust
within the time specified by the Regular Trustees;
(ii) each Holder of a Security may authorize any Person
to act for it by proxy on all matters in which a
Holder of Securities is entitled to participate,
including waiving notice of any meeting, or voting
or participating at a meeting. No proxy shall be
valid after the expiration of 11 months from the
date thereof unless otherwise provided in the
proxy. Every proxy shall be revocable at the
pleasure of the Holder of Securities executing
such proxy. Except as otherwise provided herein,
all matters relating to the giving, voting or
validity of proxies shall be governed by the
General Corporation Law of the State of Delaware
relating to proxies, and judicial interpretations
thereunder, as if the Trust were a Delaware
corporation and the Holders of the Securities were
stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall
be conducted by the Regular Trustees or by such other
Person that the Regular Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration,
the terms of the Securities, the Trust Indenture
Act or the listing rules of any stock exchange on
which the Preferred Securities are then listed for
trading, otherwise provides, the Regular
Trustees, in their sole discretion, shall
establish all other provisions relating to
meetings of Holders of Securities, including
notice of the time, place or purpose of any
meeting at which any matter is to be voted on by
any Holders of Securities, waiver of any such
notice, action by consent without a meeting, the
establishment of a record date, quorum
requirements, voting in person or by proxy or any
other matter with respect to the exercise of any
such right to vote.
ARTICLE XII.
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
SECTION 12.1. REPRESENTATIONS AND WARRANTIES OF THE PROPERTY
TRUSTEE.
The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Property Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Property Trustee's acceptance of its
appointment as Property Trustee that:
(a) the Property Trustee is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its incorporation or organization, with trust power
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and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration;
(b) the Property Trustee satisfies the requirements set forth
in Section 6.3(a);
(c) the execution, delivery and performance by the Property
Trustee of this Declaration has been duly authorized by all necessary
corporate action on the part of the Property Trustee. This Declaration has
been duly executed and delivered by the Property Trustee;
(d) the execution, delivery and performance of this Declaration
by the Property Trustee does not conflict with or constitute a breach of the
articles of association or incorporation, as the case may be, or the by-laws
(or other similar organizational documents) of the Property Trustee; and
(e) no consent, approval or authorization of, or registration
with or notice to, any State or federal banking authority is required for the
execution, delivery or performance by the Property Trustee of this
Declaration.
SECTION 12.2. REPRESENTATIONS AND WARRANTIES OF THE DELAWARE
TRUSTEE.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) the Delaware Trustee satisfies the requirements set forth
in Section 6.2 and has the power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, this Declaration
and, if it is not a natural person, is duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation or
organization;
(b) the Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and this Declaration.
(c) no consent, approval or authorization of, or registration
with or notice to, any State or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of this
Declaration.
ARTICLE XIII.
MISCELLANEOUS
SECTION 13.1. NOTICES.
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by registered or certified mail, as follows:
56
<PAGE>
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Trust
may give notice of to the Property Trustee, the Delaware Trustee and the
Holders of the Securities):
c/o OGE Energy Corp.
321 North Harvey
Oklahoma City, Oklahoma 73102
Attention: Treasurer
Telecopy No: (405) ________
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as the Delaware Trustee may give notice of
to the Regular Trustees, the Property Trustee and the Holders of the
Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trustee Administration
Telecopy No: ________________
(c) if given to the Property Trustee, at its Corporate Trust Office
(or such other address as the Property Trustee may give notice of to the
Regular Trustees, the Delaware Trustee and the Holders of the Securities).
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder
of the Common Securities may give notice of to the Property Trustee, the
Delaware Trustee and the Trust):
OGE Energy corp.
321 North Harvey
Oklahoma City, Oklahoma 73102
Attention: Treasurer
Telecopy No.: _________________
(e) if given to any other Holder, at the address set forth on the
register of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed or mailed by first class mail, postage
prepaid except that if a notice or other document is refused delivery or cannot
be delivered because of a changed address of which no notice was given, such
notice or other document shall be deemed to have been delivered on the date of
such refusal or inability to deliver.
SECTION 13.2. GOVERNING LAW.
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of
Delaware.
57
<PAGE>
SECTION 13.3. INTENTION OF THE PARTIES.
It is the intention of the parties hereto that the Trust be
classified for United States federal income tax purposes as a grantor trust.
The provisions of this Declaration shall be interpreted in a manner
consistent with such classification.
SECTION 13.4. HEADINGS.
Headings contained in this Declaration are inserted for convenience
of reference only and do not affect the interpretation of this Declaration or
any provision hereof.
SECTION 13.5. SUCCESSORS AND ASSIGNS.
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 13.6. PARTIAL ENFORCEABILITY.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder
of this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 13.7. COUNTERPARTS.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed
a single signature page.
58
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
OGE ENERGY CORP.
as Sponsor and as Common Securities Holder
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
WILMINGTON TRUST COMPANY,
as Delaware Trustee and Property Trustee
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
-----------------------------------------
A. M. Strecker, as Regular Trustee
-----------------------------------------
James R. Hatfield, as Regular Trustee
59
<PAGE>
EXHIBIT A
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL SECURITY, INSERT THE
FOLLOWING: THIS PREFERRED SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE DECLARATION HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR A
NOMINEE OF THE DEPOSITARY. THIS PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE DECLARATION AND NO
TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED
SECURITY 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) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITY
CERTIFICATE ISSUED IS REQUESTED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REGISTERED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), 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.]
CERTIFICATE NO. ______ NUMBER OF PREFERRED SECURITIES: ________
CUSIP NO.
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
OGE ENERGY CAPITAL TRUST __
____% PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
OGE Energy Capital Trust __, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that Cede &
Co. (the "Holder") is the registered owner of ___ preferred securities of the
Trust representing undivided beneficial ownership interests in the assets of
the Trust designated the ____% Preferred Securities (liquidation amount $25
per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the register of the Trust, in person or by a
duly authorized attorney, upon
<PAGE>
surrender of this certificate duly endorsed and in proper form for transfer
as provided in the Declaration (as defined below). The designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Preferred Securities represented hereby are issued and shall in all respects
be subject to the provisions of the Amended and Restated Declaration of Trust
of the Trust, dated as of _____ __, ______________ (as the same may be
amended from time to time (the "Declaration"), among OGE ENERGY CORP., as
Sponsor, A. M. Strecker and James R. Hatfield, as Regular Trustees, and
Wilmington Trust Company, as Property Trustee and Delaware Trustee.
Capitalized terms used herein but not defined shall have the meaning given
them in the Declaration. The Holder is entitled to the benefits of the
Guarantee to the extent described therein. The Sponsor will provide a copy of
the Declaration, the Guarantee and the Indenture to a Holder without charge
upon written request to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Preferred
Securities as evidence of undivided indirect beneficial ownership interests
in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this day
of.
OGE ENERGY CAPITAL TRUST __
By:
-------------------------------
Name:
-----------------------------
Title: Regular Trustee
This is one of the Securities referred to in the within-mentioned Declaration.
WILMINGTON TRUST COMPANY,
as Trustee
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
2
<PAGE>
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
CERTIFICATE NO. NUMBER OF COMMON SECURITIES: ____
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
OGE ENERGY CAPITAL TRUST __
COMMON SECURITIES
(LIQUIDATION AMOUNT $25 PER COMMON SECURITY)
OGE Energy Capital Trust __, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that OGE
ENERGY CORP. (the "Holder") is the registered owner of common securities of
the Trust representing an undivided beneficial ownership interest in the
assets of the Trust designated the ____% Common Securities (liquidation
amount $25 per Common Security) (the "Common Securities"). Except as provided
in the Declaration, the Common Securities are not transferable and any
attempted transfer thereof shall be void. The designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities represented hereby are issued and shall in all respects be
subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust, dated as of _____ __, 1999 (as the same may be amended from time
to time, the "Declaration"), among OGE ENERGY CORP., as Sponsor, A. M.
Strecker and James R. Hatfield, as Regular Trustees, and Wilmington Trust
Company, as Property Trustee and Delaware Trustee. The Holder is entitled to
the benefits of the Guarantee to the extent described therein. Capitalized
terms used herein but not defined shall have the meaning given them in the
Declaration. The Sponsor will provide a copy of the Declaration, the
Guarantee and the Indenture to the Holder without charge upon written request
to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Common Securities
as evidence of an undivided indirect beneficial ownership interest in the
Debentures.
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this ____ day of
___________, ____.
OGE ENERGY CAPITAL TRUST
By:
------------------------------
Name:
----------------------------
Title: Regular Trustee
2
<PAGE>
Exhibit 4.13
THE FOLLOWING EXHIBIT 4.13 IS THE FORM OF GUARANTEE TO BE USED BY EACH OGE
ENERGY CORP. TRUST
GUARANTEE AGREEMENT
OGE ENERGY CAPITAL TRUST
DATED AS OF ___________ __, 1999
<PAGE>
TABLE OF CONTENTS
CROSS REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of Trust Section of
Indenture Act of Guarantee
1939, as amended Agreement
PAGE
<S> <C>
310(a).............................................................4.1(a)
310(b)........................................................2.8; 4.1(c)
310(c).......................................................Inapplicable
311(a) ............................................................2.2(b)
311(b).............................................................2.2(b)
311(c).......................................................Inapplicable
312(a) .......................................................2.2(a); 2.9
312(b)....................................................... 2.2(b); 2.9
312(c)............................................................... 2.9
313(a) ...............................................................2.3
313(b) ...............................................................2.3
313(c)................................................................2.3
313(d) ..............................................................2.3
314(a) ...............................................................2.4
314(b)...................................................... Inapplicable
314(c) ...............................................................2.5
314(d) ......................................................Inapplicable
314(e) ...............................................................2.5
314(f) ......................................................Inapplicable
315(a) ....................................................3.1(d); 3.2(a)
315(b) ............................................................2.7(a)
315(c) ............................................................3.1(c)
315(d) ............................................................3.1(d)
316(a) .......................................................2.6; 5.4(a)
316(b) ...............................................................5.3
316(c) ......................................................Inapplicable
317(a) ..............................................................2.10
317(b) ......................................................Inapplicable
318(a) ...........................................................2.1(b)
</TABLE>
* The Cross-Reference Table does not constitute part of the Agreement and
shall not have any bearing upon the interpretation of any of its terms
or provisions.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I. INTERPRETATION AND DEFINITIONS.............................................................1
Section 1.1. INTERPRETATIONS AND DEFINITIONS.......................................................1
ARTICLE II. TRUST INDENTURE ACT........................................................................5
Section 2.1. TRUST INDENTURE ACT; APPLICATION......................................................5
Section 2.2. LISTS OF HOLDERS OF SECURITIES........................................................5
Section 2.3. REPORTS BY GUARANTEE TRUSTEE..........................................................5
Section 2.4. PERIODIC REPORTS TO GUARANTEE TRUSTEE.................................................5
Section 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT......................................6
Section 2.6. GUARANTEE EVENT OF DEFAULT; WAIVER....................................................6
Section 2.7. GUARANTEE EVENT OF DEFAULT; NOTICE....................................................6
Section 2.8. CONFLICTING INTERESTS.................................................................6
Section 2.9. DISCLOSURE OF INFORMATION.............................................................6
Section 2.10. GUARANTEE TRUSTEE MAY FILE PROOFS OF CLAIM............................................6
ARTICLE III. POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE.............................................7
Section 3.1. POWERS AND DUTIES OF GUARANTEE TRUSTEE................................................7
Section 3.2. CERTAIN RIGHTS OF GUARANTEE TRUSTEE...................................................8
Section 3.3. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE................................10
ARTICLE IV. GUARANTEE TRUSTEE.........................................................................10
Section 4.1. GUARANTEE TRUSTEE; ELIGIBILITY.......................................................10
Section 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF GUARANTEE TRUSTEE............................11
ARTICLE V. GUARANTEE.................................................................................11
Section 5.1. GUARANTEE............................................................................11
Section 5.2. WAIVER OF NOTICE AND DEMAND..........................................................12
Section 5.3. OBLIGATIONS NOT AFFECTED.............................................................12
Section 5.4. RIGHTS OF HOLDERS....................................................................13
Section 5.5. GUARANTEE OF PAYMENT.................................................................13
Section 5.6. SUBROGATION..........................................................................14
Section 5.7. INDEPENDENT OBLIGATIONS..............................................................14
ARTICLE VI. LIMITATION OF TRANSACTIONS; SUBORDINATION.................................................14
Section 6.1. LIMITATION OF TRANSACTION............................................................14
</TABLE>
-i-
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C>
Section 6.2. RANKING..............................................................................14
ARTICLE VII. TERMINATION...............................................................................15
Section 7.1. TERMINATION..........................................................................15
ARTICLE VIII. INDEMNIFICATION...........................................................................15
Section 8.1. EXCULPATION..........................................................................15
Section 8.2. INDEMNIFICATION......................................................................15
ARTICLE IX. MISCELLANEOUS.............................................................................16
Section 9.1. SUCCESSORS AND ASSIGNS...............................................................16
Section 9.2. AMENDMENTS...........................................................................16
Section 9.3. NOTICES..............................................................................16
Section 9.4. BENEFIT..............................................................................17
Section 9.5. GOVERNING LAW........................................................................17
</TABLE>
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<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Guarantee"), dated as of _________ __, ____,
is executed and delivered by OGE Energy Corp., an Oklahoma corporation (the
"Guarantor"), and Wilmington Trust Company, as trustee (the "Guarantee
Trustee"), for the benefit of the Holders (as defined herein) from time to time
of the Securities (as defined herein) of OGE Energy Capital Trust __, a Delaware
statutory business trust (the "Trust").
W I T N E S S E T H :
WHEREAS, pursuant to the Declaration (as defined herein), the Trust is
issuing on the date hereof $__________ aggregate liquidation amount of
preferred securities, having a liquidation amount of $25 per security and
designated the ___% Preferred Securities of the Trust (the "Preferred
Securities") and $__________ aggregate liquidation amount of common
securities, having a liquidation amount of $25 per security and designated
the ___% Common Securities of the Trust (the "Common Securities" and,
together with the Preferred Securities, the "Securities");
WHEREAS, as incentive for the Holders to purchase the Securities, the
Guarantor desires irrevocably and unconditionally to agree, to the extent set
forth in this Guarantee, to pay to the Holders of the Securities the
Guarantee Payments (as defined herein) and to make certain other payments on
the terms and conditions set forth herein; and that if a Trust Enforcement
Event (as defined herein) has occurred and is continuing, the rights of
holders of the Common Securities to receive Guarantee Payments under this
Guarantee are subordinated to the rights of Holders of Preferred Securities
to receive Guarantee Payments under this Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee for the benefit
of the Holders.
ARTICLE I.
INTERPRETATION AND DEFINITIONS
Section 1.1. INTERPRETATIONS AND DEFINITIONS. In this Guarantee, unless the
context otherwise requires:
(a) capitalized terms used in this Guarantee but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Guarantee has the same meaning
throughout;
(c) all references to "the Guarantee" or "this Guarantee" are to this
Guarantee as modified, supplemented or amended from time to time;
<PAGE>
(d) all references in this Guarantee to Articles, Sections and Recitals are
to Articles, Sections and Recitals of this Guarantee, unless otherwise
specified;
(e) unless otherwise defined in this Guarantee, a term defined in the Trust
Indenture Act has the same meaning when used in this Guarantee;
(f) a reference to the singular includes the plural and vice versa and a
reference to any masculine form of a term shall include the feminine form of a
term, as applicable; and
(g) the following terms have the following meanings:
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" has the meaning specified in the Declaration.
"Common Securities" has the meaning specified in the Recitals hereto.
"Corporate Trust Office" means the principal office of the Guarantee
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Guarantee is located
at Rodney Square North, 1100 North Market Street, Wilmington, Delaware
19890-0001.
"Covered Person" means a Holder or beneficial owner of Securities.
"Debentures" means the series of subordinated deferrable interest
debentures to be issued by the Guarantor designated the ____% Junior
Subordinated Debentures due _______ held by the Property Trustee (as defined in
the Declaration) of the Trust.
"Declaration" means the Amended and Restated Declaration of Trust, dated as
of _______ ___, 1999, as amended, modified or supplemented from time to time,
among the trustees of the Trust named therein, the Guarantor, as sponsor, and
the Holders, from time to time, of undivided beneficial ownership interests in
the assets of the Trust.
"Global Security" means a fully registered, global Preferred Security.
"Guarantee Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Securities, to the extent not paid by or on
behalf of the Trust: (i) any accumulated and unpaid Distributions (as defined in
the Declaration) that are required to be paid on such Securities to the extent
the Trust has sufficient funds available therefor at the time, (ii) the
redemption price, including all accumulated and unpaid Distributions to the date
of redemption, with respect to any Securities called for redemption by the
Trust, to the extent the Trust shall have sufficient funds available therefor at
the time or (iii) upon a voluntary or
-2-
<PAGE>
involuntary dissolution, winding-up or termination of the Trust (other than
in connection with the distribution of Debentures to the Holders in exchange
for Securities as provided in the Declaration), the lesser of (a) the
aggregate of the liquidation amount and all accumulated and unpaid
Distributions on the Securities to the date of payment, to the extent the
Trust has sufficient funds available therefor and (b) the amount of assets of
the Trust remaining available for distribution to Holders in liquidation of
the Trust (in either case, the "Liquidation Distribution").
"Guarantee Trustee" means Wilmington Trust Company, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee and thereafter means each such Successor
Guarantee Trustee.
"Holder" means any holder of Securities, as registered on the books and
records of the Trust; provided, however, that, in determining whether the
Holders of the requisite percentage of Preferred Securities have given any
request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor or any Affiliate of the Guarantor or any other obligor on the
Preferred Securities; and provided further, that in determining whether the
Holders of the requisite liquidation amount of Preferred Securities have
voted on any matter provided for in this Guarantee, then for the purpose of
such determination only (and not for any other purpose hereunder), if the
Preferred Securities remain in the form of one or more Global Certificates
(as defined in the Declaration), the term "Holders" shall mean the holder of
the Global Certificate acting at the direction of the Beneficial Owners (as
defined in the Declaration).
"Indemnified Person" means the Guarantee Trustee, any Affiliate of the
Guarantee Trustee, or any officers, directors, shareholders, members, partners,
employees, representatives, nominees, custodians or agents of the Guarantee
Trustee.
"Indenture" means the Indenture, dated as of _________________, 1999,
between the Guarantor (the "Company") and Bank of Oklahoma, National
Association, as trustee, as amended and supplemented by the First Supplemental
Indenture dated as of ____________, 1999, and by any other indenture
supplemental thereto pursuant to which the Debentures are to be issued to the
Property Trustee (as defined in the Declaration) of the Trust.
"Majority in Liquidation Amount" means, except as provided in the terms of
the Preferred Securities or by the Trust Indenture Act, Holder(s) of outstanding
Securities, voting together as a single class, or, as the context may require,
Holders of outstanding Preferred Securities or Holders of outstanding Common
Securities, voting separately as a class, who are the record owners of more than
50% of the aggregate liquidation amount (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to the date upon which the voting percentages are determined) of
all outstanding Securities of the relevant class. In determining whether the
Holders of the requisite amount of Securities have voted, Securities which are
owned by the Guarantor or any Affiliate of the Guarantor or any other obligor on
the Securities shall be disregarded for the purpose of any such determination.
-3-
<PAGE>
"Officers' Certificate" means, with respect to any Person, a certificate
signed on behalf of such Person by two Authorized Officers (as defined in the
Declaration) of such Person. Any Officers' Certificate delivered with respect
to compliance with a condition or covenant provided for in this Guarantee
shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer on behalf of such Person in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer on behalf of such Person to express an informed opinion
as to whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of each such officer acting
on behalf of such Person, such condition or covenant has been complied
with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Securities" has the meaning specified in the Recitals hereto.
"Redemption Price" has the meaning specified in the Declaration.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
officer with direct responsibility for the administration of this Guarantee
and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Securities" has the meaning specified in the Recitals hereto.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Enforcement Event" in respect of the Securities means an Indenture
Event of Default (as defined in the Indenture) has occurred and is continuing in
respect of the Debentures.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
-4-
<PAGE>
ARTICLE II.
TRUST INDENTURE ACT
Section 2.1. TRUST INDENTURE ACT; APPLICATION.
(a) This Guarantee is subject to the provisions of the Trust Indenture Act
that are required to be part of this Guarantee and shall, to the extent
applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 2.2. LISTS OF HOLDERS OF SECURITIES.
(a) The Guarantor shall provide the Guarantee Trustee (i) except while
the Preferred Securities are represented by one or more Global Securities at
least one Business Day prior to the date for payment of Distributions, a
list, in such form as the Guarantee Trustee may reasonably require, of the
names and addresses of the Holders of the Securities ("List of Holders") as
of the record date relating to the payment of such Distributions, and (ii) at
any other time, within 30 days of receipt by the Guarantor of a written
request from the Guarantee Trustee for a List of Holders as of a date no more
than 15 days before such List of Holders is given to the Guarantee Trustee;
provided that the Guarantor shall not be obligated to provide such List of
Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Guarantee Trustee by the Guarantor. The
Guarantee Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in Lists of Holders given to it,
provided that the Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
Section 2.3. REPORTS BY GUARANTEE TRUSTEE. Within 60 days after
__________________ of each year (commencing with the year of the first
anniversary of the issuance of the Securities), the Guarantee Trustee shall
provide to the Holders of the Securities such reports as are required by
Section 313 of the Trust Indenture Act (if any) in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee
shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
Section 2.4. PERIODIC REPORTS TO GUARANTEE TRUSTEE. The Guarantor shall
provide to the Guarantee Trustee such documents, reports and information as
required by Section 314(a) (if any) of the Trust Indenture Act and the
compliance certificate required by Section 314(a) of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314(a) of the Trust
Indenture Act.
-5-
<PAGE>
Section 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. The
Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Guarantee that
relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
Section 2.6. GUARANTEE EVENT OF DEFAULT; WAIVER.
(a) The Holders of a Majority in Liquidation Amount of the Securities
may, by vote or written consent, on behalf of the Holders of all of the
Securities, waive any past Guarantee Event of Default and its consequences.
Upon such waiver, any such Guarantee Event of Default shall cease to exist,
and any Guarantee Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Guarantee, but no such waiver shall
extend to any subsequent or other default or Guarantee Event of Default or
impair any right consequent thereon.
Section 2.7. GUARANTEE EVENT OF DEFAULT; NOTICE.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of
a Guarantee Event of Default, transmit by mail, first class postage prepaid,
to the Holders of the Securities, notices of all Guarantee Events of Default
actually known to a Responsible Officer of the Guarantee Trustee, unless such
defaults have been cured before the giving of such notice; provided, that the
Guarantee Trustee shall be protected in withholding such notice if and so
long as a Responsible Officer of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Guarantee Event of Default unless the Guarantee Trustee shall have received
written notice thereof or a Responsible Officer of the Guarantee Trustee
charged with the administration of the Declaration shall have obtained actual
knowledge thereof.
Section 2.8. CONFLICTING INTERESTS. The Declaration shall be deemed to
be specifically described in this Guarantee for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
Section 2.9. DISCLOSURE OF INFORMATION. The disclosure of information as
to the names and addresses of the Holders of the Securities in accordance
with Section 312 of the Trust Indenture Act, regardless of the source from
which such information was derived, shall not be deemed to be a violation of
any existing law, or any law hereafter enacted which does not specifically
refer to Section 312 of the Trust Indenture Act, nor shall the Guarantee
Trustee be held accountable by reason of mailing any material pursuant to a
request made under Section 312(b) of the Trust Indenture Act.
Section 2.10. GUARANTEE TRUSTEE MAY FILE PROOFS OF CLAIM. Upon the
occurrence of a Guarantee Event of Default, the Guarantee Trustee is hereby
authorized to (a)
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recover judgment, in its own name and as trustee of an express trust, against
the Guarantor for the whole amount of any Guarantee Payments remaining unpaid
and (b) file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have its claims and those of the Holders
of the Securities allowed in any judicial proceedings relative to the
Guarantor, its creditors or its property.
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
Section 3.1. POWERS AND DUTIES OF GUARANTEE TRUSTEE
(a) This Guarantee shall be held by the Guarantee Trustee on behalf of
the Trust for the benefit of the Holders of the Securities, and the Guarantee
Trustee shall not transfer this Guarantee to any Person except a Holder of
Securities exercising his or her rights pursuant to Section 5.4(b) or to a
Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee
of its appointment to act as Successor Guarantee Trustee. The right, title
and interest of the Guarantee Trustee in and to this Guarantee shall
automatically vest in any Successor Guarantee Trustee, and such vesting and
succession of title shall be effective whether or not conveyance documents
have been executed and delivered pursuant to the appointment of such
Successor Guarantee Trustee.
(b) If a Guarantee Event of Default actually known to a Responsible
Officer of the Guarantee Trustee has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee for the benefit of the Holders
of the Securities.
(c) The Guarantee Trustee, before the occurrence of any Guarantee Event
of Default and after the curing of all Guarantee Events of Default that may
have occurred, shall undertake to perform only such duties as are
specifically set forth in this Guarantee, and no implied covenants shall be
read into this Guarantee against the Guarantee Trustee. In case a Guarantee
Event of Default has occurred (that has not been cured or waived pursuant to
Section 2.6) and is actually known to a Responsible Officer of the Guarantee
Trustee, the Guarantee Trustee shall exercise such of the rights and powers
vested in it by this Guarantee, and use the same degree of care and skill in
its exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Guarantee Event of Default and
after the curing or waiving of all such Guarantee Events of Default that may
have occurred:
(A) the duties and obligations of the Guarantee Trustee shall be
determined solely by the express provisions of this Guarantee, and the Guarantee
Trustee shall
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not be liable except for the performance of such duties and obligations as
are specifically set forth in this Guarantee, and no implied covenants or
obligations shall be read into this Guarantee against the Guarantee Trustee;
and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Guarantee Trustee and conforming to
the requirements of this Guarantee; but in the case of any such certificates
or opinions that by any provision hereof are specifically required to be
furnished to the Guarantee Trustee, the Guarantee Trustee shall be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Guarantee;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a Majority in Liquidation
Amount of the Securities relating to the time, method and place of conducting
any proceeding for any remedy available to the Guarantee Trustee, or
exercising any trust or power conferred upon the Guarantee Trustee under this
Guarantee; and
(iv) no provision of this Guarantee shall require the Guarantee
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any
of its rights or powers, if the Guarantee Trustee shall have reasonable
grounds for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Guarantee or if the
Guarantee Trustee shall have reasonable grounds for believing that an
indemnity, reasonably satisfactory to the Guarantee Trustee, against such
risk or liability is not reasonably assured to it under the terms of this
Guarantee.
Section 3.2. CERTAIN RIGHTS OF GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely, and shall be fully
protected in acting or refraining from acting upon, any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed, sent or presented
by the proper party or parties;
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee shall be sufficiently evidenced by an Officers' Certificate;
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(iii) Whenever, in the administration of this Guarantee, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Guarantee Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and conclusively rely
upon an Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor;
(iv) The Guarantee Trustee shall have no duty to see to any
recording, filing or registration or any instrument (or any rerecording,
refiling or re-registration thereof);
(v) The Guarantee Trustee may consult with counsel, and the advice or
opinion of such counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with such advice or opinion.
Such counsel may be counsel to the Guarantor or any of its Affiliates and may
include any of its employees. The Guarantee Trustee shall have the right at any
time to seek instructions concerning the administration of this Guarantee from
any court of competent jurisdiction;
(vi) The Guarantee Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Guarantee at the request or
direction of any Holder, unless such Holder shall have provided to the Guarantee
Trustee such security and indemnity, reasonably satisfactory to the Guarantee
Trustee, against the costs, expenses (including attorneys' fees and expenses and
the expenses of the Guarantee Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by the
Guarantee Trustee; provided, that nothing contained in this Section 3.2(a)(vi)
shall be taken to relieve the Guarantee Trustee, upon the occurrence of a
Guarantee Event of Default, of its obligation to exercise the rights and powers
vested in it by this Guarantee;
(vii) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit;
(viii) The Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, nominees, custodians or attorneys, and the Guarantee Trustee shall not
be responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(ix) Any action taken by the Guarantee Trustee or its agents hereunder
shall bind the Holders, and the signature of the Guarantee Trustee or its agents
alone shall be sufficient and effective to perform any such action. No third
party shall be required to inquire as to the authority of the Guarantee Trustee
to so act or as to its compliance with any of the terms and provisions of this
Guarantee, both of which shall be conclusively evidenced by the Guarantee
Trustee's or its agent's taking such action; and
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(x) Whenever in the administration of this Guarantee the Guarantee
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the
Guarantee Trustee (i) may request written instructions from the Holders of a
Majority in Liquidation Amount of the Securities, (ii) may refrain from
enforcing such remedy or right or taking such other action until such written
instructions are received, and (iii) shall be protected in conclusively
relying on or acting in accordance with such written instructions.
(b) No provision of this Guarantee shall be deemed to impose any duty or
obligation on the Guarantee Trustee to perform any act or acts or exercise
any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee
Trustee shall be construed to be a duty.
Section 3.3. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE. The
recitals contained in this Guarantee shall be taken as the statements of the
Guarantor, and the Guarantee Trustee does not assume any responsibility for
their correctness. The Guarantee Trustee makes no representations as to the
validity or sufficiency of this Guarantee.
ARTICLE IV.
GUARANTEE TRUSTEE
Section 4.1. GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall be at all times a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any state or territory thereof or of the
District of Columbia, or a corporation or other Person permitted by the
Securities and Exchange Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or examination by
federal, state, territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the supervising or examining authority referred to
above, then, for the purposes of this Section 4.1(a)(ii), the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so
act under Section 4.1(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2(c).
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(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act,
the Guarantee Trustee and Guarantor shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
Section 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF GUARANTEE TRUSTEE.
(a) Subject to Section 4.2(b), unless a Guarantee Event of Default shall
have occurred and be continuing, the Guarantee Trustee may be appointed or
removed with or without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in accordance with Section
4.2(a) until a Successor Guarantee Trustee has been appointed and has accepted
such appointment by written instrument executed by such Successor Guarantee
Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold such office until
a Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of removal or resignation, the
removed or resigning Guarantee Trustee may petition any court of competent
jurisdiction for appointment of a Successor Guarantee Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper, appoint
a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions to act
of any Successor Guarantee Trustee.
(f) Upon termination of this Guarantee or removal or resignation of the
Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall pay to the
Guarantee Trustee all amounts owing for fees and reimbursement of expenses which
have accrued to the date of such termination, removal or resignation.
ARTICLE V.
GUARANTEE
Section 5.1. GUARANTEE. The Guarantor irrevocably and unconditionally
agrees to pay in full to the Holders the Guarantee Payments (without
duplication of amounts theretofore paid by the Trust), as and when due,
regardless of any defense, right of set-off or counterclaim
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that the Trust may have or assert. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts
by the Guarantor to the Holders or by causing the Trust to pay such amounts
to the Holders. Notwithstanding anything to the contrary herein, the
Guarantor retains all of its rights under the Indenture to (i) extend the
interest payment period on the Debentures and the Guarantor shall not be
obligated hereunder to make any Guarantee Payments during any Extension
Period (as defined in the certificate evidencing the Debentures) with respect
to the Distributions (as defined in the Declaration) on the Securities, and
(ii) change the maturity date of the Debentures to the extent permitted by
the Indenture.
Section 5.2. WAIVER OF NOTICE AND DEMAND. The Guarantor hereby waives
notice of acceptance of this Guarantee and of any liability to which it
applies or may apply, presentment, demand for payment, any right to require a
proceeding first against the Trust or any other Person before proceeding
against the Guarantor, protest, notice of nonpayment, notice of dishonor,
notice of redemption and all other notices and demands.
Section 5.3. OBLIGATIONS NOT AFFECTED. The obligations, covenants,
agreements and duties of the Guarantor under this Guarantee shall be absolute
and unconditional and shall remain in full force and effect until the entire
liquidation amount of all outstanding Securities shall have been paid and such
obligation shall in no way be affected or impaired by reason of the happening
from time to time of any event, including without limitation, the following,
whether or not with notice to, or the consent of, the Guarantor:
(a) The release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Securities to be performed or
observed by the Trust;
(b) The extension of time for the payment by the Trust of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Securities or the extension of time
for the performance of any other obligation under, arising out of, or in
connection with the Securities (other than an extension of time for payment of
Distributions, Redemption Price, Liquidation Distribution or other sum payable
that results from the extension of any interest payment period on the Debentures
or any change to the maturity date of the Debentures permitted by the
Indenture);
(c) Any failure, omission, delay or lack of diligence on the part of the
Property Trustee or the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Property Trustee or the Holders
pursuant to the terms of the Securities, or any action on the part of the Trust
granting indulgence or extension of any kind;
(d) The voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust;
(e) Any invalidity of, or defect or deficiency in, the Securities;
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(f) The settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) Any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent
of this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Guarantee Trustee or the Holders to
give notice to, or obtain consent of the Guarantor or any other Person with
respect to the happening of any of the foregoing.
No setoff, counterclaim, reduction or diminution of any obligation, or any
defense of any kind or nature that the Guarantor has or may have against any
Holder shall be available hereunder to the Guarantor against such Holder to
reduce the payments to it under this Guarantee.
Section 5.4. RIGHTS OF HOLDERS.
(a) The Holders of at least a Majority in Liquidation Amount of the
Securities have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Guarantee Trustee in respect
of this Guarantee or to direct the exercise of any trust or power conferred
upon the Guarantee Trustee under this Guarantee.
(b) If the Guarantee Trustee fails to enforce this Guarantee, then any
Holder of Securities may, subject to the subordination provisions of Section
6.2, institute a legal proceeding directly against the Guarantor to enforce
the Guarantee Trustee's rights under this Guarantee without first instituting
a legal proceeding against the Trust, the Guarantee Trustee or any other
person or entity. In addition, if the Guarantor has failed to make a
Guarantee Payment, a Holder of Securities may, subject to the subordination
provisions of Section 6.2, directly institute a proceeding against the
Guarantor for enforcement of the Guarantee for such payment to the Holder of
the Securities of the principal of or interest on the Debentures on or after
the respective due dates specified in the Debentures, and the amount of the
payment will be based on the Holder's pro rata share of the amount due and
owing on all of the Securities. The Guarantor hereby waives any right or
remedy to require that any action on this Guarantee be brought first against
the Trust or any other person or entity before proceeding directly against
the Guarantor.
Section 5.5. GUARANTEE OF PAYMENT. This Guarantee creates a guarantee of
payment and not of collection.
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Section 5.6. SUBROGATION. The Guarantor shall be subrogated to all (if
any) rights of the Holders of Securities against the Trust in respect of any
amounts paid to such Holders by the Guarantor under this Guarantee; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any right
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Guarantee, if
at the time of any such payment, any amounts are due and unpaid under this
Guarantee. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Guarantee Trustee for the benefit
of the Holders.
Section 5.7. INDEPENDENT OBLIGATIONS. The Guarantor acknowledges that
its obligations hereunder are independent of the obligations of the Trust
with respect to the Securities, and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee notwithstanding the occurrence of any event referred
to in subsections 5.3(a) through 5.3(g), inclusive, hereof.
ARTICLE VI.
LIMITATION OF TRANSACTIONS; SUBORDINATION
Section 6.1. LIMITATION OF TRANSACTION. So long as any Securities remain
outstanding, if (a) there shall have occurred an event of default under the
Indenture with respect to the Debentures, (b) there shall be a Guarantee
Event of Default or (c) the Guarantor shall have given notice of its election
of an Extension Period as provided in the certificate evidencing the
Debentures and shall not have rescinded such notice, or such Extension Period
or any extension thereof shall be continuing, then Guarantor shall not, and
shall not permit any subsidiary of the Guarantor, to (x) declare or pay any
dividends or distributions on, or redeem, purchase acquire or make a
liquidation payment with respect to any of the Guarantor's capital stock or
(y) make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Guarantor that rank on a
parity with or junior in interest to the Debentures or make any guarantee
payments with respect to any guarantee by the Guarantor of the debt
securities of any subsidiary of the Guarantor if such guarantee ranks on a
parity with or junior in interest to the Debentures (other than (i) dividends
or distributions in common stock of the Guarantor, (ii) payments under this
Guarantee and (iii) any declaration of a dividend in connection with the
implementation of a shareholders' rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto, and (iv) purchases of common stock related to the
issuance of common stock or rights under any of the Guarantor's benefit
plans).
Section 6.2. RANKING. This Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (a) subordinate and junior in right of
payment to all other liabilities of the Guarantor, (b) on a parity with the most
senior preferred or preference stock now or hereafter issued by the Guarantor
and with any guarantee now or hereafter entered into by the Guarantor in respect
of any preferred securities of any Affiliate of the Guarantor and (c) senior to
the
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Guarantor's common stock. In addition, at all times such obligations will be
structurally subordinated to the liabilities and obligations of the
Guarantor's subsidiaries.
If a Trust Enforcement Event has occurred and is continuing under the
Declaration, the rights of the holders of the Common Securities to receive
Guarantee Payments hereunder shall be subordinated to the rights of the Holders
of the Preferred Securities to receive Guarantee Payments under this Guarantee.
ARTICLE VII.
TERMINATION
Section 7.1. TERMINATION. This Guarantee shall terminate upon (a) full
payment of the Redemption Price of all Securities, (b) distribution of the
Debentures to the Holders of all the Securities or (c) full payment of the
amounts payable in accordance with the Declaration upon liquidation of the
Trust. Notwithstanding the foregoing, this Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any
Holder of Securities must restore payment of any sums paid under the
Securities or under this Guarantee.
ARTICLE VIII.
INDEMNIFICATION
Section 8.1. EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Guarantor or any Covered Person for any loss,
damage, liability, expense or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith in accordance
with this Guarantee and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such
Indemnified Person by this Guarantee or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim incurred by reason
of such Indemnified Person's negligence or willful misconduct with respect to
such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good faith
upon the records of the Guarantor and upon such information, opinions, reports
or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Securities might properly be paid.
Section 8.2. INDEMNIFICATION. The Guarantor agrees to indemnify each
Indemnified Person for, and to hold each Indemnified Person harmless against any
loss, liability
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or expense incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses (including reasonable
legal fees and expenses) of defending itself against, or investigating, any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The obligation to indemnify as set forth in
this Section 8.2 shall survive the termination of this Guarantee.
ARTICLE IX.
MISCELLANEOUS
Section 9.1. SUCCESSORS AND ASSIGNS. All guarantees and agreements
contained in this Guarantee shall bind the successors, assigns, receivers,
trustees and representatives of the Guarantor and shall inure to the benefit
of the Holders of the Securities then outstanding.
Section 9.2. AMENDMENTS. Except with respect to any changes that do not
materially adversely affect the rights of the Holders (in which case no consent
of the Holders will be required), this Guarantee may not be amended without the
prior approval of the Holders of not less than 66-2/3% of the aggregate
liquidation amount of the Securities. The provisions of Section 11.2 of the
Declaration with respect to meetings of, and action by written consent of, the
Holders of the Securities apply to the giving of such approval.
Section 9.3. NOTICES. All notices provided for in this Guarantee shall be
in writing, duly signed by the party giving such notice, and shall be delivered
by hand, telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Guarantee Trustee, at the Guarantee Trustee's mailing
address set forth below (or such other address as the Guarantee Trustee may give
notice of to the Guarantor and the Holders of the Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
Telecopy no.: (302) 651-1576
(b) If given to the Guarantor, at the Guarantor's mailing addresses set
forth below (or such other address as the Guarantor may give notice of to the
Guarantee Trustee and the Holders of the Securities):
OGE Energy Corp.
321 North Harvey
P.O. Box 321
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Oklahoma City, Oklahoma 73101-0321
Attention: Treasurer
Telecopy no.: (405) 553-3760
(c) If given to any Holder of Securities, at the address set forth on
the books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no
notice was given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
Section 9.4. BENEFIT. This Guarantee is solely for the benefit of the
Holders of the Securities and, subject to Section 3.1(a), is not separately
transferable from the Securities.
Section 9.5. GOVERNING LAW.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF OKLAHOMA WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES THEREOF.
IN WITNESS WHEREOF, this Guarantee is executed as of the day and year first
above written.
OGE ENERGY CORP., WILMINGTON TRUST COMPANY,
as Guarantor as Guarantee Trustee
By: By:
------------------------------- -------------------------------
Name: Name:
Title: Title:
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EXHIBIT 5.01
[RAINEY, ROSS, RICE & BINNS LETTERHEAD]
October 1, 1999
Securities and Exchange Commission
450 Fifth Street, NW
Washington, DC 20549
Ladies and Gentlemen:
We represent OGE Energy Corp., an Oklahoma corporation ("OGE"). A
Registration Statement on Form S-3 (the "Registration Statement"), under the
Securities Act of 1933, as amended (the "Act"), was filed by OGE and by OGE
Energy Capital Trust I and OGE Energy Capital Trust II (the "OGE Trusts")
with the Securities and Exchange Commission (the "SEC") on the date hereof.
The Registration Statement relates to the registration of $200,000,000 of (A)
(i) debt securities consisting of junior subordinated debt (the OGE
"Subordinated Debt Securities"), and (ii) guarantees of Trust Preferred
Securities (as hereinafter defined) and certain back-up obligations (the
"Guarantees") which OGE may issue from time to time in one or more series and
(B) trust preferred securities (the "Trust Preferred Securities") which the
OGE Trusts may issue from time to time in one or more series.
In that connection, we have examined or relied upon originals or
copies, certified or otherwise identified to our satisfaction, of such
documents, corporate records, certificates and instruments relating to OGE as
we have deemed relevant and necessary to the formation of the opinions
hereinafter set forth. In such examination, we have assumed the genuineness
and authenticity of all documents examined by us and all signatures thereon,
the legal capacity of all persons executing such documents, the conformity to
originals of all copies of documents submitted to us and the truth and
correctness of any representations and warranties contained therein.
Based upon the foregoing, we are of the opinion that:
1. The Subordinated Debt Securities have been duly authorized
and the indenture (the "Indenture") between OGE and Bank of Oklahoma,
National Association, as Trustee (the "Debt Trustee"), pursuant to which the
Subordinated Debt Securities will be issued has been duly executed and
delivered, and when the terms of the Subordinated Debt Securities have been
established in conformity with the Indenture and the Subordinated Debt
Securities have been executed by OGE, authenticated by the Debt Trustee in
accordance with the terms of the Indenture and issued and delivered against
payment therefor, the Subordinated Debt Securities will be legally issued and
will constitute valid and binding obligations of OGE, entitled to the
benefits of the Indenture
E-1
<PAGE>
and enforceable against OGE in accordance with their terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding
in equity or at law) and by an implied covenant of good faith and fair
dealing.
2. The Guarantees have been duly authorized and, when executed
and delivered by the parties thereto, the Guarantees will be valid and
binding agreements of OGE, enforceable against OGE in accordance with their
terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and by an implied covenant of
good faith and fair dealing.
In rendering this opinion, I express no opinion as to the laws of
any jurisdiction other than the State of Oklahoma, the General Corporation
Law of the State of Delaware and the United States of America.
I hereby consent to the filing of this opinion (and this consent) as
an exhibit to the Registration Statement and to the reference to me under the
caption "Legal Matters" in the Registration Statement, without admitting that
I am an "expert" under the Act, or the rules and regulations of the SEC
issued thereunder, with respect to any part of the Registration Statement,
including this exhibit.
Very truly yours,
RAINEY, ROSS, RICE & BINNS
By: /s/ Hugh D. Rice
-----------------
Hugh D. Rice
E-2
<PAGE>
EXHIBIT 5.02
[Letterhead of Richards, Layton & Finger]
October 1, 1999
OGE Energy Corp.
OGE Energy Capital Trust I
OGE Energy Capital Trust II
c/o OGE Energy Corp.
321 North Harvey
Oklahoma City, Oklahoma 73102
Re: OGE Energy Capital Trust I and OGE Energy Capital Trust II
Ladies and Gentlemen:
We have acted as special Delaware counsel for OGE Energy Corp., an
Oklahoma corporation (the "Company"), OGE Energy Capital Trust I, a Delaware
business trust ("Trust I"), and OGE Energy Capital Trust II, a Delaware
business trust ("Trust II"), (Trust I and Trust II are hereinafter
collectively referred to as the "Trusts" and sometimes hereinafter
individually referred to as a "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of Trust I, as filed with the office
of the Secretary of State of the State of Delaware (the
"Secretary of State") on September 29, 1999
(b) The Certificate of Trust of Trust II, as filed with the
Secretary of State on September 29, 1999;
(c) The Declaration of Trust of Trust I, dated as of September 29,
1999 among the Company and the trustees of Trust I named
therein;
(d) The Declaration of Trust of Trust II, dated as of September 29,
1999 among the Company and the trustees of Trust II named
therein;
(e) The Registration Statement (the "Registration Statement") on
Form S-3, including a preliminary prospectus with respect to
the Trusts (the "Prospectus"), relating to the Preferred
Securities of the Trusts representing preferred undivided
beneficial ownership interests in the assets of the Trusts
(each, a "Preferred Security" and collectively, the
"Preferred Securities"), to be filed by the Company and the
Trusts with the Securities and Exchange Commission;
(f) A form of Amended and Restated Declaration of Trust for each of
the Trusts, to be entered into between the Company, the trustees
of the Trust named therein, and the holders, from
<PAGE>
time to time, of the undivided beneficial ownership interests
in the assets of such Trust (including Exhibits A and B
thereto) (collectively, the "Declarations" and individually,
a "Declaration"), attached as an exhibit to the Registration
Statement; and
(g) A Certificate of Good Standing for each of the Trusts, dated
October 1, 1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined
are used as defined in the Declarations.
For purposes of this opinion, we have not reviewed any documents
other than the documents listed in paragraphs (a) through (g) above. In
particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (g) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that
is inconsistent with the opinions stated herein. We have conducted no
independent factual investigation of our own but rather have relied solely
upon the foregoing documents, the statements and information set forth
therein and the additional matters recited or assumed herein, all of which we
have assumed to be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i)
the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that each of the
Declarations will constitute the entire agreement among the parties thereto
with respect to the subject matter thereof, including with respect to the
creation, operation and termination of the applicable Trust, and that the
Declarations and the Certificates of Trust will be in full force and effect
and will not be amended, (ii) except to the extent provided in paragraph 1
below, the due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us
under the laws of the jurisdiction governing its organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Preferred Security is to be issued by the
Trusts (collectively, the "Preferred Security Holders") of a Preferred
Security Certificate for such Preferred Security and the payment for such
Preferred Security, in accordance with the Declarations and the Registration
Statement, and (vii) that the Preferred Securities are authenticated, issued
and sold to the Preferred Security Holders in accordance with the
Declarations and the Registration Statement. We have not participated in the
preparation of the Registration Statement or the Prospectus and assume no
responsibility for their contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our
opinions are rendered only with respect to Delaware laws and rules,
regulations and orders thereunder which are currently in effect.
<PAGE>
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary
or appropriate, and subject to the assumptions, qualifications, limitations
and exceptions set forth herein, we are of the opinion that:
1. Each of the Trusts has been duly created and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act, 12 Del. C. Section 3801 et seq.
2. The Preferred Securities of each Trust will represent valid
and, subject to the qualifications set forth in paragraph 3
below, fully paid and nonassessable undivided beneficial
interests in the assets of the applicable Trust.
3. The Preferred Security Holders, as beneficial owners of the
applicable Trust, will be entitled to the same limitation of
personal liability extended to stockholders of private
corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the
Preferred Security Holders may be obligated to make payments
as set forth in each Declaration.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. We hereby
consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules and regulations of
the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Richards, Layton & Finger
<PAGE>
[Letterhead of Gardner, Carton & Douglas]
October 1, 1999
OGE Energy Corp.
OGE Energy Capital Trust I
OGE Energy Capital Trust II
321 North Harvey Avenue
Oklahoma City, Oklahoma 73101-0321
Re: OGE Energy Capital Trust I and OGE Energy Capital Trust II
Preferred Securities
Ladies and Gentlemen:
We have acted as special United States tax counsel to (1) OGE Energy
Corp. (the "Company"), a corporation organized under the laws of the State of
Oklahoma, and (2) OGE Energy Capital Trust I and OGE Energy Capital Trust II
(the "OGE Trusts"), statutory business trusts formed under the laws of the
State of Delaware, in connection with the preparation of a Registration
Statement on Form S-3, which was filed by the Company and the OGE Trusts with
the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act") (such Registration Statement
being hereinafter referred to as the "Registration Statement") relating to
the registration under the Act of the preferred securities (the "Preferred
Securities") of the OGE Trusts, and certain other securities.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of such documents,
certificates and records as we have deemed necessary or appropriate as a
basis for the opinion set forth herein.
Based upon the foregoing, we are of the opinion that the descriptions
set forth under the caption "United States Federal Income Tax Consequences"
in the Preliminary Prospectus dated October 1, 1999 (the "Prospectus") for
the offering of the Preferred Securities included as part of the Registration
Statement, insofar as they relate to matters of law or legal conclusions with
respect to the federal law of the United States, and as limited in the
Prospectus and Registration Statement are correct in all material respects
and are a fair and accurate summary of the material
<PAGE>
OGE Energy Corp.
OGE Energy Capital Trust I
OGE Energy Capital Trust II
October 1, 1999
Page 2
United States federal income tax considerations concerning an investment in
the Preferred Securities as of the date hereof.
This opinion is for your benefit only and may not be cited or relied
upon by any other person without our express written consent. This opinion
is expressed as of the date hereof and undertake no responsibility to advise
you of any subsequent changes of the facts stated or assumed herein or any
subsequent changes in applicable law, including, but not limited to, new
developments in the application or interpretation of the federal income tax
laws.
We hereby consent to the filing of this opinion with the Commission as
part of Exhibit 8.01 to the Registration Statement. We also consent to the
use of our name under the headings "United States Federal Income Tax
Consequences" and "Legal Matters" in the Prospectus.
Very truly yours,
/s/ GARDNER, CARTON & DOUGLAS
<PAGE>
EXHIBIT 12.01
OGE Energy Corp.
S E C Method of
Ratio of Earnings to Fixed Charges
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Year Ended Year Ended Year Ended Year Ended Year Ended Year Ended
Dec 31, 1994 Dec 31, 1995 Dec 31, 1996 Dec 31, 1997 Dec 31, 1998 Jun 30, 1999
--------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Net Income $123,785,002 $125,256,125 $133,331,785 $132,549,628 $165,871,829 $167,223,193
Provision For Income Taxes 72,273,713 70,252,859 77,712,155 76,485,740 108,553,778 104,936,360
Plus Fixed Charges 76,346,348 79,380,098 69,390,216 67,591,372 72,241,733 78,499,882
Total Earnings $272,405,063 $274,889,082 $280,434,156 $276,626,740 $346,667,340 $350,659,435
Fixed Charges:
Long-term debt interest 67,679,872 67,549,226 62,412,619 62,572,384 60,856,017 63,748,409
Other interest expense 7,907,183 11,365,754 6,281,023 4,521,764 10,913,855 13,610,826
Calculated int on
leased property 759,293 465,118 696,574 497,224 471,861 1,140,647
Total Fixed Charges $76,346,348 $79,380,098 $69,390,216 $67,591,372 $72,241,733 $78,499,882
- -----------------------------------------------------------------------------------------------------------------------------------
Ratio of Earnings to Fixed Charges 3.57 3.46 4.04 4.09 4.80 4.47
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
OGE Energy Corp.
S E C Method of
Pro Forma Ratio of Earnings to Fixed Charges
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
Year Ended Six Months Ended
Dec 31, 1998 June 30, 1999
--------------------------------
<S> <C> <C>
Earnings:
Net Income $132,728,000 $ 44,608,000
Plus Income Taxes: 86,913,000 20,522,000
Plus Fixed Charges 115,854,000 60,418,375
Total Earnings $335,495,000 125,548,375
Fixed Charges:
Long-term debt interest 104,468,000 52,059,000
Other interest expense 10,914,000 7,803,000
Calculated int on
leased property 472,000 556,375
Total Fixed Charges $115,854,000 $60,418,375
- -------------------------------------------------------------------------------
Pro Forma Ratio of Earnings to Fixed Charges 2.90 2.08
- -------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT 23.03
CONSENT
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our reports dated January 21,
1999 and August 27, 1999, respectively, included in the OGE Energy Corp. Form
10-K for the year ended December 31, 1998 and Form 8-K Current Report dated
July 13, 1999, as amended September 14, 1999, and to all references to our
Firm included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Oklahoma City, Oklahoma
September 30, 1999
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
WHEREAS, OGE ENERGY CORP., an Oklahoma corporation (herein referred
to as the "Company") is to file with the Securities and Exchange Commission,
under the provisions of the Securities Act of 1933, as amended, a
Registration Statement on Form S-3 relating to the issuance and sale of up to
$210 million principal amount of its subordinated debt securities and
guarantees; and
WHEREAS, each of the undersigned holds the office or offices in the
Company herein below set forth opposite his or her name, respectively.
NOW, THEREFORE, each of the undersigned hereby constitutes and
appoints James R. Hatfield and Steven E. Moore and each of them individually,
his or her attorney, with full power to act for him or her and in his or her
name, place and stead, to sign his or her name in the capacity or capacities
set forth below to the Form S-3 Registration Statement relating to the
issuance and sale of up to $210 million principal amount of the Company's
subordinated debt securities and guarantees and to any and all amendments
(including post-effective amendments) to such Registration Statement, and
hereby ratifies and confirms all that said attorney may or shall lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands
this 15th day of September, 1999.
Steven E. Moore, Director and Principal
Executive Officer /s/ Steven E. Moore
-------------------------------
Herbert H. Champlin, Director /s/ Herbert H. Champlin
-------------------------------
Luke R. Corbett, Director /s/ Luke R. Corbett
-------------------------------
William E. Durrett, Director /s/ William E. Durrett
-------------------------------
Martha W. Griffin, Director /s/ Martha W. Griffin
-------------------------------
Hugh L. Hembree, III, Director /s/ Hugh L. Hembree, III
-------------------------------
Robert Kelley, Director /s/ Robert Kelley
-------------------------------
Bill Swisher, Director /s/ Bill Swisher
-------------------------------
Ronald H. White, M.D., Director /s/ Ronald H. White
-------------------------------
James R. Hatfield, Principal Financial Officer /s/ James R. Hatfield
-------------------------------
Donald R. Rowlett, Principal Accounting
Officer /s/ Donald R. Rowlett
-------------------------------
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------------------
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION UNDER THE
TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
BANK OF OKLAHOMA, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
Oklahoma 73-0780382
(State of Incorporation) (I.R.S. employer
identification number)
Bank of Oklahoma Tower
P.O. Box 2300
Tulsa, Oklahoma 74192
(Address of Principal Executive Offices) (Zip Code)
Frederic Dorwart
Old City Hall
124 East Fourth Street
Tulsa, Oklahoma 74103-5010
Phone (918) 583-9922
(Name, address and telephone number of agent for service)
-------------------------------------------
OGE ENERGY CORP.
(Exact name of obligor as specified in its charter)
incorporated under the laws of the
State of Oklahoma 73-1481638
(State or other jurisdiction of (I.R.S. employer
incorporation or organization identification number)
321 North Harvey Avenue
Oklahoma City, Oklahoma 73102
(Address of Principal Executive Offices) (Zip Code)
____% Junior Subordinated Debentures, Due 2039
(Title of the indenture securities)
Page 1 of 66
<PAGE>
1. GENERAL INFORMATION.
Furnish the following information as to the trustee -
(a) Name and address of each examining or supervising
authority to which it is subject.
Primary Regulator:
Office of the Comptroller of the Currency
Southwestern Region
1600 Lincoln Plaza
500 Akard
Dallas, TX 75201-3394
Federal Reserve Bank of Kansas City
925 Grand Avenue
Kansas City, MO 64198
Federal Deposit Insurance Corporation
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None. See note following item 16 hereof.
3. VOTING SECURITIES OF THE TRUSTEE.*
Furnish the following information as to each class of voting
securities of the trustee:
As of 12-31-98
<TABLE>
<CAPTION>
Col. A Col B.
Title of Class Amount of Outstanding
-------------- ---------------------
<S> <C>
Common Stock, $100 par value 500,000 shares
</TABLE>
- ----------------------
* All of the outstanding voting securities of the trustee are
owned directly (88%) by BOK Financial Corporation, an Oklahoma Corporation. BOK
Financial Corporation is a bank holding company subject to regulation by the
Federal Reserve Board pursuant to the Bank Holding Company Act. George B.
Kaiser, Chairman of the Board of Directors, owns approximately 78.6% of the
outstanding voting securities of BOK Financial Corporation. Answers herein
concerning voting securities of the trustee owned by third parties relate to the
outstanding voting securities of BOK Financial Corporation. As of December 31,
1998, there were 45,100,440 shares of $.00006 par value common stock of BOK
Financial Corporation outstanding. Answers to all other items of this statement
of eligibility and qualification on Form T-1 relate to the trustee only, and do
not contain information regarding BOK Financial Corporation.
Page 2 of 66
<PAGE>
4. TRUSTEESHIPS UNDER OTHER INDENTURES.
If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information:
(a) Title of the securities outstanding under each other
indenture:
$32,400,000 - Muskogee Industrial Trust Adjustable Rate
Pollution Control Revenue Bonds, 1995 Series A.
$47,000,000 - Garfield County Industrial Authority Adjustable
Rate Pollution Control Revenue Refunding Bonds, 1995 Series A.
$56,000,000 - Muskogee Industrial Trust Pollution Control
Revenue Bonds, 1987 Series A.
$18,941,111 - Oklahoma Gas and Electric Consumer Loan
Receivables Trust 1998-1
(b) A brief statement of the facts relied upon as a basis for the
claim that no conflicting interest within the meaning of
Section 310(b) (1) of the Trust Indenture Act of 1939 (the
"Act") as a result of the trusteeship under any such other
indenture, including a statement as to how the indenture
securities will rank as compared with the securities issued
under such other indenture.
The securities outstanding listed above in 4(a) are not in
default, therefore, a conflict of interest does not exist.
Our current relationship of securities outstanding listed in
4(a) above are revenue bonds and asset backed notes, as
compared to subordinated debt securities.
5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS.
If the trustee or any of the directors or executive officers of the
trustee is a director, officer, partner, employee, appointee, or representative
of the obligor or of any underwriter for the obligor, identify each such person
having any such connection and state the nature of each such connection.
Bank of Oklahoma, National Association is a wholly owned
subsidiary BOK Financial Corporation. William E. Durret is a
Director of BOK Financial Corporation and Oklahoma Gas and
Electric Company.
6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner and
executive officer of the obligor.
As of 12-31-98
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
Percentage of
Voting Securities
Represented by
Amount Owned Amount Given in
Name of Owner Title of Class Beneficially Col. C
------------- -------------- ------------ ------
<S> <C> <C> <C>
William E. Durret Common Stock 124,150 *
</TABLE>
*Less than one percent (1%)
Page 3 of 66
<PAGE>
7. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE UNDERWRITERS OR ITS
OFFICIALS.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner, and executive officer of each such underwriter.
As of 9-28-99
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
Percentage of
Voting Securities
Represented by
Amount Owned Amount Given in
Name of Owner Title of Class Beneficially Col. C
------------- -------------- ------------ ------
<S> <C> <C> <C>
</TABLE>
None. See note following item 16 hereof.
8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for obligation in default by the
trustee.
As of 9-28-99
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
Amount Owned
Whether the Beneficially Percent of
securities or Held as Col- Represented
are voting ateral Security by Amount
or nonvoting for Obligations Given in
Title of Class securities In default Col. C
-------------- ---------- ---------- ------
<S> <C> <C> <C>
</TABLE>
None.
9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of any underwriter for the obligor,
furnish the following information as to each class of securities of such
underwriter any of which are so owned or held by the trustee:
As of 9-28-99
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
Amount Owned Percent of
Beneficially Voting
or Held as Col- securities
Title of ateral Security Represented by
Issuer and Amount of for Obligations Amount Given
Title of Class Outstanding in default by Trustee in Col. C
-------------- ----------- --------------------- ---------
<S> <C> <C> <C>
</TABLE>
None. See note following item 16 hereof.
Page 4 of 66
<PAGE>
10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge of
the trustee (1) owns 10 percent or more of the voting securities of the obligor
or (2) is an affiliate, other than a subsidiary, of the obligor, furnish the
following information as to the voting securities of such person.
As of 9-28-99
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
Amount Owned
Beneficially or Percentage of
Held as Collateral Class Represented
Title of Security for Obli- by Amount
Issuer and Amount gations in default Given in
Title of Class Outstanding by Trustee Col. C
-------------- ----------- ---------- ------
<S> <C> <C> <C>
</TABLE>
None.
11. OWNERSHIP OR HOLDING BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who to the knowledge of the
trustee, owns 50 percent or more of the voting securities of the obligor,
furnish the following information as to each class of securities of such person
any of which are so owned or held by the trustee:
As of 9-28-99
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
Amount Owned
Beneficially or Percentage of
Held as Collateral Class Represented
Title of Security for Obli- by Amount
Issuer and Amount gations in default Given in
Title of Class Outstanding by Trustee Col. C
-------------- ----------- ---------- ------
<S> <C> <C> <C>
</TABLE>
None.
12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
Except as noted in the instructions, if the obligor is indebted to the
trustee, furnish the following information:
<TABLE>
<CAPTION>
Col. A Col. B Col. C
Nature of Indebtedness Amount Outstanding Date Due
---------------------- ------------------ --------
<S> <C> <C>
Line of Credit (Commercial) -0- 06-29-2000
Line of Credit (Revolving) $560,000,000
</TABLE>
Page 5 of 66
<PAGE>
13. DEFAULTS BY THE OBLIGOR.
(a) State whether there is or has been a default with respect to
the securities under this indenture. Explain the nature of any
such default.
The securities issued under this indenture have never been in
default and are currently not in default.
(b) If the trustee is a trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the obligor are
outstanding, or is trustee for more than one outstanding
series of securities under the indenture, state whether there
has been a default under any such indenture or series,
identify the indenture or series affected and explain the
nature of any such default.
None.
14. AFFILIATIONS WITH THE UNDERWRITERS.
If any underwriter is an affiliate of the trustee, describe
each such affiliation.
None. See note following item 16 hereof.
15. FOREIGN TRUSTEE.
Identify the order or rule pursuant to which the foreign
trustee is authorized to act as sole trustee under indentures qualified
or to be qualified under the Act.
Not applicable. The trustee is not a foreign trustee.
16. LIST OF EXHIBITS.
List below all exhibits filed as a part of this statement of
eligibility and qualification.
(1) A copy of the articles of association of the trustee as now in
effect.
(2) A copy of the certificate of authority of the trustee to
commence business.
(3) A copy of the authorization of the trustee to exercise
Corporate Trust powers.
(4) A copy of the existing bylaws of the trustee.
(5) The consents of United States institutional trustees required
by Section 321(b) of the Act.
(6) A copy of the latest report of condition of the trustee.
Page 6 of 66
<PAGE>
NOTE
To the best of the knowledge and belief of the trustee, there is no
person, firm or corporation ordinarily engaged in underwriting securities of
private corporations: (1) which is an affiliate of the trustee; (2) of which any
director or executive officer of the trustee is a director, officer, partner,
employee appointee or representative; (3) which together with its directors,
partners and executive officers, taken as a group, owns beneficially more than
one percent (1%) of the voting securities of BOK Financial Corporation; or (4)
whose securities of any class are owned beneficially by the trustee or held by
the trustee as collateral security for obligations in default in excess of one
percent (1%) of the outstanding securities of such class. In answering any item
in this statement of eligibility and qualification which relates to matters
peculiarly within the knowledge of the obligor or any underwriter for the
obligor, the trustee has relied upon information furnished to it by the obligor
or the underwriters and the trustee disclaims responsibility for the accuracy
and completeness of such information.
-------------------------------------------
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
Bank of Oklahoma, National Association, a corporation organized and existing
under the laws of the State of Oklahoma, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Oklahoma City and the State of
Oklahoma, on the 28th day of September, 1999.
Bank of Oklahoma, National Association
By: /s/ Timothy M. Cook
-----------------------------------
Timothy M. Cook
Vice President and Trust Officer
Attest: /s/ Rachel Redd-Singleton
------------------------------
Rachel Redd-Singleton
Assistant Vice President
and Trust Officer
Page 7 of 66
<PAGE>
Exhibit 1
Bank Of Oklahoma,
National Association
Charter No. 13679
Amended and Restated
Articles of Association
As of January 26, 1993
FIRST. The title of this Association shall be "Bank Of Oklahoma,
National Association". This Association was first organized in 1910 as The
Exchange National Bank of Tulsa. In 1933 this Association was reorganized as
The National Bank of Tulsa. In 1975 the name of this Association was changed
to Bank of Oklahoma, National Association.
SECOND. The main office of the Association shall be in the City of
Tulsa, County of Tulsa, State of Oklahoma. The general business of the
Association shall be conducted at its main office and its branches.
THIRD. The Board of Directors of this Association shall consist of
not less than five nor more than twenty-five persons, the exact number to be
fixed and determined from time to time by resolution of a majority of the
full Board of Directors or by resolution of a majority of the holders of
outstanding Common Stock at any annual or special meeting thereof. If
required by applicable law, each director shall own common stock of the
Association with an aggregate par value of not less than $1,000, or common
stock of a bank holding company owning the Association with an aggregate par,
fair market or equity value of not less than $1,000, as of either (i) the
date of purchase, (ii) the date the person became a director or (iii) the
date of that person's most recent election to the Board of Directors,
whichever is greater.
Any vacancy in the Board of Directors may be filled by action of a
majority of the remaining directors between meetings of shareholders. The
Board of Directors may not increase the number of directors between meetings
of shareholders to a number which: (1) exceeds by more than two the number of
directors last elected by shareholders where the number was 15 or less; and
(2) exceeds by more than four the number of directors last elected by
shareholders where the number was 16 or more, but in no event shall the
number of directors exceed 25.
Terms of directors, including directors selected to fill vacancies,
shall expire at the next regular meeting of shareholders at which directors
are elected, unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall
continue to serve until his or her successor is elected and
Page 8 of 66
<PAGE>
Exhibit 1
qualifies or until there is a decrease in the number of directors and his or
her position is eliminated.
Honorary or advisory members of the Board of Directors, without
voting power or power of final decision in matters concerning the business of
the Association, may be appointed by resolution of a majority of the full
Board of Directors, or by resolution of shareholders at any annual or special
meeting. Honorary or advisory directors shall not be counted for purposes of
determining the number of directors of the Association or the presence of a
quorum in connection with any Board action, and shall not be required to own
qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to
elect directors and transact whatever other business may be brought before
the meeting. It shall be held at the main office or any other convenient
place the Board of Directors may designate, on the day of each year specified
therefor in the bylaws, or if that day falls on a legal holiday in the state
in which the Association is located, on the next following banking day. If no
election is held on the day fixed or in the event of a legal holiday, an
election may be held on any subsequent day within 60 days of the day fixed,
to be designated by the Board of Directors, or, if the directors fail to fix
the day, by shareholders representing two-thirds of the shares issued and
outstanding. In all cases at least 10 days advance notice of the meeting
shall be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common
shareholder may cast will be determined by multiplying the number of shares
he or she owns by the number of directors to be elected. Those votes may be
cumulated and cast for a single candidate or may be distributed among two or
more candidates in the manner selected by the shareholder. On all other
questions, each common shareholder shall be entitled to one vote for each
share of stock held by him or her.
Nominations for election to the Board of Directors may be made by
the Board of Directors or by any stockholder of any outstanding class of
capital stock of the Association entitled to vote for election of directors.
Nominations other than those made by or on behalf of the existing management
shall be made in writing and be delivered or mailed to the President of the
Association and to the Comptroller of the Currency, Washington, D.C., not
less than 14 days nor more than 50 days prior to any meeting of shareholders
called for the election of directors; provided, however, that if less than 21
days notice of the meeting is given to shareholders, such nominations shall
be mailed or delivered to the President of the Association and to the
Comptroller of the Currency not later than the close of business on the
seventh day following the day on which the notice of meeting was mailed. Such
notification shall contain the following information to the extent known to
the notifying shareholder:
2
Page 9 of 66
<PAGE>
Exhibit 1
(1) The name and address of each proposed nominee,
(2) The principal occupation of each proposed nominee,
(3) The total number of shares of capital stock of the Association
that will be voted for each proposed nominee,
(4) The name and residence address of the notifying shareholder, and
(5) The number of shares of capital stock of the Association owned
by the notifying shareholder.
Nominations not made in accordance herewith may, in his/her
discretion, be disregarded by the chairperson of the meeting, and in
determining the vote tellers may upon directions by the chairperson disregard
all votes cast for each such nominee. No bylaw may unreasonably restrict the
nomination of directors by shareholders.
A director may resign at any time by delivering written notice to
the Board of Directors, its chairperson, or to the Association, which
resignation shall be effective when the notice is delivered unless the notice
specifies a later effective date.
A director may be removed with or without cause by shareholders at
a meeting called to remove him or her, when notice of the meeting stating
that the purpose or one of the purposes is to remove him or her is given;
provided, however, that a director may not be removed if the number of votes
sufficient to elect him or her under cumulative voting is voted against his
or her removal.
FIFTH. The authorized amount of capital stock of this Association
shall be 20,000 shares of Common Stock of the par value of $3.46 each; but
said capital stock may be increased or decreased from time to time, according
to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the
Association shall have any preemptive or preferential right of subscription
to any shares of any class of stock of the Association, whether now or
hereafter authorized, or to any obligations convertible into stock of the
Association, issued, or sold, nor any right of subscription to any thereof
other than such, if any, as the Board of Directors, in its discretion, may
from time to time determine and at such price as the Board of Directors, in
its discretion, may from time to time fix.
Unless otherwise specified in the Articles of Association or
required by law (1) all matters requiring shareholder action including
amendments to the Articles of Association must be approved by holders of a
majority of the outstanding voting stock, and (2) each shareholder shall be
entitled to one vote per share.
3
Page 10 of 66
<PAGE>
Exhibit 1
Unless otherwise specified in the Articles of Association or
required by law, all shares of voting stock shall be voted together as a
class, on any matters requiring shareholder approval. If a proposed
amendment would affect two or more classes or series in the same or a
substantially similar way, all the classes or series so affected must vote
together as a single voting group on the proposed amendment.
Shares of the same class or series may be issued as a dividend on a
pro rata basis and without consideration. Shares of another class or series
may be issued as a share dividend in respect of a class or series of stock if
approved by a majority of the votes entitled to be cast by the class or
series to be issued unless there are no outstanding shares of the class or
series to be issued. Unless otherwise provided by the Board of Directors,
the record date for determining shareholders entitled to a share dividend
shall be the date the Board of Directors authorizes the share dividend.
Unless otherwise provided in the bylaws, the record date for
determining shareholders entitled to notice of and to vote at any meeting is
the close of business on the day before the first notice is mailed or
otherwise sent to the shareholders, provided that in no event may a record
date be more than 70 days before the meeting.
If a shareholder is entitled to fractional shares pursuant to a
stock dividend, consolidation or merger, reverse stock split or otherwise,
the Association may: (a) issue fractional shares or; (b) in lieu of the
issuance of fractional shares, issue script of warrants entitling the holder
to receive a full share upon surrendering enough script or warrants to equal
a full share; (c) if there is an established and active market in the
association's stock, make reasonable arrangements to provide the shareholder
with an opportunity to realize a fair price through sale of the fraction, or
purchase of the additional fraction required for a full share; (d) remit
the cash equivalent of the fraction to the shareholder; or (e) sell full
shares representing all the fractions at public auction or to the highest
bidder after having solicited and received sealed bids from at least three
licensed stock brokers; and distribute the proceeds pro rata to shareholders
who otherwise would be entitled to the fractional shares. The holder of a
fractional share is entitled to exercise the rights of a shareholder,
including the right to vote, to receive dividends, and to participate in the
assets of the Association upon liquidation, in proportion to the fractional
interest. The holder of script or warrant is not entitled to any of these
rights unless the script or warrants explicitly provide for such rights. The
script or warrants may be subject to such additional conditions as: (1) the
script or warrants will become void if not exchanged for full shares before a
specified date; and (2) that the shares for which the script or warrants are
4
Page 11 of 66
<PAGE>
Exhibit 1
exchangeable may be sold at the option of the Association and the proceeds
paid to scriptholders.
The Association, at any time and from time to time, may authorize
and issue debt obligations, whether or not subordinated, without the approval
of the shareholders. Obligations classified as debt, whether or not
subordinated, which may be issued by the Association without the approval of
shareholders, do not carry voting rights on any issue, including an increase
or decrease in the aggregate number of the securities, or the exchange or
reclassification of all or part of securities into securities of another
class or series.
SIXTH. The Board of Directors shall appoint one of its members to
be Chairman of the Board, who shall perform such duties as may be designated
by the Board of Directors. The Board of Directors shall have the power to
appoint a President - Tulsa Regional Office, and a President - Oklahoma City
Regional Office, each of whom shall perform such duties as may be designated
by the Board of Directors or the Chairman of the Board. The Board of
Directors shall also have the power to appoint one or more vice presidents, a
secretary who shall keep minutes of the directors' and shareholders' meetings
and be responsible for authenticating the records of the Association, and
such other officers and employees as may be required to transact the business
of this Association. A duly appointed officer may appoint one or more
officers or assistant officers if authorized by the Board of Directors in
accordance with the bylaws.
The Board of Directors shall have the power to:
(1) Define the duties of the officers, employees and agents
of the Association.
(2) Delegate the performance of its duties, but not the
responsibility for its duties, to the officers, employees, and agents
of the Association.
(3) Fix the compensation and enter into employment contracts
with its officers and employees upon reasonable terms and conditions
consistent with applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the
penalty thereof.
(6) Ratify written policies authorized by the Association's
management or committees of the Board.
(7) Regulate the manner in which any increase or decrease of
the capital of the Association shall be made, provided that nothing
herein shall restrict the power of
5
Page 12 of 66
<PAGE>
Exhibit 1
shareholders to increase or decrease the capital of the Association
in accordance with law, and nothing shall raise or lower from
two-thirds the percentage required for shareholder approval to
increase or reduce the capital.
(8) Manage and administer the business and affairs of the
Association.
(9) Adopt bylaws, not inconsistent with law or the Articles
of Association, for managing the business and regulating the affairs
of the Association.
(10) Amend or repeal bylaws, except to the extent that the
Articles of Association reserve this power in whole or in part to
shareholders.
(11) Make contracts.
(12) Generally to perform all acts that are legal for a Board
of Directors to perform.
SEVENTH. The Board of Directors shall have the power to change the
location of the main office to any other place within the limits of the City
of Tulsa, without the approval of the shareholders, and shall have the power
to establish or change the location of any branch or branches of the
Association to any other location permitted under applicable law, without
the approval of the shareholders, but subject in either event to approval
by the Office of the Comptroller of the Currency if required by applicable law.
EIGHTH. The corporate existence of this Association shall continue
until terminated according to the laws of the United States.
NINTH. The Board of Directors of this Association, or any three or
more shareholders owning, in the aggregate, not less than twenty-five percent
(25%) of the outstanding Common Stock of this Association, may call a special
meeting of shareholders at any time. Unless otherwise provided by the bylaws
or the laws of the United States, or waived by shareholders, a notice of the
time, place, and purpose of every annual and special meeting of the
shareholders shall be given by first-class mail, postage prepaid, mailed at
least 10, and no more than 60 days, prior to the date of the meeting to each
shareholder of record at his/her address as shown upon the books of this
Association.
TENTH. (A) Directors of the Association shall not be personally
liable to the Association or its shareholders for monetary damages for breach
of fiduciary duty as a director; provided, however, that the foregoing clause
shall not apply to any liability of a Director (1) for breach of the
director's duty of loyalty to the Association or its shareholders, (2) for
acts or
6
Page 13 of 66
<PAGE>
Exhibit 1
omissions not in good faith or which involve intentional misconduct or a
knowing violation of the law, (3) for the payment of unlawful dividends, or
(4) for any transaction from which the director derived an improper personal
benefit.
(B) The Association shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Association)
by reason of the fact that he is or was a director, officer, employee or
agent of the Association, or is or was serving at the request of the
Association as a director, officer, employee or agent of another association,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit
or proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Association, and
with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of
NOLO CONTENDERE or its equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Association,
and, with respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
(C) The Association shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Association to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the Association, or is or was serving at the
request of the Association as a director, officer, employee or agent of
another Association, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Association and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Association
unless and only to the extent that a court of competent jurisdiction shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the court shall
deem proper.
(D) To the extent that a director, officer, employee or
agent of the Association has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to
7
Page 14 of 66
<PAGE>
Exhibit 1
in paragraphs (B) and (C) of this Article, or in defense of any claim, issue
or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
(E) Any indemnification under paragraphs (B) and (C) of
this Article (unless ordered by a court) shall be made by the Association only
as authorized in the specific case upon a determination that indemnification
of the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth therein.
Such determination shall be made (1) by the Board of Directors by a majority
vote of a quorum (as directed in the bylaws of the Association) consisting of
directors who were not parties to such action, suit or proceeding, or (2) if
such quorum is not obtainable, or even if obtainable a quorum of disinterested
directors so elects, by independent legal counsel in a written opinion, or
(3) by the shareholders.
(F) Expenses incurred by an officer or director in
defending a civil or criminal action, suit or proceeding may be paid by the
Association in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Association as authorized in this
Article. Such expenses incurred by other employees and agents may be so paid
upon such terms and conditions, if any, as the Board of Directors deems
appropriate.
(G) The indemnification and advancement of expenses
provided by or granted pursuant to this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any statute, bylaw, agreement,
vote of shareholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office.
(H) The indemnification and advancement of expenses
provided by or granted pursuant to this Article shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit
of the heirs, executors and administrators of such a person.
(I) By action of its Board of Directors, notwithstanding
any interest of the directors in the action, the Association may purchase and
maintain insurance, in such amounts as the Board of Directors deems
appropriate, on behalf of any person who is or was a director, officer,
employee or agent of the Association, or of any association a majority of the
voting stock of which is owned by the Association, or is or was serving at
the request of the
8
Page 15 of 66
<PAGE>
Exhibit 1
Association as a director, officer, employee or agent of another association,
partnership, joint venture, trust or other enterprise, against any liability
asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the Association would have the power or
would be required to indemnify him against such liability under the
provisions of this Article or any other applicable law; provided, however,
that such insurance shall exclude coverage for a formal order assessing civil
money penalties against a director, officer, employee or agent of the
Association.
(J) The term director as used herein shall include
persons serving as advisory directors, senior directors or directors emeritus
or any other similar advisory capacity to the Board of Directors of the
Association.
(K) Notwithstanding any provision to the contrary
contained herein, the Association shall not indemnify directors, officers or
employees against expenses, penalties or other payments incurred in an
administrative proceeding or action instituted by an appropriate Bank
regulatory agency, which proceeding or action results in a final order
assessing civil money penalties or requiring affirmative action by an
individual or individuals in the form of payments to the Association;
provided, however that the Association shall advance expenses to a director,
officer or employee incurred in connection with the defense of any such
action if:
(1) The indemnitee enters into an agreement
satisfactory to the Association pursuant to which the
indemnitee shall reimburse any expenses advanced if (a) a
final order is entered in the action assessing civil money
penalties or requiring payments to the Association, or (b)
if the Board of Directors of the Association finds that the
indemnitee willfully misrepresented factors relevant to the
Board's determination of conditions described in (2)(a) or
(b) below;
(2) Prior to making any advances, the Board of the
Association, in good faith, determines in writing that all
of the following conditions are met: (a) the indemnitee has
a substantial likelihood of prevailing on the merits; (b) in
the event that the indemnitee does not prevail, he or she
will have the financial capability to reimburse the
Association; and (c) payment of expenses by the Association
will not adversely affect Bank safety and soundness; and
(3) If at any time the Board of the Association
believes, or should reasonably believe, that the conditions
described in (2)(a), (2)(b) or (2)(c) are no longer met,
the Association shall cease paying any such expenses.
9
Page 16 of 66
<PAGE>
Exhibit 1
ELEVENTH. These Articles of Association may be amended at any
regular or special meeting of the shareholders by the affirmative vote of the
holders of a majority of the outstanding Common Stock of this Association,
unless the vote of the holders of a greater amount of stock is required by
law, and in that case by the vote of the holders of such greater amount. The
Association's Board of Directors may purpose one or more amendments to the
Articles of Association for submission to the shareholders.
10
Page 17 of 66
<PAGE>
Exhibit 2
[LOGO]
- ------------------------------------------------------------------------------
Comptroller of the Currency
Administrator of National Banks
- ------------------------------------------------------------------------------
Washington, D.C. 20219
November 24, 1986
Mr. William B. Fader
Executive Vice President
Bank of Oklahoma, Tulsa, N.A.
Post Office Box 2300
Tulsa, Oklahoma 74192
Dear Mr. Fader:
This letter is the official approval of the Comptroller of the Currency to
merge Bank of Oklahoma, Oklahoma City, National Association with and into
Bank of Oklahoma, Tulsa, National Association under the charter of the latter
and with the title of Bank of Oklahoma, National Association.
This is also the official approval given to Bank of Oklahoma, Tulsa, National
Association, Charter No. 13679, the receiving institution, to operate the
presently existing branches and main office of Bank of Oklahoma, Oklahoma
City, National Association, as branches of the receiving institution.
Sincerely,
/s/ Ballard Gilmore
Ballard C. Gilmore
Director for Corporate Activity
Bank Organization and Structure
Charter No. 13679
-----
Page 18 of 66
<PAGE>
Exhibit 2
SECRETARY'S CERTIFICATE
OF CORPORATE RESOLUTION
-----------------------
1. I hereby certify that I am the Secretary to the Board of Directors
of Bank of Oklahoma, N.A., located in Tulsa, State of Oklahoma, and that I
have been duly appointed and am presently serving in that capacity in
accordance with the bylaws of the bank.
2. I further certify that at a meeting of the Board of Directors of
Bank of Oklahoma, N.A., duly called for and convened on the 12th day of
September, 1984, the following resolutions were duly adopted by a majority of
the Board:
SEE ATTACHED RESOLUTIONS
OF BOARD OF DIRECTORS
The foregoing resolutions are presently in full force and effect and
have not been revoked or rescinded as of the date hereof.
IN WITNESS WHEREOF, I have hereupon set the seal of this National
Association this 26th day of November, 1984.
/s/ [ILLEGIBLE]
---------------------------
Secretary
[Seal of Bank]
Page 19 of 66
<PAGE>
Exhibit 2
BANK OF OKLAHOMA, N.A.
REGULAR MEETING OF BOARD OF DIRECTORS
SEPTEMBER 12, 1984
RESOLUTIONS TO RECOMMEND CHANGE OF NAME
AND AMENDMENTS TO ARTICLES OF ASSOCIATION
AND TO AUTHORIZE NECESSARY ACTIONS
WHEREAS, the Board of Directors has reviewed the possibility of changing
the name of Bank of Oklahoma, N.A., to Bank of Oklahoma, Tulsa, N.A., and the
advantages thereof, and after due consideration, has found that such change
of name would be in the best interest of the bank and of its stockholders;
therefore, it is
RESOLVED, that the Board of Directors hereby recommends that the name of
the bank be changed from Bank of Oklahoma, N.A., to Bank of Oklahoma, Tulsa,
N.A.; and it is further
RESOLVED, that the Board of Directors hereby authorizes the Chairman of
the Board of the bank to call a special meeting of the stockholders of the
bank to consider the recommendation of the Board of Directors to change the
name of the bank to Bank of Oklahoma, Tulsa, N.A., to amend the Articles of
Association of the bank to reflect such change, and to authorize the Chairman
of the Board of the bank and such other persons as he may employ or direct to
effect such change; and it is further
RESOLVED, that the Board of Directors hereby designates the Chairman of
the Board of the bank and such other persons as he may direct or employ as
the agent or agents of the bank to take all necessary steps to effect the
change of name herein resolved.
/s/ [ILLEGIBLE]
---------------------------
Secretary
Page 20 of 66
<PAGE>
Exhibit 2
COMPTROLLER OF THE CURRENCY
[PHOTO]
UNITED STATES DEPARTMENT OF THE TREASURY
WASHINGTON, D.C.,
WHEREAS, "BANK OF OKLAHOMA, NATIONAL ASSOCIATION", LOCATED IN TULSA, STATE OF
OKLAHOMA, BEING A NATIONAL BANKING ASSOCIATION ORGANIZED UNDER THE STATUTES
OF THE UNITED STATES, HAS MADE APPLICATION TO THE COMPTROLLER OF THE CURRENCY
FOR HIS APPROVAL TO CHANGE THE LOCATION OF ITS MAIN OFFICE FROM 320 SOUTH
BOSTON AVENUE, TULSA, OKLAHOMA, TO BANK OF OKLAHOMA TOWER, TULSA, OKLAHOMA.
NOW, THEREFORE, IT IS HEREBY CERTIFIED THAT APPROVAL IS GIVEN TO
THE ABOVE NAMED ASSOCIATION TO MOVE ITS MAIN OFFICE TO SUCH NEW LOCATION.
IN TESTIMONY WHEREOF, WITNESS MY SIGNATURE AND SEAL OF OFFICE THIS
1ST DAY OF NOVEMBER, 1976.
[SEAL] /s/ Robert Bloom
Acting COMPTROLLER OF THE CURRENCY
CHARTER NO. 13679.
Page 21 of 66
<PAGE>
Exhibit 2
CERTIFICATE
TREASURY DEPARTMENT )
Office of ) ss:
Comptroller of the Currency )
I, James E. Smith, Comptroller of the Currency, do hereby certify that
the document hereto attached is a true and complete copy, as recorded in this
office, of the certificate authorizing a change of name, dated June 24,
1975, of National Bank of Tulsa, Tulsa, Oklahoma, "Bank of Oklahoma, N.A.",
effective July 1, 1975.
IN TESTIMONY WHEREOF, I have hereunto subscribed
my name and caused the seal of Office of the
Comptroller of the Currency to be affixed to
[SEAL] these presents at the Treasury Department, in
the City of Washington and District of Columbia,
this 24th day of June, A.D. 1975.
/s/ James E. Smith
-----------------------------------------------
Comptroller of the Currency
Page 22 of 66
<PAGE>
Exhibit 2
COMPTROLLER OF THE CURRENCY
[PHOTO]
UNITED STATES DEPARTMENT OF THE TREASURY
WASHINGTON, D.C.,
WHEREAS, SATISFACTORY NOTICE HAS BEEN TRANSMITTED TO THE COMPTROLLER OF
THE CURRENCY EVIDENCING THAT ALL REQUISITE LEGAL AND CORPORATE ACTION HAS
BEEN TAKEN BY NATIONAL BANK OF TULSA, LOCATED IN TULSA, STATE OF OKLAHOMA, IN
ACCORDANCE WITH THE STATUTES OF THE UNITED STATES, TO AUTHORIZE A CHANGE OF
THE NAME OF THAT ASSOCIATION TO BANK OF OKLAHOMA, N.A.
NOW, THEREFORE, IT IS HEREBY CERTIFIED THAT SUCH CHANGE OF NAME OF
SAID ASSOCIATION IS APPROVED EFFECTIVE JULY 1, 1975.
IN TESTIMONY WHEREOF, WITNESS MY SIGNATURE AND SEAL OF OFFICE THIS
24TH DAY OF JUNE, 1975.
/s/ James E. Smith
COMPTROLLER OF THE CURRENCY
CHARTER NO. 13679
Page 23 of 66
<PAGE>
Exhibit 3
EXCERPT OF BANK OF OKLAHOMA, N.A. RESOLUTION
***
BE IT FURTHER RESOLVED that the Executive Vice President and Senior Trust
Officer shall have the following powers and duties, in addition to those
hereinabove set forth:
1. He shall be responsible for the executive management of the Trust
Division, and shall, have authority to execute, on the behalf of
the Bank, contracts, documents or papers pertaining to the
performance by the Trust Division of fiduciary powers of the Bank,
and, if necessary, to cause the seal of the Bank to be affixed
thereto; and he is hereby authorized and empowered to sell, assign,
transfer and deliver any and all shares of stocks, bonds,
debentures, notes, evidences of indebtedness, or other securities
now or hereafter standing in the name of the Bank in any fiduciary
capacity, and to make, execute and deliver, any and all written
instruments necessary or proper to effectuate the authority hereby
conferred...
***
All other officers and agents designated by the Board of Directors and
assigned to the Trust Division shall, under the supervision of the Executive
Vice President and Senior Trust Officer, perform any duties as may be
required of such last named officer or agent, and may exercise any of the
powers and authorities by this Resolution vested in him;...
CERTIFICATION
I, the undersigned, Secretary of Bank of Oklahoma, N.A. hereby certify
that the above is a true and correct excerpt from the Resolution of the Board
of Directors of Bank of Oklahoma, N.A. establishing its Trust Division,
passed at a regular monthly meeting of the same, as reflected by the Minutes
in the Minute Book of said Bank, and I further certify that at said meeting a
quorum of the Directors was present and voting throughout, and I further
certify that the following officers and agents are duly elected, qualified
and now acting:
Dated this _____ day of ___________________, 1999.
/s/ Frederic Darwart
- --------------------------------------
Secretary
Bank of Oklahoma, National Association
Page 24 of 66
<PAGE>
EXHIBIT 3
BANK OF OKLAHOMA, N.A. - TRUST - AUTHORIZED SIGNATURES AND INITIALS
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
JANUARY 1999 APPROVAL: /s/ Timothy M. Cook APPROVAL: /s/ H. James Holloman
------------------------ ----------------------
DEPARTMENT MANAGER DIVISION MANAGER
- -----------------------------------------------------------------------------------------------------------------------------------
DEPARTMENT: CORPORATE TRUST
- -----------------------------------------------------------------------------------------------------------------------------------
600024642 207923401 600809107 103503051 207938449 NAME SIGNATURE INITIALS
Trust Funds EB Pension Trust Voucher Corp Trust BOTTC
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
X X Barbara E. Bailey /s/ Barbara E. Bailey BB
- -----------------------------------------------------------------------------------------------------------------------------------
X X Sandy L. Collins /s/ Sandy L. Collins SC
- -----------------------------------------------------------------------------------------------------------------------------------
X X Timothy M. Cook /s/ Timothy M. Cook TC
- -----------------------------------------------------------------------------------------------------------------------------------
X X X Sherry Farris /s/ Sherry Farris SF
- -----------------------------------------------------------------------------------------------------------------------------------
X X W. Mark McCoy /s/ W. Mark McCoy WMM
- -----------------------------------------------------------------------------------------------------------------------------------
X X X Marrien D. Neilson /s/ Marrien Neilson MN
- -----------------------------------------------------------------------------------------------------------------------------------
X X T. Elaine Patterson /s/ T. Elaine Patterson TP
- -----------------------------------------------------------------------------------------------------------------------------------
X X Rachel U. Redd-Singleton /s/ Rachel Redd-Singleton RS
- -----------------------------------------------------------------------------------------------------------------------------------
X X X Cynthia S. Wilkinson /s/ Cynthia Wilkinson CSW
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 25 of 66
<PAGE>
EXHIBIT 3
BANK OF OKLAHOMA, N.A. - TRUST - AUTHORIZED SIGNATURES AND INITIALS
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
JANUARY 1999 APPROVAL: /s/ [ILLEGIBLE] APPROVAL: /s/ H. James Holloman
------------------------ ----------------------
DEPARTMENT MANAGER DIVISION MANAGER
- -----------------------------------------------------------------------------------------------------------------------------------
DEPARTMENT: PFS/EB - OKC
- -----------------------------------------------------------------------------------------------------------------------------------
600024642 207923401 600809107 103503051 207938449 NAME SIGNATURE INITIALS
Trust Funds EB Pension Trust Voucher Corp Trust BOTTC
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
X X Joe A. Ray /s/ Joe A. Ray JR
- -----------------------------------------------------------------------------------------------------------------------------------
X X Ray F. Kolker /s/ Ray F. Kolker RFK
- -----------------------------------------------------------------------------------------------------------------------------------
X X X Carl L. Shortt, Jr. /s/ Carl L. Shortt, Jr. CLS
- -----------------------------------------------------------------------------------------------------------------------------------
X X Charles S. Turci /s/ Charles S. Turci CT
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 26 of 66
<PAGE>
EXHIBIT 3
BANK OF OKLAHOMA, N.A. - TRUST - AUTHORIZED SIGNATURES AND INITIALS
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
JANUARY 1999 APPROVAL: /s/ Joseph L. Rodanski APPROVAL: /s/ H. James Holloman
------------------------ ----------------------
DEPARTMENT MANAGER DIVISION MANAGER
- -----------------------------------------------------------------------------------------------------------------------------------
DEPARTMENT: TRUST OPERATIONS
- -----------------------------------------------------------------------------------------------------------------------------------
600024642 207923401 600809107 103503051 207938449 NAME SIGNATURE INITIALS
Trust Funds EB Pension Trust Voucher Corp Trust BOTTC
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
X X X N/A X Lori Atwell /s/ Lori Atwell LA
- -----------------------------------------------------------------------------------------------------------------------------------
X X N/A Ryan Campbell /s/ Ryan Campbell RC
- -----------------------------------------------------------------------------------------------------------------------------------
X X X N/A John L. Dulek /s/ John L. Dulek JLD
- -----------------------------------------------------------------------------------------------------------------------------------
X X X N/A X Kimra L. Hays /s/ Kimra L. Hays KH
- -----------------------------------------------------------------------------------------------------------------------------------
X X X N/A X Lee A. Inbody /s/ Lee A. Inbody LI
- -----------------------------------------------------------------------------------------------------------------------------------
X X X N/A X Donnie R. Landis /s/ Donnie R. Landis DL
- -----------------------------------------------------------------------------------------------------------------------------------
X X X N/A X Connie J. Larson /s/ Connie J. Larson CJL
- -----------------------------------------------------------------------------------------------------------------------------------
X X X N/A X Lisa Marrs /s/ Lisa Marrs LM
- -----------------------------------------------------------------------------------------------------------------------------------
X Susan Pricer /s/ Susan Pricer SP
- -----------------------------------------------------------------------------------------------------------------------------------
X X X N/A X Joseph L. Rodanski /s/ Joseph L. Rodanski JLR
- -----------------------------------------------------------------------------------------------------------------------------------
X X X N/A Elaine K. Ryon /s/ Elaine K. Ryon ER
- -----------------------------------------------------------------------------------------------------------------------------------
X X X N/A X B. Ruth Stockham /s/ B. Ruth Stockham RS
- -----------------------------------------------------------------------------------------------------------------------------------
X X N/A Dorothy M. Woods /s/ Dorothy M. Woods DMW
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 27 of 66
<PAGE>
EXHIBIT 3
BANK OF OKLAHOMA, N.A. - TRUST - AUTHORIZED SIGNATURES AND INITIALS
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
JANUARY 1999 APPROVAL: /s/ Joseph L. Rodanski APPROVAL: /s/ H. James Holloman
------------------------ ----------------------
DEPARTMENT MANAGER DIVISION MANAGER
- -----------------------------------------------------------------------------------------------------------------------------------
DEPARTMENT: TRUST OPERATIONS
- -----------------------------------------------------------------------------------------------------------------------------------
600024642 207923401 600809107 103503051 207938449 NAME SIGNATURE INITIALS
Trust Funds EB Pension Trust Voucher Corp Trust BOTTC
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
X X X N/A X Michael L. McCollum /s/ Michael L. McCollum MM
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 28 of 66
<PAGE>
EXHIBIT 3
BANK OF OKLAHOMA, N.A. - TRUST - AUTHORIZED SIGNATURES AND INITIALS
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
JANUARY 1999 APPROVAL: /s/ Joseph L. Rodanski Approval: /s/ H. James Holloman
------------------------ ----------------------
DEPARTMENT MANAGER DIVISION MANAGER
- -----------------------------------------------------------------------------------------------------------------------------------
DEPARTMENT: TRUST OPERATIONS
- -----------------------------------------------------------------------------------------------------------------------------------
700162813 700002389 700002411 966162813 NAME SIGNATURE INITIALS
MMDA Cash Investor Fund Investor Fund MMDA Cash
Sweep Sweep Sweep Sweep-Ark
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
X X X X Anita McLaurin /s/ Anita McLaurin AM
- -----------------------------------------------------------------------------------------------------------------------------------
X X X X Lisa Cox /s/ Lisa Cox LC
- -----------------------------------------------------------------------------------------------------------------------------------
X X X X Lisa Marrs /s/ Lisa Marrs LM
- -----------------------------------------------------------------------------------------------------------------------------------
X X X X B. Ruth Stockham /s/ B. Ruth Stockham RS
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 29 of 66
<PAGE>
EXHIBIT 3
BANK OF OKLAHOMA, N.A. - TRUST - AUTHORIZED SIGNATURES AND INITIALS
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
JANUARY 1999 APPROVAL: APPROVAL: /s/ H. James Holloman
------------------------ ----------------------
DEPARTMENT MANAGER DIVISION MANAGER
- -----------------------------------------------------------------------------------------------------------------------------------
DEPARTMENT: TRUST MANAGEMENT
- -----------------------------------------------------------------------------------------------------------------------------------
600024642 207923401 600809107 103503051 207938449 NAME SIGNATURE INITIALS
Trust Funds EB Pension Trust Voucher Corp Trust BOTTC
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
X X X X X H. James Holloman /s/ H. James Holloman HJH
- -----------------------------------------------------------------------------------------------------------------------------------
X X X X X Lawrence B. Halka /s/ Lawrence B. Halka LBH
- -----------------------------------------------------------------------------------------------------------------------------------
X X X X X Edwin D. Disney /s/ Edwin D. Disney ED
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 30 of 66
<PAGE>
Exhibit 3
EXHIBIT "A"
EXCERPT OF MINUTES OF
DIRECTORS' TRUST COMMITTEE
Pursuant to the authority vested in the Directors' Trust Committee under the
resolution of the Board of Directors of the Bank of Oklahoma dated April 8,
1981 the manager of the Trust Division is hereby directed to establish an
Internal Trust Committee. The manager of the Trust Division is designated as
Chairman of the Internal Trust Committee and shall appoint, with the approval
of the Chief Executive Officer of the bank, at least six trust officers but
not more than ten to serve as committee members. He shall also designate two
additional trust officers to serve as alternates, anyone of whom is
authorized to serve in the place of any regular member who is unable to attend
a committee meeting. The Executive Officers of the bank shall also be members
of this committee. A majority of such committee shall constitute a quorum for
the transaction of business.
The Internal Trust Committee shall have the following duties, powers and
responsibilities to be performed within policies and guidelines which may be
established from time to time by the Directors' Trust Committee:
1. To establish policies for the conduct of fiduciary responsibilities
and obligations of the Trust Division;
2. To review the Administrative practices in the Trust Division to
confirm that accounts are being handled in accordance with division
policies;
3. To coordinate and review the marketing plans of the Trust Division;
4. To review the Security Working List used by the Investment Officers
on a periodic basis and receive recommendations for changes therein
from time to time;
5. To approve all fiduciary appointments accepted or rejected by the
Senior Trust Officers;
6. To receive reports on the termination of all trust estates and other
fiduciary accounts administered by the Trust Division;
7. To review the schedule of fees for trust services;
8. To keep minutes of all meetings of the Internal Trust Committee and
to review the minutes of the Trust Review Committee and Investment
Policy Committee;
Page 31 of 66
<PAGE>
Exhibit 3
9. To perform such other duties as the Directors' Trust Committee, the
Chief Executive Officer of the Bank or the Trust Division Manager may,
from time to time, assign to the Internal Trust Committee.
The manager of the Trust Division is further directed to establish the Trust
Review Committee. The manager of the Trust Investment Department is
designated as chairman. The Committee shall consist of eight to ten members
appointed by the manager of the Trust Division with the approval of the Chief
Executive Officer of the Bank. Two alternate members shall also be appointed
by the division manager. The Executive Officers of the Bank shall also be
members of this committee. A majority of such committee shall constitute a
quorum for the transaction of business.
The Directors' Trust Committee hereby delegates to the Trust Review Committee
the following duties, powers and responsibilities.
1. To review each fiduciary account accepted by the Bank within 60 days
after receipt of the assets or as soon thereafter as practicable;
2. To review each fiduciary account and the assets held by such trust
at least once every 12 month period in accordance with the
requirements of Regulation 9;
3. To review the minutes of the Trust Policy Committee making a record
of such action in the minutes and reviewing the transactions of the
Investment Department to see that they are in conformity with current
policy and that exceptions thereto are documented by the investment
and account officers;
4. To keep minutes of each meeting showing which accounts have been
reviewed, approved, or such other actions which may have been taken by
the committee in connection with the review of the particular
accounts;
5. To perform such other duties as may be assigned to it from time to
time by the Directors' Trust Committee, the Chief Executive Officer
of the Bank or the Trust Division Manager.
The manager of the Trust Division is hereby directed to establish the
Investment Policy Committee. This committee shall consist of eight members
appointed by the manager of the Trust Division with the approval of Chief
Executive Office of the
Page 32 of 66
<PAGE>
Exhibit 3
Bank. The manager of the Trust Division shall serve as Chairman. The
Executive Officers of the Bank shall also be members of this committee. Two
alternate members are to be appointed by the Division Manager. A majority of
such committee shall constitute a quorum for the transaction of business.
This Committee shall have the following duties, priorities and responsibilities:
1. To set Investment Policy for the Trust Division under a monthly
review program which considers the current economic environment;
2. To consider changes, deletions and additions to the working list of
the Investment Department;
3. To review the Common Trust Fund Accounts on each valuation date;
4. To perform such other duties as may be assigned to it from time to
time by the Directors' Trust Committee Chief Executive Officer of the
Bank or by the Trust Division Manager.
The officers assigned to the Trust Division by the Board of Directors and the
management of the Bank shall have the following powers and duties, in
addition to those herein above setforth:
1. The Manager of the Trust Division shall be responsible for the
Executive Management of the Trust Division, and he and the other
trust officers under his supervision shall have the authority to
execute on behalf of the Bank, contracts, documents or papers
pertaining to the performance by the Trust Division of the fiduciary
powers of the bank, and, if necessary, to cause the seal of the bank
to be affixed thereto; and he, and the other officers assigned to
the Trust Division under his supervision, are hereby authorized and
empowered where permitted by the governing instrument of an account
to purchase or otherwise acquire, sell, assign, transfer and deliver
all shares of stocks, bonds, debentures, notes, real estate,
evidence of indebtedness, deeds, conveyances, contracts, including
oil and gas interests of all kinds and of contracts for the
development thereof, and to execute mortgages, and releases of
mortgages on any and all property or securities now or hereafter
standing in the name of the bank in any fiduciary capacity, and to
make, execute and deliver, any and all written instruments necessary
or proper to effectuate the authority
Page 33 of 66
<PAGE>
Exhibit 3
hereby delegated and conferred upon the manager of the Trust Division
and the Trust Officers working under his supervision;
2. Either he, or any other officer of the Trust Division or any other
Trust Operations Officer of the Bank performing operation functions
for the Trust Division, shall have the authority to sign checks
against the balances to the credit of the Trust Division of this
Bank, when such officers are designated by the manager of the Trust
Division and, such checks are countersigned by another of the
designated signatory officers;
3. The Manager, and any Senior Vice President, any Vice President, and
any Trust Officer assigned to the Trust Division will have the
authority to execute acceptances of trusts under the authority
granted by the Directors' Trust Committee and within the policy
guidelines as set out by the Trust Division Manager. Such Officers
are also authorized to qualify the bank as executor administrator,
Guardian Escrow Agent, Investment Agent, Receiver or assignee, and
in any other fiduciary capacity appropriate to the business of the
Trust Division, and in accordance with Trust Division Policies, such
officers shall exercise generally all of the authority vested by the
by-laws of this bank in an Executive Officer thereof, provided at
all questionable matters, which in the opinion of the Division
Manager requires further consideration, shall be submitted to the
Internal Trust Committee before acceptance;
4. The Division Manager will establish policies for the approval for
the invasion of principal and the payments from income in any
account where such payments are discretionary and the Trust Division
Manager may delegate to designated Trust Officer such authority as
he deems appropriate for the exercise of the discretionary powers
conferred upon the bank in its fiduciary capacity in various
accounts.
5. The Division Manager shall cause a report to be made monthly to the
Chief Executive Officer of the Bank, or his designate, summarizing
the operational administrative and financial status of the division.
He shall make such further and additional reports as may be required
from time to time by the Directors' Trust Committee, the Chief
Executive Officer of the Bank, the Comptroller of the Currency or
any governmental agency exercising supervisory powers over the Trust
Division for the Bank of Oklahoma;
Page 34 of 66
<PAGE>
Exhibit 3
6. The Division Manager and the other Trust Officer under his
supervision shall have the authority to authorize admissions and
withdrawals to the common trust funds administered by this bank in
accordance with the terms of the Common Trust Fund Agreements and
the provisions of the Comptroller of the Currencys Regulation A.
The manager of the Trust Division shall keep the records of the Trust Division
separate and distinct from other books and records of the bank, and they
shall contain full information relative to each account, all in accordance
with the Regulation 9 of the Comptroller of Currency governing fiduciary
powers of national banks, and the laws of the State of Oklahoma.
This Committee of the Board of Directors shall cause external audits to be
made at regular intervals of the Trust Division, or in lieu thereof adopt an
adequate continuous audit system, as the committee may elect, all in
compliance with the regulations of the Comptroller of Currency governing
fiduciary powers of national banks.
The Manager of the Trust Division is charged with the responsibility of
keeping Trust Securities and Investments held in Trust by the Trust Division
separate and distinct from the securities owned by the bank and, in addition
thereto, that the said Trust Securities may be kept in any manner allowed by
the regulation of the Comptroller of Currency, as may be amended and issued
from time to time hereafter. Whenever the said securities are deposited in
the security vault of the bank, or in any depository, and are withdrawn
therefrom, such deposits or withdrawals shall be made only upon the written
request of any officer assigned to the Trust Division, or upon the written
request of other trust personnel who may be appointed, from time to time, by
the manager of the Trust Division.
Funds held by the Trust Division in a fiduciary capacity awaiting investment
or distribution shall not be held uninvested or undistributed for any longer
than is reasonable. Investments of trust funds shall be made only in
compliance with the regulations of the Comptroller of the Currency, in
accordance with the terms and provisions of the instrument creating the
fiduciary relationship, and the statutes of the state of Oklahoma.
The investment of fiduciary funds in stock or obligations of the bank, the
sale or transfer of property held by the bank as fiduciary to any officer,
director, employee or relative thereof, any transactions between various trust
accounts, the loan of
Page 35 of 66
<PAGE>
Exhibit 3
money from the bank to any account, the loan of money from one fiduciary
account to another, is prohibited except in those instances specifically
authorized by the terms and provisions of the regulations of the Comptroller
of the Currency, the laws of the state of Oklahoma, and the governing trust
instrument.
Page 36 of 66
<PAGE>
Exhibit 3
EXCERPT FROM
RESOLUTION ESTABLISHING TRUST DIVISION
AND DIRECTORS' TRUST COMMITTEE
Under the authority of Section 1.76, Statute 688 (12 U.S.C. 92a); R.S.
5240 as amended (12 U.S.C. 481) and the Comptroller of the Currency's
Regulation 9, "Fiduciary Powers of National Bank and Collective Investment
Funds," the Board of Directors of the Bank of Oklahoma, by this resolution,
hereby assigns the administration of the Trust Division to the Directors'
Trust Committee, confers on, delegates to, and assigns to this Committee all
of its authority, and full responsibility for the proper exercise of all the
fiduciary powers, duties, obligations, and responsibilities of the Bank of
Oklahoma relating to the exercise of its trust powers, in compliance with
applicable laws and regulations, including the right to delegate and assign
such of its authority and responsibility to other committee(s) it may, in its
discretion establish, and/or to such officer(s) as it may designate.
Page 37 of 66
<PAGE>
Exhibit 4
B Y L A W S
of
B A N K O F O K L A H O M A,
N A T I O N A L A S S O C I A T I O N
AMENDED AND RESTATED AS OF NOVEMBER 23, 1986
-------------------
Page 38 of 66
<PAGE>
Exhibit 4
INDEX
to
BYLAWS
of
BANK OF OKLAHOMA, NATIONAL ASSOCIATION
AMENDED AND RESTATED AS OF NOVEMBER 23, 1986
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I - Meetings of Shareholders
Section 1.1. Annual Meeting 1
Section 1.2. Special Meetings 1
Section 1.3. Conduct of Elections 1
Section 1.4. Proxies 1
Section 1.5. Quorum 2
ARTICLE II - Directors
Section 2.1. Board of Directors 2
Section 2.2. Number 2
Section 2.3. Nominations for Directors 2
Section 2.4. Term 3
Section 2.5. Organization Meeting 3
Section 2.6. Regular Meetings 3
Section 2.7. Special Meetings 3
Section 2.8. Directors' Fees 3
Section 2.9. Quorum 3
Section 2.10. Vacancies 4
ARTICLE III - Committees of the Board
Amended 6-30-87 Section 3.1. Executive Committee 4
Section 3.2. Examining Committee 5
Amended 5-26-87 Section 3.3. Other Committees 5
ARTICLE IV - Officers and Employees
Amended 6-30-87 Section 4.1. Chairman of the Board 5
Section 4.2. Presidents 6
Section 4.3. Vice Chairman of the Board 6
Amended 6-30-87 Section 4.4. Chairman of the Executive Committee 6
Section 4.5. Vice Presidents 6
Section 4.6. Cashier and Auditor 6
Section 4.7. Secretary to the Board of Directors 7
Section 4.8. Other Officers 7
Section 4.9. Clerks and Agents 7
Section 4.10. Tenure of Office 7
Section 4.11. Rights of the FDIC 7
</TABLE>
Page 39 of 66
<PAGE>
Exhibit 4
INDEX
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE V - Trust Division
Section 5.1. Trust Division 8
ARTICLE VI - Stock and Stock Certificates
Section 6.1. Transfers 8
Section 6.2. Dividends 8
Section 6.3. Stock Certificates 8
ARTICLE VII - Corporate Seal
Section 7.1. Corporate Seal 9
ARTICLE VIII - Miscellaneous Provisions
Section 8.1. Fiscal Year 9
Section 8.2. Execution of Instruments 9
Section 8.3. Records 9
Section 8.4. Banking Hours 9
ARTICLE IX - Indemnification
Section 9.1. General 10
Section 9.2. Against Claim by Association 10
Section 9.3. Reimbursement of Expenses upon
Successful Defense 11
Section 9.4. Determination that Indemnity is Proper 11
Amended 1-20-87 Section 9.5. Payment Prior to Final Disposition 11
Section 9.6. Non-Exclusive Rights 11
Section 9.7. Actions by Regulatory Agency 12
Section 9.8. Insurance 12
ARTICLE X - Bylaws
Section 10.1. Inspection 12
Section 10.2. Amendments 12
</TABLE>
Page 40 of 66
<PAGE>
Exhibit 4
BANK OF OKLAHOMA, NATIONAL ASSOCIATION
--------------------------------------
AMENDED AND RESTATED AS OF NOVEMBER 23, 1986
BYLAWS
ARTICLE I
Meetings of Shareholders
Section 1.1. ANNUAL MEETING. The regular annual meeting of the holders
of the common stock of the Association for the election of directors and the
transaction of whatever other business may properly come before the meeting,
shall be held at the main office of the Association, Bank of Oklahoma Tower,
Tulsa, Oklahoma, or such other place as the Board of Directors may designate,
at 1:00 o'clock p.m., on the second Wednesday of April of each year. Notice
of such meeting shall be mailed, postage prepaid, at least ten days prior to
the date thereof, addressed to each holder of capital stock of the
Association entitled to vote at said meeting at his address appearing on the
books of the Association. If, from any cause, an election of directors is
not made on the said day, the Board of Directors shall order the election to
be held on some subsequent day, as soon thereafter as practicable, according to
the provisions of law, and notice thereof shall be given in the manner herein
provided for the annual meeting.
Section 1.2. SPECIAL MEETINGS. Except as otherwise specifically
provided by statute, special meetings of the shareholders may be called for
any purpose at any time by the Board of Directors and in accordance with
Article TENTH of the Articles of Association. Unless waived in writing by
all holders of capital stock entitled to vote at such meeting, or unless
otherwise provided by law, every such special meeting shall be called by
mailing, postage prepaid, not less than ten days prior to the date fixed for
such meeting, to each such holder at his address appearing on the books of
the Association, a notice stating the purpose of the meeting.
Section 1.3. CONDUCT OF ELECTIONS. Every election of directors shall be
conducted by written ballot, which shall be tallied by the Secretary to the
Board of Directors and maintained with the permanent records of the
Association.
Section 1.4. PROXIES. Holders of capital stock of the Association
entitled to vote at any meeting of such shareholders may vote at any such
meeting by proxies duly authorized in writing, but no officer or employee
of this Association shall act as proxy. Proxies shall be valid only for one
meeting, to be specified therein, and any adjournments of such meeting.
Proxies shall be dated and shall be filed with the records of the meeting.
Page 41 of 66
<PAGE>
Exhibit 4
meeting may be held as adjourned without further notice. A majority of the
shares actually voted shall decide every question or matter submitted to the
shareholders at any meeting, unless otherwise provided by law or by the
Articles of Association.
ARTICLE II
Directors
Section 2.1. BOARD OF DIRECTORS. The Board of Directors (hereinafter
referred to as the "Board") shall have power to manage and administer the
business and affairs of the Association. Except as expressly limited by law,
all corporate powers of the Association shall be vested in and may be
exercised by said Board.
Section 2.2. NUMBER. The Board shall consist of not less than five nor
more than twenty-five shareholders of the holding company of the Association,
the exact number within such minimum and maximum limits to be fixed and
determined from time to time by resolution of a majority of the full Board or
by resolution of the shareholders at any meeting thereof; provided, however,
that a majority of the full Board of Directors may not increase the number of
directors to a number which: (i) exceeds by more than two the number of
directors last elected by shareholders where such number was fifteen or less;
or (ii) exceeds by more than four the number of directors last elected by
shareholders where such number was sixteen or more, but in no event shall the
number of directors exceed twenty-five.
Section 2.3. NOMINATIONS FOR DIRECTOR. No person shall be qualified to
be elected or to serve as a member of the Board, whether by regular election
of members of the Board or by appointment to fill any vacancy occurring among
the members of the Board, unless that person has been nominated by the board
of directors of the holding company of the Association or by the nominations
committee of such board of directors.
Section 2.4. TERM. The directors of the Association shall hold office
for one year or until their successors are elected and have qualified.
Section 2.5. ORGANIZATION MEETING. The Secretary of the Board shall
tally the vote in any election of directors and shall notify the
directors-elect of their election and of the time at which they are required
to meet at the main office of the Association for the purpose of taking their
oaths of office in the form prescribed by the Comptroller of the Currency,
organizing the new Board, appointing committees, and electing and appointing
officers of the Association for the succeeding year. Such meeting shall be
held on the day of the election or as soon thereafter as practicable, and in
any event within thirty days thereof. If, at the time fixed for such
meeting, there shall not be a quorum present, the directors present may
adjourn the meeting, from time to time, until a quorum is obtained.
-2-
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Section 2.6. REGULAR MEETINGS. The regular meetings of the Board of
Directors shall be held, without notice, at 12:00 noon on the second
Wednesday of each month at the main office of the Association unless the
Board or its executive Committee shall designate another date. Upon the
designation of any such alternative date, ten days' written notice of such
date shall be given to the members of the Board. When any regular meeting
of the Board falls upon a holiday, the meeting shall be held be on the next
banking business day observed within the State of Oklahoma, unless the Board
or its Executive Committee shall designate some other day.
Section 2.7. SPECIAL MEETINGS. Special meetings of the Board may be
called by the Chairman of the Board, the Vice Chairman of the Board, or the
President of the Association, or at the request of three or more directors.
Each member of the Board of Directors shall be given notice by telegram,
letter, or in person, stating the time and place of each such special meeting.
Section 2.8. DIRECTORS' FEES. A fee, in a reasonable amount to be
fixed from time to time by the Board, shall be paid to directors for each
regular meeting of the Board that they attend, limited, however, to one such
fee for each calendar month.
Section 2.9. QUORUM. A majority of the directors shall constitute a
quorum at any meeting of the Board, except when otherwise provided by law;
provided, however, that a lesser number of directors may adjourn any
meeting, from time to time, and the meeting may be held, as adjourned,
without further notice.
Section 2.10. VACANCIES. When any vacancy occurs on the Board, the
remaining members of the Board, in accordance with the laws of the United
States, may appoint a director to fill such vacancy, at any regular meeting
of the Board, or at a special meeting called for that purpose; provided,
however, that such director shall have been nominated or otherwise approved
by the board of directors of the holding company of the Association or by the
nominations committee of such board of directors. Any director so appointed
shall hold his position until the next regular annual election of directors.
ARTICLE III
Committees of The Board
Amended 6-30-87
Section 3.1. EXECUTIVE COMMITTEE. The Board shall appoint from among
its members an Executive Committee of such number as the Board shall deem
proper. The Chairman of the Board, the Vice Chairman of the Board, the
Chairman of the Executive Committee, and the President of the Association
shall be members ex officio, but all other members shall serve during the
pleasure of the Board. The Executive Committee shall have and may exercise, so
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Exhibit 4
far as may be permitted by law, all the authority and all the powers of the
Board during intervals between meetings thereof. The Executive Committee
shall keep minutes of its meetings, and such minutes shall be submitted at
the next regular meeting of the Board at which a quorum is present, at which
time any action taken by the Board with respect thereto shall be entered in
the minutes of the Board. All acts done and powers conferred by the Executive
Committee from time to time shall be deemed to be, and may be certified as
being done or conferred, under the authority of the Board.
The Executive Committee may determine at any time in its discretion to
hold regular meetings, in which event such meetings shall be held at the
time, place, and date so designated, without any notice thereof required to
be given to its members. Notice of any meetings of the Executive Committee
other than regular meetings shall be given to its members in a manner deemed
most likely to provide them actual notice thereof, as far in advance of the
time of the meeting as practicable. A majority of all members of the
Executive Committee, at least two of whom shall be non-ex officio members,
shall constitute a quorum for all purposes.
The Executive Committee may adopt its own rules of procedure.
Section 3.2. EXAMINING COMMITTEE. The Board shall appoint an Examining
Committee, [consisting of three members other than active officers of the
Association.] The Examining Committee shall, at least once every twelve
months, examine the affairs of the Association, count its cash, compare its
assets and liabilities with the accounts of the general ledger, and ascertain
whether the accounts are correctly kept and the condition of the Association
corresponds therewith. [The Examining Committee shall also, at least once
during each calendar year and within 15 months of the last such audit,
examine the trust division of the Association to ascertain whether the
division has been administered in accordance with law, applicable regulations
of the Comptroller of the Currency, and sound fiduciary principles, or shall
adopt a continuous audit system adequate to perform the identical function.]
All audits and examinations described in this section may be performed
by the members of the Examining Committee directly or through certified
public accountants selected by the Examining Committee for such purpose and
[responsible solely to the Examining Committee and the Board for the results
of their audits and examinations.] The expenses of audits and examinations made
by persons other than the Examining Committee shall be paid by the Association.
The Examining Committee shall report the results of all audits and examinations
in writing to the Board at its next regular meeting thereafter, and shall
recommend to the Board such changes in the manner of doing business as shall
seem desirable on the basis thereof. [Such report and all actions
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Exhibit 4
taken thereon shall be noted in the minutes of the Board.] [Note: all
bracketed material is the procedure for trust examinations required by 12
C.F.R. Section 9.9.]
Amended 5-26-87
Section 3.3. OTHER COMMITTEES. The Board of Directors may appoint, from
time to time, from its own members, other committees of one or more persons,
for such purposes and with such powers as the Board may determine. The
Chairman of the Board may appoint nondirector officers to such committees for
the purpose of counseling with and providing information to the committee, and
may remove such members at any time at his pleasure. Nondirector members so
appointed may be voting members of such committees, but all official actions
of such committees must be approved by a majority of their director members.
Meetings of such committees may be held in the absence of nondirector members
whenever the director members so choose.
ARTICLE IV
Officers and Employees
Amended 6-30-87
Section 4.1. CHAIRMAN OF THE BOARD. The Board shall appoint one of its
members to be Chairman of the Board, to serve at the pleasure of the Board.
He shall preside at all meetings of the Board, and shall serve as Chief
Executive Officer of the Association. The Chairman of the Board shall
supervise the carrying out of the policies adopted or approved by the Board.
He shall have general executive powers, as well as the specific powers
conferred by these Bylaws. He shall also have and may exercise such further
powers and duties as from time to time may be conferred upon or assigned to
him by the Board.
Section 4.2. PRESIDENT. The Board shall appoint one of its members to be
President of the Association. The person designated shall also be the Chief
Operating Officer of the Association. In the absence of the Chairman of the
Board and, if such officer has been appointed, the Vice Chairman of the
Board, the President shall preside at any meeting of the Board. The President
shall have general executive powers, and shall have and may exercise any and
all other powers and duties pertaining by law, regulation, or practice to the
office of President, or imposed by these Bylaws. He shall also have and may
exercise such further powers and duties as from time to time may be conferred
upon or assigned to him by the Board.
Section 4.3. VICE CHAIRMAN OF THE BOARD. The Board may appoint one of
its members to be Vice Chairman of the Board, who, in the absence or
disability of the Chairman of the Board, shall preside at all meetings of the
Board. He shall have and exercise such other and further powers and duties as
from time to time may be conferred upon or assigned to him by the Board or by
the Chairman of the Board.
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Exhibit 4
Amended 6-30-87
Section 4.4. CHAIRMAN OF THE EXECUTIVE COMMITTEE. The Chief Executive
Officer of the Association shall serve as chairman of the Executive
Committee. He shall preside at all meetings of the Executive Committee at
which he is present, and shall have such other powers and duties as may be
provided by these Bylaws or as may be assigned to him from time to time by
the Board.
Section 4.5. VICE PRESIDENTS. The Board may appoint one or more Vice
Presidents, one or more of whom may be Executive Vice Presidents or Senior
Vice Presidents. Each Vice President shall have such powers and duties as may
be assigned to him by the Board, by the Chairman of the Board, or by the
President. One Vice President may be designated by the Board to perform, in
the absence of the President, all the duties of the President.
Section 4.6. CASHIER AND AUDITOR. The Board shall appoint a Cashier and
may appoint an Auditor, and may also appoint one or more assistants to each
such office, whose respective duties and authorities shall be such as may be
provided by these Bylaws or may be assigned to them by the Board, by the
Chairman of the Board, or by the President. The Cashier shall be the
Secretary of the Association, and all Assistant Cashiers shall be Assistant
Secretaries of the Association, and shall perform all duties required by law
to be performed by a Secretary of a corporation, except such duties as are
now or hereafter required to be performed by the Secretary to the Board of
Directors of the Association. Except as otherwise provided by these Bylaws,
the Cashier shall be custodian of the corporate seal, records, documents, and
papers of the Association. He shall provide for the keeping of proper records
of all transactions of the Association. He shall have and may exercise any
and all other powers and duties pertaining by law, regulation, or practice to
the office of Cashier or imposed by these Bylaws. He shall also perform such
other duties as may be assigned to him from time to time by the Board.
Section 4.7. SECRETARY TO THE BOARD OF DIRECTORS. The Board of
Directors shall appoint a Secretary, who shall be Secretary of the Board and
shall keep accurate minutes of all meetings. He shall attend to the giving of
all notices required by these Bylaws to be given. He shall be custodian of
the minutes and other records pertaining to meetings of the shareholders, the
Board, and the Executive Committee of the Association. He shall also perform
all other duties as may be assigned to him from time to time by the Board.
Section 4.8. OTHER OFFICERS. The Board may appoint one or more
Assistant Vice Presidents, one or more Trust Officers and Assistant Trust
Officers, one or more Assistant Secretaries, one or more Assistant Cashiers,
and attorneys-in-fact as from time to time may appear to the Board to be
required or desirable to transact the business of the Association. Such
officers shall respectively have and exercise any and all powers and duties
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Exhibit 4
pertaining by law, regulation, or practice to their several offices, or
imposed by these Bylaws, or as may be conferred upon or assigned to them by
the Board, by the Chairman of the Board, or by the President.
Section 4.9. CLERKS AND AGENTS. The Board may appoint such Paying
Tellers, Receiving Tellers, Note Tellers, Vault Custodians, bookkeepers, and
other clerks, agents, and employees as it may deem advisable for the prompt
and orderly transaction of the business of the Association. The Board may
also define their duties, fix the salaries to be paid them, and dismiss them.
Subject to the authority of the Board, the President or any other officer of
the Association authorized by the President, may appoint and dismiss all or
any clerks, agents, and employees, prescribe their duties and the conditions
of their employment, and from time to time fix their compensation.
Section 4.10. TENURE OF OFFICE. All officers of the Association shall
hold office for the current year for the Board which elects them, unless he
shall resign, become disqualified, or be removed before such date. Any
vacancy occurring in the office of Chairman of the Board or President shall
be filled promptly by the Board.
ARTICLE V
Trust Division
Section 5.1. TRUST DIVISION. There shall be a division of the
Association known as the Trust Division, which shall perform the fiduciary
responsibilities of the Association.
The management and administration of the Trust Division and the
fiduciary powers of the Board may be delegated from time to time by the Board
to such persons or committees as it shall deem appropriate. The resolution or
resolutions setting forth the action of the Board in this respect and any
amendments thereto shall be attached to these Bylaws as Exhibit 1, and each
amendment as additional exhibits hereto.
ARTICLE VI
Stock and Stock Certificates
Section 6.1. TRANSFERS. Shares of stock of the Association shall be
transferable only on the books of the Association, and a transfer book shall
be kept in which all transfers of stock shall be recorded. Every person
becoming a shareholder by such transfer shall, in proportion to his shares,
succeed to all rights and liabilities of the prior holder of such shares.
Section 6.2. DIVIDENDS. Transfers of stock shall not be suspended
preparatory to the declaration of dividends; and,
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Exhibit 4
dividends shall be paid to the shareholder in whose name the stock shall
stand at the date of the declaration of dividends, unless an agreement to the
contrary shall be expressed in any assignment, transfer, or other conveyance
of any interest in the stock; provided, however, that the Board may fix a
record date or dates subsequent to the date of declaration for the
determination of shareholders entitled to receive payment of any dividend so
declared or any installments thereof; further provided, however, that such
subsequent date shall not be more than thirty (30) days prior to the date of
payment. In the event that a record date or dates is so fixed, only such
shareholders as shall be shareholders of record on the date or dates so fixed
shall be entitled to receive payment of such dividends, notwithstanding any
transfer of any stock on the books of the Association after any such record
date or dates fixed as aforesaid.
Section 6.3. STOCK CERTIFICATES. Certificates of stock shall bear the
signature of the President (which may be engraved, printed or impressed), and
shall be signed manually or by facsimile process by the Secretary, Assistant
Secretary, Cashier, Assistant Cashier, or any other officer appointed by the
Board for that purpose, to be known as an Authorized Officer, and the seal of
the Association shall be engraved thereon. Each certificate shall recite on
its face that the stock represented thereby is transferable only upon the
books of the Association properly endorsed.
ARTICLE VII
Corporate Seal
Section 7.1. CORPORATE SEAL. The President, the Cashier, the Secretary,
any Assistant Cashier or Assistant Secretary, or any other officer thereunto
designated by the Board shall have authority to affix the corporate seal to
any document requiring such seal, and to attest the same. Such seal shall be
substantially in the following form:
(SEAL)
ARTICLE VIII
Miscellaneous Provisions
Section 8.1. FISCAL YEAR. The fiscal year of the Association shall be
the calendar year.
Section 8.2. EXECUTION OF INSTRUMENTS. All agreements, indentures,
mortgages, deeds, conveyances, transfers, certificates, declarations,
receipts, discharges, releases, satisfactions, settlements, petitions,
schedules, accounts, affidavits, bonds, undertakings, proxies and other
instruments or documents may be signed, executed, acknowledged, verified,
delivered, or accepted on behalf of the Association by the
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Exhibit 4
Chairman of the Board, the Vice Chairman of the Board, the President, any
Vice President, the Secretary, or the Cashier. Any such instruments may also
be executed, acknowledged, verified, delivered, or accepted on behalf of the
Association in such other manner and by such other officers as the Board may
from time to time direct. The provisions of this Section 8.2 are
supplementary to any other provision of these Bylaws.
Section 8.3. RECORDS. The Articles of Association, the Bylaws, and the
proceedings of all meetings of the shareholders, the Board, and standing
committees of the Board shall be recorded in appropriate minute books
provided for the purpose. The minutes of each meeting shall be signed by the
Secretary appointed to act as Secretary of the meeting.
Section 8.4. BANKING HOURS. The Board shall prescribe hours of business
for the Association; provided, however, that the main office of the
Association shall be open for business at least six hours of each day, except
Saturdays, Sundays, days recognized by the laws of the State of Oklahoma as
legal holidays, and such other times as may be determined by the Board. Other
facilities of the Association shall be open for business for such hours and
at such times as shall be prescribed from time to time by the Chief Executive
Officer of the Association, with the concurrence of the President.
ARTICLE IX
Indemnification
Section 9.1. GENERAL. The Association shall have power to indemnify any
person who was or is a party or is threatened to be made a part to any
threatened, pending, or completed action, suit or proceeding, whether civil,
criminal, administrative, or investigative (other than an action by or in the
right of the Association) by reason of the fact that he is or was a director,
officer, employee, or agent of the Association, or is or was serving at the
request of the Association as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise,
against expenses (including attorneys' fees), judgments, fines, and amounts
paid in settlement actually and reasonably incurred by him in connection with
such action, suit, or proceeding, if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Association, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Association, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
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Section 9.2. AGAINST CLAIM BY ASSOCIATION. The Association shall have
power to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending, or completed action or suit by or in
the right of the Association to procure a judgment in its favor by reason of
the fact that he is or was a director, officer, employee, or agent of the
Association, or is or was serving at the request of the Association as a
director, officer, employee, or agent of another corporation, partnership,
joint venture, trust, or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with
the defense or settlement of such action or suit, if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Association; provided, however, that no indemnification
shall be made in respect of any claim, issue, or matter as to which such
person shall have been adjudged to be liable for negligence or misconduct in
the performance of his duty to the Association unless and only to the extent
that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which the court shall deem proper.
Section 9.3. REIMBURSEMENT OF EXPENSES UPON SUCCESSFUL DEFENSE. To the
extent that a director, officer, employee, or agent of the Association has
been successful on the merits or otherwise in defense of any action, suit, or
proceeding referred to in Sections 9.1 or 9.2 of these Bylaws, or in defense
of any claim, issue, or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him
in connection therewith.
Section 9.4. DETERMINATION THAT INDEMNITY IS PROPER. Any
indemnification under Sections 9.1 or 9.2 of these Bylaws (unless ordered by
a court) shall be made by the Association only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Sections 9.1 or 9.2 of these
Bylaws. Such determination shall be made (1) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (2) if such a quorum is not obtainable, or,
even if obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (3) by the stockholders.
Amended 1-20-87
Section 9.5. PAYMENT PRIOR TO FINAL DISPOSITION. Expenses incurred by
an officer or director in defending a civil or criminal action, suit, or
proceeding may be paid by the Association in advance of the final disposition
of such action, suit, or proceeding as authorized by the board of directors
in the specific case upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount unless it shall
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Exhibit 4
ultimately be determined that he is entitled to be indemnified by the
Association as authorized in this Section. Such expenses incurred by other
employees and agents may be so paid upon such terms and conditions, if any,
as the board of directors deems appropriate.
Section 9.6. NON-EXCLUSIVE RIGHTS. The indemnification provided by
this Article of these Bylaws shall not be deemed exclusive of any other
rights to which those seeking indemnification may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee, or agent, and shall inure
to the benefit of the heirs, executors, and administrators of such a person.
Section 9.7. ACTIONS BY REGULATORY AGENCY. Notwithstanding the
foregoing subsections of this Article of these Bylaws, the Association shall
not indemnify its directors, officers, employees, or agents against expenses,
penalties, or other payments incurred in an administrative proceeding or
action instituted by an appropriate bank regulatory agency, which proceeding
or action results in a final order assessing civil money penalties or
requiring affirmative action by an individual or individuals in the form of
payments to the Association.
Section 9.8. INSURANCE. The Association shall have power to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee, or agent of the Association, or is or was serving at the
request of the Association as a director, officer, employee, or agent of the
another corporation, partnership, joint venture, trust, or other enterprise
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
Association would have the power to indemnify him against such liability
under the provisions of this Article of these Bylaws; provided, however, that
such insurance shall explicitly exclude from its coverage a formal order
assessing civil money penalties against a director or employee of the
Association.
ARTICLE X
Bylaws
Section 10.1. INSPECTION. A copy of the Bylaws, with all amendments
thereto, shall at all times be kept in a convenient place at the main office
of the Association, and shall be open during banking hours for inspection by
all shareholders.
Section 10.2. AMENDMENTS. The Bylaws may be amended, altered, or
repealed at any regular meeting of the Board by a vote of a majority of the
whole number of Directors.
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Exhibit 4
CERTIFICATION
I, James S. Boese, CERTIFY that: (1) I am the duly constituted Secretary
of the Board of Directors of Bank of Oklahoma, Tulsa, N.A., and as such officer
am the official custodian of its records; (2) the foregoing Bylaws are the
Bylaws of said bank, and all of them, as now lawfully in force and effect.
IN TESTIMONY WHEREOF, I have hereunto affixed my official signature and
the seal of said bank, in the City of Tulsa, Oklahoma, on this ___ day of
_______________, 19___.
----------------------------------
Secretary
(SEAL)
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Exhibit 4
BANK OF OKLAHOMA, NATIONAL ASSOCIATION
AMENDMENT TO BYLAWS
ADOPTED BY THE BOARD OF DIRECTORS
JANUARY 20, 1987
RESOLVED, that Article IX of the Bylaws of the Bank be and hereby is
amended by the adoption of a new Section 9.5 of the Bylaws, to read as
follows:
ADVANCE EXPENSES
Section 9.5 ADVANCEMENT OF EXPENSES. Subject to review and
approval solely for the limited purposes expressly set forth herein, the
Association shall pay all expenses incurred by an officer or director of
the Association or an agent of the Association serving as an officer or
director of another corporation, partnership, joint venture, trust, or
other enterprise at the request of the Association, in defending a civil
or criminal action brought or filed against him in his capacity as an
officer or director, or as such agent of the Association, in advance of
the final disposition of the action, suit, or proceeding, upon receipt
of an undertaking by or on behalf of the director, officer, or agent to
repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Association as authorized by
applicable law. All statements or invoices for such expenses received
by the Association shall be presented to general counsel for the
Association and to the chief financial officer of the Association for
their review and approval as to the reasonableness of the amount thereof
and the relationship of the legal action to the services of the
director, officer, or agent to the Association. Such expenses incurred
by other employees and other agents of the Association may be paid
subject to the terms and conditions described hereinabove, and subject
to such additional terms and conditions, if any, as the Board of
Directors deems appropriate.
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Exhibit 4
BYLAWS
BE IT RESOLVED that Section 3.3 of Article III of the Association's
Bylaws be amended to read in its entirety as follows, and Section 3.4 shall
be identical to the former Section 3.3, Other Committee:
Section 3.3 LOAN AND INVESTMENT COMMITTEE. The Board shall appoint
from among its members, a Committee of such number as the board shall deem
appropriate. The Chairman of the board shall be an ex officio member of the
Committee, but all other members shall serve during the pleasure of the
Board. The Loan and Investment Committee shall have and may exercise, so far
as may be permitted by law, all the authority and all the powers of the Board
during intervals between meetings thereof with regard to the approval of
loans and investments by the Association. The Loan and Investment Committee
shall keep minutes of its meetings, and such minutes shall be submitted at
the next regular meeting of the Board at which a quorum is present, at which
time any action taken by the Board with respect thereto shall be entered in
the minutes of the Board. All acts done and powers conferred by the Loan an
Investment Committee from time to time shall be deemed to be, and may be
certified as being done or conferred, under the authority of the Board.
The Loan and Investment Committee may determine at any time in its
discretion to hold regular meetings, in which event such meetings shall be
held at the time, place, and date so designated, without any notice thereof
required to be given to its members. Notice of any meetings of the Loan and
Investment Committee other than regular meetings, shall be given to its
members in a manner deemed most likely to provide them actual notice thereof,
as far in advance of the time of the meeting as practicable. A majority of
all members of the Loan and Investment Committee, shall constitute a quorum
for all purposes.
The Loan and Investment Committee may adopt its own rules of procedure.
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Exhibit 4
BANK OF OKLAHOMA, NATIONAL ASSOCIATION
AMENDMENT TO BYLAWS
ADOPTED BY THE BOARD OF DIRECTORS
JUNE 30, 1987
RESOLVED, that Sections 4.1 and 4.4 of Article IV and Section 3.1
of Article III of the Bylaws of the Association be and hereby are amended in
their entireties to read as follows:
Section 4.1. CHAIRMAN OF THE BOARD. The Board shall appoint
one of its members to be chairman of the Board, to serve at the
pleasure of the Board. He shall preside at all meetings of the
Board and, in the absence of the Chairman of the Executive
Committee, at meetings of the Executive Committee, and shall serve
as Chief Executive Officer of the Association. The Chairman of the
Board shall supervise the carrying out of the policies adopted or
approved by the Board. He shall have general executive powers, as
well as the specific powers conferred by these Bylaws. He shall
also have and may exercise such further powers and duties as from
time to time may be conferred upon or assigned to him by the Board.
Section 4.4 CHAIRMAN OF THE EXECUTIVE COMMITTEE. The
Chairman of the Executive committee shall preside at all meetings
of the Executive Committee at which he is present, and shall have
such other powers and duties as may be provided by these Bylaws or
as may be assigned to him from time to time by the Board.
ARTICLE III
Committees of the Board
Section 3.1. EXECUTIVE COMMITTEE. The Board shall appoint
from among its members an Executive Committee of such number as the
Board shall deem proper. The Chairman of the Board shall be a
member ex officio, but all other members shall serve during the
pleasure of the Board. The Executive Committee shall have and may
exercise, so far as may be permitted by law, all the authority and
all the powers of the Board during intervals between meetings
thereof. The Executive Committee shall keep minutes of its
meetings. and such minutes shall be submitted at the next regular
meeting of the Board at which a quorum is present, at which time
any action taken by the Board with respect thereto
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shall be entered in the minutes of the Board. All acts done and
powers conferred by the Executive Committee from time to time shall
be deemed to be, and may be certified as being done or conferred,
under the authority of the Board.
The Executive Committee may determine at any time in its
discretion to hold regular meetings, in which event such meetings
shall be held at the time, place, and date so designated, without
any notice thereof required to be given to its members. Notice of
any meetings of the Executive Committee other than regular meetings
shall be given to its members in a manner deemed most likely to
provide them actual notice thereof, as far in advance of the time
of the meeting as practicable. A majority of all members of the
Executive Committee, at least two of whom shall be non-ex officio
members, shall constitute a quorum for all purposes.
The Executive Committee may adopt its own rules of procedure.
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Exhibit 4
and the Officers' Trust Committee Meeting held July 2, 1979, were distributed
to each member of the Board at the beginning of the meeting. At the close of
the meeting, after each Director had reviewed the Minutes, upon motion duly
made, seconded and unanimously carried, the minutes were approved.
SECURITIES REVIEW COMMITTEE: The Secretary distributed copies of the
minutes of the Securities Review Committee meeting held on July 3, 1979, to
each member of the Board. At the close of the meeting, upon motion duly made,
seconded and unanimously carried, the minutes were approved.
ASSET/LIABILITY COMMITTEE: Each member of the Board received a copy of
the minutes of the Asset/Liability Committee meeting held July 3, 1979. At
the close of the meeting, upon motion duly made, seconded and unanimously
carried, the minutes were approved.
REPORT ON AUDIT AND EXAMINING COMMITTEE: Mr. Robert E. Thomas reviewed
the minutes of the meeting of the Audit and Examining Committee held on June
27, 1979, which was attended by Mr. Tony M. McMurry, national bank examiner.
Mr. Thomas stated that, according to Mr. McMurry, earnings growth and equity
capital growth continue to be below industry norms, but that improvement in
the quality of the loan portfolio should directly affect future earnings. He
stated that although there is still a change of substantial loss on certain
loans, the bank examiners had concluded that the Reserve for Loan Losses
appeared to be adequate at the present time. In concluding his remarks, Mr.
Thomas said that due to the reduction in the percent of classified assets and
other matters, this was the best examination in a number of years.
CHAIRMAN'S REPORT: Mr. Leonard J. Eaton, Jr., reviewed the operating
results for June and the second quarter. He noted that earnings of $.18 for
June were only $.01 below plan due to the spread between the cost of funds
and interest rates in spite of slower growth in demand deposits than
anticipated. Mr. Eaton stated that the key items for making the plan for the
year were demand deposits, net spread and salaries.
RESOLUTION:
BE IT RESOLVED, that the Bank of Oklahoma, N.A., Bylaws, Article III,
Section 3.3, be amended to read as follows:
OTHER COMMITTEES. The Board of Directors may appoint, from time to
time, from its own members, other committees of one or more persons, for such
purposes and with such powers as the Board may determine. The Chief Executive
Officer may appoint non-director officers to such committees for the purpose
of counseling with and providing information to the committee, and may remove
such members. The members so appointed may be voting members, but all
official actions of the committee
-2-
Page 57 of 66
<PAGE>
Exhibit 4
Mr. Tower stated that Operating Earnings before taxes and before
security gains and losses for the first ten months of 1978 were $2,559,000,
compared with $2,286,000 for the first ten months of 1977. Net Income for the
first ten months of 1978 was $4,132,000, compared with $4,535,000 for the
first ten months of 1977. Net Income Per Share for the month of October, 1978
was 26 cents, compared with 14 cents for October, 1977.
LARGE LINE OF CREDIT:
PETRO-LEWIS CORPORATION: Mr. Tower informed the Board that this company
had requested a $6.5 million credit from the bank, being a portion of a
$53.45 million secured three year revolving credit headed by Security
Pacific National Bank. A copy of the commitment report dated October 19, 1978
is attached to these minutes and made a part hereof. Upon motion duly made,
seconded and unanimously carried the credit to Petro-Lewis Corporation was
unanimously approved.
RESOLUTION RE: DIRECTORS' TRUST COMMITTEE: Mr. Tower informed the Board
that in view of the recent management reorganization and the designation of
Mr. Eugene Swearingen as Chairman of the Executive Committee that in order for
him to be able to serve on the Directors' Trust Committee it would be
necessary to amend the by-laws of the Bank in this respect. He then presented
the following resolution:
BE IT RESOLVED, that Article IX of the Resolution establishing the Trust
Division be amended to read in its entirety as follows:
"Article IX, Trust Committee
BE IT FURTHER RESOLVED, that the Chief Executive Officer of the Bank
shall appoint, with the approval of the Board of Directors, a Trust
Committee composed of five to nine non-officer directors of the Bank. The
Chairman of the Board of Directors, the Vice Chairman of the Board, the
President of the Bank, the Senior Vice President and Senior Trust
Officer, and the Senior Vice President of the Financial Division shall be
ex-officio members of the Trust Committee. The Chairman of the Board or
such other Director of the Bank designated by him shall serve as
Chairman. The Chairman of the Board may appoint one (1) additional
officer of the Bank to serve as a member of this committee. A majority
of such Committee shall constitute a quorum for the transaction of
business. There shall also be appointed by the Chairman three alternate
members of said Committee who may be members of this Board or officers
of the Bank, any of whom shall be authorized to serve in the place of
any regular member of the Committee who is unable to serve. This
Committee shall advise with the senior officers of the Trust Division
Page 58 of 66
<PAGE>
Exhibit 4
must be approved by a majority of the Director members. Meetings of such
committees may be held absent such non-director members in those instances
where the committees so choose.
BE IT RESOLVED, that the Bank of Oklahoma, N.A., Bylaws, Article IV,
Section 4.2, be amended to read as follows:
PRESIDENT. The Board of Directors shall appoint one of its members to be
President of the Association. In the absence of the Chairman and the Vice
Chairman, he shall preside at any meeting of the Board. The President shall
have general executive powers, and shall have and may exercise any and all
other powers and duties pertaining by law, regulation or practice, to the
office of President, or imposed by these Bylaws. He shall also have and may
exercise such further powers and duties as from time to time may be conferred
upon, or assigned to, him by the Board of Directors.
BE IT RESOLVED, that the Bank of Oklahoma, N.A., Bylaws, Article IV,
Section 4.8, be amended to read as follows:
OTHER OFFICERS. The Board of Directors may appoint one or more Assistant
Vice Presidents, one or more Trust Officers, and Assistant Trust Officers,
one or more Assistant Secretaries, one or more Assistant Cashiers, and
Attorneys-in-fact as from time to time may appear to the Board of Directors
to be required or desirable to transact the business of the Association. Such
officers shall respectively exercise such powers and perform such duties as
pertain to their several offices, or as may be conferred upon, or assigned
to, them by the Board of Directors, the Chairman of the Board or the
President. The Board of Directors may designate either the President or the
Chairman of the Board as the Chief Executive Officer.
BE IT RESOLVED, that the Bank of Oklahoma, N.A., Employees' Thrift Plan
and Trust, Article XV, Section 15.2 be amended to read as follows:
DESIGNATION OF FIDUCIARY AND ASSIGNMENT OF ADMINISTRATIVE AUTHORITY. The
Employer is hereby designated as the Named Fiduciary of the Plan. The Board
of the Employer shall appoint a Committee to be known as the "Administrative
Committee" (herein referred to as the "Committee") consisting of at least
three (3) and not more than five (5) members to administer the Plan, and also
shall appoint a Chairman and a Secretary from the Committee membership. Any
member may resign by delivering his written resignation to the Employer. The
Chief Executive Officer of the Employer is authorized to fill vacancies
arising in the Committee by the appointment of new members to serve the
unexpired term of the departing member.
PROMOTIONS AND RESIGNATIONS: It was stated that it was Management's
recommendation that the following promotions be approved by the Board:
-3-
Page 59 of 66
<PAGE>
Exhibit 4
with respect to the establishment of policies for the conduct of the
business of the Trust Division, including general administration,
investment policies and new business development."
Upon motion duly made, seconded and unanimously carried, the resolution
was adopted by the Board.
REPORT OF THE CHIEF EXECUTIVE OFFICER: Mr. Eaton discussed with the
Board the rapidly rising interest rates reflected by the raise in the Federal
Reserve's discount rate and stated that it was expected that prime rate would
rise again in the very near future. He discussed the money supply and the
difficulty encountered in purchasing money at market rates, indicating that a
credit crunch may be expected within the next 60 to 90 days. Mr. Eaton
further discussed the loan-to-deposit ratio of the Bank and plans for
managing the Bank's assets and liabilities during the ensuing months under
the current conditions.
Mr. Eaton informed the Board it was planned that the $20 million capital
note loan with the Chase Manhattan be closed on November 9, 1978. This would
represent a net of $10 million new money, with the other $10 million being
used to retire maturing notes. He further reviewed the automatic transfer
service recently initiated by the bank, which in effect, after election by
the customer to participate, will automatically transfer from the checking
account to the savings account and back to the checking account in order that
the customer may receive interest on funds that would have otherwise been in
the checking account. The service is provided at a flat $3.50 per month
charge. He noted that this program was undertaken in order to compete with
savings and loans and other financial institutions that provide similar
services.
QUARTERLY CASH DIVIDEND: Mr. Leonard J. Eaton, Jr. presented the
following resolution to the Board:
RESOLVED, that the Board of Directors of Bank of Oklahoma, N.A. hereby
declares a quarterly cash dividend of Seventy-Seven Cents ($0.77) per
share on the 773,950 shares of common stock of such Bank issued and
outstanding on the date of this meeting, payable on the 15th day of
December, 1978 to the shareholders of record at the close of business on
the 4th day of December, 1978.
Upon motion duly made, seconded and unanimously carried, the Resolution was
adopted by the Board.
REPORT ON PROPOSED CHANGE IN BANKING STRUCTURE: Mr. Swearingen
distributed to the Board a copy of a proposed letter to be sent to Senator
Gene C. Howard, President Pro-tempore of the Oklahoma Senate and to the
Speaker of the House of Representatives relative to multi-bank holding
company legislation. He also distributed to the board a synopsis of a
proposed multibank holding company bill to be submitted in 1979. He requested
that the
Page 60 of 66
<PAGE>
Exhibit 4
directors who wished to do so write letters supporting this proposed
legislation. Mr. Swearingen further discussed the merits of the bill and the
benefits to the state as a whole as a result thereof.
REPORT OF THE PRESIDENT: Mr. Sam Hayes displayed slides reflecting
organizational charts resulting from the recent restructuring of Management.
The slides were in detail and were discussed by the members of the Board with
Mr. Hayes.
PROMOTIONS AND RESIGNATIONS: Mr. Hayes stated that it was Management's
recommendation that the following promotions be approved by the Board:
Ron King to Vice President
C.L. (Chuck) Rogers to Vice President
Thomas A. Quillin, Jr. to Assistant Vice President in the
Financial Institutions Department
Steve Hatfield to Systems Officer
Sandy Bjork to Systems Officer
Lee Landry to Operations Officer and Assistant Cashier
Doug Brinsfield to Planning Officer
Upon motion duly made, seconded and unanimously carried, the promotions were
approved by the Board.
Mr. Hayes stated that he had received letters of resignation from the
following officers:
Hugh R. Roberson, Assistant Vice President
Lee Daniel, III, Assistant Vice President
Mike Howell, Financial Services Officer
Upon motion duly made, seconded and unanimously carried, the resignations
were accepted by the Board.
AMENDMENT TO BY-LAWS: Mr. Robinson presented the following resolutions
amending Sections 4.1 and 4.2 of Article IV of Bank of Oklahoma, N.A. by-laws:
BE IT RESOLVED, that Sections 4.1 and 4.2 of Article IV of the By-laws of
Bank of Oklahoma, N.A. be amended to read in their entirety as follows:
"SECTION 4.1. CHAIRMAN OF THE BOARD. The Board of Directors shall appoint
one of its members to be Chairman of the Board to serve at the pleasure of
the Board. He shall preside at all meetings of the Board of Directors
Page 61 of 66
<PAGE>
Exhibit 4
and shall serve as Chief Executive Officer of the Bank. The Chairman of
the Board shall supervise the carrying out of the policies adopted or
approved by the Board. He shall have general executive powers, as well as
the specific powers conferred by these Bylaws. He shall also have and may
exercise such further powers and duties as from time to time may be
conferred upon, or assigned to him by the Board of Directors.
SECTION 4.2. PRESIDENT. The Board of Directors shall appoint one of its
members to be President of the Association. In the absence of the Chairman
and the Vice Chairman he shall preside at any meeting of the Board. The
President shall have general executive powers, and shall have and may
exercise any and all other powers and duties pertaining by law, regulation
or practice, to the office of President, or imposed by these Bylaws. He
shall also have and may exercise such further powers and duties as from
time to time may be conferred upon, or assigned to him by the Board of
Directors.
Upon motion duly made, seconded and unanimously carried, the resolutions were
adopted by the Board.
RESOLUTION DEFINING EXECUTIVE OFFICER: Mr. James Robinson presented the
following resolution:
WHEREAS, the Board of Directors of Bank of Oklahoma, N.A. has heretofore
on February 12, 1975 for the purpose of Regulation O of the Board of
Governors of the Federal Reserve System defined the term "Executive
Officer" and since that time the policy-making group of the Bank for this
purpose has changed,
WHEREAS, the major policy-making function in the Bank is performed by
the Chairman of the Board of Directors, Vice Chairman of the Board of
Directors, President, Chairman of the Executive Committee and all Division
Managers, who are all authorized to participate in the determination of
major policies of this Bank,
NOW, THEREFORE, BE IT RESOLVED that no officer of this Bank other than
the Chairman of the Board of Directors, Vice Chairman of the Board of
Directors, President, Chairman of the Executive Committee and all Division
Managers, shall participate in the major policy-making functions in this
Bank.
Upon motion duly made, seconded and unanimously carried, the resolution was
adopted by the Board.
FINANCIAL INSTITUTIONS REGULATORY AND INTEREST RATE CONTROL ACT OF 1978:
Mr. Robinson reviewed briefly portions of this act which would affect
directors, executive officers and 10% owners
Page 62 of 66
<PAGE>
Exhibit 5
CONSENT OF TRUSTEE
WHEREAS, an Indenture dated as of September 1999 was entered into by and
between, OG&E Energy Corp., as Issuer, and Bank of Oklahoma, National
Association, as Trustee ("Trustee").
Pursuant to Section 321 (b) of the Trust Indenture Act of 1939, the Trustee
hereby gives consent that reports of examinations, records, or other
information, with respect to the Trustee, of the Treasury Department, the
Comptroller of the Currency, the Board of Governors of the Federal Reserve
System, the Federal Reserve Banks, and the Federal Deposit Insurance Corporation
be made available to the Securities and Exchange Commission upon request of such
reports, records, or other information.
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
Bank of Oklahoma, National Association, a corporation organized and existing
under the laws of the State of Oklahoma, has duly signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Oklahoma City and the
State of Oklahoma, on the 28th day of September, 1999.
Bank of Oklahoma,
National Association
By: /s/ Timothy M. Cook
--------------------------------
Timothy M. Cook
Vice President and Trust Officer
Attest: /s/ Rachel Redd-Singleton
-----------------------------
Rachel Redd-Singleton
Assistant Vice President
and Trust Officer
Page 63 of 66
<PAGE>
Exhibit 6
Legal Title of Bank: BANK OF OKLAHOMA, NATIONAL ASSOCIATION Call Date:9/30/96
Address: P O B0X 2300
City, State Zip: TULSA, OK 74121-2300
FDIC Certificate No.: 04214
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1999
All schedules are to be reported in thousands of dollars.
Unless otherwise indicated, report the amount outstanding
as of the last business day of the quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
C300
Dollar Amounts in Thousands |RCON Bil Mil Thou |
<S> <C>
ASSETS |////////////////// |
1. Cash and balances due from depository institutions (from Schedule RC-A): |////////////////// |
a. Noninterest-bearing balances and currency and coin(l) | 0081 387,952 | l.a.
b. Interest-bearing balances(2) | 0071 208 | l.b.
2. Securities: |////////////////// |
a. Held-to-maturity securities (from Schedule RC-3, column A) | 1754 221,210 | 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) | 1773 1,799,385 | 2.b.
3. Federal funds sold and securities purchased under agreements to resell: |////////////////// |
a. Federal funds sold and securities purchased under agreements to resell | 1350 30,300 | 3.
4. Loans and lease financing receivables: |////////////////// |
a. Loans and leases, net of unearned income
(from Schedule RC-C) | RCON 2122 | 3,284,087 |////////////////// | 4.a.
b. LESS: Allowance for loan and lease losses | RCON 3123 | 61,071 |////////////////// | 4.b
c. LESS: Allocated transfer risk reserve | RCON 3128 | 0 | ////////////////// | 4.c.
d. Loans and leases, net of unearned income, |////////////////// |
allowance, and reserve (item 4.a minus 4.b and 4.c) | 2125 3,223,016 | 4.d.
5. Trading assets (from Schedule RC-D) | 3545 40,787 | 5.
6. Premises and fixed assets (including capitalized leases) | 2145 55,659 | 6.
7. Other real estate owned (from Schedule RC-M} | 2150 2,358 | 7.
8. Investments in un consolidated subsidiaries
and associated companies (from Schedule RC-M) | 2130 0 | 8.
9. Customers liability to this bank on acceptances outstanding | 2155 26,091 | 9.
10. Intangible assets (from Schedule RC-M) | 2143 119,902 | 10.
11. Other assets (from Schedule RC-F) | 2160 141,132 | 11.
12. Total assets (sum of items 1 through 11) | 2170 6,048,000 | 12.
</TABLE>
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
Page 64 of 66
<PAGE>
Exhibit 6
<TABLE>
<S> <C>
LIABILITIES |////////////////// |
13. Deposits: |////////////////// |
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E) | 2200 3,562,765 | 13.a.
(1) Noninterest-bearing(l) | RCON 6631 | 861,241 |////////////////// | 13.a.(1)
(2) Interest-bearing | RCON 6636 | 2,701,524 |////////////////// | 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs |///////////////// |
(1) Noninterest-bearing |////////////////// |
(2) Interest-bearing |////////////////// |
14. Federal funds purchased and securities sold under agreements to repurchase: |////////////////// |
a. Federal funds purchased and securities sold under agreements to repurchase | 2800 1,478,568 | 14.
15. a. Demand notes issued to the U.S. Treasury | 2840 16,951 | l5.a.
b. Trading liabilities (from Schedule RC-D) | 3548 0 | l5.b.
16. Other borrowed money (includes mortgage indebtedness & obligations under
capitalized leases) |////////////////// |
a. with a remaining maturity of one year or less | 2332 237,641 | 16.a.
b. with a remaining maturity of more than one year through three years | A547 130,130 | 16.b.
c. with a remaining maturity of more than three years | A548 49,846 | 16.c.
17. Not Applicable | ///////////////// | 17.
18. Bank's liability on acceptances executed and outstanding | 2920 26,091 | 18.
19. Subordinated notes and debentures | 3200 148,551 | l9.
20. Other liabilities (from Schedule RC-G) | 2930 82,378 | 20.
21. Total liabilities (sum of items 13 through 20) | 2948 5,732,561 | 21.
22. Not Applicable |////////////////// | 22.
EQUITY CAPITAL |////////////////// |
23. Perpetual preferred stock and related surplus | 3838 13 | 23.
24. Common stock | 3230 52,875 | 24.
25. Surplus (exclude all surplus related to preferred stock) | 3839 71,392 | 25.
26. a. Undivided profits and capital reserves | 3632 212,508 | 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities | 8434 (21,349) | 26.b.
27. Cumulative foreign currency translation adjustments |///////////////// |
28. Total equity capital (sum of items 23 through 27) | 3210 315,439 | 28.
29. Total liabilities, limited-life preferred stock, and equity capital |///////////////// |
(sum of items 21, 22, and 28) | 3300 6,048,000 | 29.
</TABLE>
Page 65 of 66
<PAGE>
Exhibit 6
MEMORANDUM
To be reported only with the June Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed
for the bank by independent external auditors as of any date during
1998.
|RCON 6724 | N/A |M.1.
1 - Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which submits
a report on the bank.
2 - Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company (but
not on the bank separately).
3 - Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority).
4 - Directors' examination of the bank performed by other external auditors (may
be required by state chartering authority).
5 - Review of the banks financial statements by external auditors.
6 - Compilation of the bank's financial statements by external auditors.
7 - Other audit procedures (excluding tax preparation work).
8 - No external audit work.
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits
Page 66 of 66
<PAGE>
Registration No.
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2): [X]
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
OGE ENERGY CORP.
OGE ENERGY CAPITAL TRUST I
(Exact name of obligor as specified in its charter)
<TABLE>
<CAPTION>
<S> <C>
Oklahoma 73-1481638
Delaware To Be Applied For
(State of incorporation) (I.R.S. employer identification no.)
321 North Harvey Avenue
Oklahoma City, Oklahoma 73102
c/o OGE Energy Corp.
321 North Harvey Avenue
Oklahoma City, Oklahoma 73102
(Address of principal executive offices) (Zip Code)
</TABLE>
___% Preferred Securities of OGE Energy Capital Trust I
(Title of the indenture securities)
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
<TABLE>
<CAPTION>
<S> <C>
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each affiliation:
Based upon an examination of the books and records of the trustee and
upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of Eligibility and
Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to exercise
corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 27th day
of September, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Patricia A. Evans By: /s/ Donald G. MacKelcan
-------------------------- -------------------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
<PAGE>
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE>
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address is
Rodney Square North, in said City. In addition to such principal office,
the said corporation maintains and operates branch offices in the City of
Newark, New Castle County, Delaware, the Town of Newport, New Castle
County, Delaware, at Claymont, New Castle County, Delaware, at Greenville,
New Castle County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market
Street, and 3605 Market Street, all in the City of Wilmington, New Castle
County, Delaware, and such other branch offices or places of business as
may be authorized from time to time by the agency or agencies of the
government of the State of Delaware empowered to confer such authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the Corporation shall require, to
<PAGE>
make by-laws not inconsistent with the Constitution or laws of the
United States or of this State, to discount bills, notes or other
evidences of debt, to receive deposits of money, or securities for
money, to buy gold and silver bullion and foreign coins, to buy
and sell bills of exchange, and generally to use, exercise and
enjoy all the powers, rights, privileges and franchises incident
to a corporation which are proper or necessary for the transaction
of the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property, real
or personal, against any claim or claims, adverse to his interest
therein, and to prepare and give certificates of title for any lands
or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort and
kind, from executors, administrators, guardians, public officers,
courts, receivers, assignees, trustees, and from all fiduciaries, and
from all other persons and individuals, and from all corporations
whether state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation, association,
state or municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the two parties,
and in like manner may act as Treasurer of any corporation or
municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or persons,
for the faithful performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with any other person,
or
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persons, corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment, suit, order,
or decree to be entered in any court of record within the State of
Delaware or elsewhere, or which may now or hereafter be required by
any law, judge, officer or court in the State of Delaware or
elsewhere.
(9) To act by any and every method of appointment as trustee, trustee
in bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and all estates and
property, real, personal or mixed, and to be appointed as such
trustee, trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian or bailee by any
persons, corporations, court, officer, or authority, in the State of
Delaware or elsewhere; and whenever this Corporation is so appointed
by any person, corporation, court, officer or authority such trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity, it shall not be required to give bond with surety, but its
capital stock shall be taken and held as security for the performance
of the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for the
assumption of any responsibility the said Corporation may be entitled
to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages, debentures,
shares of capital stock, and other securities, obligations, contracts
and evidences of indebtedness, of any private, public or municipal
corporation within and without the State of Delaware, or of the
Government of the United States, or of any state, territory, colony,
or possession thereof, or of any foreign government or country; to
receive, collect, receipt for, and dispose of interest, dividends and
income upon and from any of the bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations, contracts, evidences
of indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations, contracts, evidences
of indebtedness and other property, any and all the rights, powers and
privileges of individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys of the
Corporation upon such securities and in such manner as it may think
fit and proper, and from time to time to vary or realize such
investments; to issue bonds and secure the same by pledges or deeds of
trust or mortgages of or upon the whole or any part of the property
held or owned by the Corporation, and to sell and pledge such bonds,
as and when the Board of Directors shall determine, and in the
promotion of its said corporate business of investment and to the
extent authorized by law, to lease, purchase, hold, sell, assign,
transfer, pledge,
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mortgage and convey real and personal property of any name and
nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that the
said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in any
manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary or
convenient in and about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of
property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount, execute
and issue promissory notes, drafts, bills of exchange, warrants,
bonds, debentures, and other negotiable or transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of, real
and personal property, of every class and description, in any State,
District, Territory or Colony of the United States, and in any foreign
country or place.
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except where
otherwise expressed in said paragraph) be nowise limited or restricted
by reference to or inference from the terms of any other clause of
this or any other paragraph in this charter, but that the objects,
purposes and powers specified in each of the clauses of this paragraph
shall be regarded as independent objects, purposes and powers.
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Fourth: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million (41,000,000)
shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other special rights
of each such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any
time outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article Fourth, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a particular
series of Preferred Stock, the voting powers and the designations,
preferences and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series, including, but
without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of stock and whether such dividends
shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject to
redemption, and the redemption price or prices and the time or times
at which, and the terms and conditions on which, Preferred Stock of
such series may be redeemed.
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(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section (b)
of this Article Fourth), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article Fourth), and subject further to any conditions which may be
fixed in accordance with the provisions of section (b) of this Article
Fourth, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article Fourth), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up, of the Corporation, the
holders of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held by them
respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each holder
of Common Stock shall have one vote in respect of each share of Common
Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or series
of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock
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of any class or series or any additional shares of any class or series
to be issued by reason of any increase of the authorized capital stock
of the Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article Fourth and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the powers,
preferences and rights of such other series shall be fixed by the Board of
Directors as senior to, or on a parity with, the powers, preferences and
rights of such outstanding series, or any of them; provided, however, that
the Board of Directors may provide in the resolution or resolutions as to
any series of Preferred Stock adopted pursuant to section (b) of this
Article Fourth that the consent of the holders of a majority (or such
greater proportion as shall be therein fixed) of the outstanding shares of
such series voting thereon shall be required for the issuance of any or all
other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock
may, without a class or series vote, be increased or decreased from time to
time by the affirmative vote of the holders of a majority of the stock of
the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be reduced
so as to shorten the term of any director at the time in office, and
provided further, that the number
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of directors constituting the whole Board shall be twenty-four until
otherwise fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the next
succeeding annual meeting, directors of the second class shall be elected
to hold office for a term expiring at the second succeeding annual meeting
and directors of the third class shall be elected to hold office for a term
expiring at the third succeeding annual meeting. Any vacancies in the
Board of Directors for any reason, and any newly created directorships
resulting from any increase in the directors, may be filled by the Board of
Directors, acting by a majority of the directors then in office, although
less than a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the stockholders
shall elect a successor to such director to hold office until the next
election of the class for which such director shall have been chosen and
until his successor shall be elected and qualified. No decrease in the
number of directors shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the Corporation may be removed at any time
without cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the
stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered or
mailed, as prescribed, to the Secretary of the Corporation not later than
the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on behalf
of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such nominee
and (iii) the number of shares of stock of the Corporation which are
beneficially owned by each such nominee.
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(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so declare
to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agents and servants as
may be provided in the By-Laws as they may from time to time find necessary
or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized under
the Act entitled "An Act Providing a General Corporation Law", approved
March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make, alter
or repeal any By-Law whether or not adopted by them, provided however, that
any such additional By-Laws, alterations or repeal may be adopted only by
the affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class).
Fourteenth: - Meetings of the Directors may be held outside
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of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from time
to time designated by them.
Fifteenth: - (a) (1) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or not
itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
(C) the issuance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of related transactions) of any securities
of the Corporation or any Subsidiary to any Interested Stockholder or
any Affiliate of any Interested Stockholder in exchange for cash,
securities or other property (or a combination thereof) having an
aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly or
indirectly, of increasing the proportionate share of the outstanding
shares of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly owned by
any Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
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(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to in any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article Fifteenth shall not
be applicable to any particular business combination and such business
combination shall require only such affirmative vote as is required by
law and any other provisions of the Charter or Act of Incorporation or
By-Laws if such business combination has been approved by a majority
of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual, firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on such business combination, or
immediately prior to the consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of more than 10%
of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or indirectly,
of not less than 10% of the then outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested Stockholder,
and such assignment or succession shall have occurred in the course of
a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately or
only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
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(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect on
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis of
information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an Affiliate
or Associate of another, (3) whether a person has an agreement,
arrangement or understanding with another as to the matters referred
to in paragraph (3) of section (c), or (4) whether the assets subject
to any business combination or the consideration received for the
issuance or transfer of securities by the Corporation, or any
Subsidiary has an aggregate fair market value of $1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed to
relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
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Seventeenth: (a) a Director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware General
Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or
at such other date, time, or place as may be designated by resolution by the
Board of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at
his last known address, a written or printed notice fixing the time and place
of such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of
any business, but the holders of a small number of shares may adjourn, from
time to time, without further notice, until a quorum is secured. At each
annual or special meeting of stockholders, each stockholder shall be entitled
to one vote, either in person or by proxy, for each share of stock registered
in the stockholder's name on the books of the Company on the record date for
any such meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
<PAGE>
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by
a majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting,
which shall be mailed not less than two days before the time of holding such
meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall
hold office for the remainder of the full term of the class of directors in
which the vacancy occurred, and until such director's successor shall have
been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect
from its own members a Chairman of the Board of Directors and a President who
may be the same person. The Board of Directors shall also elect at such
meeting a Secretary and a Treasurer, who may be the same person, may appoint
at any time such other committees and elect or appoint such other officers as
it may deem advisable. The Board of Directors may also elect at such meeting
one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or divisions of the Company as it may deem
advisable.
2
<PAGE>
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its
own members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of
the Board of Directors when it is not in session to transact all business for
and in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of
the Executive Committee or at the call of the Chairman of the Board of
Directors. The majority of its members shall be necessary to constitute a
quorum for the transaction of business. Special meetings of the Executive
Committee may be held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee
shall be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend
all investments that may be made of the funds of the Company, and shall
direct the disposal of the same, in accordance with such rules and
regulations as the Board of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws
any two available members of the Executive Committee as constituted
immediately prior to such disaster shall constitute a quorum of that
Committee for the full conduct and management of the affairs and business of
the Company in accordance with the provisions of Article III of these
By-Laws; and if less than three members of the Trust Committee is constituted
immediately prior to such disaster shall be available for the transaction of
its business, such Executive Committee shall also be empowered to exercise
all of the powers reserved to the Trust Committee under Article III Section 2
hereof. In the event of the unavailability, at such time, of a minimum of
two members of such Executive Committee, any three available directors shall
constitute the Executive Committee for the full conduct and management of the
affairs and business of the Company in accordance with the foregoing
provisions of this Section. This By-Law shall be subject to implementation
by Resolutions of the Board of Directors presently existing or hereafter
passed from time to time for that purpose, and any provisions of these
By-Laws (other than this
3
<PAGE>
Section) and any resolutions which are contrary to the provisions of this
Section or to the provisions of any such implementary Resolutions shall be
suspended during such a disaster period until it shall be determined by any
interim Executive Committee acting under this section that it shall be to the
advantage of the Company to resume the conduct and management of its affairs
and business under all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority
of whom shall be members of the Board of Directors and who shall hold office
during the pleasure of the Board.
(B) The Trust Committee shall have general supervision over
the Trust Department and the investment of trust funds, in all matters,
however, being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined
by a majority of its members or at the call of its chairman. A majority of
its members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the
Trust Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members
who shall be selected by the Board of Directors from its own members, none of
whom shall be an officer of the Company, and shall hold office at the
pleasure of the Board.
(B) The Audit Committee shall have general supervision over
the Audit Division in all matters however subject to the approval of the
Board of Directors; it shall consider all matters brought to its attention by
the officer in charge of the Audit Division, review all reports of
examination of the Company made by any governmental agency or such
independent auditor employed for that purpose, and make such recommendations
to the Board of Directors with respect thereto or with respect to any other
matters pertaining to auditing the Company as it shall deem desirable.
4
<PAGE>
(C) The Audit Committee shall meet whenever and wherever
the majority of its members shall deem it to be proper for the transaction of
its business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not
more than five (5) members who shall be selected by the Board of Directors
from its own members who are not officers of the Company and who shall hold
office during the pleasure of the Board.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at
any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected
by the Board of Directors as an associate director, to serve during the
pleasure of the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought
to the Board, with the exception that he would have no right to vote. An
associate director will be eligible for appointment to Committees of the
Company, with the exception of the Executive Committee, Audit Committee and
Compensation Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member.
5
<PAGE>
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and
shall perform such duties as the Board of Directors may from time to time
confer and direct. He shall also exercise such powers and perform such
duties as may from time to time be agreed upon between himself and the
President of the Company.
Section 2. THE VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such
further authority and powers and shall perform such duties as the Board of
Directors or the Chairman of the Board may from time to time confer and
direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors. In the absence of the Chairman of
the Board the President shall have the powers and duties of the Chairman of
the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and
shall at all times exercise general supervision over the interest, affairs
and operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and
such other powers and duties as may from time to time be assigned to them by
the Board of Directors, the Executive Committee, the Chairman of the Board or
the President and by the officer in charge of the department or division to
which they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings
and to recording the same in the minute books of the Company. In addition to
the other notice requirements of these By-Laws and as may be practicable
under the circumstances, all such notices shall be in writing and mailed well
in advance of the scheduled date of any other meeting. He shall have custody
of the corporate seal and shall affix the same to any documents requiring
such corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of
6
<PAGE>
all the transactions of the Company. He shall have general supervision of
the expenditures of the Company and shall report to the Board of Directors at
each regular meeting of the condition of the Company, and perform such other
duties as may be assigned to him from time to time by the Board of Directors
of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including
accounting, and shall render to the Board of Directors at appropriate times a
report relating to the general condition and internal operations of the
Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only
to the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from
time to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom
they are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the
department or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock
shall be recorded.
Section 2. Certificates of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of
Directors and countersigned by the Secretary or
7
<PAGE>
Treasurer or an Assistant Secretary, and the seal of the corporation shall be
engraved thereon. Each certificate shall recite that the stock represented
thereby is transferrable only upon the books of the Company by the holder
thereof or his attorney, upon surrender of the certificate properly endorsed.
Any certificate of stock surrendered to the Company shall be cancelled at
the time of transfer, and before a new certificate or certificates shall be
issued in lieu thereof. Duplicate certificates of stock shall be issued only
upon giving such security as may be satisfactory to the Board of Directors or
the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled
to notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment
or rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the
date for the payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of capital
stock shall go into effect, or a date in connection with obtaining such
consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full
power and authority to enter into, make, sign, execute, acknowledge and/or
deliver and the Secretary or any Assistant Secretary shall have full
8
<PAGE>
power and authority to attest and affix the corporate seal of the Company to
any and all deeds, conveyances, assignments, releases, contracts, agreements,
bonds, notes, mortgages and all other instruments incident to the business of
this Company or in acting as executor, administrator, guardian, trustee,
agent or in any other fiduciary or representative capacity by any and every
method of appointment or by whatever person, corporation, court officer or
authority in the State of Delaware, or elsewhere, without any specific
authority, ratification, approval or confirmation by the Board of Directors
or the Executive Committee, and any and all such instruments shall have the
same force and validity as though expressly authorized by the Board of
Directors and/or the Executive Committee.
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors
who serve as members of committees, other than salaried employees of the
Company, shall be paid such reasonable honoraria or fees for services as
members of committees as the Board of Directors shall from time to time
determine and directors and associate directors may be employed by the
Company for such special services as the Board of Directors may from time to
time determine and shall be paid for such special services so performed
reasonable compensation as may be determined by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be
made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding") by
reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation or of
a partnership, joint venture, trust, enterprise or non-profit entity,
including service with respect to employee benefit plans, against all
liability and loss suffered and expenses reasonably incurred by such person.
The Corporation shall indemnify a person in connection with a proceeding
initiated by such person only if the proceeding was authorized by the Board
of Directors of the Corporation.
9
<PAGE>
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, PROVIDED,
HOWEVER, that the payment of expenses incurred by a Director or officer in
his capacity as a Director or officer in advance of the final disposition of
the proceeding shall be made only upon receipt of an undertaking by the
Director or officer to repay all amounts advanced if it should be ultimately
determined that the Director or officer is not entitled to be indemnified
under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file
suit to recover the unpaid amount of such claim and, if successful in whole
or in part, shall be entitled to be paid the expense of prosecuting such
claim. In any such action the Corporation shall have the burden of proving
that the claimant was not entitled to the requested indemnification of
payment of expenses under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or
disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions
of this Article X shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission occurring prior to
the time of such repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole
or in part, and any new By-Law or By-Laws adopted at any regular or special
meeting of the Board of Directors by a vote of the majority of all the
members of the Board of Directors then in office.
10
<PAGE>
EXHIBIT C
SECTION 321(b) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of
examinations by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
requests therefor.
WILMINGTON TRUST COMPANY
Dated: September 27, 1999 By: /s/ Donald G. MacKelcan
------------------ ------------------------------
Name: Donald G. MacKelcan
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks
and savings banks with state publication requirements.
It has not been approved by any state banking
authorities. Refer to your appropriate state banking
authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ---------------------------------------- ----------------
Name of Bank City
in the State of DELAWARE, at the close of business on June 30, 1999.
--------
<TABLE>
<CAPTION>
Thousands of dollars
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins................................................. 207,947
Interest-bearing balances........................................................................... 0
Held-to-maturity securities.............................................................................. 37,680
Available-for-sale securities............................................................................ 1,598,933
Federal funds sold and securities purchased under agreements to resell................................... 180,366
Loans and lease financing receivables:
Loans and leases, net of unearned income...................................... 4,237,557
LESS: Allowance for loan and lease losses.................................... 70,233
LESS: Allocated transfer risk reserve........................................ 0
Loans and leases, net of unearned income, allowance, and reserve.................................... 4,167,324
Assets held in trading accounts.......................................................................... 0
Premises and fixed assets (including capitalized leases)................................................. 141,415
Other real estate owned.................................................................................. 922
Investments in unconsolidated subsidiaries and associated companies...................................... 1,227
Customers' liability to this bank on acceptances outstanding............................................. 0
Intangible assets........................................................................................ 5,179
Other assets............................................................................................. 104,101
Total assets............................................................................................. 6,445,094
CONTINUED ON NEXT PAGE
<PAGE>
LIABILITIES
Deposits:
In domestic offices...................................................................................... 4,574,509
Noninterest-bearing..................................................... 992,436
Interest-bearing........................................................ 3,582,073
Federal funds purchased and Securities sold under agreements to repurchase............................... 344,719
Demand notes issued to the U.S. Treasury................................................................. 83,802
Trading liabilities (from Schedule RC-D)................................................................. 0
Other borrowed money:.................................................................................... ///////
With original maturity of one year or less.......................................................... 860,000
With original maturity of more than one year........................................................ 43,000
Bank's liability on acceptances executed and outstanding................................................. 0
Subordinated notes and debentures........................................................................ 0
Other liabilities (from Schedule RC-G)................................................................... 80,279
Total liabilities........................................................................................ 5,986,309
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................................................ 0
Common Stock............................................................................................. 500
Surplus (exclude all surplus related to preferred stock)................................................. 62,118
Undivided profits and capital reserves................................................................... 412,409
Net unrealized holding gains (losses) on available-for-sale securities................................... (16,242)
Total equity capital..................................................................................... 458,785
Total liabilities, limited-life preferred stock, and equity capital...................................... 6,445,094
</TABLE>
2
<PAGE>
Registration No.
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2):[X]
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
OGE ENERGY CORP.
OGE ENERGY CAPITAL TRUST II
(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C>
Oklahoma 73-1481638
Delaware To Be Applied For
(State of incorporation) (I.R.S. employer identification no.)
321 North Harvey Avenue
Oklahoma City, Oklahoma 73102
c/o OGE Energy Corp.
321 North Harvey Avenue
Oklahoma City, Oklahoma 73102
(Address of principal executive offices) (Zip Code)
</TABLE>
___% Preferred Securities of OGE Energy Capital Trust II
(Title of the indenture securities)
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
<TABLE>
<S> <C>
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each affiliation:
Based upon an examination of the books and records of the trustee and
upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of Eligibility and
Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to exercise
corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 27th day
of September, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Patricia A. Evans By: /s/ Donald G. MacKelcan
---------------------------- ----------------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
<PAGE>
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE>
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address is
Rodney Square North, in said City. In addition to such principal office,
the said corporation maintains and operates branch offices in the City of
Newark, New Castle County, Delaware, the Town of Newport, New Castle
County, Delaware, at Claymont, New Castle County, Delaware, at Greenville,
New Castle County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market
Street, and 3605 Market Street, all in the City of Wilmington, New Castle
County, Delaware, and such other branch offices or places of business as
may be authorized from time to time by the agency or agencies of the
government of the State of Delaware empowered to confer such authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the Corporation shall require, to
<PAGE>
make by-laws not inconsistent with the Constitution or laws of the
United States or of this State, to discount bills, notes or other
evidences of debt, to receive deposits of money, or securities for
money, to buy gold and silver bullion and foreign coins, to buy
and sell bills of exchange, and generally to use, exercise and
enjoy all the powers, rights, privileges and franchises incident
to a corporation which are proper or necessary for the transaction
of the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property, real
or personal, against any claim or claims, adverse to his interest
therein, and to prepare and give certificates of title for any lands
or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort and
kind, from executors, administrators, guardians, public officers,
courts, receivers, assignees, trustees, and from all fiduciaries, and
from all other persons and individuals, and from all corporations
whether state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation, association,
state or municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the two parties,
and in like manner may act as Treasurer of any corporation or
municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or persons,
for the faithful performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with any other person,
or
-2-
<PAGE>
persons, corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment, suit, order,
or decree to be entered in any court of record within the State of
Delaware or elsewhere, or which may now or hereafter be required by
any law, judge, officer or court in the State of Delaware or
elsewhere.
(9) To act by any and every method of appointment as trustee, trustee
in bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and all estates and
property, real, personal or mixed, and to be appointed as such
trustee, trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian or bailee by any
persons, corporations, court, officer, or authority, in the State of
Delaware or elsewhere; and whenever this Corporation is so appointed
by any person, corporation, court, officer or authority such trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity, it shall not be required to give bond with surety, but its
capital stock shall be taken and held as security for the performance
of the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for the
assumption of any responsibility the said Corporation may be entitled
to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages, debentures,
shares of capital stock, and other securities, obligations, contracts
and evidences of indebtedness, of any private, public or municipal
corporation within and without the State of Delaware, or of the
Government of the United States, or of any state, territory, colony,
or possession thereof, or of any foreign government or country; to
receive, collect, receipt for, and dispose of interest, dividends and
income upon and from any of the bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations, contracts, evidences
of indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations, contracts, evidences
of indebtedness and other property, any and all the rights, powers and
privileges of individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys of the
Corporation upon such securities and in such manner as it may think
fit and proper, and from time to time to vary or realize such
investments; to issue bonds and secure the same by pledges or deeds of
trust or mortgages of or upon the whole or any part of the property
held or owned by the Corporation, and to sell and pledge such bonds,
as and when the Board of Directors shall determine, and in the
promotion of its said corporate business of investment and to the
extent authorized by law, to lease, purchase, hold, sell, assign,
transfer, pledge,
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mortgage and convey real and personal property of any name and
nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that the
said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in any
manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary or
convenient in and about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of
property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount, execute
and issue promissory notes, drafts, bills of exchange, warrants,
bonds, debentures, and other negotiable or transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of, real
and personal property, of every class and description, in any State,
District, Territory or Colony of the United States, and in any foreign
country or place.
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except where
otherwise expressed in said paragraph) be nowise limited or restricted
by reference to or inference from the terms of any other clause of
this or any other paragraph in this charter, but that the objects,
purposes and powers specified in each of the clauses of this paragraph
shall be regarded as independent objects, purposes and powers.
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Fourth: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million (41,000,000)
shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other special rights
of each such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any
time outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article Fourth, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a particular
series of Preferred Stock, the voting powers and the designations,
preferences and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series, including, but
without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of stock and whether such dividends
shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject to
redemption, and the redemption price or prices and the time or times
at which, and the terms and conditions on which, Preferred Stock of
such series may be redeemed.
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(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section (b)
of this Article Fourth), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article Fourth), and subject further to any conditions which may be
fixed in accordance with the provisions of section (b) of this Article
Fourth, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article Fourth), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up, of the Corporation, the
holders of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held by them
respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each holder
of Common Stock shall have one vote in respect of each share of Common
Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or series
of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock
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of any class or series or any additional shares of any class or series
to be issued by reason of any increase of the authorized capital stock
of the Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article Fourth and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the powers,
preferences and rights of such other series shall be fixed by the Board of
Directors as senior to, or on a parity with, the powers, preferences and
rights of such outstanding series, or any of them; provided, however, that
the Board of Directors may provide in the resolution or resolutions as to
any series of Preferred Stock adopted pursuant to section (b) of this
Article Fourth that the consent of the holders of a majority (or such
greater proportion as shall be therein fixed) of the outstanding shares of
such series voting thereon shall be required for the issuance of any or all
other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock
may, without a class or series vote, be increased or decreased from time to
time by the affirmative vote of the holders of a majority of the stock of
the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be reduced
so as to shorten the term of any director at the time in office, and
provided further, that the number
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of directors constituting the whole Board shall be twenty-four until
otherwise fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the next
succeeding annual meeting, directors of the second class shall be elected
to hold office for a term expiring at the second succeeding annual meeting
and directors of the third class shall be elected to hold office for a term
expiring at the third succeeding annual meeting. Any vacancies in the
Board of Directors for any reason, and any newly created directorships
resulting from any increase in the directors, may be filled by the Board of
Directors, acting by a majority of the directors then in office, although
less than a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the stockholders
shall elect a successor to such director to hold office until the next
election of the class for which such director shall have been chosen and
until his successor shall be elected and qualified. No decrease in the
number of directors shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the Corporation may be removed at any time
without cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the
stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered or
mailed, as prescribed, to the Secretary of the Corporation not later than
the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on behalf
of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such nominee
and (iii) the number of shares of stock of the Corporation which are
beneficially owned by each such nominee.
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(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so declare
to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agents and servants as
may be provided in the By-Laws as they may from time to time find necessary
or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized under
the Act entitled "An Act Providing a General Corporation Law", approved
March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make, alter
or repeal any By-Law whether or not adopted by them, provided however, that
any such additional By-Laws, alterations or repeal may be adopted only by
the affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class).
Fourteenth: - Meetings of the Directors may be held outside
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of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from time
to time designated by them.
Fifteenth: - (a) (1) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or not
itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
(C) the issuance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of related transactions) of any securities
of the Corporation or any Subsidiary to any Interested Stockholder or
any Affiliate of any Interested Stockholder in exchange for cash,
securities or other property (or a combination thereof) having an
aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly or
indirectly, of increasing the proportionate share of the outstanding
shares of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly owned by
any Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
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(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to in any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article Fifteenth shall not
be applicable to any particular business combination and such business
combination shall require only such affirmative vote as is required by
law and any other provisions of the Charter or Act of Incorporation or
By-Laws if such business combination has been approved by a majority
of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual, firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on such business combination, or
immediately prior to the consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of more than 10%
of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or indirectly,
of not less than 10% of the then outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested Stockholder,
and such assignment or succession shall have occurred in the course of
a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately or
only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
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(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect on
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis of
information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an Affiliate
or Associate of another, (3) whether a person has an agreement,
arrangement or understanding with another as to the matters referred
to in paragraph (3) of section (c), or (4) whether the assets subject
to any business combination or the consideration received for the
issuance or transfer of securities by the Corporation, or any
Subsidiary has an aggregate fair market value of $1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed to
relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
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Seventeenth: (a) a Director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware General
Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or
at such other date, time, or place as may be designated by resolution by the
Board of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at
his last known address, a written or printed notice fixing the time and place
of such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of
any business, but the holders of a small number of shares may adjourn, from
time to time, without further notice, until a quorum is secured. At each
annual or special meeting of stockholders, each stockholder shall be entitled
to one vote, either in person or by proxy, for each share of stock registered
in the stockholder's name on the books of the Company on the record date for
any such meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
<PAGE>
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by
a majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting,
which shall be mailed not less than two days before the time of holding such
meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall
hold office for the remainder of the full term of the class of directors in
which the vacancy occurred, and until such director's successor shall have
been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect
from its own members a Chairman of the Board of Directors and a President who
may be the same person. The Board of Directors shall also elect at such
meeting a Secretary and a Treasurer, who may be the same person, may appoint
at any time such other committees and elect or appoint such other officers as
it may deem advisable. The Board of Directors may also elect at such meeting
one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or divisions of the Company as it may deem
advisable.
2
<PAGE>
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its
own members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of
the Board of Directors when it is not in session to transact all business for
and in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of
the Executive Committee or at the call of the Chairman of the Board of
Directors. The majority of its members shall be necessary to constitute a
quorum for the transaction of business. Special meetings of the Executive
Committee may be held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee
shall be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend
all investments that may be made of the funds of the Company, and shall
direct the disposal of the same, in accordance with such rules and
regulations as the Board of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws
any two available members of the Executive Committee as constituted
immediately prior to such disaster shall constitute a quorum of that
Committee for the full conduct and management of the affairs and business of
the Company in accordance with the provisions of Article III of these
By-Laws; and if less than three members of the Trust Committee is constituted
immediately prior to such disaster shall be available for the transaction of
its business, such Executive Committee shall also be empowered to exercise
all of the powers reserved to the Trust Committee under Article III Section 2
hereof. In the event of the unavailability, at such time, of a minimum of
two members of such Executive Committee, any three available directors shall
constitute the Executive Committee for the full conduct and management of the
affairs and business of the Company in accordance with the foregoing
provisions of this Section. This By-Law shall be subject to implementation
by Resolutions of the Board of Directors presently existing or hereafter
passed from time to time for that purpose, and any provisions of these
By-Laws (other than this
3
<PAGE>
Section) and any resolutions which are contrary to the provisions of this
Section or to the provisions of any such implementary Resolutions shall be
suspended during such a disaster period until it shall be determined by any
interim Executive Committee acting under this section that it shall be to the
advantage of the Company to resume the conduct and management of its affairs
and business under all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority
of whom shall be members of the Board of Directors and who shall hold office
during the pleasure of the Board.
(B) The Trust Committee shall have general supervision over
the Trust Department and the investment of trust funds, in all matters,
however, being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined
by a majority of its members or at the call of its chairman. A majority of
its members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the
Trust Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members
who shall be selected by the Board of Directors from its own members, none of
whom shall be an officer of the Company, and shall hold office at the
pleasure of the Board.
(B) The Audit Committee shall have general supervision over
the Audit Division in all matters however subject to the approval of the
Board of Directors; it shall consider all matters brought to its attention by
the officer in charge of the Audit Division, review all reports of
examination of the Company made by any governmental agency or such
independent auditor employed for that purpose, and make such recommendations
to the Board of Directors with respect thereto or with respect to any other
matters pertaining to auditing the Company as it shall deem desirable.
4
<PAGE>
(C) The Audit Committee shall meet whenever and wherever
the majority of its members shall deem it to be proper for the transaction of
its business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not
more than five (5) members who shall be selected by the Board of Directors
from its own members who are not officers of the Company and who shall hold
office during the pleasure of the Board.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at
any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected
by the Board of Directors as an associate director, to serve during the
pleasure of the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought
to the Board, with the exception that he would have no right to vote. An
associate director will be eligible for appointment to Committees of the
Company, with the exception of the Executive Committee, Audit Committee and
Compensation Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member.
5
<PAGE>
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and
shall perform such duties as the Board of Directors may from time to time
confer and direct. He shall also exercise such powers and perform such
duties as may from time to time be agreed upon between himself and the
President of the Company.
Section 2. THE VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such
further authority and powers and shall perform such duties as the Board of
Directors or the Chairman of the Board may from time to time confer and
direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors. In the absence of the Chairman of
the Board the President shall have the powers and duties of the Chairman of
the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and
shall at all times exercise general supervision over the interest, affairs
and operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and
such other powers and duties as may from time to time be assigned to them by
the Board of Directors, the Executive Committee, the Chairman of the Board or
the President and by the officer in charge of the department or division to
which they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings
and to recording the same in the minute books of the Company. In addition to
the other notice requirements of these By-Laws and as may be practicable
under the circumstances, all such notices shall be in writing and mailed well
in advance of the scheduled date of any other meeting. He shall have custody
of the corporate seal and shall affix the same to any documents requiring
such corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of
6
<PAGE>
all the transactions of the Company. He shall have general supervision of
the expenditures of the Company and shall report to the Board of Directors at
each regular meeting of the condition of the Company, and perform such other
duties as may be assigned to him from time to time by the Board of Directors
of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including
accounting, and shall render to the Board of Directors at appropriate times a
report relating to the general condition and internal operations of the
Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only
to the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from
time to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom
they are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the
department or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock
shall be recorded.
Section 2. Certificates of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of
Directors and countersigned by the Secretary or
7
<PAGE>
Treasurer or an Assistant Secretary, and the seal of the corporation shall be
engraved thereon. Each certificate shall recite that the stock represented
thereby is transferrable only upon the books of the Company by the holder
thereof or his attorney, upon surrender of the certificate properly endorsed.
Any certificate of stock surrendered to the Company shall be cancelled at
the time of transfer, and before a new certificate or certificates shall be
issued in lieu thereof. Duplicate certificates of stock shall be issued only
upon giving such security as may be satisfactory to the Board of Directors or
the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled
to notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment
or rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the
date for the payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of capital
stock shall go into effect, or a date in connection with obtaining such
consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full
power and authority to enter into, make, sign, execute, acknowledge and/or
deliver and the Secretary or any Assistant Secretary shall have full
8
<PAGE>
power and authority to attest and affix the corporate seal of the Company to
any and all deeds, conveyances, assignments, releases, contracts, agreements,
bonds, notes, mortgages and all other instruments incident to the business of
this Company or in acting as executor, administrator, guardian, trustee,
agent or in any other fiduciary or representative capacity by any and every
method of appointment or by whatever person, corporation, court officer or
authority in the State of Delaware, or elsewhere, without any specific
authority, ratification, approval or confirmation by the Board of Directors
or the Executive Committee, and any and all such instruments shall have the
same force and validity as though expressly authorized by the Board of
Directors and/or the Executive Committee.
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors
who serve as members of committees, other than salaried employees of the
Company, shall be paid such reasonable honoraria or fees for services as
members of committees as the Board of Directors shall from time to time
determine and directors and associate directors may be employed by the
Company for such special services as the Board of Directors may from time to
time determine and shall be paid for such special services so performed
reasonable compensation as may be determined by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be
made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding") by
reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation or of
a partnership, joint venture, trust, enterprise or non-profit entity,
including service with respect to employee benefit plans, against all
liability and loss suffered and expenses reasonably incurred by such person.
The Corporation shall indemnify a person in connection with a proceeding
initiated by such person only if the proceeding was authorized by the Board
of Directors of the Corporation.
9
<PAGE>
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, PROVIDED,
HOWEVER, that the payment of expenses incurred by a Director or officer in
his capacity as a Director or officer in advance of the final disposition of
the proceeding shall be made only upon receipt of an undertaking by the
Director or officer to repay all amounts advanced if it should be ultimately
determined that the Director or officer is not entitled to be indemnified
under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file
suit to recover the unpaid amount of such claim and, if successful in whole
or in part, shall be entitled to be paid the expense of prosecuting such
claim. In any such action the Corporation shall have the burden of proving
that the claimant was not entitled to the requested indemnification of
payment of expenses under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or
disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions
of this Article X shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission occurring prior to
the time of such repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole
or in part, and any new By-Law or By-Laws adopted at any regular or special
meeting of the Board of Directors by a vote of the majority of all the
members of the Board of Directors then in office.
10
<PAGE>
EXHIBIT C
SECTION 321(b) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of
examinations by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
requests therefor.
WILMINGTON TRUST COMPANY
Dated: September 27, 1999 By: /s/ Donald G. MacKelcan
------------------ ------------------------------
Name: Donald G. MacKelcan
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks
and savings banks with state publication requirements.
It has not been approved by any state banking
authorities. Refer to your appropriate state banking
authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ---------------------------------------- ----------------
Name of Bank City
in the State of DELAWARE, at the close of business on June 30, 1999.
--------
<TABLE>
<CAPTION>
Thousands of dollars
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins................................................. 207,947
Interest-bearing balances........................................................................... 0
Held-to-maturity securities.............................................................................. 37,680
Available-for-sale securities............................................................................ 1,598,933
Federal funds sold and securities purchased under agreements to resell................................... 180,366
Loans and lease financing receivables:
Loans and leases, net of unearned income...................................... 4,237,557
LESS: Allowance for loan and lease losses.................................... 70,233
LESS: Allocated transfer risk reserve........................................ 0
Loans and leases, net of unearned income, allowance, and reserve.................................... 4,167,324
Assets held in trading accounts.......................................................................... 0
Premises and fixed assets (including capitalized leases)................................................. 141,415
Other real estate owned.................................................................................. 922
Investments in unconsolidated subsidiaries and associated companies...................................... 1,227
Customers' liability to this bank on acceptances outstanding............................................. 0
Intangible assets........................................................................................ 5,179
Other assets............................................................................................. 104,101
Total assets............................................................................................. 6,445,094
CONTINUED ON NEXT PAGE
<PAGE>
LIABILITIES
Deposits:
In domestic offices...................................................................................... 4,574,509
Noninterest-bearing..................................................... 992,436
Interest-bearing........................................................ 3,582,073
Federal funds purchased and Securities sold under agreements to repurchase............................... 344,719
Demand notes issued to the U.S. Treasury................................................................. 83,802
Trading liabilities (from Schedule RC-D)................................................................. 0
Other borrowed money:.................................................................................... ///////
With original maturity of one year or less.......................................................... 860,000
With original maturity of more than one year........................................................ 43,000
Bank's liability on acceptances executed and outstanding................................................. 0
Subordinated notes and debentures........................................................................ 0
Other liabilities (from Schedule RC-G)................................................................... 80,279
Total liabilities........................................................................................ 5,986,309
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................................................ 0
Common Stock............................................................................................. 500
Surplus (exclude all surplus related to preferred stock)................................................. 62,118
Undivided profits and capital reserves................................................................... 412,409
Net unrealized holding gains (losses) on available-for-sale securities................................... (16,242)
Total equity capital..................................................................................... 458,785
Total liabilities, limited-life preferred stock, and equity capital...................................... 6,445,094
</TABLE>
2
<PAGE>
Registration No.
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2):[X]
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
OGE ENERGY CORP.
(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C>
Oklahoma 73-1481638
(State of incorporation) (I.R.S. employer identification no.)
321 North Harvey Avenue
Oklahoma City, Oklahoma 73102
(Address of principal executive offices) (Zip Code)
</TABLE>
OGE Energy Corp. Guarantee with respect to the Trust Preferred Securities
of OGE Energy Capital Trust I
(Title of the indenture securities)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
<TABLE>
<S> <C>
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each affiliation:
Based upon an examination of the books and records of the trustee and
upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of Eligibility and
Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to exercise
corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 27th day
of September, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Patricia A. Evans By: /s/ Donald G. MacKelcan
---------------------------- -----------------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
<PAGE>
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE>
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address is
Rodney Square North, in said City. In addition to such principal office,
the said corporation maintains and operates branch offices in the City of
Newark, New Castle County, Delaware, the Town of Newport, New Castle
County, Delaware, at Claymont, New Castle County, Delaware, at Greenville,
New Castle County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market
Street, and 3605 Market Street, all in the City of Wilmington, New Castle
County, Delaware, and such other branch offices or places of business as
may be authorized from time to time by the agency or agencies of the
government of the State of Delaware empowered to confer such authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the Corporation shall require, to
<PAGE>
make by-laws not inconsistent with the Constitution or laws of the
United States or of this State, to discount bills, notes or other
evidences of debt, to receive deposits of money, or securities for
money, to buy gold and silver bullion and foreign coins, to buy
and sell bills of exchange, and generally to use, exercise and
enjoy all the powers, rights, privileges and franchises incident
to a corporation which are proper or necessary for the transaction
of the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property, real
or personal, against any claim or claims, adverse to his interest
therein, and to prepare and give certificates of title for any lands
or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort and
kind, from executors, administrators, guardians, public officers,
courts, receivers, assignees, trustees, and from all fiduciaries, and
from all other persons and individuals, and from all corporations
whether state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation, association,
state or municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the two parties,
and in like manner may act as Treasurer of any corporation or
municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or persons,
for the faithful performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with any other person,
or
-2-
<PAGE>
persons, corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment, suit, order,
or decree to be entered in any court of record within the State of
Delaware or elsewhere, or which may now or hereafter be required by
any law, judge, officer or court in the State of Delaware or
elsewhere.
(9) To act by any and every method of appointment as trustee, trustee
in bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and all estates and
property, real, personal or mixed, and to be appointed as such
trustee, trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian or bailee by any
persons, corporations, court, officer, or authority, in the State of
Delaware or elsewhere; and whenever this Corporation is so appointed
by any person, corporation, court, officer or authority such trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity, it shall not be required to give bond with surety, but its
capital stock shall be taken and held as security for the performance
of the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for the
assumption of any responsibility the said Corporation may be entitled
to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages, debentures,
shares of capital stock, and other securities, obligations, contracts
and evidences of indebtedness, of any private, public or municipal
corporation within and without the State of Delaware, or of the
Government of the United States, or of any state, territory, colony,
or possession thereof, or of any foreign government or country; to
receive, collect, receipt for, and dispose of interest, dividends and
income upon and from any of the bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations, contracts, evidences
of indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations, contracts, evidences
of indebtedness and other property, any and all the rights, powers and
privileges of individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys of the
Corporation upon such securities and in such manner as it may think
fit and proper, and from time to time to vary or realize such
investments; to issue bonds and secure the same by pledges or deeds of
trust or mortgages of or upon the whole or any part of the property
held or owned by the Corporation, and to sell and pledge such bonds,
as and when the Board of Directors shall determine, and in the
promotion of its said corporate business of investment and to the
extent authorized by law, to lease, purchase, hold, sell, assign,
transfer, pledge,
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mortgage and convey real and personal property of any name and
nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that the
said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in any
manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary or
convenient in and about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of
property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount, execute
and issue promissory notes, drafts, bills of exchange, warrants,
bonds, debentures, and other negotiable or transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of, real
and personal property, of every class and description, in any State,
District, Territory or Colony of the United States, and in any foreign
country or place.
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except where
otherwise expressed in said paragraph) be nowise limited or restricted
by reference to or inference from the terms of any other clause of
this or any other paragraph in this charter, but that the objects,
purposes and powers specified in each of the clauses of this paragraph
shall be regarded as independent objects, purposes and powers.
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Fourth: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million (41,000,000)
shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other special rights
of each such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any
time outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article Fourth, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a particular
series of Preferred Stock, the voting powers and the designations,
preferences and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series, including, but
without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of stock and whether such dividends
shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject to
redemption, and the redemption price or prices and the time or times
at which, and the terms and conditions on which, Preferred Stock of
such series may be redeemed.
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(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section (b)
of this Article Fourth), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article Fourth), and subject further to any conditions which may be
fixed in accordance with the provisions of section (b) of this Article
Fourth, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article Fourth), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up, of the Corporation, the
holders of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held by them
respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each holder
of Common Stock shall have one vote in respect of each share of Common
Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or series
of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock
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of any class or series or any additional shares of any class or series
to be issued by reason of any increase of the authorized capital stock
of the Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article Fourth and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the powers,
preferences and rights of such other series shall be fixed by the Board of
Directors as senior to, or on a parity with, the powers, preferences and
rights of such outstanding series, or any of them; provided, however, that
the Board of Directors may provide in the resolution or resolutions as to
any series of Preferred Stock adopted pursuant to section (b) of this
Article Fourth that the consent of the holders of a majority (or such
greater proportion as shall be therein fixed) of the outstanding shares of
such series voting thereon shall be required for the issuance of any or all
other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock
may, without a class or series vote, be increased or decreased from time to
time by the affirmative vote of the holders of a majority of the stock of
the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be reduced
so as to shorten the term of any director at the time in office, and
provided further, that the number
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of directors constituting the whole Board shall be twenty-four until
otherwise fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the next
succeeding annual meeting, directors of the second class shall be elected
to hold office for a term expiring at the second succeeding annual meeting
and directors of the third class shall be elected to hold office for a term
expiring at the third succeeding annual meeting. Any vacancies in the
Board of Directors for any reason, and any newly created directorships
resulting from any increase in the directors, may be filled by the Board of
Directors, acting by a majority of the directors then in office, although
less than a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the stockholders
shall elect a successor to such director to hold office until the next
election of the class for which such director shall have been chosen and
until his successor shall be elected and qualified. No decrease in the
number of directors shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the Corporation may be removed at any time
without cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the
stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered or
mailed, as prescribed, to the Secretary of the Corporation not later than
the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on behalf
of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such nominee
and (iii) the number of shares of stock of the Corporation which are
beneficially owned by each such nominee.
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(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so declare
to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agents and servants as
may be provided in the By-Laws as they may from time to time find necessary
or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized under
the Act entitled "An Act Providing a General Corporation Law", approved
March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make, alter
or repeal any By-Law whether or not adopted by them, provided however, that
any such additional By-Laws, alterations or repeal may be adopted only by
the affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class).
Fourteenth: - Meetings of the Directors may be held outside
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of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from time
to time designated by them.
Fifteenth: - (a) (1) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or not
itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
(C) the issuance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of related transactions) of any securities
of the Corporation or any Subsidiary to any Interested Stockholder or
any Affiliate of any Interested Stockholder in exchange for cash,
securities or other property (or a combination thereof) having an
aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly or
indirectly, of increasing the proportionate share of the outstanding
shares of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly owned by
any Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
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(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to in any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article Fifteenth shall not
be applicable to any particular business combination and such business
combination shall require only such affirmative vote as is required by
law and any other provisions of the Charter or Act of Incorporation or
By-Laws if such business combination has been approved by a majority
of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual, firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on such business combination, or
immediately prior to the consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of more than 10%
of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or indirectly,
of not less than 10% of the then outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested Stockholder,
and such assignment or succession shall have occurred in the course of
a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately or
only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
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(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect on
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis of
information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an Affiliate
or Associate of another, (3) whether a person has an agreement,
arrangement or understanding with another as to the matters referred
to in paragraph (3) of section (c), or (4) whether the assets subject
to any business combination or the consideration received for the
issuance or transfer of securities by the Corporation, or any
Subsidiary has an aggregate fair market value of $1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed to
relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
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Seventeenth: (a) a Director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware General
Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or
at such other date, time, or place as may be designated by resolution by the
Board of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at
his last known address, a written or printed notice fixing the time and place
of such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of
any business, but the holders of a small number of shares may adjourn, from
time to time, without further notice, until a quorum is secured. At each
annual or special meeting of stockholders, each stockholder shall be entitled
to one vote, either in person or by proxy, for each share of stock registered
in the stockholder's name on the books of the Company on the record date for
any such meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
<PAGE>
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by
a majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting,
which shall be mailed not less than two days before the time of holding such
meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall
hold office for the remainder of the full term of the class of directors in
which the vacancy occurred, and until such director's successor shall have
been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect
from its own members a Chairman of the Board of Directors and a President who
may be the same person. The Board of Directors shall also elect at such
meeting a Secretary and a Treasurer, who may be the same person, may appoint
at any time such other committees and elect or appoint such other officers as
it may deem advisable. The Board of Directors may also elect at such meeting
one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or divisions of the Company as it may deem
advisable.
2
<PAGE>
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its
own members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of
the Board of Directors when it is not in session to transact all business for
and in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of
the Executive Committee or at the call of the Chairman of the Board of
Directors. The majority of its members shall be necessary to constitute a
quorum for the transaction of business. Special meetings of the Executive
Committee may be held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee
shall be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend
all investments that may be made of the funds of the Company, and shall
direct the disposal of the same, in accordance with such rules and
regulations as the Board of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws
any two available members of the Executive Committee as constituted
immediately prior to such disaster shall constitute a quorum of that
Committee for the full conduct and management of the affairs and business of
the Company in accordance with the provisions of Article III of these
By-Laws; and if less than three members of the Trust Committee is constituted
immediately prior to such disaster shall be available for the transaction of
its business, such Executive Committee shall also be empowered to exercise
all of the powers reserved to the Trust Committee under Article III Section 2
hereof. In the event of the unavailability, at such time, of a minimum of
two members of such Executive Committee, any three available directors shall
constitute the Executive Committee for the full conduct and management of the
affairs and business of the Company in accordance with the foregoing
provisions of this Section. This By-Law shall be subject to implementation
by Resolutions of the Board of Directors presently existing or hereafter
passed from time to time for that purpose, and any provisions of these
By-Laws (other than this
3
<PAGE>
Section) and any resolutions which are contrary to the provisions of this
Section or to the provisions of any such implementary Resolutions shall be
suspended during such a disaster period until it shall be determined by any
interim Executive Committee acting under this section that it shall be to the
advantage of the Company to resume the conduct and management of its affairs
and business under all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority
of whom shall be members of the Board of Directors and who shall hold office
during the pleasure of the Board.
(B) The Trust Committee shall have general supervision over
the Trust Department and the investment of trust funds, in all matters,
however, being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined
by a majority of its members or at the call of its chairman. A majority of
its members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the
Trust Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members
who shall be selected by the Board of Directors from its own members, none of
whom shall be an officer of the Company, and shall hold office at the
pleasure of the Board.
(B) The Audit Committee shall have general supervision over
the Audit Division in all matters however subject to the approval of the
Board of Directors; it shall consider all matters brought to its attention by
the officer in charge of the Audit Division, review all reports of
examination of the Company made by any governmental agency or such
independent auditor employed for that purpose, and make such recommendations
to the Board of Directors with respect thereto or with respect to any other
matters pertaining to auditing the Company as it shall deem desirable.
4
<PAGE>
(C) The Audit Committee shall meet whenever and wherever
the majority of its members shall deem it to be proper for the transaction of
its business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not
more than five (5) members who shall be selected by the Board of Directors
from its own members who are not officers of the Company and who shall hold
office during the pleasure of the Board.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at
any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected
by the Board of Directors as an associate director, to serve during the
pleasure of the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought
to the Board, with the exception that he would have no right to vote. An
associate director will be eligible for appointment to Committees of the
Company, with the exception of the Executive Committee, Audit Committee and
Compensation Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member.
5
<PAGE>
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and
shall perform such duties as the Board of Directors may from time to time
confer and direct. He shall also exercise such powers and perform such
duties as may from time to time be agreed upon between himself and the
President of the Company.
Section 2. THE VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such
further authority and powers and shall perform such duties as the Board of
Directors or the Chairman of the Board may from time to time confer and
direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors. In the absence of the Chairman of
the Board the President shall have the powers and duties of the Chairman of
the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and
shall at all times exercise general supervision over the interest, affairs
and operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and
such other powers and duties as may from time to time be assigned to them by
the Board of Directors, the Executive Committee, the Chairman of the Board or
the President and by the officer in charge of the department or division to
which they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings
and to recording the same in the minute books of the Company. In addition to
the other notice requirements of these By-Laws and as may be practicable
under the circumstances, all such notices shall be in writing and mailed well
in advance of the scheduled date of any other meeting. He shall have custody
of the corporate seal and shall affix the same to any documents requiring
such corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of
6
<PAGE>
all the transactions of the Company. He shall have general supervision of
the expenditures of the Company and shall report to the Board of Directors at
each regular meeting of the condition of the Company, and perform such other
duties as may be assigned to him from time to time by the Board of Directors
of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including
accounting, and shall render to the Board of Directors at appropriate times a
report relating to the general condition and internal operations of the
Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only
to the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from
time to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom
they are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the
department or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock
shall be recorded.
Section 2. Certificates of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of
Directors and countersigned by the Secretary or
7
<PAGE>
Treasurer or an Assistant Secretary, and the seal of the corporation shall be
engraved thereon. Each certificate shall recite that the stock represented
thereby is transferrable only upon the books of the Company by the holder
thereof or his attorney, upon surrender of the certificate properly endorsed.
Any certificate of stock surrendered to the Company shall be cancelled at
the time of transfer, and before a new certificate or certificates shall be
issued in lieu thereof. Duplicate certificates of stock shall be issued only
upon giving such security as may be satisfactory to the Board of Directors or
the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled
to notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment
or rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the
date for the payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of capital
stock shall go into effect, or a date in connection with obtaining such
consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full
power and authority to enter into, make, sign, execute, acknowledge and/or
deliver and the Secretary or any Assistant Secretary shall have full
8
<PAGE>
power and authority to attest and affix the corporate seal of the Company to
any and all deeds, conveyances, assignments, releases, contracts, agreements,
bonds, notes, mortgages and all other instruments incident to the business of
this Company or in acting as executor, administrator, guardian, trustee,
agent or in any other fiduciary or representative capacity by any and every
method of appointment or by whatever person, corporation, court officer or
authority in the State of Delaware, or elsewhere, without any specific
authority, ratification, approval or confirmation by the Board of Directors
or the Executive Committee, and any and all such instruments shall have the
same force and validity as though expressly authorized by the Board of
Directors and/or the Executive Committee.
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors
who serve as members of committees, other than salaried employees of the
Company, shall be paid such reasonable honoraria or fees for services as
members of committees as the Board of Directors shall from time to time
determine and directors and associate directors may be employed by the
Company for such special services as the Board of Directors may from time to
time determine and shall be paid for such special services so performed
reasonable compensation as may be determined by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be
made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding") by
reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation or of
a partnership, joint venture, trust, enterprise or non-profit entity,
including service with respect to employee benefit plans, against all
liability and loss suffered and expenses reasonably incurred by such person.
The Corporation shall indemnify a person in connection with a proceeding
initiated by such person only if the proceeding was authorized by the Board
of Directors of the Corporation.
9
<PAGE>
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, PROVIDED,
HOWEVER, that the payment of expenses incurred by a Director or officer in
his capacity as a Director or officer in advance of the final disposition of
the proceeding shall be made only upon receipt of an undertaking by the
Director or officer to repay all amounts advanced if it should be ultimately
determined that the Director or officer is not entitled to be indemnified
under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file
suit to recover the unpaid amount of such claim and, if successful in whole
or in part, shall be entitled to be paid the expense of prosecuting such
claim. In any such action the Corporation shall have the burden of proving
that the claimant was not entitled to the requested indemnification of
payment of expenses under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or
disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions
of this Article X shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission occurring prior to
the time of such repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole
or in part, and any new By-Law or By-Laws adopted at any regular or special
meeting of the Board of Directors by a vote of the majority of all the
members of the Board of Directors then in office.
10
<PAGE>
EXHIBIT C
SECTION 321(b) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of
examinations by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
requests therefor.
WILMINGTON TRUST COMPANY
Dated: September 27, 1999 By: /s/ Donald G. MacKelcan
------------------ ------------------------------
Name: Donald G. MacKelcan
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks
and savings banks with state publication requirements.
It has not been approved by any state banking
authorities. Refer to your appropriate state banking
authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ---------------------------------------- ----------------
Name of Bank City
in the State of DELAWARE, at the close of business on June 30, 1999.
--------
<TABLE>
<CAPTION>
Thousands of dollars
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins................................................. 207,947
Interest-bearing balances........................................................................... 0
Held-to-maturity securities.............................................................................. 37,680
Available-for-sale securities............................................................................ 1,598,933
Federal funds sold and securities purchased under agreements to resell................................... 180,366
Loans and lease financing receivables:
Loans and leases, net of unearned income...................................... 4,237,557
LESS: Allowance for loan and lease losses.................................... 70,233
LESS: Allocated transfer risk reserve........................................ 0
Loans and leases, net of unearned income, allowance, and reserve.................................... 4,167,324
Assets held in trading accounts.......................................................................... 0
Premises and fixed assets (including capitalized leases)................................................. 141,415
Other real estate owned.................................................................................. 922
Investments in unconsolidated subsidiaries and associated companies...................................... 1,227
Customers' liability to this bank on acceptances outstanding............................................. 0
Intangible assets........................................................................................ 5,179
Other assets............................................................................................. 104,101
Total assets............................................................................................. 6,445,094
CONTINUED ON NEXT PAGE
<PAGE>
LIABILITIES
Deposits:
In domestic offices...................................................................................... 4,574,509
Noninterest-bearing..................................................... 992,436
Interest-bearing........................................................ 3,582,073
Federal funds purchased and Securities sold under agreements to repurchase............................... 344,719
Demand notes issued to the U.S. Treasury................................................................. 83,802
Trading liabilities (from Schedule RC-D)................................................................. 0
Other borrowed money:.................................................................................... ///////
With original maturity of one year or less.......................................................... 860,000
With original maturity of more than one year........................................................ 43,000
Bank's liability on acceptances executed and outstanding................................................. 0
Subordinated notes and debentures........................................................................ 0
Other liabilities (from Schedule RC-G)................................................................... 80,279
Total liabilities........................................................................................ 5,986,309
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................................................ 0
Common Stock............................................................................................. 500
Surplus (exclude all surplus related to preferred stock)................................................. 62,118
Undivided profits and capital reserves................................................................... 412,409
Net unrealized holding gains (losses) on available-for-sale securities................................... (16,242)
Total equity capital..................................................................................... 458,785
Total liabilities, limited-life preferred stock, and equity capital...................................... 6,445,094
</TABLE>
2
<PAGE>
Registration No.
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2):[X]
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
OGE ENERGY CORP.
(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C>
Oklahoma 73-1481638
(State of incorporation) (I.R.S. employer identification no.)
321 North Harvey Avenue
Oklahoma City, Oklahoma 73102
(Address of principal executive offices) (Zip Code)
</TABLE>
OGE Energy Corp. Guarantee with respect to the Trust Preferred Securities
of OGE Energy Capital Trust II
(Title of the indenture securities)
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
<TABLE>
<S> <C>
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each affiliation:
Based upon an examination of the books and records of the trustee and
upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of Eligibility and
Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to exercise
corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 27th day
of September, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Patricia A. Evans By: /s/ Donald G. MacKelcan
----------------------------- ------------------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
<PAGE>
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE>
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address is
Rodney Square North, in said City. In addition to such principal office,
the said corporation maintains and operates branch offices in the City of
Newark, New Castle County, Delaware, the Town of Newport, New Castle
County, Delaware, at Claymont, New Castle County, Delaware, at Greenville,
New Castle County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market
Street, and 3605 Market Street, all in the City of Wilmington, New Castle
County, Delaware, and such other branch offices or places of business as
may be authorized from time to time by the agency or agencies of the
government of the State of Delaware empowered to confer such authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the Corporation shall require, to
<PAGE>
make by-laws not inconsistent with the Constitution or laws of the
United States or of this State, to discount bills, notes or other
evidences of debt, to receive deposits of money, or securities for
money, to buy gold and silver bullion and foreign coins, to buy
and sell bills of exchange, and generally to use, exercise and
enjoy all the powers, rights, privileges and franchises incident
to a corporation which are proper or necessary for the transaction
of the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property, real
or personal, against any claim or claims, adverse to his interest
therein, and to prepare and give certificates of title for any lands
or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort and
kind, from executors, administrators, guardians, public officers,
courts, receivers, assignees, trustees, and from all fiduciaries, and
from all other persons and individuals, and from all corporations
whether state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation, association,
state or municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the two parties,
and in like manner may act as Treasurer of any corporation or
municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or persons,
for the faithful performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with any other person,
or
-2-
<PAGE>
persons, corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment, suit, order,
or decree to be entered in any court of record within the State of
Delaware or elsewhere, or which may now or hereafter be required by
any law, judge, officer or court in the State of Delaware or
elsewhere.
(9) To act by any and every method of appointment as trustee, trustee
in bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and all estates and
property, real, personal or mixed, and to be appointed as such
trustee, trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian or bailee by any
persons, corporations, court, officer, or authority, in the State of
Delaware or elsewhere; and whenever this Corporation is so appointed
by any person, corporation, court, officer or authority such trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity, it shall not be required to give bond with surety, but its
capital stock shall be taken and held as security for the performance
of the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for the
assumption of any responsibility the said Corporation may be entitled
to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages, debentures,
shares of capital stock, and other securities, obligations, contracts
and evidences of indebtedness, of any private, public or municipal
corporation within and without the State of Delaware, or of the
Government of the United States, or of any state, territory, colony,
or possession thereof, or of any foreign government or country; to
receive, collect, receipt for, and dispose of interest, dividends and
income upon and from any of the bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations, contracts, evidences
of indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations, contracts, evidences
of indebtedness and other property, any and all the rights, powers and
privileges of individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys of the
Corporation upon such securities and in such manner as it may think
fit and proper, and from time to time to vary or realize such
investments; to issue bonds and secure the same by pledges or deeds of
trust or mortgages of or upon the whole or any part of the property
held or owned by the Corporation, and to sell and pledge such bonds,
as and when the Board of Directors shall determine, and in the
promotion of its said corporate business of investment and to the
extent authorized by law, to lease, purchase, hold, sell, assign,
transfer, pledge,
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mortgage and convey real and personal property of any name and
nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that the
said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in any
manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary or
convenient in and about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of
property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount, execute
and issue promissory notes, drafts, bills of exchange, warrants,
bonds, debentures, and other negotiable or transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of, real
and personal property, of every class and description, in any State,
District, Territory or Colony of the United States, and in any foreign
country or place.
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except where
otherwise expressed in said paragraph) be nowise limited or restricted
by reference to or inference from the terms of any other clause of
this or any other paragraph in this charter, but that the objects,
purposes and powers specified in each of the clauses of this paragraph
shall be regarded as independent objects, purposes and powers.
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Fourth: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million (41,000,000)
shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other special rights
of each such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any
time outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article Fourth, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a particular
series of Preferred Stock, the voting powers and the designations,
preferences and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series, including, but
without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of stock and whether such dividends
shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject to
redemption, and the redemption price or prices and the time or times
at which, and the terms and conditions on which, Preferred Stock of
such series may be redeemed.
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(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section (b)
of this Article Fourth), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article Fourth), and subject further to any conditions which may be
fixed in accordance with the provisions of section (b) of this Article
Fourth, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article Fourth), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up, of the Corporation, the
holders of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held by them
respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each holder
of Common Stock shall have one vote in respect of each share of Common
Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or series
of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock
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of any class or series or any additional shares of any class or series
to be issued by reason of any increase of the authorized capital stock
of the Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article Fourth and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the powers,
preferences and rights of such other series shall be fixed by the Board of
Directors as senior to, or on a parity with, the powers, preferences and
rights of such outstanding series, or any of them; provided, however, that
the Board of Directors may provide in the resolution or resolutions as to
any series of Preferred Stock adopted pursuant to section (b) of this
Article Fourth that the consent of the holders of a majority (or such
greater proportion as shall be therein fixed) of the outstanding shares of
such series voting thereon shall be required for the issuance of any or all
other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock
may, without a class or series vote, be increased or decreased from time to
time by the affirmative vote of the holders of a majority of the stock of
the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be reduced
so as to shorten the term of any director at the time in office, and
provided further, that the number
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of directors constituting the whole Board shall be twenty-four until
otherwise fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the next
succeeding annual meeting, directors of the second class shall be elected
to hold office for a term expiring at the second succeeding annual meeting
and directors of the third class shall be elected to hold office for a term
expiring at the third succeeding annual meeting. Any vacancies in the
Board of Directors for any reason, and any newly created directorships
resulting from any increase in the directors, may be filled by the Board of
Directors, acting by a majority of the directors then in office, although
less than a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the stockholders
shall elect a successor to such director to hold office until the next
election of the class for which such director shall have been chosen and
until his successor shall be elected and qualified. No decrease in the
number of directors shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the Corporation may be removed at any time
without cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the
stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered or
mailed, as prescribed, to the Secretary of the Corporation not later than
the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on behalf
of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such nominee
and (iii) the number of shares of stock of the Corporation which are
beneficially owned by each such nominee.
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(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so declare
to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agents and servants as
may be provided in the By-Laws as they may from time to time find necessary
or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized under
the Act entitled "An Act Providing a General Corporation Law", approved
March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make, alter
or repeal any By-Law whether or not adopted by them, provided however, that
any such additional By-Laws, alterations or repeal may be adopted only by
the affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class).
Fourteenth: - Meetings of the Directors may be held outside
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of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from time
to time designated by them.
Fifteenth: - (a) (1) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or not
itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
(C) the issuance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of related transactions) of any securities
of the Corporation or any Subsidiary to any Interested Stockholder or
any Affiliate of any Interested Stockholder in exchange for cash,
securities or other property (or a combination thereof) having an
aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly or
indirectly, of increasing the proportionate share of the outstanding
shares of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly owned by
any Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
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(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to in any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article Fifteenth shall not
be applicable to any particular business combination and such business
combination shall require only such affirmative vote as is required by
law and any other provisions of the Charter or Act of Incorporation or
By-Laws if such business combination has been approved by a majority
of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual, firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on such business combination, or
immediately prior to the consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of more than 10%
of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or indirectly,
of not less than 10% of the then outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested Stockholder,
and such assignment or succession shall have occurred in the course of
a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately or
only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
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(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect on
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis of
information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an Affiliate
or Associate of another, (3) whether a person has an agreement,
arrangement or understanding with another as to the matters referred
to in paragraph (3) of section (c), or (4) whether the assets subject
to any business combination or the consideration received for the
issuance or transfer of securities by the Corporation, or any
Subsidiary has an aggregate fair market value of $1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed to
relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
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Seventeenth: (a) a Director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware General
Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or
at such other date, time, or place as may be designated by resolution by the
Board of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at
his last known address, a written or printed notice fixing the time and place
of such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of
any business, but the holders of a small number of shares may adjourn, from
time to time, without further notice, until a quorum is secured. At each
annual or special meeting of stockholders, each stockholder shall be entitled
to one vote, either in person or by proxy, for each share of stock registered
in the stockholder's name on the books of the Company on the record date for
any such meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
<PAGE>
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by
a majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting,
which shall be mailed not less than two days before the time of holding such
meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall
hold office for the remainder of the full term of the class of directors in
which the vacancy occurred, and until such director's successor shall have
been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect
from its own members a Chairman of the Board of Directors and a President who
may be the same person. The Board of Directors shall also elect at such
meeting a Secretary and a Treasurer, who may be the same person, may appoint
at any time such other committees and elect or appoint such other officers as
it may deem advisable. The Board of Directors may also elect at such meeting
one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or divisions of the Company as it may deem
advisable.
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<PAGE>
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its
own members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of
the Board of Directors when it is not in session to transact all business for
and in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of
the Executive Committee or at the call of the Chairman of the Board of
Directors. The majority of its members shall be necessary to constitute a
quorum for the transaction of business. Special meetings of the Executive
Committee may be held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee
shall be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend
all investments that may be made of the funds of the Company, and shall
direct the disposal of the same, in accordance with such rules and
regulations as the Board of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws
any two available members of the Executive Committee as constituted
immediately prior to such disaster shall constitute a quorum of that
Committee for the full conduct and management of the affairs and business of
the Company in accordance with the provisions of Article III of these
By-Laws; and if less than three members of the Trust Committee is constituted
immediately prior to such disaster shall be available for the transaction of
its business, such Executive Committee shall also be empowered to exercise
all of the powers reserved to the Trust Committee under Article III Section 2
hereof. In the event of the unavailability, at such time, of a minimum of
two members of such Executive Committee, any three available directors shall
constitute the Executive Committee for the full conduct and management of the
affairs and business of the Company in accordance with the foregoing
provisions of this Section. This By-Law shall be subject to implementation
by Resolutions of the Board of Directors presently existing or hereafter
passed from time to time for that purpose, and any provisions of these
By-Laws (other than this
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Section) and any resolutions which are contrary to the provisions of this
Section or to the provisions of any such implementary Resolutions shall be
suspended during such a disaster period until it shall be determined by any
interim Executive Committee acting under this section that it shall be to the
advantage of the Company to resume the conduct and management of its affairs
and business under all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority
of whom shall be members of the Board of Directors and who shall hold office
during the pleasure of the Board.
(B) The Trust Committee shall have general supervision over
the Trust Department and the investment of trust funds, in all matters,
however, being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined
by a majority of its members or at the call of its chairman. A majority of
its members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the
Trust Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members
who shall be selected by the Board of Directors from its own members, none of
whom shall be an officer of the Company, and shall hold office at the
pleasure of the Board.
(B) The Audit Committee shall have general supervision over
the Audit Division in all matters however subject to the approval of the
Board of Directors; it shall consider all matters brought to its attention by
the officer in charge of the Audit Division, review all reports of
examination of the Company made by any governmental agency or such
independent auditor employed for that purpose, and make such recommendations
to the Board of Directors with respect thereto or with respect to any other
matters pertaining to auditing the Company as it shall deem desirable.
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<PAGE>
(C) The Audit Committee shall meet whenever and wherever
the majority of its members shall deem it to be proper for the transaction of
its business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not
more than five (5) members who shall be selected by the Board of Directors
from its own members who are not officers of the Company and who shall hold
office during the pleasure of the Board.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at
any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected
by the Board of Directors as an associate director, to serve during the
pleasure of the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought
to the Board, with the exception that he would have no right to vote. An
associate director will be eligible for appointment to Committees of the
Company, with the exception of the Executive Committee, Audit Committee and
Compensation Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member.
5
<PAGE>
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and
shall perform such duties as the Board of Directors may from time to time
confer and direct. He shall also exercise such powers and perform such
duties as may from time to time be agreed upon between himself and the
President of the Company.
Section 2. THE VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such
further authority and powers and shall perform such duties as the Board of
Directors or the Chairman of the Board may from time to time confer and
direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors. In the absence of the Chairman of
the Board the President shall have the powers and duties of the Chairman of
the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and
shall at all times exercise general supervision over the interest, affairs
and operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and
such other powers and duties as may from time to time be assigned to them by
the Board of Directors, the Executive Committee, the Chairman of the Board or
the President and by the officer in charge of the department or division to
which they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings
and to recording the same in the minute books of the Company. In addition to
the other notice requirements of these By-Laws and as may be practicable
under the circumstances, all such notices shall be in writing and mailed well
in advance of the scheduled date of any other meeting. He shall have custody
of the corporate seal and shall affix the same to any documents requiring
such corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of
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<PAGE>
all the transactions of the Company. He shall have general supervision of
the expenditures of the Company and shall report to the Board of Directors at
each regular meeting of the condition of the Company, and perform such other
duties as may be assigned to him from time to time by the Board of Directors
of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including
accounting, and shall render to the Board of Directors at appropriate times a
report relating to the general condition and internal operations of the
Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only
to the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from
time to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom
they are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the
department or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock
shall be recorded.
Section 2. Certificates of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of
Directors and countersigned by the Secretary or
7
<PAGE>
Treasurer or an Assistant Secretary, and the seal of the corporation shall be
engraved thereon. Each certificate shall recite that the stock represented
thereby is transferrable only upon the books of the Company by the holder
thereof or his attorney, upon surrender of the certificate properly endorsed.
Any certificate of stock surrendered to the Company shall be cancelled at
the time of transfer, and before a new certificate or certificates shall be
issued in lieu thereof. Duplicate certificates of stock shall be issued only
upon giving such security as may be satisfactory to the Board of Directors or
the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled
to notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment
or rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the
date for the payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of capital
stock shall go into effect, or a date in connection with obtaining such
consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full
power and authority to enter into, make, sign, execute, acknowledge and/or
deliver and the Secretary or any Assistant Secretary shall have full
8
<PAGE>
power and authority to attest and affix the corporate seal of the Company to
any and all deeds, conveyances, assignments, releases, contracts, agreements,
bonds, notes, mortgages and all other instruments incident to the business of
this Company or in acting as executor, administrator, guardian, trustee,
agent or in any other fiduciary or representative capacity by any and every
method of appointment or by whatever person, corporation, court officer or
authority in the State of Delaware, or elsewhere, without any specific
authority, ratification, approval or confirmation by the Board of Directors
or the Executive Committee, and any and all such instruments shall have the
same force and validity as though expressly authorized by the Board of
Directors and/or the Executive Committee.
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors
who serve as members of committees, other than salaried employees of the
Company, shall be paid such reasonable honoraria or fees for services as
members of committees as the Board of Directors shall from time to time
determine and directors and associate directors may be employed by the
Company for such special services as the Board of Directors may from time to
time determine and shall be paid for such special services so performed
reasonable compensation as may be determined by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be
made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding") by
reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation or of
a partnership, joint venture, trust, enterprise or non-profit entity,
including service with respect to employee benefit plans, against all
liability and loss suffered and expenses reasonably incurred by such person.
The Corporation shall indemnify a person in connection with a proceeding
initiated by such person only if the proceeding was authorized by the Board
of Directors of the Corporation.
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<PAGE>
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, PROVIDED,
HOWEVER, that the payment of expenses incurred by a Director or officer in
his capacity as a Director or officer in advance of the final disposition of
the proceeding shall be made only upon receipt of an undertaking by the
Director or officer to repay all amounts advanced if it should be ultimately
determined that the Director or officer is not entitled to be indemnified
under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file
suit to recover the unpaid amount of such claim and, if successful in whole
or in part, shall be entitled to be paid the expense of prosecuting such
claim. In any such action the Corporation shall have the burden of proving
that the claimant was not entitled to the requested indemnification of
payment of expenses under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or
disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions
of this Article X shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission occurring prior to
the time of such repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole
or in part, and any new By-Law or By-Laws adopted at any regular or special
meeting of the Board of Directors by a vote of the majority of all the
members of the Board of Directors then in office.
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<PAGE>
EXHIBIT C
SECTION 321(b) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of
examinations by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
requests therefor.
WILMINGTON TRUST COMPANY
Dated: September 27, 1999 By: /s/ Donald G. MacKelcan
------------------ ------------------------------
Name: Donald G. MacKelcan
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks
and savings banks with state publication requirements.
It has not been approved by any state banking
authorities. Refer to your appropriate state banking
authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ---------------------------------------- ----------------
Name of Bank City
in the State of DELAWARE, at the close of business on June 30, 1999.
--------
<TABLE>
<CAPTION>
Thousands of dollars
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins................................................. 207,947
Interest-bearing balances........................................................................... 0
Held-to-maturity securities.............................................................................. 37,680
Available-for-sale securities............................................................................ 1,598,933
Federal funds sold and securities purchased under agreements to resell................................... 180,366
Loans and lease financing receivables:
Loans and leases, net of unearned income...................................... 4,237,557
LESS: Allowance for loan and lease losses.................................... 70,233
LESS: Allocated transfer risk reserve........................................ 0
Loans and leases, net of unearned income, allowance, and reserve.................................... 4,167,324
Assets held in trading accounts.......................................................................... 0
Premises and fixed assets (including capitalized leases)................................................. 141,415
Other real estate owned.................................................................................. 922
Investments in unconsolidated subsidiaries and associated companies...................................... 1,227
Customers' liability to this bank on acceptances outstanding............................................. 0
Intangible assets........................................................................................ 5,179
Other assets............................................................................................. 104,101
Total assets............................................................................................. 6,445,094
CONTINUED ON NEXT PAGE
<PAGE>
LIABILITIES
Deposits:
In domestic offices...................................................................................... 4,574,509
Noninterest-bearing..................................................... 992,436
Interest-bearing........................................................ 3,582,073
Federal funds purchased and Securities sold under agreements to repurchase............................... 344,719
Demand notes issued to the U.S. Treasury................................................................. 83,802
Trading liabilities (from Schedule RC-D)................................................................. 0
Other borrowed money:.................................................................................... ///////
With original maturity of one year or less.......................................................... 860,000
With original maturity of more than one year........................................................ 43,000
Bank's liability on acceptances executed and outstanding................................................. 0
Subordinated notes and debentures........................................................................ 0
Other liabilities (from Schedule RC-G)................................................................... 80,279
Total liabilities........................................................................................ 5,986,309
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................................................ 0
Common Stock............................................................................................. 500
Surplus (exclude all surplus related to preferred stock)................................................. 62,118
Undivided profits and capital reserves................................................................... 412,409
Net unrealized holding gains (losses) on available-for-sale securities................................... (16,242)
Total equity capital..................................................................................... 458,785
Total liabilities, limited-life preferred stock, and equity capital...................................... 6,445,094
</TABLE>
2
