As filed with the Securities and Exchange Commission on February 15, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-3
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
_______________
PUBLIC SERVICE COMPANY OF OKLAHOMA
(Exact name of registrant as specified in its charter)
Oklahoma 73-0410895
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
212 East Sixth Street
Tulsa, Oklahoma 74119-1212
(918) 599-2000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
_______________
Robert L. Zemanek, President Stephen J. McDonnell
and Chief Executive Officer Treasurer
212 East Sixth Street Central and South West Corporation
Tulsa, Oklahoma 74119-1212 1616 Woodall Rodgers Freeway
(918) 599-2000 Dallas, Texas 75202
(214) 777-1000
(Names, addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
______________
Copies to:
Robert B. Williams, Esq.
Joris M. Hogan, Esq.
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, New York 10005
(212) 530-5000
_______________
Approximate date of commencement of proposed sale to the public: From
time to time after the Registration Statement becomes effective.
_______________
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [X]
_______________
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
_______________
CALCULATION OF REGISTRATION FEE
___________________________________________________________________________
TITLE OF EACH PROPOSED AMOUNT OF
CLASS OF SECURITIES MAXIMUM AGGREGATE REGISTRATION
TO BE REGISTERED OFFERING PRICE* FEE
---------------------------------------------------------------------------
Senior Notes ................. $75,000,000 $25,862
___________________________________________________________________________
* Estimated solely for the purpose of calculating the registration fee.
_______________
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
SUBJECT TO COMPLETION, DATED FEBRUARY 15, 1996
PROSPECTUS
$75,000,000
SENIOR NOTES
OF
PUBLIC SERVICE COMPANY OF OKLAHOMA
_________________________
Public Service Company of Oklahoma (the "Company") intends to offer from
time to time, in one or more series, up to $75,000,000 aggregate principal
amount of debentures, notes or other evidences of indebtedness (the "Senior
Notes") in amounts, at prices and on terms to be determined at the time of
offering.
The series designation, aggregate principal amount, maturity, interest
rate and interest payment dates, redemption provisions, nature of any security
for the Senior Notes, sinking fund provisions, initial public offering price
and any other specific terms of each series of the Senior Notes in respect of
which this Prospectus is being delivered, will be set forth in a Prospectus
Supplement or Pricing Supplement (collectively, the "Prospectus Supplement")
to be delivered at the time of the offering and sale of the Senior Notes. See
"DESCRIPTION OF THE SENIOR NOTES" herein.
_________________________
The Senior Notes will be represented either by Global Notes registered
in the name of The Depository Trust Company ("DTC"), as depository
("Depository"), or its nominee, or by securities in certificated form issued
to the registered owners thereof, as set forth in the applicable Prospectus
Supplement. Interests in the Global Notes will be shown on, and transfers
thereof will be effected only through, records maintained by the Depository
and its participants. Global Notes will not be exchanged for certificated
securities except in circumstances described therein or in the applicable
Prospectus Supplement.
_________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
__________________________
The Company may sell the Senior Notes in one or more series to or
through underwriters or dealers designated from time to time through
negotiation, or directly to other purchasers or through agents. The
Prospectus Supplement applicable to any series of Senior Notes will set forth
the initial public offering price, the proceeds to the Company, the names of
any purchasers, underwriters or agents and any applicable discounts or
commissions with respect to the Senior Notes being offered. See "PLAN OF
DISTRIBUTION".
__________________________
The Date of this Prospectus is _______, 1996.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell
or the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such State.
No dealer, salesman or any other person has been authorized to give any
information or to make any representation not contained or incorporated by
reference in this Prospectus and, with respect to any series of Senior Notes,
the Prospectus Supplement relating thereto, and if given or made, such
information or representation must not be relied upon as having been
authorized by the Company or any underwriter, dealer or agent. Neither this
Prospectus nor any Prospectus Supplement constitutes an offer to sell or a
solicitation of an offer to buy any of the securities offered hereby or
thereby in any jurisdiction to any person to whom it is unlawful to make such
offer in such jurisdiction. Neither the delivery of this Prospectus or any
Prospectus Supplement nor any sale made hereunder or thereunder shall, under
any circumstances, create any implication that there has been no change in the
affairs of the Company since the date hereof or thereof or that the
information contained or incorporated by reference herein or therein is
correct as of any time subsequent to its date.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and in
accordance therewith files reports and other information with the Securities
and Exchange Commission (the "Commission"). Such reports and other
information filed by the Company can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549-1004; and at the Commission's Regional Offices at 500
West Madison St., Suite 1400, Chicago, Illinois 60661-2511 and Seven World
Trade Center, 13th Floor, New York, New York 10048. Copies of such material
can also be obtained at prescribed rates from the Public Reference Section of
the Commission at its principal office at 450 Fifth Street, N.W., Washington,
D.C. 20549.
It is the Company's current practice to prepare and mail to the holders
of its Preferred Stock copies of the Company's annual financial reports. Such
reports contain certain financial information that is examined and reported
upon, with an opinion expressed, by the Company's independent public
accountants. The Company is not required to and does not provide annual
reports to the holders of its debt securities unless specifically requested by
such a holder.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the
Commission pursuant to the Exchange Act are incorporated by reference in this
Prospectus.
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1994.
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1995, June 30, 1995 and September 30, 1995 and Form 10-Q/A
for the quarter ended September 30, 1995.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Senior Notes shall be deemed
to be incorporated by reference into this Prospectus from their respective
dates of filing.
THE COMPANY HEREBY UNDERTAKES TO PROVIDE WITHOUT CHARGE TO EACH PERSON,
INCLUDING ANY BENEFICIAL OWNER OF THE SENIOR NOTES, TO WHOM THIS PROSPECTUS
HAS BEEN DELIVERED, UPON THE WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A
COPY OF ANY OR ALL OF THE FOREGOING DOCUMENTS INCORPORATED HEREIN BY REFERENCE
(OTHER THAN EXHIBITS TO SUCH DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED
BY REFERENCE INTO THE INFORMATION THAT THE REGISTRATION STATEMENT
INCORPORATES). WRITTEN OR TELEPHONE REQUESTS SHOULD BE DIRECTED TO STEPHEN D.
WISE, DIRECTOR, FINANCE, CENTRAL AND SOUTH WEST CORPORATION, 1616 WOODALL
RODGERS FREEWAY, DALLAS, TEXAS 75202, AS AGENT FOR THE COMPANY, TELEPHONE
NUMBER (214) 777-1000.
PROSPECTUS SUMMARY
The following material is qualified in its entirety by, and should be
read in conjunction with, the information appearing elsewhere in this
Prospectus, in the applicable Prospectus Supplement and in the documents,
financial statements and other information incorporated by reference in this
Prospectus.
The Offering
Company . . . . . . . . . . . . . . .Public Service Company of Oklahoma
Amount and Type of Security . . . . .Not exceeding $75,000,000 of
Senior Notes
Interest Payment Dates. . . . . . . .Semiannually on dates to be
determined
Maturity Date . . . . . . . . . . . .To be determined
Redemption. . . . . . . . . . . . . .To be determined
Security. . . . . . . . . . . . . . .Secured by the Company's first mortgage
bonds in the circumstances and to the
extent described under the caption
"DESCRIPTION OF SENIOR NOTES - Security;
Release Date,"
Use of Proceeds . . . . . . . . . . .To redeem, or reimburse the Company's
treasury for the redemption or repurchase
of all or a portion of certain of the
Company's first mortgage bonds, to repay
short-term debt, to provide working
capital or for other general corporate
purposes
The Company
Business. . . . . . . . . . . . . . .A public utility engaged in the
production, purchase, transmission,
distribution and sale of electricity
Service Area. . . . . . . . . . . . .Approximately 30,000 square miles in
Oklahoma
Population of Service Area
(December 31, 1995). . . . . . . . .Approximately 1,031,000
Customers (December 31, 1995) . . . .Approximately 473,000
<TABLE>
SELECTED FINANCIAL INFORMATION
(Dollars in Thousands)
<CAPTION>
Twelve
Months Ended
December 31, Year Ended December 31,
1995 1994 1993 1992
------------- ----------------------------------
<S> <C> <C> <C> <C>
(Unaudited)
Operating Revenues $ 690,823 $ 740,496 $ 707,536 $ 622,092
Operating Income 111,769 98,258 72,156 78,096
Net Income Before Cumul-
ative Effect of a Change
in Accounting Principles 81,828 68,266 40,496 45,562
Cumulative Effect of a
Change in Accounting
Principles -- -- 6,223 --
Net Income 81,828 68,266 46,719 45,562
Net Utility Plant 1,330,376 1,304,518 1,246,938 1,211,741
</TABLE>
Capitalization at
December 31, 1995
----------------------
(Unaudited)
Long-Term Debt...................... $ 379,250 42.8%
Preferred Stock..................... 19,826 2.2
Common Equity....................... 487,511 55.0
---------- ------
$ 886,587 100.0%
========== ======
THE COMPANY
Public Service Company of Oklahoma, an Oklahoma corporation, is a public
utility company engaged in the production, purchase, transmission,
distribution and sale of electricity in eastern and southwestern Oklahoma.
Central and South West Corporation ("CSW"), a registered public utility
holding company under the Public Utility Holding Company Act of 1935, as
amended (the "1935 Act"), owns all of the issued and outstanding Common Stock
of the Company. The Company's executive offices are located at 212 East Sixth
Street, Tulsa, Oklahoma 74119-1212, telephone number (918) 599-2000.
Ratio of Earnings to Fixed Charges (unaudited):
Twelve
Months Ended
December 31,
1995 Year Ended December 31,
------------- ------------------------------------------------
1994 1993 1992 1991 1990
---- ---- ---- ---- ----
4.32 4.03 2.78 2.95 3.33 2.93
For computation of the ratio: (i) earnings consist of operating income
plus Federal and State income taxes, deferred income taxes and investment tax
credits, other income and deductions, allowance for funds (both borrowed and
equity) used during construction and the interest component of financing
leases; and (ii) fixed charges consist of interest on long-term debt,
amortization of debt, other interest and the interest component of financing
leases.
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Senior Notes
offered hereby to redeem, or reimburse the Company's treasury for the
redemption or repurchase of, all or a portion of certain series of the
Company's outstanding first mortgage bonds, to pay costs associated with the
issuance of the Senior Notes, to repay outstanding short-term borrowings, to
provide working capital and for other general corporate purposes.
DESCRIPTION OF SENIOR NOTES
GENERAL. The following description sets forth certain general terms and
provisions of the Senior Notes to which any Prospectus Supplement may relate.
The description does not purport to be complete and is subject to and
qualified in its entirety by, all of the provisions of the Senior Note
Indenture (as defined below), which is incorporated herein by reference and
the form of which is an exhibit to the Registration Statement of which this
Prospectus is a part. The particular terms of the Senior Notes offered by any
Prospectus Supplement and the extent, if any, to which such general provisions
may apply to the Senior Notes so offered will be described therein.
References to section numbers under this caption are references to the section
numbers of the Senior Note Indenture.
The Senior Notes will be issued under an indenture (the "Senior Note
Indenture"), the form of which is an exhibit to the Registration Statement,
between the Company and Liberty Bank and Trust Company of Tulsa, National
Association, as trustee (the "Senior Note Trustee").
There is no requirement under the Senior Note Indenture that future
issues of debt securities of the Company be issued under the Senior Note
Indenture, and the Company will be free to employ other indentures or
documentation, containing provisions different from those included in the
Senior Note Indenture or applicable to one or more issues of Senior Notes, in
connection with future issues of such other debt securities.
The Senior Note Indenture does not limit the aggregate principal amount
of the Senior Notes that may be issued thereunder. Until the Release Date (as
defined below), the Senior Notes will be secured by one or more series of the
Company's first mortgage bonds issued and delivered by the Company to the
Senior Note Trustee. See "Security; Release Date." FROM AND AFTER THE
RELEASE DATE, ANY SENIOR NOTES SECURED BY THE COMPANY'S FIRST MORTGAGE BONDS
WHEN ISSUED WILL CEASE TO BE SECURED AS TO THE PAYMENT OF PRINCIPAL AND
INTEREST, WILL BECOME UNSECURED GENERAL OBLIGATIONS OF THE COMPANY AND WILL
RANK ON A PARITY WITH OTHER SENIOR UNSECURED INDEBTEDNESS OF THE COMPANY. The
Senior Note Indenture provides that, in addition to the Senior Notes offered
hereby, additional Senior Notes may be issued thereunder, without limitation
as to aggregate principal amount, provided that, prior to the Release Date,
the amount of Senior Notes that may be issued cannot exceed the amount of
first mortgage bonds that the Company is able to issue under its Indenture
dated July 1, 1945, between the Company and Liberty Bank and Trust Company of
Tulsa, National Association, as trustee (the "First Mortgage Trustee"), as
heretofore amended and as to be further amended in connection with the sale of
each series of first mortgage bonds by a supplemental indenture (the
"Supplemental Indenture") to be entered into in connection with the creation
and issuance of the first mortgage bonds of any series (collectively the
"First Mortgage Indenture"). See "DESCRIPTION OF SENIOR NOTE MORTGAGE BONDS -
- - Issuance of Additional Bonds.":
The Senior Note Indenture provides that the Senior Notes will be issued in one
or more series as notes or debentures secured by the Company's first mortgage
bonds or, in the circumstances described under the caption "Security; Release
Date," as unsecured notes or debentures. The Senior Notes may be issued at
various times and may have differing maturity dates and may bear interest at
differing rates. The Prospectus Supplement applicable to each issue of Senior
Notes will specify: (1) the designation and aggregate principal amount of such
Senior Notes; (2) the date on which such Senior Notes will mature; (3) the
interest rate or rates, or method of calculation of such rate or rates, on
such Senior Notes, and the date from which such interest shall accrue; (4) the
dates on which such interest will be payable; (5) the record dates for
payments of interest; (6) any redemption terms; (7) the period or periods
within which the price or prices at which and the terms and conditions upon
which such Senior Notes may be repaid, in whole or in part, at the option of
the holder thereof; (8) the place or places, if any, in addition to or in the
place of the office of the Trustee, where the principal of (and premium, if
any) and interest, if any, on such Senior Notes shall be payable; and (9)
other specific terms applicable to such Senior Notes. Unless otherwise
indicated in the applicable Prospectus Supplement, the Senior Notes will be
denominated in United States currency in minimum denominations of $1,000 and
integral multiples thereof.
Unless otherwise indicated in the applicable Prospectus Supplement,
there are no provisions in the Senior Note Indenture or the Senior Notes that
require the Company to redeem, or permit the holders to cause a redemption of,
the Senior Notes or that otherwise protect the holders in the event that the
Company incurs substantial additional indebtedness, whether or not in
connection with a change in control of the Company. However, any change in
control transaction that involves the incurrence of additional long-term
indebtedness (as notes, first mortgage bonds or otherwise) by the Company in
such a transaction would require approval of state utility regulatory
authorities and, possibly, of federal utility regulatory authorities.
Management believes that such approvals would be unlikely in any transaction
that would result in the Company, or a successor to the Company, having a
highly leveraged capital structure.
REGISTRATION, TRANSFER, EXCHANGE AND FORM. Senior Notes of any series
will be exchangeable for other Senior Notes of the same series of any
authorized denominations and of a like aggregate principal amount and tenor.
(Section 305)
Unless otherwise indicated in the applicable Prospectus Supplement,
Senior Notes may be presented for registration of transfer (duly endorsed or
accompanied by a duly executed written instrument of transfer), at the office
or agency maintained for such purpose with respect to any series of Senior
Notes and referred to in the applicable Prospectus Supplement, without service
charge and upon payment of any taxes and other governmental charges as
described in the Senior Note Indenture. (Section 305)
In the event of any redemption of Senior Notes of any series, the Senior
Note Trustee will not be required to exchange or register a transfer of any
Senior Notes of such series selected, called or being called for redemption
except, in the case of any Senior Note to be redeemed in part, the portion
thereof not to be so redeemed. (Section 305)
BOOK-ENTRY ONLY SYSTEM. Each series of Senior Notes may be issued in
the form of one or more global notes (the " Global Notes") representing all or
part of such series of Senior Notes and which will be deposited with or on
behalf of the Depositary and registered in the name of the Depositary or
nominee of the Depositary. Certificated Senior Notes will not be exchangeable
for Global Notes and, except under the circumstances described below, the
Global Notes will not be exchangeable for certificated Senior Notes.
The Depositary has advised the Company as follows: The Depositary is a
limited-purpose trust company organized under the New York Banking Law, a
"banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. The
Depositary holds securities that its participants ("Participants") deposit
with the Depositary. The Depositary also facilitates the settlement among
Participants of securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry changes in
Participants' accounts, thereby eliminating the need for physical movement of
securities certificates. Participants include securities brokers and dealers,
banks, trust companies, clearing corporations and certain other organizations.
The Depositary is owned by a number of its Participants and by the New York
Stock Exchange, Inc., the American Stock Exchange Inc. and the National
Association of Securities Dealers, Inc. Access to The Depository Trust
Company system is also available to others such as securities brokers and
dealers, banks and trust companies that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly. The Rules
applicable to the Depositary and its Participants are on file with the
Commission.
Upon the issuance of the Global Notes in registered form, the Depositary
will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Senior Notes represented by the Global
Notes to the accounts of Participants. The accounts to be credited shall be
designated by the Underwriters. Ownership of beneficial interests in the
Global Notes will be limited to Participants or persons that may hold
interests through Participants. Ownership of beneficial interests by
Participants in the Global Notes will be shown on, and the transfer of that
ownership interest will be effected only through, records maintained by the
Depositary or its nominee. Ownership of beneficial interests in the Global
Notes by persons that hold through Participants will be shown on, and the
transfer of that ownership interest within such Participant will be effected
only through, records maintained by such Participant. Owners of beneficial
interests in the Global Notes will not receive written confirmation from the
Depositary of their purchases, but they are expected to receive written
confirmation providing details of the transactions, as well as periodic
statements of their holdings, from the Participants through which they
purchased beneficial interests in the Global Notes. The laws of some
jurisdictions require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to transfer beneficial interests in the Global Notes.
So long as the Depositary, or its nominee, is the registered owner of
the Global Notes, the Depositary or its nominee, as the case may be, will be
considered the sole owner or holder of the Senior Notes represented by the
Global Notes for all purposes under the Senior Note Indenture. Except as set
forth below, owners of beneficial interests in the Global Notes will not be
entitled to have Senior Notes registered in their names, will not receive or
be entitled to receive physical delivery of the Senior Notes in definitive
form and will not be considered the owner or holders thereof under the Senior
Note Indenture.
Payment of principal of, premium, if any, and any interest on the Senior
Notes will be made to the Depositary or its nominee, as the case may be, as
the registered owner or the holder of the Global Notes representing the Senior
Notes. None of the Company, the Senior Note Trustee, any paying agent or the
registrar for the Senior Notes will have any responsibility or liability for
any aspect of the records relating to or payments made on account of
beneficial ownership interests in the Global Notes or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
The Company has been advised by the Depositary that, upon receipt of any
payment of principal, premium or interest in respect of the Global Notes, the
Depositary will credit immediately Participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the
principal amount of the Global Notes as shown on the records of the
Depositary. The Company also expects that payments by Participants to owners
of beneficial interests in the Global Notes held through such Participants
will be governed by standing instructions and customary practices, as is now
the case with securities held for the accounts of customers in bearer form or
registered in "street name" and will be the responsibility of such
Participants.
The Global Notes may not be transferred except 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 or by the Depositary or
any such nominee to a successor of the Depositary or a nominee of such
successor. If the Depositary is at any time unwilling or unable to continue
as Depositary and a successor Depositary is not appointed by the Company
within ninety days, the Company will issue certificated notes in definitive
registered form in exchange for the Global Notes representing the Senior
Notes. In addition, the Company may at any time and in its sole discretion
determine not to have any Senior Notes in registered form represented by one
or more global notes and, in such event, will issue certificated notes in
definitive form in exchange for the Global Notes representing the Senior
Notes. In any such instance, an owner of a beneficial interest in the Global
Notes will be entitled to physical delivery in definitive form of certificated
Senior Notes represented by the Global Notes equal in principal amount to such
beneficial interest and to have such certificated notes registered in its
name.
PAYING AGENTS. The Company will maintain an office or agency where
Senior Notes may be presented or surrendered for payment. The Company will
give prompt written notice to the Senior Note 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 Senior Note Trustee with the address thereof, such presentations
and surrenders may be made or served at the corporate trust office of the
Senior Note Trustee, and, in such event, the Senior Note Trustee shall act as
the Company's agent to receive all such presentations and surrenders.
(Section 1002)
All monies paid by the Company to a paying agent for the payment of
principal of, interest or premium, if any, on any Senior Note which remain
unclaimed at the end of two years after such principal, interest or premium
shall have become due and payable will be repaid to the Company and the holder
of such Senior Note will thereafter look only to the Company for payment
thereof. (Section 1003)
SECURITY; RELEASE DATE. Until the Release Date (as defined below), the
Senior Notes will be secured by one or more series of the Company's first
mortgage bonds ("Senior Note Mortgage Bonds") issued and delivered by the
Company to the Senior Note Trustee (see "DESCRIPTION OF SENIOR NOTE MORTGAGE
BONDS"). Upon the issuance of a series of Senior Notes prior to the Release
Date, the Company will simultaneously issue and deliver to the Senior Note
Trustee, as security for all Senior Notes, a series of Senior Note Mortgage
Bonds that will have the same stated rate or rates of interest (or interest
calculated in the same manner), interest payment dates, stated maturity date
and redemption provisions, and will be in the same aggregate principal amount
as the series of the Senior Notes being issued. (Section 1301) 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 Senior Notes. Conversely, payment by the Company to the Senior Note
Trustee of principal of, premium and interest on, a series of Senior Note
Mortgage Bonds will be applied by the Senior Note Trustee to satisfy the
Company's obligations with respect to principal of, premium and interest on,
the Senior Notes (Section 312). THE RELEASE DATE WILL BE THE DATE CHOSEN BY
THE COMPANY WHICH MUST BE AFTER ALL FIRST MORTGAGE BONDS ("FIRST MORTGAGE
BONDS") OF THE COMPANY ISSUED AND OUTSTANDING UNDER THE FIRST MORTGAGE
INDENTURE (OTHER THAN SENIOR NOTE MORTGAGE BONDS) HAVE BEEN RETIRED (AT,
BEFORE OR AFTER THE MATURITY THEREOF) THROUGH PAYMENT OR REDEMPTION (INCLUDING
THOSE FIRST MORTGAGE BONDS DEEMED TO BE PAID WITHIN THE MEANING OF THE FIRST
MORTGAGE INDENTURE). ON THE RELEASE DATE, THE SENIOR NOTE TRUSTEE WILL
DELIVER TO THE COMPANY FOR CANCELLATION ALL SENIOR NOTE MORTGAGE BONDS AND THE
COMPANY WILL CAUSE THE SENIOR NOTE TRUSTEE TO PROVIDE NOTICE TO ALL HOLDERS OF
SENIOR NOTES OF THE OCCURRENCE OF THE RELEASE DATE. AS A RESULT, FROM AND
AFTER THE RELEASE DATE, THE SENIOR NOTE MORTGAGE BONDS SHALL CEASE TO SECURE
THE SENIOR NOTES, AND THE SENIOR NOTES WILL BECOME UNSECURED GENERAL
OBLIGATIONS OF THE COMPANY. (Section 1310) Each series of Senior Note
Mortgage Bonds will be a series of First Mortgage Bonds of the Company, all of
which are secured by a mortgage on substantially all of the property owned by
the Company. In certain circumstances prior to the Release Date, the Company
is permitted to reduce the aggregate principal amount of a series of Senior
Note Mortgage Bonds held by the Senior Note Trustee, but in no event to an
amount lower than the aggregate outstanding principal amount of the series of
Senior Notes initially issued contemporaneously with such Senior Note Mortgage
Bonds. (Section 1308) Following the Release Date, the Company will cause the
First Mortgage Indenture to be closed and the Company will not issue any
additional First Mortgage Bonds under the First Mortgage Indenture. (Section
1310) While the Company will be precluded after the Release Date from issuing
additional First Mortgage Bonds, the Company will not be precluded under the
Senior Note Indenture or Senior Notes from issuing or assuming other secured
debt, or incurring liens on its property, unless otherwise indicated in the
applicable Prospectus Supplement.
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR TRANSFER. Nothing contained
in the Senior Note Indenture prevents the Company from consolidating with or
merging into another corporation or conveying, selling or otherwise
transferring its properties and assets substantially as an entirety to any
Person, provided that 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 expressly assumes (i) by an indenture supplemental thereto, executed
and delivered to the Senior Note Trustee under the Senior Note Indenture, in
form satisfactory to the Senior Note Trustee, the due and punctual payment of
the principal of (and premium, if any) and interest, if any, on all the Senior
Notes and the performance of every covenant of the Senior Note Indenture on
the part of the Company to be performed or observed, and (ii) if such
consolidation, merger, conveyance, sale or transfer occurs prior to the
Release Date, by an indenture supplemental to the First Mortgage Indenture,
executed and delivered to the Senior Note Trustee and the First Mortgage
Trustee, in form satisfactory to the Senior Note 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.
LIMITATION ON LIENS. Nothing contained in the Senior Note Indenture
or in the Senior Notes in any way restricts or prevents the Company or any
subsidiary from incurring any indebtedness; provided that if this covenant is
made applicable to the Senior Notes of any particular series, the Company will
not, and will not 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, lien, pledge, security interest or
other encumbrance ("Mortgage") upon any property without effectively providing
that the outstanding Senior Notes (together with, if the Company so
determines, any other indebtedness or obligation then existing or thereafter
created ranking equally with the Senior Notes) shall be secured equally and
ratably with (or prior to) such Debt so long as such Debt shall be so secured.
This restriction will not, however, apply to (a) Mortgages in existence on the
date of the original issue of the Senior Notes 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 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 other than the property so acquired and improvements
thereon; (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 of any Mortgage referred to in the foregoing clauses (a) through
(e), 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
such property). Notwithstanding the foregoing, 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 which would otherwise be subject to
the foregoing restrictions (not including Debt permitted to be secured under
clauses (a) through (f) above) does not at the time of issuance, assumption or
guarantee thereof exceed ten percent of the Net Tangible Assets, which is
defined as 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. 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 such governmental unit pursuant to the provisions of any
contract or statute. (Section 1007)
MODIFICATION OF THE SENIOR NOTE INDENTURE. The Senior Note Indenture
contains provisions permitting the Company and the Senior Note Trustee, with
the consent of the holders of not less than 50% in principal amount of the
outstanding Senior Notes, of all series affected by the modification (voting
as one class), to modify the Senior Note Indenture or any supplemental
indenture or the rights of the holders of the Senior Notes of such series;
provided that no such modification shall without the consent of the holders of
each outstanding Senior Note affected thereby (a) change the fixed date upon
which the principal of or the interest on any Senior Note is due and payable,
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 payable upon a
declaration of acceleration of the maturity thereof, or change any place of
payment where, or the currency in which, any Senior Note or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any payment on or after the date such payment is due (or, in
the case of redemption, on or after the date fixed for such redemption (the
"Redemption Date")), or impair the interest of the Senior Note 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 Senior Notes or alter the payment
provisions of such Senior Note Mortgage Bonds in a manner adverse to the
Holders of the Senior Notes, or (b) reduce the aforesaid percentage of Senior
Notes, the consent of the holders of which is required for any modification of
the applicable Senior Note Indenture or for waiver by the holders of certain
of their rights or (c) modify certain provisions of the Senior Note Indenture.
(Section 902) An Original Issue Discount Security means any security
authenticated and delivered under the Senior Note Indenture which provides for
an amount less than the principal amount thereof to be due and payable upon
the declaration of acceleration of the maturity thereof.
The Senior Note Indenture also contains provisions permitting the
Company and the Senior Note Trustee to amend the Senior Note Indenture in
certain circumstances without the consent of the holders of any Senior Notes
to evidence the merger of the Company, the replacement of the Senior Note
Trustee and for certain other purposes.
EVENTS OF DEFAULT. An Event of Default with respect to the Senior
Notes is defined in the Senior Note Indenture as being: default for 60 days in
payment of any interest of the Senior Notes; default for three days in payment
of principal, including the payment of principal (or premium, if any) when due
pursuant to any redemption provision of the Senior Notes; default in the
performance, or breach, of any covenant or warranty of the Company in the
Senior Note Indenture and continuance of such default or breach for a period
of 90 days after written notice is given to the Company by the Senior Note
Trustee or to the Company and the Senior Note Trustee by the holders of 33
percent or more in aggregate principal amount of the Senior Notes; prior to
the Release Date, a "default" as defined in the First Mortgage Indenture and
the continuance of such default after written notice is given to the Senior
Note Trustee by the First Mortgage Trustee, the Company or holders of 33
percent or more in aggregate principal amount of the Senior Notes; and certain
events of bankruptcy, insolvency, reorganization, receivership or liquidation
involving the Company. (Section 501) The Company will be required to file
with the Senior Note Trustee annually an officers' certificate as to the
absence of default in performance of certain covenants in the Senior Note
Indenture, and will be required to notify the Senior Note Trustee of the
occurrence of any default under the First Mortgage Indenture. (Section 1009)
The Senior Note Indenture provides that the Senior Note Trustee may withhold
notice to the holders of the Senior Notes of any default (except in payment of
principal of, or interest on, the Senior Notes or in the payment of any
sinking fund installment with respect to the Senior Notes) if the Senior Note
Trustee in good faith determines that it is in the interest of the holders of
the Senior Notes to do so. (Section 602) The Senior Note Indenture provides
that, if an Event of Default with respect to the Senior Notes specified
therein shall have happened and be continuing, either the Senior Note Trustee
or the holders of 33 percent or more in aggregate principal amount of the
Senior Notes may declare the principal amount of all the Senior Notes to be
due and payable immediately, but if the Company shall cure all defaults and
certain other conditions are met, such declaration may be annulled and past
defaults may be waived by the holders of a majority in aggregate principal
amount of the Senior Notes. (Section 502) Upon the Senior Notes being
declared to be or becoming due and payable, the Senior Note 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.
(Section 502)
Subject to the provisions of the Senior Note Indenture relating to the
duties of the Senior Note Trustee, the Senior Note Trustee will be under no
obligation to exercise any of its rights or powers under the Senior Note
Indenture at the request or direction of any of the holders of the Senior
Notes, unless such holders shall have offered to the Senior Note Trustee
reasonable indemnity. (Section 603) Subject to such provision for
indemnification, the holders of a majority in principal amount of the Senior
Notes will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Senior Note Trustee, or
exercising any trust or power conferred on the Senior Note Trustee with
respect to the Senior Notes, provided that the Senior Note Trustee shall have
the right to decline to follow any such direction if the Senior Note Trustee
shall determine that the action so directed conflicts with any law or the
provisions of the Senior Note Indenture or if the Senior Note Trustee shall
determine that such action would be prejudicial to holders not taking part in
such direction. (Section 512)
DEFEASANCE. The Company, at its option, (a) will be Discharged from
any and all obligations in respect of the Senior Notes (except in each case
for certain obligations to register the transfer or exchange of Senior Notes,
replace stolen, lost or mutilated Senior Notes, maintain paying agencies and
hold moneys for payment in trust) or (b) need not comply with certain
covenants of the Senior Note Indenture described under "Consolidation,
Merger, Conveyance, Sale or Transfer" and "Limitation of Liens" or to certain
covenants relating to corporate existence and maintenance of properties and
insurance, in each case, if (1) the Company irrevocably deposits with the
Senior Note Trustee, in trust, (i) money or (ii) in certain cases, (A) U.S.
Government Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms will provide money in an
amount, or (B) a combination thereof, in each case sufficient 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
Senior Notes on the dates such payments are due, in accordance with the terms
of the Senior Notes, or to and including the Redemption Date irrevocably
designated by the Company pursuant to the final sentence of this section and
(y) any mandatory sinking fund payments applicable to the Senior Notes on the
day on which payments are due and payable in accordance with the terms of the
Senior Note Indenture and of the Senior Notes; (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 Senior Notes shall
have occurred and be continuing on the date of such deposit; (3) the Company
delivers to the Senior Note Trustee an opinion of counsel to the effect (i)
that the holders 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 Senior
Notes 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; and (4)
the Company has delivered to the Senior Note Trustee an officers' certificate
and an opinion of counsel, each stating that all conditions precedent provided
for in the Senior Note Indenture relating to the satisfaction and discharge of
the Senior Notes have been complied with. (Sections 403, 1010) Discharged
means, with respect to the Senior Notes, the discharge of the entire
indebtedness represented by, and obligations of the Company under, the Senior
Notes and in the satisfaction of all the obligations of the Company under the
Senior Note Indenture relating to the Senior Notes, except (A) the rights of
holders of the Senior Notes to receive, from the trust fund established
pursuant to the Senior Note Indenture, payment of the principal of and
interest and premium, if any, on the Senior Notes when such payments are due,
(B) the Company's obligations with respect to the Senior Notes 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 Senior
Note Trustee under the Senior Note Indenture. (Section 101) 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 Senior Notes to and including a Redemption Date on
which all of the outstanding Senior Notes are to be redeemed, such Redemption
Date shall be irrevocably designated by a Board of Directors resolution
delivered to the Senior Note Trustee on or prior to the date of deposit of
such money or U.S. Government Obligations, and such Board of Directors
resolution shall be accompanied by an irrevocable Company request that the
Senior Note 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 the Senior Note Indenture. (Sections 403,
1010) 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
depositary 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 depositary 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 depositary 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 depositary receipt. (Section 101)
VOTING OF SENIOR NOTE MORTGAGE BONDS HELD BY SENIOR NOTE TRUSTEE. The
Senior Note Trustee, as a holder of Senior Note Mortgage Bonds, will attend
any meeting of bondholders under the First Mortgage Indenture as to which it
receives due notice, or, at its option, will deliver its proxy in connection
therewith. Either at such meeting, or otherwise where the consent of holders
of first mortgage bonds issued under the First Mortgage Indenture is sought
without a meeting, the Senior Note Trustee will vote all of the Senior Note
Mortgage Bonds held by it, or will consent with respect thereto, as directed
by the holders of not less than a majority in aggregate principal amount of
the outstanding Senior Notes; provided, however, the Senior Note Trustee may
not vote the Senior Note Mortgage Bonds of any particular series in favor of,
or give consent to, any action which, in the Senior Note Trustee's opinion,
would materially adversely affect such series of Senior Note Mortgage Bonds in
a manner not shared generally by all other Senior Mortgage Bonds, except upon
notification by the Senior Note Trustee to the holders of the related series
of Senior Notes of such proposal and consent thereto of the holders of a
majority in principal amount of the outstanding Senior Notes of such series.
(Section 1303)
RESIGNATION OR REMOVAL OF SENIOR NOTE TRUSTEE. The Senior Note Trustee
may resign at any time upon written notice to the Company specifying the day
upon which the resignation is to take effect and such resignation will take
effect immediately upon the later of the appointment of a successor Senior
Note Trustee and such specified day. (Section 610)
The Senior Note Trustee may be removed at any time by an instrument or
concurrent instruments in writing delivered to the Senior Note Trustee and the
Company and signed by the holders, or their attorneys-in-fact, of at least a
majority in principal amount of the then outstanding Senior Notes. In
addition, under certain circumstances, the Company may remove the Senior Note
Trustee upon notice to the holder of each Senior Note outstanding and the
Senior Note Trustee, and appointment of a successor Senior Note Trustee.
(Section 610)
NO RECOURSE AGAINST OTHERS. The Senior Note Indenture provides that 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 the Senior Note Indenture
or the First Mortgage Indenture or in any supplemental indenture, or in any
Senior Note or any Senior Note Mortgage Bond, or because of the creation of
any indebtedness represented thereby, will 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 expressly
waived and released as a condition of, and in consideration for, the execution
of the Senior Note Indenture and the issuance of the Senior Notes. Such
waiver may not be effective to waive liabilities under the Federal securities
laws and it is the view of the Commission that such a waiver is against public
policy.
CONCERNING THE SENIOR NOTE TRUSTEE
Liberty Bank and Trust Company of Tulsa, National Association is the
Senior Note Trustee under the Senior Note Indenture. The Company maintains
banking relationships with the Senior Note Trustee in the ordinary course of
business. The Senior Note Trustee also acts as trustee for the Company's
First Mortgage Bonds.
DESCRIPTION OF SENIOR NOTE MORTGAGE BONDS
First Mortgage Bonds, including any series of Senior Note Mortgage Bonds
issued as security for the Senior Notes, will be issued in one or more series
under the Company's First Mortgage Indenture.
The following statements, unless the context otherwise indicates, are
brief summaries of certain provisions of the First Mortgage Indenture. Such
statements make use of defined terms, are not complete and are subject to all
the provisions of the First Mortgage Indenture. The First Mortgage Indenture
is in part filed as an exhibit to, and in part incorporated by reference in,
the Registration Statement of which this Prospectus is a part.
GENERAL. Senior Note Mortgage Bonds will be issuable in definitive
fully registered form without coupons, in denominations of $1,000 or in
integral multiples thereof. Principal, premium, if any, and interest on the
Senior Note Mortgage Bonds will be payable at the office or agency of the
Company in the City of New York, State of New York. The Senior Note Mortgage
Bonds are exchangeable and transferable as provided in the First Mortgage
Indenture and without charge therefor, except for any stamp tax or other
governmental charge; provided, that the Company (a) shall not register,
exchange or transfer Senior Note Mortgage Bonds during the ten days preceding
any interest payment date thereof and (b) shall not be required to register,
exchange or transfer Senior Note Mortgage Bonds during the period beginning
ten days preceding any date for selection of Senior Note Mortgage Bonds to be
called for redemption and ending on the date of the giving of the relevant
notice of redemption and, as to Senior Note Mortgage Bonds selected for
redemption, from and after the date of such selection.
DEBT RETIREMENT. The Debt Retirement provisions, if any, for each
series of Senior Note Mortgage Bonds will be described in the Prospectus
Supplement relating thereto. First Mortgage Bonds of Series J, K and L
outstanding under the First Mortgage Indenture on the date of this Prospectus
provide that, during each 12-month period specified in the First Mortgage
Indenture, the Company will (a) retire, or pay to the First Mortgage Trustee a
sum of money sufficient to redeem and retire, 1% of the greatest principal
amount of the First Mortgage Bonds of such series outstanding at any time
between the end of such period and the day before the date of the Supplemental
Indenture relating to such series of First Mortgage Bonds (the "Supplemental
Indenture Date") or (b) to the extent that First Mortgage Bonds of such series
are not so retired or cash so deposited, make and certify to the First
Mortgage Trustee $1,666.67 of net expenditures for bondable property on which
the First Mortgage Indenture is a first lien, subject only to permitted
encumbrances and liens and prepaid liens, for each $1,000 of First Mortgage
Bonds of such series otherwise required to be retired. Unused net
expenditures for bondable property and, as applied to each such series of
First Mortgage Bonds, unused excess retirements of First Mortgage Bonds of
that series, may be used to satisfy the foregoing provisions.
MAINTENANCE AND RENEWAL. The First Mortgage Indenture provides that so
long as there are outstanding any First Mortgage Bonds of a series issued
prior to Series N, the Company will expend during each calendar year, and
certify to the First Mortgage Trustee, an amount equal to at least 15% of its
utility operating revenues for such year, after deducting from such revenues
the costs of electricity purchased for resale, for (1) the maintenance and
repair of its mortgaged utility properties, (2) the construction or
acquisition of bondable property on which the First Mortgage Indenture is a
first lien, subject only to permitted encumbrances and liens and prepaid
liens, or (3) the retirement, through purchase or payment, of First Mortgage
Bonds issued under the First Mortgage Indenture, or redemption of First
Mortgage Bonds issued under the First Mortgage Indenture that are subject to
redemption; and that, so long as any First Mortgage Bonds of Series F through
M are outstanding, the expenditures to be made for the purposes stated in
clauses (2) and (3) must equal at least 2-1/4% (unless modified upon
application to the Commission) of the average amount of depreciable property
of the Company. At any time when no First Mortgage Bonds of such prior series
are outstanding, but so long as First Mortgage Bonds of Series N through W are
outstanding, the Indenture requires that expenditures of at least 3% (unless
modified upon application to the Commission) of the average amount of bondable
depreciable property be made for the purposes stated in clauses (2) and (3).
If the required expenditures for the foregoing purposes are not so made, the
Company shall deposit with the First Mortgage Trustee cash to the extent of
any deficiency, after deducting (subject to the terms of the First Mortgage
Indenture) any eligible credit for unused excess expenditures previously made
for such purposes. Such cash may be applied to the redemption at the
applicable General Redemption Price or to the repurchase of First Mortgage
Bonds or withdrawn to the extent of 100% of either net expenditures or excess
gross expenditures for such bondable property.
The First Mortgage Indenture also provides that (a) the Company shall
maintain the mortgaged properties in good repair, working order and condition,
(b) the First Mortgage Trustee may, and if requested by holders of a majority
in principal amount of all outstanding First Mortgage Bonds and furnished with
funds therefor shall, cause such properties to be inspected by an independent
engineer (not more often than at five-year intervals) to determine whether
they have been so maintained and whether any property, not retired on the
Company's books, should be classified as retired for the purpose of computing
net expenditures for bondable property or otherwise under the First Mortgage
Indenture, and (c) the Company shall make good any deficiency in maintenance
disclosed by such engineer's report as rendered or as modified by arbitration.
SECURITY. The Senior Note Mortgage Bonds of any series will be secured
by the lien of the First Mortgage Indenture and will rank equally with all
First Mortgage Bonds at any time outstanding under and secured by the First
Mortgage Indenture, except as to differences between series permitted by the
First Mortgage Indenture and not affecting the rank of the lien. The First
Mortgage Indenture will constitute a first mortgage lien, subject only to
permitted encumbrances and liens and prepaid liens, on all or substantially
all the permanent fixed properties, other than excepted property, owned by the
Company. The First Mortgage Indenture contains provisions subjecting after-
acquired property, other than excepted property, to the lien thereof. Such
provisions may not be effective as to property or proceeds acquired subsequent
to the filing of any case under the Bankruptcy Code. The First Mortgage
Indenture excepts from the lien thereof all cash, securities, accounts and
bills receivable, choses in action and certain judgments not deposited with,
assigned to or pledged with the First Mortgage Trustee, all tangible personal
property held for sale, rental or consumption in the ordinary course of
business, the last day of each term under any lease of property, all oil, gas
and mineral leaseholds, interests and estates, gas gathering lines and certain
real estate described therein.
ISSUANCE OF ADDITIONAL FIRST MORTGAGE BONDS. The First Mortgage
Indenture provides that the aggregate principal amount of First Mortgage Bonds
of all series that may be outstanding thereunder at any one time shall not
exceed $600,000,000. Such amount may be increased from time to time by action
of the Board of Directors and the stockholder of the Company as provided in
the First Mortgage Indenture. An aggregate of $380,000,000 in principal
amount of First Mortgage Bonds was outstanding under the Indenture on
January 31, 1996.
Additional First Mortgage Bonds, of a new or an existing series, may be
issued from time to time under the First Mortgage Indenture, subject to the
terms thereof, in a principal amount equal to: (a) 60% of eligible net
expenditures made by the Company for bondable property constructed or acquired
by it on or after July 1, 1945, and on which the First Mortgage Indenture is a
first lien, subject only to permitted encumbrances and liens and prepaid
liens, (b) the principal amount of First Mortgage Bonds previously
authenticated under the First Mortgage Indenture and which have been retired
or for the retirement of which the First Mortgage Trustee holds the necessary
funds, other than First Mortgage Bonds made ineligible for the purpose by the
terms of the First Mortgage Indenture (which First Mortgage Bonds so made
ineligible include First Mortgage Bonds retired through the operation of the
debt retirement and the maintenance and renewal provisions of the First
Mortgage Indenture), and (c) the amount of money deposited with the First
Mortgage Trustee for the purpose, which money may be applied to the retirement
of First Mortgage Bonds or may be withdrawn in lieu of authentication of an
equivalent principal amount of First Mortgage Bonds under the First Mortgage
Indenture provisions referred to in clauses (a) and (b). Net expenditures for
bondable property are determined as provided in the First Mortgage Indenture.
In general, bondable property, the net expenditures for which are eligible as
a basis for issuance of additional First Mortgage Bonds, means any electric
utility plant, property or equipment owned by the Company on July 1, 1945, or
constructed or acquired by it on or after that date which is used or useful in
its utility business and which the Company has lawful power to own and
operate.
No additional First Mortgage Bonds may be authenticated under the First
Mortgage Indenture provisions referred to in clauses (a) and (c) above, and no
First Mortgage Bonds bearing a higher rate of interest than the First Mortgage
Bonds for the retirement of which they are to be issued may be authenticated
under the First Mortgage Indenture provisions referred to in clause (b) above,
more than five years before maturity of the First Mortgage Bonds to be
retired, unless, in each case, net earnings of the Company for a 12-month
period ending within 90 days preceding such authentication were at least equal
to twice the interest for one year on (1) all of the First Mortgage Bonds of
all series to be outstanding under the First Mortgage Indenture immediately
after such authentication, other than First Mortgage Bonds for the retirement
of which the First Mortgage Trustee holds the necessary funds, and (2) all
other indebtedness then secured by a lien equal or prior to the First Mortgage
Indenture on property of the Company, except any of such indebtedness then
held in pledge under such lien or by the First Mortgage Trustee and except
prepaid liens. Net earnings for the period in question are determined by
deducting from total gross earnings and income all operating expenses for the
period, including taxes other than income taxes, rentals and insurance and all
charges or provisions for maintenance and repairs and for depreciation,
retirements, renewals, replacements and amortization, provided that charges or
provisions to be deducted for such purposes shall aggregate at least the
amount required to be certified in connection with the maintenance and renewal
fund under the First Mortgage Indenture, described under "Maintenance and
Renewal" above. Such net earnings are also subject to any adjustment required
by the First Mortgage Indenture.
Based on the bondable property test described above, which is currently
the most restrictive of the First Mortgage Indenture's issuance tests, and
without taking into account the retirement of any First Mortgage Bonds with
the proceeds of the Senior Notes, the Company, as of December 31, 1995, could
have issued approximately $51,056,691 principal amount of additional First
Mortgage Bonds.
The Company anticipates that the Senior Note Mortgage Bonds will be
authenticated under the First Mortgage Indenture against retired First
Mortgage Bonds of prior series, to the extent available, or against unused net
expenditures for bondable property to the extent permitted in the First
Mortgage Indenture. At December 31, 1995, approximately $80,700,000 principal
amount of previously retired First Mortgage Bonds were available for
authentication of additional First Mortgage Bonds and such unused net
expenditures aggregated approximately $85,094,485.
ACQUISITION OF PROPERTY SUBJECT TO A PRIOR LIEN. The First Mortgage
Indenture provides that the Company will not acquire any property of a value
in excess of $500,000 which at the time of acquisition is subject to a lien
equal or prior to the First Mortgage Indenture (other than permitted
encumbrances and liens and prepaid liens) unless at that time (a) the
principal amount of all outstanding obligations secured by such equal or prior
lien shall not exceed 60% of the fair value of any bondable property so
acquired and (b) the net earnings derived from the operations of such property
during a 12-month period ending within 90 days immediately preceding such
acquisition were equal to at least twice the annual interest charge on such
obligations, except obligations owned by the Company or obligations for the
retirement of which funds are deposited under such lien or with the First
Mortgage Trustee.
LIMITATIONS OF DIVIDENDS ON COMMON STOCK. Dividend restrictions
dependent upon earned surplus are binding on the Company so long as certain
prior series of the Company's First Mortgage Bonds are outstanding. The First
Mortgage Indenture provides in effect that, so long as any First Mortgage
Bonds of Series R or a prior series are outstanding, the aggregate amount of
all dividends and distributions on the Common Stock of the Company on and
after the Supplemental Indenture Date for such series, except dividends
payable in shares of Common Stock of the Company or in cash where concurrently
with the payment thereof an amount at least equal to such dividends is
received in cash as a capital contribution or as the proceeds from the sale of
Common Stock, shall not exceed the sum of (a) the earned surplus of the
Company earned on and after the Supplemental Indenture Date for such series,
(b) its earned surplus at the Supplemental Indenture Date for such series, and
(c) such additional amount as may be approved by the Commission. In
determining earned surplus on and after the Supplemental Indenture Date for
such series for such purpose, deductions are required to be made for
depreciation, retirements, renewals, replacements and amortization as required
in computing net earnings as set forth in the next to last sentence of the
third paragraph under the subheading "Issuance of Additional First Mortgage
Bonds" above.
The Indenture also provides in effect that, so long as First Mortgage
Bonds of Series J through M are outstanding, dividends or other distributions
on Common Stock (other than in stock) may be paid only out of the surplus
earned during the period from July 1, 1945, to the date of such dividend or
distribution, after giving effect in the calculation of such surplus to
expenditures for maintenance and repairs and provisions for depreciation of
the mortgaged properties during such period of at least 15% of the Company's
total utility operating revenues for the period, after deducting from such
revenues the cost of electricity purchased for resale; provided that so long
as any First Mortgage Bonds of Series F through M are outstanding, in
calculating such surplus the total amounts expended for bondable property and
the retirement of First Mortgage Bonds shall equal not less than 2-1/4%
(unless modified by the Commission) of the average amount of depreciable
property.
MODIFICATIONS OF INDENTURE. The First Mortgage Indenture may be
amended, by supplemental indenture without the consent of bondholders, for
various purposes specified therein, including the making of any change in the
First Mortgage Indenture effective only with respect to First Mortgage Bonds
authenticated after the execution of such supplemental indenture and only if
such change would not adversely affect First Mortgage Bonds then outstanding,
and the making of any other change not inconsistent with the terms, and which
would not impair the security of the First Mortgage Indenture. The
Supplemental Indenture creating the First Mortgage Bonds of Series M amended
the First Mortgage Indenture, effective upon the retirement or redemption, or
the consent of the holders, of all outstanding First Mortgage Bonds of all
series issued prior to the First Mortgage Bonds of Series M, by providing that
with the consent of the holders of not less than 66-2/3% in principal amount
of First Mortgage Bonds then outstanding under the First Mortgage Indenture
may be amended in any respect, except that without the consent of the holder
of each outstanding First Mortgage Bond affected thereby no such amendment
shall, among other things, (i) extend the time for, reduce or otherwise affect
the terms of any payment of the principal or of interest or premium on any
First Mortgage Bond, (ii) permit the creation of any lien ranking prior to or
on a parity with the lien of the First Mortgage Indenture, other than
permitted encumbrances and liens and prepaid liens, (iii) reduce the
percentage in principal amount of First Mortgage Bonds the consent of the
holders of which is required for any such amendment, (iv) impair the right of
any bondholder to institute suit for the enforcement of any payment in respect
of his First Mortgage Bonds or (v) deprive any non-assenting bondholders of a
lien upon the mortgaged property for the security of his First Mortgage Bonds.
HIGHLY LEVERAGED TRANSACTIONS. Certain provisions of the First Mortgage
Indenture may provide holders of the Senior Note Mortgage Bonds with some
protection in the event of a highly leveraged transaction. These provisions
are described in more detail in this Prospectus under the following headings
under "Description of Senior Note Mortgage Bonds":
Security: A description of the first mortgage lien securing the
Senior Note Mortgage Bonds and the limited exceptions from the lien.
Issuance of Additional First Mortgage Bonds: A description of
limitations on the issuance of additional First Mortgage Bonds,
including 60% of eligible net expenditures for bondable property, the
principal amount of retired First Mortgage Bonds, or cash deposited with
the First Mortgage Trustee, subject to the applicability of an earnings
coverage test.
Limitations on Dividends on Common Stock: A description of
dividend limitations applicable so long as certain series of the
Company's First Mortgage Bonds are still outstanding.
Modifications of Indenture: An explanation of the circumstances
under which the First Mortgage Indenture may be modified, including
amendments requiring either a 66-2/3% vote of outstanding First Mortgage
Bonds or a unanimous vote.
The First Mortgage Indenture also provides that any merger of the
Company or conveyance of all or substantially all of its property shall not
impair the lien of the First Mortgage Indenture. Any successor to the Company
shall assume the obligations of the Company under the First Mortgage
Indenture.
Additionally, any change in control transaction that involves the
incurrence of additional long-term indebtedness (as notes, first mortgage
bonds or otherwise) by the Company in such a transaction would require
approval of state utility regulatory authorities and, possibly, of federal
utility regulatory authorities. Management believes that such approvals would
be unlikely in any transaction that would result in the Company, or a
successor to the Company, having a highly leveraged capital structure.
DEFAULTS. The First Mortgage Indenture includes as events of default:
any default in payment of principal of any First Mortgage Bonds at maturity or
otherwise; any default continued for 60 days in payment of interest thereon;
any default in payment of principal or interest on prior lien bonds continued
beyond any applicable grace period; any adjudication of bankruptcy,
appointment of receiver, filing of petition in voluntary bankruptcy or
admission of insolvency by or with respect to the Company; and any default
continued for 90 days after notice from the First Mortgage Trustee in the
performance of any covenant or condition in the First Mortgage Indenture or
with respect to any prior lien. The Company is required to give periodic
certificates as to the absence of a default and compliance with the terms of
the First Mortgage Indenture, and must also give certificates to such effect
in connection with the authentication of additional First Mortgage Bonds or
withdrawal of cash under the First Mortgage Indenture. The First Mortgage
Trustee is not required to take action with respect to a default except upon
written request of the holders of not less than a majority in principal amount
of outstanding First Mortgage Bonds under the First Mortgage Indenture. No
holder shall have the right to exercise any right in respect of the First
Mortgage Indenture, unless the Trustee shall have refused to take action
requested by holders of 25% in principal amount of outstanding First Mortgage
Bonds under the First Mortgage Indenture and upon the tender of security and
indemnity satisfactory to the Trustee against all costs and liabilities which
might be incurred by reason of the taking of such action. The First Mortgage
Indenture provides that the First Mortgage Trustee may withhold notice to
bondholders of any default (except in payment of the principal of or interest
on any First Mortgage Bonds or in the making of any sinking fund or similar
payment) if it considers such withholding to be in the interest of
bondholders.
LEGAL OPINIONS
Legal opinions relating to the validity of the Senior Notes will be
given by Milbank, Tweed, Hadley & McCloy, 1 Chase Manhattan Plaza, New York,
New York 10005, counsel for the Company, and Sidley & Austin, One First
National Plaza, Chicago, Illinois 60603, counsel for the Underwriters. Sidley
& Austin has represented Central and South West Corporation and affiliates of
Central and South West Corporation from time to time in connection with
certain legal matters.
EXPERTS
The audited financial statements and schedules incorporated by reference
in this Prospectus and elsewhere in the Registration Statement have been
audited by Arthur Andersen LLP, independent public accountants, as indicated
in their report dated February 13, 1995, with respect thereto, and are
incorporated herein by reference in reliance upon the authority of said firm
as experts in accounting and auditing in giving said reports.
PLAN OF DISTRIBUTION
The Company may sell the Senior Notes offered hereby (i) through
negotiation with one or more underwriters; (ii) through one or more agents
designated from time to time; (iii) directly to purchasers; or (iv) through
any combination of the above. The distribution of the Senior Notes may be
effected from time to time in one or more transactions at a fixed price or
prices which may be changed, at market prices prevailing at the time of sale,
at prices related to such prevailing market prices or at negotiated prices. A
Prospectus Supplement or a supplement thereto will describe the method of
distribution of the Senior Notes of any series.
If an underwriter or underwriters are utilized in the sale, the Company
will execute an underwriting agreement, distribution agreement or similar
agreement with such underwriters prior to the time of sale, and the names of
the underwriters of the transaction will be set forth in the Prospectus
Supplement or a supplement thereto relating to such sale. If an underwriting
agreement is executed, the Senior Notes will be acquired by the underwriters
for their own account and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of the sale. Unless
otherwise indicated in the Prospectus Supplement, the underwriting or purchase
agreement will provide that the underwriter or underwriters are obligated to
purchase all of the Senior Notes offered in the Prospectus Supplement if any
are purchased.
If any of the Senior Notes are sold through an agent or agents
designated by the Company from time to time, the Prospectus Supplement or a
supplement thereto will name any such agent, set forth any commissions payable
by the Company to any such agent and the obligations of such agent with
respect to the Senior Notes. Unless otherwise indicated in the Prospectus
Supplement or a supplement thereto, any such agent will be acting on a best
efforts basis for the period of its appointment.
The Senior Notes of any series, when first issued, will have no
established trading market. Any underwriters or agents to or through whom
Senior Notes are sold by the Company for public offering and sale may make a
market in such Senior Notes, but such underwriters or agents will not be
obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given as to the liquidity of the trading market
for any Senior Notes.
In connection with the sale of the Senior Notes, any purchasers,
underwriters or agents may receive compensation from the Company or from
purchasers in the form of concessions or commissions. The underwriters will
be, and any agents and any dealers participating in the distribution of the
Senior Notes may be, deemed to be underwriters within the meaning of the
Securities Act of 1933, as amended (the "Act"). The agreement between the
Company and any purchasers, underwriters or agents will contain reciprocal
covenants of indemnity, and will provide for contribution by the Company in
respect of its indemnity obligations, between the Company and the purchasers,
underwriters, or agents against certain liabilities, including liabilities
under the Act.
Certain of the underwriters or agents and their associates may engage in
transactions with, or perform services for, the Company and its affiliates in
the ordinary course of business.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses in connection with the issuance and distribution
of the securities being registered, other than underwriting compensation, are:
Filing fee for Registration Statement ................... $ 25,862*
Printing of Registration Statement, Prospectus,
Supplemental Indenture and Senior Notes.................. 10,000
Fees and expenses of First Mortgage Trustee............... 35,000
Fees and expenses of Senior Note Trustee.................. 35,000
Fees of rating agencies................................... 45,000
Fees of accountants....................................... 15,000
Reimbursement of underwriters' expenses and
counsel fees in connection with qualification
or registration of the Senior Notes under state
securities or "blue sky" laws.......................... 5,000
Expenses of Central and South
West Services, Inc...................................... 5,000
Counsel Fees............................................. 122,500
Miscellaneous and incidental expenses, including
travel, telephone, copying, postage................... 6,638
_______
Total.......................................... $ 305,000
=========
______________
*Actual
Item 15. Indemnification of Directors and Officers.
Section 1031 of the Oklahoma General Corporation Act provides broadly
for indemnification of directors and officers against claims and liabilities
against them in their capacities as such. The Company's bylaws also provide
for the indemnification of officers and directors by the Company. In
addition, the Company has purchased Directors' and Officers' Liability and
Company Reimbursement Liability Insurance which, in certain circumstances,
provide for payments to the directors and officers of the Company, in the
event of such liabilities.
Item 16. Exhibits.
Exhibit No. Description of Exhibits
1 - Form of Underwriting Agreement for Senior Notes.
4(a) - Form of Senior Note Indenture.
4(b) - Indenture dated July 1, 1945, as amended of the Company
(incorporated herein by reference to Exhibit 5.03 to the
Company's Registration Statement No. 2-60712),
Supplemental Indenture of the Company dated June 1, 1979
(incorporated herein by reference to Exhibit 2.02 to the
Company's Registration Statement No. 2-64432),
Supplemental Indenture of the Company dated December 1,
1979 (incorporated herein by reference to Exhibit 2.02 to
the Company's Registration Statement No. 2-65871),
Supplemental Indenture of the Company dated March 1, 1983
(incorporated herein by reference to Exhibit 2 to the
Company's Form U-1 File No. 70-6822), Supplemental
Indenture of the Company dated May 1, 1986 (incorporated
herein by reference to Exhibit 3 to the Company's Form U-1
File No. 70-7234), Supplemental indenture of the Company
dated July 1, 1992 (incorporated herein by reference to
Exhibit 4 (b) to Form S-3, File No. 33-48650),
Supplemental Indenture of the Company dated December 1,
1992 (incorporated herein by reference to Exhibit 4 (c) to
Form S-3, File No. 33-49143), Supplemental Indenture of
the Company dated April 1, 1993 (incorporated herein by
reference to Exhibit 4 (b) to Form S-3, File No. 33-
49575), and Supplemental Indenture of the Company dated
June 1, 1993 (incorporated herein by reference to Exhibit
4 (b) to the Company's 1993 Form 10-K, File No. 0-343).
5 - Opinion of Milbank, Tweed, Hadley & McCloy, counsel for
the Company, as to the legality of the Senior Notes.
12(a) - Statement re: computation of Ratio of Earnings to Fixed
Charges for the five years ended December 31, 1994
(incorporated herein by reference to Exhibit 12 to the
Company's 1994 Annual Report on Form 10-K).
12(b) - Statement re: computation of Ratio of Earnings to Fixed
Charges for the twelve months ended December 31, 1995.
23(a) - Consent of Arthur Andersen LLP.
23(b) - Consent of Milbank, Tweed, Hadley & McCloy (contained in
Exhibit 5 above).
24 - Power of Attorney (included on the signature page of the
Registration Statement).
25(a) - Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939 of Liberty Bank and Trust Company of
Tulsa, National Association, as First Mortgage Trustee
under the First Mortgage Indenture.
25(b) - Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939 of Liberty Bank and Trust Company of
Tulsa, National Association, as Senior Note Trustee, under
the Senior Note Indenture.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in this registration
statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a post-
effective amendment by these paragraphs is contained in periodic reports filed
by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in this registration statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tulsa, State of Oklahoma, on February 15, 1996.
PUBLIC SERVICE COMPANY OF OKLAHOMA
By: /s/MARY M. POLFER
Mary M. Polfer
Vice President - Administration
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes and appoints
Stephen J. McDonnell and Stephen D. Wise or either of them, as his or her
attorney-in-fact, with full power of substitution and resubstitution to sign
and file on his or her behalf individually and in each such capacity stated
below any and all amendments and post-effective amendments to this
Registration Statement and any registration statement of the company relating
to Senior Notes filed after the date hereof pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, as fully as such person could do in
person, hereby verifying and confirming all that said attorney-in-fact, or
either of them, or their or his substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on February 15, 1996.
SIGNATURE TITLE
--------- -----
/s/ ROBERT L. ZEMANEK President and Chief Executive Officer
______________________________ (principal executive officer);
Robert L. Zemanek Director
/s/ MARY M. POLFER Vice President - Administration
______________________________ (principal financial officer);
Mary M. Polfer Director
/s/ RUSSELL DAVIS Controller
_______________________________ (principal accounting officer)
Russell Davis
SIGNATURE TITLE
--------- -----
/s/ WILLIAM R. MCKAMEY Vice President - Marketing and
______________________________ Business Development; Director
William R. McKamey
/s/ WALDO J. ZERGER, JR. Vice President - Operations and
______________________________ Engineering; Director
Waldo J. Zerger, Jr.
/s/ E.R. BROOKS Director
______________________________
E.R. Brooks
/s/ HARRY D. MATTISON Director
______________________________
Harry D. Mattison
/s/ HARRY A. CLARKE Director
______________________________
Harry A. Clarke
/s/ PAUL K. LACKEY, JR. Director
______________________________
Paul K. Lackey, Jr.
/s/ PAULA MARSHALL-CHAPMAN Director
________________________________
Paula Marshall-Chapman
/s/ DR. ROBERT B. TAYLOR, JR. Director
________________________________
Dr. Robert B. Taylor, Jr.
INDEX TO EXHIBITS
EXHIBIT TRANSMISSION
NUMBER EXHIBIT METHOD
- ------- ------- ------------
1 Form of Underwriting Agreement for Senior Electronic
Notes.
4(a) Form of Senior Note Indenture. Electronic
4(b) Indenture dated July 1, 1945, as amended of Incorporated
the Company (incorporated herein by reference by Reference
to Exhibit 5.03 to the Company's Registration
Statement No. 2-60712), Supplemental Indenture
of the Company dated June 1, 1979 (incorpo-
rated herein by reference to Exhibit 2.02 to
the Company's Registration Statement No.
2-64432), Supplemental Indenture of the
Company dated December 1, 1979 (incorporated
herein by reference to Exhibit 2.02 to the
Company's Registration Statement No. 2-65871),
Supplemental Indenture of the Company dated
March 1, 1983 (incorporated herein by reference
to Exhibit 2 to the Company's Form U-1 File
No. 70-6822), Supplemental Indenture of
the Company, dated May 1, 1986 (incorporated
herein by reference to Exhibit 3 to the
Company's Form U-1 File No. 70-7234) Supplemental
Indenture of the Company dated May 1, 1986
(incorporated herein by reference to Exhibit 3
to the Company's Form U-1 File No. 70-7234)
Supplemental Indenture of the Company dated
July 1, 1992 (incorporated herein by reference
to Exhibit 4 (b) to Form S-3, File No. 33-48650),
Supplemental Indenture of the Company dated
December 1, 1992 (incorporated herein by
reference to Exhibit 4 (c) to Form S-3, File
No. 33-49143), Supplemental Indenture of the
Company dated April 1, 1993 (incorporated
herein by reference to Exhibit 4 (b) to Form S-3,
File No. 33-49575), and Supplemental Indenture
of the Company dated June 1, 1993 (incorporated
herein by reference to Exhibit 4 (b) to the
Company's 1993 Form 10-K, File No. 0-343).
5 Opinion of Milbank, Tweed, Hadley & McCloy, Electronic
counsel for the Company, as to the legality of
the Senior Notes.
12(a) Statement re: computation of Ratio of Earnings Incorporated
to Fixed Charges for the five years ended by Reference
December 31, 1994 (incorporated herein by
reference to Exhibit 12 to the Company's 1994
Annual Report on Form 10-K).
INDEX TO EXHIBITS
EXHIBIT TRANSMISSION
NUMBER EXHIBIT METHOD
- ------- ------- ------------
12(b) Statement re: computation of Ratio of Earnings Electronic
to Fixed Charges for the twelve months ended
December 31, 1995.
23(a) Consent of Arthur Andersen LLP. Electronic
23(b) Consent of Milbank, Tweed, Hadley & McCloy ---
(contained in Exhibit 5 above).
24 Power of Attorney (included on signature page ---
of the Registration Statement).
25(a) Form T-1 Statement of Eligibility under the Electronic
Trust Indenture Act of 1939 of Liberty Bank
and Trust Company of Tulsa, National
Association, as First Mortgage Trustee under
the First Mortgage Indenture.
25(b) Form T-1 Statement of Eligibility under the Electronic
Trust Indenture Act of 1939 of Liberty Bank
and Trust Company of Tulsa, National
Association, as Senior Note Trustee, under
the Senior Note Indenture.
<PAGE>
EXHIBIT 1
EXHIBIT 1
PUBLIC SERVICE COMPANY OF OKLAHOMA
SENIOR NOTES
UNDERWRITING AGREEMENT
__________ ____, 199__
Public Service Company of Oklahoma
212 East Sixth Street
Tulsa, Oklahoma 74119
Dear Sirs:
We (the "Managers") understand that Public Service Company of Oklahoma,
an Oklahoma corporation (the "Company"), proposes to issue and sell
$__________ aggregate principal amount of its ____% Senior Notes, due
_______________ (the "Offered Securities"). Subject to the terms and
conditions set forth herein or incorporated by reference herein, the Company
hereby agrees to sell and the underwriter or underwriters named in Schedule I
hereto (such underwriter or underwriters being herein called the
"Underwriters") agree to purchase, severally and not jointly, the principal
amounts of such Offered Securities set forth opposite their names in Schedule
I hereto at ______% of their principal amount plus accrued interest, if any,
from __________ ____, 199__ to the date of payment and delivery.
The Underwriters will pay for such Offered Securities at the offices of
Milbank, Tweed, Hadley & McCloy, 1 Chase Manhattan Plaza, New York, New York
10005 at 10:00 a.m., New York Time, on __________ ____, 199__, or at such
other place and time, not later than __________ ____, 199__, as shall be
mutually agreed. The Offered Securities shall be concurrently delivered to
the Underwriters at the offices of _________________________________________.
The Offered Securities shall have the following terms:
Maturity: __________ __, ______
--------
Interest Rate: ________%
-------------
Mandatory and Optional
Sinking Fund Provisions: As described in the Prospectus and
----------------------- applicable Prospectus Supplement
for the Offered Securities
Optional Redemption Provisions: As described in the Prospectus and
------------------------------ applicable Prospectus Supplement
for the Offered Securities
Interest Payment Dates: __________ ____ and
----------------------- __________ ____, commencing
__________ ____, 199__
Address for Notices
to Managers under
Underwriting Agreement:
----------------------
Payment Method:
--------------
All the provisions contained in the document entitled Public Service
Company of Oklahoma Underwriting Agreement Standard Provisions (Senior Notes-
Shelf) dated __________ ____, 199__, a copy of which you and we have
previously received, are herein incorporated by reference in their entirety
and shall be deemed to be a part of this Underwriting Agreement to the same
extent as if such provisions had been set forth in full herein. References
herein and therein to numbered sections of the Underwriting Agreement shall
mean the numbered sections of such Standard Provisions.
Please confirm your agreement by having an authorized officer sign a
copy of this Underwriting Agreement in the space set forth below and returning
the signed copy to us. This Underwriting Agreement may be signed in any
number of counterparts with the same effect as if the signature thereto and
hereto were upon the same instrument. It is understood that our acceptance of
this agreement on behalf of each of the Underwriters is or will be pursuant to
the authority set forth in a form of Agreement Among Underwriters, the form of
which shall be submitted to the Company for examination, upon request.
Very truly yours,
By:______________________________
Title:___________________________
(Acting severally on behalf of
themselves and the several
Underwriters named in Schedule I
hereto)
Accepted:
PUBLIC SERVICE COMPANY OF OKLAHOMA
By:_______________________________
Name:
Title:
Schedule I
----------
Principal
Amount of
Underwriters Offered
Securities
------------ ---------
$
-----------
Total $
PUBLIC SERVICE COMPANY OF OKLAHOMA
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (SENIOR NOTES-SHELF)
Dated __________ ____, 199__
From time to time Public Service Company of Oklahoma, an Oklahoma
corporation (the "Company"), may enter into one or more underwriting
agreements that provide for the sale of designated securities to the
several underwriters named therein. The standard provisions set forth
herein may be incorporated by reference in any such underwriting agreement
and any such underwriting agreement, including the provisions incorporated
therein by reference, is herein referred to as the "Underwriting
Agreement".
The Company proposes to issue the series of Senior Notes specified
in the Underwriting Agreement (the "Offered Securities") pursuant to the
provisions of its Indenture dated __________ ____, 1996, as supplemented
and as the same may from time to time be amended or supplemented (the
"Indenture"), to Liberty Bank and Trust Company of Tulsa, National
Association, as Trustee (the "Trustee"). The Offered Securities will have
the terms and rights, including the maturity, rate and times of payment of
interest, selling price and redemption terms, as set forth in the
Underwriting Agreement and Prospectus (as hereinafter defined). The
Underwriting Agreement shall be in the form of an executed writing (which
may be in counterparts) and may be evidenced by facsimile or any other
electronic transmission designed to produce a written record of
communications transmitted. Until the Release Date (as defined in the
Indenture), the Offered Securities 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.
1. Representations and Warranties of the Company.
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File
No. 333-_________), including a prospectus, relating to the Offered
Securities, and the offering thereof from time to time in accordance with
Rule 415 under the Securities Act of 1933, as amended (the "Securities
Act") and such registration statement has become effective. The Company
has prepared or will promptly prepare for filing with, or transmission for
filing to, the Commission, pursuant to Rule 424 under the Securities Act,
a Prospectus Supplement (the "Supplement") for the purpose of supplying
information in respect of the public offering of the Offered Securities,
the names of the underwriter or group of underwriters and other matters.
Said registration statement, as amended at the time it became effective,
including the information contained in the final prospectus filed with the
Commission pursuant to Rule 424(b) of the Securities Act, and the
prospectus, as supplemented by the Supplement, relating to the Offered
Securities in final form as filed with the Commission pursuant to Rule 424
under the Securities Act, are hereinafter called the "Registration
Statement" and the "Prospectus", respectively. The term "Basic
Prospectus" means the prospectus included in the Registration Statement.
The term "preliminary prospectus" means a preliminary prospectus
supplement, if any, relating to the Offered Securities together with the
Basic Prospectus. Whenever the word "Registration Statement",
"registration statement", "Prospectus", "preliminary prospectus" or
"prospectus" is used herein it shall be deemed to include all documents
incorporated therein by reference pursuant to the requirements of Form S-3
under the Securities Act (the "Incorporated Documents").
(b) Except as otherwise contemplated herein, no approval,
authorization, consent, certificate or order of the Commission under the
Public Utility Holding Company Act of 1935, as amended (the "Holding
Company Act") or any State commission or regulatory authority other than
the Corporation Commission of the State of Oklahoma (the "Oklahoma
Commission") is necessary with respect to the issuance or the sale of the
Offered Securities and the First Mortgage Bonds by the Company. The
Oklahoma Commission has entered an order authorizing or approving the
issue and sale of the Offered Securities and the First Mortgage Bonds by
the Company on terms consistent with the Underwriting Agreement. A copy
of such order heretofore entered by the Oklahoma Commission has been or
will be delivered to the Underwriters.
(c) The Basic Prospectus relating to the Offered Securities as
originally filed, or as a part of any amendment thereto, any preliminary
prospectus at the time of its issuance, and the Registration Statement and
the Prospectus and any amendment or supplement to the Registration
Statement or the Prospectus as of their effective or issue dates, and as
of the Closing Date (as hereinafter defined), complied or will comply, in
each case in all material respects, with the provisions of the Securities
Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the rules and regulations of the Commission under said Acts,
and neither the Registration Statement nor any amendment thereto contains
or will contain an untrue statement of a material fact or omits or will
omit to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading and the Basic
Prospectus, any preliminary prospectus, the Prospectus or any amendment or
supplement thereto does not include and will not include an untrue
statement of a material fact and does not omit and will not omit to state
a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were
made not misleading; provided that the foregoing representations and
warranties in this subsection (c) shall not apply to omissions from the
Registration Statement or Prospectus resulting from the failure of any of
the Underwriters to furnish the Company with the information pertaining to
such Underwriters and the underwriting of the Offered Securities 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
hereinafter defined) 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 in writing to the Company by any
of the Underwriters for use in connection with the preparation of the
Prospectus. The Incorporated Documents that were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), complied
at their respective times of filing, and any documents deemed to be
incorporated in the Registration Statement and Prospectus at all times
during which a prospectus is required to be delivered under the Securities
Act will comply at their respective times of filing, with the provisions
of the Exchange Act and the rules and regulations of the Commission
thereunder.
(d) Except as the Company may have furnished supplemental
information to each prospective Underwriter or to the Managers prior to
the receipt of proposals to purchase the Offered Securities as to matters
to be reflected in the Prospectus, since the respective dates as of which
information is given in the Registration Statement and in the Prospectus,
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 such Registration Statement (including the financial
statements and notes thereto included or incorporated by reference in the
Registration Statement) or the Prospectus.
(e) The First Mortgage Indenture (as defined herein) adequately
describes all or substantially all the permanent fixed properties now
owned by the Company, except certain property excepted from the lien of
the First Mortgage Indenture and property of the character expressly
excluded from such lien by the terms of the First Mortgage Indenture, and
except any property constructed or acquired by the Company subsequent to
the date of execution of the Supplemental Indenture creating and providing
for the issuance of the First Mortgage Bonds.
(f) At or prior to the acceptance by the Company of a proposal for
the purchase of the Offered Securities, the Company will have taken all
corporate action necessary to be taken by it to authorize the acceptance
of such proposal and, at or before the Closing Date, will have taken all
corporate action necessary to be taken by it to authorize the performance
by it of all obligations on its part to be performed under the
Underwriting Agreement; and the consummation of the transactions
contemplated in, and the fulfillment of the terms of, the Underwriting
Agreement will not result in a breach of any of the terms and provisions
of, or constitute a default under, any indenture, mortgage, deed of trust
or other agreement or instrument to which the Company is a party at the
Closing Date, or the Restated Articles of Incorporation of the Company, as
amended, or any order, rule or regulation applicable to the Company of any
court or of any state or Federal regulatory body or administrative agency
having jurisdiction over the Company or over its property.
(g) Arthur Andersen LLP are independent accountants with respect to
the Company as required by the Securities Act and the applicable rules and
regulations thereunder.
2. Purchase, Sale and Delivery of Offered Securities.
The Company is advised by the Managers that the Underwriters propose
to make a public offering of their respective portions of the Offered
Securities as soon after the Underwriting Agreement is entered into as in
the Managers' judgment is advisable. The terms of the public offering of
the Offered Securities are or will be set forth in the Prospectus.
Payment for the Offered Securities shall be made by certified or
official bank check or checks payable to the Company or its order in
immediately available Federal funds (unless the Underwriting Agreement
shall otherwise specify) at the time and place set forth in the
Underwriting Agreement upon delivery to the Managers for the respective
accounts of the several Underwriters of the Offered Securities registered
in such names and in such denominations as the Managers shall request in
writing not less than two full business days prior to the date of
delivery. The Company agrees to have the Offered Securities available for
inspection, checking and packaging by the Managers at the location
indicated in the Underwriting Agreement not later than 1:00 P.M. on the
business day next prior to the Closing Date. The time and date of such
payment and delivery with respect to the Offered Securities are herein
referred to as the "Closing Date".
At the closing, by virtue of certain provisions of the Oklahoma
statutes, the several Underwriters shall be required to pay the real
estate mortgage tax (0.10% of the principal amount of any Offered
Securities) payable in connection with the issuance of the Offered
Securities.
3. Covenants of the Company.
The Company covenants and agrees with each of the Underwriters that:
(a) As soon as practicable after the acceptance of a proposal to
purchase the Offered Securities, the Company will file the Supplement with
the Commission pursuant to Rule 424(b) of the Securities Act. The Company
will not file at any time prior to the Closing Date any other amendment to
the Registration Statement or any supplement to the Prospectus, or any
other amended prospectus or any document that upon the filing thereof
would become an Incorporated Document of which Sidley & Austin
("Underwriters' Counsel") shall not previously have been advised and
furnished with a copy or to which the Managers shall reasonably object in
writing.
(b) The Company will advise the Managers immediately, and confirm
such advice promptly in writing, of the effectiveness of any amendment to
the Registration Statement.
(c) The Company will notify promptly each of the Underwriters in
the event of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or in the event of the
institution or notice of intended institution by the Commission of any
action or proceeding for that purpose. In the event the Commission shall
enter a stop order suspending the effectiveness of the Registration
Statement, whether before or after the Offered Securities have been
delivered to the Managers or the Underwriters and paid for as provided in
the Underwriting Agreement, the Company will make every reasonable effort
to obtain, as promptly as possible, the entry by the Commission of an
order setting aside any such stop order or otherwise reinstating the
effectiveness of the Registration Statement.
(d) The Company will deliver to the Managers, on or before the
Closing Date, one signed copy of the registration statement as originally
filed and of each amendment thereto (in each case including all exhibits
thereto, other than exhibits incorporated by reference), and will also
deliver to the Managers, for distribution to the Underwriters, a
sufficient number of conformed copies of each of the foregoing (but
without exhibits) so that one copy of each may be distributed to each of
the Underwriters. The Company will also send to the Managers or to the
Underwriters, without expense to them, as soon as practicable after the
date hereof, and thereafter from time to time during a period of nine
months after such date, as many copies of any preliminary prospectus and
the Prospectus as the Managers may reasonably request for the purposes
contemplated by the Securities Act.
(e) The Company will use its best efforts, when and as requested by
the Managers, to furnish information and otherwise cooperate in qualifying
or registering the Offered Securities and the First Mortgage Bonds for
offer and sale under the securities or "blue sky" laws of such
jurisdictions as the Managers may designate, but the Company shall not
thereby be obligated to qualify as a foreign corporation or subject itself
to taxation in, or to execute or file any general consent to service of
process under the laws of, any jurisdiction. The Company will pay the
Underwriters' Counsel all reasonable fees (including counsel fees) and
expenses incurred by them in connection with such qualification or
registration of the Offered Securities and the First Mortgage Bonds for
offer or sale, not exceeding, however, $5,000 in the aggregate.
(f) If the Underwriting Agreement shall be terminated pursuant to
the provisions of Section 4, the Company will pay the reasonable fees and
disbursements of Underwriters' Counsel in connection with the contemplated
issue and sale of the Offered Securities and the First Mortgage Bonds,
unless such termination is caused by any default by the Managers or any of
the Underwriters in the performance of their respective obligations
hereunder. Except as provided in this subsection (f), the Underwriters
shall pay the fees of Underwriters' Counsel and reimburse such counsel for
their reasonable expenses paid or incurred in connection with the issue
and sale of the Offered Securities and the First Mortgage Bonds. The
Company shall not in any event be liable to any of the Underwriters for
damages on account of loss of anticipated profits.
(g) The Company will, so long as any of the Offered Securities
shall be outstanding, deliver to the Managers upon their request, and to
each other Underwriter who may so request, copies of all public reports
and all reports and financial statements furnished by the Company to the
Commission pursuant to the Exchange Act or any rule or regulation of the
Commission thereunder.
(h) During a period of nine months after the date of the
Prospectus, if any event relating to or affecting the Company or its
subsidiaries, if any, or of which the Company shall be advised in writing
by the Managers, shall occur as a result of which it is necessary, in the
opinion of counsel for the Company, to supplement or amend the Prospectus
in order to make the Prospectus not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser of
Offered Securities from any of the Underwriters, the Company will
forthwith at its expense prepare and furnish to the Managers or to the
Underwriters a reasonable number of copies of a supplement or supplements
or an amendment or amendments to the Prospectus (in form satisfactory to
Underwriters' Counsel) which will supplement or amend the Prospectus so
that, as so supplemented or amended, it will not include any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances existing at the time the Prospectus is
delivered to such a purchaser, not misleading. In case any of the
Underwriters is required to deliver a prospectus descriptive of the
Offered Securities after the expiration of nine months after the date of
the Prospectus, the Company, upon the request of the Managers, will
furnish to the Managers, at the expense of such Underwriter, a reasonable
quantity of amendments or supplements to the Prospectus complying with
Section 10 of the Securities Act. For the purpose of this subsection (h),
the Company will furnish such information with respect to itself and its
subsidiaries, if any, as the Managers may from time to time reasonably
request, and during said nine-month period, the Company will prepare and
continue to file with the Commission all documents required to be filed
under the Exchange Act.
(i) The Company will make generally available to its security
holders, as soon as practicable, an earnings statement (which need not be
audited) covering a period of at least twelve months beginning not earlier
than the date of the Prospectus, which earnings statement shall satisfy
the requirements of Section 11(a) of the Securities Act.
4. Conditions of Underwriters' Obligations.
The obligations of the Underwriters to purchase and pay for the
Offered Securities shall be subject to the performance by the Company of
its obligations to be performed under the Underwriting Agreement at or
prior to the Closing Date, to the continued accuracy in all material
respects of the representations and warranties of the Company contained in
the Underwriting Agreement, and to the following conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing and in accordance with Section 1(a) of this Agreement; no stop
order suspending the effectiveness of the Registration Statement shall
have been issued under the Securities Act, or proceedings therefor
instituted or threatened by the Commission, on or prior to the Closing
Date.
(b) The Company shall have delivered to the Trustee, as security
for the payment of the principal and interest on the Offered Securities, a
series of First Mortgage Bonds in the same aggregate principal amount and
with the same stated rate or maturity dates and redemption provisions as
the Offered Securities they secure as described in Prospectus. 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. The term "First Mortgage Indenture," as
hereinafter used, means such Indenture dated July 1, 1945, as so amended
and supplemented.
(c) At or prior to the Closing Date, the Underwriters shall have
received from Underwriters' Counsel an opinion (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), to the effect that:
(i) the Company has been duly incorporated and is a validly
existing corporation under the laws of the State of Oklahoma;
(ii) 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 a 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 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 the
opinion of such counsel, make the remedies afforded by 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);
(iii) the issue and sale of the Offered Securities and the
First Mortgage Bonds by the Company in accordance with the terms of
the Underwriting Agreement have been duly and validly authorized by
the Company. The Offered Securities and First Mortgage Bonds, when
duly executed, authenticated and delivered to and paid for by the
Managers or the Underwriters in the case of the Offered Securities,
and to the First Mortgage Trustee in the case of the First Mortgage
Bonds, in accordance with the terms of the Underwriting 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
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 the opinion of such
counsel, make the remedies afforded by 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);
(iv) the Offered Securities 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 under the caption "Description of the
Senior Notes" and "Description of Senior Note Mortgage Bonds" and in
the Prospectus Supplement under the caption "Supplemental
Description of the Senior Notes" and "Supplemental Description of
Senior Note Mortgage Bonds" and such statements accurately set
forth, in all material respects, the matters respecting the Offered
Securities, the Indenture, the First Mortgage Bonds and First
Morgage Indenture, which are required to be set forth in the
Prospectus, as supplemented by the Prospectus Supplement, by the
Securities Act and the Trust Indenture Act and the rules and
regulations under said Acts (other than the accounting provisions
thereof, with respect to the requirements of which such counsel need
express no opinion or belief); and each of the Indenture and the
First Mortgage Indenture has been qualified under the Trust
Indenture Act;
(v) the order of the Oklahoma Commission referred to in
subsection (b) of Section 1 of the Underwriting Agreement has been
duly entered and, to the best of the knowledge of said counsel, is
in full force and effect;
(vi) 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 Commission under said Act with
respect to the issue and sale of the Offered Securities and the
First Mortgage Bonds.
(vii) Except as set forth in paragraph (v) above and except
for the order of the Commission entered into with respect to the
Registration Statement as contemplated in paragraph (viii) 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 or the issue and sale of the Offered Securities
and the First Mortgage Bonds by the Company as contemplated in the
Underwriting Agreement;
(viii) the Registration Statement on Form S-3 has become
effective under the Securities Act, and, to the best of the
knowledge of said counsel, 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;
(ix) the Registration Statement, the Prospectus and the
Prospectus Supplement, in each case excluding the Incorporated
Documents (other than financial statements, financial data,
statistical data and supporting schedules included or incorporated
by reference therein, as to which said counsel need express no
opinion or belief) as of their respective effective or issue dates
complied as to form, in all material respects, with the requirements
of the Securities Act (or, where appropriate, the Exchange Act) and
the rules and regulations of the Commission thereunder; and
(x) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
Such counsel shall also state that while, except as otherwise
required or stated in said opinion, said counsel have not
independently checked the accuracy or completeness of, or otherwise
verified, and accordingly, are not passing upon, and do not assume
any responsibility for and have not independently verified the
accuracy, completeness or fairness of the statements contained in
the Registration Statement, the Prospectus or the Prospectus
Supplement, and relying as to materiality, to a large extent, upon
the judgment of officers and representatives of the Company, nothing
has come to the attention of said counsel which would lead said
counsel to believe that the Registration Statement relating to the
Offered Securities or any amendment thereto (other than financial
statements, financial data, statistical data and supporting
schedules included or incorporated by reference therein, as to which
said counsel need express no opinion or belief), at the time it
became effective contained any 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
(with the foregoing exception) the Prospectus, as supplemented by
the Prospectus Supplement, as of the date of such opinion includes
any untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(d) At or prior to the Closing Date, the Underwriters shall have
received from Milbank, Tweed, Hadley & McCloy, counsel for the Company, an
opinion (subject to the same reservation as that expressed in subsection
(c) of this Section 4), in form and substance satisfactory to
Underwriters' Counsel, to the same effect, in general, with respect to all
matters enumerated in subsection (c) of this Section 4.
(e) At or prior to the Closing Date, the Underwriters shall have
received from Doerner, Stuart, Saunders, Daniel & Anderson, Tulsa,
Oklahoma, Oklahoma counsel for the Company, an opinion, in form and
substance satisfactory to Underwriters' Counsel, to the same effect, in
general, with respect to the matters enumerated in subdivisions (i), (ii),
(iii), (v) and (x) of subsection (c) of this Section 4, and to the further
effect that:
(i) the Company is a validly organized and 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; the Company generates and
supplies electric light and power to the public only in the State of
Oklahoma;
(ii) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
(iii) 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 the opinion
of said counsel, 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;
(iv) the issue and sale of the Offered Securities and the
First Mortgage Bonds by the Company in accordance with the terms of
the Underwriting Agreement have been duly and validly authorized by
all necessary corporate action; the Offered Securities, when duly
executed, authenticated and delivered to the Underwriters, against
payment to the Company of the agreed consideration therefor, and the
First Mortgage Bonds when duly executed, and authenticated and
delivered to the First Mortgage Trustee will be (subject to the
qualifications stated in paragraph (iii) above) valid and binding
obligations of the Company and, in the case of the First Mortgage
Bonds, secured by the lien of and entitled to the benefits of the
First Mortgage Indenture;
(v) 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 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;
(vi) the First Mortgage 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
such filing constitutes all of the action required under the laws of
the State of Oklahoma to give notice of the lien of the First
Mortgage Indenture;
(vii) 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;
(viii) the execution and delivery by the Company of the
Supplemental Indenture relating to the Offered Securities and
issuance and sale of the Offered Securities by the Company upon
terms consistent with the Underwriting Agreement have been
authorized by an Order and Certificate of Authority of the
Corporation Commission of the State of Oklahoma, which Order has
been duly entered and, to the best of said counsel's 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 Offered Securities may have been
or are to be offered for sale or sold) is necessary with respect to
the execution and delivery of the Indenture or the issuance and sale
of the Offered Securities by the Company to you as contemplated by
the Underwriting Agreement.
(ix) except as set forth in the Prospectus or the Prospectus
Supplement, to the best of the knowledge of said counsel 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 said counsel's knowledge, no such
litigation or proceedings are contemplated; there may be excepted
various routine litigation, claims and other proceedings, which are
common or incident to the business in which the Company is engaged
but which, in the aggregate, are not significant (in the opinion of
said counsel) from the standpoint of the total assets and overall
operations of the Company; and
(x) the statements, if any, made in the Prospectus or the
Prospectus Supplement which are stated therein to have been made on
authority of said counsel, have been reviewed by said counsel and,
as to matters of law or legal conditions, are correct.
(f) At or prior to the Closing Date, the Underwriters shall have
received from Wagstaff, Alvis, Stubbeman, Seamster & Longacre, L.P.P.,
Abilene, Texas, Texas counsel for the Company, an opinion, in form and
substance satisfactory to Underwriters' Counsel, to the effect 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 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 said counsel's opinion, make such
remedies inadequate for the realization of the benefits of such
security;
(iv) the First Mortgage Indenture has been duly recorded as a
utility security instrument in the office of the Secretary of State
of Texas 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 Offered Securities and the
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; and
(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 Indenture and the
First Mortgage Indenture or the issuance and sale of the Offered
Securities and the First Mortgage Bonds by the Company to the
Underwriters as contemplated by the Underwriting Agreement.
(g) At or prior to the Closing Date, the Underwriters shall have
received from Arthur Andersen LLP a letter confirming that they are
independent public accountants with respect to the Company within the
meaning of the Securities 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 Securities 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 Exchange 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 Closing Date,
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 Managers; 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 Managers.
(v) The form of letter shall reflect the inclusion of any subsequently
dated financial information, 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 (g) which is, in the judgment of the Managers, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or the delivery of the Offered Securities as contemplated by the
Registration Statement and the Prospectus.
(h) At the Closing Date the Managers shall have received a
certificate, dated as of the Closing Date, signed by the President or a
Vice President and the Treasurer or the Secretary of the Company, to the
effect that (i) to the best of the knowledge of the signers, no stop order
suspending the effectiveness of the Registration Statement has been issued
under the Securities Act and no proceedings therefor have been instituted
or threatened by the Commission, (ii) the order of the Oklahoma Commission
referred to in subsection (b) of Section 1 of the Underwriting Agreement
is, to the best of the knowledge of the signers, in full force and effect,
and (iii) since the respective dates as of which information is given in
the Registration Statement or Prospectus, 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 the Prospectus (including financial statements and notes
thereto contained in the Incorporated Documents).
(i) All proceedings to be taken in connection with the issuance and
sale of the Offered Securities by the Company as contemplated in the
Underwriting Agreement shall be satisfactory in form and substance to
Underwriters' Counsel.
In case any of the conditions specified in this Section 4 shall not
have been fulfilled, the Underwriting Agreement may be terminated by the
Managers with the consent of Underwriters who have agreed to purchase in
the aggregate more than fifty percent of the total principal amount of the
Offered Securities upon delivering written notice thereof to the Company.
Any such termination shall be without liability of any party to any other
party except as otherwise provided in subsection (f) of Section 3 of the
Underwriting Agreement.
5. Indemnification.
(a) The Company agrees to indemnify and hold harmless each of the
Underwriters and each person, if any, who controls any of the Underwriters
within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages or
liabilities, joint or several, to which such Underwriter or such
controlling person may become subject under the Securities Act, the
Exchange Act or the common law or otherwise, and to reimburse each such
Underwriter 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 (1) the Registration Statement or any amendment to the
Registration Statement 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, or (2) the Prospectus or the
Prospectus as amended or supplemented, if such losses, claims, damages or
liabilities arise out of or are based upon the use of the Prospectus or
the Prospectus as amended or supplemented after the Company shall have
amended or supplemented the Prospectus, or any omission or alleged
omission to state therein 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 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 Underwriters 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 Underwriter to deliver
(either directly or through the Managers) a copy of the Prospectus
(excluding the Incorporated Documents), or of the Prospectus as amended or
supplemented after it shall have been amended or supplemented by the
Company (excluding the Incorporated Documents), to any person to whom a
copy of any preliminary prospectus shall have been delivered by or on
behalf of such Underwriter to whom any Offered Securities shall have been
sold by such Underwriter, as such delivery may be required by the
Securities Act and the rules and regulations of the Commission thereunder.
(b) Each of the Underwriters 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 Securities Act or Section 20 of the Exchange
Act, each other Underwriter and each person, if any, who so controls any
such other Underwriter, 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 Securities Act, the Exchange 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 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 Underwriter
for use in the Registration Statement or the Prospectus or any amendment
or supplement to either thereof, or (ii) the failure of such Underwriter
to deliver (either directly or through the Managers) a copy of the
Prospectus (excluding the Incorporated Documents), or of the Prospectus as
amended or supplemented after it shall have been amended or supplemented
by the Company (excluding the Incorporated Documents), to any person to
whom a copy of any preliminary prospectus shall have been delivered by or
on behalf of such Underwriter and to whom any Offered Securities shall
have been sold by such Underwriter, as such delivery may be required by
the Securities Act and the rules and regulations of the Commission
thereunder.
(c) Promptly after receipt by a party indemnified under this
Section 5 (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 5 (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 5. 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 5 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 Managers 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
the 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 5 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 5 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 Securities
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 Underwriters 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 5 and the representations and warranties of the Company in the
Underwriting Agreement shall remain operative and in full force regardless
of (i) any termination of the Underwriting Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter 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 Offered Securities.
6. Termination.
(a) If the Offered Securities are being purchased for the purpose
of resale, the Underwriting Agreement may be terminated, at any time prior
to the Closing Date, by the Managers with the consent of Underwriters who
have agreed to purchase in the aggregate more than fifty percent of the
total principal amount of the Offered Securities, if (a) there shall have
occurred any general suspension or material limitation on trading in
securities on the New York Stock Exchange or by the Commission or by any
federal or state agency or by the decision of any court, any limitation on
prices for such trading or any restrictions on the distribution of
securities, (b) trading in any securities of the Company shall have been
suspended by the Commission or a national securities exchange, (c) a
general banking moratorium on commercial banking activities in New York
shall have been declared either by federal or New York State authorities,
(d) the rating assigned by any nationally recognized securities rating
agency to any securities of the Company as of the date of the Underwriting
Agreement shall have been lowered since that date, or (e) 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 Managers,
impracticable to market the Offered Securities.
(b) Any termination of the Underwriting Agreement pursuant to this
Section 6 shall be without liability of any party to any other party
except as otherwise provided in subsection (f) of Section 3.
7. Default by an Underwriter.
If any one or more Underwriters shall fail to purchase and pay for
any of the Offered Securities agreed to be purchased by such Underwriter
or Underwriters hereunder and such failure to purchase shall constitute a
default in the performance of its or their obligations under the
Underwriting Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
amount of Offered Securities set forth opposite their names in Schedule I
to the Underwriting Agreement bears to the aggregate amount of Offered
Securities set opposite the names of all the remaining Underwriters) the
Offered Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase; provided, however, that in the event that the
aggregate amount of Offered Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase (less such aggregate amount of
Offered Securities as are purchased by substituted underwriters selected
by the Managers with the approval of the Company or selected by the
Company with the approval of the Managers) shall exceed 10% of the
aggregate amount of Offered Securities set forth in such Schedule I, the
remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Offered Securities, and if
such nondefaulting Underwriters do not purchase all the Offered
Securities, the Underwriting Agreement will terminate without liability to
any nondefaulting Underwriter or the Company (except as otherwise provided
in subsection (f) of Section 3). In the event of a default by an
Underwriter as set forth in this Section 7, the Closing Date shall be
postponed for such period, not exceeding seven calendar days, as the
Company and the Managers shall determine in order that the required
changes in the Registration Statement and the Prospectus or in any other
documents or arrangements may be effected. Nothing contained in the
Underwriting Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default thereunder.
8. Notice.
All communications under the Underwriting Agreement will be
effective only on receipt, and, if sent to the Managers, will be mailed,
delivered or telegraphed and confirmed to them, at the address, or
telephoned to them at the number, specified in the Underwriting Agreement
and to Sidley & Austin, One First National Plaza, Chicago, Illinois 60603,
attention: Wilbur C. Delp, Jr.; or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it in care of Central
and South West Corporation, 1616 Woodall Rodgers Freeway, P.O. Box 660164,
Dallas, Texas 75202, attention of Stephen D. Wise, in each case with
written confirmation of such communication sent to Milbank, Tweed, Hadley
& McCloy, 1 Chase Manhattan Plaza, New York, New York 10005, attention
Robert B. Williams, Esq.
9. Successors.
The Underwriting Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 5 of
the Underwriting Agreement, and no other person will have any right or
obligation hereunder and no other person (including a purchaser, as a
purchaser, from any Underwriter of any of the Offered Securities) shall
acquire or have any rights under or by virtue of the Underwriting
Agreement.
10. Governing Law.
The Underwriting Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
EXHIBIT 4(a)
PUBLIC SERVICE COMPANY OF OKLAHOMA
and
LIBERTY BANK AND TRUST COMPANY OF TULSA,
NATIONAL ASSOCIATION, Trustee
___________________
INDENTURE
Dated as of __________ __, 1996
___________________
Senior Notes
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of _________ __, 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 . . . . . . . . . . . . . . . . . . . . . . .
Officers' Certificate. . . . . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . 5
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. . . . . . . . . . . . 7
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 . . . . . . . . . . . . . . . . . . . . . . . . 8
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 . . . . . . . . . . . 12
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . 12
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . 13
SECTION 108. Effect of Headings and Table of Contents. . . . . . . . . . 13
SECTION 109. Successors and Assigns. . . . . . . . . . . . . . . . . . . 13
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . . . 13
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . 13
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 114. No Recourse Against Others. . . . . . . . . . . . . . . . . 14
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 . . . . . . . . . . . . . . . . 17
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 . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 304. Temporary Securities. . . . . . . . . . . . . . . . . . . . 27
SECTION 305. Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 307. Payment of Interest; Interest Rights
Preserved. . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . 31
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . 32
SECTION 311. Global Securities . . . . . . . . . . . . . . . . . . . . . 32
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. . . . . . . . . . . . . . . . . 35
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. . . . . . . . . . . . . . 42
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities. . . . . . . . . . . . . . . . . . . . . 42
SECTION 506. Application of Money Collected. . . . . . . . . . . . . . . 43
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . 44
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. . . . . . . . . . . . . . . 45
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . 45
SECTION 512. Control by Holders. . . . . . . . . . . . . . . . . . . . . 45
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . 45
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . 46
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
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 . . . . . . . . . . . . . 67
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . 67
SECTION 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . 67
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. . . . . . . . . . . 75
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 . . . . . . . . . . . . . . . . . . . . . . . 78
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 . . . . . . . . . . . . . . . . . . . . 80
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
ARTICLE FOURTEEN
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 1401. Counterparts.. . . . . . . . . . . . . . . . . . . . . . . 82
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SIGNATURE AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
INDENTURE, dated as of __________ __, 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, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller or any assistant
controller or any other 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 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.
____________________,
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 of the Trustee in [_______________], 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 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 60 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.
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.
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 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.
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);
(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), 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:
Title:
Attest:
_________________________
Name:
Title:
[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.
_____________________________
<PAGE>
EXHIBIT 5
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, New York 10005
February 15, 1996
Public Service Company of Oklahoma
212 East 6th Street
Tulsa, Oklahoma 74119
Re: Public Service Company of Oklahoma
Senior Notes
Ladies and Gentlemen:
We are acting as special counsel for Public Service Company of
Oklahoma, an Oklahoma corporation (the "Company"), in connection with the
proposed public offering from time to time of up to $75,000,000 principal
amount of the Company's Senior Notes (the "Senior Notes"), to be issued in one
or more series pursuant to a Senior Note Indenture (the "Senior Note
Indenture"), proposed to be entered into between the Company and Liberty Bank
and Trust Company of Tulsa, National Association, as trustee, and to be
amended by one or more Supplemental Indentures to be entered into in
connection with the creation and issuance of each series of Senior Notes
(each, a "Supplemental Indenture"). In connection with the proposed offering,
the Company proposes to file a registration statement on Form S-3 (the
"Registration Statement") with the Securities and Exchange Commission for the
purpose of registering the Senior Notes under the Securities Act of 1933, as
amended, for sale pursuant to one or more underwriting or similar agreements
(each, an "Underwriting Agreement").
We have examined originals, or copies certified to our
satisfaction, of such corporate records of the Company, certificates of public
officials, certificates of officers and representatives of the Company and
other documents as we have deemed necessary 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. 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.
Based on the foregoing, and having regard to legal considerations
which we deem relevant, we are of the opinion that when the Senior Note
Indenture is duly authorized, executed and delivered, and when the
Supplemental Indenture with respect to a series of Senior Notes has been duly
authorized, executed and delivered, and when the Senior Notes of such series
have been duly authorized, executed, authenticated and issued in accordance
with the terms of the Senior Note Indenture and the applicable Supplemental
Indenture and delivered against payment therefor in accordance with the terms
of the applicable Underwriting Agreement, the Senior Notes of such series will
constitute legal, valid and binding obligations of the Company, entitled to
the benefits of, and subject to the provisions of, the Senior Note Indenture
and the applicable Supplemental Indenture, subject, however, to the fact that
certain of the remedial or procedural provisions contained in the Senior Note
Indenture may be limited or rendered unenforceable by the laws of the States
wherein any mortgaged property is situated (but said laws do not, in our
opinion, make the remedies and procedures afforded by the Senior Note
Indenture inadequate for the practical 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.
We do not express any opinion as to matters governed by any laws
other than the laws of the State of New York and the Federal laws of the
United States of America.
We hereby consent to the reference to us under the heading "Legal
Opinions" in the Prospectus constituting a part of the Registration Statement
and to the filing of this opinion as Exhibit 5 to the Registration Statement.
Very truly yours,
Milbank, Tweed, Hadley & McCloy
RBW/DBB,Jr.
<PAGE>
EXHIBIT 12(b)
PUBLIC SERVICE COMPANY OF OKLAHOMA (CONSOLIDATED)
RATIO OF EARNINGS TO FIXED CHARGES
FOR THE TWELVE MONTHS ENDED DECEMBER 31, 1995
(Thousands except Ratio)
(Unaudited)
Operating Income $111,769
Adjustments:
Federal and state income taxes 37,491
Provision for deferred Federal
and state income taxes 2,703
Deferred investment tax credits <2,789>
Other income and deductions 2,274
Allowance for borrowed and
equity funds used during
construction 3,734
Interest portion of financing
leases __
--------
Earnings $155,182
========
Fixed Charges:
Interest on long-term debt $ 29,594
Amortization of debt issuance cost __
Interest on short-term debt and other 6,355
Interest portion of financing
leases __
--------
Fixed Charges $ 35,949
========
Ratio of Earnings to Fixed Charges 4.32
========
<PAGE>
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
February 13, 1995, included in Public Service Company of Oklahoma's Annual
Report on Form 10-K for the year ended December 31, 1994, and to all
references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Tulsa, Oklahoma
February 15, 1996
<PAGE>
EXHIBIT 25(a)
Registration No. 333-
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) X .
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
LIBERTY BANK AND TRUST COMPANY OF TULSA,
NATIONAL ASSOCIATION
I.R.S. Employer Identification No. 73-0241869
(Formerly Named: The First National Bank
and Trust Company of Tulsa)
(Exact name of Trustee as specified in its Charter)
15 East Fifth Street, Tulsa, Oklahoma 74103
(Address and zip code of principal executive offices)
Craig R. Cunningham, Vice President and Trust Officer
15 East Fifth Street
Tulsa, Oklahoma 74103
(918) 586-5763
(Name, address and telephone number of
agent for service)
PUBLIC SERVICE COMPANY OF OKLAHOMA
I.R.S. Employer Identification No. 73-0410895
(Name of Obligor)
212 East Sixth Street
Tulsa, Oklahoma 74119-1212
(Address and zip code of principal executive offices)
Incorporated Under Laws of the State of Oklahoma
(State of Incorporation)
First Mortgage Bonds, Series X, ___ %, due _________ ,
together with all securities registered
pursuant to the delayed offering registration statement
(Title of the indenture securities)
Item 1. GENERAL INFORMATION
a) The Trustee is a national banking association
and subject to supervision and examination by:
(i) The Comptroller of the Currency;
(ii) The Board of Governors of the Federal
Reserve System;
(iii) The Federal Deposit Insurance
Corporation; and
(iv) The Oklahoma Banking Department
b) The Trustee is authorized to exercise trust
powers.
Item 2. AFFILIATIONS WITH THE OBLIGOR
The Trustee is not affiliated with the Obligor
within the meaning of the definition of such term in Rule
0-2 of the General Rules and Regulations under the Trust
Indenture Act of 1939, as amended ("Act").
Item 3. VOTING SECURITIES OF THE TRUSTEE
As of the close of business on January 31, 1996, the
issued and outstanding voting securities of the Trustee
consisted of:
Column A Column B
Title of Class Amount of Outstanding
Common Stock, 1,692,200 Shares
$10.00 par value
Item 4. TRUSTEESHIPS UNDER OTHER INDENTURES
The Trustee is the Trustee of the following
Securities of the Obligor:
a) Titles of the securities outstanding under each
such other indenture:
Public Service Company of Oklahoma First Mortgage
Bonds, Series J, 5-1/4%, due March 1, 1996
Public Service Company of Oklahoma First Mortgage
Bonds, Series K, 7-1/4%, due January 1, 1999
Public Service Company of Oklahoma First Mortgage
Bonds, Series L, 7-3/8%, due March 1, 2002
Public Service Company of Oklahoma First Mortgage
Bonds, Series M, 8-1/4%, due January 1, 2004
Public Service Company of Oklahoma First Mortgage
Bonds, Series N, 8-3/4%, due June 1, 2005
Public Service Company of Oklahoma First Mortgage
Bonds, Series R, 9%, due May 1, 2016
Public Service Company of Oklahoma First Mortgage
Bonds, Series S, 7-1/4%, due July 1, 2003.
Public Service Company of Oklahoma First Mortgage
Bonds, Series T, 7-3/8%, due December 1, 2004
Public Service Company of Oklahoma First Mortgage
Bonds, Series U, 6-1/4%, due April 1, 2003
Public Service Company of Oklahoma First Mortgage
Bonds, Series V, 7-3/8%, due April 1, 2023
Public Service Company of Oklahoma First Mortgage
Bonds, Series W, 6-1/2%, due June 1, 2005
Public Service Company of Oklahoma First Mortgage
Bonds, Series X, ________, due _______________
Public Service Company of Oklahoma Senior Notes,
_______%, due _________________
b) The following is a brief statement of the facts
relied upon as a basis for the claim that no conflicting
interest within the meaning of Section 316(b)(1) in the
Act arises as a result of the Trusteeship under any such
other indenture, including a statement of how the
indenture securities will rank as compared with the
securities issued under such other indentures.
First Mortgage Bonds listed above in answer to Item
4(a) are outstanding and secured by an Indenture dated
July 1, 1945 and various supplements thereto, which
Indenture and supplements have been executed on various
dates by Public Service Company of Oklahoma to The First
National Bank and Trust Company of Tulsa, or its
successor, Liberty Bank and Trust Company of Tulsa,
National Association, as Trustee. The First Mortgage
Bonds will be issued under said Indenture dated July 1,
1945, and Supplemental Indentures dated February 1, 1948;
April 1, 1951; March 1, 1953; February 1, 1954;
February 1, 1957; May 1, 1958; January 1, 1963; March 1,
1966; January 1, 1969; March 1, 1972; June 1, 1975;
June 1, 1979; December 1, 1979; March 1, 1983; May 1,
1986; July 1, 1992; December 1, 1992; April 1, 1993;
June 1, 1993 (all of which were heretofore qualified
under the Act) and a Supplemental Indenture to be dated
as of ______________, 1996. All of the above-described
securities are of equal rank.
Senior Notes listed above in answer to Item 4(a) are
outstanding and secured by an Indenture dated
___________, 1996 which Indenture has been executed by
Public Service Company of Oklahoma to Liberty Bank and
Trust Company of Tulsa, National Association, as Trustee.
Item 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH
THE OBLIGOR OR UNDERWRITERS
Neither the Trustee nor any of its directors or
executive officers is a director, officer, partner,
employer, appointee or representative of the Obligor or
of any underwriter for the Obligor.
Item 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR
ITS OFFICIALS
The Obligor and its directors and officers taken as
a group did not own beneficially as of the close of
business on January 31, 1996, more than 1 percent of the
outstanding voting securities of the Trustee.
Item 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR
THEIR OFFICIALS.
No present single underwriter, its directors,
partners and executive officers owned beneficially as of
the close of business on January 31, 1996, as a group,
more than 1 percent of the outstanding voting securities
of the Trustee.
Item 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE
As of the close of business on January 31, 1996, no
securities of the Obligor were owned beneficially by the
Trustee or held by it as collateral security for
obligations in default.
Item 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE
As of the close of business January 31, 1996,
(See Note, page 6.)
Item 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES
OF CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR
As of the close of business on January 31, 1996, the
Trustee did not own beneficially or hold as collateral
security for any obligation in default voting securities
of a person who, to its knowledge, (1) owns 10 percent or
more of the voting securities of the Obligor or (2) under
which any other securities of the Obligor are
outstanding. The other indentures of the Obligor for
which the Trustee is a trustee are listed under Item 4.
Item 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF
A PERSON OWNING 50 PERCENT OR MORE OF THE VOTING
SECURITIES OF THE OBLIGOR
As of the close of business on January 31, 1996, the
Trustee did not own beneficially or hold as collateral
security for obligations in default any securities of a
person who, to the knowledge of the Trustee, owns 50
percent or more the voting securities of the Obligor.
Item 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE
As of the close of business on January 31, 1996, the
Obligor was not indebted to the Trustee in respect of any
indebtedness to be reported under Item 12 and it had not
established any credit line or borrowing relationship
with the Trustee.
Item 13. DEFAULTS BY THE OBLIGOR
a) As of the close of business on January 31,
1996, there had not occurred any default on the part of
the Obligor in respect to the securities under this
indenture.
b) As of the close of business on January 31,
1996, there had not occurred any default on the part of
the Obligor under any other indenture.
NOTE
The answers to this statement insofar as such
answers relate to what persons have been underwriters for
any securities of the Obligor within three years prior to
the date of filing this statement, or are owners of 10
percent or more of the voting securities of the Obligor,
or affiliates, are based upon information in--writing
furnished to the Trustee by the Obligor, and upon which
the Trustee has relied for the purposes of this document.
Inasmuch as this statement is filed prior to the
determination of underwriters of the indenture
securities, the answers to Items 5, 7, 9, and 14 are
based on incomplete information. To the best of our
knowledge and belief, however, there is no person, firm
or corporation ordinarily engaged in underwriting
securities:
1) which is an affiliate of the Trustee;
2) of which any director or executive officer
of the Trustee is a director, partner,
employee, appointee or representative;
3) which individually owns, beneficially, or
whose directors, partners and executive
officers collectively own, beneficially,
more than 1 percent of the outstanding
Common Stock of the Trustee; or,
4) whose securities are owned beneficially by
the Trustee or held by the Trustee as
collateral security for obligations in
default.
This statement may therefore be considered as
correct unless amended contemporaneously with the filing
by the Obligor of the Amendment to its Registration
Statement disclosing underwriters for the indenture
securities.
Item 14. AFFILIATIONS WITH THE UNDERWRITERS
To the best knowledge and belief of the Trustee no
underwriter of securities of the Obligor is an affiliate
of the Trustee.
(See Note, page 6.)
Item 15. FOREIGN TRUSTEE
The Trustee is not a foreign trustee but a national
banking association organized and existing under the
banking laws of the United States of America.
Item 16. LIST OF EXHIBITS
Exhibit (1) The Articles of Association of the
Trustee as now in effect.
Exhibit (2)(a) The Certificate of Authority of the
Trustee to commence business
Exhibit (2)(b) The Certificate approving consolidation
Exhibit (3)(a) The authorization of the Trustee to
exercise corporate trust powers
Exhibit (3)(b) The authorization from the Federal
Reserve Bank to do Trustee business
Exhibit (4) The By-Laws of the Trustee as presently
in existence.
Note: Exhibits 1, 2, 3 and 4 are incorporated
herein by reference to the same numbers
in Registration No. 33-48650.
Exhibit (6) The consent of the Trustee required by
Section 321(b) of the Act.
Exhibit (7) A copy of the latest report of
condition of the Trustee published
pursuant to Law or the requirements of
its supervising or examining authority,
being as of the close of business on
December 31, 1995.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, the Trustee, 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, has duly
caused this statement of eligibility to be signed on its behalf by
the undersigned, thereunto duly authorized, all in the City of
Tulsa, and State of Oklahoma, on the 15th day of February, 1996.
LIBERTY BANK AND TRUST COMPANY
OF TULSA, NATIONAL ASSOCIATION
By:/s/ CRAIG R. CUNNINGHAM
Craig R. Cunningham,
Vice President and Trust
Officer
EXHIBIT 6
February 15, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
Pursuant to the provisions of the last sentence of the first
paragraph of subsection (b) of Section 321 of the Trust Indenture
Act of 1939, as amended, and subject to the conditions contained in
the second paragraph of said subsection (b), Liberty Bank and Trust
Company of Tulsa, N.A., a national banking association, hereby
consents, in connection with the qualification of the Supplemental
Indenture dated as of ______________, 1996, of Public Service
Company of Oklahoma First Mortgage Bonds, Series X, __________ %,
due ___________________ referred to in the Statement of Eligibility
filed by the undersigned under said Act, that reports of
examinations of it by Federal authorities and authorities of the
State of Oklahoma may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Sincerely,
LIBERTY BANK AND TRUST COMPANY
OF TULSA, NATIONAL ASSOCIATION
By:/s/ CRAIG R. CUNNINGHAM
Craig R. Cunningham,
Vice President and Trust
Officer
EXHIBIT 7
A copy of the latest report of conditions of the
trustee published pursuant to law or the requirements of its
supervising or examining authority.
<TABLE>
Liberty Bank and Trust Company of Tulsa
National Association
Balance Sheet
(Thousands)
<CAPTION>
ASSETS
<S> <C>
1. Cash and balances due from depository institutions:
a. Noninterest-bearing balances and currency and coin(1).......... 74,316
b. Interest-bearing balances(2) .................................. 306
2. Securities:
a. Held-to-maturity securities.................................. 75,519
b. Available-for-sale securities ............................... 218,855
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
a. Federal funds sold .......................................... 42,501
b. Securities purchased under agreements to resell ............. 16,000
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income ...........|560,685|
b. LESS: Allowance for loan and lease losses .........| 4,654|
c. LESS: Allowance transfer risk reserve .............| 0|
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c) ......... 556,031
5. Trading assets.................................................... 4,942
6. Premises and fixed assets (including capitalized leases).......... 12,116
7. Other real estate owned .......................................... 302
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M)..............................................
0
9. Customers' liability to this bank on acceptances outstanding .....
75
10. Intangible assets ................................................ 1,386
11. Other assets...................................................... 26,648
12. Total assets (sum of items 1 through 11)......................... 1,028,997
____________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
LIABILITIES
13. Deposits:
a. In domestic offices....................................... 729,980
(1) Noninterest-bearing(3) .................... | 207,585|
(2) Interest-bearing .......................... | 522,395|
b. In foreign offices, Edge and Agreement subsidiaries,
and IBFs................................................... 129,096
(1) Noninterest-bearing ....................... | 0|
(2) Interest-bearing .......................... | 129,096|
14. Federal funds purchased and securities sold under agreements to
repurchase in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
a. Federal funds purchased ..................................... 23,970
b. Securities sold under agreements to repurchase .............. 1,300
15. a. Demand notes issued to the U.S. Treasury .................... 13,017
b. Trading liabilities .........................................
0
16. Other borrowed money:
a. With original maturity of one year or less .................. 396
b. With original maturity of more than one year ................ 20,231
17. Mortgage indebtedness and obligations under capitalized
leases............................................................
0
18. Bank's liability on acceptances executed and outstanding..........
75
19. Subordinated notes and debentures ................................
0
20. Other liabilities ................................................ 15,557
21. Total liabilities (sum of items 13 through 20).................... 933,622
22. Limited life preferred stock and related surplus..................
0
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus..................... 10,000
24. Common stock...................................................... 16,922
25. Surplus (exclude all surplus related to preferred stock).......... 23,935
26. a. Undivided profits and capital reserves....................... 41,048
b. Net unrealized holding gains (losses) on available-for-sale
securities................................................. 3,470
27. Cumulative foreign currency translation adjustments...............
0
28. Total equity capital (sum of items 23 through 27)................. 95,375
29. Total liabilities, limited life preferred stock, and equity
capital (sum of items 21, 22, and 28)............................ 1,028,997
</TABLE>
____________
(3) Includes total demand deposits and noninterest-bearing time and saving
deposits.
<PAGE>
EXHIBIT 25(b)
Registration No. 333-______
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) X .
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
LIBERTY BANK AND TRUST COMPANY OF TULSA,
NATIONAL ASSOCIATION
I.R.S. Employer Identification No. 73-0241869
(Formerly Named: The First National Bank
and Trust Company of Tulsa)
(Exact name of Trustee as specified in its Charter)
15 East Fifth Street, Tulsa, Oklahoma 74103
(Address and zip code of principal executive offices)
Craig R. Cunningham, Vice President and Trust Officer
15 East Fifth Street
Tulsa, Oklahoma 74103
(918) 586-5763
(Name, address and telephone number of
agent for service)
PUBLIC SERVICE COMPANY OF OKLAHOMA
I.R.S. Employer Identification No. 73-0410895
(Name of Obligor)
212 East Sixth Street
Tulsa, Oklahoma 74119-1212
(Address and zip code of principal executive offices)
Incorporated Under Laws of the State of Oklahoma
(State of Incorporation)
Senior Notes, _________%, due ________,
together with all securities registered
pursuant to the delayed offering registration statement
(Title of the indenture securities)
Item 1. GENERAL INFORMATION
a) The Trustee is a national banking association
and subject to supervision and examination by:
(i) The Comptroller of the Currency;
(ii) The Board of Governors of the Federal
Reserve System;
(iii) The Federal Deposit Insurance
Corporation; and
(iv) The Oklahoma Banking Department
b) The Trustee is authorized to exercise trust
powers.
Item 2. AFFILIATIONS WITH THE OBLIGOR
The Trustee is not affiliated with the Obligor
within the meaning of the definition of such term in Rule
0-2 of the General Rules and Regulations under the Trust
Indenture Act of 1939, as amended ("Act").
Item 3. VOTING SECURITIES OF THE TRUSTEE
As of the close of business on January 31, 1996, the
issued and outstanding voting securities of the Trustee
consisted of:
Column A Column B
Title of Class Amount of Outstanding
Common Stock, 1,692,200 Shares
$10.00 par value
Item 4. TRUSTEESHIPS UNDER OTHER INDENTURES
The Trustee is the Trustee of the following
securities of the Obligor:
a) Titles of the securities outstanding under each
such other indenture:
Public Service Company of Oklahoma First Mortgage
Bonds, Series J, 5-1/4%, due March 1, 1996
Public Service Company of Oklahoma First Mortgage
Bonds, Series K, 7-1/4%, due January 1, 1999
Public Service Company of Oklahoma First Mortgage
Bonds, Series L, 7-3/8%, due March 1, 2002
Public Service Company of Oklahoma First Mortgage
Bonds, Series M, 8-1/4%, due January 1, 2004
Public Service Company of Oklahoma First Mortgage
Bonds, Series N, 8-3/4%, due June 1, 2005
Public Service Company of Oklahoma First Mortgage
Bonds, Series R, 9%, due May 1, 2016
Public Service Company of Oklahoma First Mortgage
Bonds, Series S, 7-1/4%, due July 1, 2003.
Public Service Company of Oklahoma First Mortgage
Bonds, Series T, 7-3/8%, due December 1, 2004
Public Service Company of Oklahoma First Mortgage
Bonds, Series U, 6-1/4%, due April 1, 2003
Public Service Company of Oklahoma First Mortgage
Bonds, Series V, 7-3/8%, due April 1, 2023
Public Service Company of Oklahoma First Mortgage
Bonds, Series W, 6-1/2%, due June 1, 2005
Public Service Company of Oklahoma First Mortgage
Bonds, Series X, _______%, due _________________
Public Service Company of Oklahoma Senior Notes,
_______%, due _________________
b) The following is a brief statement of the facts
relied upon as a basis for the claim that no conflicting
interest within the meaning of Section 316(b)(1) in the
Act arises as a result of the Trusteeship under any such
other indenture, including a statement of how the
indenture securities will rank as compared with the
securities issued under such other indentures.
First Mortgage Bonds listed above in answer to Item
4(a) are outstanding and secured by an Indenture dated
July 1, 1945 and various supplements thereto, which
Indenture and supplements have been executed on various
dates by Public Service Company of Oklahoma to The First
National Bank and Trust Company of Tulsa, or its
successor, Liberty Bank and Trust Company of Tulsa,
National Association, as Trustee. The First Mortgage
Bonds will be issued under said Indenture dated July 1,
1945, and Supplemental Indentures dated February 1, 1948;
April 1, 1951; March 1, 1953; February 1, 1954;
February 1, 1957; May 1, 1958; January 1, 1963; March 1,
1966; January 1, 1969; March 1, 1972; June 1, 1975;
June 1, 1979; December 1, 1979; March 1, 1983; May 1,
1986; July 1, 1992; December 1, 1992; April 1, 1993; June
1, 1993 (all of which were heretofore qualified under the
Act) and a Supplemental Indenture to be dated as of
____________, 1996. All of the above-described
securities are of equal rank.
Senior Notes listed above in answer to Item 4(a) are
outstanding and secured by an Indenture dated
___________, 1996 which Indenture has been executed by
Public Service Company of Oklahoma to Liberty Bank and
Trust Company of Tulsa, National Association, as Trustee.
Item 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH
THE OBLIGOR OR UNDERWRITERS
Neither the Trustee nor any of its directors or
executive officers is a director, officer, partner,
employer, appointee or representative of the Obligor or
of any underwriter for the Obligor.
Item 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR
ITS OFFICIALS
The Obligor and its directors and officers taken as
a group did not own beneficially as of the close of
business on January 31, 1996, more than 1 percent of the
outstanding voting securities of the Trustee.
Item 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR
THEIR OFFICIALS.
No present single underwriter, its directors,
partners and executive officers owned beneficially as of
the close of business on January 31, 1996, as a group,
more than 1 percent of the outstanding voting securities
of the Trustee.
Item 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE
As of the close of business on January 31, 1996, no
securities of the Obligor were owned beneficially by the
Trustee or held by it as collateral security for
obligations in default.
Item 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE
As of the close of business January 31, 1996,
(See Note, page 6.)
Item 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES
OF CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR
As of the close of business on January 31, 1996, the
Trustee did not own beneficially or hold as collateral
security for any obligation in default voting securities
of a person who, to its knowledge, (1) owns 10 percent or
more of the voting securities of the Obligor or (2) under
which any other securities of the Obligor are
outstanding. The other indentures of the Obligor for
which the Trustee is a trustee are listed under Item 4.
Item 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF
A PERSON OWNING 50 PERCENT OR MORE OF THE VOTING
SECURITIES OF THE OBLIGOR
As of the close of business on January 31, 1996, the
Trustee did not own beneficially or hold as collateral
security for obligations in default any securities of a
person who, to the knowledge of the Trustee, owns 50
percent or more the voting securities of the Obligor.
Item 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE
As of the close of business on January 31, 1996, the
Obligor was not indebted to the Trustee in respect of any
indebtedness to be reported under Item 12 and it had not
established any credit line or borrowing relationship
with the Trustee.
Item 13. DEFAULTS BY THE OBLIGOR
a) As of the close of business on January 31,
1996, there had not occurred any default on the part of
the Obligor in respect to the securities under this
indenture.
b) As of the close of business on January 31,
1996, there had not occurred any default on the part of
the Obligor under any other indenture.
NOTE
The answers to this statement insofar as such
answers relate to what persons have been underwriters for
any securities of the Obligor within three years prior to
the date of filing this statement, or are owners of 10
percent or more of the voting securities of the Obligor,
or affiliates, are based upon information in--writing
furnished to the Trustee by the Obligor, and upon which
the Trustee has relied for the purposes of this document.
Inasmuch as this statement is filed prior to the
determination of underwriters of the indenture
securities, the answers to Items 5, 7, 9, and 14 are
based on incomplete information. To the best of our
knowledge and belief, however, there is no person, firm
or corporation ordinarily engaged in underwriting
securities:
1) which is an affiliate of the Trustee;
2) of which any director or executive officer
of the Trustee is a director, partner,
employee, appointee or representative;
3) which individually owns, beneficially, or
whose directors, partners and executive
officers collectively own, beneficially,
more than 1 percent of the outstanding
Common Stock of the Trustee; or,
4) whose securities are owned beneficially by
the Trustee or held by the Trustee as
collateral security for obligations in
default.
This statement may therefore be considered as
correct unless amended contemporaneously with the filing
by the Obligor of the Amendment to its Registration
Statement disclosing underwriters for the indenture
securities.
Item 14. AFFILIATIONS WITH THE UNDERWRITERS
To the best knowledge and belief of the Trustee no
underwriter of securities of the Obligor is an affiliate
of the Trustee.
(See Note, page 6.)
Item 15. FOREIGN TRUSTEE
The Trustee is not a foreign trustee but a national
banking association organized and existing under the
banking laws of the United States of America.
Item 16. LIST OF EXHIBITS
Exhibit (1) The Articles of Association of the
Trustee as now in effect.
Exhibit (2)(a) The Certificate of Authority of the
Trustee to commence business
Exhibit (2)(b) The Certificate approving consolidation
Exhibit (3)(a) The authorization of the Trustee to
exercise corporate trust powers
Exhibit (3)(b) The authorization from the Federal
Reserve Bank to do Trustee business
Exhibit (4) The By-Laws of the Trustee as presently
in existence.
Note: Exhibits 1, 2, 3 and 4 are incorporated
herein by reference to the same numbers
in Registration No. 33-48650.
Exhibit (6) The consent of the Trustee required by
Section 321(b) of the Act.
Exhibit (7) A copy of the latest report of
condition of the Trustee published
pursuant to Law or the requirements of
its supervising or examining authority,
being as of the close of business on
December 31, 1995.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, the Trustee, 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, has duly
caused this statement of eligibility to be signed on its behalf by
the undersigned, thereunto duly authorized, all in the City of
Tulsa, and State of Oklahoma, on the 15th day of February, 1996.
LIBERTY BANK AND TRUST COMPANY
OF TULSA, NATIONAL ASSOCIATION
By:/s/ CRAIG R. CUNNINGHAM
Craig R. Cunningham,
Vice President and Trust
Officer
EXHIBIT 6
February 15, 1996
Securities and Exchange
Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
Pursuant to the provisions of the last sentence of the first
paragraph of subsection (b) of Section 321 of the Trust Indenture
Act of 1939, as amended, and subject to the conditions contained in
the second paragraph of said subsection (b), Liberty Bank and Trust
Company of Tulsa, N.A., a national banking association, hereby
consents, in connection with the qualification of the Indenture
dated as of _________________, 1996, of Public Service Company of
Oklahoma Senior Notes, ___________%, due _______________ referred
to in the Statement of Eligibility filed by the undersigned under
said Act, that reports of examinations of it by Federal authorities
and authorities of the State of Oklahoma may be furnished by such
authorities to the Securities and Exchange Commission upon its
request therefor.
Sincerely,
LIBERTY BANK AND TRUST COMPANY
OF TULSA, NATIONAL ASSOCIATION
By:/s/ CRAIG R. CUNNINGHAM
Craig R. Cunningham,
Vice President and Trust
Officer
CRC:jr
EXHIBIT 7
A copy of the latest report of conditions of the
trustee published pursuant to law or the requirements of its
supervising or examining authority.
<TABLE>
Liberty Bank and Trust Company of Tulsa
National Association
Balance Sheet
(Thousands)
<CAPTION>
ASSETS
<S> <C>
1. Cash and balances due from depository institutions:
a. Noninterest-bearing balances and currency and coin(1).......... 74,316
b. Interest-bearing balances(2) .................................. 306
2. Securities:
a. Held-to-maturity securities.................................. 75,519
b. Available-for-sale securities ............................... 218,855
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
a. Federal funds sold .......................................... 42,501
b. Securities purchased under agreements to resell ............. 16,000
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income ...........|560,685|
b. LESS: Allowance for loan and lease losses .........| 4,654|
c. LESS: Allowance transfer risk reserve .............| 0|
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c) ......... 556,031
5. Trading assets.................................................... 4,942
6. Premises and fixed assets (including capitalized leases).......... 12,116
7. Other real estate owned .......................................... 302
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M)..............................................
0
9. Customers' liability to this bank on acceptances outstanding .....
75
10. Intangible assets ................................................ 1,386
11. Other assets...................................................... 26,648
12. Total assets (sum of items 1 through 11)......................... 1,028,997
____________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
LIABILITIES
13. Deposits:
a. In domestic offices....................................... 729,980
(1) Noninterest-bearing(3) .................... | 207,585|
(2) Interest-bearing .......................... | 522,395|
b. In foreign offices, Edge and Agreement subsidiaries,
and IBFs................................................... 129,096
(1) Noninterest-bearing ....................... | 0|
(2) Interest-bearing .......................... | 129,096|
14. Federal funds purchased and securities sold under agreements to
repurchase in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
a. Federal funds purchased ..................................... 23,970
b. Securities sold under agreements to repurchase .............. 1,300
15. a. Demand notes issued to the U.S. Treasury .................... 13,017
b. Trading liabilities .........................................
0
16. Other borrowed money:
a. With original maturity of one year or less .................. 396
b. With original maturity of more than one year ................ 20,231
17. Mortgage indebtedness and obligations under capitalized
leases............................................................
0
18. Bank's liability on acceptances executed and outstanding..........
75
19. Subordinated notes and debentures ................................
0
20. Other liabilities ................................................ 15,557
21. Total liabilities (sum of items 13 through 20).................... 933,622
22. Limited life preferred stock and related surplus..................
0
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus..................... 10,000
24. Common stock...................................................... 16,922
25. Surplus (exclude all surplus related to preferred stock).......... 23,935
26. a. Undivided profits and capital reserves....................... 41,048
b. Net unrealized holding gains (losses) on available-for-sale
securities................................................. 3,470
27. Cumulative foreign currency translation adjustments...............
0
28. Total equity capital (sum of items 23 through 27)................. 95,375
29. Total liabilities, limited life preferred stock, and equity
capital (sum of items 21, 22, and 28)............................ 1,028,997
</TABLE>
____________
(3) Includes total demand deposits and noninterest-bearing time and saving
deposits.
