<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 26, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
ONEOK, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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OKLAHOMA 73-1520922
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION
INCORPORATION OR ORGANIZATION) NUMBER)
100 WEST FIFTH STREET
TULSA, OKLAHOMA 74103
(918) 588-7000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
JERRY D. NEAL
VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND TREASURER
ONEOK, INC.
100 WEST FIFTH STREET
TULSA, OKLAHOMA 74103
(918) 588-7000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
-------------------
COPIES TO:
DONALD A. KIHLE ALLAN G. SPERLING
GABLE & GOTWALS CLEARY, GOTTLIEB, STEEN & HAMILTON
100 WEST FIFTH STREET, SUITE 1000 ONE LIBERTY PLAZA
TULSA, OKLAHOMA 74103-4219 NEW YORK, NEW YORK 10006
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF EACH CLASS OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE TO BE AGGREGATE PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER UNIT OFFERING PRICE FEE
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<S> <C> <C> <C> <C>
Debt Securities........ $400,000,000 100% $400,000,000 $118,000(1)
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</TABLE>
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(1) The registration fee has been calculated pursuant to Rule 457(o) under the
Securities Act of 1933, as amended.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY +
+NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN +
+OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE +
+SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED AUGUST 26, 1998
ONEOK, INC.
$400,000,000
DEBT SECURITIES
--------------
ONEOK, Inc., an Oklahoma corporation (and together with its subsidiaries and
its predecessor, ONEOK Inc., a Delaware corporation, and its subsidiaries, the
"Company"), may offer from time to time, together or separately, its debt
securities ("Securities") on terms to be determined at the time of offering.
Securities with an aggregate issue price of up to $400,000,000 may be issued,
in one or more series, under this Prospectus. The Securities will be unsecured
and will rank equally with all other unsecured and unsubordinated indebtedness
of the Company.
The prospectus supplement ("Prospectus Supplement") accompanying this
Prospectus sets forth, with respect to the particular series or issue of
Securities for which this Prospectus and the Prospectus Supplement are being
delivered ("Offered Securities"): the terms of the Securities offered,
including, where applicable, their title, aggregate principal amount, maturity,
rate of any interest (or the manner of calculation and time of payment
thereof), any redemption or repayment terms, any index, formula or other method
pursuant to which principal, premium or interest may be determined and the form
of such Securities (which may be in registered or global form), any initial
public offering price, the purchase price and net proceeds to the Company and
the other specific terms of such offering.
--------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THE SECURITIES OR PASSED UPON
THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
--------------
Offered Securities may be sold directly to purchasers or to or through
underwriters, dealers or agents. If any underwriters, dealers or agents are
involved in the offering of any Offered Securities, their names and any
applicable fee, commission or discount arrangements will be set forth in the
Prospectus Supplement. See "Plan of Distribution".
--------------
The date of this Prospectus is , 1998.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"), which may be inspected
and copied at the public reference facilities maintained by the Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549,
and at the following regional offices of the Commission: New York Office
(Seven World Trade Center, Suite 1300, New York, New York 10048) and Chicago
Office (500 W. Madison St., Suite 1400, Chicago, Illinois 60621-2511). Copies
of such materials also can be obtained upon request from the Public Reference
Section of the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Room
1024, Washington, D.C. 20549, at prescribed rates. In addition, such materials
may also be inspected and copied at the offices of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York 10005, on which exchange
the Company's common stock is listed. Finally, copies of reports, proxy
statements and other information filed with the Commission electronically by
the Company may be inspected by accessing the Commission's Internet site at
http://www.sec.gov.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus does not contain all the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information, reference is hereby made to the Registration Statement. Such
additional information may be obtained from the Commission's principal office
in Washington, D.C. Statements contained in this Prospectus as to the contents
of any contract or other document referred to herein or therein are not
necessarily complete, and in each instance reference is made to the copy of
such contract or other document filed as an exhibit to the Registration
Statement or such other document. A copy of the Registration Statement and the
exhibits and schedules thereto may be examined without charge at the
Commission's principal offices at Judiciary Plaza, 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549, and copies of such materials can be
obtained from the Public Reference Section of the Commission at prescribed
rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have heretofore been filed by the Company
with the Commission pursuant to the Exchange Act, are incorporated herein by
reference and are deemed to be a part hereof:
(a) Annual Report on Form 10-K for the fiscal year ended August 31, 1997;
(b) Quarterly Reports on Form 10-Q for the quarters ended November 30,
1997; February 28, 1998 and May 31, 1998; and
(c) Current Reports on Form 8-K dated August 25, 1998, July 23, 1998; May
26, 1998; March 11, 1998; February 10, 1998; December 12, 1997, November
26, 1997 and November 14, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Securities offered hereby also shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the written or oral request of any such person,
a copy of any or all of the foregoing documents incorporated herein by
reference, other than exhibits to such documents (unless such exhibits are
specifically incorporated by reference into such documents). Such requests
should be directed to: ONEOK, Inc., 100 West Fifth Street, P.O. Box 871,
Tulsa, OK 74102-0871, Attention: Chief Financial Officer.
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Any statement contained in a document all or a portion of which is
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent
that a statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified shall not be deemed to
constitute a part of this Prospectus except as so modified, and any statement
so superseded shall not be deemed to constitute part of this Prospectus.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
Statements contained in this Prospectus, including the documents that are
incorporated by reference as set forth in "Incorporation of Certain Documents
by Reference," that are not historical facts are forward-looking statements as
defined in the Private Securities Litigation Reform Act of 1995. Forward-
looking statements are based on management's beliefs as well as assumptions
made by and information currently available to management. Because such
statements are based on expectations as to future economic performance and are
not statements of fact, actual results may differ materially from those
projected. Important factors that could cause future results to differ
include, but are not limited to, national, regional and local economic
competitive conditions, regulatory and business trends and decisions,
technological developments, Year 2000 issues, inflation rates, weather
conditions, and other factors discussed in this and other filings by the
Company with the Commission, all of which are difficult to predict and many of
which are beyond the control of the Company. Accordingly, while the Company
believes these forward-looking statements to be reasonable, there can be no
assurance that they will approximate actual experience or that the
expectations derived from them will be realized. When used in the Company's
documents or oral presentations, the words "anticipate," "estimate," "expect,"
"objective," "projection," "forecast," "goal" or similar words are intended to
identify forward- looking statements.
THE COMPANY
The Company engages in several aspects of the energy business. The Company
purchases, gathers, compresses, transports, and stores natural gas for
distribution to consumers. It transports gas for others and leases pipeline
capacity to others for their use in transporting gas. The Company drills for
and produces oil and gas, extracts and sells natural gas liquids, and is
engaged in the gas marketing business. In addition, it leases and operates a
headquarters office building (leasing excess space to others) and owns and
operates a related parking facility. As a regulated natural gas utility the
Company distributes natural gas to approximately 1.4 million customers in the
states of Oklahoma and Kansas.
The Company's principal executive offices are located at 100 West Fifth
Street, Tulsa, Oklahoma 74103 and its telephone number is (918) 588-7000.
USE OF PROCEEDS
The net proceeds from the sale of the Securities will be added to the
Company's general funds and are expected to be used to retire existing
indebtedness and for general corporate purposes, except as may be stated in a
Prospectus Supplement.
DESCRIPTION OF SECURITIES
The Securities will be issued under an Indenture ("Indenture") between the
Company and the ("Trustee"). The form of the Indenture has been filed as an
exhibit to the Registration Statement. The Indenture is subject to
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and governed by the Trust Indenture Act of 1939, as amended ("TIA"). The
following summary of certain provisions of the Indenture does not purport to
be complete and is subject to, and qualified in its entirety by reference to,
the Indenture, including the definitions of certain terms therein. Whenever
particular sections or defined terms of the Indenture are referred to, such
sections or defined terms are incorporated by reference herein as part of the
statement made, and the statement is qualified in its entirety by such
reference.
GENERAL
The Indenture provides that any Offered Securities may be issued in one or
more series, in each case as authorized from time to time by the Company; the
Indenture does not limit the aggregate principal amount of debt securities
that may be issued thereunder. Reference is made to the Prospectus Supplement
relating to the Offered Securities for the following:
(1) The title of such Securities.
(2) The aggregate principal amount of such Securities, the percentage of
their principal amount at which such Securities will be issued and the date
or dates on which the principal of such Securities will be payable or the
method by which such date or dates will be determined or extended.
(3) The rate or rates (which may be fixed or variable) at which such
Securities will bear interest, if any, and, if variable, the method by
which such rate or rates will be determined.
(4) The date or dates from which any interest will accrue or the method
by which such date or dates will be determined, the date or dates on which
any interest will be payable (including the Regular Record Dates for such
Interest Payment Dates) and the basis on which any interest will be
calculated if other than on the basis of a 360-day year of twelve 30-day
months.
(5) The place or places, if any, other than or in addition to New York
City, where the principal of (and premium, if any, on) and interest, if
any, on such Securities will be payable, where any Securities may be
surrendered for registration of transfer, where such Securities may be
surrendered for exchange and where notices or demands to or upon the
Company in respect of such Securities may be served.
(6) The period or periods within which, the price or prices at which and
the other terms and conditions upon which, such Securities may be redeemed,
in whole or in part, at the option of the Company, if the Company is to
have that option.
(7) The obligation, if any, of the Company to redeem, purchase or repay
such Securities, in whole or in part, pursuant to any sinking fund or
analogous provision or at the option of a holder thereof, and the period or
periods within which, the price or prices at which and the other terms and
conditions upon which, such Securities will be so redeemed, purchased or
repaid.
(8) Whether the amount of payments of principal of (and premium, if any,
on) and interest, if any, on such Securities may be determined with
reference to an index, formula or other method (which index, formula or
method may, without limitation, be based on one or more commodities, equity
indices or other indices) and the manner in which such amounts will be
determined.
(9) Any deletions from, modifications of or additions to the Events of
Default or covenants of the Company with respect to such Securities (which
Events of Default or covenants may not be consistent with the Events of
Default or covenants set forth in the general provisions of the Indenture).
(10) If other than the entire principal amount thereof, the portion of
the principal amount of such Securities that will be payable upon
declaration of acceleration of the maturity thereof or the method by which
such portion will be determined.
(11) Any provisions in modification of, in addition to or in lieu of any
of the provisions concerning defeasance and covenant defeasance contained
in the Indenture that will be applicable to such Securities.
(12) Any provisions granting special rights to the holders of such
Securities upon the occurrence of such events as may be specified.
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(13) If other than the Trustee, the designation of any Paying Agent or
Security Registrar for such Securities, and the designation of any transfer
or other agents or depositories for such Securities.
(14) Whether such Securities will be issuable initially in temporary
global form, whether any such Security is to be issuable in permanent
global form (a "Global Security") and, if so, whether beneficial owners of
interests in any Global Security may exchange such interests for Securities
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 the Indenture, and, if such Securities are to be issuable as a
Global Security, the identity of the depository for such Securities.
(15) The person to whom any interest on any Security will be payable, if
other than the person in whose name such Security (or one or more
Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, or the manner in which any interest
payable on a temporary Security issued in global form will be paid (if
other than as described in "Book-Entry Securities" below).
(16) The denomination or denominations in which such Securities will be
issuable, if other than $1,000 or any integral multiple thereof.
(17) Whether and under what circumstances the Company will pay Additional
Amounts, as contemplated by Section 1008 of the Indenture, on such
Securities to any holder who is not a United States person (including any
modification of the definition of such term as contained in the Indenture)
in respect of any tax, assessment or governmental charge and, if so,
whether the Company will have the option to redeem such Securities rather
than pay such Additional Amounts (and the terms of any such option).
(18) Any other, terms, conditions, rights and preferences (or limitations
on such rights and preferences) of such Securities not inconsistent with
the provisions of the Indenture (Section 301).
If the terms of any series of Securities provide that the Company may be
required to pay Additional Amounts in respect thereof, for purposes of this
Prospectus, any reference to the payment of the principal of (and premium, if
any, on) or interest, if any, on such Securities will be deemed to include
mention of the payment of the Additional Amounts provided for by the terms of
such Securities.
The Securities referred to on the cover page of this Prospectus, and any
additional debt securities issued under the Indenture, are herein collectively
referred to, while a single Trustee is acting with respect to all debt
securities issued thereunder, as the "Indenture Securities". The Indenture
provides that there may be more than one Trustee thereunder, each with respect
to one or more series of Indenture Securities. At a time when two or more
Trustees are acting under the Indenture, each with respect to only certain
series, the term "Indenture Securities" as used herein will mean the series
with respect to which each respective Trustee is acting. In the event that
there is more than one Trustee under the Indenture, the powers and trust
obligations of each Trustee as described herein will extend only to the series
of Indenture Securities for which it is the Trustee. If two or more Trustees
are acting under the Indenture, then the Indenture Securities for which each
Trustee is acting would in effect be treated as if issued under separate
indentures.
The Securities may provide for less than the entire principal amount thereof
to be due and payable upon a declaration of acceleration of the maturity
thereof. A discussion of the federal income tax and other considerations
applicable to Original Issue Discount Securities will be set forth in the
Prospectus Supplement relating thereto.
The Securities will be unsecured obligations of the Company and will rank on
a parity with all other unsecured and unsubordinated Indebtedness of the
Company.
The general provisions of the Indenture do not limit the ability of the
Company to incur Indebtedness and do not afford holders of Securities
protection in the event of highly leveraged or similar transactions involving
the Company. However, the general provisions of the Indenture do provide that
neither the Company nor any Restricted Subsidiary will subject certain of its
properties or assets to any mortgage or other encumbrance unless
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the Indenture Securities outstanding thereunder are secured equally and
ratably with or prior to such other Indebtedness thereby secured. See
"Limitations on Liens" and "Limitation on Sale and Leaseback Transactions"
under the heading "Certain Covenants". Reference is made to the Prospectus
Supplement for information with respect to any deletions from, modifications
of or additions to the Events of Default or covenants of the Company that are
described below, including any addition of a covenant or other provision
providing event risk or similar protection.
Under the Indenture, the Company has the ability to issue Indenture
Securities with terms different from those of Indenture Securities previously
issued thereunder and, without the consent of the holders, to reopen a
previous issue of a series of Indenture Securities and issue additional
Indenture Securities of such series (unless such reopening was restricted when
such series was created) in an aggregate principal amount determined by the
Company (Section 301).
There is no requirement that future issues of debt securities of the Company
be issued under the Indenture, and the Company will be free to employ other
indentures or documentation, possibly containing provisions different from
those included in the Indenture or applicable to one or more issues of
Indenture Securities, in connection with such future issues.
CERTAIN COVENANTS
LIMITATIONS ON LIENS
The Indenture provides that the Company will not, and will not permit any
Restricted Subsidiary to, create, incur, issue or assume any Indebtedness
secured by any Lien on any Principal Property, or on shares of stock or
Indebtedness of any Restricted Subsidiary ("Restricted Securities"), without
making effective provision for the Outstanding Indenture Securities (other
than any Outstanding Indenture Securities not entitled to this covenant) to be
secured by the Lien equally and ratably with (or prior to) any and all
Indebtedness and obligations secured or to be secured thereby for so long as
such Indebtedness is so secured, except that the foregoing restriction will
not apply to:
(1) Any Lien existing on the date of the first issuance of Indenture
Securities.
(2) Any Lien on any Principal Property or Restricted Securities of any
Person existing at the time such Person is merged or consolidated with or
into the Company or a Restricted Subsidiary, or such Person becomes a
Restricted Subsidiary.
(3) Any Lien on any Principal Property existing at the time of
acquisition of such Principal Property by the Company or a Restricted
Subsidiary, whether or not assumed by the Company or such Restricted
Subsidiary, provided that no such Lien may extend to any other Principal
Property of the Company or any Restricted Subsidiary.
(4) Any Lien on any Principal Property (including any improvements on an
existing Principal Property) of the Company or any Restricted Subsidiary,
and any Lien on the shares of stock of a Restricted Subsidiary that was
formed or is held for the purpose of acquiring and holding such Principal
Property, in each case to secure all or any part of the cost of
acquisition, development, operation, construction, alteration, repair or
improvement of all or any part of such Principal Property (or to secure
Indebtedness incurred by the Company or a Restricted Subsidiary for the
purpose of financing all or any part of such cost); provided that such Lien
is created prior to, at the time of, or within 12 months after the latest
of, the acquisition, completion of construction or improvement or
commencement of commercial operation of such Principal Property and
provided, further, that no such Lien may extend to any other Principal
Property of the Company or any Restricted Subsidiary, other than any
theretofore unimproved real property on which the Principal Property is so
constructed or developed or the improvement is located.
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(5) Any Lien on any Principal Property or Restricted Securities to secure
Indebtedness owing to the Company or to another Restricted Subsidiary.
(6) Any Lien in favor of governmental bodies to secure advances or other
payments pursuant to any contract or statute or to secure Indebtedness
incurred to finance the purchase price or cost of constructing or improving
the property subject to such Lien.
(7) Any Lien created in connection with a project financed with, and
created to secure, Non-Recourse Indebtedness.
(8) Carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the ordinary course of
business which are not delinquent or remain payable without penalty or
which are being contested in good faith and by appropriate proceedings.
(9) Liens (other than Liens imposed by ERISA) on the property of the
Company or any of its Subsidiaries incurred, or pledges or deposits
required, in connection with workmen's compensation, unemployment insurance
and other social security legislation.
(10) Liens securing taxes that remain payable without penalty or which
are being contested in good faith by appropriate proceedings where
collection thereof is stayed; provided that the Company has set aside on
its books reserves with respect to such taxes (segregated to the extent
required by GAAP) deemed by it to be adequate.
(11) Any right which any municipal or governmental body or agency may
have by virtue of any franchise, license or contract to purchase or
designate a purchaser of, or order the sale of, any property of the Company
upon payment of reasonable compensation therefor or to terminate any
franchise, license or other rights or to regulate the property and business
of the Company.
(12) Any Liens, neither assumed by the Company nor on which it
customarily pays interest, existing upon real estate or rights in or
relating to real estate acquired by the Company for sub-station, measuring
station, regulating station, gas purification station, compressor station,
transmission line, distribution line or right-of-way purposes.
(13) Easements or reservations in any property of the Company for the
purpose of roads, pipe lines, gas transmission and distribution lines,
electric light and power transmission and distribution lines, water mains
and other like purposes, and zoning ordinances, regulations and
restrictions which do not impair the use of such property in the operation
of the business of the Company.
(14) Any extension, renewal, substitution or replacement (or successive
extensions, renewals, substitutions or replacements), in whole or in part,
of any Lien referred to in the foregoing clauses (1) through (13), provided
that the Indebtedness secured thereby may not exceed the principal amount
of Indebtedness so secured at the time of such renewal or refunding, and
that such renewal or refunding Lien must be limited to all or any part of
the same property and improvements thereon, shares of stock or Indebtedness
that secured the Lien renewed or refunded.
(15) Any Lien not permitted above securing Indebtedness that, together
with the aggregate outstanding principal amount of other secured
Indebtedness that would otherwise be subject to the foregoing restrictions
(excluding Indebtedness secured by Liens permitted under the foregoing
exceptions) and the Attributable Debt in respect of all Sale and Leaseback
Transactions (not including Attributable Debt in respect of any such Sale
and Leaseback Transactions described in clause (iii) or (iv) of the next
succeeding paragraph) would not then exceed 15% of Consolidated Net
Tangible Assets (Section 1006).
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS
The Indenture provides that the Company will not, and will not permit any
Restricted Subsidiary to, enter into any Sale and Leaseback Transaction unless
(i) the Company or a Restricted Subsidiary would be entitled, without securing
the Outstanding Indenture Securities, to incur Indebtedness secured by a Lien
on the Principal Property that is the subject of such Sale and Leaseback
Transaction; (ii) the Attributable Debt associated
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therewith would be in an amount permitted under clause (15) of the preceding
paragraph; (iii) the proceeds received in respect of the Principal Property so
sold and leased back at the time of entering into such Sale and Leaseback
Transaction are used for the business and operations of the Company or any
Subsidiary; or (iv) within 12 months after the sale or transfer, an amount
equal to the proceeds received in respect of the Principal Property so sold
and leased back at the time of entering into such Sale and Leaseback
Transaction is applied to the prepayment (other than mandatory prepayment) of
any Outstanding Indenture Securities or Funded Indebtedness of the Company or
a Restricted Subsidiary (other than Funded Indebtedness that is held by the
Company or any Restricted Subsidiary or Funded Indebtedness of the Company
that is subordinate in right of payment to any Outstanding Indenture
Securities) (Section 1007).
CERTAIN DEFINITIONS
"Attributable Debt" means, as to any particular lease under which any Person
is at the time liable, at any date as of which the amount thereof is to be
determined, the total net amount of rent required to be paid by such Person
under such lease during the remaining term thereof (excluding amounts required
to be paid on account of maintenance and repairs, services, insurance, taxes,
assessments, water rates and similar charges and contingent rents), discounted
from the respective due dates thereof at the weighted average of the rates of
interest (or Yield to Maturity, in the case of Original Issue Discount
Securities) borne by the Indenture Securities then outstanding under the
Indenture, compounded annually.
"Capital Stock" means, with respect to any corporation, any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests (however designated) in stock issued by that
corporation.
"Consolidated Net Tangible Assets" means (i) the total amount of assets
(less applicable reserves and other properly deductible items) which under
GAAP would be included on a consolidated balance sheet of the Company and its
Subsidiaries after deducting therefrom (a) all current liabilities, provided,
however, that there shall not be deducted billings recorded as revenues
deferred pending the outcome of rate proceedings (less applicable income taxes
thereon), if and to the extent the obligation to refund the same shall not
have been finally determined, (b) appropriate allowance for minority interests
in common stocks of Subsidiaries and (c) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, which in each case under GAAP would be included on such
consolidated balance sheet, less (ii) the amount which would be so included on
such consolidated balance sheet for investments (less applicable reserves)
made in Subsidiaries.
"Funded Indebtedness" as applied to any Person, means all Indebtedness of
such Person maturing after, or renewable or extendible at the option of such
Person beyond, 12 months from the date of determination.
"Indebtedness" means obligations for money borrowed, evidenced by notes,
bonds, debentures or other similar evidences of indebtedness.
"Lien" means any lien, mortgage, pledge, encumbrance, charge or security
interest securing Indebtedness; provided, however, that the following types of
transactions will not be considered for purposes of this definition to result
in a Lien: (i) any acquisition by the Company or any Restricted Subsidiary of
any property or assets subject to any reservation or exception under the terms
of which any vendor, lessor or assignor creates, reserves or excepts or has
created, reserved or excepted an interest in oil, gas or any other mineral in
place or the proceeds thereof, (ii) any conveyance or assignment whereby the
Company or any Restricted Subsidiary conveys or assigns to any Person or
Persons an interest in oil, gas or any other mineral in place or the proceeds
thereof, (iii) any Lien upon any property or assets either owned or leased by
the Company or any Restricted Subsidiary or in which the Company or any
Restricted Subsidiary owns an interest that secures for the benefit of the
Person or Persons paying the expenses of developing or conducting operations
for the recovery, storage, transportation or sale of the mineral resources of
such property or assets (or property or assets with which it is unitized) the
payment to such Person or Persons of the Company's or the Restricted
Subsidiary's proportionate part of such
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development or operating expenses or (iv) any hedging arrangements entered
into in the ordinary course of business, including any obligation to deliver
any mineral, commodity or asset in connection therewith.
"Non-Recourse Indebtedness" means, at any time, Indebtedness incurred after
the date of the Indenture by the Company or a Restricted Subsidiary in
connection with the acquisition of property or assets by the Company or a
Restricted Subsidiary or the financing of the construction of or improvements
on property, whenever acquired, provided that, under the terms of such
Indebtedness and pursuant to applicable law, the recourse at such time and
thereafter of the lenders with respect to such Indebtedness is limited to the
property or assets so acquired, or such construction or improvements,
including Indebtedness as to which a performance or completion guarantee or
similar undertaking was initially applicable to such Indebtedness or the
related property or assets if such guarantee or similar undertaking has been
satisfied and is no longer in effect.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Principal Property" means any property located in the United States, except
any such property that in the opinion of the Board of Directors of the Company
is not of material importance to the total business conducted by the Company
and its consolidated Subsidiaries.
"Restricted Subsidiary" means any Subsidiary that owns or leases a Principal
Property.
"Sale and Leaseback Transaction" means any arrangement with any Person
pursuant to which the Company or any Restricted Subsidiary leases any
Principal Property that has been or is to be sold or transferred by the
Company or the Restricted Subsidiary to such Person, other than (i) a lease
for a term, including renewals at the option of the lessee, of not more than
three years or classified as an operating lease under generally accepted
accounting principles, (ii) leases between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries and (iii) leases of a Principal
Property executed by the time of, or within 12 months after the latest of, the
acquisition, the completion of construction or improvement, or the
commencement of commercial operation, of the Principal Property.
"Subsidiary" of the Company means (i) a corporation, of which a majority of
the Capital Stock with voting power, under ordinary circumstances, to elect
directors is owned, directly or indirectly, at the date of determination, by
the Company, by one or more Subsidiaries or by the Company and one or more
Subsidiaries or (ii) any other Person (other than a corporation) in which at
the date of determination the Company, one or more Subsidiaries or the Company
and one or more Subsidiaries, directly or indirectly, has at least a majority
ownership and power to direct the policies, management and affairs thereof.
DENOMINATIONS
Unless otherwise provided in the applicable Prospectus Supplement,
Securities in fully registered form shall be issued in denominations of $1,000
and integral multiples of $1,000. Securities issued in global form shall be in
denominations set forth in the applicable Prospectus Supplement. (Sections
201, 301 and 302).
PAYMENT, TRANSFER AND EXCHANGE
The Company will be required to maintain an office or agency in each Place
of Payment for such series, and may from time to time designate additional
offices or agencies, at which the principal of (and premium, if any, on) and
interest, if any, on such series will be payable (Sections 301 and 1002).
Unless otherwise provided in the
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Prospectus Supplement, the Place of Payment will be New York City, and the
Company will initially designate the office of the agent of the Trustee in New
York City as an office where such principal, premium and interest will be
payable. Notwithstanding the foregoing, at the option of the Company,
interest, if any, may be paid on Securities (i) by check mailed to the person
entitled thereto at such person's address appearing in the Security Register
or (ii) by wire transfer to an account located inside the United States
maintained by the person entitled thereto as specified in the Security
Register (Sections 308 and 1002). Unless otherwise provided in the Prospectus
Supplement, payment of any installment of interest on Securities will be made
to the person in whose name such Security is registered at the close of
business on the Regular Record Date for such interest (Section 308).
The Company may from time to time designate additional offices or agencies,
approve a change in the location of any office or agency and, except as
provided above, rescind the designation of any office or agency.
All moneys paid by the Company to the Trustee or a Paying Agent for the
payment of principal of (or premium, if any, on) or interest, if any, on any
Security that remains unclaimed for the lesser of the time period specified in
applicable abandoned property or similar laws and two years after such
principal, premium or interest becomes due and payable will be repaid to the
Company, and the holder of such Security will (subject to applicable abandoned
property or similar laws) thereafter, as an unsecured general creditor, look
only to the Company for payment thereof (Section 1003).
Subject to the terms of the Indenture and the limitations applicable to
Global Securities, Securities of any series will be exchangeable for other
Securities of the same series of any authorized denominations and of a like
aggregate principal amount (Section 306).
Subject to the terms of the Indenture and the limitations applicable to
Global Securities, Securities of a series may be presented for registration of
transfer and for exchange (i) at each office or agency required to be
maintained by the Company for payment of such series, as described above, and
(ii) at each other office or agency that the Company may designate from time
to time for such purposes. Registration of transfers and exchanges will be
effected if the transfer agent is satisfied with the evidence of ownership and
identity of the person making the request and if the transfer form thereon is
duly executed. No service charge will be made for any registration of transfer
or exchange of Securities, but the Company may require payment of any tax or
other governmental charge payable in connection therewith (Section 306).
In the event of any redemption in part, the Company will not be required (i)
to register the transfer of or exchange Securities of any series during a
period beginning at the opening of business 15 days before any selection of
Securities of that series to be redeemed and ending at the close of business
on the date the relevant notice of redemption is mailed, (ii) to register the
transfer of or exchange any Security or portion thereof called for redemption,
except the unredeemed portion, if any, of a Security being redeemed in part or
(iii) to register the transfer of or exchange any Security that has been
surrendered for repayment at the option of the holder, except the portion, if
any, of such Security not to be so repaid (Section 306).
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate with or merge into, or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of
its assets to, any Person, unless each of the following conditions is
satisfied:
(1) Immediately after giving effect to such transaction, no Event of
Default (or event that with notice or lapse of time, or both, would be
such) with respect to the Indenture Securities will have happened and be
continuing.
(2) The corporation or other entity formed by such consolidation or into
which the Company is merged, or the Person to which such properties and
assets will have been conveyed, transferred or leased, assumes the
Company's obligation as to the due and punctual payment of the principal of
(and premium, if any, on)
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and interest, if any, on the Indenture Securities and the performance and
observance of every covenant to be performed by the Company under the
Indenture, and will be organized under the laws of the United States, one
of the States thereof or the District of Columbia.
(3) The Company has delivered to the Trustee an Officers' Certificate and
Opinion of Counsel, each stating that the transaction complies with these
conditions (Section 801).
In the event that any transaction described in and complying with the
conditions listed in the immediately preceding paragraph occurs, the Company
would be discharged from all obligations and covenants under the Indenture and
all obligations under the Indenture Securities, with the successor corporation
or Person succeeding to such obligations and covenants of the Company (Section
802).
In the event of any such transaction, the Indenture provides that, if any
Principal Property or Restricted Securities would thereupon become subject to
any Lien, the Indenture Securities (other than any Indenture Securities not
entitled to the benefit of the "Limitation of Liens" covenant) will be
secured, as to such Principal Property or Restricted Securities, equally and
ratably with (or prior to) the Indebtedness that upon the occurrence of such
transaction would become secured by such Lien, unless such Lien could be
created under the Indenture without equally and ratably securing such
Indenture Securities (Section 803).
MODIFICATION AND WAIVER
The Indenture permits the Company and the Trustee, with the consent of the
holders of not less than a majority in aggregate principal amount of
Outstanding Indenture Securities affected thereby, to execute supplemental
indentures adding any provisions to or changing or eliminating any provisions
of the Indenture or modifying the rights of such holders, except that no such
supplemental indenture may, without the consent of the holder of each
Outstanding Indenture Security affected thereby:
(1) Change the Stated Maturity of the principal of (or premium, if any,
on) or any installment of interest on any Indenture Security, or reduce the
principal amount thereof (or any premium, if any, thereon) or the rate of
interest, if any, thereon, or change any obligation of the Company to pay
Additional Amounts on any Indenture Security as contemplated by Section
1008 of the Indenture, or reduce the amount of the principal of an Indexed
Security or an Original Issue Discount Security that would be due and
payable upon an acceleration of maturity thereof or the amount thereof
provable in bankruptcy, or adversely affect the right of repayment, if any,
at the option of the holder, or change any Place of Payment where any
Indenture Security or any premium or 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 on or after any Redemption Date or
Repayment Date), or adversely affect any right to convert or exchange any
Indenture Security.
(2) Reduce the aforesaid percentage in principal amount of Outstanding
Indenture Securities, the consent of the holders of which is required for
any such supplemental indenture.
(3) Reduce the percentage in principal amount of outstanding Indenture
Securities, the consent of the holders of which is necessary to modify or
waive any default under the Indenture (Section 902).
The holders of a majority in aggregate principal amount of Outstanding
Indenture Securities have the right to waive compliance by the Company with
certain covenants contained in the Indenture (Section 1009).
Modification and amendment of the Indenture may be made by the Company and
the Trustee without the consent of any holder, for any of the following
purposes: (i) to evidence the succession of another Person to the Company as
obligor under the Indenture; (ii) to add to the covenants of the Company for
the benefit of the holders of any series of Indenture Securities; (iii) to add
Events of Default for the benefit of the holders of any
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<PAGE>
such series; (iv) to change or eliminate any provisions of the Indenture,
provided that any such change or elimination will become effective only when
there is no Indenture Security Outstanding thereunder of any series that is
entitled to the benefit of such provisions; (v) to secure the Indenture
Securities Outstanding under the Indenture pursuant to the requirements of
Section 803 or 1006 of the Indenture, or otherwise; (vi) to establish the form
or terms of Indenture Securities of any series, as permitted by Sections 201
and 301 of the Indenture; (vii) to provide for the acceptance of appointment
by a successor Trustee or facilitate the administration of the trusts under
the Indenture by more than one Trustee; (viii) to close the Indenture with
respect to the authentication and delivery of additional series of Indenture
Securities; (ix) to cure any ambiguity or inconsistency in the Indenture,
provided such action does not adversely affect in any material respect the
interests of holders of Indenture Securities of any series thereunder; (x) to
supplement any of the provisions of the Indenture to the extent necessary to
permit or facilitate defeasance and discharge of any series of Indenture
Securities, provided that such action does not adversely affect in any
material respect the interests of the holders of the Indenture Securities; or
(xi) to make any other change that does not affect the rights of any holder
(Section 901).
The Indenture provides that in determining whether the holders of the
requisite principal amount of Indenture Securities of a series then
outstanding have given any request, demand, authorization, direction, notice,
consent or waiver thereunder or whether a quorum is present at a meeting of
holders of such Indenture Securities, (i) the principal amount of an Original
Issue Discount Security that will be deemed to be outstanding will be the
amount of the principal thereof that would be due and payable as of the date
of such determination upon acceleration of the maturity thereof and (ii) the
principal amount of an Indexed Security that may be counted in making such
determination or calculation and that will be deemed outstanding for such
purpose will be equal to the principal face amount of such Indexed Security at
original issuance, unless otherwise provided with respect to such Indenture
Security pursuant to Section 301 (Section 101).
EVENTS OF DEFAULT
The following are Events of Default with respect to any series of Indenture
Securities: (i) default in the payment of any installment of interest upon any
Indenture Security of such series when it becomes due and payable, continued
for 30 days; (ii) default in the payment of the principal of (or premium, if
any, on) any Indenture Security of such series at its Maturity; (iii) failure
on the part of the Company to observe or perform any other covenant or
agreement contained in the Indenture (other than a covenant or agreement
included in the Indenture solely for the benefit of less than all series of
Indenture Securities or a covenant the default in the performance of which
would be covered by clause (vi) below) for 60 days after written notice of
such failure, requiring the Company to remedy the same, has been given to the
Company by the Trustee or to the Company and the Trustee by the holders of at
least 25% in aggregate principal amount of Outstanding Indenture Securities of
such series; (iv) default under any indenture or instrument under which the
Company or any Restricted Subsidiary has at the time outstanding Indebtedness
for borrowed money or guarantees thereof in any individual instance in excess
of $15,000,000 and, if not already matured in accordance with its terms, such
Indebtedness has been accelerated and such acceleration is not rescinded or
annulled within 30 days after notice thereof has been given to the Company by
the Trustee or to the Company and the Trustee by the holders of at least 25%
in aggregate principal amount of Outstanding Indenture Securities of such
series; provided that, if, prior to the entry of judgment in favor of the
Trustee for payment of the Indenture Securities of such series, the default
under such indenture or instrument has been remedied or cured by the Company
or such Restricted Subsidiary, or waived by the holders of such Indebtedness,
then the Event of Default under the Indenture will be deemed likewise to have
been remedied, cured or waived; (v) certain events of bankruptcy, insolvency
or reorganization affecting the Company; and (vi) any other Event of Default
included in the Indenture for the benefit of Indenture Securities of such
series (Section 501).
If an Event of Default with respect to Indenture Securities of any series at
the time Outstanding occurs and is continuing, either the Trustee or the
holders of at least 25% in aggregate principal amount of the Outstanding
Securities of that series (or, if the Indenture Securities of that series are
Original Issue Discount Securities or
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Indexed Securities, such portion of the principal amount as may be specified
in the terms of that series) by notice as provided in the Indenture may
declare the principal amount of all the Indenture Securities of that series
and the accrued interest thereon to be due and payable immediately. At any
time after a declaration of acceleration with respect to Indenture Securities
of any series has been made, but before a judgment or decree for payment of
money has been obtained by the Trustee, the holders of a majority in aggregate
principal amount of the Outstanding Securities of that series may, under
certain circumstances, rescind and annul such acceleration (Section 502).
The holders of a majority in aggregate principal amount of Outstanding
Indenture Securities of any series have the right to waive certain past
defaults under the Indenture (Section 513).
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under
no obligation to exercise any of its rights or powers under the Indenture at
the request or direction of any of the holders, unless such holders shall have
offered to the Trustee reasonable indemnity (Section 602). Subject to such
provisions for the indemnification of the Trustee, the holders of a majority
in aggregate principal amount of the Outstanding Securities of any series will
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 Indenture Securities of
that series unless the Trustee shall determine that the action specified would
be in conflict with any rule or law (Section 512).
The Company will be required to furnish the Trustee annually a certificate
stating whether or not the Company is in default under the Indenture and, if
so, specifying all such defaults and the nature thereof (Section 1004).
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides that the Company may elect either (i) to defease and
be discharged from any and all obligations with respect to all or a portion of
the Indenture Securities of any series (except for the obligations (a) to pay
Additional Amounts, if any; (b) to register the transfer of or exchange such
Indenture Securities; (c) to replace temporary or mutilated, destroyed, lost
or stolen Indenture Securities of such series; (d) to maintain an office or
agency in respect of such Indenture Securities; and (e) to hold moneys for
payment in trust) ("defeasance"); or (ii) to be released from its obligations
with respect to such outstanding Indenture Securities under Sections 1006 and
1007 of the Indenture (being the restrictions described above under
"Limitations on Liens" and "Limitation on Sale and Leaseback Transactions",
respectively, under the heading "Certain Covenants") or, if so provided
pursuant to the Indenture, its obligations with respect to any other covenant,
and any omission to comply with such obligations will not constitute a default
or an Event of Default with respect to such Indenture Securities ("covenant
defeasance"), in either case upon the irrevocable deposit by the Company with
the Trustee (or other qualifying trustee), in trust, of (i) an amount in cash;
(ii) Government Obligations (as defined below) that, through the payment of
principal and interest in accordance with their terms, will provide money in
an amount; or (iii) a combination thereof in an amount, sufficient to pay the
principal of (and premium, if any, on) and interest, if any, to Stated
Maturity (or redemption) on such Indenture Securities and any mandatory
sinking fund or analogous payments thereon, on the scheduled due dates
therefor (Article 14).
Such a trust may only be established if, among other things, the Company has
delivered to the Trustee an Opinion of Counsel to the effect that the holders
of such Indenture Securities will not recognize income, gain or loss for
United States federal income tax purposes as a result of such defeasance or
covenant defeasance and will be subject to United States 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 or covenant defeasance had not occurred, and such
opinion, in the case of defeasance under clause (i) above, must refer to and
be based upon a ruling of the Internal Revenue Service or a change in
applicable United States federal income tax law occurring after the date of
the Indenture (Section 1404).
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The Prospectus Supplement may further describe the provisions, if any,
permitting such defeasance or covenant defeasance, including any modifications
to the provisions described above, with respect to the Indenture Securities of
or within a particular series.
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities to one or more underwriters for
public offering and sale by them or may sell the Offered Securities to
investors directly or through agents. Any such underwriter or agent involved
in the offer and sale of the Offered Securities will be named in the related
Prospectus Supplement. The Company has reserved the right to sell the Offered
Securities directly to investors on its own behalf in those jurisdictions
where it is authorized to do so.
Underwriters may offer and sell the Offered Securities at a fixed price or
prices that may be changed, at market prices prevailing at the time of sale,
at prices related to such prevailing market prices or at negotiated prices.
The Company also may, from time to time, authorize dealers, acting as the
Company's agents, to offer and sell the Offered Securities upon such terms and
conditions as set forth in the related Prospectus Supplement. In connection
with the sale of the Offered Securities, underwriters may receive compensation
from the Company in the form of underwriting discounts or commissions and may
also receive commissions from purchasers of the Offered Securities for whom
they may act as agent. Underwriters may sell the Offered Securities to or
through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions
(which may be changed from time to time) from the purchaser for whom they may
act as agents.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of the Offered Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the related Prospectus Supplement. Dealers and agents
participating in the distribution of the Offered Securities may be deemed to
be underwriters, and any discounts and commissions received by them and any
profit realized by them on resale of the Offered Securities may be deemed to
be underwriting discounts and commissions under the Securities Act.
Underwriters, dealers and agents may be entitled, under agreements entered
into with the Company, to indemnification against and contribution towards
certain civil liabilities, including any liabilities under the Securities Act.
Until the distribution of the Offered Securities is completed, rules of the
Commission may limit the ability of underwriters to bid for and purchase the
Offered Securities. As an exception to these rules, underwriters are permitted
to engage in certain transactions that stabilize the price of the Offered
Securities. Such transactions consist of bids or purchases for the purpose of
pegging, fixing or maintaining the price of the Offered Securities. If
underwriters create a short position in the Offered Securities in connection
with the offering, i.e., if they sell more Offered Securities than are set
forth on the cover page of the applicable Prospectus Supplement, underwriters
may reduce that short position by purchasing Offered Securities in the open
market. In general, purchase of a security for the purpose of stabilization or
to reduce a short position could cause the price of the security to be higher
than it might be in the absence of such purchases. Such activities, if
commenced, may be discontinued at any time.
If so indicated in the related Prospectus Supplement, the Company will
authorize underwriters, dealers or agents to solicit offers by certain
institutions to purchase such Offered Securities from the Company pursuant to
delayed delivery contracts providing for payment and delivery at a future
date. Such contracts will be subject only to those conditions set forth in the
related Prospectus Supplement, and the Prospectus Supplement will set forth
the commission payable for solicitation of such contracts.
Offered Securities issued hereunder will be new issues of securities with no
established trading market. Any underwriters or agents to or through whom such
Offered Securities are sold by the Company for public offering and sale may
make a market in such Offered Securities, but such underwriters or agents will
not be obligated to do so and may discontinue any market at any time without
notice. No assurance can be given as to the liquidity of the trading market
for any such Offered Securities.
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Certain of the underwriters, dealers or agents and their associates may
engage in transactions with, and perform services for, the Company and certain
of its affiliates in the ordinary course of business.
LEGAL MATTERS
Certain legal matters relating to the Securities will be passed upon for the
Company by Gable & Gotwals, Tulsa, Oklahoma. The validity of the Offered
Securities will be passed upon for any underwriters, dealers or agents by
Cleary, Gottlieb, Steen & Hamilton, New York, New York.
EXPERTS
The consolidated financial statements of the Company and its subsidiaries as
of August 31, 1997 and 1996, and for each of the years in the three-year
period ended August 31, 1997, have been incorporated by reference herein in
reliance upon the report of KPMG Peat Marwick LLP, independent certified
public accountants, incorporated by reference herein, and upon the authority
of said firm as experts in accounting and auditing. The report of KPMG Peat
Marwick LLP covering the August 31, 1997 financial statements refers to the
adoption of Statement of Financial Accounting Standards No. 121, Accounting
for the Impairment of Long-lived Assets and for Long-lived Assets to be
Disposed Of, in 1996.
The audited financial statements of the Gas Business, a business unit of
WRI, as of August 31, 1996 and 1995 and for each of the years in the three-
year period ended August 31, 1996, incorporated by reference herein, have been
audited by Arthur Andersen LLP, independent public accountants, as indicated
in their report with respect thereto, and are incorporated by reference herein
in reliance upon the authority of said firm as experts in giving said report.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses in connection with the issuance
and distribution of the securities being registered, other than underwriting
discounts and commissions. All of the amounts shown are estimated, except the
SEC registration fee.
<TABLE>
<S> <C>
SEC registration fee............................................... $118,000
Legal fees and expenses............................................ 35,000
Printing and engraving............................................. 70,000
Fees of accountants................................................ 40,000
Fees of trustee.................................................... 15,000
Rating Agencies Fees............................................... 150,000
Blue sky fees and expenses......................................... 1,500
Miscellaneous...................................................... 10,500
--------
$440,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company, as an Oklahoma corporation, is empowered by section 1031 of the
Oklahoma General Corporation Act (the "OGCA"), subject to the procedures and
limitations stated therein, to indemnify any person against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with any threatened,
pending or completed action, suit or proceeding in which such person is made
or threatened to be made a party by reason of his being or having been a
director, officer, employee or agent of the Company. The statute provides that
indemnification pursuant to its provisions is not exclusive of other rights of
indemnification to which a person may be entitled under any bylaw, agreement,
vote of shareholders, or disinterested directors, or otherwise. Article VIII
of the By-laws of the Company provides that directors and officers of the
Company shall be indemnified by the Company to the fullest extent permitted by
Oklahoma law as now or hereafter enforced, including the advance of related
expenses. If any determination is required under applicable law as to whether
a director or officer is entitled to indemnification, such determination shall
be made by the Board, by vote of a quorum of disinterested directors, or by
independent legal counsel by written opinion or by shareholders.
The Certificate of Incorporation of the Company provides that a director of
the corporation shall not be personally liable to the corporation or its
shareholders for monetary damages for breach of fiduciary duty as a director,
except for liability for (i) any breach of the director's duty of loyalty to
the corporation or its shareholders, (ii) acts or omissions not in good faith
or which would involve intentional misconduct or a knowing violation of law,
(iii) payment of unlawful dividends or unlawful stock purchases or
redemptions, or (iv) any transaction from which the director derived an
improper personal benefit.
Pursuant to Article VIII of the By-laws of the Company, upon authorization
and determination (1) by the board of directors by a majority of a quorum
consisting of directors who were not parties to the action, suit, or
proceeding involved; (2) if such a quorum is not obtainable, or even if
obtainable and a quorum of disinterested directors so directs, by independent
counsel in a written opinion; or (3) by the stockholders, the Company is
obligated to indemnify any person who incurs liability by reason of the fact
that he is or was a director, officer, employee, or agent of the Company, or
is or was serving at its request as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust or other enterprise, or
as a member of any committee or similar body, 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 Company, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. However, in an action by
or in the right of the Company, no indemnification
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will be made if such person shall be adjudged to be liable to the Company,
unless such indemnification is allowed by a court of competent jurisdiction.
Under an insurance policy obtained by the Company, coverage of Company
officers and directors against liability for neglect, errors, omissions, or
breaches of duty in their capacities as such is provided for both the Company,
to the extent that it is obligated to indemnify such officers and directors,
and the officers and directors themselves. Such coverage is provided in the
amount of $75,000,000, with a retained limit by the Company of $250,000. The
insurance company is obligated to pay any loss in excess of the $250,000
retained limit and defense costs from the first dollar, up to the policy limit
of $75,000,000. Among the policy exclusions are those which exclude coverage
for accounting for profits made within the meaning of Section 16(b) of the
Securities Exchange Act of 1934, claims based upon or attributable to
directors and officers gaining any personal profit or advantage to which such
individuals are not legally entitled, and for any claims brought about or
attributable to the dishonesty of an officer or director.
It is recognized that the above-summarized provisions of the Company's
bylaws and the applicable Oklahoma General Corporation Law may be sufficiently
broad to indemnify officers, directors, and controlling persons of the Company
against liabilities arising under said Act.
The Company and Western Resources, Inc. ("WRI") have entered into a
Registration Rights Agreement which provides for indemnification of the
Company's directors, officers, employees and controlling persons, if any, in
any offering or sale of shares of common stock, obtainable upon conversion of
the Series A Convertible Preferred Stock or Series B Convertible Preferred
Stock, against any claims (including amounts paid in settlement), or actions
or proceedings in respect thereof, arising out of or based upon an untrue
statement or alleged untrue statement of a material fact contained in such
registration statement or prospectus contained therein, or any document
incorporated by reference therein, or any document incorporated by reference
therein, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated or necessary to make the
statements therein not misleading, in each case only to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company by WRI or an agent or underwriter thereof expressly for use
therein.
II-2
<PAGE>
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
-------
<C> <S>
1 Form of Underwriting Agreement.
4.1 Form of Indenture between the Company and Chase Bank of Texas,
National Association as trustee, relating to the Securities.
4.2 Form of Note.
5 Opinion of Gable & Gotwals.
12 Statement of Calculation of Ratio of Earnings to Fixed Charges.
23.1 Consent of KPMG Peat Marwick LLP, Independent Certified Public
Accountants.
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of Gable & Gotwals (included in Exhibit 5).
24 Powers of Attorney (included in the signature page of this
Registration Statement).
25 Statement of Eligibility of Chase Bank of Texas, National Association
under the Trust Indenture Act of 1939 on Form T-1 relating to the
Indenture.
</TABLE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a) (1) (i) and (a) (1) (ii) do not apply
if the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
II-3
<PAGE>
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at the time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
(d) The undersigned registrant hereby undertakes that:
(1) for purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424 (b) (1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
Securities offered therein, and the offering of such Securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS
ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF TULSA, STATE OF OKLAHOMA, ON AUGUST
20, 1998.
ONEOK, Inc.
/s/
By: _________________________________
JERRY D. NEAL
VICE PRESIDENT, CHIEF FINANCIAL
OFFICER AND TREASURER
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
immediately below constitutes and appoints Jerry D. Neal his or her true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agents or any of
them, or their or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
SIGNATURE TITLE DATE
/s/ Chairman of the August 20, 1998
- ------------------------------------- Board, Chief
LARRY W. BRUMMETT Executive Officer
and Director
/s/ Director August 20, 1998
- -------------------------------------
E. G. ANDERSON
/s/ Director August 20, 1998
- -------------------------------------
W. M. BELL
/s/ Director August 20, 1998
- -------------------------------------
D. R. CUMMINGS
/s/ Vice President, August 20, 1998
- ------------------------------------- Controller and
BARRY D. EPPERSON Chief Accounting
Officer
II-5
<PAGE>
/s/ Director August 20, 1998
- -------------------------------------
W. L. FORD
/s/ Director August 20, 1998
- -------------------------------------
H.R. FRICKE
/s/ Director August 20, 1998
- -------------------------------------
J. M. GRAVES
/s/ Director August 20, 1998
- -------------------------------------
S. J. JATRAS
/s/ Director August 20, 1998
- -------------------------------------
S.L. KITCHEN
/s/ President, Chief August 20, 1998
- ------------------------------------- Operating Officer
D. L. KYLE and Director
/s/ Director August 20, 1998
- -------------------------------------
B. H. MACKIE
/s/ Vice President, August 20, 1998
- ------------------------------------- Chief Financial
JERRY D. NEAL Officer and
Treasurer
/s/ Director August 20, 1998
- -------------------------------------
D.A. NEWSOM
/s/ Director August 20, 1998
- -------------------------------------
G.D. PARKER
/s/ Director August 20, 1998
- -------------------------------------
J.D. SCOTT
/s/ Director August 20, 1998
- -------------------------------------
S.L. YOUNG
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
-------
<C> <S>
1 Form of Underwriting Agreement.
4.1 Form of Indenture between the Company and Chase Bank of Texas,
National Association as trustee, relating to the Securities.
4.2 Form of Note.
5 Opinion of Gable & Gotwals (included in Exhibit 23.3).
12 Statement of Calculation of Ratio of Earnings to Fixed Charges.
23.1 Consent of KPMG Peat Marwick LLP, Independent Certified Public
Accountants.
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Gable & Gotwals.
24 Powers of Attorney (included in the signature page of this
Registration Statement).
25 Statement of Eligibility of Chase Bank of Texas, National Association
under the Trust Indenture Act of 1939 on Form T-1 relating to the
Indenture.
</TABLE>
<PAGE>
EXHIBIT 1
ONEOK, INC.
Senior Note Offering
UNDERWRITING AGREEMENT
[DATE]
[Name and address of underwriters]
Ladies and Gentlemen:
ONEOK, Inc., an Oklahoma corporation (the "Company"), proposes to issue and
sell to the underwriters named in Schedule I certain of its debt securities
specified in Schedule II (the "Offered Securities") on the terms and conditions
stated herein and in Schedule II. The Offered Securities will be issued
pursuant to an indenture dated as of ___, 1998 (the "Indenture") between the
Company and Chase Bank of Texas National Association, as trustee (the
"Trustee"). As used herein, unless the context otherwise requires, the term
"Underwriters" shall mean the firms named as Underwriters in Schedule I and the
term "you" shall mean the Underwriters, if no underwriting syndicate is
purchasing the Offered Securities, or the representatives of the Underwriters,
if an underwriting syndicate is purchasing the Offered Securities, as indicated
in Schedule I.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Registration No. 333-___),
including a prospectus, relating to certain of its debt securities (including
the Offered Securities) and the offering thereof from time to time in accordance
with Rule 415 under the Securities Act of 1933, as amended (the "1933 Act").
Such registration statement has been declared effective by the Commission. As
provided in Section 3(a), a prospectus supplement reflecting the terms of the
<PAGE>
Offered Securities, the terms of the offering thereof and the other matters set
forth therein has been prepared and will be filed pursuant to Rule 424 under the
1933 Act. Such prospectus supplement, in the form first filed after the date
hereof pursuant to Rule 424, is herein referred to as the "Prospectus
Supplement." Such registration statement, as amended at the date hereof,
including the exhibits thereto and the documents incorporated by reference
therein, is herein called the "Registration Statement," and the basic prospectus
included therein relating to all offerings of securities under the Registration
Statement, as supplemented by the Prospectus Supplement, is herein called the
"Prospectus," except that, if such basic prospectus is amended or supplemented
on or prior to the date on which the Prospectus Supplement is first filed
pursuant to Rule 424, the term "Prospectus" shall refer to the basic prospectus
as so amended or supplemented and as supplemented by the Prospectus Supplement,
in either case including the documents filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"),
that are incorporated by reference therein.
Section 1. Representations and Warranties. (a) The Company represents
------------------------------
and warrants to and agrees with each Underwriter that:
(i) On the original effective date of the Registration Statement, on
the effective date of the most recent post-effective amendment thereto, if
any, and on the date of the filing by the Company of any annual report on
Form 10-K after the original filing of the Registration Statement, the
Registration Statement complied in all material respects with the
requirements of the 1933 Act and the rules and regulations of the
Commission thereunder (the "1933 Act Regulations"), the Trust Indenture Act
of 1939, as amended (the "1939 Act"), and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations") and did 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 not misleading; on the date hereof and at the Closing Date (as
defined below), the Prospectus, and any amendments thereof and supplements
thereto, complies and will comply in all material respects with the
requirements of the 1933 Act, the 1933 Act Regulations, the 1939 Act and
the 1939 Act Regulations and the Prospectus, and any amendments thereof and
supplements thereto, does not include and will not include an untrue
statement of a material fact and does not omit and will not 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;
provided, however, that the Company makes no representations or warranties
-------- -------
as to statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by any Underwriter through
you expressly for use in the Registration Statement or the Prospectus. At
the Closing Date, the Designated Indenture (as defined below) will comply
in all material respects with the requirements of the 1939 Act and the 1939
Act Regulations.
2
<PAGE>
(ii) The documents incorporated by reference in the Prospectus, at the
time they were filed with the Commission, complied in all material respects
with the requirements of the 1934 Act, and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and when read together
with the other information included in or incorporated by reference in the
Prospectus, do not and will not, on the date hereof and at the Closing
Date, 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 were made, not misleading.
(iii) KPMG Peat Marwick LLP and Arthur Andersen LLP, who have reported
upon the audited financial statements and schedules included or
incorporated by reference in the Registration Statement, are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iv) This Agreement has been duly authorized, executed and delivered
by the Company, and the Company has full corporate power and authority to
enter into this Agreement.
(v) The consolidated financial statements included or incorporated by
reference in the Registration Statement present fairly the consolidated
financial position of the Company and its subsidiaries as of the dates
indicated and the consolidated results of operations and the consolidated
cash flows of the Company and its subsidiaries for the periods specified.
Except as otherwise stated therein, such financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved. The
financial statement schedules, if any, included or incorporated by
reference in the Registration Statement present fairly the information
required to be stated therein. The selected financial data included or
incorporated by reference in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of the
audited consolidated financial statements included or incorporated by
reference in the Registration Statement.
(vi) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Oklahoma with corporate
power and authority under such laws to own, lease and operate its
properties and conduct its business as described in the Prospectus; and the
Company is duly qualified to transact business as a foreign corporation and
is in good standing in each other jurisdiction in which it owns or leases
property of a nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse effect on
the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise (a "Material Adverse Effect").
3
<PAGE>
(vii) The Company's only direct and indirect subsidiaries are listed
in Exhibit A (each individually, a "Subsidiary", and collectively, the
"Subsidiaries"). Each Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation with corporate power and authority under such laws to own,
lease and operate its properties and conduct its business; and each
Subsidiary is duly qualified to transact business as a foreign corporation
and is in good standing in each other jurisdiction in which it owns or
leases property of a nature, or transacts business of a type, that would
make such qualification necessary, except to the extent that the failure to
so qualify or be in good standing would not have a Material Adverse Effect.
All of the outstanding shares of capital stock of each Subsidiary have been
duly authorized and validly issued and are fully paid and non-assessable
and are owned by the Company, directly or through one or more Subsidiaries,
free and clear of any pledge, lien, security interest, charge, claim,
equity or encumbrance of any kind.
(viii) The Indenture, each supplement thereto, if any, to the date
hereof and the supplement thereto or board resolution setting forth the
terms of the Offered Securities (the Indenture, as so supplemented by such
supplement or supplements and board resolution, being herein referred to as
the "Designated Indenture"), have been duly authorized by the Company. The
Indenture as executed is or will be substantially in the form filed as an
exhibit to the Registration Statement. The Designated Indenture, when duly
executed and delivered (to the extent required by the Indenture) by the
Company and the Trustee, will constitute a valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law); and the Designated
Indenture conforms in all material respects to the description thereof in
the Prospectus.
(ix) The Offered Securities have been duly authorized by the Company.
When executed, authenticated, issued and delivered in the manner provided
for in the Designated Indenture and sold and paid for as provided herein,
the Offered Securities will constitute valid and binding obligations of the
Company entitled to the benefits of the Designated Indenture and
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law); and the Offered Securities
conform in all material respects to the description thereof in the
Prospectus.
4
<PAGE>
(x) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby, there has not been (A) any material
adverse change in the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its Subsidiaries,
considered as one enterprise, whether or not arising in the ordinary course
of business (a "Material Adverse Change"), (B) any transaction entered
into by the Company or any Subsidiary, other than in the ordinary course of
business, that is material to the Company and its Subsidiaries, considered
as one enterprise, or (C) any dividend or distribution of any kind
declared, paid or made by the Company on its capital stock, other than the
ordinary quarterly dividend paid or payable by the Company to holders of
its Common Stock.
(xi) Neither the Company nor any Subsidiary is in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan 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 properties may be subject
except, in each case, any default which would not have a Material Adverse
Effect. The execution and delivery by the Company of this Agreement and the
Designated Indenture, the issuance and delivery of the Offered Securities,
the consummation by the Company of the transactions contemplated herein and
in the Registration Statement and compliance by the Company with the terms
of this Agreement and the Designated Indenture have been duly authorized by
all necessary corporate action on the part of the Company and do not and
will not result in any violation of the charter or by-laws of the Company
or any Subsidiary, and do not and will not conflict with, or result in a
breach of any of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any Subsidiary under (A) any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company or any Subsidiary is a party
or by which it may be bound or to which any of its properties may be
subject or (B) any existing applicable law, rule, regulation, judgment,
order or decree or determination of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any Subsidiary or any of their respective properties.
(xii) No authorization, approval, consent or license of any government,
governmental instrumentality or court, domestic or foreign (other than
under the 1933 Act, the 1939 Act and the securities or blue sky laws of the
various states), is required for the valid authorization, issuance, sale
and delivery of the Offered Securities or for the execution, delivery or
performance of the Designated Indenture by the Company.
(xiii) Except as disclosed in the Prospectus, there is no action,
suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against or affecting the
5
<PAGE>
Company or any Subsidiary that is required to be disclosed in the
Prospectus or that could reasonably be expected to result in any Material
Adverse Change, or that could adversely affect the consummation of the
transactions contemplated in this Agreement; no pending legal or
governmental proceedings that are not described in the Prospectus to which
the Company or any Subsidiary is a party or which affect any of their
respective properties, including ordinary routine litigation incidental to
the business of the Company or any Subsidiary, could reasonably be
expected, individually or in the aggregate, to have a Material Adverse
Effect.
(xiv) There are no contracts or documents of a character required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described and filed (or
incorporated by reference) as required.
(xv) The Company and the Subsidiaries each has good and marketable
title to all properties and assets described in the Prospectus as owned by
it, free and clear of all liens, charges, encumbrances or restrictions,
except such as (A) are described in the Prospectus or (B) do not materially
affect the value of such property and do not interfere with the use made or
proposed to be made of such property by the Company or such Subsidiary; all
of the real property and buildings held under lease by the Company and the
Subsidiaries are held by them under valid, existing and enforceable leases
with such exceptions as are not material and do not interfere with the use
made or proposed to be made of such property and buildings by the Company
and such Subsidiaries.
(xvi) The Company and its Subsidiaries each owns or possesses all
governmental licenses, permits, certificates, consents, orders, approvals
and other authorizations (collectively, "Governmental Licenses") necessary
to own or lease, as the case may be, and to operate its properties and to
carry on its business as presently conducted, except for those Governmental
Licenses the absence of which would not have a Material Adverse Effect,
and neither the Company nor any Subsidiary has received any notice of
proceedings relating to revocation or modification of any such Governmental
Licenses.
(xvii) The Company and the Subsidiaries each owns or possesses, or
can acquire on reasonable terms, adequate patents, patent licenses,
copyrights, trademarks, service marks, trade names and know-how (including
trade secrets and other unpatented and unpatentable proprietary or
confidential information, systems or procedures), necessary to carry on its
business as presently conducted, and neither the Company nor any Subsidiary
has received any notice of infringement of or conflict with asserted rights
of others with respect to any patents, patent licenses, copyrights,
trademarks, service marks or trade names.
6
<PAGE>
(xviii) No labor problem exists with the Company's employees or with
employees of the Subsidiaries or, to the Company's Knowledge, is imminent,
and the Company is not aware of any existing or imminent labor disturbance
by the employees of any of its or the Subsidiaries' principal suppliers,
contractors or customers that could be expected to have a Material Adverse
Effect.
(xix) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Offered Securities and the Company has not distributed and will not
distribute any prospectus (as such term is defined in the 1933 Act and the
1933 Act Regulations) in connection with the offering and sale of the
Offered Securities other than any preliminary prospectus filed with the
Commission or the Prospectus or other material permitted by the 1933 Act or
the 1933 Act Regulations.
(xx) The Company is not an investment company or a company controlled
by an investment company under the Investment Company Act of 1940.
(xxi) All United States federal income tax returns of the Company and
its Subsidiaries required by law to be filed have been filed, and all other
franchise and income tax returns of the Company and its Subsidiaries
required to be filed pursuant to applicable foreign, state or local law
have been filed, and all taxes shown by such returns or otherwise assessed,
which are due and payable, have been paid, except tax assessments, if any,
as are being contested in good faith and as to which adequate reserves have
been provided. The charges, accruals and reserves on the books of the
Company and its Subsidiaries in respect of any income and corporate
franchise tax liability for any years not finally determined are adequate
to meet any assessments or re-assessments for additional income or
corporate franchise tax for any years not finally determined.
(xxii) The Company and its subsidiaries are implementing a
comprehensive, detailed program to analyze and address the risk that the
computer hardware and software used by them may be unable to recognize and
properly execute date-sensitive functions involving certain dates prior to
and any dates after December 31, 1999 (the "Year 2000 Problem"), and
reasonably believes that such risk will be remedied on a timely basis
without material expense and will not have a Material Adverse Effect; and
the Company believes, after due inquiry, that each supplier, vendor,
customer or financial service organization used or serviced by the Company
and its Subsidiaries has remedied or will remedy on a timely basis the Year
2000 Problem, except to the extent that a failure to remedy by any such
supplier, vendor, customer or financial service organization would not have
a Material Adverse Effect. The Company is in compliance with the
7
<PAGE>
Commission's most recent staff legal bulletin related to Year 2000
complaince.
(b) Any certificate signed by any officer of the Company or any
Subsidiary pursuant to this Agreement and delivered to you or to counsel for the
Underwriters in connection with the offering of the Offered Securities shall be
deemed a representation and warranty by the Company to each Underwriter as to
the matters covered thereby.
Section 2. Purchase and Sale. (a) On the basis of the representations
-----------------
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at the purchase
price to the Underwriters set forth in Schedule II, the principal amount of
Offered Securities set forth opposite the name of such Underwriter in Schedule
I.
(b) Payment of the purchase price for, and delivery of, the Offered
Securities shall be made at the date and time specified in Schedule II, or at
such other date and time as shall be agreed upon by the Company and you, or as
shall otherwise be provided in Section 10 (such date and time of payment and
delivery being herein called the "Closing Date"). Payment shall be made to the
Company by you hereunder by wire transfer payable in immediately available funds
to an account specified by the Company, against delivery to you for the
respective accounts of the several Underwriters of the Offered Securities.
Delivery of the Offered Securities shall be made through the facilities of the
Depository Trust Company unless you shall otherwise instruct.
Section 3. Certain Covenants of the Company. The Company covenants
--------------------------------
with each Underwriter as follows:
(a) If requested by you in connection with the offering of the
Offered Securities, the Company will prepare a preliminary prospectus
supplement containing such information as you and the Company deem
appropriate, and, immediately following the execution of this Agreement,
the Company will prepare a Prospectus Supplement that complies with the
1933 Act and the 1933 Act Regulations and that sets forth the principal
amount of the Offered Securities and their terms not otherwise specified
in the Indenture, the name of each Underwriter participating in the
offering and the principal amount of the Offered Securities that each
severally has agreed to purchase, the name of each Underwriter, if any,
acting as representative of the Underwriters in connection with the
offering, the price at which the Offered Securities are to be purchased
by the Underwriters from the Company, any initial public offering price,
any selling concession and reallowance and any delayed delivery
arrangements, and such other information as you and the Company deem
appropriate in connection with the offering of the Offered Securities.
The Company will transmit copies of the Prospectus Supplement to
8
<PAGE>
the Commission for filing pursuant to and within the time period permitted
by Rule 424 under the 1933 Act and will furnish to the Underwriters as many
copies of any preliminary prospectus supplement and the Prospectus as you
shall reasonably request.
(b) The Company will comply with the 1933 Act and the 1933 Act
Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit
the completion of the distribution of the Offered Securities as
contemplated in this Agreement and in the Prospectus. If at any time when
the Prospectus is required by the 1933 Act to be delivered in connection
with sales of the Offered Securities any event shall occur or condition
exist as a result of which it is necessary, in the opinion of counsel for
the Underwriters or counsel for the Company, to amend the Registration
Statement or amend or supplement the Prospectus in order that the
Prospectus 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
not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of
either such counsel, at any such time to amend the Registration Statement
or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission, subject to Section 3(d),
such amendment or supplement as may be necessary to correct such untrue
statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements.
(c) During the period when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Offered Securities, the
Company will, subject to Section 3(d), file promptly all documents required
to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the
1934 Act.
(d) During the period when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Offered Securities, the
Company will inform you of its intention to file any amendment to the
Registration Statement, any supplement to the Prospectus or any document
that would as a result thereof be incorporated by reference in the
Prospectus; will furnish you with copies of any such amendment, supplement
or other document a reasonable time in advance of filing; and will not file
any such amendment, supplement or other document in a form to which you or
your counsel shall reasonably object.
(e) During the period when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Offered Securities, the
Company will notify you immediately, and confirm the notice in writing, (i)
of the effectiveness of any amendment to the Registration Statement, (ii)
of the mailing or the delivery to the Commission for filing of any
supplement to the Prospectus or any document that would as a result thereof
be incorporated by reference in the Prospectus, (iii) of the receipt of any
comments from
9
<PAGE>
the Commission with respect to the Registration Statement, the Prospectus
or the Prospectus Supplement, (iv) of any request by the Commission for any
amendment to the Registration Statement or any supplement to the Prospectus
or for additional information relating thereto or to any document
incorporated by reference in the Prospectus and (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of the
Offered Securities for offering or sale in any jurisdiction, or of the
institution or threatening of any proceeding for any of such purposes. The
Company will use its best efforts to prevent the issuance of any such stop
order or of any order suspending such qualification and, if any such order
is issued, to obtain the lifting thereof at the earliest possible moment.
(f) The Company has furnished or will furnish to you as many conformed
copies of the Registration Statement (as originally filed) and of all
amendments thereto, whether filed before or after the Registration
Statement became effective, copies of all exhibits and documents filed
therewith or incorporated by reference therein (through the end of the
period when the Prospectus is required by the 1933 Act to be delivered in
connection with sales of the Offered Securities) and conformed copies of
all consents and certificates of experts, as you may reasonably request,
and has furnished or will furnish to you, for each of the Underwriters, one
conformed copy of the Registration Statement (as originally filed) and of
each amendment thereto (including documents incorporated by reference into
the Prospectus).
(g) The Company will arrange for the qualification of the Offered
Securities for offering and sale under the applicable securities laws of
such states and other jurisdictions as you may designate and will maintain
such qualifications in effect for so long as required for the distribution
of the Offered Securities. The Company will file such statements and
reports as may be required by the laws of each jurisdiction in which the
Offered Securities have been qualified as above provided. Notwithstanding
the preceding sentences, the Company shall not be obligated to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified or
subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject or file a general consent to
service of process in any jurisdiction.
(h) The Company will make generally available to its security holders
as soon as practicable, but not later than 45 days after the close of the
period covered thereby (or 90 days, in the case of a period that is also
the Company's fiscal year), an earnings statement of the Company (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations),
covering (i) a period of 12 months beginning after the effective date of
the Registration Statement and covering a period of 12 months beginning
after the effective date of any post-effective amendment to the
Registration Statement but not later than the first day of the Company's
fiscal quarter next following such respective effective dates and (ii) a
period of 12 months beginning after the date of this Agreement but not
later
10
<PAGE>
than the first day of the Company's fiscal quarter next following the
date of this Agreement.
(i) If and to the extent specified in Schedule II, the Company will
use its best efforts to cause the Offered Securities to be duly authorized
for listing on such exchange specified in Schedule II and to be registered
under the 1934 Act.
(j) For a period of five years after the Closing Date, the Company
will furnish to you and, upon request, to each Underwriter, copies of all
annual reports, quarterly 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, and such other documents, reports and
information as shall be furnished by the Company to its stockholders or
security holders generally.
(k) Between the date hereof and such date as may be specified in
Schedule II, the Company will not, without your prior consent, offer or
sell, enter into any agreement to sell, or announce the offering of, any
debt securities issued or guaranteed by the Company with maturities longer
than one year (other than the Offered Securities). This limitation is not
applicable to such offerings as may be specified in Schedule II.
Section 4. Payment of Expenses. The Company will pay and bear all
-------------------
costs and expenses incident to the performance of its obligations under this
Agreement, including (a) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, any preliminary prospectus supplements and the
Prospectus and any amendments or supplements thereto, and the cost of furnishing
copies thereof to the Underwriters, (b) the preparation, printing and
distribution of this Agreement, the Designated Indenture, the Offered Securities
and the Blue Sky Survey, (c) the delivery of the Offered Securities to the
Underwriters, (d) the fees and disbursements of the Company's counsel and
accountants, (e) the qualification of the Offered Securities under the
applicable securities laws in accordance with Section 3(g) and any filing for
review of the offering with the National Association of Securities Dealers,
Inc., including filing fees and reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the Blue Sky
Survey, (f) any fees charged by rating agencies for rating the Offered
Securities, (g) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee, in connection with the Designated
Indenture and the Offered Securities and (h) the listing fees and expenses
incurred in connection with any listing of the Offered Securities on the New
York Stock Exchange or any other exchange. Except as otherwise provided
in this Section 4, the Underwriters shall pay all of their own costs and
expenses.
If this Agreement is terminated by you in accordance with the provisions of
Section 5 or 9(a), the Company shall reimburse the Underwriters for all their
reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
11
<PAGE>
Section 5. Conditions of Underwriters' Obligations. Except as
---------------------------------------
otherwise provided in Schedule II, the obligations of the Underwriters to
purchase and pay for the Offered Securities pursuant to this Agreement are
subject to the accuracy of the representations and warranties of the Company
contained herein or in certificates of any officer of the Company or any
Subsidiary delivered pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder, and to the following further
conditions:
(a) At the Closing Date, no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act and
no proceedings for that purpose shall have been instituted or shall be
pending or, to your knowledge or the knowledge of the Company, shall be
contemplated by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
satisfaction of counsel for the Underwriters.
(b) At the Closing Date, you shall have received a signed opinion of
Gable and Gotwals, counsel for the Company, dated as of the Closing Date,
together with signed or reproduced copies of such opinion for each of the
other Underwriters, in form and substance satisfactory to counsel for the
Underwriters, to the effect stated in Schedule III hereto.
(c) At the Closing Date, you shall have received signed opinions of
Cleary, Gottlieb, Steen & Hamilton, counsel for the Underwriters, dated the
Closing Date, together with signed or reproduced copies of such opinions
for each of the other Underwriters, with respect to the issuance and sale
of the Offered Securities, the Indenture, the Registration Statement, the
Final Prospectus (together with any supplement thereto) and other related
matters as you may reasonably require, and the Company shall have furnished
to Cleary, Gottlieb, Steen & Hamilton such documents as they request for
the purpose of enabling them to pass upon such matters.
(d) You shall have received a certificate of the President or a
Vice President, and the Treasurer or the Controller, of the Company, dated
as of the Closing Date, to the effect that (i) there has not been, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, any Material Adverse Change, (ii) the Company
has complied with all agreements and satisfied all conditions on its part
to be performed and satisfied at or prior to the Closing Date and (iii) the
representations and warranties of the Company set forth in Section 1(a) are
true and correct in all material respects as though expressly made at and
as of the Closing Date.
(e) You shall have received on the Closing Date a letter from each of
KPMG Peat Marwick LLP and Arthur Andersen LLP, independent public
accountants (or other independent public accountants acceptable to you),
dated as of the Closing Date, in form and substance satisfactory to you,
containing statements and information of the type ordinarily included in
accountants'
12
<PAGE>
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained or incorporated by reference in
the Registration Statement or the Prospectus.
(f) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have been any downgrading, nor
any notice given of any intended or potential downgrading or of a possible
change that does not indicate the direction of the possible change, in the
rating accorded any of the Company's securities, including the Offered
Securities, by any "nationally recognized statistical rating organization,"
as such term is defined for purposes of Rule 436(g)(2) under the 1933 Act.
(g) At the Closing Date, counsel for the Underwriters shall have been
furnished with all such documents, certificates and opinions as they may
request for the purpose of enabling them to pass upon the issuance and sale
of the Offered Securities as herein contemplated and the other matters to
be addressed in the opinion referred to in Section 5(c) and in order to
evidence the accuracy and completeness of any of the representations,
warranties or statements of the Company, the performance of any of the
covenants of the Company, or the fulfillment of any of the conditions
herein contained; and all proceedings taken by the Company at or prior to
the Closing Date in connection with the authorization, issuance and sale of
the Offered Securities as herein contemplated shall be satisfactory in form
and substance to the Underwriters and to counsel for the Underwriters.
If any of the conditions specified in this Section 5 shall not have been
fulfilled when and as required by this Agreement, this Agreement may be
terminated by you on notice to the Company at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party, except as provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 4, 6, 7 and 8 shall remain in effect.
The documents required to be delivered by this Section 5 shall be
delivered on the Closing Date at the time and location specified in Schedule II.
Section 6. Indemnification. (a) The Company agrees to indemnify and
---------------
hold harmless each Underwriter, and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever (including but not limited to attorneys' fees and disbursements
and the allocated costs of in-house counsel), as incurred, arising out of
an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto),
including all documents incorporated therein by reference, or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to
13
<PAGE>
make the statements therein not misleading or arising out of an untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus supplement or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever (including but not limited to attorneys' fees and
disbursements), as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever (including but not
limited to attorneys' fees and disbursements), as incurred, reasonably
incurred in investigating, preparing or defending against any litigation,
or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that 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 or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
specifically for inclusion therein provided, further, that such indemnity with
-------- -------
respect to the preliminary prospectus or preliminary prospectus supplement shall
not inure to the benefit of any Underwriter (or any persons controlling such
Underwriter) from whom the person asserting such loss, claim, damage or
liability purchased the Offered Securities which are the subject thereof if such
person did not receive a copy of the final prospectus or prospectus supplement
(or the final prospectus supplement as amended or supplemented at or prior to
the confirmation of the sale of such Offered Securities to such person and any
such untrue statement or omission or alleged untrue statement or omission of a
material fact contained in such preliminary prospectus or preliminary prospectus
supplement (or any amendment or supplement thereto) was corrected in the final
prospectus or final prospectus supplement (or the final prospectus supplement as
amended or supplemented).
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in Section 6(a), as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus supplement or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through you
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus supplement or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but
14
<PAGE>
failure to so notify an indemnifying party shall not relieve it from any
liability which it may have otherwise than on account of this indemnity
agreement. If it so elects within a reasonable time after receipt of such
notice, an indemnifying party, jointly with any other indemnifying parties
receiving such notice, may assume the defense of such action with counsel chosen
by it and approved by the indemnified parties defendant in such action, unless
such indemnified parties reasonably object to such assumption on the ground that
there may be legal defenses available to them which are different from or in
addition to those available to such indemnifying party. If an indemnifying party
assumes the defense of such action, the indemnifying party shall not be liable
for any fees and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action unless (i) the use of the counsel
chosen by the indemnifying party to represent the indemnified parties would
present such counsel with a conflict of interest, (ii) the actual or potential
defendants in any such action include both the indemnified parties and the
indemnifying party and the indemnified parties shall have reasonably concluded
that there may be legal defenses available to them which are different from or
additional to those available to the indemnifying party, (iii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified parties,
or (iv) the indemnifying party shall authorize the indemnified parties to employ
separate counsel at the expense of the indemnifying party. The indemnifying
party shall not be liable for any settlement of any such action or proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified parties from and against any loss or liability by
reason of such settlement or judgment. The indemnifying party will not settle
any action or proceeding without the written consent of the indemnified parties
unless such settlement includes an unconditional release of such indemnified
parties from all liability arising out of such claim, action, suit or
proceeding.
Section 7. Contribution. In order to provide for just and equitable
------------
contribution in circumstances under which the indemnity provided for in Section
6 is for any reason unavailable or insufficient to hold harmless an indemnified
party, the Company and the Underwriters shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
such indemnity incurred by the Company and one or more of the Underwriters, as
incurred, in such proportions as to reflect the relative benefits to the Company
on the one hand and to the Underwriters on the other of the offering of the
Offered Securities. The relative benefits to the Company on the one hand and to
the Underwriters on the other shall be deemed to be in the same proportions as
the initial public offering price for the Offered Securities bears to the
underwriting discount hereunder with respect to the offering of the Offered
Securities. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law, then the Company and the
Underwriters shall contribute to such amount paid or payable in such proportion
as is appropriate to reflect not only the relative benefits but also the
relative fault of the Company on the one hand and the Underwriters on the other
in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
15
<PAGE>
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or by the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. Notwithstanding
the provisions of this Section 7, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Offered
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. The Underwriters' obligations to contribute
pursuant to this Section 7 shall be several in proportion to their respective
underwriting obligations and not joint. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act, shall
have the same rights to contribution as such Underwriter, and each director of
the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as the Company.
Section 8. Survival of Certain Provisions. The representations,
------------------------------
warranties, indemnities, agreements and other statements of the Company or its
officers set forth in or made pursuant to this Agreement will remain operative
and in full force and effect regardless of any investigation made by or on
behalf of the Company, any Underwriter or any person who controls the Company or
any Underwriter within the meaning of Section 15 of the 1933 Act and will
survive delivery of and payment for the Offered Securities. The provisions of
Sections 4, 6, 7 and 8 shall survive the termination or cancellation of this
Agreement.
Section 9. Termination of Agreement. (a) You may terminate this
------------------------
Agreement, by notice to the Company, at any time at or prior to the Closing
Date (i) if there has been, since the respective dates as of which information
is given in the Registration Statement and the Prospectus, any Material Adverse
Change, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or any outbreak of hostilities or
escalation thereof or other calamity or crisis the effect of which is such as to
make it, in your judgment, impracticable or inadvisable to market the Offered
Securities or enforce contracts for the sale of the Offered Securities or (iii)
if trading in any securities of the Company has been suspended by the Commission
or a national securities exchange, or if trading generally on the New York Stock
Exchange shall have been suspended or limited or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by such exchange or
16
<PAGE>
by order of the Commission, the New York Stock Exchange or any other
governmental authority or (iv) if a banking moratorium has been declared by
either federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 4. Notwithstanding any such termination, the
provisions of Sections 4, 6, 7 and 8 shall remain in effect.
Section 10. Default. If one or more of the Underwriters shall fail
-------
at the Closing Date to purchase the Offered Securities that it or they are
obligated to purchase pursuant to this Agreement (the "Defaulted Offered
Securities"), you shall have the right, within 36 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted Offered
Securities in such amounts as may be agreed upon and upon the terms set forth in
this Agreement; if, however, you have not completed such arrangements within
such 36-hour period, then:
(a) if the aggregate principal amount of Defaulted Offered Securities
does not exceed 10% of the aggregate principal amount of the Offered
Securities to be purchased, the non-defaulting Underwriters shall be
obligated to purchase the full amount thereof in the proportions that their
respective underwriting obligations bear to the underwriting obligations of
all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Offered Securities
exceeds 10% of the aggregate principal amount of the Offered Securities to
be purchased, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default that does not result in a termination
of this Agreement, either you or the Company shall have the right to postpone
the Closing Date for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriter" includes any
person substituted for an Underwriter under this Section 10.
Section 11. Notices. All notices and other communications shall be in
-------
writing and effective only on receipt, and, if sent to you or the Underwriters,
will be mailed, delivered or telefaxed to [ADDRESS OF UNDERWRITERS]; or, if sent
to the Company, will be mailed, delivered or telefaxed to it at 100 West 5th
Street, Tulsa, OK 74103, Attention: Chief Financial Officer, (telecopier no.:
(918) 588-7960), with a copy to Gable and Gotwals, 100 West 5th Street, Tulsa,
OK 74103, Attention: Donald A. Kihle (telecopier no.: (918) 585-7873).
17
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Section 12. Parties. The agreement herein set forth is made solely
-------
for the benefit of the several Underwriters, the Company and, to the extent
expressed, any person who controls the Company or any of the Underwriters within
the meaning of Section 15 of the 1933 Act, the directors of the Company, its
officers who have signed the Registration Statement, and their respective
executors, administrators, successors and assigns and, subject to the provisions
of Section 10, no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" shall not include
any purchaser, as such purchaser, from any Underwriter of the Offered
Securities. If there are two or more Underwriters, all of their obligations
hereunder are several and not joint.
Section 13. Governing Law and Time. THIS AGREEMENT SHALL BE GOVERNED
----------------------
BY THE LAWS OF THE STATE OF NEW YORK. Specified times of day refer to
New York City time.
Section 14. Counterparts. This Agreement may be executed in one or
------------
more counterparts and when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
18
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
will become a binding agreement among the Company and the several Underwriters
in accordance with its terms.
Very truly yours,
ONEOK, Inc.
By _________________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
[Underwriters]
By:
By: __________________________
Name:
Title:
For themselves and as Representatives of the
- --------------------------------------------
other Underwriters named in Schedule I.
- ---------------------------------------
19
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EXHIBIT A
SUBSIDIARIES OF ONEOK, INC.
20
<PAGE>
SCHEDULE I
ONEOK, Inc.
Senior Note Offering
21
<PAGE>
SCHEDULE II
ONEOK, Inc.
Senior Note Offering
Principal amount to be issued: $.
Current ratings:
Interest rate: , payable:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
Initial public offering price: % of the principal amount plus accrued
interest[, or amortized original issue discount, if any,] from
Purchase price: % of the principal amount plus accrued interest[, or
amortized of original issue discount, if any,] from
Closing Date, Time and Location: , 19 at 10:00 a.m. at . .
Listing requirement:
Expiration date of lock-up as contemplated by Section 3(k) and any additional
exceptions referred to in Section 3(k):
Other terms and conditions:
22
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SCHEDULE III
MATTERS TO BE COVERED BY OPINION OF COUNSEL TO THE COMPANY
Gable and Gotwals shall have furnished to you an opinion letter to the
following effect (in form and substance satisfactory to you):
1. The Company and each of its subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, is duly licensed or qualified to do business
and is in good standing as a foreign corporation in all jurisdictions in which
the nature of the activities conducted by it or the character of the assets
owned or leased by it makes such license or qualification necessary, has full
power and authority to conduct all the activities conducted by it, to own or
lease all the assets owned or leased by it and to conduct its business as
described in the Registration Statement and the Prospectus and, to the best of
our knowledge, has all governmental licenses, permits, consents, orders,
approvals and other authorizations necessary to carry on its business as
contemplated in the Prospectus.
2. No consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body is required in
connection with the authorization, issuance, transfer, sale or delivery of the
Offered Securities, in connection with the execution, delivery and performance
of the Agreement by the Company or in connection with the taking by the Company
of any action contemplated thereby, except such as have been obtained under the
1933 Act, the 1934 Act, the 1933 Act Regulations, the 1934 Act Regulations, the
1939 Act and the 1939 Act Regulations and such as may be required by the by-laws
and rules of the NASD in connection with the purchase and distribution by the
Underwriters of the Offered Securities.
3. The Company has an authorized and outstanding capitalization as
set forth in the Registration Statement and the Prospectus. The Designated
Indenture conforms in all material respects to the description thereof
contained in the Registration Statement and the Prospectus.
4. The Registration Statement and the Prospectus (including any
documents incorporated by reference into the Prospectus, at the time filed)
comply and complied at the Effective Date in all material respects as to form
with the requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act,
the 1934 Act Regulations, the 1939 Act and the 1939 Act Regulations (except that
we express no opinion as to financial statements,
23
<PAGE>
schedules and other financial and statistical data contained in the Registration
Statement or the Prospectus or incorporated by reference therein) .
5. We have participated in the preparation of the Registration
Statement and the Prospectus. Given the limitations inherent in the
independent verification of factual matters and the character of determinations
involved in the registration process, we are not passing upon or assuming any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus. Subject to the
foregoing and on the basis of the information gained in the performance of the
services referred to above, including information obtained from officers and
other representatives of, and the independent public accountants for, the
Company, and relying as to materiality as to matters of fact to a large extent
on the statements of officers of the Company, nothing has come to our
attention which has caused us to believe that, both as of the Effective Date and
as of the Closing Date, either the Registration Statement or the Prospectus, or
any amendment or supplement thereto including any documents incorporated by
reference into the Prospectus, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances in which they were made (except that we express no opinion as
to the Form T-1 filed as an exhibit to the Registration Statement and as to the
financial statements, schedules and other financial or statistical data
contained in the Registration Statement or the Prospectus or incorporated by
reference therein).
6. The Registration Statement has become effective under the Act and,
to the best of our knowledge, no order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been instituted or is threatened, pending or contemplated.
7. We have reviewed all contracts or other documents referred to in
the Registration Statement and the Prospectus and such contracts or other
documents are fairly summarized or disclosed therein and filed as exhibits
thereto as required, and, after due inquiry, we do not know of any contracts or
other documents required to be so summarized or disclosed or required to be
filed under the Exchange Act if upon such filing they would be incorporated, in
whole or in part, by reference therein which have not been so summarized or
disclosed or filed.
8. All descriptions in the Prospectus of the Offered Securities, the
Designated Indenture, statutes, regulations or legal or governmental proceedings
are accurate and fairly present the information required to be shown in all
material respects.
9. The Company has full corporate power and authority to enter into
this Agreement, and the Agreement has been duly authorized, executed and
delivered by the Company.
10. The Company has full corporate power and authority to enter into
the Designated Indenture and to issue the Offered Securities, and the Designated
Indenture has been duly authorized, executed and delivered by the Company and
duly qualified under the Trust Indenture Act; the Offered Securities have been
duly authorized, executed and delivered by the Company and duly authorized,
executed, authenticated (assuming due authentication by or on behalf of the
Trustee), issued and delivered and are entitled to the benefits of the
Designated Indenture; and, subject to applicable bankruptcy, insolvency,
reorganization, fraudulent transfer or conveyance and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles, whether such principles are considered in a proceeding at law or
equity, each of the Designated Indenture and the Offered Securities are legal,
valid and binding
24
<PAGE>
obligations of the Company and are enforceable against the Company in accordance
with their respective terms.
11. The execution and delivery of the Agreement and the Designated
Indenture by the Company, the consummation by the Company of the transactions
therein contemplated and the compliance by the Company with the terms of the
Agreement, the Designated Indenture and the Offered Securities do not and will
not result in the creation or imposition of any lien, charge or encumbrance upon
any of the assets of the Company or any of its subsidiaries pursuant to the
terms or provisions of, or result in a breach or violation of any of the terms
or provisions of or constitute a default or result in the acceleration of any
obligation under, the Certificate of Incorporation or By-laws of the Company or
any of its subsidiaries, any indenture, mortgage, deed of trust, voting trust
agreement, loan agreement, bond, debenture, note agreement or other evidence of
indebtedness, lease, contract or other agreement or instrument known to us to
which the Company or any of its subsidiaries is a party or by which it or any of
its properties is bound or affected, or any judgment, ruling, decree, order,
statute, rule or regulation of any court or other governmental agency or body
applicable to the business or properties of the Company or any of its
subsidiaries (except that we express no opinion as to the securities or Blue Sky
laws of any jurisdiction other than the United States).
12. Except as disclosed in the Prospectus, we know of no action, suit
or proceeding before or by any government, governmental instrumentality or
court, domestic or foreign, now pending or, to the knowledge of the Company,
threatened against or affecting the Company or any Subsidiary that is required
to be disclosed in the Prospectus or that could reasonably be expected to result
in any Material Adverse Change, or that could adversely affect the consummation
of the transactions contemplated in this Agreement; to the best of our
knowledge, no pending legal or governmental proceedings that are not described
in the Prospectus to which the Company or any Subsidiary is a party or which
affect any of their respective properties, including ordinary routine litigation
incidental to the business of the Company or any Subsidiary, could reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect.
13. To the best of our knowledge, neither the Company nor any of its
subsidiaries is in violation of its certificate of incorporation, by-laws or
other charter documents or in default (nor has an event occurred which with
notice or lapse of time or both would constitute a default or acceleration) in
the performance of any obligation, agreement or condition contained in any
indenture, mortgage, deed of trust, voting trust agreement, loan agreement,
bond, debenture, note agreement or other evidence of indebtedness, lease,
contract or other agreement or instrument known to us to which the Company or
any of its subsidiaries is a party
25
<PAGE>
or by which it or its properties is bound or affected and neither the Company
nor any of its subsidiaries is in violation of any judgment, ruling, decree,
order, franchise, license or permit known to us or any statute, rule or
regulation of any court or other governmental agency or body applicable to the
business or properties of the Company or any of its subsidiaries, where such
violation or default might have a Material Adverse Effect.
14. The Company is not an investment company or a company controlled
by an investment company under the Investment Company Act of 1940.
In rendering the foregoing opinion, counsel may rely, to the extent
they deem such reliance proper, on the opinions of other counsel as to matters
governed by the laws of jurisdictions other than the United States and the State
of Oklahoma, and as to matters of fact, upon certificates of officers of the
Company and of government officials; provided that such counsel shall state that
--------
in such counsel's opinion that such counsel and the Underwriters are justified
in relying on such opinions of other counsel. Copies of all such opinions and
certificates shall be furnished to counsel to the Underwriters on the Closing
Date. For purposes of paragraph 2 above, we have reviewed only those statutes,
rules and regulations, including regulatory rules and regulations, that in our
experience are applicable to transactions of the type contemplated by the
Underwriting Agreement or the Indenture or for the offering, issuance, sale or
delivery of the Offered Securities.
Capitalized terms used herein but not defined shall have the meanings
assigned to them in the Underwriting Agreement.
26
<PAGE>
EXHIBIT 4.1
================================================================================
ONEOK, INC
DEBT SECURITIES
-------------------------
INDENTURE
Dated as of _________ __, 1998
-------------------------
Chase Bank of Texas, National Association
TRUSTEE
================================================================================
<PAGE>
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of ____________, 1998
<TABLE>
<CAPTION>
Trust Indenture Indenture Section
Act Section
<S> <C> <C>
Section 310 (a)(1)........................................ 608
(a)(2)........................................ 608
(a)(5)........................................ 608
(b)........................................... 607, 609
Section 311 (a)........................................... 613
(b)........................................... 613
Section 312 (c)........................................... 701
Section 313 (a)........................................... 702
(c)........................................... 702, 703
Section 314 (a)........................................... 703
(a)(4)........................................ 1004
(c)(1)........................................ 102
(c)(2)........................................ 102
(e)........................................... 102
Section 315 (b)........................................... 601
(d)........................................... 602
(e)........................................... 514
Section 316 (a)(last
sentence)..................................... 101 ("Outstanding")
(a)(1)(A)..................................... 502, 512
(a)(1)(B)..................................... 513
(b)........................................... 508
(c)........................................... 104(d)
Section 317 (a)(1)........................................ 503
(a)(2)........................................ 504
(b)........................................... 1003
Section 318 (a)........................................... 107
</TABLE>
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
PARTIES............................................................................1
RECITALS OF THE COMPANY............................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
<S> <C>
SECTION 101. Definitions....................................................1
Act.................................................2
Additional Amounts..................................2
Affiliate...........................................2
Attributable Debt...................................2
Authenticating Agent................................2
Authorized Newspaper................................2
Authorized Officer..................................2
Bankruptcy Law......................................3
Board of Directors..................................3
Board Resolution....................................3
Book-Entry Security.................................3
Business Day........................................3
Capital Stock.......................................3
Cedel...............................................3
Commission..........................................3
Company.............................................3
Company Request or Company Order....................4
Consolidated Net Tangible Assets....................4
Corporate Trust Office..............................4
corporation.........................................4
covenant defeasance.................................4
Custodian...........................................4
Default.............................................4
Defaulted Interest..................................4
defeasance..........................................4
Definitive Security.................................4
Depositary..........................................5
Euroclear...........................................5
Event of Default....................................5
</TABLE>
- ------------------------------------
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
i
<PAGE>
<TABLE>
<S> <C>
Exchange Act........................................5
Extension Notice and Extension Period...............5
Final Maturity......................................5
Funded Indebtedness.................................5
generally accepted accounting principles or GAAP 5
Global Securities...................................5
Government Obligations..............................5
guarantee...........................................5
Holder..............................................6
incorporated provision..............................6
Indebtedness........................................6
Indenture...........................................6
Indexed Security....................................6
interest............................................6
Interest Payment Date...............................6
Lien................................................7
mandatory sinking fund payment......................7
Maturity............................................7
Non-Recourse Indebtedness...........................7
Officers' Certificate...............................7
Opinion of Counsel..................................8
Option to Elect Repayment...........................8
Optional Reset Date.................................8
optional sinking fund payment.......................8
Original Issue Discount Security....................8
Original Stated Maturity............................8
Outstanding.........................................8
Paying Agent........................................9
Person..............................................9
Place of Payment....................................9
Predecessor Security................................9
Principal Property..................................9
Redemption Date....................................10
Redemption Price...................................10
Regular Record Date................................10
Repayment Date.....................................10
Repayment Price....................................10
Reset Notice.......................................10
Restricted Securities..............................10
Restricted Subsidiary..............................10
Sale and Leaseback Transaction.....................10
Securities.........................................10
Security Register and Security Registrar...........11
Special Record Date................................11
Stated Maturity....................................11
</TABLE>
ii
<PAGE>
<TABLE>
<C> <S> <C>
Subsequent Interest Period.........................11
Subsidiary.........................................11
Trust Indenture Act or TIA.........................11
Trustee............................................11
United States......................................11
United States person...............................11
Vice President.....................................12
Yield to Maturity..................................12
SECTION 102. Compliance Certificates and Opinions........................12
SECTION 103. Form of Documents Delivered to Trustee......................13
SECTION 104. Acts of Holders.............................................13
SECTION 105. Notices, etc. to Trustee and Company........................14
SECTION 106. Notice to Holders; Waiver...................................15
SECTION 107. Conflict of any Provision of Indenture with Trust
Indenture Act..............................................15
SECTION 108. Effect of Headings and Table of Contents....................16
SECTION 109. Successors and Assigns......................................16
SECTION 110. Separability Clause.........................................16
SECTION 111. Benefits of Indenture.......................................16
SECTION 112. Governing Law...............................................16
SECTION 113. Legal Holidays..............................................16
SECTION 114. No Recourse Against Others..................................17
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.............................................17
SECTION 202. Form of Trustee's Certificate of Authentication.............17
SECTION 203. Securities Issuable in Global Form..........................18
SECTION 204. Form of Legend for Book-Entry Securities....................19
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series........................19
SECTION 302. Denominations...............................................22
SECTION 303. Execution, Authentication, Delivery and Dating..............22
SECTION 304. Book-Entry Securities.......................................24
SECTION 305. Temporary Securities........................................25
SECTION 306. Registration, Registration of Transfer and Exchange.........26
SECTION 307. Mutilated, Destroyed, Lost and Stolen Securities............27
SECTION 308. Payment of Interest; Interest Rights Preserved; Optional
Interest Reset.............................................28
SECTION 309. Optional Extension of Stated Maturity.......................30
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C> <C>
SECTION 310. Persons Deemed Owners.......................................31
SECTION 311. Cancellation................................................32
SECTION 312. Computation of Interest.....................................32
SECTION 313. CUSIP Numbers...............................................32
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.....................32
SECTION 402. Application of Trust Money..................................33
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default...........................................34
SECTION 502. Acceleration of Maturity; Rescission and Annulment..........35
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee....................................................36
SECTION 504. Trustee May File Proofs of Claim............................37
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.................................................38
SECTION 506. Application of Money Collected..............................38
SECTION 507. Limitation on Suits.........................................38
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.......................................39
SECTION 509. Restoration of Rights and Remedies..........................39
SECTION 510. Rights and Remedies Cumulative..............................39
SECTION 511. Delay or Omission Not Waiver................................40
SECTION 512. Control by Holders..........................................40
SECTION 513. Waiver of Past Defaults.....................................40
SECTION 514. Undertaking for Costs.......................................41
SECTION 515. Waiver of Stay or Extension Laws............................41
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults..........................................41
SECTION 602. Certain Rights of Trustee...................................42
SECTION 603. Trustee Not Responsible for Recitals or Issuance
of Securities..............................................43
SECTION 604. May Hold Securities.........................................43
SECTION 605. Money Held in Trust.........................................43
SECTION 606. Compensation and Reimbursement..............................44
SECTION 607. Conflicting Interests.......................................44
</TABLE>
iv
<PAGE>
<TABLE>
<S> <C> <C>
SECTION 608. Corporate Trustee Required; Eligibility; Conflicting
Interests..................................................44
SECTION 609. Resignation and Removal; Appointment of Successor...........45
SECTION 610. Acceptance of Appointment by Successor......................46
SECTION 611. Merger, Conversion, Consolidation or Succession to
Business...................................................47
SECTION 612. Appointment of Authenticating Agent.........................48
SECTION 613. Collection of Claims Against Company........................49
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders................50
SECTION 702. Reports by Trustee..........................................50
SECTION 703. Reports by Company..........................................50
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms........51
SECTION 802. Rights and Duties of Successor Corporation..................52
SECTION 803. Securities to be Secured in Certain Events..................52
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders..........53
SECTION 902. Supplemental Indentures with Consent of Holders.............54
SECTION 903. Execution of Supplemental Indentures........................55
SECTION 904. Effect of Supplemental Indentures...........................55
SECTION 905. Conformity with Trust Indenture Act.........................55
SECTION 906. Reference in Securities to Supplemental Indentures..........56
SECTION 907. Notice of Supplemental Indentures...........................56
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.................56
SECTION 1002. Maintenance of Office or Agency............................56
SECTION 1003. Money for Security Payments to Be Held in Trust............57
SECTION 1004. Statement as to Compliance.................................58
SECTION 1005. Corporate Existence........................................58
</TABLE>
v
<PAGE>
<TABLE>
<S> <C> <C>
SECTION 1006. Limitations on Liens.......................................59
SECTION 1007. Limitation on Sale and Leaseback Transactions..............61
SECTION 1008. Additional Amounts.........................................61
SECTION 1009. Waiver of Certain Covenants................................62
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article...................................62
SECTION 1102. Election to Redeem; Notice to Trustee......................63
SECTION 1103. Selection by Trustee of Securities to Be Redeemed..........63
SECTION 1104. Notice of Redemption.......................................63
SECTION 1105. Deposit of Redemption Price................................64
SECTION 1106. Securities Payable on Redemption Date......................64
SECTION 1107. Securities Redeemed in Part................................65
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article...................................65
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities......66
SECTION 1203. Redemption of Securities for Sinking Fund..................66
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article...................................67
SECTION 1302. Repayment of Securities....................................67
SECTION 1303. Exercise of Option.........................................68
SECTION 1304. When Securities Presented for Repayment
Become Due and Payable....................................68
SECTION 1305. Securities Repaid in Part..................................69
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance................................................69
SECTION 1402. Defeasance and Discharge...................................69
SECTION 1403. Covenant Defeasance........................................70
SECTION 1404. Conditions to Defeasance or Covenant Defeasance............70
</TABLE>
vi
<PAGE>
<TABLE>
<S> <C>
SECTION 1405. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions..................72
SECTION 1406. Reinstatement..............................................73
</TABLE>
vii
<PAGE>
INDENTURE, dated as of ___, 1998 between ONEOK, Inc., an Oklahoma
----
corporation (herein called the "Company"), and Chase Bank of Texas, National
Association, a national banking association with trust powers, 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 senior debt
securities (herein called the "Securities"), to be issued in one or more series
as in this Indenture provided.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
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:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) 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, and the terms "cash transaction" and "self-
liquidating paper", as used in TIA Section 311, shall have the meanings
assigned to them in the rules of the Commission adopted under the Trust
Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States; and
<PAGE>
(4) 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.
Certain terms, used principally in Article Three, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" has the meaning specified in Section 1008.
"Affiliate" means, with respect to any specified Person, 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.
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable, at any date as of which the amount thereof is to
be determined, the total net amount of rent required to be paid by such Person
under such lease during the remaining term thereof (excluding amounts required
to be paid on account of maintenance and repairs, services, insurance, taxes,
assessments, water rates and similar charges and contingent rents), discounted
from the respective due dates thereof at the weighted average of the rates of
interest (or Yield to Maturity, in the case of Original Issue Discount
Securities) borne by the Securities then outstanding under the Indenture,
compounded annually.
"Authenticating Agent" means any Person appointed by the Trustee to
act on behalf of the Trustee pursuant to Section 612 to authenticate Securities.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in each place in connection with which the term is
used or in the financial community of each such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any Business Day.
"Authorized Officer", when used with respect to the Trustee, means any
vice-president, assistant vice president, any assistant secretary, any assistant
treasurer, any trust officer or assistant trust officer, the controller and any
assistant controller or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above-designated officers or
assigned by the Trustee to administer corporate trust matters at 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.
2
<PAGE>
"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 or
any duly authorized committee of such Board.
"Board Resolution" means a copy of a resolution certified by the
Corporate Secretary or an Assistant Corporate 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.
"Book-Entry Security" has the meaning specified in Section 304.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment or other location are
authorized or obligated by law, regulation or executive order to close.
"Capital Stock" means, with respect to any corporation, any and all
shares, interests, rights to purchase, warrants, options, participations or
other equivalents of or interests (however designated) in stock issued by that
corporation.
"Cedel" means Cedel Bank, societe anonyme, or its successor.
"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 Indenture 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.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person. To the extent necessary to comply
with the requirements of the provisions of TIA Sections 310 through 317 as they
are applicable to the Company, the term "Company" shall include any other
obligor with respect to the Securities for the purposes of complying with such
provisions.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company (i) by its Chairman, Chief Executive Officer,
its President or a Vice President and (ii) by its Treasurer, an Assistant
Treasurer, its Corporate Secretary or an Assistant Corporate Secretary and
delivered to the Trustee; provided, however, that such written request or order
may be signed by any two of the officers or directors listed in clause (i) above
in lieu of being signed by one of such officers or directors listed in such
clause (i) and one of the officers listed in clause (ii) above.
3
<PAGE>
"Consolidated Net Tangible Assets" means (i) the total amount of
assets (less applicable reserves and other properly deductible items) which
under GAAP would be included on a consolidated balance sheet of the Company and
its Subsidiaries after deducting therefrom (a) all current liabilities,
provided, however, that there shall not be deducted billings recorded as
- -------- --------
revenues deferred pending the outcome of rate proceedings (less applicable
income taxes thereon), if and to the extent the obligation to refund the same
shall not have been finally determined, (b) appropriate allowance for minority
interests in common stocks of Subsidiaries and (c) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, which in each case under GAAP would be included on such
consolidated balance sheet, less (ii) the amount which would be so included on
such consolidated balance sheet for investments (less applicable reserves) made
in Subsidiaries.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office on the date of execution of this Indenture is located
at 2200 Ross, Suite 500, Dallas, Texas 75201, Attention: Mike Scrivner.
"corporation" includes corporations, associations, partnerships,
limited liability companies, companies and business trusts.
"covenant defeasance" has the meaning specified in Section 1403
hereof.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar officer under any Bankruptcy Law.
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 308 hereof.
"defeasance" has the meaning specified in Section 1402 hereof.
"Definitive Security" has the meaning specified in Section 304 hereof.
"Depositary" has the meaning specified in Section 304.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Extension Notice" and "Extension Period" shall have the meanings
specified in Section 309.
"Final Maturity" has the meaning specified in Section 309.
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"Funded Indebtedness" as applied to any Person, means all Indebtedness
of such Person maturing after, or renewable or extendable at the option of such
Person beyond, 12 months from the date of determination.
"generally accepted accounting principles" or "GAAP" has the meaning
specified in Section 101(3).
"Global Securities" means one or more Securities evidencing all or
part of the Securities to be issued as Book-Entry Securities, issued to the
Depositary in accordance with Section 301 and bearing the legend prescribed in
Section 204.
"Government Obligations" means, unless otherwise specified with
respect to any series of Securities pursuant to Section 301, securities which
are (i) direct obligations of the United States government or (ii) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States government, the payment of which is
unconditionally guaranteed by the United States government, which, in either
case, are full faith and credit obligations of the United States government
payable and are not callable or redeemable at the option of the issuer thereof
and shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of any such 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 from
any amount received by the custodian in respect of the Government Obligation or
the specific payment of interest or principal of the Government Obligation
evidenced by such depository receipt.
"guarantee" means, as applied to any obligation, (i) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such obligation or (ii) an agreement, direct or indirect, contingent or
otherwise, providing assurance of the payment or performance (or payment of
damages in the event of non-performance) of any part or all of such obligation,
including, without limiting the foregoing, the payment of amounts drawn down by
letters of credit. Notwithstanding anything herein to the contrary, a guarantee
shall not include any agreement solely because such agreement creates a Lien on
the assets of any Person. The amount of a guarantee shall be deemed to be the
maximum amount of the obligation guaranteed for which the guarantor could be
held liable under such guarantee.
"Holder" means the Person in whose name a Security is registered in
the Security Register.
"incorporated provision" has the meaning specified in Section 107.
"Indebtedness" means obligations for money borrowed, evidenced by
notes, bonds, debentures or other similar evidences of indebtedness.
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"Indenture" means this instrument as originally executed (including
all exhibits and schedules hereto) and 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;
provided, however, that, if at any time more than one Person is acting as
Trustee under this instrument, "Indenture" shall mean, with respect to any one
or more series of Securities for which such Person is Trustee, 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 for which such Person is Trustee established as contemplated by
Section 301, exclusive, however, of any provisions or terms which relate solely
to other series of Securities for which such Person is not Trustee, regardless
of when such terms or provisions were adopted, and exclusive of any provisions
or terms adopted by means of one or more indentures supplemental hereto executed
and delivered after such Person had become such Trustee but to which such
Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"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 at the rate prescribed in such Original Issue Discount
Security.
"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Maturity of an installment of interest on such
Securities.
"Lien" means any lien, mortgage, pledge, encumbrance, charge or
security interest securing Indebtedness; provided, however, that the following
types of transactions will not be considered for purposes of this definition to
result in a Lien: (i) any acquisition by the Company or any Restricted
Subsidiary of any property or assets subject to any reservation or exception
under the terms of which any vendor, lessor or assignor creates, reserves or
excepts or has created, reserved or excepted an interest in oil, gas or any
other mineral in place or the proceeds thereof, (ii) any conveyance or
assignment whereby the Company or any Restricted Subsidiary conveys or assigns
to any Person or Persons an interest in oil, gas or any other mineral in place
or the proceeds thereof, (iii) any Lien upon any property or assets either owned
or leased by the Company or any Restricted Subsidiary or in which the Company or
any Restricted Subsidiary owns an interest that secures for the benefit of the
Person or Persons paying the expenses of developing or conducting operations for
the recovery, storage, transportation or sale of the mineral resources of such
property or assets (or property or assets with which it is unitized) the payment
to such Person or Persons of the Company's or the Restricted Subsidiary's
proportionate part of such development or operating expenses or (iv) any hedging
arrangements entered into in the ordinary course of business, including any
obligation to deliver any mineral, commodity or asset in connection therewith.
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"mandatory sinking fund payment" shall have the meaning specified in
Section 1201.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided whether at the Stated Maturity, by declaration of acceleration,
notice of redemption, notice of option to elect repayment or otherwise.
"Non-Recourse Indebtedness" means, at any time, Indebtedness incurred
after the date of the Indenture by the Company or a Restricted Subsidiary in
connection with the acquisition of property or assets by the Company or a
Restricted Subsidiary or the financing of the construction of or improvements on
property, whenever acquired, provided that, under the terms of such Indebtedness
and pursuant to applicable law, the recourse at such time and thereafter of the
lenders with respect to such Indebtedness is limited to the property or assets
so acquired, or such construction or improvements, including Indebtedness as to
which a performance or completion guarantee or similar undertaking was initially
applicable to such Indebtedness or the related property or assets if such
guarantee or similar undertaking has been satisfied and is no longer in effect.
"Officers' Certificate"' means a certificate signed by (i) the
Chairman, Chief Executive Officer, the President, a Vice President or the
Treasurer of the Company and (ii) the Corporate Secretary or an Assistant
Corporate Secretary of the Company and delivered to the Trustee; provided,
however, that such certificate may be signed by two of the officers or directors
listed in clause (i) above in lieu of being signed by one of such officers or
directors listed in such clause (i) and one of the officers listed in clause
(ii) above.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee. Each such
opinion shall include the statements provided for in TIA Section 314(e) to the
extent applicable.
"Option to Elect Repayment" shall have the meaning specified in
Section 1303.
"Optional Reset Date" shall have the meaning specified in Section 308.
"optional sinking fund payment" shall have the meaning specified in
Section 1201.
"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.
"Original Stated Maturity" shall have the meaning specified in Section
309.
"Outstanding" when used with respect to Securities means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
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(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment, purchase,
redemption or repayment at the option of the Holder 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, except to the extent provided in Sections 1402 and
1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen; and
(iv) Securities paid pursuant to Section 307 or Securities 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;
provided, however, that, in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
direction, consent or waiver hereunder or are present at a meeting of Holders
for quorum purposes, and for the purpose of making the calculations required by
TIA Section 313, (i) the principal amount of an Original Issue Discount Security
that may be counted in making such determination or calculation and that shall
be deemed to be Outstanding for such purpose shall be equal to the amount of
principal thereof that would be (or shall have been declared to be) due and
payable, at the time of such determination, upon a declaration of acceleration
of the maturity thereof pursuant to Section 502, (ii) the principal amount of
any Indexed Security that may be counted in making such determination or
calculation and that shall be deemed outstanding for such purpose shall be equal
to the principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Security pursuant to Section 301,
and (iii) Securities owned by the Company or any other obligor 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 making such calculation or in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee actually 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 such other obligor.
"Paying Agent" means any Person (including the Company acting as
Paying Agent) authorized by the Company to pay the principal of (or premium, if
any) or interest, if any, on any Securities on behalf of the Company.
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"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment" means, when used with respect to the Securities of
or within any series, the place or places where the principal of (and premium,
if any) and interest, if any, on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 307 in exchange for a mutilated
Security or in lieu of a destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any property located in the United States,
except any such property that in the opinion of the Board of Directors of the
Company is not of material importance to the total business conducted by the
Company and its consolidated Subsidiaries.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of or within any series means the date specified for that
purpose as contemplated by Section 301.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment pursuant
to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid
pursuant to this Indenture.
"Reset Notice" shall have the meaning specified in Section 308.
"Restricted Securities" has the meaning specified in Section 1006.
"Restricted Subsidiary" means any Subsidiary that owns or leases a
Principal Property.
"Sale and Leaseback Transaction" means any arrangement with any Person
pursuant to which the Company or any Restricted Subsidiary leases any Principal
Property that has been or is to be sold or transferred by the Company or the
Restricted Subsidiary to such Person, other than (i) a lease for a term,
including renewals at the option of the lessee, of not more than three years or
classified as an operating lease under generally accepted accounting principles,
(ii) leases between the Company and a Restricted Subsidiary or between
Restricted
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Subsidiaries and (iii) leases of a Principal Property executed by the time of,
or within 12 months after the latest of, the acquisition, the completion of
construction or improvement, or the commencement of commercial operation, of the
Principal Property.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture; provided, however, that if at any time there is more than
one Person acting as Trustee under this Indenture, "Securities" with respect to
the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this Indenture and shall more particularly mean
Securities authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 306.
"Special Record Date" means a date fixed by the Trustee for the
payment of any Defaulted Interest pursuant to Section 308.
"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 representing such installment of principal or interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 309.
"Subsequent Interest Period" shall have the meaning specified in
Section 308.
"Subsidiary" of the Company means (i) a corporation, of which a
majority of the Capital Stock with voting power, under ordinary circumstances,
to elect directors is owned, directly or indirectly, at the date of
determination, by the Company, by one or more Subsidiaries or by the Company and
one or more Subsidiaries or (ii) any other Person (other than a corporation) in
which at the date of determination the Company, one or more Subsidiaries or the
Company and one or more Subsidiaries, directly or indirectly, has at least a
majority ownership and power to direct the policies, management and affairs
thereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended, and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture 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;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
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"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"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".
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent redetermination
of interest on such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation principles.
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, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) 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 (other than the certificates required by
Section 1004) with respect to compliance with a covenant or condition provided
for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) 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;
(3) 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
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(4) a statement as to whether, in the opinion of each such individual,
such covenant or condition 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 of the Company 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 of the Outstanding Securities of all series or one or more series, as
the case may be, 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. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments or record or
both are delivered to the Trustee and, where it is hereby expressly required, to
the Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments or so voting at any
such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and (subject to TIA Section 315)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
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(c) The ownership of Securities shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders of Securities 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 such 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.
Notwithstanding TIA Section 316(c), any such record date shall be the record
date specified in or pursuant to such Board Resolution, which shall be a date
not more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no later than the date such solicitation is completed.
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 Securities then Outstanding have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Securities then Outstanding shall be computed as of such record date; provided
that no such request, demand, authorization, direction, notice, consent, waiver
or other Act 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.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future Holder
of the same Security or 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, suffered or omitted to be done by the Trustee, any
Paying Agent or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
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,
(1) the Trustee by any Holder, an agent of any bank or the Company
shall be sufficient for every purpose hereunder if made, given, furnished
or delivered, in writing, to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Department; or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or delivered, in writing, to the Company addressed
to it at: 100 West Fifth Street, Tulsa, Oklahoma 74103, Attention:Chief
Financial Officer, or at any other address previously furnished in writing
to the Trustee by the Company.
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SECTION 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice of any event to Holders of
Securities by the Company or the Trustee, such notice shall be sufficiently
given (unless otherwise herein 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 of Securities 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 of Securities. Any notice mailed to a Holder in the
aforesaid manner shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice.
In case, by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impractical to mail
notice of any event to Holders of Securities when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be
sufficient giving of such notice 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.
Where this Indenture 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.
SECTION 107. Conflict of any Provision of Indenture with Trust
-------------------------------------------------
Indenture Act.
- -------------
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by TIA Sections 310 to 318,
inclusive, or conflicts with any provision (an "incorporated provision")
required by or deemed to be included in this Indenture by operation of such TIA
Sections, such imposed duties or incorporated 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 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.
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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 any Security 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, any Authenticating
Agent, any Paying Agent, any Securities Registrar and their successors hereunder
and the Holders of Securities, 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 of the State of New York, without regard to
conflicts of laws principles. This Indenture is subject to the provisions of
the Trust Indenture Act that are required to be part of this Indenture and
shall, to the extent applicable, be governed by such provisions.
SECTION 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date, sinking
fund payment date or Stated Maturity or 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 any Security other than a provision in the Securities of
any series which specifically states that such provision shall apply in lieu of
this Section), payment of principal (or premium, if any) or interest, if any,
need not be made at such Place of Payment on such date, but may be made on the
next succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption Date or sinking
fund payment date, or at the Stated Maturity or Maturity; provided that no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date, sinking fund payment date, Stated Maturity or 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 Holder by accepting any of
the Securities waives and releases all such liability.
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ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
---------------
The Securities shall be in substantially the forms 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 forms of Securities of any 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 Corporate Secretary
or an Assistant Corporate 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. Any portion of the text of
any Security may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Security.
The Trustee's certificate of authentication on all Securities shall be
in substantially the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved
on steel-engraved borders or may be produced in any other manner, all as
determined by the officers of the Company executing such Securities, as
evidenced by their execution of such Securities.
SECTION 202. Form of Trustee's Certificate of Authentication.'
-----------------------------------------------
Subject to Section 612, the Trustee's certificate of authentication
shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: _________________________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Chase Bank of Texas, National Association
as Trustee
By
----------------------------
Authorized Signatory
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SECTION 203. Securities Issuable in Global Form.
----------------------------------
When Securities of or within a series are issued in global form, as
specified as contemplated by Section 301, then 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 of such series from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities of such series represented thereby
may from time to time be increased or decreased 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 by the Trustee 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 305. Subject to the
provisions of Section 303 and, if applicable, Section 305, 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 Section
305 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 the last sentence of Section 303 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, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 308, unless otherwise
specified as contemplated by Section 301, payment of principal of (and premium,
if any) and interest, if any, on any Security in permanent global form shall be
made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 310 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent Global Security the Holder of
such permanent Global Security.
SECTION 204. Form of Legend for Book-Entry Securities.
----------------------------------------
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
17
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NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF
THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
ARTICLE THREE
THE 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 in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth in, or
determined in the manner provided in, an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (9) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series and set forth in such Securities of the series
when issued from time to time):
(1) The title of the Securities of the series (which shall distinguish
the Securities of the series from all other series of Securities);
(2) The aggregate principal amount of the Securities of the series,
the percentage of their principal amount at which the Securities of the
series shall be issued and the date or dates on which the principal of the
Securities of the series will be payable or the method by which such date
or dates will be determined or extended;
(3) The rate or rates (which may be fixed or variable) at which the
Securities of the series shall bear interest, if any, and, if variable, the
method by which such rate or rates shall be determined;
(4) The date or dates from which any interest will accrue or the
method by which such date or dates will be determined, the date or dates on
which any interest will be payable (including the Regular Record Dates for
such Interest Payment Dates) and the basis on which any interest will be
calculated if other than on the basis of a 360-day year of twelve 30-day
months;
(5) The place or places, if any, other than or in addition to New York
City, where the principal of (and premium, if any, on) and interest, if
any, on the Securities of the series will be payable, where any Securities
may be surrendered for registration of transfer, where the Securities of
the series may be surrendered for exchange and where
18
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notices or demands to or upon the Company in respect of the Securities of
the series may be served;
(6) The period or periods within which, the price or prices at which,
and the other terms and conditions upon which, the Securities of the series
may be redeemed, in whole or in part, at the option of the Company, if the
Company is to have that option;
(7) The obligation, if any, of the Company to redeem, purchase or
repay the Securities of the series, in whole or in part, pursuant to any
sinking fund or analogous provision or at the option of a holder thereof,
and the period or periods within which, the price or prices at which, and
the other terms and conditions upon which, the Securities of the series
will be so redeemed, purchased or repaid;
(8) Whether the amount of payments of principal of (and premium, if
any, on) and interest, if any, on the Securities of the series may be
determined with reference to an index, formula or other method (which
index, formula or method may, without limitation, be based on one or more
commodities, equity indices or other indices) and the manner in which such
amounts will be determined;
(9) Any deletions from, modifications of or additions to the Events of
Default or covenants of the Company with respect to the Securities of the
series (which Events of Default or covenants may or may not be consistent
with the Events of Default or covenants set forth in the general provisions
of this Indenture);
(10) If other than the entire principal amount thereof, the portion of
the principal amount of the Securities of the series that will be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the method by which such portion shall be determined;
(11) Any provisions in modification of, in addition to or in lieu of
any provisions Article Fourteen of this Indenture that shall be applicable
to the Securities of the series;
(12) Any provisions granting special rights to the Holders of the
Securities of the series upon the occurrence of such events as may be
specified;
(13) If other than the Trustee, the designation of any Paying Agent or
Security Registrar for the Securities of the series, and the designation of
any transfer or other agents or depositories for the Securities of the
series;
(14) Whether the Securities of the series shall be issuable initially
in temporary global form, whether any the Securities of the series Security
is to be issuable in permanent global form (a "Global Security") and, if
so, whether beneficial owners of interests in any Global Security may
exchange such interests for Securities 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 the Indenture, and, if the
19
<PAGE>
Securities are to be issuable as a Global Security, the identity of the
depository for the Securities of the series;
(15) The person to whom any interest on any Security will be payable,
if other than the person in whose name the Securities of the series
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest or the manner in
which, any interest payable on a temporary Security issued in global form
will be paid (if other than as described in Section 304);
(16) The denomination or denominations in which the Securities of the
series shall be issuable, if other than $1,000 or any integral multiple
thereof;
(17) Whether and under what circumstances the Company will pay
Additional Amounts, as contemplated by Section 1008 of this Indenture, on
the Securities of the series to any Holder who is not a United States
person (including any modification of the definition of such term as
contained in this Indenture) in respect of any tax, assessment or
governmental charge and, if so, whether the Company shall have the option
to redeem the Securities of the series rather than pay such Additional
Amounts (and the terms of any such option); and
(18) Any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) of the Securities of the series
not inconsistent with the provisions of this Indenture.
All Securities of any one series shall be substantially identical
except as may otherwise be provided in or pursuant to such Board Resolution
(subject to Section 303) and set forth in such Officers' Certificate or in any
such indenture supplemental hereto. Not all Securities of any one series need
be issued at the same time, and, unless otherwise provided, a series may be
reopened for issuances of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
-------------
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 301. In the absence of any
such provisions, the Securities of such series, other than Securities issued in
global form (which may be of any denomination), 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 any one
of the following: its Chairman, Chief Executive Officer, its President or one of
its Vice Presidents, and attested by one of its Vice Presidents or its Corporate
Secretary or one of its Assistant Corporate Secretaries. The signature of any
of these officers on the Securities may be manual or facsimile.
20
<PAGE>
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 such Company Order shall authenticate and make available for
delivery such Securities. If not all the Securities of any series are to be
issued at one time and if the Board Resolution or supplemental indenture
establishing such series shall so permit, such Company Order may set forth
procedures acceptable to the Trustee for the issuance of such Securities and
determining terms of particular Securities of such series such as interest rate,
stated maturity, date of issuance and date from which interest shall accrue.
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 TIA Sections 315(a)
through 315(d)) shall be fully protected in relying upon, an Opinion of Counsel
stating:
(1) that the form or forms of such Securities have been established in
conformity with the provisions of this Indenture;
(2) that the terms of such Securities have been established in
conformity with the provisions of this Indenture;
(3) that such Securities, when completed by appropriate insertions and
executed and delivered by the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and made available for
delivery by the Trustee in accordance with this Indenture and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute the legal, valid and binding
obligations of the Company, enforceable in accordance with their terms,
subject to applicable bankruptcy, insolvency, reorganization and other
similar laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general equitable principles;
(4) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities, and of the supplemental
indentures, if any, have been complied with and that authentication and
delivery of such Securities and the execution and delivery of the
supplemental indenture, if any, by the Trustee will not violate the terms
of the Indenture;
(5) that the Company has the corporate power to issue such Securities,
and has duly taken all necessary corporate action with respect to such
issuance; and
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<PAGE>
(6) that the issuance of such Securities will not contravene the
articles of incorporation or bylaws of the Company or result in any
violation of any of the terms or provisions of any law or regulation or of
any indenture, mortgage or other agreement known to such Counsel by which
the Company is bound.
Notwithstanding the provisions of Section 301 and of the preceding two
paragraphs, if not all the Securities of any series are to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to the preceding two paragraphs prior to or at the
time of issuance of each Security, but such documents shall be delivered prior
to or at the time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate and make available
for delivery any 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.
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 duly
executed by the Trustee by manual signature of an authorized signatory, and such
certificate 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. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 311 together
with a written statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 304. Book-Entry Securities.
---------------------
(a) The Securities of a series may be issuable in whole or in part in
the form of one or more Global Securities ("Book-Entry Securities") deposited
with, or on behalf of, a Depositary (the "Depositary"). In the case of Book-
Entry Securities, one or more Global Securities will be issued in a denomination
or aggregate denomination equal to the portion of the aggregate principal amount
of Outstanding Securities of the series to be represented by such Global
Security or Global Securities. Unless otherwise provided as contemplated by
Section 301, the additional provisions set forth in this Section 304 shall apply
to Book-Entry Securities.
(b) Book-Entry Securities will be deposited with, or on behalf of,
the Depositary, and registered in the name of the Depositary's nominee, for
credit to the respective accounts of institutions that have accounts with the
Depositary or its nominee ("Participants"); provided that
22
<PAGE>
Book-Entry Securities purchased by persons outside the United States may be
credited to or through accounts maintained at the Depositary by or on behalf of
Euroclear or Cedel. The accounts to be credited will be designated by the
underwriters or agents of such Securities or, if such Securities are offered and
sold directly by the Company, by the Company. Ownership of beneficial interests
in Book-Entry Securities will be limited to Persons that may hold interests
through Participants and will be shown on records maintained by the Depositary
or its nominee for such Book-Entry Security.
Participants shall have no rights under this Indenture or any
indenture supplemental hereto with respect to any Book-Entry Security held on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Book-Entry Security, and the Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of the
Book-Entry Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing in this Indenture or any such indenture supplemental shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its Participants, the
operation of customary practices governing the exercise of the rights of a
Holder of any Security.
(c) Transfers of Book-Entry Securities shall be limited to transfers
in whole, but not in part, to the Depositary, its successors or their respective
nominees. Interests of beneficial owners in Book-Entry Securities may be
transferred or exchanged for Securities in fully registered, certificated form
("Definitive Securities") only if (i) the Depositary notifies the Trustee in
writing that the Depositary is no longer willing or able to continue as
depositary and a qualified successor depository is not appointed by the Company
within 90 days following such notice, (ii) the Company, at any time and in its
sole discretion, determines not to have any Securities of one or more series
represented by Global Securities or (iii) after the occurrence of an Event of
Default with respect to such Securities, (A) the Trustee determines to have
Definitive Securities issued to all holders of such Securities or (B) a holder
of such Securities notifies the Trustee in writing that it wishes to receive a
Definitive Security. In any such instance, an owner of a beneficial interest in
a Global Security will be entitled to physical delivery of Definitive Securities
equal in principal amount to such beneficial interest and registered in its
name.
(d) In connection with any transfer or exchange of a portion of the
beneficial interest in any Book-Entry Security to beneficial owners pursuant to
paragraph (c) above, the Security Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the Book-Entry
Security in an amount equal to the principal amount of the beneficial interest
in the Book-Entry Security to be transferred, and the Company shall execute, and
the Trustee shall authenticate and deliver, one or more Definitive Securities of
like tenor and principal amount of authorized denominations.
(e) In connection with the transfer of Book-Entry Securities as an
entirety to beneficial owners pursuant to paragraph (c) above, the Book-Entry
Securities shall be deemed to be surrendered to the Trustee for cancellation and
the Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depositary in exchange
23
<PAGE>
for its beneficial interest in the Book-Entry Securities, an equal aggregate
principal amount of Definitive Securities of like tenor of authorized
denominations.
(f) The Holder of any Book-Entry Security may grant proxies and
otherwise authorize any Person, including Participants and Persons that may hold
interests through Participants, to take any action which a Holder is entitled to
take under the applicable Indenture or the Securities.
SECTION 305. Temporary Securities.
--------------------
Pending the preparation of Definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are typewritten, printed, lithographed,
engraved or otherwise produced by any combination of these methods, in any
authorized denomination, substantially of the tenor of the Definitive Securities
in lieu of which they are issued, in registered form 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. Such temporary Securities may be in global form.
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 deliver in exchange therefor a like principal
amount of Definitive Securities of the same series of authorized denominations.
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.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series, including temporary Global Securities (whether or not
issued as Book-Entry Securities as provided in Section 304), shall in all
respects be entitled to the same benefits under this Indenture as Definitive
Securities of the same series and of like tenor authenticated and delivered
hereunder.
SECTION 306. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register for each series of Securities (the registers maintained
in such office of the Trustee and in any other office or agency designated
pursuant to Section 1002 being herein sometimes 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 transfers of
Securities. The Trustee is hereby initially appointed "Security Registrar" for
the purpose of registering Securities and transfers of Securities as herein
provided.
24
<PAGE>
Except as otherwise described in this Article Three, upon surrender
for registration of transfer of any Security of any series at the office or
agency in a Place of Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of the same series, in each case, of
any authorized denominations and of a like aggregate principal amount.
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, 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.
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 Security Registrar)
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.
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 pay all documentary, stamp, similar issue or transfer taxes or other
governmental charges that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section
305, 906, 1107 or 1305 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 selection for redemption of Securities
of that series under Section 1103 or 1203 and ending at the close of business on
the day of the mailing of the relevant notice of redemption, 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,
or (iii) to issue, register the transfer of or exchange any Security which has
been surrendered for repayment at the option of the Holder, except the portion,
if any, of such Security not to be so repaid.
SECTION 307. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee together with,
in proper cases, such security or indemnity as may be required by the Company or
the Trustee to save each of them and any agent of either of them harmless, 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, or, in case
25
<PAGE>
any such mutilated 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.
If there shall be delivered to the Company and to 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 Company Order 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.
Notwithstanding the provisions of the previous two paragraphs, 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 pay all documentary, stamp or
similar issue or transfer taxes or other governmental charges 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, if any, issued pursuant to this
Section in lieu of any mutilated, destroyed, lost or stolen Security, shall
constitute an original additional contractual obligation of the Company, whether
or not the mutilated, 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 307 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 308. Payment of Interest; Interest Rights Preserved; Optional
--------------------------------------------------------
Interest Reset.
- --------------
(a) Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest, if any, 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 such Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose pursuant to Section 1002; provided, however, that each
installment of interest, if any, on any Security may at the Company's option be
paid by (i) mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 310, to the address of
such Person as it appears on the Security Register or (ii) wire transfer to an
account located in the United States maintained by the payee.
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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 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 and, if
applicable, interest on such defaulted interest (to the extent lawful) at the
rate specified in the Securities of such series (such defaulted interest and, if
applicable, interest thereon herein collectively called "Defaulted Interest")
may be paid by the Company, at its election in each case, as provided in
Subsection (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 (except as otherwise specified pursuant to Section 301 for the
Securities of such series) 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 on or 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
Subsection 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 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 given in the manner
provided in Section 106, 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 given, such Defaulted Interest
shall be paid to the Persons in whose name 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 Subsection (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 clause, such manner of payment shall be deemed practicable by the
Trustee.
(b) The provisions of this Section 308(b) may be made applicable to
any series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 301).
The interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) on any Security of such series may be reset by the
Company on the date or dates specified on the face of such Security (each an
"Optional Reset Date"). The Company may exercise such option with respect to
such Security by notifying the
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<PAGE>
Trustee of such exercise at least 50 but not more than 60 days prior to an
Optional Reset Date for such Note, which such notice shall contain such
information as may be required by the Trustee to transmit the Reset Notice as
hereinafter defined). Not later than 40 days prior to each Optional Reset Date,
the Trustee shall transmit, in the manner provided for in Section 106, to the
Holder of any such Security a notice (the "Reset Notice") indicating whether the
Company has elected to reset the interest rate (or the spread or spread
multiplier used to calculate such interest rate, if applicable), and if so (i)
such new interest rate (or such new spread or spread multiplier, if applicable)
and (ii) the provisions, if any, for redemption during the period from such
Optional Reset Date to the next Optional Reset Date or if there is no such next
Optional Reset Date, to the Stated Maturity Date of such Security (each such
period a "Subsequent Interest Period"), including the date or dates on which or
the period or periods during which and the price or prices at which such
redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) provided for in the Reset Notice and establish an interest rate (or
a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier,
if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in Article
Thirteen for repayment at the option of Holders except that the period for
delivery or notification to the Trustee shall be at least 25 but not more than
35 days prior to such Optional Reset Date and except that, if the Holder has
tendered any Security for repayment pursuant to the Reset Notice, the Holder
may, by written notice to the Trustee, revoke such tender or repayment until the
close of business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 306,
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 309. Optional Extension of Stated Maturity.
-------------------------------------
The provisions of this Section 309 may be made applicable to any
series of Securities pursuant to Section 301 (with such modifications, additions
or substitutions as may be
28
<PAGE>
specified pursuant to such Section 301). The Stated Maturity of any Security of
such series may be extended at the option of the Company for the period or
periods specified on the face of such Security (each an "Extension Period") up
to but not beyond the date (the "Final Maturity") set forth on the face of such
Security. The Company may exercise such option with respect to any Security by
notifying the Trustee of such exercise at least 50 but not more than 60 days
prior to the Stated Maturity of such Security in effect prior to the exercise of
such option (the "Original Stated Maturity"). If the Company exercises such
option, the Trustee shall transmit, in the manner provided for in Section 106,
to the Holder of such Security not later than 40 days prior to the Original
Stated Maturity a notice (the "Extension Notice") indicating (i) the election of
the Company to extend the Stated Maturity, (ii) the new Stated Maturity, (iii)
the interest rate, if any, applicable to the Extension Period and (iv) the
provisions, if any, for redemption during such Extension Period. Upon the
Trustee's transmittal of the Extension Notice, the Stated Maturity of such
Security shall be extended automatically and, except as modified by the
Extension Notice and as described in the next paragraph, such Security will have
the same terms as prior to the transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the Stated Maturity is extended will bear
such higher interest rate.
If the Company extends the Maturity of any Security, the Holder will
have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Maturity thereof, the Holder
must follow the procedures set forth in Article Thirteen for repayment at the
option of Holders, except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
the Trustee revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
SECTION 310. 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 Sections 306 and 308) interest, if any, on such Security
and for all other purposes whatsoever, whether or not such Security be overdue,
and none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made
29
<PAGE>
on account of beneficial ownership interests of a Security in global form or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall prevent the Company, 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 Depositary, as a Holder, with respect to
such Global Security or impair, as between such Depositary and owners of
beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such Global Security.
SECTION 311. Cancellation.
------------
All Securities surrendered for payment, redemption, repayment at the
option of the Holder, registration of transfer or exchange or for credit against
any current or future sinking fund payment shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee. All Securities so
delivered to the Trustee 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 may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee. If the
Company shall so acquire any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are surrendered to the Trustee for
cancellation. 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 held by the Trustee shall
be disposed of by the Trustee in accordance with its customary procedures,
unless by Company Order the Company shall direct that cancelled Securities be
returned to it.
SECTION 312. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 with
respect to any Securities, interest, if any, on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 313. CUSIP Numbers.
-------------
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use) in addition to serial numbers, and, if so, the Trustee shall
use such "CUSIP" numbers in addition to serial numbers in notices of repurchase
as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a repurchase and that
reliance may be placed only on the serial or other identification numbers
printed on the Securities, and any such repurchase shall not be affected by any
defect in or omission of such
30
<PAGE>
"CUSIP" numbers. The Company will promptly notify the Trustee of any change in
the "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall, upon Company Request, cease to be of further
effect with respect to any series of Securities specified in such Company
Request (except as to any surviving rights of registration of transfer or
exchange of Securities of such series expressly provided for herein or pursuant
hereto) and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered have been delivered to the Trustee for cancellation; or
(B) all Securities of such series not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, 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
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for such 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, if any, 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 Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating
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to the satisfaction and discharge of this Indenture as to such series have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606, the obligations of
the Trustee to any Authenticating Agent under Section 612 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Subsection (1)
of this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, 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, if any, for whose payment such money has been deposited with
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:
(1) default in the payment of any installment of interest upon any
Security of such series when it becomes due and payable, continued for 30
days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of such series at its Maturity; or
(3) failure on the part of the Company to observe or perform any other
covenant or agreement contained in this Indenture (other than a covenant or
agreement included in this Indenture solely for the benefit of less than
all series of Securities or a covenant the default in the performance of
which would be covered by clause (7) below) for 60 days after written
notice of such failure, requiring the Company to remedy the same, has been
given to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in aggregate principal amount of outstanding
Securities of such series; or
(4) default under any indenture or instrument under which the Company
or any Restricted Subsidiary has at the time outstanding indebtedness for
borrowed money or guarantees thereof in any individual instance in excess
of $15,000,000 and, if not already matured in accordance with its terms,
such indebtedness has been accelerated and such acceleration is not
rescinded or annulled within 30 days after notice thereof has been
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<PAGE>
given to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in aggregate principal amount of outstanding
Securities of such series; provided that, if, prior to the entry of
judgment in favor of the Trustee for payment of the Indenture Securities of
such series, the default under such indenture or instrument has been
remedied or cured by the Company or such Restricted Subsidiary, or waived
by the holders of such indebtedness, then the Event of Default under the
Indenture will be deemed likewise to have been remedied, cured or waived;
or
(5) the entry of a decree or order by court having jurisdiction in the
premises adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under the Bankruptcy Code or
any other applicable federal or state law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of
the Company or of any substantial part of the property of the Company, or
ordering the winding up or liquidation of the affairs of the Company, and
the continuance of any such decree or order unstayed and in effect for a
period of 90 consecutive days; or
(6) the institution by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by the Company to the institution of
bankruptcy or insolvency proceedings against it, or the filing by the
Company of a petition or answer or consent seeking reorganization or relief
under the Bankruptcy Code or any other applicable federal or state law, or
the consent by the Company to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or of any substantial part of the
property of the Company of an assignment for the benefit of creditors, or
the admission by the Company in writing of its inability to pay its debts
generally as they become due; or
(7) any other Event of Default provided for the benefit of Securities
of such series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If any Event of Default described in Section 501 with respect to
Securities of any series at the time Outstanding occurs and is continuing, then
in every such case the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series may declare the principal
amount (or, if the Securities of that series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount as may be
specified in the terms of that series) of all of the Securities of that series
and all accrued interest thereon to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified portion thereof) shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
securities of any series (or of all series, as the case may be) has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Outstanding Securities of that
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<PAGE>
series (or of all series, as the case may be), by written notice to the Company,
and the Trustee, may rescind and annul such declaration and its consequences if
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay (except as otherwise specified pursuant to Section 301
for the Securities of such series);
(1) all overdue interest, if any, on all Outstanding Securities
of that series (or of all series, as the case may be),
(2) all unpaid principal of (and premium, if any, on) any
Outstanding Securities of that series (or of all series, as the case
may be) which has become due otherwise than by such declaration of
acceleration, and interest on such unpaid principal (and premium, if
any) at the rate or rates prescribed therefor in such Securities,
(3) interest upon such overdue interest at the rate or rates
prescribed therefor in such Securities, and
(4) all sums paid or advanced by the Trustee for such series
hereunder and reasonable compensation, expenses, disbursements and
advances of such Trustee, its agents and counsel;
(b) all Events of Default with respect to Securities of that series
(or of all series, as the case may be), other than the non-payment of
principal of (or premium, if any, on) or interest, if any, on Securities of
that series (or of all series, as the case may be) which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
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
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 at the Maturity thereof,
then 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, if any, and
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 costs
and expenses of
34
<PAGE>
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 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 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 (or of
all series, as the case may be) 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 (or of all series, as the case may be)
under this Indenture by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce such rights.
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, premium, if any, 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), or such portion of the principal amount of any series of
Original Issue Discount Securities or Indexed Securities as may be
specified in the terms of such series, and interest, if any, 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 agents and counsel) and of
the Holders allowed in such judicial proceeding, 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 606.
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<PAGE>
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 proposal,
plan of reorganization, arrangement, adjustment or composition or other similar
arrangement 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.
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
and 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 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, if any, upon presentation of the Securities 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
606;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest, if any, on the Securities
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 for principal (and
premium, if any) and interest, if any, respectively; and
Third: The balance, if any, to the Company.
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;
(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 an Event of Default
described in Section 501 in its own name as Trustee hereunder;
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<PAGE>
(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 or
more in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Securities of the same series, in respect of any Event of Default
described in Section 501, 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 same series, in respect of such
Event of Default.
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 308) interest, if any, on, such Security on the respective Stated
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 the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
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 had been instituted.
SECTION 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided in Section 307, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Securities 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.
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SECTION 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Security
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.
------------------
With respect to the Securities of any series, the Holders of not less
than a majority in principal amount of the Outstanding Securities of such 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, related to or arising under Section 501,
provided that in each case
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or expose the Trustee to personal liability, and
(2) subject to the provisions of the TIA Section 315, the Trustee may
take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
-----------------------
Subject to Section 502, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past Default or Event
of Default in Section 501 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, if any, on any Security, or
(2) in respect of a covenant or 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.
Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; 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 Securities of
any series 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
38
<PAGE>
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 and expenses, 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 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 Securities of any series on or after the respective
Stated Maturities expressed in such Security (or, in the case of redemption, on
or after the Redemption Date); provided that neither this Section 514 nor the
Trust Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company.
SECTION 515. Waiver of Stay or Extension 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
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) 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.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
------------------
Within 90 days after the occurrence of any Default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders, as their names and addresses appear in the Security Register,
notice of such default hereunder known to the Trustee, unless such Default shall
have been cured or waived; provided, however, that, except in the case of a
default in the payment of the principal of (or premium, if any) or interest, if
any, 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 a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders of Securities of such series; and
provided further that in the case of any default or breach of the character
specified in Section 501(3) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof.
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SECTION 602. Certain Rights of Trustee.
-------------------------
Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may conclusively 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;
(2) 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;
(3) 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 Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and the
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;
(5) 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 of Securities of any series pursuant to this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(6) 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,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(7) 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
(8) no provision of this Indenture shall require the Trustee 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 any of
its rights or powers if it shall have reasonable
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grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
---------------------------------------------------
Securities.
- ----------
The recitals contained herein and in the Securities, except for the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof, except that the Trustee represents that it
is duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the statements to be
made by it in a Statement of Eligibility on Form T-1 supplied to the Company are
true and accurate, subject to the qualifications set forth therein. 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 604. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to TIA Sections 310(b) and 311, 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 605. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder 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 in writing with the Company.
SECTION 606. Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as shall
be agreed to in writing between the Company and the Trustee 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);
(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 a breach by the Trustee
of the applicable standard of care for its conduct; and
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(3) to indemnify each of Trustee or any predecessor Trustee for, and
to hold it harmless against, any and all loss, damage, claim, liability or
expense including taxes (other than taxes based on the income of the
Trustee) incurred without a breach by the Trustee of the applicable
standard of care for its conduct, arising out of or in connection with the
acceptance or administration of this trust, 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.
As security for the performance of the obligations of the Company
under this Section 606, the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (or premium, if any) or
interest, if any, on particular Securities.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. Conflicting Interests. The Trustee shall comply with
---------------------
the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 608. Corporate Trustee Required; Eligibility; Conflicting
----------------------------------------------------
Interests.
- ---------
There shall at all times be a Trustee hereunder qualified or to be
qualified under TIA Section 310(a)(1) and (5) and which, to the extent there is
such an institution eligible and willing to serve, shall have a combined capital
and surplus of at least $50,000,000. If such Trustee publishes reports of
condition at least annually, pursuant to law or to the requirements of federal,
state, territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section 608, the combined capital and surplus of
the Trustee 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 the Trustee
shall cease to be eligible in accordance with the provisions of this Section
608, it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 609. 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 under Section 610.
(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 610 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may, at the expense of the Company,
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 not less than a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and the Company. If an instrument of
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acceptance by a successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of removal, the removed Trustee
may, at the expense of the Company, petition a court of competent jurisdiction
for the appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) 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 608 and shall
fail to resign 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
(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 TIA Section 315(e),
the Holder of any Security 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). If, within 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 Section 610, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. 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 hereinafter
provided, 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
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with respect to the Securities of any series and each appointment of a successor
Trustee with respect to the Securities of any series to the Holders of
Securities of such series in the manner provided for in Section 106. 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 610. Acceptance of Appointment by Successor.
--------------------------------------
(a) Every successor Trustee appointed hereunder 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; provided, however, that the
retiring Trustee shall continue to be entitled to the benefit of Section 606;
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
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. Whenever there is a successor Trustee with
respect to one or more (but less than all) series of securities issued pursuant
to this Indenture, the terms "Indenture" and "Securities" shall have the
meanings specified in the provisos to the respective definitions of those terms
in Section 101 which contemplate such situation.
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(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 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 this Article.
SECTION 611. 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 of 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.
In case any of the Securities shall not have been authenticated by such
predecessor Trustee, any successor Trustee may authenticate such Securities
either in the name of any predecessor hereunder or in the name of the successor
Trustee. In all such cases such certificates shall have the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 612. 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 authorized to act on behalf of the Trustee to
authenticate Securities of such series and the Trustee shall give written notice
of such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, in the manner provided for in
Section 106. 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. Any such appointment shall be evidenced
by an instrument in writing signed by an Authorized Officer of the Trustee, and
a copy of such instrument shall be promptly furnished to the Company. 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 authorized signatory of 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
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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 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. If at
any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, it 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 give written notice of
such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, in the manner provided for in
Section 106. 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.
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:
Dated: _________________________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Chase Bank of Texas, National Association
as Trustee
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By
------------------------------------
as Authenticating Agent
By
------------------------------------
Authorized Signatory
SECTION 613. Collection of Claims Against Company.
------------------------------------
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor under the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY'
SECTION 701. Disclosure of Names and Addresses of Holders.
--------------------------------------------
Every Holder of Securities by receiving and holding the same, agrees
with the Company and the Trustee that none of the Company or the Trustee or any
agent of either of them shall be held accountable by reason of the disclosure of
any information as to the names and addresses of the Holders in accordance with
TIA Section 312, 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 TIA Section 312.
SECTION 702. Reports by Trustee.
------------------
Within 60 days after May 15 of each year commencing with the first
April 1 after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit to the Holders of Securities, in the manner and to the
extent provided in TIA Section 313(c), a brief report dated as of such May 15 if
required by TIA Section 313(a).
SECTION 703. 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 such 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
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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; and
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, in the manner and to the extent provided in TIA Section
313(c), such summaries of any information, documents and reports required
to be filed by the Company pursuant to Subsections (1) and (2) of this
Section as may be required by rules and regulations prescribed from time to
time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into, or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
assets to, any Person, unless:
(1) Immediately after giving effect to such transaction, no Event of
Default (or event that with notice or lapse of time, or both, would become
an Event of Default) shall have happened and be continuing;
(2) The corporation or other entity formed by such consolidation or
into which the Company is merged, or the Person to which such properties
and assets will have been conveyed, transferred or leased, assumes the
Company's obligation as to the due and punctual payment of the principal of
(and premium, if any, on) and interest, if any, on all the Securities and
the performance and observance of every covenant to be performed by the
Company under the Indenture, and will be organized under the laws of the
United States, one of the states thereof or the District of Columbia; and
(3) The Company has delivered to the Trustee an Officers' Certificate
and Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
This Section shall only apply to a merger or consolidation in which
the Company is not the surviving corporation and to conveyances, leases and
transfers by the Company as transferor or lessor.
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SECTION 802. Rights and Duties of Successor Corporation.
------------------------------------------
In case of any such consolidation, merger, conveyance or transfer to
which Section 801 applies and upon any such assumption by the successor
corporation or Person, such successor corporation or Person shall succeed to and
be substituted for the Company with the same effect as if it had been named
herein as the Company and the predecessor corporation shall be relieved of any
further obligation under this Indenture. Such successor corporation or Person
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Company any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation or Person, instead of
the Company, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and any Securities which such
successor corporation or Person thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities so issued shall in
all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof. As used in this Section, "successor corporation or Person"
means the corporation formed by such consolidation or into which the Company is
merged, or the Person which acquires by conveyance, transfer or lease the
properties and assets of the Company substantially as an entirety, as the case
may be, in each case as provided in Section 801.
SECTION 803. Securities to be Secured in Certain Events.
------------------------------------------
If, upon any such consolidation of the Company with, or merger of the
Company into, any other corporation, or upon any conveyance, transfer or lease
of the property of the Company substantially as the entirety to any other
Person, any Principal Property of the Company or any Restricted Securities owned
immediately prior thereto, would become or be subject to any Lien, then unless
such Lien could be created pursuant to Section 1006 without equally and ratably
securing the Securities, the Company prior to or simultaneously with such
transaction will, as to such Principal Property or Restricted Securities, secure
the Securities Outstanding hereunder (together with, if the Company shall so
determine, any other Indebtedness of the Company now existing or hereafter
created which is not subordinate to the Securities) equally and ratably with (or
prior to) the Indebtedness which upon such consolidation, merger, conveyance,
transfer or lease is to become secured as to such Principal Property or
Restricted Securities by such Lien, or will cause such Securities to be so
secured; provided that for the purpose of providing such equal and ratable
security the principal amount of Original Issue Discount Securities and Indexed
Securities shall mean that amount which, at the time of making such provision of
such equal and ratable security, would be due and payable pursuant to Section
502 and the terms of such Original Issue Discount Securities and Indexed
Securities upon a declaration of acceleration of the Maturity thereof, and the
extent of such equal and ratable security shall be adjusted, to the extent
permitted by law, as and when said amount changes over time pursuant to the
terms of such Original Issue Discount Securities and Indexed Securities.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without 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 Person 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 being included solely for the benefit of such series) or to
surrender any right or power herein or in the Securities conferred upon the
Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be for the benefit of less than all series of Securities,
stating that such Events of Default are being included solely for the
benefit of such series); or
(4) 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
(5) to secure the Securities pursuant to the requirements of Section
803 or 1006 or otherwise; or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(7) 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 610(b); or
(8) to close this Indenture with respect to the authentication and
delivery of additional series of Securities; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any
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other provisions with respect to matters or questions arising under this
Indenture; provided that such action shall not adversely affect the
interests of the Holders of Securities of any series; or
(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; provided that any such action shall not adversely affect the
interests of the Holders of Securities of such series or any other series
of Securities; or
(11) to make any other change that does not adversely affect the
rights of any Holder.
SECTION 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities affected by such supplemental
indenture, by Act of such Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
one or more 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 under this Indenture; provided, however, that no such supplemental
indenture amendment or waiver shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium, if
any) or any installment of interest on any Security, or reduce the
principal amount thereof (or premium, if any) or the rate of interest, if
any, thereon, or change any obligation of the Company to pay Additional
Amounts as contemplated by Section 1008 (except as contemplated by Section
801(2) and permitted by Section 901(1)), or reduce the amount of the
principal of an Indexed Security or 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 the amount thereof provable in
bankruptcy pursuant to Section 504, or adversely affect any right of
repayment at the option of any Holder of any Security, or change any Place
of Payment where, any Security or any premium or 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 or repayment at the option of the Holder, on or after the
Redemption Date or Repayment Date, as the case may be), or adversely affect
any right to convert or exchange any Security as may be provided pursuant
to Section 301 herein, or
(2) reduce the percentage in principal amount of the Outstanding
Securities, 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 certain
defaults hereunder and their consequences) provided for in this Indenture,
or
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(3) modify any of the provisions of this Section 902, Section 513 or
Section 1009, 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.
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.
------------------------------------
In executing, or accepting the additional trusts 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 TIA Section 315(a) through 315(d) and Section 602 hereof) shall
be fully protected in relying upon 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.
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SECTION 907. Notice of Supplemental Indentures.
---------------------------------
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Sections 901 and 902, the
Company shall give notice thereof to the Holders of each Outstanding Security
affected, in the manner provided for in Section 106, setting forth in general
terms the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any, on) and interest, if any, on the Securities of such series in accordance
with the terms of such Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment for Securities of
such series an office or agency where Securities of such series may be presented
or surrendered for payment, where Securities of such series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of such series and this Indenture
may be served.
The Company shall give prompt written notice to the Trustee of the
location, and any change in the 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 Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company shall 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 specified with
respect to any Securities pursuant to Section 301 with respect to a series of
Securities, the Company hereby designates as Places of Payment for each series
of Securities the office or agency of the Trustee in the Borough of Manhattan,
The City of New York, and initially appoints the Trustee at its Corporate Trust
Office in Dallas, Texas and at the office of its agent in the Borough of
Manhattan, the City of New York as Paying Agent in each such city as its agent
to receive all such presentations, surrenders, notices and demands.
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SECTION 1003. Money for Security 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 shall, before each due date of the
principal of (and premium, if any, on) and interest, if any, on any of the
Securities of such series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum (except as otherwise specified pursuant to
Section 301 for the Securities of such) sufficient to pay the principal of (and
premium, if any, on) and interest, if any, on Securities of such Series 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 or on each due date of the principal of
(and premium, if any, on) and interest, if any, on any Securities of such
series, deposit with the Paying Agent, a sum sufficient to pay the principal
(and premium, if any, on) 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) will promptly notify the
Trustee of its action or failure so to act.
The Company shall cause each Paying Agent (other than the Trustee) for
any series of Securities 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, on) and interest, if any, on Securities of such 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 such series) in the making of any
payment of principal (and premium, if any, on) and interest, if any, on the
Securities of such 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 terms as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
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, on) and interest, if
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any, on any Security of any series and remaining unclaimed for the earlier of
the applicable escheat laws or two years after such principal (and premium, if
any, on) 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 such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in an
Authorized Newspaper, 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.
SECTION 1004. Statement as to Compliance.
--------------------------
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year, commencing with its fiscal year ending after the date
hereof, a brief certificate from its principal executive officer, principal
financial officer or principal accounting officer as to his or her knowledge of
the compliance by the Company with all conditions and covenants under this
Indenture. For purposes of this Section 1004, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
SECTION 1005. Corporate Existence.
-------------------
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its respective
corporate existence, rights (charter and statutory) and franchises and the
respective corporate existence, rights (charter and statutory) and franchises of
its Subsidiaries; provided, however, that the Company shall not be required to
preserve any such existence, right or franchise if the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of it and its Subsidiaries as a whole and not disadvantageous in any
material respect to the Holders.
SECTION 1006. Limitations on Liens.
--------------------
The Company covenants and agrees that it will not, and will not permit
any Restricted Subsidiary to, create, incur, issue or assume any Indebtedness
secured by any Lien on any Principal Property, or on shares of stock or
Indebtedness of any Restricted Subsidiary ("Restricted Securities"), without
making effective provision for the Outstanding Securities (except as otherwise
specified pursuant to Section 301 for the Securities of any series) to be
secured by the Lien equally and ratably with (or prior to) any and all
Indebtedness and obligations secured or to be secured thereby for so long as
such Indebtedness is so secured, except that the foregoing restriction will not
apply to:
(1) Any Lien existing on the date of the first issuance of
Securities under the Indenture.
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(2) Any Lien on any Principal Property or Restricted Securities of
any Person existing at the time such Person is merged or consolidated
with or into the Company or a Restricted Subsidiary, or such Person becomes
a Restricted Subsidiary.
(3) Any Lien on any Principal Property existing at the time of
acquisition of such Principal Property by the Company or a Restricted
Subsidiary, whether or not assumed by the Company or such Restricted
Subsidiary, provided that no such Lien may extend to any other Principal
Property of the Company or any Restricted Subsidiary.
(4) Any Lien on any Principal Property (including any improvements
on an existing Principal Property) of the Company or any Restricted
Subsidiary, and any Lien on the shares of stock of a Restricted Subsidiary
that was formed or is held for the purpose of acquiring and holding such
Principal Property, in each case to secure all or any part of the cost of
acquisition, development, operation, construction, alteration, repair or
improvement of all or any part of such Principal Property (or to secure
Indebtedness incurred by the Company or a Restricted Subsidiary for the
purpose of financing all or any part of such cost); provided that such Lien
is created prior to, at the time of, or within 12 months after the latest
of, the acquisition, completion of construction or improvement or
commencement of commercial operation of such Principal Property and
provided, further, that no such Lien may extend to any other Principal
Property of the Company or any Restricted Subsidiary, other than any
theretofore unimproved real property on which the Principal Property is so
constructed or developed or the improvement is located.
(5) Any Lien on any Principal Property or Restricted Securities to
secure Indebtedness owing to the Company or to another Restricted
Subsidiary.
(6) Any Lien in favor of governmental bodies to secure advances or
other payments pursuant to any contract or statute or to secure
Indebtedness incurred to finance the purchase price or cost of constructing
or improving the property subject to such Lien.
(7) Any Lien created in connection with a project financed with,
and created to secure, Non-Recourse Indebtedness.
(8) Carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the ordinary course of
business which are not delinquent or remain payable without penalty or
which are being contested in good faith and by appropriate proceedings.
(9) Liens (other than Liens imposed by ERISA) on the property of
the Company or any of its Subsidiaries incurred, or pledges or deposits
required, in connection with workmen's compensation, unemployment insurance
and other social security legislation.
(10) Liens securing taxes that remain payable without penalty or
which are being contested in good faith by appropriate proceedings where
collection thereof is
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stayed; provided that the Company has set aside on its books reserves with
respect to such taxes (segregated to the extent required by GAAP) deemed by
it to be adequate.
(11) Any right which any municipal or governmental body or agency
may have by virtue of any franchise, license or contract to purchase or
designate a purchaser of, or order the sale of, any property of the Company
upon payment of reasonable compensation therefor or to terminate any
franchise, license or other rights or to regulate the property and business
of the Company.
(12) Any Liens, neither assumed by the Company nor on which it
customarily pays interest, existing upon real estate or rights in or
relating to real estate acquired by the
Company for sub-station, measuring station, regulating station, gas
purification station, compressor station, transmission line, distribution
line or right-of-way purposes.
(13) Easements or reservations in any property of the Company for
the purpose of roads, pipe lines, gas transmission and distribution lines,
electric light and power transmission and distribution lines, water mains
and other like purposes, and zoning ordinances, regulations and
restrictions which do not impair the use of such property in the operation
of the business of the Company.
(14) Any extension, renewal, substitution or replacement
(or successive extensions, renewals, substitutions or replacements), in
whole or in part, of any Lien referred to in the foregoing clauses (1)
through (13), provided that the Indebtedness secured thereby may not exceed
the principal amount of Indebtedness so secured at the time of such renewal
or refunding, and that such renewal or refunding Lien must be limited to
all or any part of the same property and improvements thereon, shares of
stock or Indebtedness that secured the Lien renewed or refunded.
(15) Any Lien not permitted above securing Indebtedness that,
together with the aggregate outstanding principal amount of other secured
Indebtedness that would otherwise be subject to the foregoing restrictions
(excluding Indebtedness secured by Liens permitted under the foregoing
exceptions) and the Attributable Debt in respect of all Sale and Leaseback
Transactions (not including Attributable Debt in respect of any such Sale
and Leaseback Transactions described in clause (iii) or (iv) of Section
1007) would not then exceed 15% of Consolidated Net Tangible Assets.
SECTION 1007. Limitation on Sale and Leaseback Transactions.
---------------------------------------------
The Company convenants and agrees that it will not, and will not
permit any Restricted Subsidiary to, enter into any Sale and Leaseback
Transaction unless (i) the Company or a Restricted Subsidiary would be entitled,
without securing the Outstanding Securities, to incur Indebtedness secured by a
Lien on the Principal Property that is the subject of such Sale and Leaseback
Transaction; (ii) the Attributable Debt associated therewith would be in an
amount permitted under clause (15) of the preceding paragraph; (iii) the
proceeds received in respect of the Principal Property so sold and leased back
at the time of entering into such Sale and Leaseback Transaction are used for
the business and operations of the Company or any
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Subsidiary; or (iv) within 12 months after the sale or transfer, an amount equal
to the proceeds received in respect of the Principal Property so sold and leased
back at the time of entering into such Sale and Leaseback Transaction is applied
to the prepayment (other than mandatory prepayment) of any Outstanding
Securities or Funded Indebtedness of the Company or a Restricted Subsidiary
(other than Funded Indebtedness that is held by the Company or any Restricted
Subsidiary or Funded Indebtedness of the Company that is subordinate in right of
payment to any Outstanding Securities).
SECTION 1008. Additional Amounts.
------------------
If any Securities of a series provide for the payment of additional
amounts to any Holder who is not a United States person in respect of any tax,
assessment or governmental charge ("Additional Amounts"), the Company shall pay
to the Holder of any Security of such series such Additional Amounts as may be
specified pursuant to Section 301. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of (and premium, if any,
on) or interest, if any, on, or in respect of, any Security of a series or the
net proceeds received on the sale or exchange of any Security of a series, such
mention shall be deemed to include mention of the payment of Additional Amounts
provided for by the terms of such series established pursuant to Section 301 to
the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms, and express mention of the
payment of Additional Amounts (if applicable) in any provisions hereof shall not
be construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made. Except as otherwise specified pursuant to
Section 301, if the Securities of a series provide for the payment of Additional
Amounts, at least 10 days prior to the first Interest Payment Date, if any, with
respect to Securities of such series (or if the Securities of such series do not
bear interest or will not bear interest prior to Maturity, the first day on
which a payment of principal and any premium is made), and at least 10 days
prior to each date of payment of interest or principal and any premium if there
has been any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company shall furnish the Trustee and the Paying
Agent or Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and the Paying Agent or Paying Agents whether such
payment of principal of (and premium, if any, on) or interest, if any, on the
Securities of such series shall be made to Holders of Securities of such series
who are not United States persons without withholding for or on account of any
tax, assessment or other governmental charge described in the Securities of the
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities of such series and the Company
shall pay to the Trustee or the Paying Agent or Paying Agents the Additional
Amounts required by the terms of such Securities. In the event that the Trustee
or any Paying Agent, as the case may be, shall not so receive the above-
mentioned certificate, then the Trustee or such Paying Agent shall be entitled
(i) to assume that no such withholding or deduction is required with respect to
any payment of principal, premium or interest with respect to any Securities of
a series until it shall have received a certificate advising otherwise and (ii)
to make all payments of principal, premium and interest with respect to the
Securities of a series without withholding or deductions until otherwise
advised. The Company hereby covenants and agrees to indemnify the Trustee and
any Paying Agent for, and to hold them harmless against, any loss, liability,
cost or expense reasonably incurred without negligence
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or bad faith on their part arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officers' Certificate furnished
pursuant to this Section.
SECTION 1009. Waiver of Certain Covenants.
---------------------------
Company may omit in any particular instance to comply with any term,
provision or condition set forth in Section 803 or Sections 1005 to 1007,
inclusive, if before or after the time for such compliance the Holders of at
least a majority in principal amount of all Outstanding Securities, by Act of
such Holders, waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
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 the terms of such Securities 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 or pursuant to a Board Resolution. In case of any redemption at
the election of the Company, the Company shall, at least 60 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 and shall
deliver to the Trustee such documentation and records as shall enable the
Trustee to select the Securities to be redeemed pursuant to Section 1103. 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
Officers' Certificate and Opinion of Counsel 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 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal of Securities of such series; provided,
however, that no such partial redemption shall reduce the portion of the
principal amount of a Security not redeemed to less than the minimum authorized
denomination for Securities of such series established pursuant to Section 301.
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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 Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
--------------------
Except as otherwise specified as contemplated by Section 301, notice
of redemption shall be given in the manner provided for in Section 106 not less
than 30 nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed.
All notices of redemption shall identify the Securities (including
CUSIP number, if any) to be redeemed and shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 1106, if any,
(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) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the Holder will receive, without
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and accrued
interest, if any, to the Redemption Date payable as provided in Section
1106 will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities maturing
after the Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any, and
(7) that the redemption is for a sinking fund, if such is the case.
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.
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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 1003) an amount of
money (except as otherwise specified pursuant to Section 301 for the Securities
of such series) sufficient to pay the Redemption Price of, and accrued interest,
if any, 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 (except as otherwise specified pursuant to Section 301
for the Securities of such series)(together with accrued interest, if any, to
the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest, if any)
such Securities shall, if the same were interest-bearing, cease to bear
interest, and except to the extent provided below, shall be void. 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, if any, to the Redemption Date; provided, however, that
installments of interest on Securities 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 Record Dates according to their terms and the provisions of Section
308.
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 of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
SECTION 1107. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part (pursuant to the
provisions of this Article or of Article Twelve) shall be surrendered 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
Company and the Trustee duly executed by, the Holder thereof or such Holder's
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, 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.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
------------------------
Retirements of Securities of any series pursuant to any sinking fund
shall be made in accordance with the terms of such Securities and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
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 mandatory 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.
-----------------------------------------------------
Subject to Section 1203, in lieu of making all or any part of any
mandatory sinking fund payment with respect to any Securities of a series in
cash, the Company may at its option (1) deliver to the Trustee Outstanding
Securities of a series (other than any previously called for redemption)
theretofore purchased or otherwise acquired by the Company and/or (2) receive
credit for the principal amount of Securities of such series which have been
previously delivered to the Trustee by the Company or for Securities of such
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 mandatory sinking fund payment with
respect to the Securities of the same series required to be made pursuant to the
terms of such Securities as provided for by the terms of such series; provided,
however, 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 mandatory sinking fund payment shall
be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
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 (except as otherwise specified
pursuant to Section 301 for the Securities of such series) and the portion
thereof, if any, which is to be satisfied by delivering or crediting Securities
of that series pursuant to Section 1202 (which Securities will, if not
previously delivered, accompany such certificate) and whether the Company
intends to exercise its right to make a permitted optional sinking fund payment
with
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<PAGE>
respect to such series. Such certificate shall be irrevocable and upon its
delivery the Company shall be obligated to make the cash payment or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. In the case of the failure of the Company to deliver such
certificate, the sinking fund payment due on the next succeeding sinking fund
payment date for that series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of such Securities subject to a
mandatory sinking fund payment without the option to deliver or credit
Securities as provided in Section 1202 and without the right to make any
optional sinking fund payment, if any, with respect to such series.
Not more than 60 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.
Prior to any sinking fund payment date, the Company shall pay to the
Trustee or a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) in cash a sum equal to
any interest that will accrue to the date fixed for redemption of Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund for any
series of Securities, if at any time the amount of cash to be paid into such
sinking fund on the next succeeding sinking fund payment date, together with any
unused balance of any preceding sinking fund payment or payments for such
series, does not exceed in the aggregate $100,000, the Trustee, unless requested
by the Company, shall not give the next succeeding notice of the redemption of
Securities of such series through the operation of the sinking fund. Any such
unused balance of moneys deposited in such sinking fund shall be added to the
sinking fund payment for such series to be made in cash on the next succeeding
sinking fund payment date or, at the written request of the Company, shall be
applied at any time or from time to time to the purchase of Securities of such
series, by public or private purchase, in the open market or otherwise, at a
purchase price for such Securities (excluding accrued interest and brokerage
commissions, for which the Trustee or any Paying Agent will be promptly
reimbursed by the Company) not in excess of the principal amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
------------------------
Repayment of Securities of any series before their Stated Maturity at
the option of Holders thereof shall be made in accordance with the terms of such
Securities and (except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
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SECTION 1302. Repayment of Securities.
-----------------------
Securities of any series subject to repayment in whole or in part at
the option of the Holders thereof will, unless otherwise provided in the terms
of such Securities, be repaid at a price equal to the principal amount thereof,
together with interest, if any, thereon accrued to the Repayment Date specified
in or pursuant to the terms of such Securities. The Company covenants that on
or before the Repayment Date it will 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 1003) an amount of money (except as otherwise
specified pursuant to Section 301 for the Securities of such series) sufficient
to pay the principal (or, if so provided by the terms of the Securities of any
series, a percentage of the principal) of and (except if the Repayment Date
shall be an Interest Payment Date) accrued interest, if any, on, all the
Securities or portions thereof, as the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option.
------------------
Securities of any series subject to repayment at the option of the
Holders thereof will contain an "Option to Elect Repayment" form on the reverse
of such Securities. To be repaid at the option of the Holder, any Security so
providing for such repayment, with the "Option to Elect Repayment" form on the
reverse of such Security duly completed by the Holder (or by the Holder's
attorney duly authorized in writing), must be received by the Company at the
Place of Payment therefor specified in the terms of such Security (or at such
other place or places of which the Company shall from time to time notify the
Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
------------------------------------------------------
Payable.
- -------
If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
except to the extent provided below, shall be void.
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Upon surrender of any such Security for repayment in accordance with such
provisions, the principal amount of such Security so to be repaid shall be paid
by the Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that, in the case of Securities, installments of interest, if
any, whose Stated Maturity is on or prior to the Repayment 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 Record Dates
according to their terms and the provisions of Section 308.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount (together
with interest, if any, thereon accrued to such Repayment Date) shall, until
paid, bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. Securities Repaid in Part.
-------------------------
Upon surrender of any Security which is to be repaid in part only, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge and at the expense of the
Company, a new Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant
-------------------------------------------------
Defeasance.
- ----------
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, the provisions of this Article Fourteen shall apply to
each series of Securities, and the Company may, at its option, effect defeasance
of the Securities of or within a series under Section 1402, or covenant
defeasance of the Securities of or within a series under Section 1403 in
accordance with the terms of such Securities and in accordance with this
Article.
SECTION 1402. Defeasance and Discharge.
------------------------
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be deemed to have been discharged from its obligations with respect to such
Outstanding Securities on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities, which shall thereafter
be deemed to be "Outstanding" only for the purposes of Section 1405 and the
other Sections of this Indenture referred to in (A) and (B) below, 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
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expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of such Outstanding
Securities to receive, solely from the trust fund described in Section 1404 and
as more fully set forth in such Section, payments in respect of the principal of
(and premium, if any) and interest, if any, on such Securities when such
payments are due, (B) the Company's obligations with respect to such Securities
under Sections 305, 306, 307, 1002 and 1003 and with respect to the payment of
Additional Amounts, if any, on such Securities as contemplated by Section 1008,
(C) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and (D) this Article Fourteen. Subject to compliance with this Article Fourteen,
the Company may exercise its option under this Section 1402 notwithstanding the
prior exercise of its option under Section 1403 with respect to such Securities.
SECTION 1403. Covenant Defeasance.
-------------------
Upon the Company's exercise under Section 1401 of the option
applicable to this Section 1403 with respect to any Securities of or within a
series, the Company shall be released from its obligations under Sections 1006
and 1007, and if specified pursuant to Section 301, its obligations under any
other covenant, with respect to such Outstanding Securities on and after the
date the conditions set forth in Section 1404 are satisfied (hereinafter,
"covenant defeasance"), and such Securities shall thereafter be deemed to be not
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "Outstanding" for all other purposes
hereunder (it being understood that such Securities shall not be deemed
Outstanding for financial accounting purposes). For this purpose, such covenant
defeasance means that, with respect to such Outstanding Securities, the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of reference in any such covenant to any other provision herein or in
any other document and such omission to comply shall not constitute a Default or
an Event of Default under Section 501(3) or Section 501(7) or otherwise, as the
case may be, but, except as specified above, the remainder of this Indenture and
such Securities shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of either Section
1402 or Section 1403 to any Outstanding Securities of or within a series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 608 who shall agree to comply with the provisions of this
Article Fourteen applicable to it) 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) an
amount or (B) Government Obligations applicable to such Securities which
through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one day before
the due date of any payment of principal of and premium, if any, and
interest, if any, under such Securities money in an amount, or (C) a
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combination thereof, sufficient, 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) and interest, if any, on such
Outstanding Securities on the Stated Maturity (or Redemption Date, if
applicable) of such principal (and premium, if any) or installment of
interest, if any, and (ii) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Securities on the day on which such
payments are due and payable in accordance with the terms of this Indenture
and of such Securities; provided that the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such
Government Obligations to said payments with respect to such Securities.
Before such a deposit, the Company may give to the Trustee, in accordance
with Section 1102 hereof, a notice of its election to redeem all or any
portion of such Outstanding Securities at a future date in accordance with
the terms of the Securities of such series and Article Eleven hereof, which
notice shall be irrevocable. Such irrevocable redemption notice, if given,
shall be given effect in applying the foregoing.
(2) No Default or Event of Default with respect to such Securities
shall have occurred and be continuing on the date of such deposit or,
insofar as paragraphs (5) and (6) of Section 501 are concerned, 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) No event or condition shall exist that would prevent the Company
from making payments of the principal of (and premium, if any) or interest
on the Securities on the date of such deposit or 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).
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(5) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of execution of this
Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities 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 under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities will not recognize income, gain or
loss for federal income tax
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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) In the case of an election under either Section 1402 or 1403, the
Company shall represent to the Trustee that the deposit made by the Company
pursuant to its election under Section 1402 or 1403 was not made by the
Company with the intent of preferring the Holders of Securities of any
series over other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding creditors of the Company or others.
(8) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations in connection
therewith pursuant to Section 301.
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1402
or the covenant defeasance under Section 1403 (as the case may be) have
been complied with.
SECTION 1405. Deposited Money and Government Obligations to Be Held
-----------------------------------------------------
in Trust; Other Miscellaneous Provisions.
- ----------------------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 1405, the
"Trustee") pursuant to Section 1404 in respect of such Outstanding Securities
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, if any, 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 Government Obligations
deposited pursuant to Section 1404 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 such Outstanding Securities.
Anything in this Article Fourteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 1404 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 to effect an
equivalent defeasance or covenant defeasance, as applicable, in accordance with
this Article.
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SECTION 1406. Reinstatement.
-------------
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1405 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 1402 or 1403, as the case may be, until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 1405; provided, however, that if the Company makes any payment of
principal of (or premium, if any) or interest, if any, on any such Security
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money held by the Trustee or Paying Agent.
This Indenture 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 Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the day and year first above written.
ONEOK, INC.
By:
------------------------------------
Name:
Title:
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
By:
------------------------------------
Name:
Title:
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<PAGE>
EXHIBIT 4.2
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITORY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
================================================================================
No. __ $_________
ONEOK, INC.
_____% SENIOR NOTES DUE _____
CUSIP: __________
ONEOK, Inc., an Oklahoma corporation (herein called the "Company," which term
includes any successor corporation under the Indenture referred to herein), for
value received, hereby promises to pay to:
CEDE & CO.
or registered assigns, the principal sum of
*________________ DOLLARS*
on __________, ____ and to pay interest on such principal sum at the rate of
__________ percent (___%) per annum.
The Company will pay interest from the later of ___________ or the most
recent Interest Payment Date (as defined below) to which interest has been paid
or duly provided for, semiannually on ___________ (beginning_________) and on
_______ , or quarterly on ________ (beginning ________), _________, __________
and on ________(each such date an "Interest Payment Date"), until the principal
hereof is otherwise paid or duly provided for. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture (as defined below), be paid to the holder (the
"Holder") of this Note (or one or more predecessor Notes) of record at the close
of business on the regular record date (the "Regular Record Date") for such
Interest Payment Date, which, except in the case of interest payable at Maturity
(as defined in the Indenture), shall be the _________ or _________ (whether or
not a Business Day), as the case may be, if interest is paid semiannually, or
the ________, ________, ________ or ________ (whether or not a Business Day), as
the case may be, if interest is paid quarterly, next preceding such Interest
Payment Date and, in the case of interest payable at Maturity, shall be the date
such that interest payable at Maturity is payable to the same Person to whom
principal on this Note is payable. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
Any such interest not so punctually paid or duly provided for shall forthwith
cease to be payable to the Holder on such Regular Record Date by virtue of his
having been such Holder, and may be paid to the Holder of this Note (or one or
more predecessor Notes) of record at the close of business on a special record
date (the "Special Record Date") fixed by the Company for the payment of such
defaulted interest, notice whereof shall be given to Holders not less than 10
days prior to such Special Record Date, all as more fully provided in the
Indenture.
Payment of the principal of this Note and the interest thereon will be made
at the office or agency of the Company in the Borough of Manhattan, City and
State of New York in such currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts.
<PAGE>
ONEOK, INC.
___% Senior Notes due _____
This Note is one of a duly authorized issue of debt securities of the Company
(herein called the "Securities"), issuable in one or more series, unlimited in
aggregate principal amount except as may be otherwise provided in respect of the
Securities of a particular series, issued and to be issued under and pursuant to
an Indenture dated as of _______, 1998 (the "Indenture"), duly executed and
delivered by the Company to Chase Bank of Texas, National Association, as
trustee (the "Trustee", which term includes any successor trustee under the
Indenture) and is one of a series limited in aggregate principal amount to
$_________ and designated as __% Senior Notes due ______ (the "Notes").
Reference is hereby made to the Indenture for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of Securities (including Holders of the
Notes).
The Notes are subject to defeasance at the option of the Company as provided
in the Indenture.
As long as this Note is represented in global form (the "Global Security")
registered in the name of the Depositary or its nominee, except as provided in
the Indenture and subject to certain limitations therein set forth, no Global
Security shall be exchangeable or transferrable.
If an Event of Default (as defined in the Indenture) with respect to the
Notes shall occur and be continuing, the principal plus any accrued interest may
be declared due and payable in the manner and with the effect and subject to the
conditions provided in the Indenture.
The Indenture permits the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the Holders under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Securities then
Outstanding (as defined in the Indenture) of all series which are affected by
such amendment or modification, except that certain amendments which do not
adversely affect the rights of any Holder of the Securities may be made without
the approval of Holders of the Securities. No amendment or modification may,
among other things, change the Stated Maturity of any Security, reduce the
principal amount thereof, reduce the rate or change the time of payment of any
interest thereon, or reduce the aforesaid majority in aggregate principal amount
of Securities of any series, the consent of the Holders of which is required for
any such amendment or modification, without the consent of each Securityholder
affected.
Notwithstanding any provision in the Indenture or any provision of this Note,
the Holder of this Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
interest on this Note at the times, place and rate, and in the currency herein
prescribed.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
All terms used in this Note which are defined in the Indenture have the
meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.
ONEOK, INC.
By:
--------------------------------------
Name:
Title:
Attested:
--------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
- ---------------------------------------
Dated: _____________________________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
as Trustee
By
--------------------------------
Authorized Signatory
3
<PAGE>
SCHEDULE OF EXCHANGES OF INTERESTS IN THE NOTE
The following exchanges of interests in this Note have been made:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Principal Amount
of
this Note Signature of
Amount of decrease in Amount of increase in following such authorized signatory of
Date of Exchange this Note this Note decrease (or increase) Trustee
- ------------------------ --------------------- --------------------- --------------------- ---------------------
</TABLE>
4
<PAGE>
ASSIGNMENT FORM
================================================================================
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
-----------------------------
-----------------------------
Insert assignee's soc. sec. or tax I.D. no.
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
and all rights thereunder and irrevocably appoint
------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
- --------------------------------------------------------------------------------
Dated:
-------------------------- -------------------------------
-------------------------------
THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS IT APPEARS
ON THE FIRST PAGE OF THE WITHIN NOTE.
THE SIGNATURE MUST BE GUARANTEED BY AN "ELIGIBLE GUARANTOR INSTITUTION" THAT
IS A MEMBER OR PARTICIPANT IN A "SIGNATURE GUARANTEE PROGRAM" (E.G., THE
SECURITIES TRANSFER AGENTS MEDALLION PROGRAM, THE STOCK EXCHANGE MEDALLION
PROGRAM OR THE NEW YORK STOCK EXCHANGE, INC. MEDALLION PROGRAM).
5
<PAGE>
EXHIBIT 12
----------
ONEOK, Inc. and Subsidiaries
----------------------------
Computation of Ratio of Earnings to Fixed Charges
-------------------------------------------------
(In thousands)
--------------
<TABLE>
<CAPTION>
(Unaudited)
Years Ended August 31, Nine Months
---------------------- Ended May 31,
1997 1996 1995 1994 1993 1998 1997
-------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Fixed charges, as defined:
Interest on long-term debt $ 31,354 $ 31,748 $ 32,401 $32,988 $35,250 23,286 23,586
Other interest 3,376 3,184 4,878 1,846 1,120 1,506 2,298
Amortization of debt issue costs 518 530 512 525 2,117 383 398
Representative interest
portion of operating leases 2,266 2,266 2,266 2,266 2,266 1,700 1,700
-------- -------- -------- ------- ------- -------- --------
Total fixed charges 37,514 37,728 40,057 37,625 40,753 26,875 27,982
======== ======== ======== ======= ======= ======== ========
Earnings, as defined:
Income before income taxes $ 94,107 $ 85,873 $ 68,146 $57,276 $59,230 184,611 103,555
Total fixed charges (as shown above) 37,514 37,728 40,057 37,625 40,753 26,875 27,982
-------- -------- -------- ------- ------- -------- --------
Earnings available for fixed charges $131,621 $123,601 $108,203 $94,901 $99,983 $211,486 $131,537
======== ======== ======== ======= ======== ======== ========
Ratio of earnings to fixed charges 3.51X 3.28X 2.70x 2.52x 2.45x 7.86x 4.70x
======== ======== ======== ======= ======== ======== ========
</TABLE>
For purposes of computing the ratio of earnings to fixed charges, "earnings"
consists of net income plus interest charges, amortization of debt issue costs,
and income taxes. "Fixed Charges" consists of interest charges and the
amortization of debt issue costs.
<PAGE>
EXHIBIT 23.1
Independent Auditors' Consent
The Board of Directors
ONEOK, Inc.
We consent to the incorporation by reference herein of our report on
the Consolidated Financial Statements of ONEOK, Inc. as of August 31, 1997 and
1996, and for each of the years in the three-year period ended August 31, 1997,
which report appears in the August 31, 1997, Annual Report on Form 10-K of
ONEOK, Inc. and to the reference to our firm under the heading "Experts" in the
prospectus. Our report refers to the adoption of Statement of Financial
Accounting Standards No. 121, Accounting for the Impairment of Long-lived Assets
and Long-lived Assets to be Disposed Of, in 1996.
/s/ KPMG Peat Marwick LLP
Tulsa, Oklahoma
August 20, 1998
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-3 Registration Statement, which provides for the
issuance of up to $400 million of debt securities, of our report for the Gas
Business, a business unit of Western Resources, Inc., dated February 4, 1997 and
to all references to our Firm included in this Form S-3 Registration Statement.
/s/ Arthor Andersen LLP
Kansas City, Missouri,
August 25, 1998
<PAGE>
EXHIBIT 23.3
[LETTERHEAD OF GABLE & GOTWALS]
A PROFESSIONAL CORPORATION
1000 ONEOK PLAZA
100 WEST FIFTH STREET
TULSA, OKLAHOMA 74103-4219
Telephone (918) 585-8141
Facsimile (918) 588-7873
http://www.gablelaw.com
August 26, 1998
ONEOK, Inc.
100 West Fifth Street
Tulsa, OK 74103
Re: Form S-3, Registration Statement Under the
Securities Act of 1933, relating to certain
Debt Securities
Gentlemen:
We are retained as regular counsel for ONEOK, Inc., an Oklahoma
corporation (hereinafter called the "Company") which has filed with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended, a Registration Statement on Form S-3 (including a Prospectus)
relating to the registration of unsecured debentures, notes or other evidence of
indebtedness (the "Securities") which may be offered as one or more separate
series or as a single series, as determined at the time of the offering.
We have examined (a) the above-mentioned Registration Statement which is
being filed with the Securities and Exchange Commission; (b) the Indenture (the
"Indenture") to be entered into between the Company and the Trustee; (c) the
Certificate of Incorporation, as amended, and the By-laws, as amended, of the
Company; (d) the corporate actions taken by the Board of Directors of the
Company in connection with the issuance and sale of the Securities; and (e) such
other corporate records, certificates of public officials and officers of the
Company, and other documents as we have considered relevant to the matters
covered by this opinion.
In connection with the foregoing, we wish to advise you as follows:
<PAGE>
GABLE & GOTWALS
ONEOK, Inc.
August 26, 1998
Page 2
1. The Company is a corporation validly organized and existing under
the laws of the State of Oklahoma and is duly qualified to do business as a
foreign corporation in the State of Kansas.
2. The filing of the above-mentioned Registration Statement and the
execution of the above-mentioned Indenture have been duly authorized by the
proper corporate action on the part of the Company.
3. When a series of Securities has been duly issued pursuant to the
terms and conditions of the Indenture, such Securities shall be legally issued,
fully paid, and non-assessable obligations of the Company in the hands of the
then owners thereof and such Securities shall be valid, legal and binding
obligations of the Company enforceable in accordance with their terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization or
other laws of general application relating to or affecting creditors' rights and
to general equity principles.
We hereby consent to:
1. Being named in the above Form S-3 Registration Statement and the
Prospectus which is being made a part thereof, and in any amendments thereto,
under the captions "Experts" and "Legal Matters", as counsel for the Company,
passing upon legal matters in connection with the Securities and having
reviewed the matters of law and legal conclusions under "Description of
Securities" contained in said Prospectus which are included therein under our
authority as experts.
2. The filing of this opinion as an exhibit to the above-mentioned Form
S-3 Registration Statement.
Very truly yours,
GABLE & GOTWALS
By /s/ Donald A. Kihle
----------------------------
Donald A. Kihle
<PAGE>
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
F O R M T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION UNDER THE TRUST INDENTURE ACT
OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
_________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2)____.
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
ORGANIZED UNDER THE LAWS OF 74-0800980
THE UNITED STATES OF AMERICA (I.R.S. employer
(State of incorporation identification no.)
if not a National Bank)
712 MAIN STREET 77002
HOUSTON, TEXAS (ZIP CODE)
(Address of principal executive offices)
LEE BOOCKER
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
712 MAIN STREET, 26TH FLOOR
HOUSTON, TEXAS 77002
(713) 216-2448
(Name, address and telephone
number of agent for service)
__________________________________________
ONEOK, INC.
(Exact name of obligor as specified in its charter)
OKLAHOMA 73-1520922
(State or other jurisdictions of (I.R.S. employer
incorporation or organization) identification nos.)
100 WEST FIFTH STREET
TULSA, OKLAHOMA 74103
(Address of obligor's principal executive offices) (ZIP CODE)
$400,000,000 DEBT SECURITIES
(Title of the indenture securities)
1
<PAGE>
ITEM 1. GENERAL INFORMATION.
-------------------
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
NAME ADDRESS
--------------------------------------------------------------------
Comptroller of the Currency Washington, D.C.
Board of Governors of the Federal Reserve System Washington, D.C.
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes, the trustee is authorized to exercise corporate trust powers..
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
-----------------------------
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION. (SEE NOTE ON PAGE 3)
The obligor is not an affiliate of the trustee.
ITEM 16. LIST OF EXHIBITS.
----------------
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF
ELIGIBILITY:
Exhibit 1. A copy of the Articles of Association of the Trustee as
now in effect.
Exhibit 2. A copy of the certificate of authority of the Trustee to
commence business.
Exhibit 3. A copy of the authorization of the Trustee to exercise
corporate trust powers.
Exhibit 4. A copy of the existing bylaws of the Trustee.
Exhibit 5. Not Applicable.
Exhibit 6. The consents of the United States institutional trustees
required by Section 321(b) of the Trust Indenture Act of
1939.
Exhibit 7. A copy of the latest report of condition of the Trustee
published pursuant to law or the requirements of its
supervising or examining authority.
Exhibit 8. Not Applicable.
Exhibit 9. Not Applicable.
<PAGE>
NOTE REGARDING INCORPORATED EXHIBIT
Effective January 20, 1998, the name of the Trustee was changed from Texas
Commerce Bank National Association to Chase Bank of Texas, National Association.
The exhibits incorporated herein by reference, except for Exhibit 7, were filed
under the former name of the Trustee.
Exhibit 1. Incorporated by reference to exhibit bearing the
same designation and previously filed with the
Securities and Exchange Commission as exhibit to
the Form S-3 File No.33-56195.
Exhibit 2. Incorporated by reference to exhibit bearing the
same designation and previously filed with the
Securities and Exchange Commission as exhibit to the
Form S-3 File No.33-42814.
Exhibit 3. Incorporated by reference to exhibit bearing the
same designation and previously filed with the
Securities and Exchange Commission as exhibit to
the Form S-11 File No.33-25132.
Exhibit 4. Incorporated by reference to exhibit bearing the
same designation and previously filed with the
Securities and Exchange Commission as exhibit to
the Form S-3 File No.33-65055.
Exhibit 6. Incorporated herewith.
Exhibit 7. Incorporated by reference to exhibit bearing the
same designation and previously filed with the
Securities Exchange Commission as exhibit to the
Form S-3 File No.333-52197.
NOTE: THE ANSWER TO ITEM 2 IS BASED IN PART ON INFORMATION PROVIDED OR
CONFIRMED BY THE OBLIGOR. THE ACCURACY AND COMPLETENESS OF SUCH
INFORMATION IS HEREBY DISCLAIMED BY THE TRUSTEE.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Chase Bank of Texas, National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Dallas,
and State of Texas, on the 26th day of August 1998.
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
By: /s/ Michael A. Scrivner
-------------------------------------------
Name: Michael A. Scrivner
Title: Vice President
<PAGE>
EXHIBIT 6
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
The undersigned is trustee under an indenture between ONEOK, Inc., an Oklahoma
corporation (the "Company") and Chase Bank of Texas, National Association
(formerly known as Texas Commerce Bank National Association), as Trustee,
entered into in connection with the issuance of the Corporation's Debt
Securities.
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the
undersigned hereby consents that reports of examinations of the undersigned,
made by Federal or State authorities authorized to make such examinations, may
be furnished by such authorities to the Securities and Exchange Commission upon
its request therefor.
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
By: /s/ Michael A. Scrivner
-----------------------------------
Name: Michael A. Scrivner
Title: Vice President
Date: August 26, 1998
