<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 8-K
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) October 18, 1999
---------------------------
OGE ENERGY CORP.
OGE ENERGY CAPITAL TRUST I
(Exact name of registrant as specified in its charter)
Oklahoma 73-1481638
Delaware 333-88415 To Be Applied For
- -------------------------------- ---------------- -------------------
(State or other jurisdiction of (Commission File (IRS Employer
incorporation or organization) Number) Identification No.)
321 North Harvey Avenue, Oklahoma City, Oklahoma 73102
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (405) 553-3000
----------------
Not Applicable
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<PAGE>
Item 5. Other Events
OGE Energy Corp. and OGE Energy Capital Trust I (the "Registrants")
are filing herewith the following in connection with the offering by OGE
Energy Capital Trust I of 8,000,000 8.375% Preferred Securities of the Trust
("Preferred Securities") pursuant to the registration statement of the
Registrants, among others, on Form S-3 (No. 333-88415) filed with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended.
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
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EXHIBIT
NUMBER EXHIBIT
<S> <C>
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1.01 Underwriting Agreement for the Preferred Securities, dated as of October 18, 1999.
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4.05 Subordinated Debt Securities Indenture, dated as of October 20, 1999 between OGE Energy
Corp. and Bank of Oklahoma National Association, as Trustee.
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4.06 Supplemental Indenture, dated as of October 21, 1999,
between OGE Energy Corp. and Bank of Oklahoma National
Association, as Trustee, including form of Junior
Subordinated Debenture.
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4.12 Amended and Restated Declaration of Trust of OGE Energy Capital Trust I dated as of October
21, 1999, including form of Preferred Security and Common Security.
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4.13 Guarantee Agreement, dated as of October 21, 1999 between OGE Energy Corp. and Wilmington
Trust Company, as Trustee.
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4.14 Subscription Agreement dated as of October 21, 1999 between OGE Energy Capital Trust I and
OGE Energy Corp.
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</TABLE>
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
OGE ENERGY CORP.
Date: October 21, 1999 By: /s/ James R. Hatfield
-------------------------------------
James R. Hatfield
Vice President, Chief Financial
Officer and Treasurer
<PAGE>
OGE ENERGY CORP.
EXHIBIT INDEX TO FORM 8-K REPORT
<TABLE>
<CAPTION>
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EXHIBIT
NUMBER EXHIBIT
<S> <C>
- ----------------------------------------------------------------------------------------------------------
1.01 Underwriting Agreement for the Preferred Securities, dated as of October 18, 1999.
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4.05 Subordinated Debt Securities Indenture, dated as of October 20, 1999 between OGE Energy
Corp. and Bank of Oklahoma National Association, as Trustee.
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4.06 Supplemental Indenture, dated as of October 21, 1999,
between OGE Energy Corp. and Bank of Oklahoma National
Association, as Trustee, including form of Junior
Subordinated Debenture.
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4.12 Amended and Restated Declaration of Trust of OGE Energy Capital Trust I dated as of October
21, 1999, including form of Preferred Security and Common Security.
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4.13 Guarantee Agreement, dated as of October 21, 1999 between OGE Energy Corp. and Wilmington
Trust Company, as Trustee.
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4.14 Subscription Agreement dated as of October 21, 1999 between OGE Energy Capital Trust I and
OGE Energy Corp.
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</TABLE>
<PAGE>
EXHIBIT 1.01
Preferred Securities
OGE ENERGY CAPITAL TRUST I
UNDERWRITING AGREEMENT
New York, New York
Dated the date set forth
In Schedule I hereto
To the Representatives
named in Schedule I
hereto, of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
OGE Energy Capital Trust I, a Delaware statutory business trust (the
"Trust"), proposes to issue and sell to you and the other underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), the aggregate liquidation amount
identified in Schedule I hereto of the Trust's preferred securities (the
"Preferred Securities") guaranteed (the "Guarantee"; together with the Preferred
Securities, the "Securities") by the Company (as defined herein) to the extent
set forth in the Guarantee Agreement (the "Guarantee Agreement") identified in
such Schedule I, to be entered into between the Company and the guarantee
trustee (the "Guarantee Trustee") identified therein. OGE Energy Corp., an
Oklahoma corporation (the "Company"), will be the owner of all of the beneficial
ownership interests represented by common securities (the "Common Securities")
of the Trust. Concurrently with the issuance of the Securities and the Company's
purchase of all of the Common Securities of the Trust, the Trust will invest the
proceeds of each in the Company's debt securities identified in Schedule I
hereto (the "Debentures"). The Debentures are to be issued under the indenture
(the "Indenture") identified in such Schedule I, between the Company and the
indenture trustee (the "Indenture Trustee") identified therein. If the firm or
firms listed in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and "Representatives" shall
each be deemed to refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to each Underwriter that:
(a) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933, as amended (the "Securities Act"),
and the rules and regulations promulgated thereunder (the "Rules"), and
has carefully prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on
<PAGE>
Form S-3 (the file number of which is set forth in Schedule I hereto),
which has become effective, for the registration of the Securities
under the Securities Act. The registration statement, as amended at the
date of this Agreement, meets the requirements set forth in
Rule 415(a)(1)(x) under the Securities Act and complies in all other
material respects with such rule. The Company proposes to file with the
Commission pursuant to Rule 424 under the Securities Act ("Rule 424") a
supplement to the form of prospectus included in the registration
statement relating to the initial offering of the Securities and the
plan of distribution thereof and has previously advised you of all
further information (financial and other) with respect to the Company
to be set forth therein. A second registration statement (the "462(b)
Registration Statement") may also be prepared by the Company in
conformity with the Securities Act and the Rules and Regulations and if
so prepared, will be filed with the Commission under the Securities Act
pursuant to Rule 462(b) of the Rules and Regulations on the date of
this Agreement. The term "Registration Statement" means the initial
registration statement and any 462(b) Registration Statement, as
amended at the date of this Agreement, including the exhibits thereto,
financial statements, and all documents incorporated therein by
reference pursuant to Item 12 of Form S-3 (the "Incorporated
Documents"), and such prospectus as then amended or supplemented,
including the Incorporated Documents, is hereinafter referred to as the
"Basic Prospectus"; and such supplemented form of prospectus, in the
form in which it shall be filed with the Commission pursuant to Rule
424 (including the Basic Prospectus as so supplemented), is hereinafter
called the "Final Prospectus." Any preliminary form of the Basic
Prospectus which has heretofore been filed pursuant to Rule 424 is
hereinafter called the "Interim Prospectus." Any reference herein to
the Registration Statement, the Basic Prospectus, any Interim
Prospectus or the Final Prospectus shall be deemed to refer to and
include the Incorporated Documents which were filed under the
Securities Exchange Act of 1934 (the "Exchange Act"), on or before the
date of this Agreement or the issue date of the Basic Prospectus, any
Interim Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any
Interim Prospectus or the Final Prospectus shall be deemed to refer to
and include the filing of any Incorporated Documents under the Exchange
Act after the date of this Agreement or the issue date of the Basic
Prospectus, any Interim Prospectus or the Final Prospectus, as the case
may be, and deemed to be incorporated therein by reference.
(b) (i) As of the date hereof, (ii) when the Final Prospectus
is first filed with the Commission pursuant to Rule 424, (iii) when,
before the Closing Date (hereinafter defined), any amendment to the
Registration Statement becomes effective, (iv) when, before the Closing
Date, any Incorporated Document is filed with the Commission, (v) when
any supplement to the Final Prospectus is filed with the Commission and
(vi) at the Closing Date, the Registration Statement, the Final
Prospectus and any such amendment or supplement will comply in all
material respects with the applicable requirements of the Securities
Act and the Rules, and the Incorporated Documents will comply in all
material respects with the requirements of the Exchange Act or the
Securities Act, as applicable, and the rules and regulations adopted by
the Commission thereunder; on the date hereof and on the Closing Date,
the Indenture shall have been qualified under and will comply in
<PAGE>
all material respects with the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"); on the date it became effective, the
Registration Statement did not, and, on the date that any
post-effective amendment to the Registration Statement becomes
effective, the Registration Statement as amended by such post-effective
amendment did not or will not, as the case may be, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; on the date the Final Prospectus is filed with the
Commission pursuant to Rule 424 and on the Closing Date, the Final
Prospectus, as it may be amended or supplemented, will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading; and on said
dates, the Incorporated Documents will comply in all material respects
with the applicable provisions of the Exchange Act and rules and
regulations of the Commission thereunder, and, when read together with
the Final Prospectus, or the Final Prospectus as it may be then amended
or supplemented, will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading; PROVIDED THAT
the foregoing representations and warranties in this paragraph (b)
shall not apply to (i) statements or omissions made in reliance upon
and in conformity with written information furnished to the Company by
or through the Representatives on behalf of any Underwriter
specifically for use in connection with the preparation of the
Registration Statement or the Final Prospectus, as they may be amended
or supplemented, (ii) information relating to The Depository Trust
Company, Cedelbank and Euroclear, or (iii) any statements in or
omissions from the statements of eligibility and qualification on Form
T-1 of the Indenture Trustee, the Property Trustee (the "Property
Trustee") identified in Schedule I hereto and the Guarantee Trustee
under the Trust Indenture Act (the "Forms T-1").
(c) The Basic Prospectus and any Interim Prospectus, as of
their respective dates, complied in all material respects with the
requirements of the Securities Act and of the Rules and did not include
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The
Commission has not issued an order preventing or suspending the use of
the Basic Prospectus or any Interim Prospectus.
(d) The independent public accountants whose report appears in
the Company's most recent Annual Report on Form 10-K, which is
incorporated by reference in the Final Prospectus, are independent
public accountants as required by the Securities Act and the Rules.
(e) The independent public accountants whose report on the
historical consolidated financial statements of Tejas Transok Holding,
L.L.C. ("Transok") is incorporated by reference in the Final
Prospectus, were independent public accountants, as required by the
Securities Act and the Rules, during the period of their engagement to
examine the financial statements being reported on and at the date of
their report.
<PAGE>
(f) The audited consolidated financial statements of the
Company, and the historical consolidated financial statements of
Transok, in the Final Prospectus and the Registration Statement present
fairly on a consolidated basis the financial position, the results of
operations, changes in common stock and other stockholder's equity and
cash flows of the Company and its subsidiaries, or of Transok and its
subsidiaries, as the case may be, as of the respective dates and for
the respective periods indicated, all in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the periods involved. The unaudited consolidated financial statements
of the Company and of Transok and its subsidiaries included in the
Final Prospectus and the Registration Statement and the related notes
are true, complete and correct, subject to normally recurring changes
resulting from year-end audit adjustments, and have been prepared in
accordance with the instructions to Form 10-Q or Form 8-K, as the case
may be.
(g) Except as described in or contemplated by the Registration
Statement and the Final Prospectus, there has not been any material
adverse change in or any adverse development which materially affects
the business, properties, financial condition or results of the Company
and its subsidiaries taken as whole, from the dates as of which
information is given in the Registration Statement and Final
Prospectus.
(h) This Agreement has been duly and validly authorized,
executed and delivered by the Company; the Guarantee Agreement has been
duly and validly authorized by the Company and, when duly executed and
delivered by the proper officers of the Company (assuming due execution
and delivery by the Guarantee Trustee) will constitute a valid and
legally binding agreement of the Company enforceable against the
Company in accordance with its terms; the Indenture has been duly and
validly authorized and, when duly executed and delivered by the proper
officers of the Company and (assuming due execution and delivery by the
Indenture Trustee) constitutes a valid and legally binding agreement of
the Company, enforceable against the Company in accordance with its
terms; and the Debentures have been duly and validly authorized, and,
when validly authenticated, issued and delivered in accordance with the
Indenture against payment of the purchase price therefor as
contemplated by the Final Prospectus, will be validly issued and
outstanding obligations of the Company entitled to the benefits of the
Indenture; and the Debentures and the Guarantee, when issued and
delivered, will conform to the descriptions thereof contained in the
Final Prospectus.
(i) The Company does not have any direct or indirect
subsidiaries that have business or properties that are material to the
business and properties of the Company and its subsidiaries taken as a
whole except those named on Exhibit A to this Agreement (the "Named
Subsidiaries").
(j) The Company and the Named Subsidiaries have been duly
organized, are validly existing and in good standing under the laws of
their respective jurisdictions of organization, are duly qualified to
do business and in good standing as foreign corporations or limited
liability companies, as the case may be, in each jurisdiction in
<PAGE>
which their respective ownership of property or the conduct of their
respective businesses requires such qualification or registration and
in which the failure to qualify or register would be reasonably likely,
individually or in the aggregate, to have a material adverse effect on
the condition, financial or otherwise, or on the earnings, results of
operations, properties, business affairs or business prospects, whether
or not arising in the ordinary course of business, of the Company and
its subsidiaries taken as a whole (a "Material Adverse Effect"). Except
as may be disclosed in the Registration Statement and the Final
Prospectus, all outstanding shares of capital stock or other capital
interests of the Named Subsidiaries are owned by the Company or a
subsidiary of the Company, free and clear of any lien, pledge and
encumbrance or any claim of any third party and are duly authorized,
validly issued and outstanding, fully paid and non-assessable.
(k) None of the Company or the Named Subsidiaries is in
violation of its certificate of incorporation, by-laws or similar
governing instrument or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which it is a party or
by which it may be bound, or to which any of its property or assets is
subject (collectively, "Agreements and Instruments") except for such
defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement, the Guarantee
Agreement, the Indenture and the Debentures by the Company, the
purchase of the Common Securities by the Company from the Trust, and
the consummation of the transactions contemplated herein and in the
Registration Statement do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
of its subsidiaries pursuant to, the Agreements and Instruments (except
for such conflicts, breaches, defaults or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor
will such action result in any violation of the provisions of the
certificate of incorporation, by-laws, or similar governing instrument
of the Company or any of its subsidiaries, or any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its subsidiaries or any
of their respective assets, properties or operations. As used herein, a
"Repayment Event" means any event or condition which gives the holder
of any note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Company, other than such events or conditions that are contemplated by
the terms of this Agreement and the Indenture.
(l) Other than as disclosed in the Registration Statement,
there is no action, suit, proceeding, inquiry or investigation before
or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened,
against or affecting the Company or any of its subsidiaries, that is
required to be disclosed in the Registration Statement or that might
reasonably be expected to result
<PAGE>
in a Material Adverse Effect, or that might reasonably be expected to
materially and adversely affect its properties or assets or the
consummation of the transactions contemplated in this Agreement or
the performance by the Company of its obligations hereunder. The
aggregate of all pending legal or governmental proceedings to which
the Company or any of its subsidiaries is a party or of which any of
their respective properties or assets is the subject which are not
described in the Registration Statement, including ordinary routine
litigation incidental to the business, could not reasonably be
expected to result in a Material Adverse Effect.
(m) There are no contracts or documents which are required to
be described in the Registration Statement, the Final Prospectus or the
documents incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as required.
(n) Each of the Company and its Named Subsidiaries possess
such permits, licenses, approvals, consents and other authorizations
issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct in all material respects the
businesses now operated by the Company and its Named Subsidiaries and
as described in the Registration Statement and Prospectus
(collectively, "Governmental Licenses"); each of the Company and its
Named Subsidiaries are in compliance with the terms and conditions of
all such Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, have a Material Adverse Effect;
all of the Governmental Licenses are in full force and effect, except
when the invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect would not
have a Material Adverse Effect; and the Company has not received any
notice of proceedings relating to the revocation or modification of any
such Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in
a Material Adverse Effect.
(o) The Company and its Named Subsidiaries have good and
sufficient title to all real property, principal plants and all other
property owned by them and which is material to their operations, in
each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such
as (i) are described in the Final Prospectus or (ii) do not, singly or
in the aggregate, materially affect the value of such property and do
not interfere with the use made and proposed to be made of such
property by the Company or any of its Named Subsidiaries; and all of
the leases and subleases material to the business of the Company and
its Named Subsidiaries, and under which the Company and its Named
Subsidiaries hold properties described in the Prospectus, are in full
force and effect, and none of the Company or any of its Named
Subsidiaries has notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any of its
Named Subsidiaries under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company or any of
its Named Subsidiaries to the continued possession of the leased or
subleased premises under any such lease or sublease.
(p) The certificates delivered pursuant to paragraph (i) of
Section 7 hereof and
<PAGE>
all other documents delivered by the Company or its representatives in
connection with the issuance and sale of the Securities were on the
dates on which they were delivered, or will be on the dates on which
they are to be delivered, in all material respects true and complete.
2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY AND THE
TRUST. The Company and the Trust, jointly and severally, represent, warrant and
agree that:
(a) The Trust has been duly created, is validly existing as a
statutory business trust and in good standing under the Business Trust
Act of the State of Delaware (the "Delaware Business Trust Act") with
the trust power and authority to own property and conduct its business
as described in the Registration Statement and the Final Prospectus,
and has conducted and will conduct no business other than the
transactions contemplated by this Agreement as described in the
Registration Statement and the Final Prospectus; the Trust is not and
will not be a party to or bound by any agreement or instrument other
than this Agreement, the Declaration of Trust of the Trust identified
in Schedule I hereto, among the Company, as Sponsor, and the regular
trustees identified in Schedule I hereto (the "Regular Trustees"), the
Property Trustee and the Delaware Trustee identified in Schedule I
hereto (the "Delaware Trustee" and, together with the Regular Trustees
and the Property Trustee, the "Trustees"), and the Amended and Restated
Declaration of Trust of the Trust (the "Declaration") identified in
Schedule I hereto, among the Company, as Sponsor, and the Trustees; the
Trust has no and will not have any liabilities or obligations other
than those arising out of the transactions contemplated by this
Agreement, such Declaration of Trust and the Declaration and described
in the Final Prospectus; and the Trust is not a party to or subject to
any action, suit or proceeding of any nature.
(b) The Declaration is duly and validly authorized and, when
duly executed and delivered by the Company, as Sponsor, and the
Trustees, and (assuming due authorization, execution and delivery of
the Declaration by the Property Trustee and the Delaware Trustee), will
constitute a valid and legally binding agreement of the Company and the
Trust, and will conform to the description thereof contained in the
Final Prospectus.
(c) All of the outstanding beneficial ownership interests in
the Trust have been, and the Preferred Securities and the Common
Securities, upon issuance and delivery and payment therefor in the
manner described herein, will be, duly authorized, validly issued and
outstanding, fully paid and non-assessable and will conform to the
descriptions of the Preferred Securities and the Common Securities
contained in the Final Prospectus.
(d) This Agreement has been duly and validly authorized,
executed and delivered by the Trust.
(e) The execution, delivery and performance of this Agreement,
the Declaration, the Common Securities and the Preferred Securities by
the Trust, the purchase of the Debentures by the Trust from the
Company, the distribution of the
<PAGE>
Debentures upon the liquidation of the Trust in the circumstances
contemplated by the Declaration and described in the Final Prospectus,
and the consummation by the Trust of the transactions contemplated
hereby and by the Declaration (the "Trust Transactions") will not
result in a violation of any order, rule or regulation of any court or
governmental agency having jurisdiction over the Trust or its property.
Except as set forth in the Final Prospectus or as required by the
Securities Act, the Exchange Act, the Trust Indenture Act and
applicable state securities laws, no consent, authorization or order
of, or filing or registration with, any court or governmental agency
is required for the Trust Transactions.
(f) Neither the Company nor the Trust is required to be
registered as an "investment company" under the Investment Company Act
of 1940, as amended.
3. SALE AND PURCHASE OF THE PREFERRED SECURITIES.
(a) The Trust agrees to sell to each Underwriter, and each
Underwriter, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions
herein stated, agrees to purchase from the Trust, at a purchase price
equal to 100% of the liquidation amount of the Preferred Securities
(plus accrued distributions), the number of Preferred Securities set
forth opposite the name of such Underwriter in Schedule II hereto. The
obligations of the Underwriters under this Agreement are several and
not joint.
(b) As compensation to the Underwriters, the Company shall, on
the Closing Date, pay to the Representatives for the accounts of the
several Underwriters commissions (as described in Schedule I hereto) on
the aggregate liquidation amount of the Preferred Securities sold by
the Trust on the Closing Date.
4. DELIVERY AND PAYMENT.
(a) Delivery by the Trust of the Preferred Securities to the
Representatives for the respective accounts of the several Underwriters
and payment by the Underwriters therefor by wire transfer in federal
(same day) funds to such account as the Company shall specify on behalf
of the Trust, shall take place at the office, on the date and at the
time specified in Schedule I hereto, which date and time may be
postponed by agreement between the Representatives and the Company or
as provided in Section 10 hereof (such date and time of delivery and
payment for the Preferred Securities being herein called the "Closing
Date").
(b) The Preferred Securities will be in the form of one or
more global Securities registered in the name of Cede & Co., as nominee
of the Depository Trust Company ("DTC").
(c) On the Closing Date, the Company shall pay, or cause to be
paid, the commissions payable on the Closing Date to the
Representatives for the accounts of the Underwriters under Section 3 by
wire transfer in federal (same day) funds to such account
<PAGE>
as the Representatives shall specify.
5. OFFERING BY UNDERWRITERS. The Company and the Trust hereby confirm
that the Underwriters and dealers have been authorized to distribute or cause to
be distributed any Interim Prospectus and are authorized to distribute the Final
Prospectus (as from time to time amended or supplemented if the Company
furnishes amendments or supplements thereto to the Underwriters). The
Representatives agree that, as soon as the Representatives believe the offering
of the Preferred Securities has been terminated, the Representatives will so
advise the Company and the Trust.
6. AGREEMENTS. Each of the Company and the Trust agrees with the
several Underwriters:
(a) To prepare the 462(b) Registration Statement, if
necessary, in a form approved by the Representatives and to file such
462(b) Registration Statement with the Commission on the date hereof;
to cause the Final Prospectus to be filed with the Commission pursuant
to Rule 424 as required thereby and promptly to advise the
Representatives (A) when the Final Prospectus shall have been filed
with the Commission pursuant to Rule 424, (B) when any amendment to the
Registration Statement relating to the Securities shall have become
effective, (C) of any request by the Commission for any amendment of
the Registration Statement, the Final Prospectus, the Basic Prospectus
or any Interim Prospectus, or for any additional information, (D) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the qualification of the
Declaration, the Guarantee Agreement or the Indenture or the
institution or threatening of any proceedings for that purpose and (E)
of the receipt by the Company or the Trust of any notification with
respect to the suspension of the qualification of the Securities or the
Debentures for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; after the date of this
Agreement and prior to the termination of the offering of the Preferred
Securities, not to file any amendment of the Registration Statement or
amendment or supplement to the Final Prospectus (except an amendment or
supplement to the Final Prospectus that is deemed to be incorporated by
reference in the Final Prospectus pursuant to Item 12 of Form S-3)
without the consent of the Representatives and to use its best efforts
to prevent the issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof; prior to receipt of
the advice to be given by the Representatives pursuant to Section 5,
not to file any document that would be deemed to be incorporated by
reference in the Final Prospectus pursuant to Item 12 of Form S-3
without delivering to the Representatives a copy of the document
proposed to be so filed, such delivery to be made at least 24 hours
prior to such filing, and to consult with the Representatives as to any
comments that the Representatives make in a timely manner with respect
to the document so delivered.
(b) Subject to the last sentence of the immediately preceding
paragraph, if, at
<PAGE>
any time when a prospectus relating to the Securities is required to be
delivered under the Securities Act, any event occurs as a result of
which the Final Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
or if it shall be necessary at any time to amend or supplement the
Final Prospectus to comply with the Securities Act or the Rules, to
promptly prepare and file with the Commission an amendment or
supplement that will correct such statement or omission or an amendment
that will effect such compliance and to use its best efforts to cause
any amendment of the Registration Statement containing an amended Final
Prospectus to be made effective as soon as possible.
(c) To deliver to the Representatives, without charge, (i)
signed copies of the Registration Statement relating to the Securities
and of any amendments thereto (including all exhibits filed with, or
incorporated by reference in, any such document) and (ii) as many
conformed copies of the Registration Statement and of any amendments
thereto which shall become effective on or before the Closing Date
(excluding exhibits) as the Representatives may reasonably request.
(d) During such period as a prospectus is required by law to
be delivered by an Underwriter or dealer, to deliver, without charge to
the Representatives and to Underwriters and dealers, at such office or
offices as the Representatives may designate, as many copies of the
Basic Prospectus, any Interim Prospectus and the Final Prospectus as
the Representatives may reasonably request.
(e) To make generally available to the Company's security
holders and to the Representatives as soon as practicable an earnings
statement (which need not be audited) of the Company and its
subsidiaries, covering a period of at least 12 months beginning after
the date the Final Prospectus is filed with the Commission pursuant to
Rule 424, which will satisfy the provisions of Section 11(a) of the
Securities Act.
(f) To furnish such information, execute such instruments and
take such actions as may be required to qualify the Securities and the
Debentures for offering and sale under the laws of such jurisdictions
as the Representatives may designate and to maintain such
qualifications in effect so long as required for the distribution of
the Preferred Securities; PROVIDED, HOWEVER, that neither the Company
nor the Trust shall be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
which would subject it to general or unlimited service of process in
any jurisdiction where it is not now so subject.
(g) So long as any Preferred Securities are outstanding, to
furnish or cause to be furnished to the Representatives copies of all
annual reports and current reports filed with the Commission on Forms
10-K, 10-Q and 8-K, or such other similar forms as may be designated by
the Commission.
(h) To use its best efforts to cause the listing of the
Preferred Securities on the
<PAGE>
New York Stock Exchange, Inc. (the "NYSE") to be approved as soon as
possible.
(i) For a period beginning at the time of execution of this
Agreement and ending 30 business days thereafter, without the prior
consent of Lehman Brothers Inc., not to directly or indirectly offer,
sell, offer to sell, grant any option for the sale of or otherwise
dispose of any Preferred Securities or Debentures or any securities
convertible or exchangeable into, or exercisable for Preferred
Securities or Debentures, or any debt securities substantially similar
to the Debentures or any equity securities substantially similar to the
Preferred Securities.
(j) To use its best efforts to do and perform all things to be
done and performed hereunder prior to each Closing Date and to satisfy
all conditions precedent to the delivery of the Preferred Securities to
be purchased hereunder.
(k) So long as the Preferred Securities are outstanding, to
take such steps as shall be necessary to ensure that neither the
Company nor the Trust shall become subject to registration as an
"investment company" under the Investment Company Act of 1940, as
amended.
7. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the Underwriters to purchase the Securities shall be subject to the
accuracy in all material respects of the representations and warranties on
the part of the Company and the Trust contained herein as of the date hereof
and the Closing Date, to the accuracy of any material statements made in any
certificates, opinions, affidavits, written statements or letters furnished
to the Representatives or to Jones, Day, Reavis & Pogue ("Underwriters'
Counsel") pursuant to this Agreement, to the performance by the Company and
the Trust of their respective obligations hereunder and to the following
additional conditions:
(a) The Final Prospectus shall have been filed with the
Commission pursuant to Rule 424 not later than 5:00 p.m., New York City
time, on the second business day following the date of this Agreement
or such later date and time as shall be consented to in writing by the
Representatives.
(b) No order suspending the effectiveness of the Registration
Statement, as amended from time to time, or suspending the
qualification of the Declaration, the Guarantee Agreement or the
Indenture, shall be in effect and no proceedings for such purpose shall
be pending before or threatened by the Commission and any requests for
additional information on the part of the Commission (to be included in
the Registration Statement or the Final Prospectus or otherwise) shall
have been complied with to the reasonable satisfaction of the
Representatives.
(c) Since the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there
shall not have been any change or
<PAGE>
decrease specified in the letter or letters referred to in paragraph
(k), (l), (m) or (n) of this Section 7 which, in the judgment of the
Representatives, makes it impracticable or inadvisable to proceed with
the offering and delivery of the Preferred Securities as contemplated
by the Registration Statement and the Final Prospectus.
(d) The Company shall have furnished to the Representatives
the opinion of Gardner, Carton & Douglas, counsel to the Company, dated
the Closing Date, to the effect that:
(i) The Company has been duly organized and
is legally existing and in good standing under the laws of the
jurisdiction of its incorporation with all requisite corporate
power and authority to own and operate its properties and to
conduct its business as described in the Final Prospectus.
(ii) The statements made in the Final
Prospectus under the captions "Description of Securities,"
"Certain Terms of the Preferred Securities," "Certain Terms of
the Junior Subordinated Debt Securities," "Description of
Preferred Securities," "Description of the Junior Subordinated
Debt Securities," "Description of the Guarantee" and "Effect
of Obligations Under the Junior Subordinated Debt Securities
and the Guarantee" insofar as such statements purport to
constitute summaries of the terms of the Preferred Securities,
the Debentures and the Guarantee, constitute accurate
summaries of the terms of the Preferred Securities, the
Debentures and the Guarantee in all material respects.
(iii) The Indenture has been duly authorized,
executed and delivered by the Company, has been duly qualified
under the Trust Indenture Act and constitutes a legal, valid
and binding instrument enforceable against the Company in
accordance with its terms; and the Debentures have been duly
authorized, executed and issued by the Company, and assuming
due authentication by the Indenture Trustee and upon payment
and delivery as contemplated by the Final Prospectus, will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture; and the Guarantee
Agreement has been duly authorized, executed and delivered by
the Company, has been duly qualified under the Trust Indenture
Act and, assuming due authorization, execution and delivery by
the Guarantee Trustee, will constitute a legal, valid and
binding obligation of the Company; provided however, that the
foregoing is 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.
(iv) No consent, approval, authorization or
order of any court or governmental agency or body is required
for the consummation of the transactions contemplated by this
Agreement, except for (1) such consents,
<PAGE>
approvals, authorizations or orders as have been obtained
under the Securities Act and such as may be required under the
Exchange Act and the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the
Securities by the Underwriters, and (2) the qualification of
the Indenture, the Declaration and the Guarantee Agreement
under the Trust Indenture Act, which has been obtained.
(v) Such counsel does not know of any
contracts or other documents which are required to be filed as
exhibits to the Registration Statement by the Securities Act
or by the Rules which have not been filed as exhibits to the
Registration Statement or incorporated therein by reference as
permitted by the Rules.
(vi) To the best of such counsel's knowledge,
neither the Company nor either of its Named Subsidiaries is in
violation of its corporate charter or by-laws, or in default
under any material agreement, indenture or instrument known to
such counsel, the effect of which violation or default would
be material to the Company and its subsidiaries taken as a
whole.
(vii) This Agreement and the Declaration have
been duly authorized, executed and delivered by the Company;
the execution, delivery and performance of this Agreement, the
Declaration, the Indenture and the Guarantee Agreement
(collectively the "Transaction Documents") by the Company and
the Trust will not conflict with, or result in the creation or
imposition of any material lien, charge or encumbrance upon
any of the assets of the Company or its Named Subsidiaries
pursuant to the terms of, or constitute a default under, any
material agreement, indenture or instrument known to such
counsel and to which the Company or either of its Named
Subsidiaries is a party or is bound, or result in a violation
of the corporate charter or by-laws of the Company or either
of its Named Subsidiaries or any order, rule or regulation
known to such counsel of any court or governmental agency
having jurisdiction over the Company, its Named Subsidiaries
or any of their respective properties, the effect of which
would be material to the Company and its subsidiaries taken as
a whole.
(viii) The Registration Statement has become
effective under the Securities Act, and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceeding for that purpose is pending or threatened by
the Commission.
(ix) The Registration Statement, the Final
Prospectus and each amendment thereof or supplement thereto
(except that no opinion need be expressed as to the financial
statements or other financial or statistical data or the Forms
T-1 included or incorporated by reference therein) comply as
to form in all material respects with the requirements of the
Securities Act and the Rules.
(x) Authorization for the listing of the
Preferred Securities on the NYSE has been given, subject to
official notice of issuance and evidence of
<PAGE>
satisfactory distribution.
(xi) Such counsel does not know of any
litigation or any governmental proceeding pending or
threatened against the Company or any of its subsidiaries
which would affect the subject matter of this Agreement or is
required to be disclosed in the Final Prospectus which is not
disclosed and correctly summarized therein.
(xii) To such counsel's knowledge, the Trust is
not a party to or otherwise bound by any agreement other than
those described in the Final Prospectus.
(xiii) The Trust is not subject to registration
as an "investment company" under the Investment Company Act of
1940, as amended.
Such opinion shall also contain a statement that although such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Final Prospectus (except as to those matters
stated in paragraph (ii) of such opinion), such counsel has no reason to believe
that (i) the Registration Statement, as of its effective date, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading or (ii) the Final Prospectus contains any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (except that no opinion need be expressed
as to (a) the financial statements or other financial or statistical data, (b)
information relating to The Depository Trust Company, Cedelbank and Euroclear,
or (c) the Forms T-1 included or incorporated by reference therein).
In rendering such opinion, such counsel may rely upon opinions
of local counsel satisfactory to the Representatives for matters governed by
Oklahoma law and may rely as to matters of fact, to the extent he or she deems
proper, upon certificates or affidavits of officers of the Company, the
Trustees, the Guarantee Trustee or the Indenture Trustee and public officials.
Such counsel may rely on a certificate of the Indenture Trustee and the
Guarantee Trustee with respect to the execution of the Debentures and the
Guarantee, respectively, by the Company, the authentication of the Debentures by
the Indenture Trustee, and the execution of the Guarantee by the Guarantee
Trustee.
(e) The Company shall have furnished to the Representatives
the opinion of Rainey, Ross, Rice & Binns, counsel to the Company,
dated the Closing Date, to the effect that:
(i) The Company has been duly organized and
is legally existing and in good standing under the laws of the
jurisdiction of its incorporation with all requisite corporate
power and authority to own and operate
<PAGE>
its properties and to conduct its business as described in
the Final Prospectus.
(ii) The statements made in the Final
Prospectus under the captions "Description of Securities,"
"Certain Terms of the Preferred Securities," "Certain Terms
of the Junior Subordinated Debt Securities," "Description of
Preferred Securities," "Description of the Junior Subordinated
Debt Securities," "Description of the Guarantee" and "Effect
of Obligations Under the Junior Subordinated Debt Securities
and the Guarantee" insofar as such statements purport to
constitute summaries of the terms of the Preferred Securities,
the Debentures and the Guarantee, constitute accurate
summaries of the terms of the Preferred Securities, the
Debentures and the Guarantee in all material respects.
(iii) The Indenture has been duly authorized,
executed and delivered by the Company and constitutes a legal,
valid and binding instrument enforceable against the Company
in accordance with its terms; and the Debentures have been
duly authorized, executed and issued by the Company, and
assuming due authentication by the Indenture Trustee and upon
payment and delivery as contemplated by the Final Prospectus,
will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture; and the
Guarantee Agreement has been duly authorized, executed and
delivered by the Company, has been duly qualified under the
Trust Indenture Act and, assuming due authorization, execution
and delivery by the Guarantee Trustee, will constitute a
legal, valid and binding obligation of the Company; provided
however, that the foregoing is 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.
(iv) No consent, approval, authorization or
order of any Oklahoma court or governmental agency or body is
required for the consummation of the transactions contemplated
by this Agreement, except for (1) such consents, approvals,
authorizations or orders as have been obtained under the
Securities Act and such as may be required under the Exchange
Act and the blue sky laws of the State of Oklahoma in
connection with the purchase and distribution of the
Securities by the Underwriters, and (2) the qualification of
the Indenture, the Declaration and the Guarantee Agreement
under the Trust Indenture Act, which has been obtained.
(v) Such counsel does not know of any
contracts or other documents which are required to be filed as
exhibits to the Registration Statement by the Securities Act
or by the Rules which have not been filed as exhibits to the
Registration Statement or incorporated therein by reference as
permitted by the Rules.
<PAGE>
(vi) To the best of such counsel's knowledge,
neither the Company nor either of its Named Subsidiaries is in
violation of its corporate charter or by-laws, or in default
under any material agreement, indenture or instrument known to
such counsel, the effect of which violation or default would
be material to the Company and its subsidiaries taken as a
whole.
(vii) This Agreement and the Declaration have
been duly authorized, executed and delivered by the Company;
the execution, delivery and performance of this Agreement, the
Declaration, the Indenture and the Guarantee Agreement
(collectively the "Transaction Documents") by the Company and
the Trust will not conflict with, or result in the creation or
imposition of any material lien, charge or encumbrance upon
any of the assets of the Company or its Named Subsidiaries
pursuant to the terms of, or constitute a default under, any
material agreement, indenture or instrument known to such
counsel and to which the Company or either of its Named
Subsidiaries is a party or is bound, or result in a violation
of the corporate charter or by-laws of the Company or either
of its Named Subsidiaries or any order, rule or regulation
known to such counsel of any court or governmental agency
having jurisdiction over the Company, its Named Subsidiaries
or any of their respective properties, the effect of which
would be material to the Company and its subsidiaries taken as
a whole.
(viii) Such counsel does not know of any
litigation or any governmental proceeding pending or
threatened against the Company or any of its subsidiaries
which would affect the subject matter of this Agreement or is
required to be disclosed in the Final Prospectus which is not
disclosed and correctly summarized therein.
(ix) To such counsel's knowledge, the Trust is
not a party to or otherwise bound by any agreement other than
those described in the Final Prospectus.
Such opinion shall also contain a statement that although
such counsel is not passing upon and does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Final Prospectus (except as to those matters
stated in paragraph (ii) of such opinion), such counsel has no reason to
believe that (i) the Registration Statement, as of its effective date,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading or (ii) the Final Prospectus contains any
untrue statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (except that no
opinion need be expressed as to (a) the financial statements or other
financial or statistical data, (b) information relating to The Depository
Trust Company, Cedelbank and Euroclear, or (c) the Forms T-1 included or
incorporated by reference therein).
<PAGE>
In rendering such opinion, such counsel may rely as to
matters of fact, to the extent he or she deems proper, upon certificates or
affidavits of officers of the Company, the Trustees, the Guarantee Trustee or
the Indenture Trustee and public officials. Such counsel may rely on a
certificate of the Indenture Trustee and the Guarantee Trustee with respect
to the execution of the Debentures and the Guarantee, respectively, by the
Company, the authentication of the Debentures by the Indenture Trustee, and
the execution of the Guarantee by the Guarantee Trustee.
(f) Richards, Layton & Finger, special Delaware counsel for
the Company and the Trust, shall have furnished to the Representatives
its opinion, on certain matters of Delaware law relating to the
validity of the Preferred Securities, dated the Closing Date, to the
effect that:
(i) The Trust has been duly created and is
validly existing in good standing as a business trust under
the Delaware Business Trust Act and, under the Declaration and
the Act, has the trust power and authority to own property and
to conduct its business as described in the Final Prospectus
and to enter into and perform its obligations under each of
this Agreement, the Preferred Securities and the Common
Securities.
(ii) The Common Securities have been duly
authorized by the Declaration and, when issued and delivered
by the Trust to the Company against payment therefor as
described in the Declaration and the Final Prospectus, will be
validly issued and will represent undivided beneficial
ownership interests in the assets of the Trust; under the
Delaware Business Trust Act and the Declaration the issuance
of the Common Securities is not subject to preemptive rights.
(iii) The Preferred Securities have been duly
authorized by the Declaration and, when issued and delivered
against payment of the consideration as set forth in the
Declaration and the Final Prospectus, the Preferred Securities
will be validly issued and (subject to the terms of the
Declaration) will represent fully paid and non-assessable
undivided beneficial ownership interests in the Trust, and the
holders of the Preferred Securities will be entitled to the
benefits of the Declaration (subject to the limitations set
forth in clause (v) below) and will be entitled to the same
limitation of personal liability under Delaware law as
extended to stockholders of private corporations for profit
(such counsel may note that the holders of Preferred
Securities will be required to make payment or provide
indemnity or security as set forth in the Declaration).
(iv) Under the Delaware Business Trust Act and
the Declaration, the execution and delivery by the Trust of
this Agreement has been duly authorized by all requisite trust
action on the part of the Trust.
(v) Assuming the Declaration has been duly
authorized by the Company and has been duly executed and
delivered by the Company and the
<PAGE>
Regular Trustees, and assuming due authorization, execution
and delivery of the Declaration by the Property Trustee and
the Delaware Trustee, the Declaration constitutes a valid
and binding obligation of the Company and the Regular
Trustees, enforceable against the Company and the Regular
Trustees in accordance with its terms; provided however,
that the foregoing is subject to the effects of bankruptcy,
insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance or transfer, and other
similar laws relating to or affecting creditors' rights
generally, principles of equity, including applicable law
relating to fiduciary duties (regardless of whether
considered and applied in a proceeding in equity or at law)
and the effect of applicable public policy on the
enforceability of provisions relating to indemnification
and contribution.
(vi) The issuance and sale by the Trust of the
Preferred Securities, the purchase by the Trust of the
Debentures, the execution, delivery and performance by the
Trust of this Agreement, the consummation by the Trust of the
transactions contemplated by this Agreement and compliance by
the Trust with its obligations thereunder will not violate (i)
any of the provisions of the Certificate of Trust or the
Declaration or (ii) any Delaware law or administrative
regulation applicable to the Trust.
(vii) No filing with, or authorization,
approval, consent, license, order, registration,
qualification or decree of, any Delaware court or Delaware
governmental authority or agency is necessary or required
in connection with the due authorization, execution and
delivery of this Agreement or the offering, issuance, sale
or delivery of the Preferred Securities, other than the
filing of the Certificate of Trust with the Secretary of
State.
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the law of the State of Delaware.
(g) Gardner, Carton & Douglas, special tax counsel to the
Company and the Trust, shall have furnished to the Representatives its
opinion, dated the Closing Date, to the effect that:
(i) Subject to the qualifications set
forth in the opinion and the Final Prospectus, under
current law and assuming full compliance with the terms of
the Declaration and based upon certain facts and
assumptions set forth in such opinion the Trust will be
characterized as a grantor trust for United States federal
income tax purposes and not as an association taxable as a
corporation;
(ii) Subject to the qualifications set
forth in the opinion and the Final Prospectus, under
current law and based on certain representations, facts and
assumptions set forth in the opinion, the Debentures will
be classified as indebtedness for United States federal
income tax purposes; and
(iii) Subject to the qualifications set forth in
the opinion and the
<PAGE>
Final Prospectus, the statements made in the Final
Prospectus under the caption "Certain United States Federal
Income Tax Consequences" insofar as they purport to
constitute summaries of matters of United States federal
tax law and regulations or legal conclusions with respect
thereto, constitute accurate summaries of the matters
described therein in all material respects.
(h) The Representatives shall have received from the
Underwriters' Counsel such opinion or opinions, dated the Closing Date,
with respect to the issuance and sale of the Preferred Securities, the
Guarantee, the Debentures, the Registration Statement, the Final
Prospectus and other related matters as the Representatives may
reasonably require, and the Company and the Trust shall have furnished
to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(i) The Company shall have furnished to the Representatives a
certificate of its Chief Executive Officer, its President or any Vice
President and its Chief Financial Officer or its Treasurer, dated the
Closing Date, to the effect that, to the best of their knowledge after
due inquiry:
(i) The representations and warranties of the
Company in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date, and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date.
(ii) No stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
threatened.
(iii) Insofar as it relates to the Trust,
(x) the Registration Statement does not contain any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, (y) the Final Prospectus
does not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in
the light of the circumstances under which they were made,
not misleading, and (z) since the effective date of the
Registration Statement there has not occurred any event
required to be set forth in an amended or supplemented
prospectus which has not been so set forth.
(j) The Trust shall have furnished to the Representatives a
certificate of its Regular Trustees, dated the applicable Closing Date,
to the effect that, to the best of their knowledge after due inquiry:
<PAGE>
(i) The representations and warranties of the
Trust in this Agreement are true and correct in all material
respects on and as of such Closing Date with the same effect
as if made on such Closing Date, and the Trust has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to such
Closing Date.
(ii) No stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
threatened.
(iii) (x) The Registration Statement does not
contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (y)
the Final Prospectus does not contain any untrue statement of
a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading, and (z) since the effective date of
the Registration Statement there has not occurred any event
required to be set forth in an amended or supplemented
prospectus which has not been so set forth.
(k) At the date of execution of this Agreement, a nationally
recognized firm of independent public accountants shall have furnished
to the Representatives a letter, dated the date of this Agreement, in
form and substance satisfactory to the Representatives, which states in
effect that:
(i) In their opinion, any consolidated
financial statements of the Company and its subsidiaries, and
the supporting schedules, included in the Registration
Statement and the Final Prospectus and audited by them comply
as to form in all material respects with the applicable
accounting requirements of the Securities Act and the Exchange
Act and the related published rules and regulations
thereunder.
(ii) On the basis of a reading of the
unaudited consolidated financial statements of the Company
and its subsidiaries, if any, included in the Registration
Statement and the Final Prospectus and of the latest
unaudited consolidated financial statements made available
by the Company, carrying out certain specified procedures
(but not an audit in accordance with generally accepted
auditing standards), a reading of the minutes of the
meetings of the directors of the Company, and inquiries of
certain officials of the Company and its subsidiaries, who
have responsibility for financial and accounting matters of
the Company and its subsidiaries, as to transactions and
events subsequent to the date of the most recent audited
consolidated financial statements included in the
Registration Statement and the Final Prospectus, nothing
came to their attention that caused them to believe that:
(A) any material modifications should be
made to the unaudited
<PAGE>
consolidated financial statements of the Company and
its subsidiaries included in the Registration
Statement and the Final Prospectus for them to be
in conformity with generally accepted accounting
principles; and such financial statements do not
comply as to form in all material respects with the
applicable accounting requirements of the
Securities Act and the published instructions,
rules and regulations thereunder.
(B) the unaudited capsule information of
the Company and its subsidiaries included in the
Registration Statement and the Final Prospectus does
not agree with the amounts set forth in the unaudited
consolidated financial statements of the Company from
which it was derived or was not determined on a basis
substantially consistent with that of the
corresponding financial information in the latest
audited financial statements of the Company included
in the Registration Statement and the Final
Prospectus.
(C) (I) as of the latest date as of which
the Company and its subsidiaries have monthly
financial statements, there was any decrease in the
capital stock, additional paid-in capital or retained
earnings, or increase in long-term indebtedness of
the Company and its subsidiaries, as compared with
the amounts shown in the most recent consolidated
statement of financial condition of the Company and
its subsidiaries included in the Registration
Statement and the Final Prospectus or (II) with
respect to the period subsequent to the date of the
most recent financial statements included in the
Registration Statement and the Final Prospectus and
extending through the latest date as of which the
Company and its subsidiaries have monthly financial
statements, there was any decline in consolidated
revenues or net income as compared with the
comparable period of the prior fiscal year;
(D) as of a specified date not more than
three business days prior to the date of the letter,
there was any decrease in the capital stock or
additional paid-in capital, or increase in long-term
indebtedness of the Company and its subsidiaries as
compared with the amounts shown in the most recent
consolidated statement of financial condition of the
Company and its subsidiaries included in the
Registration Statement and the Final Prospectus;
except in all instances for increases or decreases set forth in such
letter, in which case the letter shall be accompanied by an explanation
by the Company as to the significance thereof, unless said explanation
is not deemed necessary by the Representatives.
(iii) (x) They have read the pro
forma financial statements included in the
Registration Statement and the Final Prospectus,
(y) they have made inquiries of certain officials
of the Company who have responsibility for
financial and accounting matters of the Company as
to the basis for their
<PAGE>
determination of the pro forma adjustments and
whether such pro forma financial statements comply
as to form in all material respects with the
applicable accounting requirements of Rule 11-02 of
Regulation S-X and (z) they have proved the
arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts; and as
a result thereof, nothing came to their attention
that caused them to believe that such pro forma
financial statements do not so comply with Rule
11-02 of Regulation S-X and that such pro forma
adjustments have not been properly applied to the
historical amounts in the compilation of those
statements.
(iv) They have performed certain
other specified procedures as a result of which
they determined that certain information of an
accounting, financial or statistical nature (which
is expressed in dollars, or percentages derived
from dollar amounts, and has been obtained from the
general accounting records of the Company) set
forth in the Registration Statement, as amended,
and the Final Prospectus, as amended or
supplemented, and in Exhibit 12 to the Registration
Statement, including specified information, if any,
included or incorporated from the Company's Annual
Report on Form 10-K incorporated therein or
specified information, if any, included or
incorporated from any of the Company's Quarterly
Reports on Form 10-Q or its Current Reports on Form
8-K incorporated therein, agrees with the
accounting records of the Company and its
subsidiaries or computations made therefrom,
excluding any questions of legal interpretation.
(l) At the Closing Date, the nationally recognized firm of
independent public accountants that furnished the letter referred to in
paragraph (k) of this Section 7 shall have furnished to the
Representatives a letter dated the Closing Date, which shall confirm,
on the basis of a review in accordance with the procedures set forth in
the letter, that nothing has come to their attention that would require
any change in the letter referred to in paragraph (k) of this Section 7
if it were required to be dated and delivered at the Closing Date.
(m) At the date of execution of this Agreement, a nationally
recognized firm of independent public accountants shall have furnished
to the Representatives a letter, dated the date of this Agreement, in
form and substance satisfactory to the Representatives, which states in
effect that:
(i) In their opinion, any consolidated
financial statements of Transok and its subsidiaries, and the
supporting schedules, included in the Registration Statement
and the Final Prospectus and audited by them comply as to form
in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and
the related published rules and regulations thereunder.
<PAGE>
(ii) On the basis of a reading of the
unaudited consolidated financial statements of Transok and
its subsidiaries, if any, included in the Registration
Statement and the Final Prospectus and of the latest
unaudited consolidated financial statements made available
by Transok, carrying out certain specified procedures (but
not an audit in accordance with generally accepted auditing
standards), a reading of the minutes of the meetings of the
members of Transok, and inquiries of certain officials of
Transok and its subsidiaries, who have responsibility for
financial and accounting matters of Transok and its
subsidiaries, as to transactions and events subsequent to
the date of the most recent audited consolidated financial
statements included in the Registration Statement and the
Final Prospectus, nothing came to their attention that
caused them to believe that:
(A) any material modifications should be
made to the unaudited consolidated financial
statements of Transok and its subsidiaries included
in the Registration Statement and the Final
Prospectus for them to be in conformity with
generally accepted accounting principles; and such
financial statements do not comply as to form in all
material respects with the applicable accounting
requirements of the Securities Act and the published
instructions, rules and regulations thereunder.
(B) any unaudited capsule information of
Transok and its subsidiaries included in the
Registration Statement and the Final Prospectus does
not agree with the amounts set forth in the unaudited
consolidated financial statements of Transok from
which it was derived or was not determined on a basis
substantially consistent with that of the
corresponding financial information in the latest
audited financial statements of Transok included in
the Registration Statement and the Final Prospectus.
(C) (I) as of the latest date as of which
Transok and its subsidiaries have monthly financial
statements, there was any decrease in the capital
stock, additional paid-in capital or retained
earnings, or increase in long-term indebtedness of
Transok and its subsidiaries, as compared with the
amounts shown in the most recent consolidated
statement of financial condition of Transok and its
subsidiaries included in the Registration Statement
and the Final Prospectus or (II) with respect to the
period subsequent to the date of the most recent
financial statements included in the Registration
Statement and the Final Prospectus and extending
through the latest date as of which Transok and its
subsidiaries have monthly financial statements, there
was any decline in consolidated revenues or net
income as compared with the comparable period of the
prior fiscal year;
(D) as of a specified date not more than
three business days
<PAGE>
prior to the date of the letter, there was any
decrease in the capital interests or additional
paid-in capital, or increase in long-term
indebtedness of Transok and its subsidiaries as
compared with the amounts shown in the most recent
consolidated statement of financial condition of
Transok and its subsidiaries included in the
Registration Statement and the Final Prospectus;
except in all instances for increases or decreases set forth in such
letter, in which case the letter shall be accompanied by an explanation
by the Company as to the significance thereof, unless said explanation
is not deemed necessary by the Representatives.
(iii) They have performed certain other
specified procedures as a result of which they determined
that certain information of an accounting, financial or
statistical nature (which is expressed in dollars, or
percentages derived from dollar amounts, and has been
obtained from the general accounting records of Transok)
set forth in the Registration Statement, as amended, and
the Final Prospectus, as amended or supplemented, and in
Exhibit 12 to the Registration Statement, including
specified information, if any, included or incorporated
from the Company's Annual Report on Form 10-K incorporated
therein or specified information, if any, included or
incorporated from any of the Company's Quarterly Reports on
Form 10-Q or its Current Reports on Form 8-K incorporated
therein, agrees with the accounting records of the Company
and its subsidiaries or computations made therefrom,
excluding any questions of legal interpretation.
(n) At the Closing Date, the nationally recognized firm of
independent public accountants that furnished the letter referred to in
paragraph (m) of this Section 7 shall have furnished to the
Representatives a letter dated the Closing Date, which shall confirm,
on the basis of a review in accordance with the procedures set forth in
the letter, that nothing has come to their attention that would require
any change in the letter referred to in paragraph (m) of this Section 7
if it were required to be dated and delivered at the Closing Date.
(o) Subsequent to the execution of this Agreement, there
shall not have been any decrease in or suspension of the ratings of
any of the Company's debt securities by Moody's Investors Service,
Inc. or Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc.
(p) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives or Underwriters'
Counsel may reasonably request.
If any of the conditions specified in this Section 7 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates or opinions furnished to the Representatives or Underwriters'
Counsel pursuant to this Section 7 shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and to
Underwriters' Counsel, this Agreement and all obligations of the Underwriters
hereunder may be
<PAGE>
cancelled at, or at any time prior to, the Closing Date by the Representatives.
Notice of such cancellation shall be given to the Company in writing, or by
telegraph confirmed in writing.
8. EXPENSES.
(a) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company
will pay all costs and expenses incident to the performance of the
obligations of the Company and the Trust hereunder, including, without
limiting the generality of the foregoing, all costs, taxes and expenses
incident to the issuance, sale and delivery of the Preferred Securities
to the Underwriters, all fees and expenses of the Company's counsel and
accountants, all costs and expenses incident to the preparing, printing
and filing of the Registration Statement (including all exhibits
thereto), any Interim Prospectus, the Basic Prospectus, the Final
Prospectus and any amendments thereof or supplements thereto and the
Declaration, the Guarantee Agreement and the Indenture, and the rating
of the Preferred Securities by one or more rating agencies, all costs
and expenses (including fees of Underwriters' Counsel and their
disbursements) incurred in connection with blue sky qualifications,
advising on the legality of the Securities for investment, the filing
requirements, if any, of the National Association of Securities
Dealers, Inc. in connection with its review of corporate financings,
the fee for listing the Securities on the NYSE, the fees and expenses
of the Property Trustee, the Guarantee Trustee and the Indenture
Trustee and all costs and expenses of the printing and distribution of
all documents in connection with such offering. Except as provided in
this Section 8, the Company will have no responsibility to the
Underwriters for the Underwriters' own costs and expenses, including
the fees of Underwriters' Counsel and any advertising expenses in
connection with any offer the Underwriters may make.
(b) If the sale of the Preferred Securities provided for
herein is not consummated because any condition to the obligations of
the Underwriters set forth in Section 7 hereof is not satisfied or
because of any refusal, inability or failure on the part of the
Company or the Trust to perform any agreement herein or comply with
any provision hereof, the Company will, subject to demand by the
Representatives, reimburse the Underwriters for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed
purchase and sale of the Preferred Securities.
9. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls such Underwriter within the
meaning of the Securities Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them
may become subject under the Securities Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or
otherwise, insofar as such
<PAGE>
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, as originally filed or in any amendment
thereof, or in any Interim Prospectus, the Basic Prospectus or the
Final Prospectus, or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees
to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability
or action; PROVIDED, HOWEVER, that (i) the Company will not be
liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement made therein or omission or
alleged omission therefrom (a) in reliance upon and in conformity
with written information furnished to the Company as herein stated
by the Representatives on behalf of any Underwriter specifically for
use in connection with the preparation thereof or (b) relating to
The Depository Trust Company, Cedelbank and Euroclear, and (ii) such
indemnity with respect to the Basic Prospectus or any Interim
Prospectus shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) from whom the person asserting
any such loss, claim, damage or liability purchased the Securities
which are the subject thereof if such person did not receive a copy
of the Final Prospectus at or prior to the confirmation of the sale
of such Securities to such person in any case where such delivery is
required by the Securities Act and the untrue statement or omission
of a material fact contained in the Basic Prospectus or any Interim
Prospectus was corrected in the Final Prospectus, unless such
failure to deliver the Final Prospectus was a result of
noncompliance by the Company with Section 6(d) hereof. This
indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, the Trust and each Trustee, and each
person, if any, who controls the Company or the Trust within the
meaning of the Securities Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them
may become subject under the Securities Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement, the Basic Prospectus, any Interim
Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
the same was made therein in reliance upon and in conformity with
written information furnished to the Company as herein stated by the
Representatives on behalf of such Underwriter specifically for use in
the preparation thereof, and agrees to reimburse each such indemnified
party for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability or action. This indemnity agreement will be in
addition to any liability
<PAGE>
which any Underwriter may otherwise have. The names of the
underwriters set forth on the cover page and in the second, sixth,
seventh, eighth (last two sentences only), tenth, eleventh and
twelfth paragraphs under the heading "Underwriting" in the Final
Prospectus constitute the only information furnished to the Company
in writing by or on behalf of the several Underwriters for inclusion
in the Registration Statement and the Final Prospectus, as the case
may be, and you, as the Representatives, confirm that such
statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 9, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section 9.
In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the
extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; PROVIDED, HOWEVER, if the
defendants in any such action include both the indemnified party and
the indemnifying party and either (i) the indemnifying party or parties
and the indemnified party or parties mutually agree or (ii)
representation of both the indemnifying party or parties and the
indemnified party or parties by the same counsel is inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, the indemnified party or parties
shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election
so to assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed
counsel in connection with the assumption of legal defenses in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel, approved by the
Representatives in the case of subparagraph (a) representing the
indemnified parties under subparagraph (a), as the case may be, who are
parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement
of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party.
(d) In order to provide for just and equitable
contribution in circumstances in
<PAGE>
which the indemnification provided for in subparagraph (a) of this
Section 9 is due in accordance with its terms but is for any reason
held by a court to be unavailable from the Company on grounds of
policy or other similar grounds, the Company and the Underwriters
shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the
Company, the Trust and one or more of the Underwriters may be
subject in such proportion so that the Underwriters are responsible
for that portion represented by the percentage that the underwriting
commission appearing on the cover page of the Final Prospectus bears
to the public offering price appearing thereon and the Company is
responsible for the balance; PROVIDED, HOWEVER, that (i) in no case
shall any Underwriter (except as may be provided in any agreement
among underwriters) be responsible for any amount in excess of the
underwriting commission applicable to the Preferred Securities
purchased by such Underwriter hereunder and (ii) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 9, each person who controls an Underwriter
within the meaning of the Securities Act shall have the same rights
to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Securities Act or the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement each director of the Company, the Trust and
each Trustee shall have the same rights to contribution as the
Company, subject in each case to clauses (i) and (ii) of this
subparagraph (d). Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this
subparagraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such party
or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may
have hereunder or otherwise than under this subparagraph (d).
10. DEFAULT BY AN UNDERWRITER. If, on the Closing Date, any one or
more Underwriters shall fail to purchase and pay for all of the Preferred
Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the aggregate liquidation amount of Preferred
Securities set forth opposite their names in Schedule II hereto bear to the
aggregate liquidation amount of Firm Securities set opposite the names of the
remaining Underwriters) the Firm Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase on the Closing Date; PROVIDED,
HOWEVER, that in the event that the aggregate liquidation amount of Preferred
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase on the Closing Date shall exceed 10% of the aggregate liquidation
amount of Preferred Securities, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase any,
of the Preferred Securities, and if such non-defaulting Underwriters do not
purchase all the Preferred Securities, this Agreement will terminate without
liability to any non-defaulting Underwriters or the Company or the Trust. In
the event of a default by any
<PAGE>
Underwriter as set forth in this Section 10, the Closing Date shall be
postponed for such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the Registration
Statement and the Final Prospectus or in any other documents or arrangements
may be effected. Nothing herein contained shall relieve any defaulting
Underwriter of its liability, if any, to the Company or the Trust and any
non-defaulting Underwriter for damages occasioned by its default hereunder.
11. TERMINATION. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the
Company at or prior to delivery of and payment for all of the Preferred
Securities, if, prior to such time (i) trading in securities generally on the
NYSE or the over-the-counter market shall have been suspended or limited or
minimum prices shall have been established on the NYSE or the NASDAQ Stock
Market, (ii) a banking moratorium shall have been declared either by federal,
New York State or Oklahoma authorities, (iii any new restriction materially
affecting the distribution of the Preferred Securities shall have become
effective; (iv) trading in any securities of the Company shall have been
suspended or halted by any national securities exchange, the National
Association of Securities Dealers, Inc. or the Commission, (v) the United
States becomes engaged in hostilities or there is an escalation in
hostilities involving the United States or there is a declaration of a
national emergency or war by the United States, or (vi) there shall have been
such a material adverse change in national or international political,
financial or economic conditions, national or international equity markets or
currency exchange rates or controls as to make it, in the judgment of the
Representatives, inadvisable or impracticable to proceed with the payment for
and delivery of the Preferred Securities.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers (as such officers) or the Trust and
of the Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of any Underwriter or the Company or the Trust or any of their
respective officers, directors or trustees or any controlling person within
the meaning of the Securities Act, and will survive delivery of the payment
for the Preferred Securities.
13. NOTICES. All communications hereunder will be in writing, and,
if sent to the Representatives will be mailed, delivered, telegraphed or
telexed and confirmed to them, at the address specified in Schedule I hereto;
or, if sent to the Trust or the Company, will be mailed, delivered,
telegraphed or telexed and confirmed to the Trust or the Company at OGE
Energy Corp., 321 North Harvey, Oklahoma City, Oklahoma 73101, Attention:
President.
14. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their successors and, to the extent and
only to the extent stated in Section 9 hereof, the officers and directors and
controlling persons referred to in Section 9 hereof, and except as provided
in Section 9 hereof, no person other than the parties hereto and their
respective successors will have any right or obligation hereunder.
15. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of Oklahoma.
<PAGE>
[SIGNATURE PAGE FOLLOWS]
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
OGE ENERGY CAPITAL TRUST I
By: /s/ A.M. Strecker
-----------------------------------------
A.M. Strecker, as Regular Trustee
By: /s/ James R. Hatfield
-----------------------------------------
James R. Hatfield, as Regular Trustee
OGE ENERGY CORP.
By: /s/ James R. Hatfield
-----------------------------------------
James R. Hatfield
Vice President and Treasurer
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
LEHMAN BROTHERS INC.
By: /s/ Gregory J. Hall
----------------------------
Acting on behalf of the Representatives named in
Schedule I annexed hereto and the several
Underwriters named in Schedule II annexed hereto.
<PAGE>
EXHIBIT A
Subsidiaries of the Company
Enogex Inc.
Oklahoma Gas and Electric Company
<PAGE>
SCHEDULE I
Date of Underwriting Agreement: October 18, 1999
Registration Statement No. 333-88415
Representative and Address: Lehman Brothers Inc.
c/o Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
Declaration of Trust, Declaration, Title, Purchase Price and Description of
Preferred Securities:
Declaration of Trust:
Declaration of Trust, dated September 29, 1999
Declaration:
The Amended and Restated Declaration of Trust dated as of
October 21, 1999, among the Company and the Trustees.
Title:
8.375% Preferred Securities of OGE Energy Capital Trust I.
Number of Preferred Securities:
8,000,000.
Liquidation amount per Preferred Security:
$25.
Aggregate liquidation amount of Preferred Securities:
$200,000,000.
Price to public:
100% of liquidation amount (plus accrued distributions).
<PAGE>
Distribution rate:
8.375%.
Distribution Payment Dates:
January 15, April 15, July 15 and October 15 of each year
beginning on January 15, 2000.
Redemption provisions:
As set forth in the Final Prospectus.
Indenture, Title, Purchase Price and Description of Debentures:
Indenture:
Indenture, dated as of October 20, 1999, between the Company
and Bank of Oklahoma, National Association, as Trustee, as
supplemented by First Supplemental Indenture dated as of
October 21, 1999.
Title:
8.375% Junior Subordinated Debentures due 2039.
Principal Amount:
$200,000,000.
Price to Trust:
100% of principal amount (plus accrued distributions).
Interest rate:
8.375%
Interest Payment Dates:
January 15, April 15, July 15 and October 15 of each year
beginning January 15, 2000.
<PAGE>
Maturity:
October 15, 2039.
Redemption provisions:
As set forth in the Final Prospectus.
Guarantee Agreement:
Guarantee Agreement, dated as of October 21, 1999, between the
Company and Wilmington Trust Company, as Trustee.
Commission payable by Company on Preferred Securities:
$.7875 per Preferred Security (except that, with respect to
sales of Preferred Securities to certain institutions, the
commission will be $.50 per Preferred Security).
Closing Date, Time and Location:
Date: October 21, 1999
Time: 10:00 a.m.
Location: Gardner, Carton & Douglas
Suite 3400
Quaker Tower
321 North Clark Street
Chicago, Illinois 60610-4795
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
NUMBER OF
PREFERRED
UNDERWRITERS SECURITIES
------------ ----------
<S> <C>
1. Lehman Brothers Inc. 1,035,000
2. A.G. Edwards & Sons, Inc. 1,033,000
3. CIBC World Markets Corp. 1,033,000
4. Merrill, Lynch, Pierce, Fenner & Smith Incorporated 1,033,000
5. Morgan Stanley & Co. Incorporated 1,033,000
6. Prudential Securities Incorporated 1,033,000
7. ABN AMRO Incorporated 60,000
8. Banc of America Securities LLC 60,000
9. Banc One Capital Markets, Inc. 60,000
10. Bear, Stearns & Co. Inc. 60,000
11. Dain Rauscher Incorporated 60,000
12. Deutsche Bank Securities Inc. 60,000
13. Fidelity Capital Markets, a division of National Financial Services Corp. 60,000
14. First Union Securities, Inc. 60,000
15. Goldman, Sachs & Co. 60,000
16. HSBC Securities (USA) Inc. 60,000
17. ING Barings LLC. 60,000
18. Legg Mason Wood Walker, Incorporated 60,000
19. SG Cowen Securities Corporation 60,000
20. U.S. Bancorp Piper Jaffray Inc. 60,000
21. Warburg Dillon Read LLC 60,000
22. Advest, Inc. 30,000
23. BB&T Capital Markets, a Division of Scott & Stringfellow 30,000
24. Robert W. Baird & Co. Incorporated 30,000
25. J.C. Bradford & Co. 30,000
26. Commerzbank Capital Markets Corp. 30,000
27. Davenport & Company LLC 30,000
28. Fahnestock & Co. Inc. 30,000
29. Fifth Third Securities, Inc. 30,000
30. First Albany Corporation 30,000
31. JWGenesis Securities, Inc. 30,000
32. Gilbraltar Securities Co. 30,000
33. Gruntal & Co., L.L.C. 30,000
34. J.J.B. Hilliard, W.L. Lyons, Inc. 30,000
35. Janney Montgomery Scott Inc. 30,000
<PAGE>
36. McDonald Investments Inc., a KeyCorp Company 30,000
37. McGinn, Smith & Co., Inc. 30,000
38. Mesirow Financial, Inc. 30,000
39. Morgan Keegan & Company, Inc. 30,000
40. Olde Discount Corporation 30,000
41. Parker/Hunter Incorporated 30,000
42. Raymond James & Associates, Inc. 30,000
43. Charles Schwab & Co. Inc. 30,000
44. Southwest Securities, Inc. 30,000
45. Stephens Inc. 30,000
46. Sterne, Agee & Leach, Inc. 30,000
47. The Robinson-Humphrey Company, LLC 30,000
48. Tucker Anthony Cleary Gull 30,000
49. U.S. Clearing Corp. 30,000
50. Wachovia Securities, Inc. 30,000
51. The Williams Capital Group, L.P. 30,000
---------
TOTAL 8,000,000
---------
---------
</TABLE>
<PAGE>
EXHIBIT 4.05
- --------------------------------------------------------------------------------
OGE ENERGY CORP.,
AS ISSUER
TO
BANK OF OKLAHOMA, NATIONAL ASSOCIATION
AS TRUSTEE
-------------------
INDENTURE
SUBORDINATED DEBT SECURITIES
DATED AS OF OCTOBER 20, 1999
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
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
"Place of Payment"......................................................................................6
-i-
<PAGE>
"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
Section 302. Denominations........................................................................24
Section 303. Execution, Authentication, Delivery and Dating.......................................24
Section 304. Temporary Securities.................................................................26
-ii-
<PAGE>
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
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
-iii-
<PAGE>
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
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
-iv-
<PAGE>
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 OCTOBER 20, 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 October 20, 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
North 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 a
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 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. 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
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<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
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<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
17
<PAGE>
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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<PAGE>
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:
------------------------------------------
19
<PAGE>
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
or formula 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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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
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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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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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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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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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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 total assets as
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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 /s/ James R. Hatfield
-------------------------------------------
Name: James R. Hatfield
Title: Vice President, Chief Financial Officer
and Treasurer
Attest:
/s/ A.M. Strecker
- ----------------------------------
Name: A.M. Strecker
-----------------------------
Title: Executive Vice President
----------------------------
and Chief Operating Officer
----------------------------
BANK OF OKLAHOMA, NATIONAL ASSOCIATION
By: /s/ Rachel Redd-Singleton
-------------------------------------------
Name: Rachel Redd-Singleton
Title: Assistant Vice President and
Trust Officer
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EXHIBIT 4.06
- -------------------------------------------------------------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of October 21, 1999
between
OGE ENERGY CORP.,
AS ISSUER
and
BANK OF OKLAHOMA, NATIONAL ASSOCIATION
AS TRUSTEE
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <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
</TABLE>
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<PAGE>
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
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 October 21, 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 North 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 October 20, 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 8.375% Junior Subordinated Debentures due October 15, 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 $200,000,000 aggregate
liquidation amount of its 8.375% 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
$6,190,000 aggregate liquidation amount of its 8.375% Common Securities, in
$206,190,000 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
October 21, 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 or otherwise, 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
"8.375% Junior Subordinated Debentures due 2039", limited in aggregate
principal amount to $206,190,000 (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 October 15, 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
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<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 8.375% 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 January 15, April 15, July 15 and October 15 of each year (each,
an "Interest Payment Date") commencing on January 15, 2000, 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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<PAGE>
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 October 15, 2004, 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
Indebtedness issued by the Company, or any of its subsidiaries or any other
Person, 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).
8
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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.
8.375% 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 October 15, 2039, 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 January 15, April 15, July15 and October 15 of each year commencing
January 15, 2000, at the rate of 8.375% 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 payment of interest may
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<PAGE>
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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<PAGE>
(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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<PAGE>
(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 October 20, 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 October 21, 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 October 15, 2004. 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
October 15, 2004 (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
October 18, 1999.
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 modified or amended without
the consent of the Holder of each Outstanding Security of that
16
<PAGE>
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
Indebtedness (including guarantees) issued by the Company, any of its
Subsidiaries or any other Person, 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.
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<PAGE>
ARTICLE IX
ORIGINAL ISSUE OF DEBENTURES
SECTION 9.1. Original Issue of Debentures.
Debentures in the aggregate principal amount of $206,190,000 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.
20
<PAGE>
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: /s/ James R. Hatfield
-----------------------------------
Name: James R. Hatfield
Title: Vice President, Chief Financial
Officer and Treasurer
[Seal]
Attest:
By: /s/ A.M. Strecker
-------------------------------
Name: A.M. Strecker
-----------------------------
Title: Executive Vice President
----------------------------
and Chief Operating Officer
----------------------------
BANK OF OKLAHOMA, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Rachel Redd-Singleton
-----------------------------------
Name: Rachel Redd-Singleton
Title: Assistant Vice President and
Trust Officer
21
<PAGE>
EXHIBIT 4.12
AMENDED AND RESTATED DECLARATION OF TRUST
OGE Energy Capital Trust I
Dated as of October 21, 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <S>
ARTICLE 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
"List of Holders"................................................................................4
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
(continued)
PAGE
<S> <C> <S>
"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 Securities"...........................................................................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
SECTION 2.6. Trust Enforcement Events; Waiver............................................9
</TABLE>
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<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
PAGE
<S> <C> <S>
SECTION 2.7. Trust Enforcement Event; Notice............................................11
ARTICLE III. ORGANIZATION....................................................................11
SECTION 3.1. Name and Organization......................................................11
SECTION 3.2. Office.....................................................................12
SECTION 3.3. Purpose....................................................................12
SECTION 3.4. Authority..................................................................12
SECTION 3.5. Title to Property of the Trust.............................................13
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.....................23
SECTION 3.14. Duration of Trust..........................................................23
SECTION 3.15. Mergers....................................................................23
SECTION 3.16. Property Trustee May File Proofs of Claim..................................25
ARTICLE IV. SPONSOR.........................................................................26
SECTION 4.1. Responsibilities of the Sponsor............................................26
SECTION 4.2. Indemnification and Expenses of the Trustees...............................26
ARTICLE V. TRUST COMMON SECURITIES HOLDER..................................................27
SECTION 5.1. Sponsor's Purchase of Common Securities....................................27
SECTION 5.2. Covenants of the Common Securities Holder..................................27
ARTICLE VI. TRUSTEES........................................................................27
SECTION 6.1. Number of Trustees.........................................................27
SECTION 6.2. Delaware Trustee; Eligibility..............................................28
SECTION 6.3. Property Trustee; Eligibility..............................................28
SECTION 6.4. Qualifications of Regular Trustees and Delaware Trustee Generally..........29
SECTION 6.5. Initial Regular Trustees...................................................29
SECTION 6.6. Appointment, Removal and Resignation of Trustees...........................29
SECTION 6.7. Vacancies among Trustees...................................................30
SECTION 6.8. Effect of Vacancies........................................................30
SECTION 6.9. Meetings...................................................................31
</TABLE>
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<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
PAGE
<S> <C> <S>
SECTION 6.10. Delegation of Power........................................................31
SECTION 6.11. Merger, Conversion, Consolidation or Succession to Business................32
ARTICLE VII. TERMS OF SECURITIES.............................................................32
SECTION 7.1. General Provisions Regarding Securities....................................32
SECTION 7.2. Distributions..............................................................34
SECTION 7.3. Redemption of Securities...................................................35
SECTION 7.4. Redemption Procedures......................................................36
SECTION 7.5. Voting Rights of Preferred Securities......................................37
SECTION 7.6. Voting Rights of Common Securities.........................................39
SECTION 7.7. Paying Agent...............................................................41
SECTION 7.8. Listing....................................................................41
SECTION 7.9. Transfer of Securities.....................................................41
SECTION 7.10. Mutilated, Destroyed, Lost or Stolen Certificates..........................42
SECTION 7.11. Deemed Security Holders....................................................43
SECTION 7.12. Global Securities..........................................................43
ARTICLE VIII. DISSOLUTION AND TERMINATION OF TRUST............................................45
SECTION 8.1. Dissolution and Termination of Trust.......................................45
SECTION 8.2. Liquidation Distribution Upon Dissolution of the Trust.....................46
ARTICLE IX. LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, DELAWARE TRUSTEES OR OTHERS...47
SECTION 9.1. Liability..................................................................47
SECTION 9.2. Exculpation................................................................47
SECTION 9.3. Fiduciary Duty.............................................................48
SECTION 9.4. Indemnification............................................................49
SECTION 9.5. Outside Businesses.........................................................52
ARTICLE X. ACCOUNTING......................................................................52
SECTION 10.1. Fiscal Year................................................................52
SECTION 10.2. Certain Accounting Matters.................................................52
SECTION 10.3. Banking....................................................................53
SECTION 10.4. Withholding................................................................53
ARTICLE XI. AMENDMENTS AND MEETINGS.........................................................53
SECTION 11.1. Amendments.................................................................53
SECTION 11.2. Meetings of the Holders of Securities; Action by Written Consent...........56
</TABLE>
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<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
PAGE
<S> <C> <S>
ARTICLE XII. REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE........................58
SECTION 12.1. Representations and Warranties of the Property Trustee.....................58
SECTION 12.2. Representations and Warranties of the Delaware Trustee.....................58
ARTICLE XIII. MISCELLANEOUS...................................................................59
SECTION 13.1. Notices....................................................................59
SECTION 13.2. Governing Law..............................................................60
SECTION 13.3. Intention of the Parties...................................................60
SECTION 13.4. Headings...................................................................60
SECTION 13.5. Successors and Assigns.....................................................60
SECTION 13.6. Partial Enforceability.....................................................60
SECTION 13.7. Counterparts...............................................................61
</TABLE>
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<PAGE>
TABLE OF CONTENTS
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 October 21, 1999, 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 I (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 29, 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 29, 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 October 21,
1999, 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 October 20, 1999, 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 October 21, 1999, 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
is announced and 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 Securities" 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
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Persons who may from time to time be duly appointed, qualified and serving as
Trustees in 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.
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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
condition precedent 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
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with respect to the Preferred Securities arising therefrom shall be deemed to
have been cured, for 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
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Trust Enforcement Event with respect to the Common Securities or impair any
right consequent thereon.
(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 I," 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.
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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.
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
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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 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;
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(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;
(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 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
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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:
(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:
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(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;
(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.
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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 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
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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, 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.
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(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 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;
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(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
(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;
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(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 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
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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
(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
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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).
(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 and assets
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 payments 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;
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(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,
replacement, 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,
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;
(b) following such merger, consolidation,
amalgamation, 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
obligations 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,
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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,
disbursements and advances of the Property Trustee, and its 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.
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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
related agreements providing for the sale of the Preferred Securities.
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.
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ARTICLE V.
TRUST COMMON SECURITIES HOLDER
SECTION 5.1. SPONSOR'S PURCHASE OF COMMON SECURITIES.
On the Closing Date, the Sponsor 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
outstanding 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.
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.
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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
applicable law,
provided that, if the Property Trustee has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable 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 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 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.
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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.
(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:
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(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, 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
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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.
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.
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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 two hundred
million dollars ($200,000,000) 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
8.375% 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 six million one hundred
and ninety thousand dollars ($6,190,000) 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 8.375% 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.
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(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 between the holders of Preferred Securities
and the holders of Common Securities 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 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.
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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 8.375% 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 January 15th, April 15th, July 15th and October 15th,
commencing January 15, 2000, 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 8.375% 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 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
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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.
(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
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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
between the holders of the Common Securities and the holders of the Preferred
Securities (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. The particular Preferred Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Property
Trustee from the outstanding Preferred Securities not previously called for
redemption, by such method (including, without limitation, by lot) as the
Property Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to $25 or an integral multiple of
$25 in excess thereof) of the liquidation amount of Preferred Securities of a
denomination larger than $25. The Property Trustee shall promptly notify the
regular trustees in writing of the Preferred Securities selected for redemption
and, in the case of any Preferred Securities selected for partial redemption,
the liquidation amount thereof to be redeemed. 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 Securities redeemed or to be redeemed only in part, to the portion of
the liquidation amount of Preferred Securities that 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
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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 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(e) 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
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(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
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
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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 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) Except as provided in subsection (k) below, 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 the
Holders of 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.
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(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 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.
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(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 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.
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(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.
(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.
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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
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
I 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
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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 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
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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;
(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; or
(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
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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;
(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.
(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.
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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.
(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
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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
(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.
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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.
(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
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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 Debenture
Issuer Indemnified Person who serves in such capacity
at any
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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
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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 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
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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.
(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
54
<PAGE>
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 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.
55
<PAGE>
(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;
(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
56
<PAGE>
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 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.
57
<PAGE>
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 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.
58
<PAGE>
(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:
(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) 553-3760
(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: (302) 651-1576
(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).
59
<PAGE>
(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.: (405) 553-3760
(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.
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.
60
<PAGE>
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.
61
<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: /s/ James R. Hatfield
--------------------------------------------
Name: James R. Hatfield
------------------------------------------
Title: Vice President and Treasurer
-----------------------------------------
WILMINGTON TRUST COMPANY,
as Delaware Trustee and Property Trustee
By: /s/ James P. Lawler
--------------------------------------------
Name: James P. Lawler
------------------------------------------
Title: Vice President
-----------------------------------------
/s/ A. M. Strecker
------------------------------------------------
A. M. Strecker, as Regular Trustee
/s/ James R. Hatfield
------------------------------------------------
James R. Hatfield, as Regular Trustee
62
<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 I
8.375% PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
OGE Energy Capital Trust I, 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 8.375% 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 October 21, 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. 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 I
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 I
COMMON SECURITIES
(LIQUIDATION AMOUNT $25 PER COMMON SECURITY)
OGE Energy Capital Trust I, 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 8.375% 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 October 21, 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
GUARANTEE AGREEMENT
OGE ENERGY CAPITAL TRUST I
DATED AS OF OCTOBER 21, 1999
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
CROSS REFERENCE TABLE*
Section of Trust Section of
Indenture Act of Guarantee
1939, as amended Agreement
<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> <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>
<CAPTION>
TABLE OF CONTENTS
(Continued)
PAGE
<S> <C> <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>
-ii-
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Guarantee"), dated as of October 21,
1999, 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 I, 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 $200,000,000 aggregate liquidation amount of
preferred securities, having a liquidation amount of $25 per security and
designated the 8.375% Preferred Securities of the Trust (the "Preferred
Securities") and $6,190,000 aggregate liquidation amount of common securities,
having a liquidation amount of $25 per security and designated the 8.375% 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 8.375% Junior
Subordinated Debentures due 2039 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 October 21, 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
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Trust shall have sufficient funds available therefor at the time or (iii)
upon a voluntary or 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 October 20, 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 October 21, 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.
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"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.
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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 May 15th
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.
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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. 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) 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
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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 not be liable except for the performance of such
duties and obligations as are specifically set
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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;
(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
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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 extend the
interest payment period on the Debentures and the Guarantor shall not be
obligated hereunder to make any Guarantee Payments during any Extended
Interest Payment Period (as defined in the certificate evidencing the
Debentures) with respect to the Distributions (as defined in the Declaration)
on the Securities.
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 set-off, 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
Extended Interest Payment Period as provided in the certificate evidencing the
Debentures and shall not have rescinded such notice, or such Extended Interest
Payment 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
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(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
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.
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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: /s/ James R. Hatfield By: /s/ James P. Lawler
----------------------------- ----------------------------
Name: James R. Hatfield Name: James P. Lawler
Title: Vice President and Treasurer Title: Vice President
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EXHIBIT 4.14
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT, dated as of October 21, 1999 (this "Agreement") between
OGE Energy Capital Trust I, a statutory business trust organized under the laws
of the State of Delaware (the "Trust") and OGE Energy Corp., an Oklahoma
corporation (the "Buyer").
In consideration of the foregoing, and intending to be legally bound
hereby, the parties hereto agree that, subject to the conditions contained
herein, the Buyer will purchase from the Trust and the Trust will sell to the
Buyer the Trust's 8.375% Common Securities (liquidation amount of $25 per common
security), representing undivided beneficial interests in the Trust (the "Common
Securities"), equal to an aggregate liquidation amount of approximately 3% of
the total capital of the Trust.
SALE OF STOCK AND TERMS OF PAYMENT
1.01 THE SALE. Upon the terms and subject to the conditions of this
Agreement, on October 21, 1999 (the "Closing Date"), the Trust will issue, sell
and deliver to the Buyer, and the Buyer will accept and purchase from the Trust,
247,600 Common Securities (the "Amount"). The Amount shall be subject to the
adjustments provided for in Section 1.03 hereof.
1.02. PURCHASE PRICE. Upon the terms and subject to the conditions
contained in this Agreement, and in consideration of the aforesaid issuance,
sale and delivery of the Common Securities on the Closing Date the Buyer will
pay or cause to be paid to the Trust $6,190,000 in cash (the "Purchase Price")
for the Amount. The Purchase Price shall be subject to the adjustments provided
for in Section 1.03 hereof.
1.03. AMOUNT AND PURCHASE PRICE ADJUSTMENT. If on the Closing Date,
after giving effect to the issuance and sale of the Trust's 8.375% Trust
Preferred Securities, the Amount does not equal an aggregate liquidation amount
of at least 3% of the total capital of the Trust, the Amount shall be adjusted
to equal an aggregate liquidation amount of at least 3% of the total capital of
the Trust and the Purchase Price shall be adjusted accordingly.
<PAGE>
IN WITNESS WHEREOF, each of the Trust and the Buyer has caused this
Agreement to be signed by its duly authorized officers as of the date first
above written.
OGE ENERGY CAPITAL TRUST I
By: /s/ A.M. Strecker
------------------------
Name: A.M. Strecker
Title: Regular Trustee
OGE ENERGY CORP.
By: /s/ James R. Hatfield
------------------------
Name: James R. Hatfield
Title: Vice President and Treasurer
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