SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 4, 1996
Commission Registrant, State of Incorporation, I.R.S. Employer
File Number Address and Telephone Number Identification No.
0-343 Public Service Company of Oklahoma 73-0410895
(An Oklahoma Corporation)
212 East 6th Street
Tulsa, Oklahoma 74119-1212
(918) 599-2000
ITEM 5. OTHER EVENTS
On February 26, 1996, Public Service Company of
Oklahoma, an Oklahoma corporation (the "Company"),
entered into a Distribution Agreement and filed on
February 27, 1996, with the Securities and Exchange
Commission a prospectus supplement relating to
$75,000,000 in aggregate principal amount of its Medium-
Term Notes, Series A.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
Exhibits
1.01 Distribution Agreement, dated February 26, 1996,
among the Company, Smith Barney Inc. and Morgan
Stanley & Co. Incorporated relating to $75,000,000
of Medium-Term Notes, Series A.
4.01 Indenture, dated as of February 1, 1996, between
the Company and Liberty Bank and Trust Company of
Tulsa, National Association.
4.02 Supplemental Indenture, dated as of February 1,
1996, between the Company and Liberty Bank and
Trust, National Association, creating $75,000,000
principal amount of Medium-Term Notes, Series A
(the "Notes").
4.03 Supplemental Indenture, dated as of February 1,
1996, between the Company and Liberty Bank and
Trust Company of Tulsa, National Association,
creating $75,000,000 principal amount of First
Mortgage Bonds, Series X.
SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PUBLIC SERVICE COMPANY OF OKLAHOMA
Date: March 4, 1996
By: /s/ R. Russell Davis
R. Russell Davis
Controller
EXHIBIT 1.01
Public Service Company of Oklahoma
Series A Medium-Term Notes Due Not Less Than
9 Months from Date of Issue
DISTRIBUTION AGREEMENT
February 26, 1996
Smith Barney Inc.
390 Greenwich Street, 4th Floor
New York, New York 10013
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs:
Public Service Company of Oklahoma, an Oklahoma
corporation (the "Company"), confirms its agreement
with Smith Barney Inc. and Morgan Stanley & Co.
Incorporated (each referred to as an "Agent" and
collectively referred to as the "Agents") with respect
to the issue and sale by the Company of its Medium-Term
Notes, Series A, described herein (the "Notes"). The
Notes are to be issued pursuant to an indenture dated
as of February 1, 1996, as supplemented and as the same
may from time to time be amended or supplemented (the
"Indenture"), between the Company and Liberty Bank and
Trust Company of Tulsa, National Association, as
trustee (the "Trustee"). As of the date hereof, the
Company has authorized the issuance and sale of up to
$75,000,000 aggregate principal amount of Notes through
the Agents pursuant to the terms of this Agreement. It
is understood, however, that the Company may from time
to time authorize the issuance of additional Notes and
that such additional Notes may be sold through or to
the Agents pursuant to the terms of this Agreement, all
as though the issuance of such Notes were authorized as
of the date hereof. Until the Release Date (as defined
in the Indenture), the Notes will be secured as to
payment of principal and interest by one or more series
of First Mortgage Bonds (the "First Mortgage Bonds")
issued, pledged and delivered by the Company to the
Trustee. The First Mortgage Bonds will be issued
pursuant to the provisions of the Company's Indenture
dated July 1, 1945, as supplemented and as the same may
from time to time be amended or supplemented (the
"First Mortgage Indenture") to Liberty Bank and Trust
Company of Tulsa, National Association, as Trustee (the
"First Mortgage Trustee").
This Agreement provides both for the sale of Notes
by the Company directly to purchasers, in which case
the Agents will act as agents of the Company in
soliciting Note purchases, and (as may from time to
time be agreed to by the Company and the applicable
Agent) to an Agent as principal for resale to
purchasers.
The Company has filed with the Securities and
Exchange Commission (the "SEC") a registration
statement on Form S-3 (No. 333-00973) for the
registration of debt securities, including the Notes,
under the Securities Act of 1933, as amended (the "1933
Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations
of the SEC under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been
declared effective by the SEC and the Indenture has
been qualified under the Trust Indenture Act of 1939,
as amended (the "1939 Act"). Such registration
statement, excluding Form T-1 (and any further
registration statements which may be filed by the
Company for the purpose of registering additional Notes
and in connection with which this Agreement is
incorporated by reference) and the prospectus
constituting a part thereof, and any prospectus
supplements and pricing supplements relating to the
Notes, including all documents incorporated therein by
reference, as from time to time amended or supplemented
by the filing of documents pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), or
the 1933 Act or otherwise, are referred to herein as
the "Registration Statement" and the "Prospectus",
respectively.
I. Appointment as Agents.
A. Appointment of Agents. Subject to the terms
and conditions stated herein and subject to the
reservation by the Company of the right to sell Notes
directly on its own behalf, the Company hereby appoints
the Agents as its agents for the purpose of soliciting
purchases of the Notes from the Company by others and
agrees that, except as otherwise contemplated herein,
whenever the Company determines to sell Notes directly
to an Agent as principal for resale to others, it will
enter into a Terms Agreement (hereafter defined)
relating to such sale in accordance with the provisions
of Section 3(b) hereof. The Agents are authorized to
appoint sub-agents or to engage the services of any
other broker or dealer in connection with the offer or
sale of the Notes. The Company agrees that, during the
period the Agents are acting as the Company's agents
hereunder, the Company will not contact or solicit
potential investors introduced to it by an Agent to
purchase the Notes. The Company may appoint, upon 3
business days prior written notice to the Agents,
additional persons to serve as Agents hereunder, but
only if each such additional person agrees to be bound
by all of the terms of this Agreement as an Agent.
B. Reasonable Best Efforts Solicitations; Right
to Reject Offers. Upon receipt of instructions from
the Company, each Agent will use its reasonable best
efforts to solicit purchases of such principal amount
of the Notes as the Company and such Agent shall agree
upon from time to time during the term of this
Agreement, it being understood that the Company shall
not approve the solicitation of purchases of Notes in
excess of the amount which shall be authorized by the
Company from time to time or in excess of the principal
amount of Notes registered pursuant to the Registration
Statement. The Agents will have no responsibility for
maintaining records with respect to the aggregate
principal amount of Notes sold, or of otherwise
monitoring the availability of Notes for sale under the
Registration Statement. Each Agent will communicate to
the Company, orally or in writing, each offer to
purchase Notes, other than those offers rejected by
such Agent. Each Agent shall have the right, in its
discretion reasonably exercised, to reject any proposed
purchase of Notes, as a whole or in part, and any such
rejection shall not be deemed a breach of such Agent's
agreement contained herein. The Company may accept, in
its discretion reasonably exercised, or reject, and any
such rejection shall not be deemed a breach of the
Company's agreement contained herein, any proposed
purchase of the Notes, in whole or in part.
C. Solicitations as Agent; Purchases as
Principal. In soliciting purchases of the Notes on
behalf of the Company, the Agents shall act solely as
agents for the Company and not as principal. An agent
shall make reasonable best efforts to assist the
Company in obtaining performance by each purchaser
whose offer to purchase Notes has been solicited by
such Agent and accepted by the Company. The Agents
shall not have any liability to the Company in the
event any such purchase is not consummated for any
reason. An Agent shall not have any obligation to
purchase Notes from the Company as principal, but each
Agent may agree with the Company from time to time to
purchase Notes as principal. Any such purchase of
Notes by an Agent as principal shall be made pursuant
to a Terms Agreement in accordance with Section 3(b)
hereof.
D. Reliance. The Company and each Agent agree
that any Notes the placement of which such Agent
arranges shall be placed by such Agent, and any Notes
purchased by such Agent shall be purchased, in reliance
on the representations, warranties, covenants and
agreements of the Company contained herein and on the
terms and conditions and in the manner provided herein.
E. Administrative Procedures. Procedural
details relating to the issue and delivery of the Notes
and the payment therefor, unless an Agent and the
Company shall otherwise agree, shall be as set forth in
the Administrative Procedures attached hereto as Annex
I as it may be amended from time to time by written
agreement between the Agents and the Company (the
"Administrative Procedures"). The provisions of the
Administrative Procedures shall apply to all
transactions contemplated hereunder other than those
made pursuant to a Terms Agreement. Each Agent and the
Company shall perform the respective duties and
obligations specifically provided to be performed by
each of them in the Administrative Procedures.
SECTION 2. Representations and Warranties.
a The Company represents and warrants to each
Agent as of the date hereof, as of the date of each
acceptance by the Company of an offer for the purchase
of Notes (whether through an Agent as agent or to an
Agent as principal), as of the date of each delivery of
Notes (whether through such Agent as agent or to the
Agent as principal) (the date of each such delivery to
an Agent as principal being hereinafter referred to as
a "Settlement Date"), and as of any time that the
Registration Statement or the Prospectus shall be
amended or supplemented (other than by an amendment or
supplement providing solely for a change in the
interest rates of Notes or similar changes) or there is
filed with the SEC any document incorporated by
reference into the Prospectus (other than any Current
Report on Form 8-K relating exclusively to the issuance
of debt securities under the Registration Statement,
unless the Agents shall otherwise specify) (each of the
times referenced above being referred to herein as a
"Representation Date") as follows:
i. Due Incorporation and Qualification. The
Company has been duly incorporated and is validly
existing as a corporation in good standing under
the laws of the State of Oklahoma with corporate
power and authority to own its properties and to
conduct its business as described in the
Prospectus; and the Company is duly qualified as a
foreign corporation to transact business and is in
good standing in each jurisdiction in which such
qualification is required, whether by reason of
the ownership or leasing of property or the
conduct of business, except where the failure to
so qualify or be in good standing would not result
in (A) a material adverse change in the condition,
financial or otherwise, or in the earnings of the
Company and its subsidiaries considered as one
enterprise or (B) a material adverse change in its
prospective financial condition or results of
operations, in either case whether or not arising
in the ordinary course of business.
ii. Subsidiaries. Each subsidiary of the
Company which is a significant subsidiary (each a
"Significant Subsidiary") as defined in Rule 405
of Regulation C of the 1933 Act Regulations has
been duly incorporated and is validly existing as
a corporation in good standing under the laws of
the jurisdiction of its incorporation, has
corporate power and authority to own its
properties and conduct its business as described
in the Prospectus and is duly qualified as a
foreign corporation to transact business and is in
good standing in each jurisdiction in which such
qualification is required, whether by reason of
the ownership or leasing of property or the
conduct of business, except where the failure to
so qualify or be in good standing would not result
in (A) a material adverse change in the condition,
financial or otherwise, or the earnings of the
Company and its subsidiaries considered as one
enterprise or (B) a material adverse change in the
Company's prospective financial condition or
results of operations, in either case whether or
not arising in the ordinary course of business;
and all of the issued and outstanding capital
stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and
non-assessable and, except for directors'
qualifying shares, is owned by the Company,
directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
iii. Registration Statement and Prospectus.
At the time the Registration Statement became
effective, the Registration Statement complied, and as
of the applicable Representation Date will comply, in
all material respects with the requirements of the 1933
Act and the 1933 Act Regulations and the 1939 Act and
the rules and regulations of the SEC promulgated
thereunder. The Registration Statement, at the time it
became effective, did not, and at each time thereafter
at which any amendment to the Registration Statement
becomes effective or any Annual Report on Form 10-K is
filed by the Company with the SEC and as of each
Representation Date, will not, contain an untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading. The Prospectus, as of the date hereof does
not, and as of each Representation Date will not,
contain 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; provided,
however, that the representations and warranties in
this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus
resulting from the failure of any of the Agents to
furnish the Company with information pertaining to such
Agents and the sale of the Notes required to complete
the Registration Statement or the Prospectus, to
statements in the Form T-1 filed by the Trustee and
First Mortgage Trustee as exhibits to the Registration
Statement or to statements in or omissions from the
Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by the
Agents expressly for use in the Registration Statement
or Prospectus.
iv. Incorporated Documents. The documents
incorporated by reference in the Prospectus, at the
time they were or hereafter are filed with the SEC,
complied or when so filed will comply, as the case may
be, in all material respects with the requirements of
the 1934 Act and the rules and regulations promulgated
thereunder (the "1934 Act Regulations"), and, when read
together and with the other information in the
Prospectus, did not and will not contain an untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary in order to make the statements therein, in
the light of the circumstances under which they were or
are made, not misleading.
v. Accountants. The accountants who certified
the financial statements included or incorporated by
reference in the Prospectus are independent public
accountants within the meaning of the 1933 Act and the
1933 Act Regulations.
vi. [Intentionally Left Blank].
vii. Authorization and Validity of this
Agreement, the Indenture and the Notes. This Agreement
has been duly authorized, executed and delivered by the
Company; the Indenture has been duly authorized and
constitutes a valid and binding obligation of the
Company enforceable in accordance with its terms,
except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting enforcement of
creditors' rights generally or by general equity
principles; the Notes have been duly and validly
authorized for issuance, offer and sale pursuant to
this Agreement and, when issued, authenticated and
delivered pursuant to the provisions of this Agreement
and the Indenture against payment of the consideration
therefor specified in the Prospectus or pursuant to any
Terms Agreement, the Notes will constitute valid and
legally binding obligations of the Company enforceable
in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to
or affecting enforcement of creditors' rights generally
or by general equity principles; the Notes and the
Indenture will be substantially in the form heretofore
delivered to the Agents and conform in all material
respects to the statements relating thereto contained
in the Prospectus; and the Notes will be entitled to
the benefits provided by the Indenture.
viii. Material Changes or Material
Transactions. Since the respective dates as of which
information is given in the Registration Statement and
the Prospectus, except as may otherwise be stated
therein or contemplated thereby (including the
financial statements and notes thereto included or
incorporated by reference in the Registration
Statement) and except as the Company may have furnished
supplemental information to each prospective Agent as
to matters to be reflected in the Prospectus, there has
been no (A) material adverse change in the condition,
financial or otherwise, or in the earnings of the
Company and its subsidiaries considered as one
enterprise or (B) adverse development concerning the
Company's business or assets which would result in a
material adverse change in its prospective financial
condition or results of operations, in either case
whether or not arising in the ordinary course of
business.
ix. No Defaults. Neither the Company nor
any of its Significant Subsidiaries is in violation of
its charter or in default in the performance or
observance of any obligation, agreement, covenant or
condition contained in any material contract,
indenture, mortgage, loan agreement, note, lease or
other instrument to which it is a party or by which it
or any of them or their properties is bound that would
result in (A) a material adverse change in the
condition, financial or otherwise, or in the earnings
of the Company and its subsidiaries considered as one
enterprise or (B) a material adverse change in its
prospective financial condition or results of
operations, in either case whether or not arising in
the ordinary course of business; or materially and
adversely affect the performance by the Company of the
obligations under this Agreement or consummation of the
transaction contemplated by this Agreement; the
execution and delivery of this Agreement and the
Indenture and the consummation of the transactions
contemplated herein, therein and pursuant to any
applicable Terms Agreement have been duly authorized by
all necessary corporate action and will not conflict
with or constitute a breach of, or 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 of its Significant Subsidiaries
pursuant to, any material contract, indenture,
mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its
Significant Subsidiaries is a party or by which it or
any of them may be bound or to which any of the
property or assets of the Company or any such
subsidiary is subject, nor will such action result in
any violation of the provisions of the charter or
by-laws of the Company or any law, administrative
regulation or administrative or court order applicable
to the Company or any such subsidiary.
x. Authorization, Approval or Consent
Required. The Company is subject to the
jurisdiction of the Oklahoma Corporation
Commission ("OCC") which is vested with powers of
supervision, regulation and control over various
matters including the issuance of securities. No
authorization, approval or consent of any court or
governmental authority or agency is necessary in
connection with the sale of the Notes or the First
Mortgage Bonds hereunder, including under the
Public Utility Holding Company Act of 1935, as
amended (the "1935 Act"), except (i) for such
orders as are required by the OCC authorizing the
issuance and sale of the Notes and the First
Mortgage Bonds on terms consistent with this
Agreement, the Administrative Procedures and any
applicable Terms Agreement, which orders have been
obtained, are in full force and effect and have
been heretofore delivered to the Agents, and (ii)
as otherwise may be required under the 1933 Act or
the 1933 Act Regulations or state securities or
Blue Sky laws.
xi. Title to Property. The Company and its
subsidiaries have good and marketable title in fee
simple (or its equivalent under applicable law) to all
real property and good and marketable title to all
personal property owned by them which is material to
the business of the Company and its subsidiaries, in
each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus
or such as do not materially affect the value of such
property and do not interfere with the use made and
proposed to be made of such property by the Company and
its subsidiaries; and any real property and buildings
held under lease by the Company and its subsidiaries
are held by them under valid, subsisting and
enforceable leases with such exceptions as are not
material and do not interfere with the use made and
proposed to be made of such property and buildings by
the Company and its subsidiaries.
xii. Environmental and Other Matters.
Except as set forth in the Registration Statement,
neither the Company nor its subsidiaries (in the
case of matters relating to environmental
protection, occupational safety and health and
equal employment opportunity, to the best of its
knowledge) (a) is in violation of any laws,
ordinances, governmental rules and regulations to
which it is subject or (b) has failed to obtain
any licenses, permits, franchises or other
governmental authorizations, necessary to the
ownership of its property or to the conduct of its
business, which violation or such failure to
obtain would materially adversely affect the
business, business prospects, profits, properties
or condition (financial or otherwise) of the
Company and its subsidiaries considered as one
enterprise.
b. Additional Certifications. Any certificate
signed by any director or officer of the Company and
delivered to the Agents or to counsel for the Agents in
connection with an offering of Notes or the sale of
Notes to the agent as principal shall be deemed a
representation and warranty by the Company to the
Agents as to the matters covered thereby on the date of
such certificate (unless otherwise specified in such
certificate) and at each Representation Date subsequent
thereto.
SECTION 3. Solicitations as Agent; Purchases as Principal.
a. Solicitations as Agent. On the basis of the
representations and warranties herein contained, but
subject to the terms and conditions herein set forth,
each Agent agrees, as the agent of the Company, to use
its reasonable best efforts to solicit offers and
receive offers to purchase the Notes upon the terms and
conditions set forth herein and in the Prospectus.
The Company reserves the right, in its sole
discretion, to suspend solicitation of purchases of the
Notes through an Agent, as agent, commencing at any
time for any period of time or permanently. As soon as
practicable, but in any case not later than one
business day after receipt of instructions from the
Company, such Agent will forthwith suspend solicitation
of purchases from the Company until such time as the
Company has advised such Agent that such solicitation
may be resumed.
The Company agrees to pay each Agent a
commission, in the form of a discount, equal to the
applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation
made by such Agent as set forth in Schedule A hereto.
An Agent may reallot any portion of the commission
payable pursuant hereto to dealers or purchasers in
connection with the offer and sale of any Notes.
The purchase price, interest rate, maturity
date and other terms of the Notes shall be agreed upon
by the Company and the Agents and set forth in a
pricing supplement to the Prospectus to be prepared
following each acceptance by the Company of an offer
for the purchase of Notes. Except as may be otherwise
provided in such supplement to the Prospectus, the
Notes will be issued in denominations of $100,000 or
any larger amount that is an integral multiple of
$1,000. All Notes sold through an Agent as agent will
be sold at 100% of their principal amount unless
otherwise agreed to by the Company and such Agent.
b. Purchases as Principal. Each sale of Notes to
an Agent as principal shall be made in accordance with
the terms contained herein and (unless the Company and
such Agent shall otherwise agree) pursuant to a
separate agreement which will provide for the sale of
such Notes to, and the purchase and reoffering thereof
by, such Agent. Each such separate agreement (which
may be an oral agreement) between such Agent and the
Company is herein referred to as a "Terms Agreement".
Unless the context otherwise requires, each reference
contained herein to "this Agreement" shall be deemed to
include any applicable Terms Agreement between the
Company and the applicable Agent. Each such Terms
Agreement, whether oral or in writing, shall be with
respect to such information (as applicable) as is
specified in Exhibit A hereto. An Agent's commitment
to purchase Notes as principal pursuant to any Terms
Agreement or otherwise shall be deemed to have been
made on the basis of the representations and warranties
of the Company herein contained and shall be subject to
the terms and conditions herein set forth. Each Terms
Agreement shall specify the principal amount of Notes
to be purchased by such Agent pursuant thereto, the
price to be paid to the Company for such Notes (which,
if not so specified in a Terms Agreement, shall be at a
discount equivalent to the applicable commission set
forth in Schedule A hereto), the time and place of
delivery of and payment for such Notes, any provisions
relating to rights of, and default by purchasers acting
together with such Agent in the reoffering of the
Notes, and such other provisions (including further
terms of the Notes) as may be mutually agreed upon.
Each Agent may utilize a selling or dealer group in
connection with the resale of the Notes purchased.
Such Terms Agreement shall also specify the
requirements for the officers' certificate, opinions of
counsel and comfort letter pursuant to Sections 7(b),
7(c) and 7(d) hereof.
SECTION 4. Covenants of the Company.
The Company covenants with each Agent as follows:
A. Notice of Certain Events. The Company will
notify the Agents immediately (i) of the effectiveness
of any amendment to the Registration Statement, (ii) of
the transmittal to the SEC for filing of any supplement
to the Prospectus, (iii) of the receipt of any comments
from the SEC with respect to the Registration Statement
or the Prospectus, (iv) of any request by the SEC for
any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for
additional information, and (v) of the issuance by the
SEC of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any
proceedings for that purpose. The Company will make
every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
B. Notice of Certain Proposed Filings. The
Company will give the Agents notice of its intention to
file or prepare any additional registration statement
with respect to the registration of additional Notes,
any amendment to the Registration Statement or any
amendment or supplement to the Prospectus (other than
an amendment or supplement providing solely for a
change in the interest rates of Notes or the filing of
reports under the 1934 Act), whether by the filing of
documents pursuant to the 1933 Act or otherwise and
will furnish the Agents with copies of any such
amendment or supplement or other documents proposed to
be filed or prepared a reasonable time in advance of
such proposed filing or preparation, as the case may
be, and will not file any such amendment or supplement
or other documents in a form to which the Agents or
counsel for the Agents shall reasonably object.
C. Copies of the Registration Statement and the
Prospectus. The Company will deliver to the Agents as
many signed and conformed copies of the Registration
Statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or
incorporated by reference therein and documents
incorporated by reference in the Prospectus) as the
Agents may reasonably request. The Company will
furnish to the Agents as many copies of the Prospectus
(as amended or supplemented) as the Agents shall
reasonably request so long as the Agents are required
to deliver a Prospectus in connection with sales or
solicitations of offers to purchase the Notes.
D. Preparation of Pricing Supplements. The
Company will prepare, with respect to any Notes to be
sold through or to any Agent pursuant to this
Agreement, a Pricing Supplement with respect to such
Notes in a form previously approved by such Agent and
will file such Pricing Supplement pursuant to
Rule 424(b) under the 1933 Act not later than the close
of business of the SEC on the fifth business day after
the date on which such Pricing Supplement is first
used.
E. Revisions of Prospectus -- Material Changes.
Except as otherwise provided in subsection (l) of this
Section, if at any time during the term of this
Agreement any event shall occur or condition exist as a
result of which it is necessary, in the reasonable
opinion of counsel for the Agents (and concurred with
by counsel of the Company) or counsel for the Company,
to further amend or supplement the Prospectus in order
that the Prospectus will not include an untrue
statement of a material fact or omit to state any
material fact necessary in order to make the statements
therein not misleading in the light of the
circumstances existing at the time the Prospectus is
delivered to a purchaser, or if it shall be necessary,
in the reasonable opinion of counsel for the Agents
(and concurred with by counsel of the Company) or
counsel for the Company to amend or supplement the
Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the
1933 Act Regulations, immediate notice shall be given,
and confirmed in writing, to the Agents to cease the
solicitation of offers to purchase the Notes in the
Agents' capacity as agents and to cease sales of any
Notes the Agents may then own as principal pursuant to
a Terms Agreement, and the Company will promptly
prepare and file with the SEC such amendment or
supplement, whether by filing documents pursuant to the
1934 Act, the 1933 Act or otherwise, as may be
necessary to correct such untrue statement or omission
or to make the Registration Statement and Prospectus
comply with such requirements.
F. Prospectus Revisions -- Periodic Financial
Information. Except as otherwise provided in
subsection (l) of this Section, on or prior to the date
on which there shall be released to the general public
in the form of a press release interim financial
statement information related to the Company with
respect to each of the first three quarters of any
fiscal year or preliminary financial statement
information with respect to any fiscal year, the
Company shall furnish such information to the Agents,
confirmed in writing, and shall cause the Prospectus to
be amended or supplemented to include or incorporate by
reference financial information with respect thereto
and corresponding information for the comparable period
of the preceding fiscal year, as well as such other
information and explanations as shall be necessary for
an understanding thereof or as shall be required by the
1933 Act or the 1933 Act Regulations.
G. Prospectus Revisions -- Audited Financial
Information. Except as otherwise provided in
subsection (l) of this Section, on or prior to the date
on which there shall be released to the general public
in the form of a press release financial information
included in or derived from the audited financial
statements of the Company for the preceding fiscal
year, the Company shall cause the Registration
Statement and the Prospectus to be amended, whether by
the filing of documents pursuant to the 1934 Act, the
1933 Act or otherwise, to include or incorporate by
reference such audited financial statements and the
report or reports, and consent or consents to such
inclusion or incorporation by reference, of the
independent accountants with respect thereto, as well
as such other information and explanations as shall
be necessary for an understanding of such financial
statements or as shall be required by the 1933 Act or
the 1933 Act Regulations.
H. Earnings Statements. The Company will make
generally available to its security holders as soon as
practicable, but in any event not later than 90 days
after (i) the effective date of the Registration
Statement, (ii) the effective date of each post-
effective amendment to the Registration Statement, and
(iii) the date of each filing by the Company with the
SEC of an Annual Report on Form 10-K that is
incorporated by reference in the Registration
Statement, an earning statement of the Company and its
subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations
of the SEC thereunder (including, at the option of the
Company, Rule 158).
I. Blue Sky Qualifications. The Company will
endeavor, in cooperation with the Agents, to qualify
the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions
of the United States as the Agents may designate and as
approved by the Company, and will maintain such
qualifications in effect for as long as may be required
for the distribution of the Notes and the First
Mortgage Bonds; provided, however, that the Company
shall not be obligated to file any general consent to
service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so
qualified. The Company will file such statements and
reports as may be required by the laws of each
jurisdiction in which the Notes or the First Mortgage
Bonds have been qualified as above provided. The
Company will promptly advise the Agents of the receipt
by the Company of any notification with respect to the
suspension of the qualification of the Notes or the
First Mortgage Bonds for sale in any such state or
jurisdiction or the initiating or threatening of any
preceding for such purpose.
J. 1934 Act Filings. The Company, during the
period when the Prospectus is required to be delivered
under the 1933 Act, will file promptly all documents
required to be filed with the SEC pursuant to Sections
13(a), 13(c), 14 or 15(d) of the 1934 Act.
K. Stand-Off Agreement. If required pursuant to
the terms of a Terms Agreement, between the date of any
Terms Agreement and the Settlement Date with respect to
such Terms Agreement, the Company will not, without the
applicable Agent's prior consent, offer or sell, or
enter into any agreement to sell, any debt securities
of the Company (other than the Notes that are to be
sold pursuant to such Terms Agreement, notes issued
pursuant to a credit facility or other similar
agreement and commercial paper in the ordinary course
of business).
L. Suspension of Certain Obligations. The
Company shall not be required to comply with the
provisions of subsections (e), (f) or (g) of this
Section during any period from the time the Agents
shall have suspended solicitation of purchases of the
Notes in their capacity as agents pursuant to a request
from the Company to the time the Company shall determine
that solicitation of purchases of the Notes should
be resumed or shall subsequently enter into a new Terms
Agreement with either or both of the Agents.
M. Condition to Agency Transactions. Any person
who has agreed to purchase Notes as the result of an
offer to purchase solicited by an Agent shall have the
right to refuse to purchase and pay for such Notes if,
on the related settlement date fixed pursuant to the
Administrative Procedures, (i) there has been, since
the date on which such person agreed to purchase the
Notes (the "Trade Date"), (A) any material adverse
change in the condition, financial or otherwise, or in
the earnings of the Company and its subsidiaries
considered as one enterprise or (B) any adverse
development concerning the Company's business or assets
which would result in a material adverse change in the
prospective financial condition or results of
operations, in either case, whether or not arising in
the ordinary course of business, or (ii) there shall
have occurred any outbreak or material escalation of
hostilities or other calamity or crisis, the effect of
which on the financial markets of the United States is
such as to make it, in the judgment of the purchaser,
impracticable to purchase the Notes, or (iii) trading
in any securities of the Company has been suspended by
the SEC or a national securities exchange, or if
trading generally on the New York Stock Exchange shall
have been suspended, or any limitation on prices for
such trading or any restrictions on the distribution of
securities has been promulgated, by said exchange or by
order of the SEC or any other Federal governmental
authority, or if a general banking moratorium shall
have been declared by either Federal or New York
authorities, or (iv) the rating assigned by any
nationally recognized securities rating agency to any
debt securities of the Company as of the Trade Date
shall have been lowered since that date.
SECTION 5. Conditions of Obligations.
The obligations of each Agent to solicit
offers to purchase the Notes as agent of the Company,
the obligations of any purchasers of the Notes sold
through each Agent as agent, and any obligation of an
Agent to purchase Notes pursuant to a Terms Agreement
or otherwise will be subject to the accuracy of the
representations and warranties on the part of the
Company herein and to the accuracy of the statements of
the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the
performance and observance by the Company of all its
covenants and agreements herein contained and to the
following additional conditions precedent:
A. Legal Opinions. On the date hereof, the
Agents shall have received the following legal
opinions, dated as of the date hereof and in form and
substance satisfactory to the Agents:
(i) Opinion of Company Counsel. The
opinion of Milbank, Tweed, Hadley & McCloy, counsel
to Company, (subject to the reservation that they
have relied upon the opinion of Doerner, Saunders,
Daniel & Anderson, Tulsa, Oklahoma, and upon the
opinion of Wagstaff, Alvis, Stubbeman, Seamster &
Longacre, L.P.P., Abilene, Texas, each counsel
for the Company, as to all matters governed by
Oklahoma and Texas law, respectively), substantially
to the effect set forth in Exhibit B;
(ii) Opinion of Counsel to the Agents.
The opinion of Sidley & Austin, counsel to the
Agents, (subject to the same reservation as that
expressed in subsection (1) of this Section 5(a)),
substantially to the effect set forth in Exhibit
C;
(iii) Opinion of Oklahoma Counsel to the
Company. The opinion of Doerner, Saunders, Daniel &
Anderson, Tulsa, Oklahoma, Oklahoma counsel for the
Company, substantially to the effect set forth in
Exhibit D; and
(iv) Opinion of Texas Counsel to the
Company. The opinion Wagstaff, Alvis, Stubbeman,
Seamster & Longacre, L.P.P., Abilene, Texas, Texas
counsel for the Company, substantially to the
effect set forth in Exhibit E.
B. Officers' Certificate. At the date hereof
the Agents shall have received a certificate of the
President or any Vice President and the chief financial
officer, chief accounting officer, treasurer,
controller or secretary of the Company and dated as of
the date hereof, to the effect that (i) since the
respective dates as of which information is given in
the Registration Statement and the Prospectus or since
the date of any applicable Terms Agreement, there has
been no (A) material adverse change in the condition,
financial or otherwise, or in the earnings of the
Company or (B) adverse development concerning the
Company's business or assets which would result in a
material adverse change in its prospective financial
condition or results of operations, except such changes
as are set forth or contemplated in the Registration
Statement or Prospectus (including financial statements
and notes thereto contained in any document
incorporated by reference therein), (ii) the order of
the OCC referred to in subsection (x) of Section 2 of
this Distribution Agreement is, to the best of the
knowledge of the applicable signers, in full force and
effect, and (iii) to the best of the knowledge of the
applicable signers, no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
initiated or threatened by the SEC.
C. Comfort Letter. On or prior to the date
hereof, the Agents shall have received from Arthur
Anderson LLP a letter confirming that they are
independent public accountants with respect to the
Company within the meaning of the 1933 Act and the
applicable published rules and regulations thereunder
and that the answer to Item 10 of the Registration
Statement is correct insofar as it relates to them and
stating in effect (1) that in their opinion the
financial statements and schedules of the Company
incorporated by
reference in the Registration Statement and
Prospectus and which are stated therein to have been
certified or audited by them, comply as to form, in all
material respects, with the applicable accounting
requirements of the 1933 Act and the published rules
and regulations thereunder; (2) that nothing has come
to their attention which causes them to believe
(A) that any unaudited dollar amounts or ratios which
may appear in the Registration Statement and the
Prospectus under the caption "The Company" were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
financial statements incorporated by reference in the
Registration Statement and the Prospectus; (B) that any
unaudited condensed financial statements of the Company
included in any of the Company's Form 10-Q Quarterly
Reports, which may be incorporated by reference in the
Registration Statement and the Prospectus, do not
comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act and
the applicable published rules and regulations
thereunder, or that material modifications should be
made to such unaudited financial statements for them to
be in conformity with generally accepted accounting
principles; or (C) that, except in all instances as set
forth or contemplated in the Registration Statement or
the Prospectus, (i) at the date of the latest available
unaudited financial statements of the Company read by
them and at a subsequent date, not more than five
business days before the date hereof, there has been
any change in the capital stock or long-term debt of
the Company, as compared with amounts shown in the
latest balance sheet of the Company included or
incorporated by reference in the Registration Statement
and the Prospectus, except for normally scheduled
reductions in the Company's long-term debt, and
(ii) for the period from the date of the latest
financial statements included or incorporated by
reference in the Prospectus to the date of the latest
available interim financial statements read by them and
to the aforementioned date not more than five business
days prior to the Closing Date there was any decrease,
as compared with the corresponding period in the
preceding twelve month period, in the Company's
operating revenues, operating income or net income or
(iii) there was any decrease in the ratio of earnings
to fixed charges for the twelve months ended the date
of such latest available interim financial statements
as compared to such ratio for the twelve months ended
the date of the latest financial statements included or
incorporated by reference in the Prospectus, except as
set forth in such letter, in which latter case the
letter shall be accompanied by an explanation by the
Company as to the significance thereof unless such
explanation is not deemed necessary by the Agents; and
(3) that they have compared certain dollar amounts
designated by the Company and disclosed in the
Registration Statement and Prospectus with such dollar
amounts contained in the general accounting records of
the Company or derived directly from such records by
analysis or computation, and have found such dollar
amounts to be in agreement therewith, except as
otherwise specified in such letter in which latter case
the letter shall be accompanied by an explanation by
the Company as to the significance thereof unless such
explanation is not deemed necessary by the Agents.
The form of letter shall reflect the
inclusion of any financial information filed subsequent
to the date of the Registration Statement, the
incorporation by reference of any subsequently filed
Annual Report on Form 10-K or Quarterly Report on Form
10-Q and/or the inclusion in the Prospectus of any
statistical or financial information.
Subsequent to the respective dates as of
which information is given in the Registration
Statement and the Prospectus, there shall not have been
any change or decrease specified in the letter required
by this subsection (c) which is, in the reasonable
judgment of the Agents, so material and adverse as to
make it impractical or inadvisable to proceed with the
offering or the delivery of the Notes as contemplated
by the Registration Statement and the Prospectus.
D. First Mortgage Bonds. The Company shall have
delivered to the Trustee, as security for the payment
of the principal and interest on the Notes, First
Mortgage Bonds in the same aggregate principal amount
and with the same stated rate, maturity dates and
redemption provisions as the Notes they secure. The
First Mortgage Bonds will be issued by the Company
under its Indenture dated July 1, 1945 between the
Company and Liberty Bank and Trust Company of Tulsa,
National Association, as heretofore amended and
supplemented and as to be further amended and
supplemented by a supplemental indenture or supplement
indentures creating the series in which the First
Mortgage Bonds are to be issued.
E. Other Documents. On the date hereof and on
each Settlement Date with respect to any applicable
Terms Agreement, counsel to the Agents shall have been
furnished with such documents and opinions as such
counsel may reasonably require for the purpose of
enabling such counsel to pass upon the issuance and
sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and
completeness of any of the representations and
warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken
by the Company in connection with the issuance and sale
of Notes as herein contemplated shall be reasonably
satisfactory in form and substance to the Agents and to
counsel to the Agents.
If any condition specified in this Section 5 shall
not have been (i) fulfilled when and as required to be
fulfilled or (ii) waived by the applicable Agent or
Agents, this Agreement (or, at the option of the
applicable Agent, any applicable Terms Agreement) may
be terminated by the Agents by notice to the Company at
any time and any such termination shall be without
liability of any party to any other party, except that
the covenant regarding provision of an earnings
statement set forth in Section 4(h) hereof, the
provisions concerning payment of expenses under
Section 10 hereof, the indemnity and contribution
agreement set forth in Sections 8 and 9 hereof, the
provisions concerning the representations, warranties
and agreements to survive delivery of Section 11 hereof
and the provisions set forth under "Parties" of Section
15 hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold
through the Agents.
Delivery of Notes sold through an Agent as agent
shall be made by the Company to such Agent for the
account of any purchaser only against payment therefor
in immediately available Federal funds. In the event
that a purchaser shall fail either to accept delivery
of or to make payment for a Note on the date fixed for
settlement, the applicable Agent shall promptly notify
the Company and deliver the Note to the Company, and,
if such Agent has theretofore paid the Company for such
Note, the Company will promptly return such funds to
such Agent. If such failure occurred for any reason
other than default by such Agent in the performance of
its obligations hereunder, the Company will reimburse
such Agent on an equitable basis for its loss of the
use of the funds for the period such funds were
credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with the
Agents that:
A. Reaffirmation of Representations and
Warranties. Each acceptance by the Company of an offer
for the purchase of Notes, and each delivery of Notes
to the applicable Agent pursuant to a Terms Agreement,
shall be deemed to be an affirmation that the
representations and warranties of the Company contained
in this Agreement and in any certificate theretofore
delivered to the Agents pursuant hereto are true and
correct at the time of such acceptance or sale, as the
case may be, and the Company will use its best efforts
to undertake that such representations and warranties
will be true and correct at the time of delivery to the
purchaser or his agent, or to the Agents, of the Note
or Notes relating to such acceptance or sale, as the
case may be, as though made at and as of each such time
(and it is understood that such representations and
warranties shall relate to the Registration Statement,
Prospectus and any such certificate as amended and
supplemented to each such time).
B. Subsequent Delivery of Certificates. Each
time that the Registration Statement or the Prospectus
shall be amended or supplemented (other than by an
amendment or supplement providing solely for a change
in the interest rates of Notes or similar changes, and,
unless the Agents shall otherwise specify, other than
by an amendment or supplement which relates exclusively
to an offering of debt securities other than the Notes
and other than by a pricing supplement) or there is
filed with the SEC any document incorporated by
reference into the Prospectus unless waived by the
Agents (other than any Current Report on Form 8-K) or
(if required pursuant to the terms of a Terms
Agreement) the Company sells Notes to an Agent pursuant
to a Terms Agreement, the Company shall furnish or
cause to be furnished to the Agents forthwith a
certificate dated the date of filing with the SEC of
such supplement or document, the date of effectiveness
of such amendment, or the date of such sale, as the
case may be, in form reasonably satisfactory to the
Agents to the effect that the statements contained in
the certificate referred to in Section 5(b) hereof
which was last furnished to the Agents is true and
correct at the time of such amendment, supplement,
filing or sale, as the case may be, as though made at
and as of such time (except that such statements shall
be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to such
time) or, in lieu of such certificate, a certificate of
the same tenor as the certificate referred to in said
Section 5(b), modified as necessary to relate to the
Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such
certificate.
C. Subsequent Delivery of Legal Opinions. Each
time that the Registration Statement or the Prospectus
shall be amended or supplemented (other than by an
amendment or supplement providing solely for a change
in the interest rates of the Notes or similar changes
or solely for the inclusion of additional financial
information, and, unless the Agents shall otherwise
specify, other than by an amendment or supplement which
relates exclusively to an offering of debt securities
other than the Notes and other than by a pricing
supplement) or there is filed with the SEC any document
incorporated by reference into the Prospectus unless
waived by the Agents (other than any Current Report on
Form 8-K or Quarterly Report on Form 10-Q), or (if
required pursuant to the terms of a Terms Agreement)
the Company sells Notes to an Agent pursuant to a Terms
Agreement, the Company shall furnish or cause to be
furnished forthwith to the Agents and to counsel to the
Agents the written opinions of each of Milbank, Tweed,
Hadley & McCloy, counsel to the Company, Doerner,
Saunders, Daniel & Anderson, Oklahoma counsel to the
Company, and Wagstaff, Alvis, Stubbeman, Seamster &
Longacre, L.L.P., Texas counsel to the Company, or
other counsel satisfactory to the Agents dated the date
of filing with the SEC of such supplement or document,
the date of effectiveness of such amendment, or the
date of such sale, as the case may be, in form and
substance reasonably satisfactory to the Agents, of the
same tenor as the respective opinions referred to in
Sections 5(a)(1), 5(a)(3) and 5(a)(4) hereof, but
modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion;
or, in lieu of such opinion, counsel last furnishing
such opinion to the Agents shall furnish the Agents
with a letter to the effect that the Agents may rely on
such last opinion to the same extent as though it was
dated the date of such letter authorizing reliance
(except that statements in such last opinion shall be
deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of
delivery of such letter authorizing reliance).
D. Subsequent Delivery of Comfort Letters. Each
time that the Registration Statement or the Prospectus
shall be amended or supplemented to include additional
financial information or there is filed with the SEC
any document incorporated by reference into the
Prospectus which contains additional financial
information unless waived by the Agents (other than in
a pricing supplement or Current Report on Form 8-K) or,
(if required pursuant to the terms of a Terms
Agreement) the Company sells Notes to an Agent pursuant
to a Terms Agreement, the Company shall cause Arthur
Andersen LLP forthwith to furnish the Agents a letter,
dated the date of effectiveness of such amendment,
supplement or document with the SEC , or the date of
such sale, as the case may be, in form reasonably
satisfactory to the Agents, of the same tenor as the
portions of the letter referred to in clauses (i) and
(ii) of Section 5(c) hereof but modified to relate to
the Registration Statement and Prospectus, as amended
and supplemented to the date of such letter, and of the
same general tenor as the portions of the letter
referred to in clauses (iii) and (iv) of said Section
5(c) with such changes as may be necessary to reflect
changes in the financial statements and other
information derived from the accounting records of the
Company; provided, however, that if the Registration
Statement or the Prospectus is amended or supplemented
solely to include financial information as of and for a
fiscal quarter, Arthur Andersen LLP may limit the scope
of such letter to the unaudited financial statements
included in such amendment or supplement unless any
other information included therein of an accounting,
financial or statistical nature is of such a nature
that, in the reasonable judgment of the Agents, such
letter should cover such other information.
SECTION 8. Indemnification.
a. The Company agrees to indemnify and hold
harmless each of the Agents and each person, if any,
who controls each of the Agents within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934
Act, from and against any and all losses, claims,
damages or liabilities, joint or several, to which such
Agent or controlling person may become subject under
the 1933 Act, the 1934 Act or the common law or
otherwise, and to reimburse each such Agent or such
controlling person for any reasonable legal or other
expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by it or
them in connection with defending against any such
losses, claims, damages or liabilities, arising out of
or based upon any untrue statement or alleged untrue
statement of a material fact contained in the
Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any
amendments or supplements thereto), or any omission or
alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading; provided, however,
that the indemnity agreement contained in this
subsection (a) shall not apply to any such losses,
claims, damages or liabilities arising out of or based
upon (i) any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if
such statement or omission was made in reliance upon
and in conformity with information furnished in writing
to the Company by any of the Agents for use in the
Registration Statement or the Prospectus or any
amendment or supplement to either thereof, (ii) any
statement made in the Form T-1 filed by the Trustee as
an exhibit to the Registration Statement or (iii) the
failure of any Agent to deliver a copy of the
Prospectus (excluding any documents incorporated by
reference), or of the Prospectus as amended or
supplemented after it shall have been amended or
supplemented by the Company (excluding any documents
incorporated by reference), to any person to whom a
copy of any preliminary prospectus shall have been
delivered by or on behalf of such Agent to whom any
Notes shall have been sold by such Agent, as such
delivery may be required by the 1933 Act and the rules
and regulations of the Commission thereunder.
b. Each of the Agents agrees to indemnify and
hold harmless the Company, each of its officers who
signs the Registration Statement, each of its
directors, each person who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act, each other Agent and each person, if
any, who so controls any such other Agent, from and
against any and all losses, claims, damages or
liabilities, joint or several, to which any one or more
of them may become subject under the 1933 Act, the 1934
Act or the common law or otherwise, and to reimburse
each of them for any reasonable legal or other expenses
(including, to the extent hereinafter provided,
reasonable counsel fees) incurred by them in connection
with defending against any such losses, claims, damages
or liabilities of the character above specified arising
out of or based upon (i) any untrue statement or
alleged untrue statement of a material fact contained
in the Registration Statement or the Prospectus or any
amendment to the Registration Statement or the
Prospectus or amendment or supplement to the Prospectus
or upon any omission or alleged omission to state in
any thereof a material fact required to be stated
therein or necessary to make the statements therein not
misleading if such statement or omission was made in
reliance upon and in conformity with information
furnished in writing to the Company by such Agent for
use in the Registration Statement or the Prospectus or
any amendment or supplement to either thereof, or
(ii) the failure of such Agent to deliver (either
directly or through the Managers) a copy of the
Prospectus (excluding any documents incorporated by
reference), or of the Prospectus as amended or
supplemented after it shall have been amended or
supplemented by the Company (excluding any documents
incorporated by reference), to any person to whom a
copy of any preliminary prospectus shall have been
delivered by or on behalf of such Agent and to whom any
Notes shall have been sold by or through such Agent, as
such delivery may be required by the 1933 Act and the
rules and regulations of the Commission thereunder.
c. Promptly after receipt by a party indemnified
under this Section 8 (an "indemnified party") of notice
of the commencement of
any action, such indemnified party will, if a claim in
respect thereof is to be made against a party granting
an indemnity under this Section 8 (the "indemnifying
party"), notify the indemnifying party in writing of
the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any
liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such
action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may
elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense
thereof (thereby conceding that the action in question
is subject to indemnification by the indemnifying party
hereunder), with counsel satisfactory to such
indemnified party; provided, however, that if the
defendants in any such action include both the
indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or
other indemnified parties which are different from or
additional to those available to the indemnifying
party, the indemnified party or parties shall have the
right to select separate counsel to assert and conduct
such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified
party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its
election so to assume the defense of such action and
approval by the indemnified party of counsel, the
indemnifying party will not be liable to such
indemnified party under this Section for any legal or
other expenses subsequently incurred by such
indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have
employed separate counsel in connection with the
assertion of legal defenses in accordance with the
proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall
not be liable for the expenses of more than one
separate counsel, approved by the Agents in the case of
subsection (a), representing the indemnified parties
under subsection (a) who are parties to such action),
(ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable
time after notice of commencement of this action or
(iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall
be only in respect of the counsel referred to in such
clause (i) or (iii).
d. If the indemnification provided for in this
Section 8 shall be unenforceable under applicable law
by an indemnified party, the indemnifying party agrees
to contribute to such indemnified party with respect to
any and all losses, claims, damages and liabilities for
which such indemnification provided for in this Section
8 shall be unenforceable, in such proportion as shall
be appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified
party on the other in connection
with the statements or omissions which have resulted in
such losses, claims, damages and liabilities, as well
as any other relevant equitable considerations;
provided, however, that no indemnified party guilty of
fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to
contribution from the indemnifying party if the
indemnifying party is not guilty of such fraudulent
misrepresentation. Relative fault shall be determined
by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact
relates to information supplied by the indemnifying
party or the indemnified party and each such party's
relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement
or omission. The Company and each of the Agents agree
that it would not be just and equitable if
contributions pursuant to this subparagraph were to be
determined solely by pro rata allocation or by any
other method of allocation which does not take account
of the equitable considerations referred to above.
e. The indemnity and contribution agreements
contained in this Section 8 and the representations and
warranties of the Company in the Distribution Agreement
shall remain operative and in full force regardless of
(i) any termination of the Distribution Agreement,
(ii) any investigation made by or on behalf of any
Agent or any person controlling any Agent or by or on
behalf of the Company, its directors or officers or any
person controlling the Company and (iii) delivery of
and payment for any of the Notes.
SECTION 9. Payment of Expenses.
The Company will pay all expenses incident to the
performance of its obligations under this Agreement,
including:
A. The preparation and filing of the
Registration Statement and all amendments thereto and
the Prospectus and any amendments or supplements
thereto;
B. The preparation, filing and reproduction of
this Agreement;
C. The preparation, printing, issuance and
delivery of the Notes, including any fees and expenses
relating to the use of book-entry notes;
D. The fees and disbursements of the Company's
accountant and counsel, of the Trustee and its counsel
and of any calculation agent;
E. The reasonable fees and disbursements of
counsel to the Agents incurred from time to time in
connection with the transactions contemplated hereby;
F. The qualification of the Notes and the First
Mortgage Bonds under state securities laws in
accordance with the provisions of Section 4(i) hereof,
including filing fees and the reasonable fees and
disbursements of counsel for the Agents in connection
therewith and in connection with the preparation of any
Blue Sky Survey and any Legal Investment Survey, not
exceeding, however, $5,000 in the aggregate;
G. The printing and delivery to the Agents in
quantities as hereinabove stated of copies of the
Registration Statement and any amendments thereto, and
of the Prospectus and any amendments or supplements
thereto, and the delivery by the Agents of the
Prospectus and any amendments or supplements thereto in
connection with solicitations or confirmations of sales
of the Notes;
H. The preparation, printing, reproducing and
delivery to the Agents of copies of the Indenture and
all supplements and amendments thereto;
I. Any fees charged by rating agencies for the
rating of the Notes;
J. The fees and expenses, if any, incurred with
respect to any filing with the National Association of
Securities Dealers, Inc.;
K. Any advertising and other out-of-pocket
expenses of the Agents incurred with the written
approval of the Company;
L. The cost of preparing, and providing any
CUSIP or other identification numbers for, the Notes
and the First Mortgage Bonds;
M. The fees and expenses of any Depositary (as
defined in the Indenture) and any nominees thereof in
connection with the Notes; and
N. The fees and expenses, if any, incurred in
connection with any filing with or approval by the OCC
in connection with the issuance of the Notes and the
First Mortgage Bonds.
SECTION 10. Representations, Warranties and
Agreements to Survive Delivery.
All representations, warranties and
agreements contained in this Agreement or in
certificates of officers of the Company submitted
pursuant hereto or thereto, shall remain operative and
in full force and effect, regardless of any
investigation made by or on behalf of the Agents or any
controlling person of any Agent, or by or on behalf of
the Company, and shall survive each delivery of and
payment for any of the Notes.
SECTION 11. Termination.
A. Termination of this Agreement. This
Agreement (excluding any Terms Agreement) may be
terminated for any reason, at any time by either the
Company or an Agent upon the giving of three business
days' written notice of such termination to the other
party hereto.
B. Termination of a Terms Agreement. The
applicable Agent may terminate any Terms Agreement to
which it is a party, immediately upon notice to the
Company, at any time prior to the Settlement Date
relating thereto (i) there shall have occurred any
outbreak or material escalation of hostilities or other
calamity or crisis, the effect of which on the
financial markets of the United States is such as to
make it, in the judgment of the Agents, impracticable
to purchase the Notes, or (ii) trading in any
securities of the Company has been suspended by the SEC
or a national securities exchange, or if a general
banking moratorium shall have been declared by either
Federal or New York authorities, or (iii) the rating
assigned by any nationally recognized securities rating
agency to any debt securities of the Company as of the
Purchase Date shall have been lowered since that date,
or (iv) if there shall have come to the applicable
Agent's attention any facts that would cause such Agent
to believe that the Prospectus, at the time it was
required to be delivered to a purchaser of Notes,
contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to
make the statements therein, in light of the
circumstances existing at the time of such delivery,
not misleading, provided, however, the Agent may only
terminate such Terms Agreement pursuant to this Section
12(b)(v) if the Agent gives written notice to the
Company of such Agent's intention to terminate such
Terms Agreement pursuant to this Section 12(b)(v)
(setting forth in reasonable detail the Agent's reason
for such termination) and the Company fails, in the
reasonable opinion of the Agent, to correct any such
untrue statement in or omission from the Prospectus
prior to such Settlement Date.
C. General. In the event of any such
termination, neither party will have any liability to
the other party hereto, except that (i) each Agent
shall be entitled to any commission earned in
accordance with the third paragraph of Section 3(a)
hereof, (ii) if at the time of termination (a) each
Agent shall own any Notes purchased pursuant to a Terms
Agreement with the intention of reselling them or (b)
an offer to purchase any of the Notes has been accepted
by the Company but the time of delivery to the
purchaser or his agent of the Note or Notes relating
thereto has not occurred, the covenants set forth in
Sections 4 and 7 hereof shall remain in effect until
such Notes are so resold or delivered, as the case may
be, and (iii) the covenant set forth in Section 4(h)
hereof, the provisions of Section 5 hereof, the
indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, and the provisions of Sections
11 and 15 hereof shall remain in effect.
SECTION 12. Notices.
Unless otherwise provided herein, all notices
required under the terms and provisions hereof shall be
in writing, either delivered by hand, by mail or by
telex, telecopier or telegram, and any such notice
shall be effective when received at the address
specified below.
If to the Company:
Public Service Company of Oklahoma
212 East Sixth Street
Tulsa, Oklahoma 74119-1212
Attention: Robert L. Zemanek, President
and Chief Executive Officer
Telephone: (918) 599-2000
Telecopy: (918) 599-3220
with a copy to:
Stephen D. Wise
Director, Finance
Central and South West Corporation
1616 Woodall Rogers Freeway
Dallas, Texas 75202
Telephone: (214) 777-1000
Telecopy: (214) 777-1223
If to Smith Barney:
Smith Barney Inc.
390 Greenwich Street, 4th Floor
New York, New York 10013
Attention: MTN Product Management, Mark Meyer
Telephone: (212) 723-5123
Telecopy: (212) 723-8853
If to Morgan Stanley:
Morgan Stanley & Co. Incorporated
1585 Broadway - 2nd Floor
New York, New York 10036
Attention: Manager - Continuously Offered Products
Telephone: (212) 761-4000
Telecopy: (212) 761-0780
with a copy to:
Morgan Stanley & Co. Incorporated
1585 Broadway - 34th Floor
New York, New York 10036
Attention: Peter Cooper - Investment Banking
Information Center
Telephone: (212) 761-8385
Telecopy: (212) 761-0260
or at such other address as such party may designate
from time to time by notice duly given in accordance
with the terms of this Section 12.
SECTION 14. Governing Law.
This Agreement and all the rights and obligations
of the parties shall be governed by and construed in
accordance with the laws of the State of New York
applicable to agreements made and to be performed in
the State of New York. Any suit, action or proceeding
brought by the Company against the Agents in connection
with or arising under this Agreement shall be brought
solely in the state or federal court of appropriate
jurisdiction located in the Borough of Manhattan, The
City of New York.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and
be binding upon the Agents and the Company and their
respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the
parties hereto and their respective successors and the
controlling persons and officers and directors referred
to in Sections 8 and 9 and their heirs and legal
representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all
conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the parties hereto
and their respective successors and said controlling
persons and officers and directors and their heirs and
legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Notes
shall be deemed to be a successor by reason merely of
such purchase.
If the foregoing is in accordance with the Agents'
understanding of our agreement, please sign and return
to the Company a counterpart hereof, whereupon this
instrument along with all counterparts will become a
binding agreement between the Agents and the Company in
accordance with its terms.
Very truly yours,
PUBLIC SERVICE COMPANY OF OKLAHOMA
By:
Name:
Title:
Accepted:
SMITH BARNEY INC.
By: ________________________________
Name:
Title:
MORGAN STANLEY & CO. INCORPORATED
By: ________________________________
Name:
Title:
EXHIBIT A
The following terms, if applicable, shall be
agreed to by the applicable Agent and the Company
pursuant to each Terms Agreement:
Principal Amount: $_______
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread or Spread Multiplier, if any:
Interest Rate Reset Month(s):
Interest Payment Month(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Interest Payment Date:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
Date of Maturity:
Purchase Price: ___%
Settlement Date and Time:
Stand-off Period (if any):
Additional Terms:
Also, agreement as to whether the following will be
required:
Officer's Certificate pursuant to Section 7(b)
of the Distribution Agreement.
Legal Opinion pursuant to Section 7(c)of the
Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the
Distribution Agreement.
Stand-off Agreement pursuant to Section 4(k) of the
Distribution Agreement.
SCHEDULE A
As compensation for the services of the Agents
hereunder, the Company shall pay the applicable Agent,
on a discount basis, a commission for the sale of each
Note equal to the principal amount of such Note
multiplied by the appropriate percentage set forth
below:
PERCENT OF MATURITY RANGES
PRINCIPAL AMOUNT
From 9 months but less than 1 year............. .145%
From 1 year but less than 18 months............ .170
From 18 months but less than 2 years........... .220
From 2 years but less than 3 years............. .290
From 3 years but less than 4 years............. .410
From 4 years but less than 5 years............. .530
From 5 years but less than 6 years............. .600
From 6 years but less than 7 years............. .650
From 7 years but less than 10 years............ .700
From 10 years but less than 15 years........... .725
From 15 years but less than 20 years........... .800
From 20 years to and including 30 years......... .850
More than 30 years ............................. *
* Commission on Notes with maturities of 30 years or
more shall be agreed to by the Company and the
applicable Agent at the time of such transmission.
EXHIBIT B
[FORM OF OPINION OF COMPANY COUNSEL
February 26, 1996
Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York 10036
Re: Public Service Company of Oklahoma
$75,000,000 Medium-Term Notes, Series A
Ladies and Gentlemen:
We have acted as special counsel for Public
Service Company of Oklahoma, an Oklahoma corporation
(the "Company"), in connection with the transactions
contemplated by the Distribution Agreement dated
February 26, 1996 (the "Distribution Agreement"),
between you and the Company, relating to the proposed
issuance and sale from time to time by the Company of
up to $75,000,000 aggregate principal amount of its
Medium-Term Notes, Series A (the "Notes") under its
Indenture dated as of February 1, 1996, to Liberty Bank
and Trust Company of Tulsa, National Association, as
Trustee (the "Note Trustee"), as supplemented by a
Supplemental Indenture thereto dated as of February 1,
1996 (said Indenture as so supplemented being herein
referred to as the "Indenture").
We have examined originals, or copies
certified to our satisfaction, of all such corporate
records of the Company, indentures, agreements and
other instruments, certificates of public officials,
certificates of officers and representatives of the
Company and other documents as we have deemed it
necessary to require as a basis for the opinions
hereinafter expressed. In our examination we have
assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as
originals and the conformity with the originals of all
documents submitted to us as copies and the
authenticity of the originals of such latter documents.
As to various questions of fact material to such
opinions we have, when relevant facts were not
independently established, relied upon certifications
by officers of the Company and other appropriate
persons and statements contained in the Registration
Statement hereinafter mentioned.
Based upon the foregoing, and having regard
to legal considerations which we deem relevant, we are
of the opinion that:
1. The Company is a corporation validly
existing under the laws of the State of Oklahoma.
2. The Distribution Agreement has been duly
authorized, executed and delivered by the Company.
3. Each of the Indenture and the Indenture
dated as of July 1, 1945, as supplemented by
several supplemental indentures, including a
Supplemental Indenture dated as of February 1,
1996 (said Indenture as so supplemented being
hereinafter called the "First Mortgage
Indenture"), under which Liberty Bank and Trust
Company of Tulsa, National Association, is Trustee
(the "First Mortgage Trustee"), has been duly and
validly authorized by the necessary corporate
action by the Company, has been duly and validly
executed and delivered by the Company and is a
valid and binding obligation of the Company
enforceable against the Company in accordance with
its terms, subject, however, to the fact that
certain of the remedial provisions thereof may be
limited or rendered unenforceable by applicable
laws, including the laws of the States wherein the
mortgaged property is situated (but said laws do
not, in our opinion, make the remedies afforded by
the Indenture and the First Mortgage Indenture
inadequate for the realization of the benefits of
the security provided thereby) and except (a) as
enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other
similar laws of general applicability affecting
the enforcement of creditors' rights, and (b) that
such enforceability may be limited by the
application of general principles of equity
(regardless of whether considered in a proceeding
in equity or at law), including without limitation
(i) the possible unavailability of specific
performance, injunctive relief or any other
equitable remedies and (ii) concepts of
materiality, reasonableness, good faith and fair
dealing.
4. The issue and sale of the Notes and the
issuance and delivery by the Company of the First
Mortgage Bonds (the "First Mortgage Bonds") under
the First Mortgage Indenture to the Note Trustee
as collateral for the Notes in accordance with the
terms of the Indenture have been duly and validly
authorized by the Company by the resolutions
adopted by the Board of Directors on January 16,
1996 (the "Board Resolutions"). The Notes, when
duly executed, authenticated, completed and
delivered to and paid for by the purchasers
thereof as contemplated by and in accordance with
the Indenture, the Board Resolutions and the Order
(as defined in paragraph 6 below) and the First
Mortgage Bonds, when duly executed, authenticated,
completed and delivered to the Note Trustee as
contemplated by and in accordance with the First
Mortgage Indenture, the Board Resolutions and the
Order will be (subject to the qualifications
stated in paragraph 3 above) valid and binding
obligations of the Company, entitled to the
benefit of the Indenture in the case of the Notes,
and secured, in the case of the First Mortgage
Bonds, by the lien of and entitled to the benefits
of the First Mortgage Indenture.
5. The Notes and the Indenture and the First
Mortgage Bonds and First Mortgage Indenture,
conform as to legal matters, in all material
respects, with the statements concerning them made
in the Prospectus dated February 23, 1996 (the
"Base Prospectus") under the caption "Description
of the Senior Notes" and "Description of the
Senior Note Mortgage Bonds" and in the Prospectus
Supplement dated February 26, 1996 (the
"Prospectus Supplement", and together with the
Base Prospectus, the "Prospectus") under the
caption "Description of the Notes" and such
statements accurately set forth, in all material
respects, the matters respecting the Notes and the
Indenture and the First Mortgage Bonds and First
Mortgage Indenture, which are required to be set
forth in the Prospectus, as supplemented by the
Prospectus Supplement, by the Securities Act of
1933, as amended (the "Securities Act"), and the
Trust Indenture Act of 1939, as amended (the
"TIA"), and the rules and regulations under said
Acts (other than the accounting provisions
thereof, with respect to the requirements of which
we express no opinion or belief); and each of the
Indenture and the First Mortgage Indenture has
been qualified under the TIA.
6. The order (the "Order") of the Oklahoma
Corporation Commission (the "Oklahoma Commission")
referred to in subsection (a)(xi)(i) of Section 2
of the Distribution Agreement has been duly
entered and, to the best of our knowledge, is in
full force and effect.
7. The Company is exempt in accordance with
Rule 52 under the Public Utility Holding Company
Act of 1935, as amended, from the requirement for
an order of the Securities and Exchange Commission
(the "Commission") under said Act with respect to
the issue and sale of the Notes and the issue and
delivery of the First Mortgage Bonds.
8. Except for the order of the Commission
entered with respect to the Registration Statement
as contemplated in paragraph 9 below, no approval,
authorization, consent, certificate or order of
any Federal commission or regulatory authority is
necessary with respect to the execution and
delivery of the Indenture and the First Mortgage
Indenture, the issue and sale of the Notes, or the
issue and delivery of the First Mortgage Bonds by
the Company as contemplated in the Distribution
Agreement.
9. The Registration Statement on Form S-3
with respect to the Notes (Registration No. 333-
00973) (the "Registration Statement") has become
effective under the Securities Act, and, to the
best of our knowledge, no stop order suspending
the effectiveness of the Registration Statement
has been issued and no proceedings for such
purpose have been instituted or are pending or
threatened under the Securities Act.
10. The Registration Statement, the
Prospectus and the Prospectus Supplement, in each
case including the Incorporated Documents (as
defined below) (other than financial statements,
financial data, statistical data and supporting
schedules included or incorporated by reference
therein, as to which we express no opinion or
belief) as of their respective effective, issue or
filing dates appear on their face to be
appropriately responsive in all material respects
to the requirements of the Securities Act (or,
where appropriate, the Securities Exchange Act of
1934, as amended) and the rules and regulations of
the Commission thereunder.
We have made no examination and express no
opinion as to the Company's title to any of its
property, as to the existence of any liens, charges or
encumbrances thereon (other than the lien of the First
Mortgage Indenture), or as to the filing or recording
of the Indenture or First Mortgage Indenture, and to
the extent that the opinions hereinabove expressed
involve such matters, we have examined and relied upon
the below-mentioned opinions of counsel for the
Company.
The Registration Statement was filed on Form
S-3 under the Securities Act and, accordingly, the
Prospectus does not necessarily contain a current
description of the Company's business and affairs since
Form S-3 provides for the incorporation by reference of
certain documents filed with the Commission which
contain descriptions as of various dates. We
participated in the preparation of the Registration
Statement and the Prospectus and we have reviewed
certain documents filed by the Company under the
Exchange Act, which are incorporated by reference in
the Prospectus (such documents listed in the Prospectus
as being incorporated by reference are herein called
the "Incorporated Documents"). Although we have not
independently verified the accuracy, completeness or
fairness of the statements contained therein or in the
Incorporated Documents, none of the foregoing disclosed
to us any information which gave us reason to believe
that the Registration Statement, the Prospectus or the
Incorporated Documents, considered as a whole on the
respective effective date of the Registration Statement
and on the date hereof, contained or contain any untrue
statement of a material fact or omitted or omit to
state a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading. We express no opinion as to any document
filed by the Company under the Exchange Act, whether
prior or subsequent to such effective date, except to
the extent that such documents are Incorporated
Documents read together with the Registration Statement
or the Prospectus and considered as a whole, nor do we
express any opinion as to the operating statistics,
financial statements or other financial data included
in or omitted from, or incorporated by reference in,
the Registration Statement, the Prospectus or the
Incorporated Documents.
In rendering the opinion set forth in
paragraph 4 above, we have necessarily assumed that, at
the time of any issuance, sale and delivery of each
Note, (a) the authorization of the Notes will not have
been modified or rescinded and there will not have
occurred any change in the law affecting the validity
or enforceability of such Note and that each Note will
conform to the draft form of the Notes examined by us
and that the issuance and delivery of such Note, and
the compliance by the Company with the terms of such
Note, will not violate any applicable law, or result in
a violation of the Company's certificate of
incorporation or by-laws, any instrument or agreement
then binding upon the Company, or any restriction
imposed by any court or governmental body having
jurisdiction over the Company and (b) the order of the
Oklahoma Commission referred to in paragraph 6 above is
in full force and effect and has not been modified or
amended by the Oklahoma Commission, and the Company is
in compliance therewith.
In rendering the opinions hereinabove
expressed, we have relied, to the extent pertinent,
with your permission upon the opinions of even date
hereof, delivered to you concurrently herewith, of
Messrs. Doerner, Saunders, Daniel & Anderson, Tulsa,
Oklahoma, and Messrs. Wagstaff, Alvis, Stubbeman,
Seamster & Longacre, L.L.P., Abilene, Texas, special
counsel in the State of Texas for the Company, as to
matters governed by Oklahoma and Texas law,
respectively, and as to such matters, the opinions
hereinabove expressed are subject to all
qualifications, limitations, assumptions and reliances,
and other considerations, therein set forth.
We do not express any opinion as to matters
governed by any laws other than the laws of the State
of New York, the Federal laws of the United States of
America and, to the extent hereinabove stated, in
reliance on said opinions of said counsel for the
Company, the laws of the States of Oklahoma and Texas.
Very truly yours,
RBW/DBB
EXHIBIT C
[FORM OF OPINION OF COUNSEL TO THE AGENTS]
February 26, 1996
Smith Barney Inc.
390 Greenwich Street, 5th Floor
New York, New York 10013
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Re: $75,000,000 Aggregate
Principal Amount
of Medium-Term Notes, Series A
Ladies and Gentlemen:
This opinion is addressed to you as the
agents (the "Agents") named in the Distribution
Agreement dated February 26, 1996 (the "Distribution
Agreement") between Public Service Company of Oklahoma,
an Oklahoma corporation (the "Company"), and each of
the Agents relating to the offer and sale from time to
time of up to $75,000,000 aggregate principal amount of
the Company's Medium-Term Notes, Series A (the
"Notes"). The Notes will be issued pursuant to the
indenture dated as of February 1, 1996, as supplemented
by the First Supplemental Indenture dated as of
February 1, 1996 thereto (collectively, the
"Indenture"), between the Company and Liberty Bank and
Trust Company of Tulsa, National Association, as
trustee (the "Trustee"). Until the Release Date (as
defined in the Indenture), the Notes will be secured as
to payment of principal and interest by one or more
series of First Mortgage Bonds (the "First Mortgage
Bonds") pledged and delivered by the Company to the
Trustee. The First Mortgage Bonds will be issued
pursuant to the provisions of the Company's Indenture
dated July 1, 1945, as amended and supplemented to the
date hereof (collectively, the "First Mortgage
Indenture") as the same may from time to time hereafter
be amended or supplemented, to Liberty Bank and Trust
Company of Tulsa, National Association, as trustee.
Capitalized terms not defined herein have the meanings
set forth in the Distribution Agreement.
As special counsel for the Agents, we have,
among other things, participated with officers and
representatives of the Company, including its counsel
and independent public accountants, and representatives
of the Agents in the preparation of the Company's
Registration Statement on Form S-3 (Registration No.
333-00973), filed on February 15, 1996 with the
Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the
"Act"), which registration statement was declared
effective by the Commission on February 23, 1996. Such
registration statement (including all materials
incorporated by reference therein pursuant to Item 12
of Form S-3 under the Act at the date hereof (the
"Incorporated Documents")) is hereinafter referred to
as the "Registration Statement." The Company's
Prospectus dated February 23, 1996 (including the
Incorporated Documents) included in the Registration
Statement (the "Prospectus"), as supplemented by the
Prospectus Supplement dated February 26, 1996 (the
"Prospectus Supplement") relating to the Notes, is
hereinafter referred to collectively as the "Final
Prospectus."
Pursuant to the requirement of Section
5(a)(2) of the Distribution Agreement, this will advise
you that in the opinion of the undersigned:
(1) Each of the Indenture and the First
Mortgage Indenture has been duly and validly authorized
by the necessary corporate action by the Company, has
been duly and validly executed and delivered by the
Company and is the valid and binding obligation of the
Company enforceable against the Company in accordance
with its terms, subject, as to enforcement, (x) to the
fact that certain of the remedial provisions thereof
may be limited or rendered unenforceable by laws of the
States wherein the mortgaged property is situated (but
said laws do not, in our opinion, make the remedies
afforded by the Indenture and the First Mortgage
Indenture inadequate for the realization of the
benefits of the security provided thereby) and (y) to
bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting the
enforcement of creditors' rights generally; to the
effects of the provisions of the Bankruptcy Reform Act
of 1978, as amended, on the validity of the lien of the
First Mortgage Indenture with respect to the property
acquired or proceeds realized by the Company after the
commencement of bankruptcy proceedings with respect to
the Company; and to the effects of general principles
of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law);
(2) The issue and sale of the Notes and the
issue and delivery of the First Mortgage Bonds by the
Company in accordance with the terms of the
Distribution Agreement have been duly and validly
authorized by the Company. The Notes, when duly
executed, authenticated and delivered against payment
of the agreed consideration therefor and the First
Mortgage Bonds, when duly executed, authenticated and
delivered, in each case in accordance with the terms of
the Distribution Agreement, will be valid and binding
obligations of the Company, secured, in the case of the
First Mortgage Bonds, by the lien of and entitled to
the benefits of the First Mortgage Indenture, subject,
as to enforcement, (i) to the fact that certain of the
remedial provisions thereof may be limited or rendered
unenforceable by the laws of the States wherein the
mortgaged property is situated (but said laws do not,
in our opinion, make the remedies afforded by the
Indenture and the First Mortgage Indenture inadequate
for the realization of the benefits of the security
provided thereby) and (ii) to bankruptcy, insolvency,
reorganization, moratorium or other similar laws
relating to or affecting the enforcement of creditors'
rights generally; to the effects of the provisions of
the Bankruptcy Reform Act of 1978, as amended, on the
validity of the lien of the First Mortgage Indenture
with respect to the property acquired or proceeds
realized by the Company after the commencement of
bankruptcy proceedings with respect to the Company; and
to the effects of general principles of equity
(regardless of whether enforceability is considered in
a proceeding in equity or at law);
(3) The Notes and the Indenture and the
First Mortgage Bonds and the First Mortgage Indenture
conform as to legal matters, in all material respects,
with the statements concerning them made in the
Prospectus under the captions "Description of Senior
Notes" and "Description of Senior Note Mortgage Bonds"
and in the Prospectus Supplement under the caption
"Description of the Notes" and such statements
accurately set forth, in all material respects, the
matters respecting the Notes and the Indenture and the
First Mortgage Bonds and the First Mortgage Indenture
which are required to be set forth in the Final
Prospectus by the Act and the Trust Indenture Act of
1939, as amended (the "1939 Act"), and the rules and
regulations under said Acts (other than the accounting
provisions thereof, with respect to the requirements of
which we need express no opinion or belief); and each
of the Indenture and the First Mortgage Indenture has
been qualified under the 1939 Act;
(4) The Registration Statement has become
effective under the Act, and, to our knowledge, no stop
order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for such
purpose have been instituted or are pending or
threatened under the Act;
(5) The Registration Statement, the
Prospectus and the Prospectus Supplement (other than
the financial statements, financial data, statistical
data and supporting schedules included or incorporated
by reference therein, as to which we express no opinion
or belief), in each case excluding the Incorporated
Documents, as of their respective effective or issue
dates, complied as to form, in all material respects,
with the requirements of the Act and the rules and
regulations thereunder; and
(6) The Distribution Agreement has been duly
authorized, executed and delivered by the Company.
We have made no examination and express no
opinion as to the Company's title to any of its
property, as to the existence of any liens, charges or
encumbrances thereon (other than the lien of the First
Mortgage Indenture), or as to the filing or recording
of the Indenture or the First Mortgage Indenture, and
to the extent that the opinions hereinabove expressed
may involve such matters, we have examined and relied
upon the below-mentioned opinions of counsel for the
Company.
In the course of the preparation of the
Registration Statement and the Final Prospectus, we
have considered the information set forth therein in
light of the matters required to be set forth therein
and, as noted above, we have participated in
conferences with your representatives and officers and
representatives of the Company, including its counsel
and independent public accountants, during the course
of which the contents of the Registration Statement and
the Final Prospectus and related matters were
discussed. Except as otherwise expressly stated
herein, we have not independently checked the accuracy
or completeness of, or otherwise verified, and
accordingly are not passing upon, and do not assume
responsibility for, the accuracy, completeness or
fairness of the statements contained in the
Registration Statement or the Final Prospectus; and we
have relied as to materiality, to a large extent, upon
the judgment of officers and representatives of the
Company. However, as a result of such consideration
and participation, nothing has come to our attention
that causes us to believe that the Registration
Statement (other than the financial statements,
financial data, statistical data and supporting
schedules included or incorporated by reference
therein, as to which we express no opinion or belief),
at the time it became effective, contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or
necessary to make the statements therein not misleading
or that the Final Prospectus (other than the financial
statements, financial data, statistical data and
supporting schedules included or incorporated by
reference therein, as to which we express no opinion or
belief), as of the date hereof, includes an untrue
statement of a material fact or omits 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.
In rendering the opinion set forth in
paragraph 2 above, we have necessarily assumed that, at
the time of any issuance, sale and delivery of each
Note, (a) the authorization of the Notes will not have
been modified or rescinded and there will not have
occurred any change in the law affecting the validity
or enforceability of such Note and that each Note will
conform to the draft form of the Notes examined by us
and that the issuance and delivery of such Note, and
the compliance by the Company with the terms of such
Note, will not violate any applicable law, or result in
a violation of the Company's certificate of
incorporation or by-laws, any instrument or agreement
then binding upon the Company, or any restriction
imposed by any court or governmental body having
jurisdiction over the Company and (b) the order of the
OCC referred to in Section 2(a)(x) of the Distribution
Agreement is in full force and effect and has not been
modified or amended by the OCC, and the Company is in
compliance therewith.
For the purpose of rendering the foregoing
opinions, we have relied, as to various questions of
fact material to such opinions, upon the
representations made in the Distribution Agreement,
certificates of officers of the Company and
certificates of the Trustee. We also have examined
originals, or copies of originals certified to our
satisfaction, of such agreements, documents,
certificates and other statements of government
officials and other instruments, have examined such
questions of law and have satisfied ourselves as to
such matters of fact as we have considered relevant and
necessary as a basis for this opinion. We have assumed
the authenticity of all documents submitted to us as
originals, the genuineness of all signatures, the legal
capacity of all natural persons and the conformity with
the original documents of any copies thereof submitted
to us for our examination.
In rendering the foregoing opinions, we have
relied, with your permission, exclusively upon the
opinions of even date herewith, delivered to you
concurrently herewith, of Messrs. Doerner, Saunders,
Daniel & Anderson, Tulsa, Oklahoma, counsel in the
State of Oklahoma for the Company, and Messrs.
Wagstaff, Alvis, Stubbeman, Seamster & Longacre,
L.L.P., Abilene, Texas, counsel in the State of Texas
for the Company, as to all matters governed by Oklahoma
and Texas law, respectively, and as to such matters,
our foregoing opinions are subject to all
qualifications, limitations, assumptions, reliances and
other considerations therein set forth.
This opinion is limited to the federal laws
of the United States of America and the laws of the
State of New York, and to the extent hereinabove
stated, in reliance on such opinions of such counsel
for the Company, the laws of the States of Oklahoma and
Texas.
This opinion is being delivered solely for
the benefit of the persons to whom it is addressed;
accordingly, it may not be quoted, filed with any
governmental authority or other regulatory agency or
otherwise circulated or utilized for any other purpose
without prior written consent.
Very truly yours,
EXHIBIT D
February 26, 1996
Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
This opinion is addressed to you as Agents under
the Distribution Agreement, dated February 26, 1996
(the "Distribution Agreement"), between Public Service
Company of Oklahoma, an Oklahoma corporation (the
"Company"), and you, pursuant to which the Company will
issue and sell through you as Agents up to $75,000,000
in Medium-Term Notes, Series A (the "Notes"). This
opinion is given pursuant to the provisions of Section
5(a)(3) of the Distribution Agreement. All terms used
herein which are not otherwise defined herein shall
have the meanings given or assigned to such terms in
the Distribution Agreement.
The Notes are being issued under and secured by
the Indenture dated February 1, 1996 and between the
Company and Liberty Bank and Trust Company of Tulsa,
National Association, as Trustee (the "Indenture").
Until the Release Date (as defined in the Indenture),
the Notes will be secured as to payment of principal
and interest by one or more series of Senior Note
Mortgage Bonds (the "Senior Note Mortgage Bonds")
issued, pledged and delivered by the Company to the
Trustee. The Senior Note Mortgage Bonds will be issued
pursuant to the provisions of the Company's Indenture
dated July 1, 1945, as supplemented by several
supplemental indentures, including a Supplement
Indenture dated as of February 1, 1996 (the "First
Mortgage Supplemental Indenture") (said Indenture as so
supplemented being hereinafter called the "First
Mortgage Indenture"), between the Company and you in
your capacity as Trustee under the First Mortgage
Indenture (the "First Mortgage Trustee").
We have examined the originals, or copies
certified to our satisfaction, of all such corporate
records of the Company, indentures, agreements and
other instruments, certificates of public officials,
certificates of officers and representatives of the
Company and other documents as we have deemed it
necessary to require as a basis for the opinions
hereinafter expressed. In our examination we have
assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as
originals and the conformity with the originals of all
documents submitted to us as copies and the
authenticity of the originals of such latter documents.
As to various questions of fact material to such
opinions we have, when relevant facts were not
independently established, relied upon certifications
by officers of the Company and other appropriate
persons.
Based upon our examination of such documents,
records and matters of law as we have considered
relevant in the premises, and upon our familiarity as
counsel for the Company in the State of Oklahoma with
its property and general affairs in said State, and
subject to the assumptions and qualifications set forth
below, it is our opinion that:
1. The Company has been duly incorporated and is
a validly existing corporation under the laws of the
State of Oklahoma and is duly authorized by its
Restated Certificate of Incorporation to conduct the
businesses in which it is engaged as described in the
Prospectus and the Prospectus Supplement. The Company
has the legal right to function and operate as a public
utility in the State of Oklahoma supplying therein
electric service.
2. The Distribution Agreement has been duly
authorized, executed and delivered by the Company.
3. Each of the Indenture and the First Mortgage
Indenture has been duly and validly authorized by all
necessary corporate action of the Company, has been
duly and validly executed and delivered by the Company,
and is a valid and binding obligation of the Company,
enforceable against the Company in accordance with its
terms, subject, however, to the fact that certain of
the remedial provisions of the First Mortgage Indenture
may be limited or rendered unenforceable by the laws of
the States wherein the mortgaged property is situated
(but said laws do not, in our opinion, make the
remedies afforded by the First Mortgage Indenture
inadequate for the realization of the benefits of the
security provided thereby), and except (a) as may be
limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws of general
applicability affecting the enforcement of creditors'
rights, and (b) that such enforceability may be limited
by the application of general principles of equity
(regardless of whether considered in a proceeding in
equity or at law), including without limitation (i) the
possible unavailability of specific performance,
injunctive relief or any other equitable remedies, and
(ii) concepts of materiality, reasonableness, good
faith and fair dealing.
4. The issue and sale of the Notes and the Senior
Note Mortgage Bonds by the Company in accordance with
the terms of the Distribution Agreement have been duly
and validly authorized by all necessary corporate
action. The Notes, when duly executed, authenticated
and delivered against payment of the consideration
therefor, and the Senior Note Mortgage Bonds when duly
executed, and authenticated and delivered to the
Trustee will be (subject to the qualifications stated
in paragraph 3 above) valid and binding obligations of
the Company and, in the case of the Senior Note
Mortgage Bonds, secured by the lien of and entitled to
the benefits of the First Mortgage Indenture.
5. The Company has good and sufficient title to
all or substantially all the permanent fixed electric
utility properties now owned by it, situated in the
State of Oklahoma, including those described or
referred to in the Prospectus and the Prospectus
Supplement, except as otherwise indicated therein,
subject only to the lien of the First Mortgage
Indenture and to permitted encumbrances and liens and
prepaid liens (as those terms are defined in the First
Mortgage Indenture) and to the junior lien on the
Company's Northeastern Station securing project bonds
issued to finance the construction of Units 3 and 4 of
said Station. The First Mortgage Indenture, subject
only to permitted encumbrances and liens and prepaid
liens, constitutes a valid, direct first mortgage lien
upon all such fixed properties of the Company (with the
exception of the properties expressly excepted or
excluded from such lien). All permanent fixed property
hereafter acquired by the Company and situated in the
State of Oklahoma (other than property of the character
of that expressly excepted or excluded from the lien of
the First Mortgage Indenture) will, upon such
acquisition, become subject to the lien of the First
Mortgage Indenture, subject, however, to such permitted
encumbrances and liens and prepaid liens, any liens
existing or placed on such property at the time of the
acquisition thereof by the Company, and any liens
thereon which might intervene prior to the filing for
record of the instrument by which title to such
property is acquired by the Company, and except as
provisions of the Bankruptcy Code may affect the
validity of the lien of the First Mortgage Indenture
with respect to property acquired, and proceeds,
products, rents, issue or profits of the property
subject to such lien realized, after commencement of a
case under such Code.
6. The First Mortgage Indenture (other than the
First Mortgage Supplemental Indenture) has been duly
filed for record as a mortgage or deed of trust of real
and personal property in the office of the Secretary of
State of the State of Oklahoma and the filing of the
First Mortgage Supplemental Indenture in the office of
the Secretary of State of the State of Oklahoma will
constitute all of the action required under the laws of
the State of Oklahoma to give notice of the lien of the
First Mortgage Indenture.
7. The Company has valid and subsisting
franchises, licenses and permits relating to its
operations in the State of Oklahoma, authorizing the
Company to carry on its present operations in said
State.
8. The execution and delivery by the Company of
any supplemental indenture relating to the Notes and
issuance and sale of the Notes by the Company, and the
execution and delivery by the Company of any
supplemental indenture relating to the Senior Note
Mortgage Bonds and issuance of the Senior Note Mortgage
Bonds by the Company, each upon terms consistent with
the Distribution Agreement, have been authorized by an
Amended Order and Certificate of Authority of the
Corporation Commission of the State of Oklahoma, dated
February 22, 1996, which Order has been duly entered
and, to the best of our knowledge, is in full force and
effect. No further approval, authorization, consent,
certificate or order of any state commission or
regulatory authority in Oklahoma (other than in
connection or in compliance with the securities or Blue
Sky laws or regulations of the jurisdictions in which
any of the Notes and Senior Note Mortgage Bonds may
have been or are to be offered for sale or sold) is
necessary with respect to the execution and delivery of
the Indenture and the First Mortgage Indenture or the
issuance and sale of the Notes and Senior Note Mortgage
Bonds by the Company as contemplated by the
Distribution Agreement.
9. Except as set forth in the Prospectus or the
Prospectus Supplement and except as set forth in the
following sentence, to the best of our knowledge there
is no material litigation or other legal proceeding
pending to which the Company is a party or of which
property of the Company is the subject, and, to the
best of our knowledge, no such litigation or
proceedings are contemplated. There are various
routine litigation, claims and other proceedings
pending against the Company or involving property of
the Company, which are common or incident to the
business in which the Company is engaged but which, in
the aggregate, are not significant (in our opinion)
from the standpoint of the total assets and overall
operations of the Company.
10. The statements, if any, made in the
Prospectus or the Prospectus Supplement which are
stated therein to have been made on our authority, have
been reviewed by us and, as to matters of law and legal
conclusions, are correct.
This opinion is limited exclusively to the laws of
the State of Oklahoma which are presently in effect.
We note that the Indenture and the Notes are to be
governed by and construed in accordance with the laws
of the State of New York. In rendering our opinions
herein with respect to the enforceability of the
Indenture and the Notes, we have assumed that the laws
of the State of New York are the same as the laws of
Oklahoma.
The phrase "to the best of our knowledge," as used
herein, refers to matters within our actual knowledge.
Except as otherwise stated herein, we have made no
independent investigation of documents and records
pertaining to the Company not in our possession, nor
have we made an independent search of the records of
any judicial authority or governmental agency.
We undertake no obligation to update or supplement
our opinions herein as a result of events or actions
occurring after the date hereof.
In rendering our opinions herein, we have with
your permission relied upon the opinion of even date
hereof, delivered to you concurrently herewith, of
Messrs. Wagstaff, Alvis, Stubbeman, Seamster &
Longacre, L.L.P. of Abilene, Texas.
We hereby consent to the reliance as to matters
governed by Oklahoma law by Messrs. Milbank, Tweed,
Hadley & McCloy and Messrs. Sidley & Austin, in giving
their respective opinions of even date herewith on our
opinions set forth herein. The opinions herein are
rendered solely for the benefit of the Agents in
connection with the requirement set forth in the
Distribution Agreement. Without our prior written
consent this opinion may not be quoted in whole or in
part or furnished to or relied upon by any other person
or entity.
Very truly yours,
DOERNER, SAUNDERS, DANIEL & ANDERSON
EXHIBIT E
February 26, 1996
Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
This opinion is addressed to you as the Agents
(the "Agents") under Section 5(a)(4) of the
Distribution Agreement (the "Distribution Agreement"),
dated February 26, 1996, between Public Service Company
of Oklahoma (the "Company") and you, pursuant to which
the Company will issue and sell and the Agents will
purchase from time to time up to $75,000,000 aggregate
principal amount of Medium Term Notes (the "Notes").
The Notes will be secured by First Mortgage Bonds (the
"First Mortgage Bonds") issued by the Company.
The First Mortgage Bonds are being issued under
and secured by that one certain indenture dated July 1,
1945, as amended and supplemented, by and between the
Company and Liberty Bank and Trust Company of Tulsa,
National Association, as Trustee (the "First Mortgage
Indenture"). Terms used with initial capital letters
herein and not otherwise defined herein shall have the
meanings assigned thereto in the Distribution
Agreement.
Based upon our examination of such documents,
records, and matters of law as we have considered
relevant in the premises, as special counsel for the
Company in the State of Texas, it is our opinion that:
(i) The Company is duly qualified to transact
business as a foreign corporation in the State of
Texas.
(ii) The Company has good and sufficient title to
all or substantially all the permanent fixed electric
utility properties now owned by it situated in the
State of Texas, including those described or referred
to in the Prospectus, except as otherwise indicated
therein, subject only to the lien of the First Mortgage
Indenture and to permitted encumbrances and liens and
prepaid liens, as defined in the First Mortgage
Indenture. The First Mortgage Indenture constitutes a
valid, direct first mortgage lien, subject only to
permitted encumbrances and liens and prepaid liens,
upon all such fixed properties of the Company (with the
exception of the properties expressly excepted or
excluded from such lien of the First Mortgage
Indenture). All permanent fixed property hereafter
acquired by the Company and situated in the State of
Texas (other than property of the character of that
expressly excepted or excluded from the lien of the
First Mortgage Indenture) will, upon such acquisition,
become subject to the lien of the First Mortgage
Indenture, subject, however, to such permitted
encumbrances and liens and prepaid liens, any liens
existing or placed on such property at the time of the
acquisition thereof by the Company, and any liens
thereon which might intervene prior to the filing for
record of the instrument by which title to such
property is acquired by the Company and except as
provisions of the Bankruptcy Code may affect the
validity of the lien of the First Mortgage Indenture
with respect to property acquired, and proceeds,
products, rents, issue or profits of the property
subject to such lien realized, after commencement of a
case under such Code.
(iii) The laws of the State of Texas affecting
the remedies for the enforcement of the security
provided for in the First Mortgage Indenture do not, in
our opinion, make such remedies inadequate for the
realization of the benefits of such security.
(iv) With the exception of that one certain
supplemental indenture dated as of February 1, 1996,
providing for "First Mortgage Bonds, Series X," which
we understand will be forthwith duly recorded as a
utility security instrument in the office of the
Secretary of State of the State of Texas, the First
Mortgage Indenture has been duly so recorded as a
utility security instrument and notices of utility
security instruments affecting real property have
heretofore been duly filed in each of the counties in
the State of Texas in which property owned by the
Company and subject to the lien of the First Mortgage
Indenture is situated, in such manner as to make
effective the lien intended to be created by the First
Mortgage Indenture. Such recordation and filings
constitute all of the action required under the laws of
the State of Texas to give notice of the lien of the
First Mortgage Indenture. No recording or other taxes
of the State of Texas are required by law in connection
with the issuance of the Notes and First Mortgage Bonds
or for the effectiveness of the lien of the First
Mortgage Indenture as security for the First Mortgage
Bonds.
(v) As presently conducted, the Company's
operations in the State of Texas require no franchises,
licenses or permits, other than Certificates of
Convenience and Necessity pertaining to its Texas
properties which have been issued by the Public Utility
Commission of Texas.
(vi) No approval, authorization, consent,
certificate or order of any commission or regulatory
authority of the State of Texas (other than in
connection or in compliance with the securities or
"blue sky" laws or regulations of the State of Texas)
is necessary with respect to the execution and delivery
of the First Mortgage Indenture or the issuance and
sale of the Notes and the First Mortgage Bonds by the
Company as contemplated by the Distribution Agreement.
All statements in this opinion assume and are
subject to the prompt and timely recording of the
supplemental indenture providing for First Mortgage
Bonds, Series X, as set out in section (iv) hereof. We
do not herein express any opinion as to any matters
governed by any laws other than the laws of the State
of Texas. We hereby consent to the reliance as to
matters governed by Texas law by Messrs. Milbank,
Tweed, Hadley & McCloy, Messrs. Doerner, Saunders,
Daniel & Anderson and Messrs. Sidley & Austin, in
giving their opinions of even date herewith, on our
opinions set forth herein.
Very truly yours,
WAGSTAFF, ALVIS, STUBBEMAN,
SEAMSTER & LONGACRE, L.L.P.
BY:
ANNEX 1
ADMINISTRATIVE PROCEDURES FOR
PUBLIC SERVICE COMPANY OF OKLAHOMA
MEDIUM TERM NOTES, SERIES A
DUE NOT LESS THAN NINE MONTHS FROM DATE OF ISSUE
(Dated as of February 26, 1996)
Medium Term Notes, Series A (the "Notes") in
the aggregate principal amount of up to $75,000,000 are
to be offered on a continuing basis by Public Service
Company of Oklahoma, an Oklahoma corporation (the
"Company"), through Smith Barney Inc. and Morgan
Stanley & Co. Incorporated who, as agents (each an
"Agent," and, collectively, the "Agents"), have agreed
to use their reasonable best efforts to solicit offers
to purchase the Notes from the Company. The Agents may
also purchase Notes as principal for resale.
The Notes are being sold pursuant to a
Distribution Agreement between the Company and the
Agents, dated February 26, 1996 (the "Distribution
Agreement"). The Notes are to be issued as a new
series of senior notes under the Company's Indenture to
Liberty Bank and Trust Company of Tulsa, National
Association, as trustee (the "Trustee"), dated as of
February 1, 1996, as supplemented and as the same may
from time to time be amended or supplemented (the
"Indenture"). Until the Release Date (as defined in
the Indenture), the Notes will be secured as to payment
of principal and interest by one or more series of
First Mortgage Bonds issued, pledged and delivered by
the Company to the Trustee. A Registration Statement
(the "Registration Statement," which term shall include
any additional registration statements filed in
connection with the Notes as provided in the
introductory paragraphs of the Distribution Agreement)
with respect to the Notes has been filed with the
Securities and Exchange Commission (the "Commission").
The most recent Prospectus filed pursuant to Rule
424(b) is herein referred to as the "Prospectus." A
pricing supplement with respect to the specific terms
of any Notes is herein referred to as a "Pricing
Supplement." Chemical Bank will act as the paying
agent (the "Paying Agent") for the payment of principal
of and premium, if any, and interest on the Notes and
will perform as the Paying Agent, unless otherwise
specified, the other duties specified herein. In
addition, Chemical Bank will act as the authenticating
agent (the "Authenticating Agent") under the Indenture.
The Notes will either be issued (a) in
book-entry form and represented by one or more fully
registered Notes (each, a "Book-Entry Note") delivered
to Chemical Bank, as agent for The Depository Trust
Company ("DTC"), and recorded in the book-entry system
maintained by DTC, or (b) in certificated form
delivered to the purchaser thereof or a person
designated by such purchaser. Except in the limited
circumstances described in the Prospectus or a Pricing
Supplement, owners of beneficial interests in Notes
issued in book-entry form will not be entitled to
physical delivery of Notes in certificated form equal
in principal amount to their respective beneficial
interests.
General procedures relating to the issuance
of all Notes are set forth in Part I hereof.
Additionally, Notes issued in book-entry form will be
issued in accordance with the procedures set forth in
Part II hereof and Notes issued in certificated form
will be issued in accordance with the procedures set
forth in Part III hereof. Capitalized terms used
herein that are not otherwise defined shall have the
meanings ascribed thereto in the Indenture or the
Notes, as the case may be. As used herein, the term
"Prospectus" refers to the most recent prospectus which
has been prepared by the Company for use by the Agents
in connection with the offering of the Notes.
To the extent the procedures set forth below
conflict with the provisions of the Notes, the
Indenture or the Distribution Agreement, the relevant
provisions of the Notes, the Indenture and the
Distribution Agreement shall control.
PART I: PROCEDURES OF GENERAL APPLICABILITY
Date of Issuance/ Each Note will be dated by the
Authentication: Authenticating Agent as of the
interest payment date thereof to
which interest was paid next
preceding the date of issue, unless
(a) issued on an interest payment
date thereof to which interest was
paid, in which event it shall be
dated as of the date of issue, or (b)
issued prior to the occurrence of the
first interest payment date thereof
to which interest was paid, in which
event it shall be dated the original
issue date. The original issue date
shall remain the same for all Notes
subsequently issued upon transfer,
exchange or substitution of an
original Note regardless of their
dates of authentication.
Maturities: Each Note will mature on a date
selected by the purchaser and agreed
to by the Company which is not less
than nine months from its original
issue date.
Registration: Notes will be issued only in fully
registered form.
Calculation of Interest: Interest (including payments for
partial periods) will be calculated
and paid on the basis of a 360-day
year of twelve 30-day months.
Acceptance and Rejection The Company shall have the sole right
of Offers: to accept offers to purchase Notes
from the Company and may reject any
such offer in whole or in part. Each
Agent shall communicate to the
Company, orally or in writing, each
reasonable offer to purchase Notes
from the Company received by it.
Each Agent shall have the right, in
its discretion reasonably exercised,
without notice to the Company, to
reject any offer to purchase Notes
through it in whole or in part.
Preparation of Pricing If any offer to purchase a Note is
Supplement: accepted by the Company, the Company,
with the approval of the Agent which
presented such offer (the "Presenting
Agent"), will prepare a Pricing
Supplement reflecting the terms of
such Note and file such Pricing
Supplement relating to such Notes and
the plan of distribution thereof (as
such Pricing Supplement supplements
the Prospectus, the "Supplemented
Prospectus"), with the Commission in
accordance with Rule 424 under the
Act. The Presenting Agent will cause
a Supplemented Prospectus to be
delivered to the purchaser of the
Note.
The Company shall have delivered a
completed Pricing Supplement, via
next day mail or telecopy to arrive
no later than 11 AM on the Business
Day following the trade date, to the
Presenting Agent at the following
locations: Smith Barney Inc. at the
following address:
Smith Barney Inc., 390 Greenwich
Street - 4th Floor, New York, New
York 10013, Attention: MTN Product
Management/Origination - Mark R.
Meyer, Telephone: (212) 723-5123,
Telecopy: (212) 723-8854.
Also, a copy to: Smith Barney Inc.,
388 Greenwich Street - 34th Floor,
New York, New York 10013, Attention:
Legal Compliance - Adrienne Garofalo,
Telephone (212) 816-7594, Telecopy
(212) 816-7912;
to Morgan Stanley & Co. Incorporated
at the following address:
Morgan Stanley & Co. Incorporated,
1585 Broadway - 2nd Floor, New York,
New York 10036, Attention: Medium-
Term Note Trading Desk, Carlos
Cabrera Telephone (212) 761-4000
In each instance that a Pricing
Supplement is prepared, the Agents
will affix such Pricing Supplement to
the Prospectus prior to its use.
Outdated Pricing Supplements, and the
Prospectuses to which they are
attached (other than those retained
for files), will be destroyed.
Settlement: The receipt of immediately available
Federal funds by the Company in
payment for a Note and the
authentication and delivery of such
Note shall, with respect to such
Note, constitute "settlement."
Offers accepted by the Company will
be settled on the date that is three
Business Days after the date of the
acceptance of the offer, or at such
later time as the purchaser, the
Trustee and the Company shall agree,
pursuant to the timetable for
settlement set forth in Parts II and
III hereof under the caption
"Settlement Procedures" with respect
to Book-Entry Notes and Certificated
Notes, respectively. If procedures A
and B of the applicable Settlement
Procedures with respect to a
particular offer are not completed on
or before the time set forth under
the applicable "Settlement Procedures
Timetable," such offer shall not be
settled until the Business Day
following the completion of
settlement procedures A and B or such
later date as the purchaser and the
Company shall agree.
In the event of a purchase of Notes
by any Agent as principal,
appropriate settlement details will
be as agreed between the Agent and
the Company pursuant to the
applicable Terms Agreement.
Suspension of The Company may instruct the Agents
Solicitation; Amendment to suspend solicitation of purchases
or Supplement: at any time. Upon receipt of such
instructions the Agents will
forthwith suspend solicitation of
offers to purchase from the Company
until such time as the Company has
advised them that solicitation of
offers to purchase may be resumed.
If the Company decides to amend the
Registration Statement or Prospectus
(including incorporating any
documents by reference therein) or
supplement any of such documents, it
will promptly furnish the Agents and
their counsel with copies of the
amendment (including any document
proposed to be incorporated by
reference therein) or supplement.
One copy of such filed document,
along with a copy of the cover letter
sent to the Commission, will be
delivered or mailed to the Agents at
the following respective addresses:
Smith Barney Inc., 390 Greenwich
Street - 4th Floor, New York, New
York 10013, Attention: MTN Product
Management/ Origination - Mark R.
Meyer;
Morgan Stanley & Co. Incorporated
1585 Broadway; 2nd Floor
New York, New York, 10036
Attention: Manager - Continuously
Offered Products
In the event that at the time the
solicitation of offers to purchase
from the Company is suspended there
shall be any orders outstanding which
have not been settled, the Company
will promptly advise the Agents and
the Trustee whether such orders may
be settled and whether copies of the
Prospectus as theretofore amended
and/or supplemented as in effect at
the time of the suspension may be
delivered in connection with the
settlement of such orders. The
Company will have the sole
responsibility for such decision and
for any arrangements which may be
made in the event that the Company
determines that such orders may not
be settled or that copies of such
Prospectus may not be so delivered.
Delivery of Supplemented A copy of the most recent
Prospectus: Supplemented Prospectus must
accompany or precede the earlier of
(a) the written confirmation of a
sale sent to a customer or the agent
of such customer, and (b) the
delivery of Notes to a customer or
the agent of such customer.
Authenticity of The Agents will have no obligations
Signatures: or liability to the Company or the
Authenticating Agent in respect of
the authenticity of the signature of
any officer, employee or agent of the
Company or the Authenticating Agent
on any Note.
Documents Incorporated The Company shall supply the Agents
by Reference: with an adequate supply of all
documents incorporated by reference
in the Registration Statement.
Business Day: "Business Day" means any day, other
than a Saturday or Sunday, on which
banks in the City of New York, are
not required or authorized by law to
close.
PART II: PROCEDURES FOR NOTES ISSUED IN BOOK-ENTRY
FORM
In connection with the qualification of Notes
issued in book-entry form for eligibility in the
book-entry system maintained by DTC, the Paying Agent
will perform the custodial, document control and
administrative functions described below, in accordance
with its respective obligations under a Letter of
Representation from the Company and the Paying Agent to
DTC and a Medium-Term Note Certificate Agreement
between the Paying Agent and DTC (the "Certificate
Agreement"), and its obligations as a participant in
DTC, including DTC's Same-Day Funds Settlement System
("SDFS").
Issuance: All Notes issued in book-entry form
having the same original issue date,
interest rate, and stated maturity
will be represented initially by a
single global security in fully
registered form without coupons
(each, a "Book-Entry Note").
Each Book-Entry Note will be dated
and issued as of the date of its
authentication by the Authenticating
Agent. Each Book-Entry Note will
bear an interest accrual date, which
will be (a) with respect to an
original Book-Entry Note (or any
portion thereof), its original issue
date and (b) with respect to any Book-
Entry Note (or portion thereof)
issued subsequently upon exchange of
a Book-Entry Note or in lieu of a
destroyed, lost or stolen Book-Entry
Note, the most recent interest
payment date to which interest has
been paid or duly provided for on the
predecessor Book-Entry Note or Notes
(or if no such payment or provision
has been made, the original issue
date of the predecessor Book-Entry
Note or Notes), regardless of the
date of authentication of such
subsequently issued Book-Entry Note.
No Book-Entry Note shall represent
any Note issued in certificated form.
Identification: Prior to the commencement of the
program, the Company has arranged
with the CUSIP Service Bureau of
Standard & Poor's Corporation (the
"CUSIP Service Bureau") for the
reservation of a series consisting of
approximately 900 CUSIP numbers which
have been reserved for and relating
to Book-Entry Notes and the Company
has directed the Paying Agent to give
DTC a written list of such CUSIP
numbers. The Paying Agent will
assign CUSIP numbers to Book-Entry
Notes as described below under
Settlement Procedure B. DTC will
notify the CUSIP Service Bureau
periodically of the CUSIP numbers
that the Paying Agent has assigned to
Book-Entry Notes.
The Paying Agent will notify the
Company at any time when fewer than
50 of the reserved CUSIP numbers
remain unassigned to Book-Entry
Notes, and, if it deems necessary,
the Company will reserve additional
CUSIP numbers for assignment to Book-
Entry Notes. Upon obtaining such
additional CUSIP numbers, the Company
will deliver a list of such
additional numbers to the Paying
Agent and DTC.
Registration: Each Book-Entry Note will be
registered in the name of Cede & Co.,
as nominee for DTC, on the register
maintained by the Trustee under the
Indenture. The beneficial owner of a
Note issued in book-entry form (i.e.,
an owner of a beneficial interest in
a Book-Entry Note) (or one or more
indirect participants in DTC
designated by such owner) will
designate one or more participants in
DTC (with respect to such Note issued
in book-entry form, the
"Participants") to act as agent for
such beneficial owner in connection
with the book-entry system maintained
by DTC, and DTC will record in
book-entry form, in accordance with
instructions provided by such
Participants, a credit balance with
respect to such Note issued in
book-entry form in the account of
such Participants. The ownership
interest of such beneficial owner in
such Note issued in book-entry form
will be recorded through the records
of such Participants or through the
separate records of such Participants
and one or more indirect participants
in DTC.
Transfers: Transfers of a Book-Entry Note will
be accomplished by book entries made
by DTC and, in turn, by Participants
(and in certain cases, one or more
indirect participants in DTC) acting
on behalf of beneficial transferors
and transferees of such Book-Entry
Note.
Exchanges: The Paying Agent may deliver to DTC
and the CUSIP Service Bureau at any
time a written notice specifying (a)
the CUSIP numbers of two or more Book-
Entry Notes outstanding on such date
that represent Book-Entry Notes
having the same terms (other than
original issue dates) and for which
interest has been paid to the same
date; (b) a date, occurring at least
30 days after such written notice is
delivered and at least 30 days before
the next interest payment date for
the related Notes issued in
book-entry form, on which such
Book-Entry Notes shall be exchanged
for a single replacement Book-Entry
Note; and (c) a new CUSIP number,
obtained from the Paying Agent, to be
assigned to such replacement
Book-Entry Note. Upon receipt of
such a notice, DTC will send to its
participants (including the Paying
Agent) a written reorganization
notice to the effect that such
exchange will occur on such date.
Prior to the specified exchange date,
the Paying Agent will deliver to the
CUSIP Service Bureau written notice
setting forth such exchange date and
the new CUSIP number and stating
that, as of such exchange date, the
CUSIP numbers of the Book-Entry Notes
to be exchanged will no longer be
valid. On the specified exchange
date, the Paying Agent will exchange
such Book-Entry Notes for a single
Book-Entry Note bearing the new CUSIP
numbers and the CUSIP number of the
exchanged Book-Entry Notes will, in
accordance with CUSIP Service Bureau
procedures, be canceled and not
immediately reassigned.
Denominations: Notes issued in book-entry form will
be issued in denominations of $1,000
and any larger denomination which is
an integral multiple of $1,000.
Interest: General. Interest on each Note
issued in book-entry form will accrue
from the most recent interest payment
date to which interest has been paid
or duly provided for, or if no such
payment or provision has been made,
the original issue date of the
Book-Entry Note representing such
Note. Each payment of interest on a
Note issued in book-entry form will
include interest accrued through the
day preceding, as the case may be,
the interest payment date or
maturity. Interest payable at
maturity of a Note issued in
book-entry form will be payable to
the Person to whom the principal of
such Note is payable. DTC will
arrange for each pending deposit
message described under Settlement
Procedure C below to be transmitted
to Standard & Poor's, which will use
the information in the message to
include certain terms of the related
Book-Entry Note in the appropriate
daily bond report published by
Standard & Poor's.
Interest Payment Dates. Interest
payments will be made on each
interest payment date commencing with
the first interest payment date
following the original issue date,
provided, however, that the first
payment of interest on any Book-Entry
Senior Note originally issued between
a regular record date and an interest
payment date will occur on the
interest payment date following the
next regular record date.
Interest payments on Notes issued in
book-entry form will be made
semiannually on the dates specified
in the Pricing Supplement and at
maturity unless such day is not a
Business Day, in which case such
payment will be made on the next
Business Day.
Payments of Principal Payment of Interest Only. Promptly
and Interest: after each regular record date, the
Paying Agent will deliver to the
Company and DTC a written notice
specifying by CUSIP number the amount
of interest to be paid on each Book-
Entry Note on the following interest
payment date (other than an interest
payment date coinciding with
maturity) and the total of such
amounts. DTC will confirm the amount
payable on each Book-Entry Note on
such interest payment date by
reference to the daily bond reports
published by Standard & Poor's
Corporation. On such interest
payment date, the Company will pay to
the Paying Agent and the Paying Agent
in turn will pay to DTC, such total
amount of interest due (other than at
maturity), at the times and in the
manner set forth below under "Manner
of Payment."
Payments at Maturity. On or about
the first Business Day of each month
in which principal and/or interest is
to be paid, the Paying Agent will
deliver to the Company and DTC a
written list of principal, interest
and premium, if any, to be paid on
each Book-Entry Note maturing either
at stated maturity or on a redemption
date in the following month. The
Paying Agent, the Company and DTC
will confirm the amounts of such
principal and interest payments with
respect to a Book-Entry Note on or
about the fifth Business Day
preceding the maturity of such
Book-Entry Note. At such maturity,
the Company will pay to the Paying
Agent, and the Paying Agent in turn
will pay to DTC, the principal amount
of such Note, together with interest
and premium, if any, due at such
maturity, at the times and in the
manner set forth below under "Manner
of Payment." If any maturity of a
Book-Entry Note is not a Business
Day, the payment due on such day
shall be made on the next succeeding
Business Day and no interest shall
accrue on such payment for the period
from and after such maturity.
Promptly after payment to DTC of the
principal, interest and premium, if
any, due at the maturity of such Book-
Entry Note, the Paying Agent will
cancel such Book-Entry Note and
deliver it to the Company with an
appropriate debit advice. On the
first Business Day of each month, the
Paying Agent will deliver to the
Company a written statement
indicating the total principal amount
of outstanding Book-Entry Notes as of
the immediately preceding Business
Day.
Manner of Payment. The total amount
of any principal, premium, if any,
and interest due on Book-Entry Notes
on any interest payment date or at
maturity shall be paid by the Company
to the Paying Agent to an account
designated by the Paying Agent in
funds available for use by the
Payment Agent as of 9:30 a.m., New
York City time, on such date. The
Company will confirm such
instructions in writing to the Paying
Agent. Prior to 10:00 a.m., New York
City time, on such date or as soon as
possible thereafter, the Paying Agent
will pay (but only from funds
withdrawn from such account) by
separate wire transfer (using Fedwire
message entry instructions in a form
previously specified by DTC) to an
account at the Federal Reserve Bank
of New York previously specified by
DTC, in funds available for immediate
use by DTC, each payment of interest,
principal and premium, if any, due on
a Book-Entry Note on such date.
Thereafter on such date, DTC will
pay, in accordance with its SDFS
operating procedures then in effect,
such amounts in funds available for
immediate use to the respective
Participants in whose names such
Notes are recorded in the book-entry
system maintained by DTC. Neither
the Company nor the Paying Agent
shall have any responsibility or
liability for the payment by DTC of
the principal of, or interest on, the
Book-Entry Note to such Participants.
Withholding Taxes. The amount of any
taxes required under applicable law
to be withheld from any interest
payment on a Note will be determined
and withheld by the Participant,
indirect participant in DTC or other
Person responsible for forwarding
payments and materials directly to
the beneficial owner of such Note.
Settlement Procedures: Settlement Procedures with regard to
each Note in book-entry form sold by
each Agent as agent of the Company,
will be as follows:
A.The Presenting Agent will advise
the Company by telephone (confirmed
by facsimile) of the following
settlement information:
1.Taxpayer identification number of
the purchaser.
2.Principal amount of the Note.
3.Terms:
a)interest rate
b)interest payment dates
4.Price to public of the Note.
5.Trade date.
6.Settlement date (original issue date).
7.Maturity.
8.Net proceeds to the Company.
9.Agent's commission
B.The Company will advise the Paying
Agent by electronic transmission of
the above settlement information
received from the Presenting Agent
with respect to the Book-Entry Note
representing such Note and the name
of the Agent, and the Paying Agent
will assign a CUSIP number to such
Note.
C.The Paying Agent will communicate
to DTC through DTC's Participant
Terminal System, a pending deposit
message specifying the following
settlement information, which will
route such relevant information to
the Presenting Agent, Standard &
Poor's Corporation and Interactive
Data Corporation:
1.The information set forth in
Settlement Procedure A.
2.Identification numbers of the
participant accounts maintained by
DTC on behalf of the Paying Agent and
the Agent.
3.Initial interest payment date for
such Note, number of days by which
such date succeeds the related record
date for DTC purposes and, if then
calculable, the amount of interest
payable on such interest payment date
(which amount shall have been
confirmed by the Paying Agent).
4.CUSIP number of the Book-Entry Note
representing such Note.
5.Whether such Book-Entry Note
represents any other Notes issued or
to be issued in book-entry form.
D.The Board of Directors of the
Company or its Executive Committee or
a designee thereof shall approve the
final terms of the Notes.
E.The Paying Agent will complete a
Book-Entry Note representing such
Note in a form that has been approved
by the Company, the Agents and the
Paying Agent.
F.The Paying Agent will authenticate
the Book-Entry Note representing such
Note.
G.DTC will credit such Note to the
participant account of the Paying
Agent maintained by DTC.
H.The Paying Agent will enter an SDFS
deliver order through DTC's
Participating Terminal System
instructing DTC (i) to debit such
Note to the Paying Agent's
participant account and credit such
Note to the participant account of
the Presenting Agent maintained by
DTC and (ii) to debit the settlement
account of the Presenting Agent and
credit the settlement account of the
Paying Agent maintained by DTC, in an
amount equal to the price of such
Note less such Agent's commission.
Any entry of such a deliver order
shall be deemed to constitute a
representation and warranty by the
Paying Agent to DTC that (i) the Book-
Entry Note representing such Note has
been issued and authenticated and
(ii) the Paying Agent is holding such
Book-Entry Note pursuant to the
Medium-Term Note Certificate
Agreement between the Paying Agent
and DTC.
I.The Presenting Agent will enter an
SDFS deliver order through DTC's
Participant Terminal System
instructing DTC (i) to debit such
Note to the Presenting Agent's
participant account and credit such
Note to the participant account of
the Participants maintained by DTC
and (ii) to debit the settlement
accounts of such Participants and
credit the settlement account of the
Presenting Agent maintained by DTC,
in an amount equal to the initial
public offering price of such Note.
J.Transfers of funds in accordance
with SDFS deliver orders described in
Settlement Procedures H and I will be
settled in accordance with SDFS
operating procedures in effect on the
Settlement Date.
K.Upon receipt of such funds, the
Paying Agent will credit to an
account of the Company identified to
the Paying Agent funds available for
immediate use in the amount
transferred to the Paying Agent in
accordance with Settlement Procedure
H.
L.The Paying Agent will send a copy
of each Book-Entry Note to the
Company together with a statement
setting forth the principal amount of
Notes outstanding in accordance with
the Mortgage.
M.The Agent will confirm the purchase
of such Note to the purchaser either
by transmitting to the Participant
with respect to such Note a
confirmation order through DTC's
Participant Terminal System or by
mailing a written confirmation to
such purchaser.
Settlement Procedures For order of Notes accepted by the
Timetable: Company, Settlement Procedures "A"
through "M" set forth above shall be
completed as soon as possible but not
later than the respective times (New
York City time) set forth below:
Settlement Procedure Time
A-B 11:00 a.m. on the trade date
C 2:00 p.m. on the trade date
D No later than the Business Day
before day of settlement
E 3:00 p.m. on the Business Day
before day of settlement
F No later than 2:00 p.m. on the
day prior to day of settlement
G 10:00 a.m. on day of settlement
H-I No later than 2:00 p.m. on the
day prior to day of settlement
J 4:45 p.m. on day of settlement
K-M 5:00 p.m. on day of settlement
Settlement Procedures A, B and C may,
if necessary, be completed at any
time prior to the specified times on
the first Business Day after the sale
date. Settlement Procedure J is
subject to extension in accordance
with any extension of Fedwire closing
deadlines and in the other events
specified in the SDFS operating
procedures in effect on the day of
settlement.
If settlement of a Note issued in
book entry form is rescheduled or
canceled, the Paying Agent will
deliver to DTC, through DTC's
Participant Terminal System, a
cancellation message to such effect
by no later than 2:00 p.m., New York
City time, on the Business Day
immediately preceding the scheduled
day of settlement.
Failure to Settle: If the Paying Agent fails to enter an
SDFS deliver order with respect to a
Book-Entry Note issued in book-entry
form pursuant to Settlement Procedure
H; the Paying Agent shall deliver to
DTC, through DTC's Participant
Terminal System, as soon as
practicable a withdrawal message
instructing DTC to debit such Note to
the participant account of the Paying
Agent maintained at DTC. DTC will
process the withdrawal message,
provided that such participant
account contains a principal amount
of the Book-Entry Note representing
such Note that is at least equal to
the principal amount to be debited.
If withdrawal messages are processed
with respect to all the Notes
represented by a Book-Entry Note, the
Paying Agent will mark such Book-
Entry Note "canceled", make
appropriate entries in its records
and send such canceled Book-Entry
Note to the Company. The CUSIP
number assigned to such Book-Entry
Note shall, in accordance with CUSIP
Service Bureau procedures, be
canceled and not immediately
reassigned. If withdrawal messages
are processed with respect to a
portion of the Notes represented by a
Book-Entry Note, the Paying Agent
will exchange such Book-Entry Note
for two Book-Entry Notes, one of
which shall represent the Book-Entry
Notes for which withdrawal messages
are processed and shall be canceled
immediately after issuance, and the
other of which shall represent the
other Notes previously represented by
the surrendered Book-Entry Note and
shall bear the CUSIP number of the
surrendered Book-Entry Note.
If the purchase price for any
Book-Entry Note is not timely paid to
the Participants with respect to such
Note by the beneficial purchaser
thereof (or a person, including an
indirect participant in DTC, acting
on behalf of such purchaser), such
Participants and, in turn, the
related Agent may enter SDFS deliver
orders through DTC's Participant
Terminal System reversing the orders
entered pursuant to Settlement
Procedures H and I, respectively.
Thereafter, the Paying Agent will
deliver the withdrawal message and
take the related actions described in
the preceding paragraph. If such
failure shall have occurred for any
reason other than default by the
applicable Agent to perform its
obligations hereunder or under the
Distribution Agreement, the Company
will reimburse such Agent on an
equitable basis for its loss of the
use of funds during the period when
the funds were credited to the
account of the Company.
Notwithstanding the foregoing, upon
any failure to settle with respect to
a Book-Entry Note, DTC may take any
actions in accordance with its SDFS
operating procedures then in effect.
In the event of a failure to settle
with respect to a Note that was to
have been represented by a Book-Entry
Note also representing other Notes,
the Paying Agent will provide, in
accordance with Settlement Procedures
E and F, for the authentication and
issuance of a Book-Entry Note
representing such remaining Notes and
will make appropriate entries in its
records.
PART III: PROCEDURES FOR NOTES ISSUED IN CERTIFICATED FORM
The Paying Agent will issue as registrar in
connection with the Certificated Notes.
Denominations: The Notes will be issued in
denominations of $1,000 and integral
multiples of $1,000 in excess
thereof.
Interest: Each Note will bear interest in
accordance with its terms. Interest
will begin to accrue on the original
issue date of a Note for the first
interest period and on the most
recent interest payment date to which
interest has been paid for all
subsequent interest periods. Each
payment of interest shall include
interest accrued to, but excluding,
the date of such payment.
Interest payments will be made
semiannually on the dates specified
in the Pricing Supplement and at
maturity. However, the first payment
of interest on any Note issued
between a record date and an interest
payment date will be made on the
interest payment date following the
next succeeding record date.
Interest at maturity will be payable
to the person to whom the principal
is payable.
Nothing herein should be deemed to
require the Paying Agent to risk or
expend its own funds in connection
with any payment to the Company, or
the Agents, or DTC, or any
Noteholder, it being understood by
all parties that payments made by the
Paying Agent shall be made solely to
the extent that funds are provided to
the Paying Agent for such purpose.
Payments of Principal Principal of and interest on the
and Interest: Notes will be payable in New York,
New York or, at the option of the
Registered Owner (as defined herein),
at such other office or agency of the
Paying Agent, at the office or agency
of the Company in New York, New York
or otherwise pursuant to the
Indenture and interest is payable, at
the option of the Company, by check
mailed to the registered owners of
the Notes. Any payment of principal
or interest required to be made on an
interest payment date or at maturity
of a Note which is not a Business Day
need not be made on such day, but may
be made on the next succeeding
Business Day with the same force and
effect as if made on the interest
payment date or at maturity, as the
case may be, and no interest shall
accrue for the period from and after
such interest payment date or
maturity.
The Paying Agent will provide to the
Company in each month prior to a
month in which any Note or Notes
mature, a list of the principal and
interest to be paid on Notes maturing
in the next succeeding month. The
Paying Agent will be responsible for
withholding taxes on interest paid as
required by applicable law, but shall
be relieved from any such
responsibility if it acts in good
faith and in reliance upon an opinion
of counsel.
Notes presented to the Paying Agent
at maturity for payment will be
cancelled and held by the Paying
Agent. All cancelled Senior Notes
held by the Paying Agent shall be
destroyed, and the Paying Agent shall
fund to the Company a certificate
with respect to such destruction.
Settlement Procedures: Settlement Procedures with regard to
each Note purchased through any
Agent, as agent, shall be as follows:
A.The Presenting Agent will advise
the Company by telephone of the
following settlement information with
regard to each Note:
1.Exact name in which the Note is to
be registered (the "Registered
Owner").
2.Exact address or addresses of the
Registered Owner for delivery,
notices and payments of principal and
interest.
3.Taxpayer identification number of
the Registered Owner.
4.Principal amount of the Note.
5.Denomination of the Note.
6.Terms:
a)interest rate
b)interest payment dates
7.Price to public of the Note.
8.Settlement date (original issue date).
9.Maturity.
10.Net proceeds to the Company.
11.Agent's commission.
B.The Company shall provide to the
Authenticating Agent the above
settlement information received from
the Agents and shall cause the
Authenticating Agent to issue,
authenticate and deliver Notes. The
Company also shall provide to the
Authenticating Agent and/or Agents a
copy of the applicable Pricing
Supplement.
C.The Board of Directors of the
Company or its Executive Committee or
the designee thereof shall approve
the final terms of the Notes.
D.With respect to each trade, the
Trustee will deliver the Notes to the
Presenting Agent at the following
applicable address: Smith Barney
Inc., 390 Greenwich Street - 3rd
Floor, New York, New York 10013,
Attention: Syndicate Operations -
James Steiner; in the case of Morgan
Stanley & Co. Incorporated, Bank of
New York, Dealer Clearance
Department, 1 Wall Street-3rd Floor,
Window 3B, New York, New York 10005,
Attn: For the Account of Morgan
Stanley & Co. Incorporated. The
Trustee will keep a copy of such
Note. The Presenting Agent will
acknowledge receipt of the Note
through a broker's receipt and will
keep a copy of such Note. Delivery
of the Note will be made only against
such acknowledgment of receipt. Upon
determination that the Note has been
authorized, delivered and completed
as aforementioned, the Presenting
Agent will wire the net proceeds of
the Note after deduction of its
applicable commission to the Company
pursuant to standard wire
instructions given by the Company.
E.The Presenting Agent will deliver
the Note (with confirmations), as
well as a copy of the Prospectus and
any applicable Pricing Supplement or
Supplements received from the
Authenticating Agent to the purchaser
against payment in immediately
available funds.
F.The Authenticating Agent will send
a copy of such Note to the Company.
Settlement Procedures For offers accepted by the Company,
Timetable: Settlement Procedures "A" through "F"
set forth above shall be completed on
or before the respective times set
forth below:
Settlement Procedure Time
A-B 3:00 P.M. on the third Business
Day prior to settlement
C No later than Business Day prior
to settlement
D 2:15 P.M. on day of settlement
E 3:00 P.M. on day of settlement
F 5:00 P.M. on day of settlement
Failure to Settle: In the event that a purchaser of a
Note from the Company shall either
fail to accept delivery of or make
payment for a Note on the date fixed
for settlement, the Presenting Agent
will forthwith notify the
Authenticating Agent and the Company
by telephone, confirmed in writing,
and return the Note to the
Authenticating Agent. The
Authenticating Agent upon receipt of
the Note from the Agent, will
immediately advise the Company and
the Company will promptly arrange to
credit the account of the Presenting
Agent in an amount of immediately
available funds equal to the amount
previously paid by such Agent in
settlement for the Note. Such
credits will be made on the
settlement date if possible, and in
any event not later than the Business
Day following the settlement date;
provided that the Company has
received notice on the same day. If
such failure shall have occurred for
any reason other than failure by such
Agent to perform its obligations
hereunder or under the Distribution
Agreement, the Company will reimburse
such Agent on an equitable basis for
its loss of the use of funds during
the period when the funds were
credited to the account of the
Company. Immediately upon receipt of
the Note in respect of which the
failure occurred, the Authenticating
Agent will cancel and destroy the
Note, make appropriate entries in its
records to reflect the fact that the
Note was never issued, and
accordingly notify in writing the
Company.
EXHIBIT 4.01
=======================================================
PUBLIC SERVICE COMPANY OF OKLAHOMA
and
LIBERTY BANK AND TRUST COMPANY OF TULSA,
NATIONAL ASSOCIATION, Trustee
___________________
INDENTURE
Dated as of February 1, 1996
___________________
Senior Notes
=======================================================
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of February 1, 1996
Trust Indenture
Act Section Indenture Section
310(a)(1)................................ 609
(a)(2)................................ 609
(a)(3)................................ Not Applicable
(a)(4)................................ Not Applicable
(a)(5)................................ 609
(b) ................................ 608, 610
(c) ................................ Not Applicable
311(a) ................................ 613(a)
(b) ................................ 613(b)
(b)(2)................................ 703(a)(3), 703(b)
(c) ................................ Not Applicable
312(a) ................................ 701, 702(a)
(b) ................................ 702(b)
(c) ................................ 702(c)
313(a) ................................ 703(a)
(b) ................................ 703(b)
(c) ................................ 703(a), 703(b)
(d) ................................ 703(c)
314(a) ................................ 704
(a)(4) ............................... 1008
(b) ................................ 1009
(c)(1)................................ 102
(c)(2)................................ 102
(c)(3)................................ Not Applicable
(d) ................................ 101 ("Expert"), 1306
(e) ................................ 102
(f) ................................ Not Applicable
315(a) ................................ 601(a)
(b) ................................ 602, 703(a)(8)
(c) ................................ 601(b)
(d) ................................ 601(c)
(d)(1)................................ 601(a)(1)
(d)(2)................................ 601(c)(2)
(d)(3)................................ 601(c)(3)
(e) ................................ 514
316(a)(1)(A)............................. 512
(a)(1)(B)............................. 502, 513
(a)(2)................................ Not Applicable
(b) ................................ 508
(c) ................................ 104(e)
317(a)(1)................................ 503
(a)(2)................................ 504
(b) ................................ 1003
318(a) ................................ 107
___________
NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
TABLE OF CONTENTS*
__________
Page
RECITALS OF THE COMPANY 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION 1
SECTION 101. Definitions 1
Act 2
Affiliate 2
Authenticating Agent 2
Board of Directors 2
Board Resolution 2
Bondholders' Certificate 2
Business Day 2
Commission 2
Company 3
Company Request or Company Order 3
Corporate Trust Office 3
corporation 3
Debt 3
default 3
Defaulted Interest 3
Depositary 3
Discharged 3
Event of Default 4
Expert 4
First Mortgage Indenture 4
First Mortgage Bonds 4
First Mortgage Trustee 4
Global Security 4
Holder 4
Indenture 4
interest 4
Interest Payment Date 4
Maturity 4
Mortgage 4
Net Tangible Assets 4
Officers' Certificate 5
Opinion of Counsel 5
*NOTE: This table of contents shall not, for any purpose, be deemed
to be part of the Indenture.
Page
Original Issue Discount Security 5
Outstanding 5
Paying Agent 6
Person 6
Place of Payment 6
Predecessor Security 6
Redemption Date 6
Redemption Price 6
Regular Record Date 6
related series of Securities 6
related series of Senior Note Mortgage Bonds 6
Release Date 7
Responsible Officer 7
Securities 7
Security Register and Security Registrar 7
Senior Note Mortgage Bonds 7
Special Record Date 7
Stated Maturity 7
Subsidiary 7
Trustee 7
Trust Indenture Act 7
U.S. Government Obligations 8
Vice President 8
Voting Stock 8
SECTION 102. Compliance Certificates and Opinions 8
SECTION 103. Form of Documents Delivered to Trustee 9
SECTION 104. Acts of Holders 9
SECTION 105. Notices, Etc., to Trustee and Company 11
SECTION 106. Notice to Holders; Waiver 12
SECTION 107. Conflict with Trust Indenture Act 12
SECTION 108. Effect of Headings and Table of Contents 12
SECTION 109. Successors and Assigns 12
SECTION 110. Separability Clause 13
SECTION 111. Benefits of Indenture 13
SECTION 112. Governing Law 13
Page
SECTION 113. Legal Holidays 13
SECTION 114. No Recourse Against Others 13
ARTICLE TWO
SECURITY FORMS 14
SECTION 201. Forms Generally 14
SECTION 202. Form of Face of Security 14
SECTION 203. Form of Reverse of Security 16
SECTION 204. Form of Trustee's Certificate of
Authentication 22
ARTICLE THREE
THE SECURITIES 22
SECTION 301. Amount Unlimited; Issuable in Series 22
SECTION 302. Denominations 24
SECTION 303. Execution, Authentication, Delivery and
Dating 24
SECTION 304. Temporary Securities 27
SECTION 305. Registration, Registration of Transfer and
Exchange 27
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities 28
SECTION 307. Payment of Interest; Interest Rights
Preserved 29
SECTION 308. Persons Deemed Owners 30
SECTION 309. Cancellation 31
SECTION 310. Computation of Interest 31
SECTION 311. Global Securities 31
Page
SECTION 312. Payment of Securities 33
ARTICLE FOUR
SATISFACTION AND DISCHARGE 33
SECTION 401. Satisfaction and Discharge of Indenture 33
SECTION 402. Application of Trust Money 34
SECTION 403. Satisfaction, Discharge and Defeasance of
Securities of any Series 35
SECTION 404. Release of Related Series of Senior Note
Mortgage Bonds 37
ARTICLE FIVE
REMEDIES 38
SECTION 501. Events of Default 38
SECTION 502. Acceleration of Maturity; Rescission and
Annulment 39
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee 41
SECTION 504. Trustee May File Proofs of Claim 41
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities 42
SECTION 506. Application of Money Collected 42
SECTION 507. Limitation on Suits 43
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest 44
SECTION 509. Restoration of Rights and Remedies 44
SECTION 510. Rights and Remedies Cumulative 44
SECTION 511. Delay or Omission Not Waiver 45
Page
SECTION 512. Control by Holders 45
SECTION 513. Waiver of Past Defaults 45
SECTION 514. Undertaking for Costs 45
ARTICLE SIX
THE TRUSTEE 46
SECTION 601. Certain Duties and Responsibilities 46
SECTION 602. Notice of Defaults 47
SECTION 603. Certain Rights of Trustee 48
SECTION 604. Not Responsible for Recitals or Issuance of
Securities 49
SECTION 605. May Hold Securities 49
SECTION 606. Money Held in Trust 49
SECTION 607. Compensation and Reimbursement 49
SECTION 608. Disqualification; Conflicting Interests 50
SECTION 609. Corporate Trustee Required; Eligibility 50
SECTION 610. Resignation and Removal; Appointment of
Successor Trustee 50
SECTION 611. Acceptance of Appointment by Successor 52
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business 53
SECTION 613. Preferential Collection of Claims Against
Company 53
SECTION 614. Authenticating Agents 57
Page
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY 59
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders 59
SECTION 702. Preservation of Information; Communications to
Holders 59
SECTION 703. Reports by Trustee 60
SECTION 704. Reports by Company 62
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR TRANSFER 62
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms 62
SECTION 802. Successor Corporation to be Substituted 63
ARTICLE NINE
SUPPLEMENTAL INDENTURES 63
SECTION 901. Supplemental Indentures without Consent of
Holders 63
SECTION 902. Supplemental Indentures with Consent of
Holders 65
SECTION 903. Execution of Supplemental Indentures 66
SECTION 904. Effect of Supplemental Indentures 66
SECTION 905. Conformity with Trust Indenture Act 66
SECTION 906. Reference in Securities to Supplemental
Indentures 66
Page
ARTICLE TEN
COVENANTS 67
SECTION 1001. Payment of Principal, Premium and Interest 67
SECTION 1002. Maintenance of Office or Agency 67
SECTION 1003. Money for Securities Payments to Be Held in
Trust 67
SECTION 1004. Corporate Existence 69
SECTION 1005. Maintenance of Properties 69
SECTION 1006. Maintenance of Insurance 69
SECTION 1007. Limitation on Liens 69
SECTION 1008. Statement by Officers as to Default 71
SECTION 1009. Opinions of Counsel 71
SECTION 1010. Defeasance of Certain Obligations 72
SECTION 1011. Waiver of Certain Covenants 73
SECTION 1012. Further Assurances. 73
ARTICLE ELEVEN
REDEMPTION OF SECURITIES 74
SECTION 1101. Applicability of Article 74
SECTION 1102. Election to Redeem; Notice to Trustee 74
SECTION 1103. Selection by Trustee of Securities to
Be Redeemed 74
SECTION 1104. Notice of Redemption 75
SECTION 1105. Deposit of Redemption Price 75
SECTION 1106. Securities Payable on Redemption Date 76
Page
SECTION 1107. Securities Redeemed in Part 76
ARTICLE TWELVE
SINKING FUNDS 76
SECTION 1201. Applicability of Article 76
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities 77
SECTION 1203. Redemption of Securities for Sinking Fund 77
ARTICLE THIRTEEN
SENIOR NOTE MORTGAGE BONDS 78
SECTION 1301. Delivery of Senior Note Mortgage Bonds to the
Trustee 78
SECTION 1302. Receipt 78
SECTION 1303. Senior Note Mortgage Bonds Held by the
Trustee 79
SECTION 1304. No Transfer of Senior Note Mortgage Bonds;
Exception 79
SECTION 1305. Delivery to the Company of All Senior Note
Mortgage Bonds 79
SECTION 1306. Fair Value Certificate 79
SECTION 1307. Further Assurances 81
SECTION 1308. Exchange and Surrender of Senior Note Mortgage
Bonds 81
SECTION 1309. Terms of Senior Note Mortgage Bonds 81
SECTION 1310. Senior Note Mortgage Bonds as Security for
Securities 82
Page
ARTICLE FOURTEEN
MISCELLANEOUS 82
SECTION 1401. Counterparts. 82
TESTIMONIUM 83
SIGNATURE AND SEALS 83
ACKNOWLEDGEMENTS 84
INDENTURE, dated as of February 1, 1996, between PUBLIC
SERVICE COMPANY OF OKLAHOMA, a corporation duly organized and
existing under the laws of the State of Oklahoma (herein called
the "Company"), having its principal office at 212 East 6th
Street, Tulsa, Oklahoma 74119 and LIBERTY BANK AND TRUST COMPANY
OF TULSA, NATIONAL ASSOCIATION, a national banking association,
duly organized and existing under the laws of the United States
of America, 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 certain of its debentures, notes or other evidences of
indebtedness (herein called the "Securities"), to be issued in
one or more series as in this Indenture provided.
Subject to the provisions of Section 1310 hereof, the
Company may issue one or more series of Senior Note Mortgage
Bonds (as hereinafter defined) and deliver such series to the
Trustee to hold in trust for the benefit of the respective
Holders (as hereinafter defined) from time to time of the
Securities and, pursuant to the terms and provisions hereof, the
Company may require the Trustee to deliver to the Company for
cancellation any and all Senior Note Mortgage Bonds held by the
Trustee.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(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;
(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 at the date
of such computation; and
(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 Six, are
defined in that Article.
"Act", when used with respect to any Holder, has the
meaning specified in Section 104 hereof.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized to
authenticate and deliver Securities on behalf of the Trustee
pursuant to Section 614 hereof.
"Board of Directors" means either the board of
directors of the Company or any duly authorized committee of that
Board.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Bondholders' Certificate" shall mean a certificate
signed by the inspectors of votes, or any other party performing
such duties, of the applicable meeting of the holders of the
first mortgage bonds issued under the First Mortgage Indenture or
by the First Mortgage Trustee in the case of consents of such
holders that are sought without a meeting.
"Business Day", when used with respect to any Place of
Payment, means each day which is not a Saturday, a Sunday or a
day on which banking institutions in that Place of Payment are
authorized or obligated by law to remain closed.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or, if at any time
after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such
time.
"Company" means the Person named as the "Company" in
the first paragraph of this instrument until a successor
corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by its Chief
Executive Officer, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of
the Trustee in Oklahoma, at which at any particular time its
corporate trust business shall be administered, which at the date
hereof is 15 East Fifth Street, Tulsa, Oklahoma 74103.
"corporation" includes corporations, associations,
companies and business trusts.
"Debt" has the meaning specified in Section 1007
hereof.
"default" for purposes of Section 601 of this Indenture
is defined to mean an "Event of Default" as specified in Section
501 hereof, and for purposes of Section 310(b) of the Trust
Indenture Act, "default" shall mean an "Event of Default" as
specified in Section 501 hereof but exclusive of any period of
grace or requirement of notice.
"Defaulted Interest" has the meaning specified in
Section 307 hereof.
"Depositary" means, with respect to the Securities of
any series issuable or issued in whole or in part in the form of
one or more Global Securities, the Person designated as
Depositary by the Company pursuant to Section 301 hereof, which
must be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and, if so provided pursuant to
Section 301 hereof with respect to the Securities of a series,
any successor to such Person. If at any time there is more than
one such Person, "Depositary" shall mean, with respect to any
series of Securities, the qualifying entity which has been
appointed with respect to the Securities of that series.
"Discharged" means, with respect to the Securities of
any series, the discharge of the entire indebtedness represented
by, and obligations of the Company under, the Securities of such
series and in the satisfaction of all the obligations of the
Company under the Indenture relating to the Securities of such
series, except (A) the rights of Holders of the Securities of
such series to receive, from the trust fund described in Section
403 hereof, payment of the principal of and interest and premium,
if any, on the Securities of such series when such payments are
due, (B) the Company's obligations with respect to the Securities
of such series with respect to registration, transfer, exchange
and maintenance of a Place of Payment and (C) the rights, powers,
trusts, duties, protections and immunities of the Trustee under
this Indenture.
"Event of Default" has the meaning specified in Section
501 hereof.
"Expert" shall mean any officer of the Company familiar
with the terms of the First Mortgage Indenture and this
Indenture, any law firm, any investment banking firm, or any
other Person reasonably acceptable to the Trustee.
"First Mortgage Indenture" shall mean the Indenture,
dated July 1, 1945, by and between the Company and Liberty Bank
and Trust Company of Tulsa, National Association (successor
solely by change of corporate name to The First National Bank and
Trust Company of Tulsa (as of the date hereof, the "First
Mortgage Trustee"), as supplemented and modified from time to
time.
"First Mortgage Bonds" shall mean all first mortgage
bonds issued by the Company and outstanding under the First
Mortgage Indenture, other than Senior Note Mortgage Bonds.
"First Mortgage Trustee" shall mean the Person serving
as trustee at the time under the First Mortgage Indenture.
"Global Security" means a Security evidencing all or
part of a series of Securities, issued to the Depositary for such
series or its nominee and registered in the name of such
Depositary or nominee.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established
as contemplated by Section 301 hereof.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"Maturity", when used with respect to any Security,
means the date on which the principal of such Security or an
installment of principal becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration
of acceleration, call for redemption or otherwise.
"Mortgage" means any mortgage, pledge, lien, security
interest or other encumbrance.
"Net Tangible Assets" shall mean the total of all
assets (including revaluations thereof as a result of commercial
appraisals, price level restatement or otherwise) appearing on a
balance sheet of the Company and its Subsidiaries, net of
applicable reserves and deductions, but excluding goodwill, trade
names, trademarks, patents, unamortized debt discount and all
other like intangible assets (which term shall not be construed
to include such revaluations), less the aggregate of the current
liabilities of the Company and its Subsidiaries appearing on such
balance sheet.
"Officers' Certificate" means a certificate signed by
its Chief Executive Officer, President or a Vice President, and
by its Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be an employee of or regular counsel for the
Company, or may be other counsel reasonably acceptable to the
Trustee.
"Original Issue Discount Security" means any Security
which provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502 hereof.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this Indenture,
except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment
or redemption money or U.S. Governmental Obligations 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; and
(iii) Securities which have been paid pursuant to
Section 306 hereof or in exchange for or in lieu of which
other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands such Securities
are valid obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have
given any request, demand, authorization, direction, notice,
consent or waiver hereunder, (a) the principal amount of an
Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502 hereof, and (b)
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 relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities so owned as
described in (b) above which have been pledged in good faith may be
regarded as Outstanding if the pledgee certifies to the Trustee the
pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the
Company to pay the principal of (and premium, if any) or interest
on any Securities on behalf of the Company.
"Person" means any individual, corporation,
partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the
Securities of any series, means the place or places where the
principal of (and premium, if any) and interest, if any, on the
Securities of that series are payable as specified in or as
contemplated by Section 301 hereof.
"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 306 hereof in exchange for or in lieu of
a mutilated, destroyed, lost or stolen Security shall be deemed
to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture, exclusive of accrued and
unpaid interest.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the
date specified for that purpose as contemplated by Section 301
hereof.
"related series of Securities", when used in reference
to any series of Senior Note Mortgage Bonds, shall mean the
series of Securities which, in connection with its original
authentication and issuance pursuant to Section 303 hereof, such
series of Senior Note Mortgage Bonds were delivered to the
Trustee pursuant to Section 1301 hereof.
"related series of Senior Note Mortgage Bonds", when
used in reference to any series of Securities, shall mean the
series of Senior Note Mortgage Bonds delivered to the Trustee
pursuant to Section 1301 hereof in connection with the initial
authentication and issuance of such series of Securities pursuant
to Section 303 hereof.
"Release Date" shall mean a date chosen by the Company
which shall be not earlier than the date as of which all First
Mortgage Bonds have been retired through payment, redemption, or
otherwise (including those First Mortgage Bonds "deemed to be
paid" within the meaning of that term as used in Article XII of
the First Mortgage Indenture) at, before or after the maturity
thereof.
"Responsible Officer", when used with respect to the
Trustee, means any vice president or any trust officer of the
Trustee, which in each case is assigned to its Corporate Trust
Department, and also means, with respect to a particular
corporate trust matter, any other trust officer to whom such
matter is referred because of his knowledge of and familiarity
with the particular subject.
"Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any
Securities authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305 hereof.
"Senior Note Mortgage Bonds" shall mean any bonds
issued by the Company under the First Mortgage Indenture and
delivered to the Trustee pursuant to Section 1301 hereof.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section
307 hereof.
"Stated Maturity", when used with respect to any
Security or any installment of principal thereof or interest
thereon, means the date specified in such Security as the fixed
date on which the principal of such Security or such installment
of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries,
or by the Company and one or more other Subsidiaries. For the
purposes of this definition, "voting stock" means stock which
ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock
has such voting power by reason of any contingency.
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this instrument until a successor Trustee
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee
with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as in force at the date as of which this instrument was
executed, except as provided in Section 905 hereof.
"U.S. Government Obligations" means direct obligations
of the United States for the payment of which its full faith and
credit is pledged, or obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the
United States and the payment of which is unconditionally
guaranteed by the United States, and shall also include a
depository receipt issued by a bank or trust company as custodian
with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of a 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 U.S.
Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such
depository receipt.
"Vice President", when used with respect to the Company
or the Trustee, means any vice president or assistant vice
president, whether or not designated by a number or a word or
words added before or after the title "vice president' or
"assistant vice president".
"Voting Stock" of any corporation means stock of the
class or classes having general voting power under ordinary
circumstances to elect at least a majority of the board of
directors of a corporation (irrespective of whether or not at the
time stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this
Indenture, 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 relating to the proposed action have been complied
with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or
request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating
to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall
include:
(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
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer 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 may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Holders in Person or by agent duly appointed
in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601 hereof) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this
Section 104.
Without limiting the generality of the foregoing,
unless otherwise established in or pursuant to a Board Resolution
or set forth or determined in an Officers' Certificate, or
established in one or more indentures
supplemental hereto, pursuant to Section 301 hereof, a Holder,
including a Depositary that is a Holder of a Global Security, may
make, give or take, by a proxy, or proxies, duly appointed in
writing, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in this Indenture to be
made, given or taken by Holders, and a Depositary that is a
Holder of a Global Security may provide its proxy or proxies to
the beneficial owners of interests in any such Global Security
through such Depositary's standing instructions and customary
practices.
(b) The fact and date of the execution by any Person
of any such instrument, writing or proxy may be proved by the
affidavit of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing
such instrument, writing or proxy acknowledged to him the
execution thereof. Where such execution is by a signer acting in
a capacity other than his individual capacity, such certificate
or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such
instrument, writing or proxy, or the authority of the Person
executing the same, may also be proved in any other manner which
the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any
Security shall bind every future Holder of the same Security and
the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(e) The Company may set any day as the record date for
the purpose of determining the Holders of Outstanding Securities
of any series entitled to make any request or demand, or give any
authorization, direction, notice, consent or waiver, or take any
other action, provided or permitted by this Indenture to be made,
given or taken by Holders of Securities of such series.
With regard to any record date set pursuant to this
paragraph, the Holders of Outstanding Securities of the relevant
series on such record date (or their duly appointed agents), and
only such Persons, shall be entitled to take relevant action,
whether or not such Holders remain Holders after such record
date. With regard to any action that may be taken hereunder only
by Holders of a requisite principal amount of Outstanding
Securities of any series (or their duly appointed agents) and for
which a record date is set pursuant to this paragraph, the
Company may, at its option, set an expiration date after which no
such action purported to be taken by any Holder shall be
effective hereunder unless taken on or prior to such expiration
date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date (or their duly
appointed agents). On or prior to any expiration date set
pursuant to this paragraph, the Company may, on one or more
occasions at its option, extend such expiration date to any later
date. Nothing in this paragraph shall prevent any Holder (or any
duly appointed agent thereof) from taking, at any time, any action
contrary to or different from, any action previously taken, or
purported to have been taken, hereunder by such Holder, in which
event the Company may set a record date in respect thereof pursuant
to this paragraph. Notwithstanding the foregoing or the Trust Indenture
Act, the Company shall not set a record date for, and the
provisions of this paragraph shall not apply with respect to, any
action to be taken by Holders pursuant to Section 501, 502 or 512
hereof.
Upon receipt by the Trustee of notice of any default
described in Section 501 hereof, any declaration of acceleration,
or any rescission and annulment of any such declaration, pursuant
to Section 502 hereof or of any direction in accordance with
Section 512 hereof, a record date shall automatically and without
any other action by any Person be set for the purpose of
determining the Holders of Outstanding Securities of the series
entitled to join in such notice, declaration, or rescission and
annulment, or direction, as the case may be, which record date
shall be the close of business on the day the Trustee receives
such notice, declaration, rescission and annulment or direction,
as the case may be. The Holders of Outstanding Securities of
such series on such record date (or their duly appointed agent),
and only such Persons, shall be entitled to join in such notice,
declaration, rescission and annulment, or direction, as the case
may be, whether or not such Holders remain Holders after such
record date; provided that, unless such notice, declaration,
rescission and annulment, or direction, as the case may be, shall
have become effective by virtue of Holders of the requisite
principal amount of Outstanding Securities of such series on such
record date (or their duly appointed agents) having joined
therein on or prior to the 90th day after such record date, such
notice of default, declaration, or rescission and annulment or
direction given or made by the Holders, as the case may be, shall
automatically and without any action by any Person be canceled
and of no further effect. Nothing in this paragraph shall
prevent a Holder (or a duly appointed agent thereof) from giving,
before or after the expiration of such 90-day period, a notice of
default, a declaration of acceleration, a rescission and
annulment of a declaration of acceleration or a direction in
accordance with Section 512 hereof, contrary to or different
from, or, after the expiration of such period, identical to, a
previously given notice, declaration, rescission and annulment,
or direction, as the case may be, that has been canceled pursuant
to the proviso to the preceding sentence, in which event a new
record date in respect thereof shall be set pursuant to this
paragraph.
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, the First Mortgage
Trustee or by the Company shall be sufficient for every
purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust
Office, or
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed,
first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this
instrument or at any other address previously furnished in
writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of
any event, 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 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. 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.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable
to give such notice by mail, then such notification as shall be
made at the direction of the Company in a manner reasonably
calculated, to the extent practicable under the circumstances, to
provide prompt notice shall constitute a sufficient notification
for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts
with any provision of the Trust Indenture Act or another
provision which is required or deemed to be included in this
Indenture by any of the provisions of the Trust Indenture Act,
the provision or requirement of the Trust Indenture Act 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, such provision of the Trust Indenture Act 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.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express
or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders, any
benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by
and construed in accordance with the laws of the State of New
York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption
Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of
interest, if any, or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on
the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, provided that no
interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may
be.
SECTION 114. No Recourse Against Others.
No recourse for the payment of the principal of or any
premium or interest on any Security or any Senior Note Mortgage
Bond, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant
or agreement of the Company, contained in this Indenture or the
First Mortgage Indenture or in any supplemental indenture, or in
any Security or any Senior Note Mortgage Bond, or because of the
creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or any successor
corporation, either directly or through the Company or any
successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that all
such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this
Indenture and the issuance of the Securities.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially
the form set forth in this Article, or in such other form as
shall be established by or pursuant to a Board Resolution or in
one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and
may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or
as may, consistently herewith, be determined by the officer or
officers executing such Securities, as evidenced by the officer's
or officers' execution of the Securities. If the form of
Securities of any series is established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such
action shall be certified by an authorized officer of the
Company, and delivered to the Trustee at or prior to the delivery
of the Company Order contemplated by Section 303 hereof for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be
in substantially the form set forth in this Article.
The definitive Securities shall be printed,
lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officer or
officers executing such Securities, as evidenced by the officer's
or officers' execution of such Securities.
SECTION 202. Form of Face of Security.
[If the Security is to be a Global Security, insert -
This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name
of a Depositary or a nominee of a Depositary. This Security is
exchangeable for Securities registered in the name of a person
other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this
Security (other than a transfer of this Security as a whole by
the Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Global Security is presented by an
authorized representative of The Depository Trust Company, a New
York corporation ("DTC") to the issuer or its agent for
registration of transfer, exchange or payment, and any definitive
Security is issued in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL in as much as the registered owner hereof,
Cede & Co., has an interest herein.]
PUBLIC SERVICE COMPANY OF OKLAHOMA
[Title of the Security]
CUSIP No. __________ $__________
No. ________________
PUBLIC SERVICE COMPANY OF OKLAHOMA, a corporation duly
organized and existing under the laws of the State of Oklahoma
(herein called the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to
___________________________________, or registered assigns, the
principal sum of ________________________ Dollars on
_________________________________[If the Security is to bear
interest prior to Maturity, insert -- , and to pay interest
thereon from ________, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for,
semi-annually on ____________ and ___________ in each year,
commencing ________, at the rate per annum provided in the title
hereof, until the principal hereof is paid or made available for
payment [If applicable, insert -- , and, subject to the terms of
the Indenture, at the rate per annum provided in the title hereof
on any overdue principal and premium and (to the extent that the
payment of such interest shall be legally enforceable) on any
overdue installment of interest]. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the _______ or
________ (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not
so punctually paid or duly provided for will forthwith cease to
be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to Holders of Securities of this series not less
than 10 days prior to such Special Record Date, or be paid at any
time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities
of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said
Indenture.]
[If the Security is not to bear interest prior to
Maturity, insert -- The principal of this Security shall not bear
interest except in the case of a default in payment of principal
upon acceleration, upon redemption or at Stated Maturity and in
such case the overdue principal of this Security shall bear
interest at the rate of [yield to maturity]% per annum (to the
extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such default in
payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be
payable on demand. Any such interest on any overdue principal
that is not so paid on demand shall bear interest at the rate of
[yield to maturity]% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue
from the date of such demand for payment to the date payment of
such interest has been made or duly provided for, and such
interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and
interest[, if any,] on this Security will be made at the office
or agency of the Company maintained for that purpose in ________,
in [such coin or currency of the United States of America as at
the time of payment is legal tender for the payment of public and
private debts -- or state other currency]; [If this Security is
not a Global Security, insert -- provided, however, that at the
option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register] [If this Security
is a Global Security, insert applicable manner of payment].
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated:
[Seal] PUBLIC SERVICE COMPANY OF OKLAHOMA
By______________________________________
[Name]
[Title]
[If more than one
officer is to sign -- By______________________________________
[Name]
[Title]
SECTION 203. Form of Reverse of Security.
PUBLIC SERVICE COMPANY OF OKLAHOMA
[Title of the Security]
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture,
dated as of __________ __, 1996 (herein called the "Indenture"),
between the Company and Liberty Bank and Trust Company of Tulsa,
National Association, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities and
of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series
designated on the face hereof [, limited in aggregate principal
amount to $________].
[If applicable, insert prior to the Release Date --
Prior to the Release Date (as hereinafter defined), the
Securities of this series will be secured by first mortgage bonds
(the "Senior Note Mortgage Bonds") delivered by the Company to
the Trustee for the benefit of the Holders of the Securities,
issued under the Indenture, dated July 1, 1945, by and between
the Company and Liberty Bank and Trust Company of Tulsa, National
Association (successor solely by change of corporate name to The
First National Bank and Trust Company of Tulsa (the "First
Mortgage Trustee"), as supplemented and modified (the "First
Mortgage Indenture") pursuant to the Supplemental Indenture dated
______________. Reference is made to the First Mortgage Indenture
and the Indenture for a description of property mortgaged and
pledged, the nature and extent of the security, the rights of the
holders of the first mortgage bonds under the First Mortgage
Indenture and of the First Mortgage Trustee in respect thereof,
the duties and immunities of the First Mortgage Trustee and the
terms and conditions upon which the Senior Note Mortgage Bonds
are secured and the circumstances under which additional first
mortgage bonds may be issued.
FROM AND AFTER THE DATE CHOSEN BY THE COMPANY WHICH IS
AFTER SUCH TIME AS ALL FIRST MORTGAGE BONDS (OTHER THAN SENIOR
NOTE MORTGAGE BONDS) ISSUED UNDER THE FIRST MORTGAGE INDENTURE
HAVE BEEN RETIRED THROUGH PAYMENT, REDEMPTION OR OTHERWISE
(INCLUDING THOSE FIRST MORTGAGE BONDS "DEEMED TO BE PAID" WITHIN
THE MEANING OF THAT TERM AS USED IN ARTICLE XII OF THE FIRST
MORTGAGE INDENTURE) AT, BEFORE OR AFTER THE MATURITY THEREOF (THE
"RELEASE DATE"), THE SENIOR NOTE MORTGAGE BONDS SHALL, AT THE
OPTION OF THE COMPANY, CEASE TO SECURE THE SECURITIES OF THIS
SERIES IN ANY MANNER. IN CERTAIN CIRCUMSTANCES PRIOR TO THE
RELEASE DATE AS PROVIDED IN THE INDENTURE, THE COMPANY IS
PERMITTED TO REDUCE THE AGGREGATE PRINCIPAL AMOUNT OF A SERIES OF
SENIOR NOTE MORTGAGE BONDS HELD BY THE TRUSTEE, BUT IN NO EVENT
PRIOR TO THE RELEASE DATE TO AN AMOUNT LESS THAN THE AGGREGATE
OUTSTANDING PRINCIPAL AMOUNT OF THE SERIES OF SECURITIES
INITIALLY ISSUED CONTEMPORANEOUSLY WITH SUCH SENIOR NOTE MORTGAGE
BONDS.]
[If applicable, insert -- This security is not subject
to redemption prior to maturity.] [If applicable, insert -- The
Securities of this series are subject to redemption upon not less
than 30 or more than 60 days' notice by mail to the Holders of
such Securities at their addresses in the Security Register for
such series, [if applicable, insert -- (1) on __________ in any
year commencing with the year ____ and ending with the year ____
through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)]
at any time [on or after ___________, 19__], as a whole or in
part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount):
If redeemed [on or before _____________, ___%, and if
redeemed] during the 12-month period beginning ___________, of
the years indicated:
Redemption Redemption
Year Price Year Price
and thereafter at a Redemption Price equal to ___% of the
principal amount, together in the case of any such redemption [if
applicable, insert -- (whether through operation of the sinking
fund or otherwise)] with accrued and unpaid interest to the
Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in
the Indenture.]
[If applicable, insert -- The Securities of this series
are subject to redemption upon not less than 30 or more than 60
days' notice by mail to the Holders of such Securities at their
addresses in the Security Register for such series, (1) on
____________ in any year commencing with the year ____ and ending
with the year ____ through operation of the sinking fund for this
series at the Redemption Prices for redemption through operation
of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below, and (2) at any time [on or
after ____________], as a whole or in part, at the election of
the Company, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table
below:
If redeemed during the 12-month period beginning
______________ of the years indicated:
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
and thereafter at a Redemption Price equal to ___% of the
principal amount, together in the case of any such redemption
(whether through operation of the sinking fund or otherwise) with
accrued and unpaid interest to the Redemption
Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of
such Securities, or one or more Predecessor Securities, of record
at the close of business on the relevant Record Dates referred to
on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the
foregoing, the Company may not, prior to _________, redeem any
Securities of this series as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly,
of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial
practice) of less than ___% per annum.]
[The sinking fund for this series provides for the
redemption on _________ in each year beginning with the year ____
and ending with the year ____ of [not less than] __________
[("mandatory sinking fund") and, at the option of the Company,
not more than __________] aggregate principal amount of
Securities of this series. [Securities of this series acquired
or redeemed by the Company otherwise than through [mandatory]
sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made
in the order in which they become due.]]
[In the event of redemption of this Security in part
only, a new Security or Securities of this series and of like
tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions for defeasance of (a)
the entire indebtedness of this Security and (b) certain
restrictive covenants upon compliance by the Company with certain
conditions set forth therein.
[If the Security is not an Original Issue Discount
Security, insert -- If an Event of Default with respect to
Securities of this series shall occur and be continuing, the
principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the
Indenture [If applicable, insert -- and, upon such declaration,
the Trustee can demand the redemption of the Senior Note Mortgage
Bonds as provided in the Indenture].]
[If the Security is an Original Issue Discount
Security, insert -- If an Event of Default with respect to
Securities of this series shall occur and be continuing, an
amount of principal of the Securities of this series (the
"Acceleration Amount") may be declared due and payable in the
manner and with the effect provided in the Indenture [If
applicable, insert -- and, upon such declaration, the Trustee can
demand the redemption of the Senior Note Mortgage Bonds as
provided in the Indenture]. In case of a declaration of
acceleration on or before ________, __ or on _____________ in any
year, the Acceleration Amount per ______ principal amount at
Stated Maturity of the Securities shall be equal to the amount
set forth in respect of such date below:
Acceleration
Amount
per _______
principal amount
Date of declaration at Stated Maturity
and in case of a declaration of acceleration on any other date,
the Acceleration Amount shall be equal to the Acceleration Amount
as of the next preceding date set forth in the table above, plus
accrued original issue discount (computed in accordance with the
method used for calculating the amount of original issue discount
that accrues for Federal income tax purposes) from such next
preceding date to the date of declaration at the yield to
maturity. For the purpose of this computation the yield to
maturity is ___%. Upon payment (i) of the Acceleration Amount so
declared due and payable and (ii) of interest on any overdue
principal and overdue interest (in each case to the extent that
the payment of such interest shall be legally enforceable), all
of the Company's obligations in respect of the payment of the
principal of and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of all series to be affected
(voting as a class). The Indenture also contains provisions
permitting the Holders of specified percentages in principal
amount of the securities of each series at the time Outstanding,
on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security
issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of (and premium, if any) and interest, if
any, on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
[If this Security is a Global Security, insert -- This
Security shall be exchangeable for Securities registered in the
names of Persons other than the Depositary with respect to such
series or its nominee only as provided in this paragraph. This
Security shall be so exchangeable if (x) the Depositary notifies
the Company that it is unwilling or unable to continue as
Depositary for such series or at any time ceases to be a clearing
agency registered as such under the Securities Exchange Act of
1934, (y) the Company executes and delivers to the Trustee an
Officers' Certificate providing that this Security shall be so
exchangeable or (z) there shall have occurred and be continuing an
Event of Default with respect to the Securities of such series.
Securities so issued in exchange for this Security shall be of the
same series, having the same interest rate, if any, and maturity and
having the same terms as this Security, in authorized denominations and
in the aggregate having the same principal amount as this
Security and registered in such names as the Depositary for such
Global Security shall direct.]
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of [If this Security
is a Global Security, insert -- a Security of the series of which
this Security is a part] [If this Security is not a Global
Security, insert -- this Security] is registrable in the Security
Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place
where the principal of (and premium, if any) and interest, if
any, on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of [If this Security is a Global
Security insert -- the series of which this Security is a part]
[If this Security is not a Global Security, insert -- this
series] are issuable only in registered form without coupons in
denominations of $__________ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for
a like aggregate principal amount of Securities of this series
and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name
this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
This Security shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
SECTION 204. Form of Trustee's Certificate of
Authentication.
This is one of the Securities of the series designated
herein and referred to in the within-mentioned Indenture.
Liberty Bank and Trust Company of Tulsa,
National Association,
as Trustee
By____________________________
Authorized Officer
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 or pursuant to a Board Resolution,
and, subject to Section 303 hereof, set forth 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:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from all
other Securities);
(2) any limit upon the aggregate principal amount of
the Securities of the series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
the series pursuant to Sections 304, 305, 306, 906, or 1107
hereof and except for any Securities which, pursuant to
Section 303 hereof, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of
the series shall be payable, if other than the Person in
whose name the Security (or one or more Predecessor
Securities) is registered at the close of business on the
regular Record Date for such interest;
(4) the date or dates on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of the
series shall bear interest, if any, the date or dates from
which such interest shall accrue, the Interest Payment Dates
on which such interest shall be
payable and the Regular Record Date for the interest payable on
any Interest Payment Date;
(6) the place or places, if any, in addition to or in
the place of the office or agency of the Company in the City
of New York, State of New York or the principal office or
place of business of the Trustee or its successors in trust
under the Indenture, which, at the date hereof, is located
at 15 East Fifth Street, Tulsa, Oklahoma, where the
principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable and where such
Securities may be registered or transferred;
(7) the period or periods within which, the price or
prices at which and the terms and conditions upon which
Securities of the series may be redeemed, in whole or in
part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem,
repay or purchase Securities of the series pursuant to any
sinking fund or analogous provisions or at the option of a
Holder thereof, and the period or periods within which, the
price or prices at which and the terms and conditions upon
which Securities of the series shall be redeemed, repaid or
purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which
Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series
which shall be payable upon declaration of acceleration of
the Maturity thereof pursuant to Section 502 hereof;
(11) if other than such coin or currency of the United
States of America as at the time of payment is legal tender
for payment of public or private debts, the coin or
currency, including composite currencies such as the
European Currency Unit, in which payment of the principal of
(and premium, if any) and interest, if any, on the
Securities of the series shall be payable;
(12) if the principal of (and premium, if any) or
interest, if any, on the Securities of the series are to be
payable, at the election of the Company or a Holder thereof,
in a coin or currency other than that in which the
Securities are stated to be payable, the period or periods
within which, and the terms and conditions upon which, such
election may be made;
(13) if the amount of payments of principal of (and
premium, if any) or interest, if any, on the Securities of
the series may be determined with reference to an index
based on a coin or currency other than that in which the
Securities are stated to be payable, the manner in which
such amounts shall be determined;
(14) any provisions permitted by this Indenture
relating to Events of Default or covenants of the Company
with respect to such series of Securities;
(15) if the Securities of the series shall be issued in
whole or in part in the form of one or more Global
Securities, (i) whether beneficial owners of interests in
any such Global Security may exchange such interests for
Securities of such series of like tenor and of authorized
form and denomination and the circumstances under which any
such changes may occur, if other than in the manner provided
in Section 305 hereof and (ii) the Depositary for such
Global Security or Securities;
(16) if prior to the Release Date, the designation of
the series of Senior Note Mortgage Bonds being delivered to
the Trustee in connection with such series on Securities, if
any; and
(17) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture),
including, without limitation, any terms required or
appropriate to establish one or more series of medium-term
notes.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise
be provided in or pursuant to the Board Resolution referred to
above and set forth in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series, including the form
of Security of such series, are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record
of such action shall be certified by the Secretary or an
Assistant Secretary or other authorized officer of the Company,
and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 hereof for the
authentication and delivery of such series of Securities.
SECTION 302. Denominations.
The Securities of each series shall be issuable in
registered form without coupons, except as otherwise expressly
provided in a supplemental indenture hereto, in such
denominations as shall be specified as contemplated by Section
301 hereof. In the absence of any such provisions with respect
to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the
Company by its Chief Executive Officer, its President or one of
its Vice Presidents or its Treasurer under its corporate seal
reproduced thereon, and which need not be attested. The
Securities of any series shall be executed by such additional
officer, if any, as shall be specified pursuant to Section 301
hereof. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signature of
any individual who was at any time the proper officer of the
Company shall bind the Company, notwithstanding that such
individual has ceased to hold such office prior to the
authentication and delivery of such Securities or did not hold
such office at the date of authentication 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 (i) a Company Order for the
authentication and delivery of such Securities, (ii) an Officers'
Certificate stating that (x) the Company is not, and upon the
authentication by the Trustee of the series of Securities, will
not be in default under any of the terms or covenants contained
in the Indenture, (y) all conditions that must be met by the
Company to issue Securities under the Indenture have been met,
and (z) if prior to the Release Date, the series of Senior Note
Mortgage Bonds being delivered to the Trustee meets the
requirements of Section 1310 hereof, (iii) if prior to the
Release Date, a certificate of an Expert meeting the requirements
of Section 1306(a) hereof, and (iv) if prior to the Release Date,
a series of Senior Note Mortgage Bonds meeting the requirements
of Section 1309 hereof, and the Trustee in accordance with the
Company Order shall authenticate and deliver such Securities. If
the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301 hereof, 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 Section 601 hereof) shall
be fully protected in relying upon, an Opinion of Counsel
stating,
(a) if the form of such Securities has been
established by or pursuant to Board Resolution as permitted
by Section 201 hereof, that such form has been established
in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been
established by or pursuant to Board Resolution as permitted
by Section 301 hereof, that such terms have been established
in conformity with the provisions of this Indenture;
(c) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally
binding obligations of the Company, enforceable in
accordance with their terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or transfer or other similar laws
relating to or affecting the rights of creditors generally
and except as the enforceability thereof is subject to the
application of general principles of equity (regardless of
whether considered in a proceeding in equity or at law),
including, without limitation, (i) the possible
unavailability of specific performance, injunctive relief or
any other equitable remedy and (ii) concepts of materiality,
reasonableness, good faith and fair dealing;
(d) if prior to the Release Date, that the Senior Note
Mortgage Bonds to be delivered to the Trustee in connection
with the issuance of such series of Securities have been duly
authorized, and that such Senior Note Mortgage Bonds, when
authenticated and delivered by the First Mortgage Trustee and
issued by the Company in accordance with the terms of the First
Mortgage Indenture, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with
their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent
conveyance or transfer or other similar laws relating to or
affecting the rights of creditors generally and except as
the enforceability thereof is subject to the application of
general principles of equity (regardless of whether
considered in a proceeding in equity or at law), including,
without limitation, (i) the possible unavailability of
specific performance, injunctive relief or any other
equitable remedy and (ii) concepts of materiality,
reasonableness, good faith and fair dealing, and except as
enforcement of remedial and procedural provisions thereof
may be limited by state laws affecting the remedies for the
enforcement of the security provided for in the First
Mortgage Indenture; and that such Senior Note Mortgage Bonds
will be entitled to the benefit of the First Mortgage
Indenture, equally and ratably, with all other First
Mortgage Bonds outstanding thereunder, except as to sinking
fund provisions; and
(e) if prior to the Release Date, that the First
Mortgage Indenture and any required financing statements
have been duly filed and recorded in all places where such
filing or recording is necessary for the perfection or
preservation of the lien of the First Mortgage Indenture,
and the First Mortgage Indenture constitutes a valid and
perfected first lien upon the property purported to be
covered thereby, subject only to permissible encumbrances
(as defined in the First Mortgage Indenture).
If such form or terms have been so established, the Trustee shall
not be required to authenticate such Securities if the issue of
such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties, protections or immunities under the
Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 hereof
and of the preceding paragraph, if all Securities of a series are
not to be originally issued at one time, it shall not be
necessary to deliver the Board Resolution, the Officers'
Certificate, or an indenture supplemental hereto otherwise
required pursuant to Section 301 hereof or the Company Order, the
Officers' Certificate, the certificate of an Expert, the Senior
Note Mortgage Bonds and the Opinion of Counsel otherwise required
pursuant to such preceding paragraph at or prior to the time of
authentication of each Security of such series if such documents
are delivered at or prior to the time of authentication upon
original issuance of the first Security of such series to be
issued. If all of the Securities of a series are not
authenticated and issued at one time, for each issuance of
Securities after the initial issuance of Securities, the Company
shall be required only to deliver to the Trustee the Security
executed by the Company together with a Company Order to the
Trustee to authenticate such Security and to deliver such
Security in accordance with the instructions specified by such
Company Order. Any such Company Order shall constitute a
representation and warranty by the Company that the statements
made in the Officers' Certificate delivered to the Trustee prior
to the authentication and issuance of the first Security of such
series are true and correct on the date thereof as if made on and
as of the date thereof.
Each Security shall be dated the date of its
authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate 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 309 hereof
together with a written statement (which need not comply with
Section 102 hereof 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. 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 printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officer or officers
executing such Securities may determine, as evidenced by their
execution of such Securities.
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
and of like tenor 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.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate
Trust Office of the Trustee a register (the register maintained
in such office and in any other office or agency of the Company
in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of
Securities. The Trustee is hereby appointed "Security Registrar" for the
purpose of registering Securities and transfers of Securities as
herein provided.
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, of any authorized denominations and of a like
aggregate principal amount and tenor.
At the option of the Holder, any Security or Securities
of any series, other than a Global Security, may be exchanged for
other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor,
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 deliver, 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 Trustee) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed, by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made to the Holder for any
registration of transfer or exchange of Securities, but the
Company may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Sections 304, 906 or 1107 hereof
not involving any transfer.
The Company shall not be required (i) to issue,
register the transfer of or exchange Securities of any series
during a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section
1103 hereof and ending at the close of business on the day of
such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
The provisions of this Section 305 are, with respect to
any Global Security, subject to Section 311 hereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in
exchange therefor a new Security of the same series and of like
tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction,
loss or theft of any Security and (ii) such security or indemnity
as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security, a new Security of
the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
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 306, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to
this Section 306 in lieu of any destroyed, lost or stolen
Security shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that
series duly issued hereunder.
The provisions of this Section 306 are exclusive and
shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of
such series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause
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 mailed, first-class postage
prepaid, to each Holder of Securities of such series at his
address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section
307, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration
of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the
purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 307 hereof) interest, if any, on
such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary. All such payments so made to
any such person, or upon such person's order, shall be valid,
and, to the extent of the sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such
Security.
No holder of any beneficial interest in any Global
Security held on its behalf by a Depositary shall have any rights
under this Indenture with respect to such Global Security, and
such Depositary may be treated by the Company, the Trustee, and
any agent of the Corporation or the Trustee as the owner of such
Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall impair, as between a Depositary
and such holders of beneficial interests, the operation of
customary practices governing the exercise of the rights of the
Depositary as holder of any Security.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be
promptly canceled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so
delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section 309, except
as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of as directed
by a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by
Section 301 hereof for Securities of any series, 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 311. Global Securities.
If the Company shall establish pursuant to Section 301
hereof that the Securities of a particular series are to be
issued in the form of a Global Security, then the Company shall
execute and the Trustee shall, in accordance with Section 303
hereof, authenticate and deliver, a Global Security or Securities
which (i) shall represent, and shall be denominated in an
aggregate amount equal to the aggregate principal amount of, all
of the Outstanding Securities of such series, (ii) shall be
registered in the name of the Depositary or its nominee, (iii)
shall be delivered by the Trustee to the Depositary or pursuant
to the Depositary's instruction and (iv) shall bear a legend
substantially to the following effect:
"This Security is a Global Security within the meaning
of the Indenture hereinafter referred to and is registered
in the name of a Depositary or a nominee of a Depositary.
This Security is exchangeable for Securities registered in
the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the
Indenture, and no transfer of this Security (other than a
transfer of this Security as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary) may
be registered except in limited circumstances.
Unless this Global Security is presented by an
authorized representative of the Depositary to the Company
or its agent for registration of transfer, exchange or
payment, and any definitive Security is issued in the name
of [Cede & Co.] or in such other name as is requested by an
authorized representative of the Depositary (and any payment
is made to [Cede & Co.] or to such other entity as is
requested by an authorized representative of the
Depositary), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as
much as the registered owner hereof, [Cede & Co.], has an
interest herein."
Notwithstanding the provisions of Section 305 hereof,
the Global Security of a series may be transferred, in whole but
not in part and in the manner provided in Section 305 hereof,
only to another nominee of the Depositary for such series, or to
a successor Depositary for such series selected or approved by
the Company or to a nominee of such successor Depositary.
If (i) at any time the Depositary for a series of
Securities notifies the Company that it is unwilling or unable to
continue as Depositary for such series or if at any time the
Depositary for such series shall no longer be registered or in
good standing under the Exchange Act, or other applicable statute
or regulation and a successor Depositary for such series is not
appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the
case may be or (ii) there shall have occurred and be continuing
after any applicable grace periods an Event of Default with
respect to the Securities for a series, then in each such case,
this Section 311 shall no longer be applicable to the Securities
of such series and the Company will execute, and subject to
Section 305 hereof, the Trustee will authenticate and deliver
Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global
Securities of such series in exchange for such Global Securities.
In addition, the Company may at any time determine that the
Securities of any series shall no longer be represented by Global
Securities and that the provisions of this Section 311 shall no
longer apply to the Securities of such series. In such event the
Company will execute and subject to Section 305 hereof, the
Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and deliver
Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global
Securities of such series in exchange for such Global Securities.
Upon the exchange of the Global Securities for such Securities in
definitive registered form without coupons, in authorized
denominations, the Global Securities shall be canceled by the
Trustee. Such Securities in definitive registered form issued in
exchange for the Global Securities pursuant to this Section 311,
shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to the instructions
from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver Securities to
the Depositary for delivery to the persons in whose names such
Securities are so registered.
SECTION 312. Payment of Securities.
The Trustee shall receive the Senior Note Mortgage
Bonds from the Company as provided in this Indenture and shall
hold the Senior Note Mortgage Bonds, and any and all sums payable
thereon or with respect thereto or realized therefrom, in trust
for the benefit of the Holders of the Securities, as herein
provided. Subject to Article Five hereof, all payments made by
the Company to the Trustee on a series of Senior Note Mortgage
Bonds shall be applied by the Trustee to pay, when due, principal
of, premium, if any, and interest on the related series of
Securities and, to the extent so applied, shall satisfy the
Company's obligations on such Securities. Notwithstanding the
foregoing, the Company's obligation to make payments of principal
of, premium, if any, and interest on any series of Senior Note
Mortgage Bonds shall be fully satisfied by making timely payments
of principal of, premium, if any, and interest on the related
series of Securities.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be
of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either (A) all Securities theretofore
authenticated and delivered (other than (i) Securities which
have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 hereof and (ii)
Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003 hereof) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company, or
(iv) are deemed paid and discharged pursuant
to Section 403 hereof, as applicable,
and the Company, in the case of (i), (ii), (iii) or (iv)
above, has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount of
(a) money in the currency or units of currency in which such
Securities are payable, or (b) in the case of (ii) or (iii)
above and (except as provided in an indenture supplemental
hereto) if no Securities of any series Outstanding are
subject to repurchase at the option of Holders (I) U.S.
Government Obligations (denominated in the same currency or
units of currency in which such Securities are payable)
which through the payment of interest and principal in
respect thereof in accordance with their terms will provide
not later than one day before the Stated Maturity or
Redemption Date, as the case may be, money in an amount, or
(II) a combination of money or U.S. Government Obligations
as provided in (I) above, in each case, 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 to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under
Section 607 hereof, the obligations of the Trustee to any
Authenticating Agent under Section 614 hereof and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section 401 or if money or U.S. Government
Obligations shall have been deposited with or received by the
Trustee pursuant to Section 403 hereof, the obligations of the
Trustee under Section 402 hereof and the last paragraph of
Section 1003 hereof shall survive.
SECTION 402. Application of Trust Money.
(a) Subject to the provisions of the last paragraph of
Section 1003 hereof, all money or U.S. Government Obligations
deposited with the Trustee pursuant to Sections 401, 403 or 1010
hereof and all money received by the Trustee in respect of U.S.
Government Obligations deposited with the Trustee pursuant to
Sections 401, 403 or 1010 hereof, shall be held in trust and
applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, 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 or received by the Trustee or to make mandatory sinking fund
payments or analogous payments as contemplated by Sections 401,
403 or 1010 hereof.
(b) The Company shall pay and shall indemnify the
Trustee against any tax, fee or other charge imposed on or
assessed against U.S. Government Obligations deposited pursuant
to Sections 401, 403 or 1010 hereof or the interest and principal
received in respect of such obligations other than any payable by
or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company
from time to time upon Company Request any U.S. Government
Obligations or money held by it as provided in Sections 401, 403
or 1010 hereof which, in the opinion of a nationally recognized
firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, are then
in excess of the amount thereof which then would have been
required to be deposited for the purpose for which such U.S.
Government Obligations or money was deposited or received. This
provision shall not authorize the sale by the Trustee of any U.S.
Government Obligations held under this Indenture.
SECTION 403. Satisfaction, Discharge and Defeasance of
Securities of any Series.
The Company shall be deemed to have paid and Discharged
the entire indebtedness on all the Outstanding Securities of any
series on the 91st day after the date of the deposit referred to
in subparagraph (e) hereof, and the provisions of this Indenture,
as it relates to such Outstanding Securities of such series,
shall no longer be in effect (and the Trustee, at the expense of
the Company, shall at Company Request execute proper instruments
acknowledging the same), except as to:
(a) the rights of Holders of Securities of such series
to receive, from the trust funds described in subparagraph
(e) hereof, (i) payment of the principal of (and premium, if
any) and each installment of principal of (and premium, if
any) or interest, if any, on the Outstanding Securities of
such series on the Stated Maturity of such principal or
installment of principal or interest or to and including the
Redemption Date irrevocably designated by the Company
pursuant to subparagraph (i) hereof and (ii) the benefit of
any mandatory sinking fund payments applicable to the
Securities of such series on the day of which such payments
are due and payable in accordance with the terms of this
Indenture and the Securities of such series;
(b) the Company's obligations with respect to such
Securities of such series under Sections 305, 306, 1002 and
1003 hereof, if the Company shall have irrevocably
designated a Redemption Date pursuant to subparagraph (i)
hereof, Sections 1101, 1104 and 1106 hereof as they apply to
such Redemption Date;
(c) the Company's obligations with respect to the
Trustee under Section 607 hereof; and
(d) the rights, powers, trust and immunities of the
Trustee hereunder and the duties of the Trustee under
Section 402 hereof and, if the Company shall have
irrevocably designated a Redemption Date pursuant to
subparagraph (i) hereof, Article Eleven and the duty of the
Trustee to authenticate Securities of such series on
registration of transfer or exchange;
provided that, the following conditions shall have been
satisfied:
(e) the Company has deposited or caused to be
irrevocably deposited (except as provided in Section 402(c)
hereof and the last paragraph of Section 1003 hereof) with
the Trustee as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series, (i) money, in the
currency or units of currency in which such Securities are
payable, in an amount, or (ii) (except as provided in a
supplemental indenture or Board Resolution with respect to
such series) if Securities of such series are not subject to
repurchase at the option of Holders, (A) U.S. Government
Obligations (denominated in the same currency or units of
currency in which such Securities are payable) which through
the payment of interest and principal in respect thereof in
accordance with their terms will provide not later than one
day before the due date of any payment referred to in clause
(x) or (y) of this subparagraph (e) money in an amount or
(B) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent
certified public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which the Trustee shall be instructed to
apply to pay and discharge, (x) the principal of (and
premium, if any) and each installment of principal (and
premium, if any) and interest, if any, on the Outstanding
Securities of such series on the Stated Maturity of such
principal or installment of principal or interest or to and
including the Redemption Date irrevocably designated by the
Company pursuant to subparagraph (i) hereof and (y) any
mandatory sinking fund payments applicable to the Securities
of such series on the day on which such payments are due and
payable in accordance with the terms of this Indenture and
of the Securities of such series;
(f) the Company has delivered to the Trustee an
Opinion of Counsel to the effect that such provision would
not cause any Outstanding Securities of such series then
listed on any national securities exchange to be delisted as
a result thereof;
(g) no Event of Default or event which with notice or
lapse of time would become an Event of Default (including by
reason of such deposit) with respect to the Securities of
such series shall have occurred and be continuing on the
date of such deposit or during the period ending on the 91st
day after such date;
(h) the Company has delivered to the Trustee an
unqualified opinion, in form and substance reasonably
acceptable to the Trustee, of independent counsel of
national standing selected by the Company and satisfactory
to the Trustee to the effect that (i) Holders of the
Securities will not recognize income, gain or loss for
Federal income tax purposes as a result of the deposit,
defeasance and discharge, which opinion shall be based on a
change in law or a ruling by the U.S. Internal Revenue
Service and (ii) the defeasance trust is not, or is
registered as, an investment company under the Investment
Company Act of 1940;
(i) if the Company has deposited or caused to be
deposited money or U.S. Government Obligations to pay or
discharge the principal of (and premium, if any) and
interest, if any, on the Outstanding Securities of a series
to and including a Redemption Date on which all of the
Outstanding Securities of such series are to be redeemed,
such Redemption Date shall be irrevocably designated by a
Board Resolution delivered to the Trustee on or prior to the
date of deposit of such money or U.S. Government
Obligations, and such Board Resolution shall be accompanied
by an irrevocable Company Request that the Trustee give
notice of such redemption in the name and at the expense of
the Company not less than 30 nor more than 60 days prior to
such Redemption Date in accordance with Section 1104 hereof;
and
(j) 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 to the satisfaction and discharge of the Securities
have been complied with.
SECTION 404. Release of Related Series of Senior Note
Mortgage Bonds.
(a) If any series of Securities are deemed paid and
discharged pursuant to this Article Four, the obligation of the
Company to make payment with respect to the principal of and
premium, if any, and interest on the related series of Senior
Note Mortgage Bonds shall be satisfied and discharged, and the
related series of Senior Note Mortgage Bonds shall cease to
secure the Securities in any manner.
(b) If the Company shall have paid or caused to be
paid the principal of and premium, if any, and interest on any
Security, as and when the same shall have become due and payable
or the Company shall have delivered to the Trustee for
cancellation any outstanding Security, such Security shall cease
to be entitled to any lien, benefit or security under this
Indenture. Upon a Security of any series ceasing to be entitled
to any lien, benefit or security under this Indenture, the
obligation of the Company to make payment with respect to
principal of and premium, if any, and interest on a principal
amount of the related series of Senior Note Mortgage Bonds equal
to the principal amount of such Security shall be satisfied and
discharged and such portion of the principal amount of such
Senior Note Mortgage Bonds shall cease to secure the Securities
in any manner.
(c) Upon the satisfaction and discharge of this
Indenture, the Trustee shall at the request of the Company return
to the Company all Senior Note Mortgage Bonds and all other
property and money held by it under this Indenture and determined
by it from time to time in accordance with the certification
pursuant to Section 402(c) hereof to be in excess of the amount
required to be held under such Section 402 hereof.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect
to Securities of any series, means any one of the following
events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be affected by operation
of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series at its
Maturity, and continuance of such default for a period of
three days; or
(3) default in the payment of any sinking fund
installment, when and as due by the terms of a Security of
that series, and continuance of such default for a period of
three days; or
(4) default in the performance, or breach, of any
covenant or warranty or obligation of the Company in this
Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this
Section 501 specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of
any series of Securities other than that series), and
continuance of such default or breach for a period of 90
days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 33% in aggregate
principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(5) prior to the Release Date, a "default" as defined
in the First Mortgage Indenture has occurred and is
continuing, and the First Mortgage Trustee, the Company or
Holders of at least 33% in aggregate principal amount of the
Securities at the time outstanding shall have given written
notice thereof to the Trustee; or
(6) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of
the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency or other
similar law or (B) a decree or order appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or of any substantial
part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order
unstayed and in effect for a period of 90 consecutive days;
or
(7) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or
order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency or other similar law or to the
commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or
answer or consent seeking relief under any applicable
Federal or State law, or the consent by it to the filing of
such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the taking of
corporate action by the Company in furtherance of any such
action; or
(8) any other Event of Default provided in the
supplemental indenture or provided in or pursuant to the
Board Resolution under which such series of Securities is
issued or in the form of Security for such series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of
any series at the time Outstanding described in paragraph (1),
(2), (3), (4), (5) or (8) of Section 501 hereof occurs and is
continuing, then in every such case the Trustee or the Holders of
not less than 33% in aggregate principal amount of the
Outstanding Securities of that series may declare the principal
amount (or, if any of the Securities of that series are Original
Issue Discount Securities, such portion of the principal amount
of such Securities as may be specified in the terms thereof) of
all of the Securities of that series 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 amount) shall become immediately
due and payable upon the date which is 10 days after the date of
such notice.
If an Event of Default described in paragraph (6) or
(7) of Section 501 hereof occurs and is continuing, then and in
every such case, the principal amount (or, if any Securities are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms thereof) of all the
Securities shall, without any notice to the Company or any other
act on the part of the Trustee or any Holder of the Securities,
become and be immediately due and payable.
Upon the Securities being declared to be or becoming
due and payable, the Trustee can immediately file with the First
Mortgage Trustee a written demand for redemption of all Senior
Note Mortgage Bonds pursuant to the applicable provisions of the
supplemental indenture to the First Mortgage Indenture.
At any time after such a declaration of acceleration
with respect to Securities of any series 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
and prior to the mailing to the Trustee by the First Mortgage
Trustee of a firm, valid and unconditional notice to the Trustee
of the acceleration of all of the first mortgage bonds issued and
outstanding under the First Mortgage Indenture, the Holders of a
majority in principal amount of the Outstanding Securities of
that series, by written notice to the Company and the Trustee,
may rescind and annul such declaration and its consequences
(including if given the written demand for redemption of all
Senior Note Mortgage Bonds) if
(1) the Company has paid or deposited with the Trustee
a sum sufficient to pay
(A) all overdue interest, if any, on all
Securities of that series,
(B) the principal of (and premium, if any,
on) any Securities of that series which have become due
otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such
interest is lawful, interest upon any overdue interest
at the rate or rates prescribed therefor in such
Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel; and
(2) all Events of Default with respect to Securities
of that series, other than the non-payment of the principal
of and accrued interest on Securities of that series which
have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513 hereof
(including any defaults under the First Mortgage Indenture,
as evidenced by notice thereof from the First Mortgage
Trustee to the Trustee).
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
For all purposes under this Indenture, if a portion of
the principal of any Original Issue Discount Securities shall
have been accelerated and declared due and payable pursuant to
the provisions hereof, then, from and after such declaration,
unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall
be deemed, for all purposes hereunder, to be such portion of the
principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal
thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full
of such Original Issue Discount Securities.
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,
the Company will, upon written 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, to the extent that
payment of such interest shall be legally enforceable, interest
on any overdue principal (and premium, if any) and on any overdue
interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel.
If the Company fails to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid (including, prior to the
Release Date, to exercise any rights to that end it may have as a
holder of Senior Note Mortgage Bonds), 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 any Event of Default with respect to Securities of
any series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights (including,
prior to the Release Date, its rights as holder of the Senior
Note Mortgage Bonds) and the rights of the Holders of Securities
of such series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such
rights.
The Trustee shall not be required to take notice or be
deemed to have notice of any Event of Default other than pursuant
to paragraphs (1), (2) or (3) of Section 501 of this Indenture,
unless the Trustee shall be specifically notified in writing of
such default by the Company, or by the Holders of a majority in
aggregate principal amount of Outstanding Securities.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the
property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of
the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment
of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and
unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including, prior to
the Release Date, any claims of the Trustee as holder of
Senior Note Mortgage Bonds and 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 607 hereof.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights
of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
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,
including, prior to the Release Date, its rights as holder of the
Senior Note Mortgage Bonds without the possession of any of the
Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall
be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment
of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of
which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this
Article shall be applied in the following order with respect to
the Securities of any series, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account
of principal (or premium, if any) or interest, upon presentation
of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 607 hereof;
SECOND: In case the principal and premium, if any, of
the Securities of such series in respect of which moneys
have been collected shall not have become and be then due
and payable, to the payment of interest, if any, on the
Securities of such series in default in the order of the
maturity of the installments of such interest, with interest
(to the extent that such interest has been collected by the
Trustee and to the extent permitted by law) upon the overdue
installments of interest at the rate prescribed therefor in
such Securities, such payments to be made ratably to the
Persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal or premium, if any, of
the Securities of such series in respect of which moneys
have been collected shall have become and shall be then due
and payable, to the payment of the whole amount then owing
and unpaid upon all the Securities of such series for
principal and premium, if any, and interest, if any, with
interest upon the overdue principal and premium, if any, and
(to the extent that such interest has been collected by the
Trustee and to the extent permitted by law) upon overdue
installments of interest at the rate prescribed therefor in
the Securities of such series; and in case such moneys shall
be insufficient to pay in full the whole amount so due and
unpaid upon the Securities of such series, then to the
payment of such principal and any premium and interest,
without preference or priority of principal over interest,
or of interest over principal or premium, or of any
installment of interest over any other installment of
interest, or of any Security of such series over any other
Security of such series, ratably to the aggregate of such
principal and any premium and accrued and unpaid interest;
and
FOURTH: To the payment of the remainder, if any, to
the Company or any other Person lawfully entitled thereto.
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 33% in principal
amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of
the Outstanding Securities of that series;
it being understood and intended that no one or more 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 of such Holders, or
to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal
and ratable benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is
absolute and unconditional, to receive payment of the principal
of (and premium, if any) and (subject to Section 307 hereof)
interest, if any, on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and
the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies
of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities in the last paragraph of Section 306 hereof, no right
or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of
any Securities to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Securities
of such series, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture,
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction, and
(3) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to Holders not taking
part in such action.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate
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 hereunder with respect to such series and
its consequences, except a default
(1) in the payment of the principal of (or premium, if
any) or interest, if any, on any Security of such series, 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
impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of
any Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant
in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the
provisions of this Section 514 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, if
any, on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of a default with
respect to the Securities of any series,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall
examine the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case a default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own wilful
misconduct, except that
(1) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section 601;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of a
majority in principal amount of the Outstanding Securities
of any series, determined as provided in Section 512 hereof,
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such
series; and
(4) 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 grounds for believing
that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section 601. The
permissive right of the Trustee to do things enumerated in this
Indenture shall not be construed as a duty and it shall not be
answerable for other than its own negligent action, its own
negligent failure to act or its own willful misconduct.
SECTION 602. 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 of Securities of
such series, 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 or Responsible Officers of the
Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders of Securities of such
series; and provided, further, that in the case of any default of
the character specified in Section 501(4) hereof with respect to
Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For
the purpose of this Section 602, the term "default" means any
event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to Securities of such
series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601 hereof:
(a) the Trustee may rely and shall be fully protected
in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order or as otherwise expressly provided herein and any
resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(e) the Trustee shall be under no obligation to expend
or risk its own funds or to exercise, at the request or direction
of any of the Holders, any of the rights or powers vested in it
by this Indenture 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;
(f) 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 upon reasonable request to
examine the books, records and premises of the Company,
personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities,
except 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.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of
Securities or the proceeds thereof. The Trustee shall not be
responsible for doing or performing any thing or act which the
Company shall have covenanted to do or perform, or for any
compliance with any covenant by the Company, nor shall the
Trustee be bound to ascertain or inquire as to the performance of
any covenant, condition or agreement by the Company, but it may
require full information and advice in regard to any of the
foregoing.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the Company,
in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 608 and 613
hereof, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder 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 with
the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such
compensation as is agreed upon in writing, or, if no such
agreement exists, reasonable compensation for all services
rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the
compensation of a trustee of an express trust), and shall
have a lien therefor on any and all funds at any time held
by it under this Indenture for such compensation;
(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, which compensation,
expenses and disbursements shall be set forth in sufficient
detail), and shall have a lien therefor on any and all funds
at any time held by it under this Indenture for such
expenses and disbursements, except any such expense,
disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of
the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its
powers or duties hereunder.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the
Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture
provided that, to the extent permitted by law, Liberty Bank and
Trust Company of Tulsa, National Association shall not be deemed
to have a conflicting interest for purposes of Section 310(b) of
the Trust Indenture Act because of its capacity as trustee under
the First Mortgage Indenture. Nothing in this Indenture shall be
deemed to prohibit the Trustee or the Company from making any
application permitted pursuant to Section 310(b) of the Trust
Indenture Act.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which
shall be eligible to act as trustee under the Trust Indenture Act
and which shall have a combined capital and surplus of at least
$50,000,000. If the Trustee does not have an office in The City
of New York, the Trustee may appoint an agent in The City of New
York reasonably acceptable to the Company to conduct any
activities which the Trustee may be required under this Indenture
to conduct in The City of New York. If the Trustee does not have
an office in The City of New York or has not appointed an agent
in The City of New York, the Trustee shall be a participant in
The Depository Trust Company and FAST distribution systems. If
such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of a Federal,
State, or District of Columbia supervising or examining
authority, then for the purposes of this Section 609, 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 the
Trustee shall cease to be eligible in accordance with the
provisions of this Section 609, the Trustee shall resign
immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor
Trustee.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements
of Section 611 hereof.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice
thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 611 hereof shall not have
been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the Holders of
a majority in principal amount of the Outstanding Securities of
such series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
310(b) of the Trust Indenture Act pursuant to Section 608
hereof with respect to any series of Securities after
written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under
Section 609 hereof and shall fail to resign after written
request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (ii)
subject to Section 514 hereof, any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one or
more series, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the
applicable requirements of Section 611 hereof. 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 the applicable requirements of Section 611 hereof, 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 required by Section 611 hereof, any
Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the Securities of
any series and each appointment of a successor Trustee with
respect to the Securities of any series by mailing written notice
of such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and addresses
appear in the Security Register. Each notice shall include the
name of the successor Trustee with respect to the Securities of
such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to all Securities, every such
successor Trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer
and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder (including all right, title,
and interest in the Senior Note Mortgage Bonds).
(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.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (a) or
(b) of this Section 611, 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 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of
the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver
the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section 613, if
the Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Company within three
months prior to a default, as defined in Subsection (c) of this
Section 613, or subsequent to such a default, then, unless and
until such default shall be cured, the Trustee shall set apart
and hold in a special account for the benefit of the Trustee
individually, the Holders of the Securities and the holders of
other indenture securities, as defined in Subsection (c) of this
Section 613:
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in
respect of principal or interest, effected after the
beginning of such three-month period and valid as against
the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this Subsection, or
from the exercise of any right of set-off which the Trustee
could have exercised if a petition in bankruptcy had been
filed by or against the Company upon the date of such
default; and
(2) all property received by the Trustee in respect of
any claims as such creditor, either as security therefor, or
in satisfaction or composition thereof, or otherwise, after
the beginning of such three-month period, or an amount equal
to the proceeds of any such property, if disposed of,
subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the
right of the Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any Person (other than the
Company) who is liable thereon, and (ii) the proceeds of the
bona fide sale of any such claim by the Trustee to a third
Person, and (iii) distributions made in cash, securities or
other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or
applicable State law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property
was so held prior to the beginning of such three-month
period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property
held by it as security for any such claim, if such claim was
created after the beginning of such three-month period and
such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee
shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause
to believe that a default, as defined in Subsection (c) of
this Section 613, would occur within three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property
held as security for such claim as provided in paragraph (B)
or (C), as the case may be, to the extent of the fair value
of such property.
For the purposes of paragraphs (B), (C) and (D),
property substituted after the beginning of such three-month
period for property held as security at the time of such
substitution shall, to the extent of the fair value of the
property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such
paragraphs is created in renewal of or in substitution for or for
the purpose of repaying or refunding any pre-existing claim of
the Trustee as such creditor, such claim shall have the same
status as such pre-existing claim.
If the Trustee shall be required to account, the funds
and property held in such special account and the proceeds
thereof shall be apportioned among the Trustee, the Holders and
the holders of other indenture securities in such manner that the
Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special
account and payments of dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the
funds and property in such special account and before crediting
to the respective claims of the Trustee and the Holders and the
holders of other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal Bankruptcy
Act or applicable State law, but after crediting thereon receipts
on account of the indebtedness represented by their respective
claims from all sources other than from such dividends and from
the funds and property so held in such special account. As used
in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such
claim, in bankruptcy or receivership or proceedings for
reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, whether such distribution is made in cash,
securities or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such
claim. The court in which such bankruptcy, receivership or
proceedings for reorganization is pending shall have jurisdiction
(i) to apportion among the Trustee, the Holders and the holders
of other indenture securities, in accordance with the provisions
of this paragraph, the funds and property held in such special
account and proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of
this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee and the Holders and
the holders of other indenture securities with respect to their
respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such
claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or
otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee which has resigned or been removed after
the beginning of such three-month period shall be subject to the
provisions of this Subsection as though such resignation or
removal had not occurred. If any Trustee has resigned or been
removed prior to the beginning of such three-month period, it
shall be subject to the provisions of this Subsection if and only
if the following conditions exist:
(i) the receipt of property or reduction of claim,
which would have given rise to the obligation to account, if
such Trustee had continued as Trustee, occurred after the
beginning of such three-month period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or
removal.
(b) There shall be excluded from the operation of
Subsection (a) of this Section 613 a creditor relationship
arising from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a
maturity of one year or more at the time of acquisition by
the Trustee;
(2) advances authorized by a receivership or
bankruptcy court of competent jurisdiction or by this
Indenture, for the purpose of preserving any property which
shall at any time be subject to the lien of this Indenture
or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the
Holders at the time and in the manner provided in this
Indenture;
(3) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent, fiscal
agent or depository, or other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a
result of goods or securities sold in a cash transaction, as
defined in Subsection (c) of this Section 613;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a)
of the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or
obligations which fall within the classification of
self-liquidating paper, as defined in Subsection (c) of this
Section 613.
(c) For the purposes of this Section 613 only:
(1) the term "default" means any failure to
make payment in full of the principal of or interest on
any of the Securities or upon the other indenture
securities when and as such principal or interest
becomes due and payable;
(2) the term "other indenture securities"
means securities upon which the Company is an obligor
(as defined in the Trust Indenture Act) outstanding
under any other indenture (i) under which the Trustee
is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section
613, and (iii) under which a default exists at the time
of the apportionment of the funds and property held in
such special account;
(3) the term "cash transaction" means any
transaction in which full payment for goods or
securities sold is made within seven days after
delivery of the goods or securities in currency or in
checks or other orders drawn upon banks or bankers and
payable upon demand;
(4) the term "self-liquidating paper" means
any draft, bill of exchange, acceptance or obligation
which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of
goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting the
security, provided the security is received by the
Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft,
bill of exchange, acceptance or obligation;
(5) the term "Company" means any obligor
upon the Securities; and
(6) the term "Federal Bankruptcy Act" means
the Bankruptcy Code or Title 11 of the United States
Code.
SECTION 614. Authenticating Agents.
From time to time the Trustee, in its sole discretion,
may appoint one or more Authenticating Agents with respect to one
or more series of Securities with power to act on the Trustee's
behalf and subject to its direction in the authentication and
delivery of Securities of such series or in connection with
transfers and exchanges under Sections 304, 305, 306, and 1107
hereof as fully to all intents and purposes as though the
Authenticating Agent had been expressly authorized by those
Sections of this Indenture to authenticate and deliver Securities
of such series. For all purposes of this Indenture, the
authentication and delivery of Securities by an Authenticating
Agent pursuant to this Section 614 shall be deemed to be
authentication and delivery of such Securities "by the Trustee".
Each such 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, any State thereof
or the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or
examination by Federal, State or District of Columbia authority.
If such corporation publishes reports of condition at least
annually pursuant to law or the requirements of such authority,
then for the purposes of this Section 614 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 614, such Authenticating
Agent shall resign immediately in the manner and with the effect
specified in this Section 614.
Any corporation into which any Authenticating Agent may
be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation or to
which any Authenticating Agent shall be a party, or any
corporation succeeding to the corporate trust business of any
Authenticating Agent, shall be the successor of the
Authenticating Agent hereunder, if such successor corporation is
otherwise eligible under this Section 614, without the execution
or filing of any paper or any further act on the part of the
parties hereto or the Authenticating Agent or such successor
corporation.
An Authenticating Agent may resign at any time by
giving written notice of resignation to the Trustee and to the
Company. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination 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 any Authenticating Agent shall cease to be
eligible under this Section 614, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the
Company and shall mail notice of such appointment to all Holders
of Securities of the series with respect to which such
Authenticating Agent will serve, as the names and addresses of
such Holders appear on the Security Register. Any successor
Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 614.
The Trustee agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under
this Section 614, and the Trustee shall be entitled to be
reimbursed for such payments pursuant to Section 607 hereof.
If an appointment with respect to one or more series of
Securities is made pursuant to this Section 614, 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:
This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
[NAME OF TRUSTEE],
__________________________________
As Trustee
__________________________________
As Authenticating Agent
__________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to
the Trustee with respect to the Securities of each series
(a) semi-annually, not later than 15 days after each
Regular Record Date, or, in the case of any series of
Securities on which semi-annual interest is not payable, not
more than 15 days after such semi-annual dates as may be
specified by the Trustee, a list, in such form as the
Trustee may reasonably require, of the names and addresses
of the Holders as of such Regular Record Date or semi-annual
date, as the case may be, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of
any such request, a list of similar form and content as of a
date not more than 15 days prior to the time such list is
furnished;
provided, however, that if and so long as the Trustee is Security
Registrar for any series of Securities, no such list shall be
required to be furnished with respect to any such series.
SECTION 702. Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as
provided in Section 701 hereof and the names and addresses of
Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 hereof upon receipt of a new list so
furnished.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a
Security for a period of at least six months preceding the date
of such application, and such application states that the
applicants desire to communicate with other Holders with respect
to their rights under this Indenture or under the Securities and
is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the
Trustee shall, within five business days after the receipt of
such application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with
Section 702(a) hereof, or
(ii) inform such applicants as to the approximate
number of Holders whose names and addresses appear in the
information preserved at the time by the Trustee in
accordance with Section 702(a) hereof, and as to the
approximate cost of mailing to such Holders the form of
proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such
applicants access to such information, the Trustee shall, upon
the written request of such applicants, mail to each Holder whose
name and address appear in the information preserved at the time
by the Trustee in accordance with Section 702(a) hereof a copy of
the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision
for the payment, of the reasonable expenses of mailing, unless
within five days after such tender the Trustee shall mail to such
applicants and file with the Commission, together with a copy of
the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be
contrary to the best interest of the Holders or would be in
violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to
sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all
such Holders with reasonable promptness after the entry of such
order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants
respecting their application.
(c) Every Holder of Securities, by receiving and
holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any agent of either of
them shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Holders in
accordance with Section 702(b) hereof, regardless of the source
from which such information was derived, and that the Trustee
shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 702(b) hereof.
SECTION 703. Reports by Trustee.
(a) Within 60 days after the first May 15 which occurs
not less than 60 days following the first date of issuance of
Securities of any series under this Indenture and within 60 days
after May 15 in every year thereafter, the Trustee shall transmit
by mail to all Holders, as their names and addresses appear in
the Security Register, a brief report dated as of such May 15
with respect to any of the following events which may have
occurred within the previous 12 months (but if no such event has
occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 609
hereof and its qualifications under Section 608 hereof;
(2) the creation of or any material change to a
relationship specified in Section 608 hereof;
(3) the character and amount of any advances (and if
the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as
such) which remain unpaid on the date of such report, and
for the reimbursement of which it claims or may claim a lien
or charge, prior to that of the Securities, on any property
or funds held or collected by it as Trustee, except that the
Trustee shall not be required (but may elect) to report such
advances if such advances so remaining unpaid aggregate not
more than 1/2 of 1% of the principal amount of the
Securities Outstanding on the date of such report;
(4) any change to the amount, interest rate and
maturity date of all other indebtedness owing by the Company
(or by any other obligor on the Securities) to the Trustee
in its individual capacity, on the date of such report, with
a brief description of any property held as collateral
security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in
Sections 613(b)(2), (3), (4) or (6) hereof;
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the
date of such report;
(6) any release, or release and substitution, of
property subject to the lien of this Indenture (and the
consideration therefor, if any) which it has not previously
reported;
(7) any additional issue of Securities which the
Trustee has not previously reported; and
(8) any action taken by the Trustee in the performance
of its duties hereunder which it has not previously reported
and which in its opinion materially affects the Securities,
except action in respect of a default, notice of which has
been or is to be withheld by the Trustee in accordance with
Section 602 hereof.
(b) The Trustee shall transmit by mail to all Holders,
as their names and addresses appear in the Security Register, a
brief report with respect to (1) the release, or release and
substitution, of property subject to the lien of this Indenture
(and the consideration therefor, if any) unless the fair value of
such property, as set forth in the certificate required by
Section 1306 hereof, is less than 10% of the principal amount of
Securities outstanding at the time of such release, or release
and substitution, and (2) the character and amount of any
advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Trustee
(as such) since the date of the last report transmitted pursuant
to Subsection (a) of this Section 703 (or if no such report has
yet been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim
a lien or charge, prior to that of the Securities, on property or
funds held or collected by it as Trustee and which it has not
previously reported pursuant to this Subsection, except that the
Trustee shall not be required (but may elect) to report such
advances if such advances remaining unpaid at any time aggregate
10% or less of the principal amount of the Securities Outstanding
at such time, such report to be transmitted within 90 days after
such time.
(c) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each
stock exchange upon which any Securities are listed, with the
Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 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 Securities Exchange Act of 1934; or,
if the Company is not required to file information,
documents or reports pursuant to either of said Sections,
then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time
to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange
Act of 1934 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, such
summaries of any information, documents and reports required
to be filed by the Company pursuant to paragraphs (1) and
(2) of this Section 704 as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR TRANSFER
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms.
The Company shall not consolidate with or merge into
any other corporation or convey, sell or otherwise transfer its
properties and assets substantially as an entirety to any Person,
unless the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance,
sale or transfer the properties and assets of the Company
substantially as an entirety is a corporation organized and
existing under the laws of the United States of America, any
State thereof or the District of Columbia, and shall expressly
assume (i) by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of the principal of (and premium, if
any) and interest, if any, on all the Securities and the
performance of every covenant of this Indenture on the part of
the Company to be performed or observed, and (ii) if such
consolidation, merger, conveyance, sale or other transfer occurs
prior to the Release Date, by an indenture supplemental to the
First Mortgage Indenture, executed and delivered to the Trustee
and the First Mortgage Trustee, in form satisfactory to the
Trustee and the First Mortgage Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest on
all of the Senior Note Mortgage Bonds and the performance of
every covenant of the First Mortgage Indenture on the part of the
Company to be performed or observed.
SECTION 802. Successor Corporation to be Substituted.
Upon any consolidation by the Company with or merger by
the Company into any other corporation or any conveyance, sale or
transfer of the properties and assets of the Company
substantially as an entirety in accordance with Section 801
hereof, the successor corporation formed by such consolidation or
into which the Company is merged or to which such conveyance,
sale or transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor
corporation had been named as the Company herein, and thereafter
the predecessor corporation shall be relieved of all obligations
and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company and the
Trustee, at any time and from time to time, may enter into one or
more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation
to the Company and the assumption by any such successor of
the covenants of the Company herein and in the Securities;
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities
(and if such covenants are to be for the benefit of less
than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred
upon the Company;
(3) to add any additional Events of Default;
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form,
registrable or not registrable as to principal, and with or
without interest coupons, or to facilitate the issuance of
Securities in uncertificated form, or to permit or
facilitate the issuance of extendible Securities;
(5) to change or eliminate any of the provisions of
this Indenture, provided that any such change or elimination
shall become effective only as to the Securities of any
series created by such supplemental indenture and Securities
of any series subsequently created to which such change or
elimination is made applicable by the subsequent
supplemental indenture creating such series;
(6) to secure the Securities;
(7) to establish the form or terms of Securities of
any series as permitted by Sections 201 and 301 hereof;
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 611(b) hereof;
(9) to provide for any rights of the Holders of
Securities of any series to require the repurchase of
Securities of such series by the Company;
(10) to cure any ambiguity, to correct or supplement
any provision herein which may be inconsistent with any
other provision herein, or to make any other provisions with
respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect
the interests of the Holders of Securities of any series in
any material respect;
(11) after the Release Date, to amend this Indenture to
eliminate any provisions related to the Senior Note Mortgage
Bonds which are no longer applicable; or
(12) to modify, alter, amend or supplement this
Indenture in any other respect which is not materially
adverse to Holders, which does not involve a change
described in clauses (1), (2) or (3) of Section 902 hereof
and which, in the judgment of the Trustee, is not to the
prejudice of the Trustee, in order to provide for the
duties, responsibilities and compensation of the Trustee as
a transfer agent in the event one registered Security of any
series is issued in the aggregate principal amount of all
Outstanding Securities of such series in which Holders will
hold an interest.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all
series affected by such supplemental indenture (voting as one
class), by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the
rights of the Holders of Securities of such series under this
Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding
Security affected thereby,
(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest, if any, on, any
Security, or reduce the principal amount thereof or the rate
of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of
an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 hereof, or change any Place
of Payment where, or the coin or currency in which, any
Security or any premium or the interest thereon is payable,
or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption
Date), or impair the interest hereunder of the Trustee in
the Senior Note Mortgage Bonds, or prior to the Release
Date, reduce the principal amount of any series of Senior
Note Mortgage Bonds to an amount less than the principal
amount of the related series of Securities or alter the
payment provisions of such Senior Note Mortgage Bonds in a
manner adverse to the Holders of the Securities, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided
for in this Indenture, or
(3) modify any of the provisions of this Section 902
or Section 513 hereof, except to increase any such
percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant
changes in this Section 902, or the deletion of this
proviso, in accordance with the requirements of Sections
611(b) and 901(8) hereof.
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 902 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 Section 601 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.
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) and interest, if any, on
the Securities of that series in accordance with the terms of the
Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for
any series of Securities an office or agency where Securities of
that series may be presented or surrendered for payment, where
Securities of that 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 that series and this
Indenture may be served. The Company will 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, and, in such
event, the Trustee shall act as the Company's agent to receive
all such presentations, surrenders, notices and demands.
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 each Place of Payment for Securities of
any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other
office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or
before each due date of the principal of (and premium, if any) or
interest, if any, on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and
premium, if any) or interest, if any, 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, no later than 11:00
a.m., New York Time, on or prior to each due date of the
principal of (and premium, if any) or interest, if any, on any
Securities of that series, deposit with a Paying Agent a sum in
immediately available funds sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its
failure so to act.
The Company will cause each Paying Agent for any series
of Securities other than the Trustee to execute and deliver to
the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section 1003,
that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest, if any, on
Securities of that series in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities of that
series) in the making of any payment of principal (and
premium, if any) or interest, if any, on the Securities of
that series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for
any other purpose, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of (and premium, if any) or interest, if any, on
any Security of any series and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become
due and payable shall be paid to the Company on Company Request,
or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent
with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being
required to make any such repayment, shall at the written request
and expense of the Company cause to be published once, in a
newspaper published in the English language, customarily
published on each Business Day and of general circulation in [
] 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. Corporate Existence.
Subject to Article Eight, the Company will do or cause
to be done all things necessary to preserve and keep in full
force and effect its corporate existence and will use its best
efforts to do or cause to be done all things necessary to
preserve and keep in full force and effect its rights (charter
and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or
franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the
business of the Company.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in
the conduct of its business or the business of any Subsidiary to
be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will cause to
be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this Section
1005 shall prevent the Company from discontinuing the operation
or maintenance of any of such properties if such discontinuance
is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary.
SECTION 1006. Maintenance of Insurance.
The Company will maintain, and will cause each of its
Subsidiaries to maintain, with insurers the Company reasonably
believes to be financially sound and reputable, insurance deemed
adequate by the Company with respect to its properties and
business and the properties and business of its Subsidiaries
against loss or damage of the kinds customarily insured against
by corporations in the same or similar business. Such insurance
may be subject to co-insurance, deductibility or similar clauses
which, in effect, result in self-insurance of certain losses,
provided that such self-insurance is in accord with the practices
of corporations in the same or similar business and adequate
insurance reserves are maintained in connection with such self-
insurance.
SECTION 1007. Limitation on Liens.
Nothing in this Indenture or in the Securities shall in
any way restrict or prevent the Company or any Subsidiary from
incurring any indebtedness; provided that if this covenant shall
be made applicable to the Securities of a particular series, the
Company covenants and agrees that it will not, nor will it permit
any Subsidiary to, issue, assume or guarantee any notes, bonds,
debentures or other similar evidences of indebtedness for money
borrowed ("Debt") secured by a Mortgage upon any property or
assets without effectively providing that the Outstanding
Securities to which this section shall have been made applicable
(together with, if the Company so determines, any other
indebtedness or obligation then existing or thereafter created
ranking equally with the Securities) shall be secured equally and
ratably with (or prior to) such Debt so long as such Debt shall
be so secured (provided, that for the purpose of providing such
equal and ratable security, the principal amount of Outstanding
Securities of any series of Original Issue Discount Securities
shall be such portion of the principal amount as may be specified
in the terms of that series), except that the foregoing
provisions shall not apply to:
(a) Mortgages in existence on the date of original
issue of the Securities of any series to which this
restriction is made applicable (including without limitation
any obligations issued or incurred, or to be issued or
incurred, under the First Mortgage Indenture);
(b) Mortgages created solely for the purpose of
securing Debt incurred to finance, refinance or refund the
purchase price or cost (including the cost of construction)
of property or assets acquired after the date hereof (by
purchase, construction or otherwise), or Mortgages in favor
of guarantors of obligations or Debt representing, or
incurred to finance, refinance or refund, such purchase
price or cost, provided that no such Mortgage shall extend
to or cover any property or assets other than the property
or assets so acquired and improvements thereon (other than,
in the case of Mortgages securing Debt incurred to finance
construction or improvement costs, any theretofore
unimproved real property on which the property so
constructed, or the improvement, is located);
(c) Mortgages which secure only indebtedness owing by
a Subsidiary to the Company, to one or more Subsidiaries or
to the Company and one or more Subsidiaries;
(d) Mortgages on any property or assets acquired from
a corporation which is merged with or into the Company or
any Subsidiary, or any Mortgages on the property or assets
of any Corporation or other entity existing at the time such
Corporation or other entity becomes a Subsidiary and, in
either such case, is not created as a result of or in
connection with or in anticipation of any such transaction
(unless such Mortgage was created to secure or provide for
the payment of any part of the purchase price of such
corporation);
(e) Any Mortgage on any property or assets existing at
the time of acquisition thereof and which is not created as
a result of or in connection with or in anticipation of such
acquisition (unless such Mortgage was created to secure or
provide for the payment of any part of the purchase price of
such property or assets); or
(f) Any extension, renewal or replacement (or
successive extensions, renewals or replacements), in whole
or in part, of any Mortgage referred to in the foregoing
clauses (a) through (e) or of any Debt secured thereby,
provided that the principal amount of Debt so secured
thereby shall not exceed the principal amount of Debt so
secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement
Mortgage shall be limited to all or part of substantially
the same property which secured the Mortgage extended,
renewed or replaced (plus improvements on or additions to
such property).
Notwithstanding the foregoing provisions of this
Section 1007, the Company and one or more Subsidiaries may issue,
assume or guarantee Debt secured by Mortgages which would
otherwise be subject to the foregoing restrictions in an
aggregate principal amount which, together with the aggregate
outstanding principal amount of all other Debt of the Company and
its Subsidiaries which would otherwise be subject to the
foregoing restrictions (not including Debt permitted to be
secured under clauses (a) through (f)) hereof does not at the
time of issuance, assumption, or guarantee thereof exceed 10% of
Net Tangible Assets.
The following types of transactions, among others,
shall not be deemed to create Debt secured by Mortgages:
Mortgages required by any contract or statute in order
to permit the Company or a Subsidiary to perform any
contract or subcontract made by it with or at the request of
a governmental entity or any department, agency or
instrumentality thereof, or to secure partial, progress,
advance or any other payments to the Company or any
Subsidiary by a governmental entity or any department,
agency or instrumentality thereof pursuant to the provisions
of any contract or statute.
SECTION 1008. Statement by Officers as to Default.
The Company will deliver to the Trustee on or before
May 15 in each year, an Officers' Certificate stating that in the
course of the performance by each signer of his duties as an
officer of the Company he would normally have knowledge of any
default by the Company in the performance and observance of any
of the covenants contained in Sections 1001 to 1007 hereof,
stating whether or not he has knowledge of any such default and,
if so, specifying each such default of which such signer has
knowledge and the nature thereof. Upon the occurrence of a
"default" as defined in the First Mortgage Indenture prior to the
Release Date, the Company shall promptly notify the Trustee of
such event.
SECTION 1009. Opinions of Counsel.
The Company shall deliver to the Trustee:
(a) promptly after the execution and delivery of this
Indenture and of any indenture supplemental to this
Indenture but prior to the Release Date, an Opinion of
Counsel either stating that, in the opinion of such counsel,
this Indenture or such supplemental indenture and any
financing or continuation statements have been properly
recorded and filed so as to make effective and to perfect
the security interest of the Trustee intended to be created
by this Indenture for the benefit of the Holders from time
to time of the Securities in the Senior Note Mortgage Bonds,
and reciting the details of such action, or stating that, in
the opinion of such counsel, no such action is necessary to
perfect or make such security interest effective and stating
what, if any, action of the foregoing character may
reasonably be expected to become necessary prior to the next
succeeding March 1 to maintain, perfect and make such
security interest effective; and
(b) on or before March 1 of each year, beginning in
1997, and prior to the Release Date, an Opinion of Counsel
either stating that in the opinion of such counsel such
action has been taken, since the date of the most recent
Opinion of Counsel furnished pursuant to this Section
1009(b) or the first Opinion of Counsel furnished pursuant
to Section 1009(a) hereof, with respect to the recording,
filing, rerecording, or refiling of this Indenture, each
supplemental indenture and any financing or continuation
statements, as is necessary to maintain and perfect the
security interest of the Trustee intended to be created by
this Indenture for the benefit of the Holders from time to
time of the Securities in the Senior Note Mortgage Bonds,
and reciting the details of such action, or stating that in
the opinion of such counsel no such action is necessary to
maintain and perfect such security interest and stating
what, if any, action of the foregoing character may
reasonably be expected to become necessary prior to the next
succeeding March 1 to maintain, perfect and make such
security interest effective.
SECTION 1010. Defeasance of Certain Obligations.
The Company may omit to comply with any term, provision
or condition set forth in Sections 801 and 1004 to 1007 hereof
with respect to the Securities of any series, provided that the
following conditions shall have been satisfied:
(1) The Company has deposited or caused to be
irrevocably deposited (except as provided in Section 402(c)
hereof and the last paragraph of Section 1003 hereof) with
the Trustee (specifying that each deposit is pursuant to
this Section 1010) as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of such series, (i)
money in the currency or units of currency in which such
Securities are payable in an amount, or (ii) (except as
provided in a supplemental indenture with respect to such
series) if Securities of such series are not subject to
repurchase at the option of Holders, (A) U.S. Government
Obligations (denominated in the same currency or units of
currency in which such Securities are payable) which through
the payment of interest and principal in respect thereof in
accordance with their terms will provide not later than one
day before the due date of any payment referred to in clause
(x) or (y) of this subparagraph (1) money in an amount, or
(B) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent
certified public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which the Trustee shall be instructed to
apply to pay and discharge, (x) the principal of (and
premium, if any) and each installment of principal (and
premium, if any) and interest, if any, on the Outstanding
Securities of such series on the Stated Maturity of such
principal or installment of principal or interest or to and
including the Redemption Date irrevocably designated by the
Company pursuant to subparagraph (4) of this Section 1010
and (y) any mandatory sinking fund payments applicable to
the Securities of such series on the day on which payments
are due and payable in accordance with the terms of the
Indenture and of the Securities of such series;
(2) No Event of Default or event which with notice or
lapse of time would become an Event of Default (including by
reason of such deposit) with respect to the Securities of
such series shall have occurred and be continuing on the
date of such deposit;
(3) The Company shall have delivered to the Trustee an
Opinion of Counsel to the effect (i) that Holders of the
Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such
deposit and defeasance of certain obligations; (ii) that
such provision would not cause any outstanding Securities of
such series then listed on any national securities exchange
to be delisted as a result thereof; and (iii) that the
defeasance trust is not, or is registered as, an investment
company under the Investment Company Act of 1940;
(4) If the Company has deposited or caused to be
deposited money or U.S. Government Obligations to pay or
discharge the principal of (and premium, if any) and
interest, if any, on the Outstanding Securities of a series
to and including a Redemption Date on which all of the
Outstanding Securities of such series are to be redeemed,
such Redemption Date shall be irrevocably designated by a
Board Resolution delivered to the Trustee on or prior to the
date of deposit of such money or U.S. Government
Obligations, and such Board Resolution shall be accompanied
by an irrevocable Company Request that the Trustee give
notice of such redemption in the name and at the expense of
the Company not less than 30 nor more than 60 days prior to
such Redemption Date in accordance with Section 1104 hereof;
and
(5) 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 to the satisfaction and discharge of the Securities
have been complied with.
SECTION 1011. Waiver of Certain Covenants.
The Company may omit in any particular instance to
comply with any term, provision or condition set forth in
Sections 801 and 1004 to 1007 hereof, inclusive, with respect to
the Securities of any series if before the time for such
compliance the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities of such series
shall, by Act of such Holders, either 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.
SECTION 1012. Further Assurances.
The Company shall, at its own cost and expense, execute
and deliver to the Trustee all such other documents, instruments
and agreements and do all such other acts and things as may be
reasonably required, in the opinion of the Trustee, to enable the
Trustee to exercise and enforce its rights under this Indenture
and under the documents, instruments and agreements required
under this Indenture and to carry out the intent of this
Indenture.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before
their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by
Section 301 hereof for Securities of any series) in accordance
with this Article Eleven.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities
shall be authorized by a Board of Directors resolution and
evidenced by an Officers' Certificate. In case of any redemption
at the election of the Company of less than all the Securities of
any series, the Company shall, at least 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. 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, or pursuant to an election by the Company
which is subject to a condition specified in the terms of such
Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction or condition.
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 (equal to the minimum
authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration
and certificate number in a written statement signed by an
authorized officer of the Company and delivered to the Security
Registrar at least 60 days prior to the Redemption Date as being
owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Company or (b) an entity
specifically identified in such written statement which is an
Affiliate of the Company.
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 Securities redeemed
or to be redeemed only in part, to the portion of the principal
amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class
mail, postage prepaid, mailed not less than 30 nor more than 60
days prior to the Redemption Date, to each Holder of Securities
to be redeemed, at his address appearing in the Security
Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the
case of partial redemption, the principal amounts) of the
particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be
redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(5) the place or places where such Securities are to
be surrendered for payment of the Redemption Price, and
(6) 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.
SECTION 1105. Deposit of Redemption Price.
On or 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 hereof) an amount of money
sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that
date (to the extent that such amounts are not already on deposit
at such time in accordance with the provisions of Sections 401,
403 or 1010 hereof).
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid,
the Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified,
and from and after such date (unless the Company shall default in
the payment of the Redemption Price and accrued and unpaid
interest) such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with
said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued and unpaid interest to
the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close
of business on the relevant Record Dates according to their terms
and the provisions of Section 307 hereof.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal (and
premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security (including any Global Security) which is
to be redeemed only in part 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 his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series,
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; provided, that if a Global Security is so
surrendered, the new Global Security shall be in a denomination
equal to the unredeemed portion of the principal of the Global
Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to
any sinking fund for the retirement of Securities of a series
except as otherwise specified as contemplated by Section 301
hereof for Securities of such series.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series is herein referred
to as a "mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms of
Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of
Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202
hereof. 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.
In lieu of making all or any part of any mandatory
sinking fund payment with respect to any series of Securities in
cash, the Company may at its option (a) deliver to the Trustee
Securities of such series theretofore purchased or otherwise
acquired (except upon redemption pursuant to the mandatory
sinking fund) by the Company or receive credit for Securities of
such series (not previously so credited) theretofore purchased or
otherwise acquired (except as aforesaid) by the Company and
delivered to the Trustee for cancellation pursuant to Section 309
hereof, (b) receive credit for optional sinking fund payments
(not previously so credited) made pursuant to this Section 1202,
or (c) receive credit for Securities of such series (not
previously so credited) redeemed by the Company through any
optional redemption provision contained in the terms of such
series. Securities so delivered or credited shall be received or
credited by the Trustee at the sinking fund Redemption Price
specified in such Securities.
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 (a)
the amount of the next ensuing sinking fund payment for that
series pursuant to the terms of that series, (b) whether or not
the Company intends to exercise its right, if any, to make an
optional sinking fund payment with respect to such series on the
next ensuing sinking fund payment date and, if so, the amount of
such optional sinking fund payment, and (c) the portion thereof,
if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering
and crediting Securities of that series pursuant to Section 1202
hereof, and will also deliver to the Trustee any Securities to be
so delivered. Such written statement shall be irrevocable and
upon its receipt by the Trustee the Company shall become
unconditionally obligated to make all the cash payments or
payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Company, on
or before any such 60th day, to deliver such written statement
and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such
date, the irrevocable election of the Company (i) that the
mandatory sinking fund payment for such series due on the next
succeeding sinking fund payment date shall be paid entirely in
cash without the option to deliver or credit Securities of such
series in respect therefor and (ii) that the Company will make no
optional sinking fund payment with respect to such series as
provided in this Section 1203.
Not less than 30 days before each such sinking fund
payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner
specified in Section 1103 hereof 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 hereof.
Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated
in Sections 1105, 1106 and 1107 hereof.
The Trustee shall not redeem or cause to be redeemed
any Security of a series with sinking fund moneys or mail any
notice of redemption of Securities of such series by operation of
the sinking fund during the continuance of a default in payment
of interest with respect to Securities of that series or an Event
of Default with respect to the Securities of that series except
that, where the mailing of notice of redemption of any Securities
shall theretofore have been made, the Trustee shall redeem or
cause to be redeemed such Securities, provided that it shall have
received from the Company a sum sufficient for such redemption.
Except as aforesaid, any moneys in the sinking fund for such
series at the time when any such default or Event of Default,
shall occur, and any moneys thereafter paid into the sinking
fund, shall, during the continuance of such default or Event of
Default, be deemed to have been collected under Article Five and
held for the payment of all such Securities. In case such Event
of Default shall have been waived as provided in Section 513
hereof or the default or Event of Default cured on or before the
60th day preceding the sinking fund payment date, such moneys
shall thereafter be applied on the next succeeding sinking fund
payment date in accordance with this Section 1203 to the
redemption of such Securities.
ARTICLE THIRTEEN
SENIOR NOTE MORTGAGE BONDS
SECTION 1301. Delivery of Senior Note Mortgage Bonds to the Trustee.
Subject to the provisions of Section 401 and Section
1310 hereof, the Company (a) shall, from time to time prior to
the Release Date, deliver to the Trustee, upon the issuance of a
series of Securities hereunder, Senior Note Mortgage Bonds
conforming to the requirements of Section 1309 hereof, fully
registered in the name of the Trustee, in trust for the benefit
of the Holders from time to time of the Securities issued under
this Indenture as security for any and all obligations of the
Company under the Securities, including, but not limited to,
(1) the full and prompt payment of the principal of the
Securities when and as the same shall become due and payable in
accordance with the terms and provisions of this Indenture or the
Securities, either at the stated maturity thereof, upon
acceleration of the maturity thereof or upon redemption, and
(2) the full and prompt payment of any interest on the Securities
when and as the same shall become due and payable in accordance
with the terms and provisions of this Indenture or the Securities
and (b) shall deliver concurrently therewith to the Trustee the
certificate of the Expert required by Section 1306 hereof.
SECTION 1302. Receipt.
The Trustee shall accept and acknowledge receipt of the
Senior Note Mortgage Bonds and Expert certificate described in
Section 1301 hereof upon the delivery thereof in accordance with
said Section 1301.
SECTION 1303. Senior Note Mortgage Bonds Held by the Trustee.
The Trustee, as a Holder of Senior Note Mortgage Bonds,
shall attend any meeting of bondholders under the First Mortgage
Indenture as to which it receives due notice, or, at its option,
shall deliver its proxy in connection therewith. Either at such
meeting, or otherwise where consent of holders of first mortgage
bonds issued under the First Mortgage Indenture is sought without
a meeting, the Trustee shall vote all of the Senior Note Mortgage
Bonds held by it, or shall consent or withhold its consent with
respect thereto, as directed by the Holders of not less than a
majority in the aggregate principal amount of the outstanding
Securities; provided, however, the Trustee shall not vote as such
holder of any particular series of Senior Note Mortgage Bonds in
favor of, or give its consent to, any action which, in the
Trustee's opinion, would materially adversely affect such series
of Senior Note Mortgage Bonds in a manner not shared generally by
all other Senior Note Mortgage Bonds, except upon notification by
the Trustee to the Holders of the related series of Securities of
such proposal and consent thereto of the Holders of not less than
a majority in aggregate principal amount of the outstanding
Securities of such series.
SECTION 1304. No Transfer of Senior Note Mortgage Bonds; Exception.
Except as required to effect an assignment to a
successor trustee under this Indenture or pursuant to Section
1305 or Section 1308 hereof, the Trustee shall not sell, assign
or transfer the Senior Note Mortgage Bonds and the Company shall
issue stop transfer instructions to the First Mortgage Trustee
and any transfer agent under the First Mortgage Indenture to
effect compliance with this Section 1304.
SECTION 1305. Delivery to the Company of All Senior Note Mortgage
Bonds.
When the obligation of the Company to make payment with
respect to the principal of and premium, if any, and interest on
the Senior Note Mortgage Bonds shall be satisfied or deemed
satisfied pursuant to Section 401 or Section 1310 hereof, the
Trustee shall, upon written request of the Company and receipt of
the certificate of the Expert described in Section 1306(b) hereof
(if such certificate is then required by Section 1306(b) hereof),
deliver to the Company without charge therefor all of the Senior
Note Mortgage Bonds, together with such appropriate instruments
of transfer or release as may be reasonably requested by the
Company. All Senior Note Mortgage Bonds delivered to the Company
in accordance with this Section 1305 shall be delivered by the
Company to the First Mortgage Trustee for cancellation.
SECTION 1306. Fair Value Certificate.
(a) Upon the delivery by the Company to the Trustee of
Senior Note Mortgage Bonds pursuant to Section 1301 hereof and
subject to Section 303 hereof, the Company shall simultaneously
therewith deliver to the Trustee a certificate of an Expert (1)
stating that it is familiar with the provisions of such Senior
Note Mortgage Bonds and of this Indenture, (2) stating the
principal amount of such Senior Note Mortgage Bonds so delivered,
the stated interest rate (or method of calculation of interest)
of such Senior Note Mortgage Bonds and the stated maturity date
of such Senior Note Mortgage Bonds, (3) identifying the
Securities being issued contemporaneously therewith, and (4)
stating the fair value to the Company of such Senior Note
Mortgage Bonds. If the fair value to the Company of the Senior
Note Mortgage Bonds so delivered, as described in the certificate
to be delivered pursuant to this Section 1306(a), both (l) is
equal to or exceeds (A) $25,000 and (B) 1% of the principal
amount of the Securities outstanding at the date of delivery of
such Senior Note Mortgage Bonds and (2) together with the fair
value to the Company, as described in the certificates to be
delivered pursuant to this Section 1306(a), of all other Senior
Note Mortgage Bonds delivered to the Trustee since the
commencement of the then current calendar year, is equal to or
exceeds 10% of the principal amount of the Securities outstanding
at the date of delivery of such Senior Note Mortgage Bonds, then
the certificate required by this Section 1306(a) shall (1) be
delivered by an Expert who shall be independent of the Company
and satisfactory to the Trustee in its reasonable judgment and
(2) shall, in addition to the certifications described above,
state the fair value to the Company of all Senior Note Mortgage
Bonds delivered to the Trustee pursuant to Section 1301 hereof
since the commencement of the then current year as to which a
certificate was not delivered by an Expert independent of the
Company.
(b) If Senior Note Mortgage Bonds are delivered or
surrendered to the Company pursuant to Section 1305 or 1308
hereof, the Company shall simultaneously therewith deliver to the
Trustee a certificate of an Expert (1) stating that it is
familiar with the provisions of such Senior Note Mortgage Bonds
and of this Indenture, (2) stating the principal amount of such
Senior Note Mortgage Bonds so delivered, the stated interest rate
(or method of calculation of interest) of such Senior Note
Mortgage Bonds and the stated maturity date of such Senior Note
Mortgage Bonds, (3) if applicable, identifying the Securities,
the payment of the interest on and principal of which has been
discharged hereunder, and (4) stating that such delivery and
release will not impair the lien of this Indenture in
contravention of the provisions of this Indenture. If, prior to
the Release Date, the fair value of the Senior Note Mortgage
Bonds so delivered and released, as described in the certificate
to be delivered pursuant to this Section 1306(b), both (l) is
equal to or exceeds (A) $25,000 and (B) 1% of the principal
amount of the outstanding Securities at the date of release of
such Senior Note Mortgage Bonds and (2) together with the fair
value, as described in the certificates to be delivered pursuant
to this Section 1306(b), of all other Senior Note Mortgage Bonds
released from the lien of this Indenture since the commencement
of the then current calendar year, is equal to or exceeds 10% of
the principal amount of the Securities outstanding at the date of
release of such Senior Note Mortgage Bonds, then the certificate
required by this Section 1306(b) shall be delivered by an Expert
who shall be independent of the Company and satisfactory to the
Trustee in its reasonable judgment.
If, in connection with a delivery or release of
outstanding Senior Note Mortgage Bonds, the Company provides to
the Trustee an Opinion of Counsel stating that the certificate
described by this Section 1306 is not required by law, such
certificate shall not be required to be delivered hereunder in
connection with such delivery or release.
SECTION 1307. Further Assurances.
The Company shall cause this Indenture, any indentures
supplemental to this Indenture, and any financing or continuation
statements to be promptly recorded and filed and rerecorded and
refiled in such a manner and in such places, as may be required
by law in order fully to preserve, protect and perfect the
security of the Holders and all rights of the Trustee, and, at
its own expense, shall do such further lawful acts and things,
and execute and deliver such additional conveyances, assignments,
assurances, agreements, financing statements and instruments, as
may be necessary in order to better assign, assure, perfect and
confirm to the Trustee its security interest in the Senior Note
Mortgage Bonds and for maintaining, protecting and preserving
such security interest.
SECTION 1308. Exchange and Surrender of Senior Note
Mortgage Bonds.
At any time at the written direction of the Company,
the Trustee shall surrender to the Company all or part of the
Senior Note Mortgage Bonds in exchange for Senior Note Mortgage
Bonds equal in aggregate outstanding principal amounts to, in
different denominations than but of the same series and with all
other terms identical to, the Senior Note Mortgage Bonds so
surrendered to the Company. In addition, at any time a Security
shall cease to be entitled to any lien, benefit or security under
this Indenture pursuant to Section 404 hereof, the Trustee shall
surrender Senior Note Mortgage Bonds as provided in this Section
to the Company for cancellation. The Trustee shall, together with
such Senior Note Mortgage Bonds, deliver to the Company such
appropriate instruments of transfer or release as the Company may
reasonably request. Prior to the surrender required by this
paragraph, the Trustee shall receive from the Company the
following, and (subject to Section 601 hereof) shall be fully
protected in relying upon, (a) an Officers' Certificate stating
(i) the aggregate outstanding principal amount of the Senior Note
Mortgage Bonds of the series surrendered by the Trustee, after
giving effect to such surrender, (ii) the aggregate outstanding
principal amount of the related series of Securities, (iii) that
the surrender of the Senior Note Mortgage Bonds will not result
in any default under this Indenture, and (iv) that any Senior
Note Mortgage Bonds to be received in exchange for the Senior
Note Mortgage Bonds being surrendered comply with the provisions
of this Section 1308.
The Company shall not be permitted to cause the
surrender or exchange of all or any part of a series of Senior
Note Mortgage Bonds contemplated in this Section 1308, if, after
such surrender or exchange, the aggregate outstanding principal
amount of the related series of Securities would exceed the
aggregate outstanding principal amount of such series of Senior
Note Mortgage Bonds held by the Trustee. Any Senior Note
Mortgage Bonds received by the Company pursuant to this Section
1308 shall be delivered to the First Mortgage Trustee for
cancellation.
SECTION 1309. Terms of Senior Note Mortgage Bonds.
Each series of Senior Note Mortgage Bonds delivered to
the Trustee pursuant to Section 1301 hereof shall have the same
stated rate or rates of interest (or interest calculated in the
same manner), Interest Payment Dates, Stated Maturity, and
redemption provisions, and shall be in the same aggregate
principal amount, as the related series of Securities being
issued.
SECTION 1310. Senior Note Mortgage Bonds as Security
for Securities.
Until the Release Date and subject to Article Four
hereof, Senior Note Mortgage Bonds delivered to the Trustee, for
the benefit of the Holders of the Securities, shall serve as
security for any and all obligations of the Company under the
Securities, including, but not limited to (1) the full and prompt
payment of the principal of such Securities when and as the same
shall become due and payable in accordance with the terms and
provisions of this Indenture or the Securities, either at the
Stated Maturity thereof, upon acceleration of the maturity
thereof or upon redemption, and (2) the full and prompt payment
of any interest on such Securities when and as the same shall
become due and payable in accordance with the terms and
provisions of this Indenture or the Securities.
Notwithstanding anything in this Indenture to the
contrary, from and after the Release Date, the obligation of the
Company to make payment with respect to the principal of and
premium, if any, and interest on the Senior Note Mortgage Bonds
shall be deemed satisfied and discharged as provided in the
supplemental indenture or indentures to the First Mortgage
Indenture creating such Senior Note Mortgage Bonds and the Senior
Note Mortgage Bonds shall cease to secure in any manner
Securities theretofore or subsequently issued. From and after
the Release Date, any conditions to the issuance of Securities
that refer or relate to Senior Note Mortgage Bonds or the First
Mortgage Indenture shall be inapplicable. Following the Release
Date, the Company shall cause the First Mortgage Indenture to be
closed and the Company shall not issue any additional First
Mortgage Bonds or Senior Note Mortgage Bonds under the First
Mortgage Indenture. Notice of the occurrence of the Release Date
shall be given by the Trustee to the Holders of the Securities in
the manner provided in Section 106 hereof not later than 30 days
after the Company notifies the Trustee of the occurrence of the
Release Date.
ARTICLE FOURTEEN
MISCELLANEOUS
SECTION 1401. Counterparts.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
[Seal] PUBLIC SERVICE COMPANY OF OKLAHOMA
By______________________________
Name: Robert L. Zemanek
Title: President and Chief
Executive Officer
Attest:
_________________________
Name: Betsy J. Power
Title: Secretary
[Seal] LIBERTY BANK AND TRUST COMPANY
OF TULSA, NATIONAL ASSOCIATION,
as Trustee
By______________________________
Name:
Title:
Attest:
_________________________
Name:
Title:
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ____ day of __________, 1996, before me
personally came _______________________, to me known, who, being
by me duly sworn, did depose and say that he is a ______________
of Public Service Company of Oklahoma, one of the corporations
described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that
he signed his name thereto by like authority.
_____________________________
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ____ day of ___________, 1996, before me
personally came ____________, to me known, who, being by me duly
sworn, did depose and say that he is a ______________ of Liberty
Bank and Trust Company of Tulsa, National Association, one of the
corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it
was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like
authority.
_____________________________
EXHIBIT 4.02
=============================================================================
PUBLIC SERVICE COMPANY OF OKLAHOMA
to
LIBERTY BANK AND TRUST COMPANY OF TULSA,
NATIONAL ASSOCIATION,
as Trustee
_________________________
First Supplemental Indenture
Dated as of February 1, 1996
Supplemental to the Indenture
dated as of February 1, 1996
Establishing a series of Securities
designated Medium-Term Notes, Series A
===========================================================================
FIRST SUPPLEMENTAL INDENTURE, dated as of February 1, 1996
(herein called the "First Supplemental Indenture"), between
Public Service Company of Oklahoma, a corporation duly organized
and existing under the laws of Oklahoma (hereinafter called the
"Company") and Liberty Bank and Trust Company of Tulsa, National
Association, as Trustee under the Original Indenture referred to
below (hereinafter called the "Trustee").
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered
to the Trustee an indenture dated as of February 1, 1996
(hereinafter called the "Original Indenture"), to provide for the
issuance from time to time of its debentures, notes or other
evidences of indebtedness (herein called the "Securities"), the
form and terms of which are to be established as set forth in
Sections 201 and 301 of the Original Indenture;
WHEREAS, Section 901 of the Original Indenture provides,
among other things, that the Company and the Trustee may enter
into indentures supplemental to the Original Indenture for, among
other things, the purpose of establishing the form and terms of
the Securities of any series as permitted in Sections 201 and 301
of the Original Indenture;
WHEREAS, the Company desires to create a series of the
Securities in an aggregate principal amount of up to $75,000,000
to be designated the "Medium-Term Notes, Series A" (the "Senior
Notes"), and all action on the part of the Company necessary to
authorize the issuance of the Senior Notes under the Original
Indenture and this First Supplemental Indenture has been duly
taken; and
WHEREAS, all acts and things necessary to make the Senior
Notes, when executed by the Company and completed, authenticated
and delivered by the Trustee as provided in the Original
Indenture and this First Supplemental Indenture, the valid and
binding obligations of the Company and to constitute these
presents a valid and binding supplemental indenture and agreement
according to its terms, have been done and performed;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
That in consideration of the premises and of the
acceptance and purchase of the Senior Notes by the holders
thereof and of the acceptance of this trust by the Trustee, the
Company covenants and agrees with the Trustee, for the equal
benefit of holders of the Senior Notes, as follows:
ARTICLE ONE
Definitions
The use of the terms and expressions herein is in accordance
with the definitions, uses and constructions contained in the
Original Indenture and the forms of Senior Notes attached hereto
as Exhibit A and Exhibit B.
ARTICLE TWO
Terms and Issuance of the Medium-Term Notes, Series A
Section 201. Issue of Senior Notes. A series of Securities
which shall be designated the "Medium-Term Notes, Series A" shall
be executed, authenticated and delivered from time to time in
accordance with the provisions of, and shall in all respects be
subject to, the terms, conditions and covenants of, the Original
Indenture and this First Supplemental Indenture (including the
form of Certificated Senior Note set forth in Exhibit A and the
form of Global Senior Note set forth in Exhibit B hereto). The
aggregate principal amount of the Senior Notes which may be
authenticated and delivered under the First Supplemental
Indenture shall not, except as permitted by the provisions of the
Original Indenture, exceed $75,000,000.
Section 202. Form of Senior Notes; Incorporation of Terms.
The form of the Senior Notes shall be (i) substantially in the
form of Exhibit A attached hereto if the Company advises the
Trustee that the Senior Notes are not to be issued as Global
Securities at the time that the Company transmits to the Trustee
settlement information relating to the Senior Notes as
contemplated by the Administrative Procedures referred to in the
Distribution Agreement, dated February 26, 1996, among the
Company and Smith Barney Inc. and Morgan Stanley & Co.
Incorporated or (ii) substantially in the form of Exhibit B
attached hereto if the Company does not so notify the Trustee.
The Senior Notes shall be registered in such names, shall be in
such amounts and shall have such Original Issue Dates, Interest
Rates, Maturity Dates, Redemption Dates, if any, Initial
Redemption Percentages, if any, and Annual Redemption Percentage
Reductions, if any, as are communicated by the Company to the
Trustee in accordance with such Administrative Procedures. The
terms of such Senior Notes are herein incorporated by reference
and are part of this First Supplemental Indenture.
Section 203. Depositary for Global Securities. The
Depositary for any Global Securities of the series of which this
Security is a part shall be The Depository Trust Company in The
City of New York.
Section 204. Limitation on Liens. The covenant provided by
Section 1007 of the Original Indenture shall be applicable to the
Senior Notes.
Section 205. Place of Payment. The Place of Payment in
respect of the Senior Notes will be at the principal office or
agency of the Company in the City of New York, State of New York
or at the principal office or place of business of the Trustee or
its successor in trust under the Indenture, which, at the date
hereof, is located at 15 East Fifth Street, Tulsa, Oklahoma.
Section 206. The related series of Senior Note Mortgage
Bonds for the Senior Notes shall be the Company's First Mortgage
Bonds, Series X.
ARTICLE THREE
Miscellaneous
Section 301. Execution as Supplemental Indenture. This
First Supplemental Indenture is executed and shall be construed
as an indenture supplemental to the Original Indenture and, as
provided in the Original Indenture, this First Supplemental
Indenture forms a part thereof.
Section 302. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this First
Supplemental Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
Section 303. Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the
construction hereof.
Section 304. Successors and Assigns. All covenants and
agreements by the Company in this First Supplemental Indenture
shall bind its successors and assigns, whether so expressed or
not.
Section 305. Separability Clause. In case any provision in
this First Supplemental Indenture or in the Senior Notes 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 306. Benefits of First Supplemental Indenture.
Nothing in this First Supplemental Indenture or in the Senior
Notes, express or implied, shall give to any person, other than
the parties hereto and their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or
claim under this First Supplemental Indenture.
Section 307. Execution and Counterparts. This First
Supplemental Indenture may be executed in any number of
counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute but one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be duly executed and their
respective corporate seals to be hereunto affixed and attested,
all as of the day and year first above written.
[SEAL]
PUBLIC SERVICE COMPANY OF
OKLAHOMA
By________________________
Name:
Title:
Attest:
___________________
Name: LIBERTY BANK AND TRUST COMPANY OF
Title: TULSA, NATIONAL ASSOCIATION,
As Trustee
[SEAL]
By___________________________
Name:
Title:
Attest:
_________________________
Name:
Title:
STATE OF NEW YORK }
:ss
COUNTY OF NEW YORK}
On this ___ day of February, 1996, before me personally
came ________________, to me known, who, being by me duly sworn,
did depose and say that he is a ______________ of Public Service
Company of Oklahoma, one of the corporations described in and
which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his
name thereto by like authority.
____________________________
STATE OF NEW YORK }
:ss
COUNTY OF NEW YORK}
On this ___ day of February, 1996, before me personally
came ________________, to me known, who, being by me duly sworn,
did depose and say that he is a ______________ of Liberty Bank
and Trust Company of Tulsa, National Association, one of the
corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it
was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like
authority.
____________________________
EXHIBIT A
[FORM OF FACE OF CERTIFICATED SENIOR NOTE]
PUBLIC SERVICE COMPANY OF OKLAHOMA
MEDIUM-TERM NOTE, SERIES A
CUSIP No. ____
No. __________ $__________
PUBLIC SERVICE COMPANY OF OKLAHOMA, a corporation duly
organized and existing under the laws of the State of Oklahoma
(herein called the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to
___________________________________, or registered assigns, the
principal sum of ________________________ Dollars on
_________________________________ (the "Maturity Date") [(except
to the extent redeemed prior to the Maturity Date)], and to pay
interest thereon from ________ (the "Original Issue Date"), or
from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually on __________ and
__________ in each year (each, an "Interest Payment Date") and at
the Maturity Date [(or any Redemption Date as defined on the
reverse hereof)], commencing on the first Interest Payment Date
succeeding the Original Issue Date of this Security (unless the
Original Issue Date is after the Regular Record Date (as defined
below) and before the immediately following Interest Payment
Date, in which case interest payments will commence on the next
succeeding Interest Payment Date), at _____% (the "Interest
Rate"), until the principal hereof is paid or made available for
payment, and, subject to the terms of the Indenture, at the
Interest Rate on any overdue principal and premium, if any, and
(to the extent that the payment of such interest shall be legally
enforceable) on any overdue installment of interest. The
interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be
paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be the
__________ or _________ (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date; provided,
however, that interest payable on the Maturity Date [(or any
Redemption Date)] will be payable to the Person to whom the
principal hereof shall be payable. Any such interest not so
punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either
be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
a Special Record Date for the payment of such Defaulted Interest
to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior
to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be
listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture.
Payment of the principal of, interest and premium, if
any, on this Security will be made at the office or agency of the
Company maintained for that purpose in __________________, in
such coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and
private debts; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall
appear in the Security Register.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF
THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET
FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof,
or an Authenticating Agent, by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated:
[Seal] PUBLIC SERVICE COMPANY OF OKLAHOMA
By______________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
herein and referred to in the within-mentioned Indenture.
LIBERTY BANK AND TRUST COMPANY OF TULSA,
NATIONAL ASSOCIATION,
as Trustee
By________________________________
Authorized Officer
[FORM OF REVERSE OF CERTIFICATED SENIOR NOTE]
PUBLIC SERVICE COMPANY OF OKLAHOMA
MEDIUM-TERM NOTE, SERIES A
This Security is one of a duly authorized series of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture,
dated as of February 1, 1996, as supplemented by a First
Supplemental Indenture, dated as of February 1, 1996 (herein
collectively called the "Indenture"), between the Company and
Liberty Bank and Trust Company of Tulsa, National Association, as
trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and
the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face
hereof, limited in aggregate principal amount to $75,000,000.
The individual Securities of this series may bear different
original issue dates, maturity dates and interest rates and may
vary in such other ways as are provided in the Indenture.
Interest payments for this Security will be computed
and paid on the basis of a 360-day year of twelve 30-day months.
If an Interest Payment Date falls on a day that is not a Business
Day, such Interest Payment Date will be the following day that is
a Business Day.
Prior to the Release Date (as hereinafter defined), the
Securities of this series will be secured by first mortgage bonds
(the "Senior Note Mortgage Bonds") delivered by the Company to
the Trustee for the benefit of the Holders of the Securities,
issued under the Indenture, dated July 1, 1945, by and between
the Company and Liberty Bank and Trust Company of Tulsa, National
Association (successor solely by change of corporate name to The
First National Bank and Trust Company of Tulsa) (the "First
Mortgage Trustee"), as supplemented and modified (the "First
Mortgage Indenture") pursuant to the Supplemental Indenture dated
February 1, 1996. Reference is made to the First Mortgage
Indenture and the Indenture for a description of property
mortgaged and pledged, the nature and extent of the security, the
rights of the holders of the first mortgage bonds under the First
Mortgage Indenture and of the First Mortgage Trustee in respect
thereof, the duties and immunities of the First Mortgage Trustee
and the terms and conditions upon which the Senior Note Mortgage
Bonds are secured and the circumstances under which additional
first mortgage bonds may be issued.
FROM AND AFTER SUCH TIME AS ALL FIRST MORTGAGE BONDS
(OTHER THAN SENIOR NOTE MORTGAGE BONDS) ISSUED UNDER THE FIRST
MORTGAGE INDENTURE HAVE BEEN RETIRED THROUGH PAYMENT, REDEMPTION
OR OTHERWISE (INCLUDING THOSE FIRST MORTGAGE BONDS "DEEMED TO BE
PAID" WITHIN THE MEANING OF THAT TERM AS USED IN ARTICLE XII OF
THE FIRST MORTGAGE INDENTURE) AT, BEFORE OR AFTER THE MATURITY
THEREOF (THE "RELEASE DATE"), THE SENIOR NOTE MORTGAGE BONDS
SHALL, AT THE OPTION OF THE COMPANY, CEASE TO SECURE THE
SECURITIES OF THIS SERIES IN ANY MANNER. IN CERTAIN
CIRCUMSTANCES PRIOR TO THE RELEASE DATE AS PROVIDED IN THE
INDENTURE, THE COMPANY IS PERMITTED TO REDUCE THE AGGREGATE
PRINCIPAL AMOUNT OF A SERIES OF SENIOR NOTE MORTGAGE BONDS HELD
BY THE TRUSTEE, BUT IN NO EVENT PRIOR TO THE RELEASE DATE TO AN
AMOUNT LESS THAN THE AGGREGATE OUTSTANDING PRINCIPAL AMOUNT OF
THE SERIES OF SECURITIES INITIALLY ISSUED CONTEMPORANEOUSLY WITH
SUCH SENIOR NOTE MORTGAGE BONDS.
[If applicable, insert -- This security is not subject
to redemption prior to maturity.] [If applicable, insert -- The
Securities of this series are subject to redemption upon not less
than 30 or more than 60 days' notice by mail to the Holders of
such Securities at their addresses in the Security Register for
such series, [if applicable, insert -- (1) on __________ in any
year commencing with the year ____ and ending with the year ____
through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)]
at any time [on or after ___________, 19__], as a whole or in
part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount):
If redeemed [on or before _____________, ___%, and if
redeemed] during the 12-month period beginning ___________, of
the years indicated:
Redemption Redemption
Year Price Year Price
and thereafter at a Redemption Price equal to ___% of the
principal amount, together in the case of any such redemption [if
applicable, insert -- (whether through operation of the sinking
fund or otherwise)] with accrued and unpaid interest to the
Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in
the Indenture.]
[If applicable, insert -- The Securities of this series
are subject to redemption upon not less than 30 or more than 60
days' notice by mail to the Holders of such Securities at their
addresses in the Security Register for such series, (1) on
____________ in any year commencing with the year ____ and ending
with the year ____ through operation of the sinking fund for this
series at the Redemption Prices for redemption through operation
of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below, and (2) at any time [on or
after ____________], as a whole or in part, at the election of
the Company, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table
below:
If redeemed during the 12-month period beginning ______________
of the years indicated:
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
and thereafter at a Redemption Price equal to ___% of the
principal amount, together in the case of any such redemption
(whether through operation of the sinking fund or otherwise) with
accrued and unpaid interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the
foregoing, the Company may not, prior to _________, redeem any
Securities of this series as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly,
of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial
practice) of less than ___% per annum.]
[The sinking fund for this series provides for the
redemption on _________ in each year beginning with the year ____
and ending with the year ____ of [not less than] __________
[("mandatory sinking fund") and, at the option of the Company,
not more than __________] aggregate principal amount of
Securities of this series. [Securities of this series acquired
or redeemed by the Company otherwise than through [mandatory]
sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made
in the order in which they become due.]]
[In the event of redemption of this Security in part
only, a new Security or Securities of this series and of like
tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions for defeasance of (a)
the entire indebtedness of this Security and (b) certain
restrictive covenants upon compliance by the Company with certain
conditions set forth therein.
[If the Security is not an Original Issue Discount
Security, insert -- If an Event of Default with respect to
Securities of this series shall occur and be continuing, the
principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the
Indenture and, upon such declaration, the Trustee can demand the
redemption of the Senior Note Mortgage Bonds as provided in the
Indenture.]
[If the Security is an Original Issue Discount
Security, insert -- If an Event of Default with respect to
Securities of this series shall occur and be continuing, an
amount of principal of the Securities of this series (the
"Acceleration Amount") may be declared due and payable in the
manner and with the effect provided in the Indenture and, upon
such declaration, the Trustee can demand the redemption of the
Senior Note Mortgage Bonds as provided in the Indenture. In case
of a declaration of acceleration on or before ________, __ or on
_____________ in any year, the Acceleration Amount per ______
principal amount at Stated Maturity of the Securities shall be
equal to the amount set forth in respect of such date below:
Acceleration
Amount
per _______
principal amount
Date of declaration at Stated Maturity
and in case of a declaration of acceleration on any other date,
the Acceleration Amount shall be equal to the Acceleration Amount
as of the next preceding date set forth in the table above, plus
accrued original issue discount (computed in accordance with the
method used for calculating the amount of original issue discount
that accrues for Federal income tax purposes) from such next
preceding date to the date of declaration at the yield to
maturity. For the purpose of this computation the yield to
maturity is ___%. Upon payment (i) of the Acceleration Amount so
declared due and payable and (ii) of interest on any overdue
principal and overdue interest (in each case to the extent that
the payment of such interest shall be legally enforceable), all
of the Company's obligations in respect of the payment of the
principal of and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in principal
amount of the Securities at the time Outstanding of all series to
be affected (voting as a class). The Indenture also contains
provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by
the Holder of this Security shall be conclusive and binding upon
such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of (and premium, if any) and interest, if
any, on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of
the Company in any place where the principal of (and premium, if
any) and interest, if any, on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security Registrar
duly executed by, the Holder hereof or his or her attorney duly
authorized in writing, and thereupon one or more new Securities
of this series and of like tenor, of authorized denominations and
for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities of this series are issuable only in
registered form without coupons in denominations of $1,000 and
any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name
this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
This Security shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
EXHIBIT B
[FORM OF FACE OF GLOBAL SENIOR NOTE]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY
IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, OR ANY DEFINITIVE NOTE IS
ISSUED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
PUBLIC SERVICE COMPANY OF OKLAHOMA
MEDIUM-TERM NOTE, SERIES A
CUSIP No. ____
No. __________ $__________
PUBLIC SERVICE COMPANY OF OKLAHOMA, a corporation duly
organized and existing under the laws of the State of Oklahoma
(herein called the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to
___________________________________, or registered assigns, the
principal sum of ________________________ Dollars on
_________________________________ (the "Maturity Date") [(except
to the extent redeemed prior to the Maturity Date)], and to pay
interest thereon from ________ (the "Original Issue Date"), or
from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually on __________ and
__________ in each year (each, an "Interest Payment Date") and at
the Maturity Date [(or any Redemption Date as defined on the
reverse hereof)], commencing on the first Interest Payment Date
succeeding the Original Issue Date of this Security (unless the
Original Issue Date is after [the Regular Record Date (as defined
below)] and before the immediately following [Interest Payment
Date], in which case interest payments will commence on the next
succeeding [Interest Payment Date]), at _____% (the "Interest
Rate"), until the principal hereof is paid or made available for
payment, and, subject to the terms of the Indenture, at the
Interest Rate on any overdue principal and premium, if any, and
(to the extent that the payment of such interest shall be legally
enforceable) on any overdue installment of interest. The
interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be
paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be the
__________ or _________ (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date; provided,
however, that interest payable on the Maturity Date [(or any
Redemption Date)] will be payable to the Person to whom the
principal hereof shall be payable. Any such interest not so
punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either
be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
a Special Record Date for the payment of such Defaulted Interest
to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior
to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be
listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and
interest, if any, on this Security will be made at the office or
agency of the Company maintained for that purpose in
__________________, in such coin or currency of the United States
of America as at the time of payment is legal tender for the
payment of public and private debts.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF
THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET
FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof,
or an Authenticating Agent, by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated:
[Seal] PUBLIC SERVICE COMPANY OF OKLAHOMA
By______________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
herein and referred to in the within-mentioned Indenture.
LIBERTY BANK AND TRUST COMPANY OF TULSA,
NATIONAL ASSOCIATION,
as Trustee
By________________________________
Authorized Officer
[FORM OF REVERSE OF GLOBAL SENIOR NOTE]
PUBLIC SERVICE COMPANY OF OKLAHOMA
MEDIUM-TERM NOTE, SERIES A
This Security is one of a duly authorized series of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture,
dated as of February 1, 1996, as supplemented by a First
Supplemental Indenture, dated as of February 1, 1996 (herein
collectively called the "Indenture"), between the Company and
Liberty Bank and Trust Company of Tulsa, National Association, as
trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and
the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face
hereof, limited in aggregate principal amount to $75,000,000.
The individual Securities of this series may bear different
original issue dates, maturity dates and interest rates and may
vary in such other ways as are provided in the Indenture.
Interest payments for this Security will be computed
and paid on the basis of a 360-day year of twelve 30-day months.
If an Interest Payment Date falls on a day that is not a Business
Day, such Interest Payment Date will be the following day that is
a Business Day.
Prior to the Release Date (as hereinafter defined), the
Securities of this series will be secured by first mortgage bonds
(the "Senior Note Mortgage Bonds") delivered by the Company to
the Trustee for the benefit of the Holders of the Securities,
issued under the Indenture, dated July 1, 1945, by and between
the Company and Liberty Bank and Trust Company of Tulsa, National
Association (successor solely by change of corporate name to The
First National Bank and Trust Company of Tulsa) (the "First
Mortgage Trustee"), as supplemented and modified (the "First
Mortgage Indenture") pursuant to the Supplemental Indenture dated
February 1, 1996. Reference is made to the First Mortgage
Indenture and the Indenture for a description of property
mortgaged and pledged, the nature and extent of the security, the
rights of the holders of the first mortgage bonds under the First
Mortgage Indenture and of the First Mortgage Trustee in respect
thereof, the duties and immunities of the First Mortgage Trustee
and the terms and conditions upon which the Senior Note Mortgage
Bonds are secured and the circumstances under which additional
first mortgage bonds may be issued.
FROM AND AFTER SUCH TIME AS ALL FIRST MORTGAGE BONDS
(OTHER THAN SENIOR NOTE MORTGAGE BONDS) ISSUED UNDER THE FIRST
MORTGAGE INDENTURE HAVE BEEN RETIRED THROUGH PAYMENT, REDEMPTION
OR OTHERWISE (INCLUDING THOSE FIRST MORTGAGE BONDS "DEEMED TO BE
PAID" WITHIN THE MEANING OF THAT TERM AS USED IN ARTICLE XII OF
THE FIRST MORTGAGE INDENTURE) AT, BEFORE OR AFTER THE MATURITY
THEREOF (THE "RELEASE DATE"), THE SENIOR NOTE MORTGAGE BONDS
SHALL, AT THE OPTION OF THE COMPANY, CEASE TO SECURE THE
SECURITIES OF THIS SERIES IN ANY MANNER. IN CERTAIN
CIRCUMSTANCES PRIOR TO THE RELEASE DATE AS PROVIDED IN THE
INDENTURE, THE COMPANY IS PERMITTED TO REDUCE THE AGGREGATE
PRINCIPAL AMOUNT OF A SERIES OF SENIOR NOTE MORTGAGE BONDS HELD
BY THE TRUSTEE, BUT IN NO EVENT PRIOR TO THE RELEASE DATE TO AN
AMOUNT LESS THAN THE AGGREGATE OUTSTANDING PRINCIPAL AMOUNT OF
THE SERIES OF SECURITIES INITIALLY ISSUED CONTEMPORANEOUSLY WITH
SUCH SENIOR NOTE MORTGAGE BONDS.
[If applicable, insert -- This security is not subject
to redemption prior to maturity.] [If applicable, insert -- The
Securities of this series are subject to redemption upon not less
than 30 or more than 60 days' notice by mail to the Holders of
such Securities at their addresses in the Security Register for
such series, [if applicable, insert -- (1) on __________ in any
year commencing with the year ____ and ending with the year ____
through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)]
at any time [on or after ___________, 19__], as a whole or in
part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount):
If redeemed [on or before _____________, ___%, and if
redeemed] during the 12-month period beginning ___________, of
the years indicated:
Redemption Redemption
Year Price Year Price
and thereafter at a Redemption Price equal to ___% of the
principal amount, together in the case of any such redemption [if
applicable, insert -- (whether through operation of the sinking
fund or otherwise)] with accrued and unpaid interest to the
Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in
the Indenture.]
[If applicable, insert -- The Securities of this series
are subject to redemption upon not less than 30 or more than 60
days' notice by mail to the Holders of such Securities at their
addresses in the Security Register for such series, (1) on
____________ in any year commencing with the year ____ and ending
with the year ____ through operation of the sinking fund for this
series at the Redemption Prices for redemption through operation
of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below, and (2) at any time [on or
after ____________], as a whole or in part, at the election of
the Company, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table
below:
If redeemed during the 12-month period beginning
______________ of the years indicated:
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
and thereafter at a Redemption Price equal to ___% of the
principal amount, together in the case of any such redemption
(whether through operation of the sinking fund or otherwise) with
accrued and unpaid interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the
foregoing, the Company may not, prior to _________, redeem any
Securities of this series as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly,
of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial
practice) of less than ___% per annum.]
[The sinking fund for this series provides for the
redemption on _________ in each year beginning with the year ____
and ending with the year ____ of [not less than] __________
[("mandatory sinking fund") and, at the option of the Company,
not more than __________] aggregate principal amount of
Securities of this series. [Securities of this series acquired
or redeemed by the Company otherwise than through [mandatory]
sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made
in the order in which they become due.]]
[In the event of redemption of this Security in part
only, a new Security or Securities of this series and of like
tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions for defeasance of (a)
the entire indebtedness of this Security and (b) certain
restrictive covenants upon compliance by the Company with certain
conditions set forth therein.
[If the Security is not an Original Issue Discount
Security, insert -- If an Event of Default with respect to
Securities of this series shall occur and be continuing, the
principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the
Indenture and, upon such declaration, the Trustee can demand the
redemption of the Senior Note Mortgage Bonds as provided in the
Indenture.]
[If the Security is an Original Issue Discount
Security, insert -- If an Event of Default with respect to
Securities of this series shall occur and be continuing, an
amount of principal of the Securities of this series (the
"Acceleration Amount") may be declared due and payable in the
manner and with the effect provided in the Indenture and, upon
such declaration, the Trustee can demand the redemption of the
Senior Note Mortgage Bonds as provided in the Indenture. In case
of a declaration of acceleration on or before ________, __ or on
_____________ in any year, the Acceleration Amount per ______
principal amount at Stated Maturity of the Securities shall be
equal to the amount set forth in respect of such date below:
Acceleration
Amount
per _______
principal amount
Date of declaration at Stated Maturity
and in case of a declaration of acceleration on any other date,
the Acceleration Amount shall be equal to the Acceleration Amount
as of the next preceding date set forth in the table above, plus
accrued original issue discount (computed in accordance with the
method used for calculating the amount of original issue discount
that accrues for Federal income tax purposes) from such next
preceding date to the date of declaration at the yield to
maturity. For the purpose of this computation the yield to
maturity is ___%. Upon payment (i) of the Acceleration Amount so
declared due and payable and (ii) of interest on any overdue
principal and overdue interest (in each case to the extent that
the payment of such interest shall be legally enforceable), all
of the Company's obligations in respect of the payment of the
principal of and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in principal
amount of the Securities at the time Outstanding of all series to
be affected (voting as a class). The Indenture also contains
provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by
the Holder of this Security shall be conclusive and binding upon
such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of (and premium, if any) and interest, if
any, on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
This Security shall be exchangeable for Securities
registered in the names of Persons other than the Depositary with
respect to such series or its nominee only as provided in this
paragraph. This Security shall be so exchangeable if (x) the
Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such series or at any time ceases to
be a clearing agency registered as such under the Securities
Exchange Act of 1934, (y) the Company executes and delivers to
the Trustee an Officers' Certificate providing that this Security
shall be so exchangeable or (z) there shall have occurred and be
continuing an Event of Default with respect to the Securities of
such series. Securities so issued in exchange for this Security
shall be of the same series, having the same interest rate, if
any, and maturity and having the same terms as this Security, in
authorized denominations and in the aggregate having the same
principal amount as this Security and registered in such names as
the Depositary for such Global Security shall direct.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of a Security of the
series of which this Security is a part is registrable in the
Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company
in any place where the principal of (and premium, if any) and
interest, if any, on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his or her attorney duly
authorized in writing, and thereupon one or more new Securities
of this series and of like tenor, of authorized denominations and
for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities of the series of which this Security is
a part are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for
a like aggregate principal amount of Securities of this series
and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name
this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
This Security shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
EXHIBIT 4.03
___________________________________________________________________________
SUPPLEMENTAL INDENTURE
DATED AS OF February 1, 1996
____________________
PUBLIC SERVICE COMPANY OF OKLAHOMA
TO
LIBERTY BANK AND TRUST COMPANY
OF TULSA, NATIONAL ASSOCIATION,
as Trustee
____________________
(SUPPLEMENTAL TO THE INDENTURE DATED JULY 1, 1945,
EXECUTED BY PUBLIC SERVICE COMPANY OF OKLAHOMA TO THE
FIRST NATIONAL BANK AND TRUST COMPANY OF TULSA,
AS TRUSTEE)
____________________
PROVIDING FOR FIRST MORTGAGE BONDS,
SERIES X
________________________________________________________________
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY
A UTILITY AND CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS
THIS SUPPLEMENTAL INDENTURE, dated as of February 1, 1996, made and entered
into by and between PUBLIC SERVICE COMPANY OF OKLAHOMA, a corporation
organized and existing under the laws of the State of Oklahoma
(hereinafter referred to as the "Company"), and LIBERTY BANK AND TRUST
COMPANY OF TULSA, NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States of America
and having its principal office or place of business in the City of
Tulsa, State of Oklahoma (successor solely by change of corporate name
to The First National Bank and Trust Company of Tulsa, hereinafter
referred to as "First National"), as Trustee under the Indenture dated
July 1, 1945, as amended by the Supplemental Indentures dated,
respectively, February 1, 1948, April 1, 1951, March 1, 1953, February
1, 1954, February 1, 1957, May 1, 1958, February 1, 1960, January 1,
1963, March 1, 1966, January 1, 1969, March 1, 1972, January 1, 1974,
June 1, 1975, June 1, 1979, December 1, 1979, March 1, 1983, July 6,
1983, May 1, 1986, July 1, 1992, December 1, 1992, April 1, 1993, and
June 1, 1993, heretofore executed by and between the Company and the
Trustee, said Indenture, as so amended, being hereinafter commonly
referred to as the "Indenture"; and said Liberty Bank and Trust
Company of Tulsa, National Association, being hereinafter commonly
referred to as the "Trustee under the Indenture" or the "Trustee";
W I T N E S S E T H:
WHEREAS, the Company desires, in accordance with the provisions of Article
I, Section 6(e) of Article II and Article XVI of the Indenture, to execute
this supplemental indenture for the purpose, among other purposes, of (a)
creating and authorizing the bonds of Series X; (b) modifying or amending
the Indenture in the particulars and to the extent hereinafter in this
supplemental indenture specifically provided; and (c) describing and
specifically conveying, mortgaging, pledging and assigning to the Trustee
under the Indenture, upon the trusts and for the purposes of the Indenture,
as hereby amended, all such additional properties so constructed or
acquired by the Company and now owned by it at the date of the execution
hereof, except property of the character of that expressly excepted and
excluded from the lien of the Indenture by the terms thereof and except
that the descriptions herein contained include only such additional
properties so constructed or acquired on or before January 31, 1996;
WHEREAS, the execution and delivery by the Company of this supplemental
indenture have been duly authorized by the Board of Directors of the
Company; and the Company has requested, and hereby requests, the Trustee to
enter into and join with the Company in the execution and delivery of this
supplemental indenture;
WHEREAS, the Company may issue up to $75,000,000 principal amount of
securities designated as "Medium-Term Notes, Series A" (the "Senior Notes")
pursuant to the provisions of the Indenture dated as of February 1, 1996
and all indentures supplemental thereto (the "Senior Note Indenture")
between the Company and Liberty Bank and Trust Company of Tulsa, National
Association, as trustee (said trustee, or any successor trustee under the
Senior Note Indenture, being hereafter referred to as the "Senior Note
Trustee");
WHEREAS, in order to secure the Company's obligations to pay principal,
premium, if any, and interest on the Senior Notes issued under the Senior
Note Indenture and any other series of securities issued under the Senior
Note Indenture prior to the Release Date (as defined in the Senior Note
Indenture), the Company desires to provide for the issuance under the
Indenture to the Senior Note Trustee of a new series of bonds designated
"First Mortgage Bonds, Series X" which will have the same stated rate of
interest, interest payment dates, stated maturity date and redemption
provisions and will be in the same aggregate principal amount as the Senior
Notes, such First Mortgage Bonds to be issued as registered bonds without
coupons in denominations of a multiple of $1,000 and to be substantially in
the following form:
(See Next Page)
(Form of face of bond of Series X)
THIS BOND IS NOT TRANSFERABLE EXCEPT TO A SUCCESSOR TRUSTEE UNDER THE
INDENTURE DATED FEBRUARY 1, 1996, AS SUPPLEMENTED, BETWEEN PUBLIC SERVICE
COMPANY OF OKLAHOMA AND LIBERTY BANK AND TRUST COMPANY OF TULSA, N.A.,
TRUSTEE.
No.
$
PUBLIC SERVICE COMPANY OF OKLAHOMA
First Mortgage Bond, Series X
Public Service Company of Oklahoma, an Oklahoma corporation (hereinafter
referred to as the "Company"), for value received, hereby promises to pay
to Liberty Bank and Trust Company of Tulsa, National Association, as
trustee under the Indenture dated as of February 1, 1996 (the "Senior Note
Indenture") between the Company and Liberty Bank and Trust Company of
Tulsa, National Association, or to any successor trustee under the Senior
Note Indenture (said trustee and any successor trustee under the Senior
Note Indenture being hereinafter referred to as the "Senior Note Trustee"),
the principal sum of _____________ Dollars on _________ (the "Stated
Maturity Date"), and to pay to the registered owner interest on said sum
from ________ (the "Original Issue Date"), or from the most recent Interest
Payment Date to which interest has been paid or duly provided for,
semi-annually on __________ and __________ in each year (each, an "Interest
Payment Date") and at the Stated Maturity Date, commencing on the first
Interest Payment Date succeeding the Original Issue Date of this Security
(unless the Original Issue Date is after the Regular Record Date (as
defined in the Senior Note Indenture) and before the immediately following
Interest Payment Date, in which case interest payments will commence on the
next succeeding Interest Payment Date), at _____% (the "Interest Rate")
until said principal sum is paid. Both the principal of and the interest
on this bond shall be payable at the principal office or agency of the
Company in The City of New York, State of New York, or at the principal
office or place of business of the Trustee or its successor in trust under
the Indenture, in any coin or currency of the United States of America
which at the time of payment is legal tender for public and private debts
provided that, at the option of the Company, payment of interest may be
made by check mailed to the address of the person entitled thereto as shown
on the registration books of the Trustee.
The bonds of this Series X are being issued in connection with the
issuance pursuant to the Senior Note Indenture of a series of securities
designated the "Medium-Term Notes, Series A" (the "Senior Notes"). The
Company's obligations to make payments with respect to the principal of,
premium and/or interest on the bonds of Series X shall be fully or
partially, as the case may be, satisfied and discharged to the extent that,
at the time any such payment shall be due, the then due principal, premium
and/or interest on the Senior Notes shall have been fully or partially paid
or there shall have been deposited with the Senior Note Trustee pursuant to
Article Four of the Senior Note Indenture sufficient available funds to
fully or partially pay the then due principal of, premium, if any, and/or
interest on the Senior Notes.
Upon payment of the principal of, premium, if any, and interest on the
Senior Notes, whether at maturity or prior to maturity by redemption or
otherwise, or upon provision for the payment thereof having been made in
accordance with Article Four of the Senior Notes Indenture, bonds of this
Series X in a principal amount equal to the principal amount of the Senior
Notes so paid or for which provision for payment has been made, shall be
deemed fully paid, satisfied and discharged and the obligations of the
Company thereunder shall be terminated, and such bonds of this Series X
shall be surrendered to and canceled by the Trustee.
From and after the date chosen by the Company which is after such time as
all bonds issued under the Indenture (other than bonds of this Series X and
bonds of any other series delivered to the Senior Note Trustee pursuant to
Section 1301 of the Senior Note Indenture) have been retired through
payment, redemption or otherwise (including those bonds "deemed to be paid"
within the meaning of that term as used in Article XII of the First
Mortgage Indenture) at, before or after the maturity thereof (the "Release
Date"), the bonds of this Series X shall, at the option of the Company,
cease to secure the Senior Notes in any manner and be deemed fully paid,
satisfied and discharged, and the obligations of the Company hereunder and
thereunder shall be terminated. On the Release Date, the bonds of this
Series X shall be surrendered to and canceled by the Trustee.
This bond shall initially be issued in the name of Liberty Bank and Trust
Company of Tulsa, National Association as trustee under the Senior Note
Indenture and is not transferable except to any successor trustee under the
Senior Note Indenture. Any such transfer shall be made as prescribed in
the Indenture by the registered holder in person, or by his duly authorized
attorney, at the principal office or agency of the Company in The City of
New York, State of New York, or at the principal office or place of
business of the Trustee or at such other office or agency of the Company as
shall be designated from time to time, upon surrender and cancellation of
this bond, and thereupon a new bond or bonds of the same series and of
authorized denominations for a like aggregate principal amount, and having
the same Original Issue Date and Stated Maturity Date, will be issued to
the transferee in exchange herefor as provided in the Indenture. Bonds of
this Series X are interchangeable as to denominations in the manner and
upon the conditions prescribed in the Indenture. No charge shall be made
to any holder of any bond of this Series X for any transfer or exchange of
bonds except for any tax or taxes or other governmental charge required to
be paid in connection therewith.
The provisions of this bond are continued on the reverse side hereof and
such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
This bond shall not be valid or become obligatory for any purpose unless
and until it shall have been duly authenticated by the execution by or on
behalf of the Trustee or its successor in trust under the Indenture of the
Trustee's Certificate in the form endorsed hereon.
IN WITNESS WHEREOF, Public Service Company of Oklahoma has caused this
bond to be executed in its name by the manual or facsimile signature of its
President or one of its Vice Presidents, and its corporate seal or a
facsimile thereof to be affixed hereto or imprinted hereon and attested by
the manual or facsimile signature of its Secretary or one of its Assistant
Secretaries.
Dated as of
PUBLIC SERVICE COMPANY OF OKLAHOMA
[Seal] By________________________________
President
ATTEST:____________________________
Secretary
(Form of reverse side of bond of Series X)
This bond is one of the bonds issued and to be issued from time to time
under and in accordance with and all secured by the indenture dated July 1,
1945, executed and delivered by the Company to The First National Bank and
Trust Company of Tulsa, as Trustee, and the indentures supplemental thereto
dated, respectively, February 1, 1948, April 1, 1951, March 1, 1953,
February 1, 1954, February 1, 1957, May 1, 1958, February 1, 1960, January
1, 1963, March 1, 1966, January 1, 1969, March 1, 1972, January 1, 1974,
June 1, 1975, June 1, 1979, December 1, 1979, March 1, 1983, July 6, 1983,
May 1, 1986, July 1, 1992, December 1, 1992, April 1, 1993, and June 1,
1993, and by a further indenture supplemental thereto dated as of February
1, 1996, executed and delivered by the Company to the Trustee prior to the
authentication of this bond (said indenture of mortgage, as amended by said
supplemental indentures, being hereinafter referred to as the "Indenture");
Liberty Bank and Trust Company of Tulsa, National Association (hereinafter
referred to as the "Trustee"), being now the Trustee under the Indenture.
Reference to the Indenture and to all supplemental indentures, if any,
hereafter executed pursuant to the Indenture is hereby made for a
description of the property mortgaged and pledged, the nature and extent of
the security and the rights of the holders and registered owners of said
bonds and of the Trustee and of the Company in respect of such security.
By the terms of the Indenture the bonds to be secured thereby are issuable
in series which may vary as to date, amount, date of maturity, rate of
interest, redemption provisions, medium of payment and in other respects as
in the Indenture provided.
This bond may be redeemed in accordance with Sections 1 and 4 of Article
II of the Supplemental Indenture dated as of February 1, 1996.
In case of certain events of default specified in the Indenture, the
principal of this bond may be declared or may become due and payable in the
manner and with the effect provided in the Indenture. No recourse shall be
had for the payment of the principal of or interest on this bond, or for
any claim based hereon, or otherwise in respect hereof or of the Indenture
or any indenture supplemental thereto, to or against any incorporator,
stockholder, officer or director, past, present or future, of the Company,
or of any predecessor or successor corporation, either directly or through
the Company, or such predecessor or successor corporation, under any
constitution or statute or rule of law, or by the enforcement of any
assessment or penalty, or otherwise; all such liability of incorporators,
stockholders, directors and officers being waived and released by the
registered owner hereof by the acceptance of this bond and being likewise
waived and released by the terms of the Indenture.
This bond shall be deemed to be governed by and construed in accordance
with the laws of the State of New York.
(End of Form of Bond)
AND WHEREAS, on each of the bonds of Series X (whether in temporary or
definitive form) there is to be endorsed a certificate of the Trustee
substantially in the following form:
Trustee's Certificate
This bond is one of the bonds of the series designated therein, described
in the within-mentioned Indenture.
LIBERTY BANK AND TRUST COMPANY OF
TULSA, NATIONAL ASSOCIATION,
as Trustee
By_______________________________
Authorized Signature
NOW THEREFORE, in consideration of the premises and of the sum of One
Dollar ($1.00) duly paid by the Trustee to the Company, and of other good
and valuable consideration, the receipt whereof is hereby acknowledged, and
for the purpose of further assuring to the Trustee under the Indenture its
title to, or lien upon, the property hereinafter described, under and
pursuant to the terms of the Indenture, as hereby amended and for the
purpose of further securing the due and punctual payment of the principal
of and interest and premium, if any, on all bonds which have been
heretofore or shall be hereafter issued under the Indenture and indentures
supplemental thereto and which shall be at any time outstanding thereunder
and secured thereby, and for the purpose of securing the faithful
performance and observance of all the covenants and conditions set forth in
the Indenture and/or in any indenture supplemental thereto, the Company has
given, granted, bargained, sold, transferred, assigned, pledged, mortgaged,
warranted the title to and conveyed, and by these presents does give,
grant, bargain, sell, transfer, assign, pledge, mortgage, warrant the title
to and convey unto LIBERTY BANK AND TRUST COMPANY OF TULSA, NATIONAL
ASSOCIATION, as Trustee under the Indenture as therein provided, and its
successors in the trusts thereby created, and to their assigns all the
right, title and interest of the Company in and to any and all premises,
plants, property, leases and leaseholds, franchises, permits, rights and
powers, of every kind and description, real and personal, which have been
acquired by the Company, through construction, purchase, grant,
consolidation, merger or otherwise, subsequent to June 1, 1993, and which
at the date hereof are owned by the Company, together with the rents,
issues, products and profits therefrom, excepting, however, and there is
hereby expressly reserved and excluded from the lien and effect of the
Indenture and of this supplemental indenture, all right, title and interest
of the Company, now owned, in and to (a) all cash, bonds, shares of stock,
obligations and other securities not deposited with the Trustee, and (b)
all accounts and bills receivable, judgments (other than for the recovery
of real property or establishing a lien or charge thereon or right therein)
and choses in action not specifically assigned to and pledged with the
Trustee, and (c) all tangible personal property held by the Company for
sale, lease, rental or consumption in the ordinary course of business, and
(d) the last day of each of the demised terms created by any lease of
property now leased to the Company, and under each and every renewal of any
such lease, the last day of each and every such demised term being hereby
expressly reserved to and by the Company, and (e) all gas, oil and other
minerals existing upon, within or under any real estate subject to the lien
of the Indenture, and (f) the real estate expressly excepted in and by the
Indenture from the lien and operation of the Indenture, and (g) any and all
oil, gas and mineral leasehold interests, wells, casing and equipment, and
gas gathering lines, owned by or held for the benefit of the Company and
expressly excepted in and by the Indenture from the lien and operation of
the Indenture.
Without in any way limiting or restricting the generality of the foregoing
description or the foregoing exceptions and reservations, the Company
hereby expressly gives, grants, bargains, sells, transfers, assigns,
pledges, mortgages, warrants the title to and conveys unto the Trustee
under the Indenture, upon the trusts and for the purposes of the Indenture,
as hereby amended, the properties of the Company described in Appendix A,
if any, to this supplemental indenture (said Appendix A, if any, being
incorporated by reference herein with the same force and effect as if set
forth in full herein), together with the tenements, hereditaments and
appurtenances thereunto belonging or appertaining:
TO HAVE AND TO HOLD all said property, rights, and interests hereinabove
referred to or described and conveyed, assigned, pledged or mortgaged, or
intended to be conveyed, assigned, pledged or mortgaged, together with the
rents, issues, products and profits therefrom, unto LIBERTY BANK AND TRUST
COMPANY OF TULSA, NATIONAL ASSOCIATION, as Trustee under the Indenture, and
unto its successor or successors in trust, and their assigns forever, BUT
IN TRUST, NEVERTHELESS, upon the trusts, for the purposes and subject to
all the terms, conditions, provisions and restrictions of the Indenture, as
hereby amended.
And upon the considerations and for the purposes aforesaid, and in order
to provide, pursuant to the terms of the Indenture, for the issuance under
the Indenture, as hereby amended, of bonds of Series X and to fix the
terms, provisions and characteristics of the bonds of said Series, and to
modify or amend the Indenture in the particulars and to the extent
hereinafter in this supplemental indenture specifically provided, the
Company hereby covenants and agrees with the Trustee as follows:
ARTICLE I
FORM AND EXECUTION OF FIRST MORTGAGE BONDS, SERIES X
SECTION 1. A series of bonds issuable under the Indenture, as hereby
amended, and to be known and designated as "First Mortgage Bonds, Series
X", is hereby created and authorized. The bonds of Series X shall be
issued in fully registered form without coupons, substantially in the form
thereof hereinbefore recited. Each bond of said Series shall (a) be issued
in such principal amount, (b) mature on such date not less than nine months
from its Original Issue Date (as hereinafter defined), and (c) have such
other terms and conditions, all as shall be specified by the Company in an
officers' certificate delivered to the Trustee relating to such bond and
referring to this supplemental indenture (such officers' certificate being
hereinafter sometimes referred to as the "Issuance Certificate"). Each
bond of said Series shall be payable, both as to principal and interest, at
the office or agency of the Company in The City of New York, State of New
York, or at the principal office or place of business of the Trustee or its
successor in trust under the Indenture, in any coin or currency of the
United States of America which at the time of payment is legal tender for
public and private debts, provided that, at the option of the Company,
payment of interest may be made by check mailed to the address of the
person entitled thereto as shown on the registration books of the Trustee.
Each bond of Series X shall be dated as of its Original Issue Date. The
term "Original Issue Date" as used herein shall mean, with respect to any
bonds of said Series of identical stated maturity and other terms and
conditions, the date of the first authentication and delivery hereunder of
such bonds.
SECTION 2. Subject to the provisions of Article II of this supplemental
indenture, the bonds of Series X may be retired through payment, redemption
or otherwise be "deemed to be paid" as within the meaning of that term as
used in Article XII of the Indenture, prior to maturity.
SECTION 3. The bonds of Series X shall, from time to time, be executed on
behalf of the Company and sealed with the corporate seal of the Company,
which seal may be facsimile, all in the manner provided in Section 6 of
Article I of the Indenture. If the Board of Directors of the Company shall
by resolution so provide, bonds of said Series executed on behalf of the
Company by its President, a Vice President, its Secretary or an Assistant
Secretary may be so executed by the facsimile signature of such President,
Vice President, Secretary or Assistant Secretary, as the case may be, of
the Company or of any person or persons who shall have been such officer or
officers, as the case may be, of the Company on or subsequent to the date
of this supplemental indenture, notwithstanding that he or they may have
ceased to be such officer or officers of the Company at the time of the
actual execution, authentication, issue or delivery of any of such bonds of
said Series, and any such facsimile signature or signatures of any such
officer or officers on any such bonds shall constitute execution of such
bonds on behalf of the Company by such officer or officers of the Company
for the purposes of the Indenture (as hereby modified) and shall be valid
and effective for all purposes, provided that all bonds of said Series
shall always be executed on behalf of the Company by the signature, manual
or facsimile, of its President or Vice President and of its Secretary or an
Assistant Secretary, and such corporate seal of the Company may be
facsimile, and any bonds of Series X on which such facsimile seal shall be
affixed, impressed, imprinted or reproduced shall be deemed to be sealed
with the corporate seal of the Company for the purposes of the Indenture
(as hereby modified) and such facsimile seal shall be valid and effective
for all purposes.
SECTION 4. The bonds of Series X shall initially be issued in the name of
and delivered to Liberty Bank and Trust Company of Tulsa, National
Association, the Senior Note Trustee under the Senior Note Indenture. The
bonds of Series X will be registered in the name of the Senior Note Trustee
or its nominee and will be owned and held by the Senior Note Trustee
subject to the provisions of the Senior Note Indenture and supplements
thereto, and is not transferable except to a successor trustee under the
Senior Note Indenture, as supplemented.
SECTION 5. Any payment by the Company under its Senior Note Indenture to
Liberty Bank and Trust Company of Tulsa, National Association, as Senior
Note Trustee, of the principal or interest, if any, on Senior Notes which
have been authenticated, secured and delivered under the Senior Note
Indenture and any indentures supplemental thereto on the basis of the
issuance and delivery of bonds of Series X (other than the application of
proceeds of a payment in respect of bonds of Series X) shall, to the extent
thereof, be deemed to satisfy and discharge the obligation of the Company,
if any, to make a payment of principal or interest on bonds of Series X, as
the case may be, which is then due.
SECTION 6. The Trustee may conclusively presume that the obligation of
the Company to pay the principal of the bonds of Series X, as the same
shall become due and payable, shall have been fully satisfied and
discharged unless and until it shall have received a written notice from
the Senior Note Trustee or its nominee, signed by an authorized officer
thereof, stating that the principal of specified Senior Notes has become
due and payable and has not been fully paid, and specifying the amount of
funds required to make such payment.
SECTION 7. Upon payment of the principal of, premium, if any, and
interest on the Senior Notes, whether at maturity or prior to maturity by
redemption or otherwise, or upon provision for the payment thereof having
been made in accordance with Article Four of the Senior Note Indenture,
bonds of Series X in a principal amount equal to the principal amount of
the Senior Notes so paid, or for which provision for payment has been made,
shall be deemed fully paid, satisfied and discharged and the obligations of
the Company thereunder shall be terminated and such bonds of Series X shall
be surrendered to and canceled by the Trustee, as according to Article II
of this supplemental indenture.
SECTION 8. From and after the date chosen by the Company which is after
such time as all bonds (other than bonds of Series X and bonds of any other
series delivered to the Senior Note Trustee pursuant to Section 1301 of the
Senior Note Indenture) have been retired through payment, redemption or
otherwise (including those bonds "deemed to be paid" within the meaning of
that term as used in Article XII of the Indenture) at, before or after the
maturity thereof (the "Release Date"), the bonds of Series X shall, at the
option of the Company, cease to secure the Senior Notes in any manner and
be deemed fully paid, satisfied and discharged and the obligations of the
Company thereunder shall be terminated. On the Release Date, the bonds of
Series X shall be surrendered to and canceled by the Trustee.
SECTION 9. The terms and conditions of redemption of the bonds of
Series X need not be specified in any bond of Series X if an appropriate
reference be made in said bond to the provisions of this supplemental
indenture.
SECTION 10. The bonds of Series X are not transferable or exchangeable
except to a successor trustee under the Senior Note Indenture.
ARTICLE II
REDEMPTION OF FIRST MORTGAGE BONDS, SERIES X
SECTION 1. (a) Upon notice being given of the redemption of all or part
of the Senior Notes in accordance with the Senior Note Indenture and such
Senior Notes becoming due and payable in accordance with such notice of
redemption, the Company shall redeem on the redemption date specified in
such notice a principal amount of bonds of Series X equal to the principal
amount of Senior Notes to be redeemed, at a redemption price equal to the
principal amount of such bonds of Series X to be redeemed, plus a premium
equal to the premium payable on the redemption of such Senior Notes, plus
accrued interest to such redemption date.
(b) In the event the principal of all Senior Notes is declared due and
payable pursuant to Section 502 of the Senior Note Indenture, the bonds of
Series X shall be redeemable in whole upon receipt by the Trustee of a
written demand (hereinafter called a "Redemption Demand") from the Senior
Note Trustee stating that there has been such declaration, stating that it
is acting pursuant to the authorization granted by Section 502 of the
Senior Note Indenture, and demanding redemption of all bonds of Series X on
a date specified in such Redemption Demand (the "Demand Redemption Date"),
which date shall not be less than 10 days nor more than 35 days after the
date of the Redemption Demand. The Trustee shall, within 3 days after
receiving such Redemption Demand, mail a copy thereof to the Company
marked to indicate the date of its receipt by the Trustee. Upon receipt by
the Company of such copy of a Redemption Demand, the bonds of Series X
shall be redeemed by the Company on the Demand Redemption Date, upon
surrender thereof by the Senior Note Trustee to the Trustee, at a
redemption price equal to the principal amount thereof, plus accrued
interest to the Demand Redemption Date. If a Redemption Demand is
rescinded by the Senior Note Trustee by written notice to the Trustee prior
to the Demand Redemption Date, the Company shall not be obligated to redeem
the bonds of Series X on the Demand Redemption Date; but no such rescission
shall extend to or affect any subsequent acceleration of the Senior Notes
or impair any right consequent thereon.
SECTION 2. The Company covenants that, for so long as any bonds of
Series X are outstanding, it will take appropriate action so that the bonds
of Series X are not redeemed or purchased pursuant to any sinking fund or
related requirement provided for in the Original Indenture.
SECTION 3. The Company covenants and agrees that, prior to the Release
Date, it will not take any action (except as required by Article II,
Section 1(b) hereof) that would cause the outstanding principal amount of
the bonds of Series X to be less than the then outstanding principal amount
of the Senior Notes.
SECTION 4. Redemption of bonds of Series X shall be effected, without
further notice by the Company or the Trustee, by the payment by the Company
of the applicable redemption price specified in Article II, Section 1
hereof at the place specified for payment of the principal of and interest
on such bonds.
ARTICLE III
AMENDMENTS TO THE INDENTURE
SECTION 1. Section 1 of Article I of the Indenture is hereby amended by
inserting at the conclusion of said section the following sentence:
"Notwithstanding the foregoing, if all bonds of a series are not to be
originally issued at the same time (hereinafter referred to as a "series
subject to a periodic offering"), beginning with the bonds of Series X and
any bonds issued thereafter, each bond of such series shall be dated as of
the date of its authentication."
SECTION 2. Section 2 of Article II of the Indenture is hereby amended by
inserting at the conclusion of said section the following paragraph:
"Notwithstanding the foregoing, with respect to bonds of a series subject
to a periodic offering, beginning with the bonds of Series X and any bonds
issued thereafter, the Trustee will be entitled to receive an order of the
President or Vice President of the Company, a copy of a resolution of the
Board of Directors, retired securities, if applicable, cash, if applicable,
and an officers' certificate, each as specified in this Section 2, and all
certificates, orders, opinions, indentures and/or other instruments
otherwise required by Sections 5 and 6 of this Article, only once, at or
prior to the time of the first authentication and delivery of the bonds of
such series. For each issuance of bonds after the initial issuance of
bonds of a series subject to a periodic offering, the Company shall be
required only to deliver to the Trustee the bond executed by the Company
together with a certificate signed by the President or a Vice President and
by the Treasurer or an Assistant Treasurer of the Company requesting the
Trustee to authenticate such bonds and to deliver such bond in accordance
with the instructions specified by such certificate. Any such certificate
shall constitute a representation and warranty by the Company that the
statements made in the certificates delivered to the Trustee prior to the
authentication and issuance of the first bond of such series are true and
correct on the date thereof as if made on and as of the date thereof."
SECTION 3. Section 3 of Article II of the Indenture is hereby amended by
inserting at the conclusion of said section the following paragraph:
"Notwithstanding the foregoing, with respect to bonds of a series subject
to a periodic offering, beginning with the bonds of Series X and any bonds
issued thereafter, the Trustee will be entitled to receive an order of the
President or Vice President of the Company, a copy of a resolution of the
Board of Directors, an officers' certificate and engineers' certificates,
if applicable, each as specified in this Section 3, and all certificates,
orders, opinions, indentures and/or other instruments otherwise required by
Sections 5 and 6 of this Article, only once, at or prior to the time of the
first authentication and delivery of the bonds of such series. For each
issuance of bonds after the initial issuance of bonds of a series subject
to a periodic offering, the Company shall be required only to deliver to
the Trustee the bond executed by the Company together with a certificate
signed by the President or a Vice President and by the Treasurer or an
Assistant Treasurer of the Company requesting the Trustee to authenticate
such bonds and to deliver such bond in accordance with the instructions
specified by such certificate. Any such certificate shall constitute a
representation and warranty by the Company that the statements made in the
certificates delivered to the Trustee prior to the authentication and
issuance of the first bond of such series are true and correct on the date
thereof as if made on and as of the date thereof."
SECTION 4. Section 4 of Article II of the Indenture is hereby amended by
inserting at the conclusion of said section the following paragraph:
"Notwithstanding the foregoing, with respect to bonds of a series subject
to a periodic offering, beginning with the bonds of Series X and any bonds
issued thereafter, the Trustee will be entitled to receive an order of the
President or Vice President of the Company, a resolution of the Board of
Directors and cash, each as specified in this Section 4, and all
certificates, orders, opinions, indentures and/or other instruments
otherwise required by Sections 5 and 6 of this Article, only once, at or
prior to the time of the first authentication and delivery of the bonds of
such series. For each issuance of bonds after the initial issuance of
bonds of a series subject to a periodic offering, the Company shall be
required only to deliver to the Trustee the bond executed by the Company
together with a certificate signed by the President or a Vice President and
by the Treasurer or an Assistant Treasurer of the Company requesting the
Trustee to authenticate such bonds and to deliver such bond in accordance
with the instructions specified by such certificate. Any such certificate
shall constitute a representation and warranty by the Company that the
statements made in the certificates delivered to the Trustee prior to the
authentication and issuance of the first bond of such series are true and
correct on the date thereof as if made on and as of the date thereof."
SECTION 5. Section 5 of Article II of the Indenture is hereby amended by
inserting at the conclusion of the first paragraph of said section the
following sentence: "Notwithstanding the foregoing, with respect to bonds
of a series subject to a periodic offering, beginning with the bonds of
Series X and any bonds issued thereafter, the Trustee will be entitled to
receive a certificate evidencing compliance with the net earnings
requirements, as otherwise required by this Section 5, only once, at or
prior to the time of the first authentication and delivery of the bonds of
such series. For each issuance of bonds after the initial issuance of
bonds of a series subject to a periodic offering, the Company shall be
required only to deliver to the Trustee the bond executed by the Company
together with a certificate signed by the President or a Vice President and
by the Treasurer or an Assistant Treasurer of the Company requesting the
Trustee to authenticate such bonds and to deliver such bond in accordance
with the instructions specified by such certificate. Any such certificate
shall constitute a representation and warranty by the Company that the
statements made in the certificates delivered to the Trustee prior to the
authentication and issuance of the first bond of such series are true and
correct on the date thereof as if made on and as of the date thereof."
SECTION 6. Section 6 of Article II of the Indenture is hereby amended by
inserting at the conclusion of said section the following paragraph:
"Notwithstanding the foregoing, with respect to bonds of a series subject
to a periodic offering, beginning with the bonds of Series X and any bonds
issued thereafter, (i) the Trustee will be entitled to receive opinions of
counsel, officers' certificates, and an indenture supplemental to this
Indenture, if applicable, as otherwise required by this Section 6, only
once, at or prior to the time of the first authentication and delivery of
the bonds of such series; (ii) the opinion of counsel required pursuant to
Section 6(b) may be modified to apply only to the payment of any tax due of
the time of issuance of such opinion; and (iii) the opinion of counsel
required pursuant to Section 6(h) may be modified to state that, upon
payment of the tax due in connection with each periodic offering of bonds
within a series, the conditions and requirements of the Indenture relating
to the authentication and delivery of the bonds requested to be
authenticated and delivered will have been complied with. For each
issuance of bonds after the initial issuance of bonds of a series subject
to a periodic offering, the Company shall be required only to deliver to
the Trustee the bond executed by the Company together with a certificate
signed by the President or a Vice President and by the Treasurer or an
Assistant Treasurer of the Company requesting the Trustee to authenticate
such bonds and to deliver such bond in accordance with the instructions
specified by such certificate. Any such certificate shall constitute a
representation and warranty by the Company that the statements made in the
certificates delivered to the Trustee prior to the authentication and
issuance of the first bond of such series are true and correct on the date
thereof as if made on and as of the date thereof."
SECTION 7. Section 10 of Article III of the Indenture is hereby amended
by striking out the words "Series A through Series W, inclusive", wherever
the same occur in said section, and by inserting, in lieu thereof, the
words "Series A through Series X, inclusive".
SECTION 8. Section 1 of Article VII of the Indenture is hereby amended by
striking out the words "Series A through Series W, inclusive", and by
inserting, in lieu thereof, the words "Series A through Series X,
inclusive".
ARTICLE IV
MISCELLANEOUS
SECTION 1. The provisions of this supplemental indenture shall be
effective from and after the date hereof, except that Section 8 of Article
III of this supplemental indenture shall become and be effective only on
and after the effective date of Article V of the supplemental indenture
dated June 1, 1975; and the Indenture, as hereby amended, shall remain in
full force and effect.
SECTION 2. Each reference in the Indenture, or this supplemental
indenture, to any article, section, term or provision of the Indenture
shall mean and be deemed to refer to such article, section, term or
provision of the Indenture, as modified by this supplemental indenture,
except where the context otherwise indicates.
SECTION 3. All the covenants, provisions, stipulations and agreements in
this supplemental indenture contained are and shall be for the sole and
exclusive benefit of the parties hereto, their successors and assigns, and
of the holders and registered owners from time to time of the bonds and of
the coupons issued and outstanding from time to time under and secured by
the Indenture, as hereby amended.
SECTION 4. This supplemental indenture may be simultaneously executed in
any number of counterparts and all said counterparts executed and
delivered, each as an original, shall constitute but one and the same
instrument.
SECTION 5. At the time of the execution of this supplemental indenture,
the aggregate principal amount of all indebtedness of the Company now
outstanding, or to be presently outstanding, under and secured by the
Indenture, as hereby amended, is $380,000,000, consisting of and
represented by First Mortgage Bonds of the Company as follows:
Principal Interest Maturity
Series Rate Date Amount
- --------- -------- --------------- -----------
J 5 1/4% March 1, 1996 $25,000,000
K 7 1/4 January 1, 1999 25,000,000
L 7 3/8 March 1, 2002 30,000,000
S 7 1/4 July 1, 2003 65,000,000
T 7 3/8 December 1, 2004 50,000,000
U 6-1/4 April 1, 2003 35,000,000
V 7-3/8 April 1, 2023 100,000,000
W 6-1/2 June 1, 2005 50,000,000
X* ** [undetermined] 75,000,000
__________________
*To be issued by the Company under the Indenture subsequent to the date
of execution of this supplemental indenture.
**Will not be higher than 8 1/4% unless an earnings certificate is
delivered to the Trustee pursuant to Section 5 of Article II of the
Indenture prior to issuance.
IN WITNESS WHEREOF, said Public Service Company of Oklahoma has
caused this instrument to be executed in its corporate name by its
President or a Vice President and its corporate seal to be hereunto
affixed and to be attested by its Secretary or an Assistant Secretary,
and said Liberty Bank and Trust Company of Tulsa, National
Association, for the purpose of entering into and joining with the
Company in the execution and delivery of this supplemental indenture,
has caused this instrument to be executed in its corporate name by its
President or a Vice President and its corporate seal to be hereunto
affixed and to be attested by its Secretary or an Assistant Secretary,
in several counterparts; all as of the day and year first above
written.
(CORPORATE SEAL) PUBLIC SERVICE COMPANY OF OKLAHOMA
ATTEST:
By_______________________________
_______________________________ Vice President
Secretary
(CORPORATE SEAL) LIBERTY BANK AND TRUST COMPANY
OF TULSA, NATIONAL ASSOCIATION
ATTEST:
By________________________________
Vice President and Trust Officer
______________________________
Assistant Secretary
STATE OF OKLAHOMA )
ss.
COUNTY OF TULSA )
The foregoing instrument was acknowledged before me this ____ day
of__________ , 1996, by Mary M. Polfer, Vice President of Public
Service Company of Oklahoma, an Oklahoma corporation, on behalf of the
corporation.
_______________________________
Notary Public
(NOTARIAL SEAL)
My Commission expires __________________, ______
STATE OF OKLAHOMA )
ss.
COUNTY OF TULSA )
The foregoing instrument was acknowledged before me this ____ day
of____________, 1996, by _____________________, a Vice President and
Trust Officer of Liberty Bank and Trust Company of Tulsa, National
Association, a national banking association, on behalf of the
corporation.
_______________________________
Notary Public
(NOTARIAL SEAL)
My Commission expires __________________, ______
STATE OF OKLAHOMA )
ss.
COUNTY OF TULSA )
The undersigned, being duly sworn, deposes and says that she is
the Vice President of Public Service Company of Oklahoma, an Oklahoma
corporation, which executed the foregoing instrument, and that said
corporation is a utility, as that term is defined in Section 35.01 of
Subchapter A, Chapter 35, of the Business and Commerce Code of the
State of Texas, being engaged in the generation, transmission or
distribution and sale of electric power in the State of Texas.
_____________________________________
Mary M. Polfer, Vice President
Public Service Company of Oklahoma
Subscribed and sworn to before me this ____ day of , 1996.
____________________________
Notary Public
My Commission expires
(NOTARIAL SEAL)
