FORM OF 9/18/95
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GAS
----
OKLAHOMA ELECTRIC
AND
COMPANY
AND
BOATMEN'S FIRST NATIONAL BANK
OF OKLAHOMA
TRUSTEE
--------
INDENTURE
DATED AS OF , 199
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CROSS REFERENCE SHEET SHOWING THE
LOCATION IN THE INDENTURE OF THE PROVISIONS INSERTED
PURSUANT TO SECTIONS 310 THROUGH 318(A) INCLUSIVE OF
THE TRUST INDENTURE ACT OF 1939
SECTION OF TRUST
INDENTURE ACT SECTION OF INDENTURE PAGE
---------------- ------------------------------------------------- ---------
310 (a)(1) 9.09 33
310 (a)(2) 9.09 33
310 (a)(3) NOT APPLICABLE --
310 (a)(4) NOT APPLICABLE --
310 (a)(5) 9.09 33
310 (b) 9.08 32
310 (c) NOT APPLICABLE --
311 (a) 9.14 34
311 (b) 9.14 34
311 (c) NOT APPLICABLE --
312 (a) 7.01(a) 23
312 (b) 7.01(b) 24
312 (c) 7.01(c) 24
313 (a) 7.03(a) 25
313 (b) 7.03(b) 25
313 (c) 7.03(d) 25
313 (d) 7.03(c) and 703(d) 25
314 (a) 7.02(a), 7.02(b), 7.02(c) and 6.06 24;25;26
314 (b) 6.05 23
Definition of Officers' Certificate, 6.06 and
314 (c)(1) 15.05(a) 4;23;42
314 (c)(2) Definition of Opinion of Counsel and 15.05 4;42
314 (c)(3) NOT APPLICABLE --
314 (d)(1) Definition of Expert and 4.06(b) 3;17
314 (d)(2) Definition of Expert and 4.06(a) 3;17
314 (d)(3) 4.06(a) and 4.06(b) 17
314 (e) 15.05(b) 42
314 (f) NOT APPLICABLE --
315 (a) 9.01 and 9.02 30-32
315 (b) 8.08 30
315 (c) 9.01(a) 30
315 (d) 9.01(b) 30
315 (e) 8.09 30
316 (a) 8.07 29
10.04 36
13.02 40
316 (b) 8.04 28
I
SECTION OF TRUST
INDENTURE ACT SECTION OF INDENTURE PAGE
---------------- ------------------------------------------------- ---------
13.02 40
316 (c) 10.06 36
317 (a)(1) 8.02(b) 27
317 (a)(2) 8.02(c) 27
317 (b) 5.02 21
6.04 22
318 (a) 15.07 43
II
TABLE OF CONTENTS
--------------
PAGE
Parties................................................................. 1
Recitals................................................................ 1
ARTICLE ONE.
DEFINITIONS
SECTION 1.01 -- General............................................. 1
SECTION 1.02 -- Trust Indenture Act................................. 1
SECTION 1.03 -- Definitions......................................... 1
ARTICLE TWO.
FORM, ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
SECTION 2.01 -- Form Generally...................................... 6
SECTION 2.02 -- Form of Trustee's Certificate of Authentication..... 6
SECTION 2.03 -- Amount Unlimited.................................... 6
SECTION 2.04 -- Denominations, Dates, Interest Payment and Record
Dates............................................... 6
SECTION 2.05 -- Execution, Authentication, Delivery and Dating...... 7
SECTION 2.06 -- Exchange and Registration of Transfer of Notes...... 10
SECTION 2.07 -- Mutilated, Destroyed, Lost or Stolen Notes.......... 11
SECTION 2.08 -- Temporary Notes..................................... 11
SECTION 2.09 -- Cancellation of Notes Paid, etc..................... 11
SECTION 2.10 -- Interest Rights Preserved........................... 12
SECTION 2.11 -- Special Record Date................................. 12
SECTION 2.12 -- Payment of Notes.................................... 12
SECTION 2.13 -- Notes Issuable in the Form of a Global Note......... 13
ARTICLE THREE.
REDEMPTION OF NOTES
SECTION 3.01 -- Applicability of Article............................ 14
SECTION 3.02 -- Notice of Redemption; Selection of Notes............ 14
SECTION 3.03 -- Payment of Notes on Redemption; Deposit of
Redemption Price.................................... 15
III
PAGE
ARTICLE FOUR.
SENIOR NOTE FIRST MORTGAGE BONDS
SECTION 4.01 -- Delivery of Initial Series of Senior Note First
Mortgage Bonds...................................... 16
SECTION 4.02 -- Receipt............................................. 16
SECTION 4.03 -- Senior Note First Mortgage Bonds Held by the
Trustee............................................. 16
SECTION 4.04 -- No Transfer of Senior Note First Mortgage Bonds;
Exception........................................... 17
SECTION 4.05 -- Delivery to the Company of All Senior Note First
Mortgage Bonds...................................... 17
SECTION 4.06 -- Fair Value Certificate.............................. 17
SECTION 4.07 -- Further Assurances.................................. 18
SECTION 4.08 -- Exchange and Surrender of Senior Note First Mortgage
Bonds............................................... 18
SECTION 4.09 -- Acceptance of Additional Senior Note First Mortgage
Bonds............................................... 18
SECTION 4.10 -- Terms of Senior Note First Mortgage Bonds........... 19
SECTION 4.11 -- Senior Note First Mortgage Bonds as Security for
Notes............................................... 19
ARTICLE FIVE.
SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS
SECTION 5.01 -- Satisfaction and Discharge.......................... 19
SECTION 5.02 -- Deposited Moneys to be Held in Trust by Trustee..... 21
SECTION 5.03 -- Paying Agent to Repay Moneys Held................... 21
SECTION 5.04 -- Return of Unclaimed Moneys.......................... 21
ARTICLE SIX.
PARTICULAR COVENANTS OF THE COMPANY
SECTION 6.01 -- Payment of Principal, Premium and Interest.......... 21
SECTION 6.02 -- Office for Notices and Payments, etc................ 21
SECTION 6.03 -- Appointments to Fill Vacancies in Trustee's
Office.............................................. 22
SECTION 6.04 -- Provision as to Paying Agent........................ 22
SECTION 6.05 -- Opinions of Counsel................................. 23
SECTION 6.06 -- Certificates to Trustee............................. 23
IV
PAGE
ARTICLE SEVEN.
NOTEHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 7.01 -- Noteholder Lists.................................... 23
SECTION 7.02 -- Securities and Exchange Commission Reports.......... 24
SECTION 7.03 -- Reports by the Trustee.............................. 25
ARTICLE EIGHT.
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON EVENTS OF DEFAULT
SECTION 8.01 -- Events of Default................................... 25
SECTION 8.02 -- Payment of Notes on Default; Suit Therefor.......... 27
SECTION 8.03 -- Application of Moneys Collected by Trustee.......... 28
SECTION 8.04 -- Proceedings by Noteholders.......................... 28
SECTION 8.05 -- Proceedings by Trustee.............................. 29
SECTION 8.06 -- Remedies Cumulative and Continuing.................. 29
SECTION 8.07 -- Direction of Proceedings and Xxxxxx of Defaults by
Majority of Noteholders............................. 29
SECTION 8.08 -- Notice of Default................................... 30
SECTION 8.09 -- Undertaking to Pay Costs............................ 30
ARTICLE NINE.
CONCERNING THE TRUSTEE
SECTION 9.01 -- Duties and Responsibilities of Trustee.............. 30
SECTION 9.02 -- Reliance on Documents, Opinions, etc................ 31
SECTION 9.03 -- No Responsibility for Recitals, etc................. 32
SECTION 9.04 -- Trustee, Authenticating Agent, Paying Agent or
Registrar May Own Notes............................. 32
SECTION 9.05 -- Moneys to be Held in Trust.......................... 32
SECTION 9.06 -- Compensation and Expenses of Trustee................ 32
SECTION 9.07 -- Officers' Certificate as Evidence................... 32
SECTION 9.08 -- Conflicting Interest of Trustee..................... 32
SECTION 9.09 -- Existence and Eligibility of Trustee................ 33
SECTION 9.10 -- Resignation or Removal of Trustee................... 33
SECTION 9.11 -- Appointment of Successor Trustee.................... 33
SECTION 9.12 -- Acceptance by Successor Trustee..................... 34
SECTION 9.13 -- Succession by Xxxxxx, etc........................... 34
SECTION 9.14 -- Limitations on Rights of Trustee as a Creditor...... 34
SECTION 9.15 -- Authenticating Agent................................ 35
V
PAGE
ARTICLE TEN.
CONCERNING THE NOTEHOLDERS
SECTION 10.01 -- Action by Noteholders............................... 35
SECTION 10.02 -- Proof of Execution by Noteholders................... 35
SECTION 10.03 -- Who Deemed Absolute Owners.......................... 36
SECTION 10.04 -- Company-Owned Notes Disregarded..................... 36
SECTION 10.05 -- Revocation of Consents; Future Holders Bound........ 36
SECTION 10.06 -- Record Date for Noteholder Acts..................... 36
ARTICLE ELEVEN.
NOTEHOLDERS' MEETING
SECTION 11.01 -- Purposes of Meetings................................ 37
SECTION 11.02 -- Call of Meetings by Trustee......................... 37
SECTION 11.03 -- Call of Meetings by Company or Noteholders.......... 37
SECTION 11.04 -- Qualifications for Voting........................... 37
SECTION 11.05 -- Regulations......................................... 37
SECTION 11.06 -- Voting.............................................. 38
SECTION 11.07 -- Rights of Trustee or Noteholders not Delayed........ 38
ARTICLE TWELVE.
CONSOLIDATION, MERGER, SALE, TRANSFER OR CONVEYANCE
SECTION 12.01 -- Company May Consolidate, etc. only on Certain
Terms............................................... 38
SECTION 12.02 -- Successor Corporation Substituted................... 39
ARTICLE THIRTEEN.
SUPPLEMENTAL INDENTURES
SECTION 13.01 -- Supplemental Indentures without Consent of
Noteholders......................................... 39
SECTION 13.02 -- Supplemental Indentures with Consent of
Noteholders......................................... 40
SECTION 13.03 -- Compliance with Trust Indenture Act; Effect of
Supplemental Indentures............................. 40
SECTION 13.04 -- Notation on Notes................................... 41
VI
PAGE
SECTION 13.05 -- Evidence of Compliance of Supplemental Indenture to
be Furnished Trustee................................ 41
ARTICLE FOURTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 14.01 -- Indenture and Notes Solely Corporate Obligations.... 41
ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS
SECTION 15.01 -- Provisions Binding on Company's Successor........... 41
SECTION 15.02 -- Official Acts by Successor Corporation.............. 41
SECTION 15.03 -- Notices............................................. 41
SECTION 15.04 -- Governing Law....................................... 42
SECTION 15.05 -- Evidence of Compliance with Conditions Precedent.... 42
SECTION 15.06 -- Business Days....................................... 43
SECTION 15.07 -- Trust Indenture Act to Control...................... 43
SECTION 15.08 -- Table of Contents, Headings, etc.................... 43
SECTION 15.09 -- Execution in Counterparts........................... 43
SECTION 15.10 -- Manner of Mailing Notice to Noteholders............. 43
SECTION 15.11 -- Approval by Trustee of Expert or Counsel............ 43
EXHIBIT A -- Form of Global Note Prior to Release Date........... A-1
EXHIBIT B -- Form of Note Prior to Release Date.................. B-1
EXHIBIT C -- Form of Global Note Following Release Date.......... C-1
EXHIBIT D -- Form of Note Following Release Date................. D-1
VII
THIS INDENTURE, dated as of , 199 , between OKLAHOMA GAS AND
ELECTRIC COMPANY, a corporation duly organized and existing under the laws of
the State of Oklahoma (the "COMPANY"), and Boatmen's First National Bank of
Oklahoma, a national banking association organized and existing under the laws
of the United States of America, as trustee (the "TRUSTEE").
WITNESSETH
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the execution and delivery of this Indenture to provide for the issuance from
time to time of its Senior Notes (the "NOTES"), to be issued as in this
Indenture provided;
WHEREAS, subject to the provisions of Section 4.11 hereof, the Company has
issued a series of Senior Note First Mortgage Bonds (as hereinafter defined) and
has delivered such series to the Trustee to hold in trust for the benefit of the
respective Holders from time to time of the Notes, and, pursuant to the terms
and provisions hereof, the Company may deliver additional Senior Note First
Mortgage Bonds to the Trustee for such purpose or require the Trustee to deliver
to the Company for cancellation any and all Senior Note First Mortgage Bonds
held by the Trustee;
AND WHEREAS, all acts and things necessary to make this Indenture a valid
agreement according to its terms have been done and performed, and the execution
of this Indenture and the issue hereunder of the Notes have in all respects been
duly authorized;
Now THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes are,
and are to be authenticated, issued and delivered, and in consideration of the
premises, of the purchase and acceptance of the Notes by the Holders thereof and
of the sum of one dollar duly paid to it by the Trustee at the execution of this
Indenture, the receipt whereof is hereby acknowledged, the Company covenants and
agrees with the Trustee for the equal and proportionate benefit of the
respective Holders from time to time of the Notes, as follows:
ARTICLE ONE.
DEFINITIONS
SECTION 1.01. GENERAL. The terms defined in this Article One (except as
herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Article One.
SECTION 1.02. TRUST INDENTURE ACT. (a) Whenever this Indenture refers to a
provision of the Trust Indenture Act of 1939, as amended (the "TIA"), such
provision is incorporated by reference in and made a part of this Indenture.
(b) Unless otherwise indicated, all terms used in this Indenture that are
defined by the TIA, defined by the TIA by reference to another statute or
defined by a rule of the Commission under the TIA shall have the meanings
assigned to them in the TIA or such statute or rule as in force on the date of
execution of this Indenture.
SECTION 1.03. DEFINITIONS. For purposes of this Indenture, the following
terms shall have the following meanings.
AUTHENTICATING AGENT:
The term "AUTHENTICATING AGENT" shall mean any agent of the Trustee which
shall be appointed and acting pursuant to Section 9.15 hereof.
1
AUTHORIZED AGENT:
The term "AUTHORIZED AGENT" shall mean any agent of the Company designated
as such by an Officers' Certificate delivered to the Trustee.
BOARD OF DIRECTORS:
The term "BOARD OF DIRECTORS" shall mean the Board of Directors of the
Company or the Executive Committee of such Board or any other duly authorized
committee of such Board.
BOARD RESOLUTION:
The term "BOARD RESOLUTION" shall mean 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:
The term "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 or by the Mortgage Trustee in the case of consents of such
holders that are sought without a meeting.
BUSINESS DAY:
The term "BUSINESS DAY" shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions or trust companies in
the Borough of Manhattan, the City and State of New York, or in the city where
the corporate trust office of the Trustee is located, are obligated or
authorized by law or executive order to close.
COMMISSION:
The term "COMMISSION" shall mean the United States Securities and Exchange
Commission, or if at any time hereafter the Commission is not existing or
performing the duties now assigned to it under the TIA, then the body performing
such duties.
COMPANY:
The term "COMPANY" shall mean the corporation named as the "Company" in the
first paragraph of this Indenture, and its successors and assigns permitted
hereunder.
COMPANY ORDER:
The term "COMPANY ORDER" shall mean a written order signed in the name of
the Company by one of the Chairman, the President, any Vice President, the
Treasurer or an Assistant Treasurer, and the Secretary or an Assistant Secretary
of the Company, and delivered to the Trustee.
CORPORATE TRUST OFFICE OF THE TRUSTEE:
The term "CORPORATE TRUST OFFICE OF THE TRUSTEE", or other similar term,
shall mean the corporate trust office of the Trustee, at which at any particular
time its corporate trust business shall be principally administered, which
office is at the date of the execution of this Indenture located at Boatmen'x
Xxxxx, 000 Xxxxx Xxxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000.
DEPOSITARY:
The term "DEPOSITARY" shall mean, unless otherwise specified in a Company
Order pursuant to Section 2.05 hereof, The Depository Trust Company, New York,
New York, or any successor thereto registered and qualified under the Securities
and Exchange Act of 1934, as amended, or other applicable statute or regulation.
2
EVENT OF DEFAULT:
The term "EVENT OF DEFAULT" shall mean any event specified in Section 8.01,
continued for the period of time, if any, and after the giving of the notice, if
any, therein designated.
EXPERT:
The term "EXPERT" shall mean any officer of the Company familiar with the
terms of the First Mortgage and this Indenture, any law firm, any investment
banking firm, or any other Person, satisfactory in the reasonable judgment of
the Trustee.
FIRST MORTGAGE:
The term "FIRST MORTGAGE" shall mean the Trust Indenture, dated as of
February 1, 1945 from the Company to Boatmen's First National Bank of Oklahoma,
as successor trustee to The First National Bank and Trust Company of Oklahoma
City, as supplemented and amended from time to time.
FIRST MORTGAGE BONDS:
The term "FIRST MORTGAGE BONDS" shall mean all first mortgage bonds issued
by the Company and outstanding under the First Mortgage, other than Senior Note
First Mortgage Bonds.
GLOBAL NOTE:
The term "GLOBAL NOTE" shall mean a Note that pursuant to Section 2.05
hereof is issued to evidence Notes, that is delivered to the Depositary or
pursuant to the instructions of the Depositary and that shall be registered in
the name of the Depositary or its nominee.
INDENTURE:
The term "INDENTURE" shall mean this instrument as originally executed or,
if amended or supplemented as herein provided, as so amended or supplemented.
INTEREST PAYMENT DATE:
The term "INTEREST PAYMENT DATE" shall mean, unless otherwise specified in a
Company Order pursuant to Section 2.05 hereof, (a) each 1 and 1
during the period any Note is outstanding (provided that the first Interest
Payment Date for any Note, the Original Issue Date of which is after a Regular
Record Date but prior to the respective Interest Payment Date, shall be the
Interest Payment Date following the next succeeding Regular Record Date), (b) a
date of maturity of such Note and (c) only with respect to defaulted interest on
such Note, the date established by the Trustee for the payment of such defaulted
interest pursuant to Section 2.11 hereof.
MATURITY:
The term "MATURITY," when used with respect to any Note, shall mean the date
on which the principal of such Note becomes due and payable as therein or herein
provided, whether at the stated maturity thereof or by declaration of
acceleration, redemption or otherwise.
MORTGAGE TRUSTEE:
The term "MORTGAGE TRUSTEE" shall mean the Person serving as trustee at the
time under the First Mortgage.
NOTE OR NOTES:
The terms "NOTE" or "NOTES" shall mean any Note or Notes, as the case may
be, authenticated and delivered under this Indenture, including any Global Note.
3
NOTEHOLDER:
The terms "NOTEHOLDER", "HOLDER OF NOTES" or "HOLDER" shall mean any Person
in whose name at the time a particular Note is registered on the books of the
Trustee kept for that purpose in accordance with the terms hereof.
OFFICERS' CERTIFICATE:
The term "OFFICERS' CERTIFICATE" when used with respect to the Company,
shall mean a certificate signed by one of the Chairman, the President, any Vice
President, the Treasurer or an Assistant Treasurer, and by the Secretary or an
Assistant Secretary of the Company.
OPINION OF COUNSEL:
The term "OPINION OF COUNSEL" shall mean an opinion in writing signed by
legal counsel, who may be an employee of the Company, meeting the applicable
requirements of Section 15.05 hereof. If the Indenture requires the delivery of
an Opinion of Counsel to the Trustee, the text and substance of which has been
previously delivered to the Trustee, the Company may satisfy such requirement by
the delivery by the legal counsel that delivered such previous Opinion of
Counsel of a letter to the Trustee to the effect that the Trustee may rely on
such previous Opinion of Counsel as if such Opinion of Counsel was dated and
delivered the date delivery of such Opinion of Counsel is required. Any Opinion
of Counsel may contain conditions and qualifications satisfactory to the
Trustee.
OPINION OF INDEPENDENT COUNSEL:
The term "OPINION OF INDEPENDENT COUNSEL" shall mean an opinion in writing
signed by legal counsel, who shall not be an employee of the Company, meeting
the applicable requirements of Section 15.05. Any Opinion of Independent Counsel
may contain conditions and qualifications satisfactory to the Trustee.
ORIGINAL ISSUE DATE:
The term "ORIGINAL ISSUE DATE" shall mean for a Note, or portions thereof,
the date upon which it, or such portion, was issued by the Company pursuant to
this Indenture and authenticated by the Trustee (other than in connection with a
transfer, exchange or substitution).
OUTSTANDING:
The term "OUTSTANDING", when used with reference to Notes, shall, subject to
Section 10.04 hereof, mean, as of any particular time, all Notes authenticated
and delivered by the Trustee under this Indenture, except
(a) Notes theretofore cancelled by the Trustee or delivered to the Trustee
for cancellation;
(b) Notes, or portions thereof, for the payment or redemption of which
moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company), provided that if such
Notes are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as provided in Article Three, or provisions
satisfactory to the Trustee shall have been made for giving such notice;
(c) Notes, or portions thereof, that have been paid and discharged or are
deemed to have been paid and discharged pursuant to the provisions of this
Indenture; and
(d) Notes in lieu of or in substitution for which other Notes shall have
been authenticated and delivered, or which have been paid, pursuant to Section
2.07 hereof.
PERSON:
The term "PERSON" shall mean any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization or government or any agent or political subdivision
thereof.
4
PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY:
The term "PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY" shall mean 000 X.
Xxxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000, or such other place where the main
corporate offices of the Company are located as designated in writing to the
Trustee by an Authorized Agent.
REGULAR RECORD DATE:
The term "REGULAR RECORD DATE" shall mean, unless otherwise specified in a
Company Order pursuant to Section 2.05, for an Interest Payment Date for a
particular Note (a) the fifteenth day of the calendar month next preceding each
Interest Payment Date (unless the Interest Payment Date is the date of maturity
of such Note, in which event, the Regular Record Date shall be as described in
clause (b) hereof) and (b) the date of maturity of such Note.
RELATED SERIES OF NOTES
The term "related series of Notes" shall mean, when used in reference to the
First Mortgage Bonds, Collateralized Series due , the % Senior
Notes due and, when used in reference to another series of Senior
Notes First Mortgage Bonds, shall mean the series of Notes which, in connection
with its original authentication and issuance pursuant to Section 2.05 hereof,
such series of Senior Note First Mortgage Bonds were delivered to the Trustee
pursuant to Section 4.09 hereof.
RELATED SERIES OF SENIOR NOTE FIRST MORTGAGE BONDS
The term "related series of Senior Note First Mortgage Bonds" shall mean,
when used in reference to the % Senior Notes due , the First
Mortgage Bonds, Collateralized Series due , and, when used in
reference to any other series of Notes, shall mean the series of Senior Note
First Mortgage Bonds delivered to the Trustee pursuant to Section 4.09 hereof in
connection with the initial authentication and issuance of such series of Notes
pursuant to Section 2.05 hereof.
RELEASE DATE:
The term "RELEASE DATE" shall mean 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 X of the First Mortgage) at, before or after the maturity
thereof.
RESPONSIBLE OFFICER:
The term "RESPONSIBLE OFFICER" or "RESPONSIBLE OFFICERS" when used with
respect to the Trustee shall mean one or more of the following: the chairman of
the board of directors, the vice chairman of the board of directors, the
chairman of the executive committee, the president, any vice president, the
secretary, the treasurer, any trust officer, any assistant trust officer, any
second or assistant vice president, any assistant secretary, any assistant
treasurer, or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
SENIOR NOTE FIRST MORTGAGE BONDS:
The term "SENIOR NOTE FIRST MORTGAGE BONDS" shall mean the First Mortgage
Bonds, Collateral Series due issued by the Company pursuant to
the Supplemental Trust Indenture dated as of , 199 and any other
bonds issued by the Company under the First Mortgage and delivered to the
Trustee pursuant to Section 4.09 hereof.
5
SPECIAL RECORD DATE:
The term "SPECIAL RECORD DATE" shall mean, with respect to any Note, the
date established by the Trustee in connection with the payment of defaulted
interest on such Note pursuant to Section 2.11 hereof.
STATED MATURITY:
The term "STATED MATURITY" shall mean with respect to any Note, the last
date on which principal on such Note becomes due and payable as therein or
herein provided, other than by declaration of acceleration or by redemption.
TRUSTEE:
The term "TRUSTEE" shall mean Boatmen's First National Bank of Oklahoma and,
subject to Article Nine, shall also include any successor Trustee.
U.S. GOVERNMENT OBLIGATIONS:
The term "U.S. GOVERNMENT OBLIGATIONS" shall mean (i) direct non-callable
obligations of, or non-callable obligations guaranteed as to timely payment of
principal and interest by, the United States of America or an agency thereof for
the payment of which obligations or guarantee the full faith and credit of the
United States is pledged or (ii) certificates or receipts representing direct
ownership interests in obligations or specified portions (such as principal or
interest) of obligations described in clause (i) above, which obligations are
held by a custodian in safekeeping.
ARTICLE TWO.
FORM, ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF NOTES
SECTION 2.01. FORM GENERALLY.
(a) If the Notes are in the form of a Global Note they shall be in
substantially the form set forth in EXHIBIT A (or, following the Release Date,
EXHIBIT C) to this Indenture, and, if the Notes are not in the form of a Global
Note, they shall be in substantially the form set forth in EXHIBIT B (or,
following the Release Date, EXHIBIT D) to this Indenture, or, in any case, in
such other form as shall be established by a Board Resolution, or a Company
Order 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 applicable rules
of any securities exchange or of the Depositary or with applicable law or as
may, consistently herewith, be determined by the officers executing such Notes,
as evidenced by their execution of such Notes.
(b) The definitive Notes shall be typed, printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Notes, as evidenced by their execution
of such Notes.
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication on all Notes shall be in substantially
the following form:
6
Trustee's Certificate of Authentication
This Note is one of the Notes of the series herein designated, described or
provided for in the within-mentioned Indenture.
BOATMEN'S FIRST NATIONAL BANK OF
OKLAHOMA, AS TRUSTEE
By: ------------------------------------
AUTHORIZED OFFICER
SECTION 2.03. AMOUNT UNLIMITED. The aggregate principal amount of Notes
that may be authenticated and delivered under this Indenture is unlimited,
subject to compliance with the provisions of this Indenture.
SECTION 2.04. DENOMINATIONS, DATES, INTEREST PAYMENT AND RECORD DATES.
(a) The Notes shall be issuable in registered form without coupons in
denominations of $1,000 and integral multiples thereof or such other amount or
amounts as may be authorized by the Board of Directors or a Company Order
pursuant to a Board Resolution; provided that the principal amount of a Global
Note shall not exceed $200,000,000 unless otherwise permitted by the Depositary.
(b) Each Note shall be dated and issued as of the date of its authentication
by the Trustee, and shall bear an Original Issue Date or, as provided in Section
2.13(e) hereof, two or more Original Issue Dates; each Note issued upon
transfer, exchange or substitution of a Note shall bear the Original Issue Date
or Dates of such transferred, exchanged or substituted Note, subject to the
provisions of Section 2.13(e) hereof.
(c) Each Note shall bear interest from the later of (1) its Original Issue
Date (or, if pursuant to Section 2.13 hereof, a Global Note has two or more
Original Issue Dates, interest shall, beginning on each such Original Issue
Date, begin to accrue for that part of the principal amount of such Global Note
to which that Original Issue Date is applicable), or (2) the most recent date to
which interest has been paid or duly provided for with respect to such Note
until the principal of such Note is paid or made available for payment, and
interest on each Note shall be payable on each Interest Payment Date after the
Original Issue Date.
(d) Each Note shall mature on a date specified in the Note. The principal
amount of each outstanding Note shall be payable on the maturity date specified
therein.
(e) Unless otherwise specified in a Company Order pursuant to Section 2.05,
interest on each of the Notes shall be calculated on the basis of a 360-day year
of twelve 30-day months and shall be computed at a fixed rate until the maturity
of such Notes. The method of computing interest on any Notes not bearing a fixed
rate of interest shall be set forth in a Company Order pursuant to Section 2.05.
Unless otherwise specified in a Company Order pursuant to Section 2.05 hereof,
principal, interest and premium on the Notes shall be payable in the currency of
the United States.
(f) Except as provided in the following sentence, the Person in whose name
any Note is registered at the close of business on any Regular Record Date or
Special Record Date with respect to an Interest Payment Date for such Note shall
be entitled to receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such Note upon any registration of transfer,
exchange or substitution of such Note subsequent to such Regular Record Date or
Special Record Date and prior to such Interest Payment Date. Any interest
payable at maturity shall be paid to the Person to whom the principal of such
Note is payable.
(g) Promptly after each Regular Record Date that is not a date of maturity,
the Trustee shall furnish to the Company a notice setting forth the total amount
of the interest payments to be made on the applicable Interest Payment Date, and
to the Depositary a notice setting forth the total amount of
7
interest payments to be made on Global Notes on such Interest Payment Date. The
Trustee (or any duly selected paying agent) shall provide to the Company during
each month that precedes an Interest Payment Date a list of the principal,
interest and premium to be paid on Notes on such Interest Payment Date and to
the Depositary a list of the principal, interest and premium to be paid on
Global Notes on such Interest Payment Date. Promptly after the first Business
Day of each month, the Trustee shall furnish to the Company a written notice
setting forth the aggregate principal amount of the Global Notes. The Trustee
shall assume responsibility for withholding taxes on interest paid as required
by law except with respect to any Global Note.
SECTION 2.05. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
(a) The Notes shall be executed on behalf of the Company by one of its
Chairman, President, any Vice President, its Treasurer or an Assistant Treasurer
of the Company and attested by the Secretary or an Assistant Secretary of the
Company. The signature of any of these officers on the Notes may be manual or
facsimile.
(b) Notes bearing the manual or facsimile signatures of individuals who were
at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
(c) At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Notes executed by the Company to the
Trustee for authentication, together with or preceded by one or more Company
Orders for the authentication and delivery of such Notes, and the Trustee in
accordance with any such Company Order shall authenticate and deliver such
Notes. The Notes shall be issued in series. Such Company Order shall specify the
following with respect to each series of Notes: (i) any limitations on the
aggregate principal amount of the Notes to be issued as part of such series,
(ii) the Original Issue Date for such series, (iii) the stated maturity of such
series, (iv) the interest rate or rates, or method of calculation of such rate
or rates, for such series, (v) the terms, if any, regarding the optional or
mandatory redemption of such series, including redemption date or dates of such
series, if any, and the price or prices applicable to such redemption (including
any premium), (vi) whether or not the Notes of such series shall be issued in
whole or in part in the form of a Global Note and, if so, the Depositary for
such Global Note, (vii) the designation of such series, (viii) if the form of
the Notes of such series is not as described in EXHIBIT A, EXHIBIT B, EXHIBIT C
or EXHIBIT D hereto, the form of the Notes of such series, (ix) the maximum
annual interest rate, if any, of the Notes permitted for such series, (x) any
other information necessary to complete the Notes of such series, (xi) if prior
to the Release Date, the designation of the series of Senior Note First Mortgage
Bonds being delivered to the Trustee in connection with the issuance of such
series of Notes, (xii) the establishment of any office or agency pursuant to
Section 6.02, and (xiii) any other terms of such series not inconsistent with
this Indenture. Prior to authenticating Notes of any series, and in accepting
the additional responsibilities under this Indenture in relation to such Notes,
the Trustee shall receive from the Company the following at or before the
issuance of the initial Note of such series of Notes, and (subject to Section
9.01 hereof) shall be fully protected in relying upon:
(1) A Board Resolution authorizing such Company Order or Orders and, if the
form of Notes is established by a Board Resolution or a Company Order pursuant
to a Board Resolution, a copy of such Board Resolution;
(2) an Opinion of Counsel stating substantially the following subject to
customary qualifications and exceptions:
(A) if the form of Notes has been established by or pursuant to a Board
Resolution, a Company Order pursuant to a Board Resolution, or in a
supplemental indenture as permitted by Section 2.01, that such form has been
established in conformity with this Indenture;
(B) that the Indenture has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding obligation of the
Company, enforceable against the Company
8
in accordance with its terms, except to the extent that enforcement thereof
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws of general application relating
to or affecting the enforcement of creditors and the application of general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity) and except as enforcement of provisions of
the Indenture may be limited by state laws affecting the remedies for the
enforcement of the security provided for in the Indenture;
(C) if prior to the Release Date, that the Senior Note First Mortgage
Bonds being delivered to the Trustee in connection with the issuance of such
series of Notes have been duly authorized, executed and delivered, and that
such Senior Note First Mortgage Bonds and the First Mortgage are valid and
binding obligations of the Company, enforceable in accordance with their
terms, except to the extent that enforcement thereof may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws of general application relating to or affecting
the enforcement of creditors and the application of general principles of
equity (regardless of whether enforcement is sought in a proceeding at law
or in equity) and except as enforcement of provisions thereof may be limited
by state laws affecting the remedies for the enforcement of the security
provided for in the First Mortgage; and that such Senior Note First Mortgage
Bonds are entitled to the benefit of the First Mortgage, equally and
ratably, with all other first mortgage bonds outstanding thereunder, except
as to sinking fund provisions;
(D) that the Indenture and, if prior to the Release Date, the First
Mortgage are qualified to the extent necessary under the TIA;
(E) that such Notes have been duly authorized and executed by the
Company, and when authenticated 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 binding obligations of the Company,
enforceable in accordance with their terms, except to the extent that
enforcement thereof may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or similar laws of general
application relating to or affecting the enforcement of creditors and the
application of general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity) and except as
enforcement of provisions of this Indenture may be limited by state laws
affecting the remedies for the enforcement of the security provided for in
this Indenture;
(F) that the issuance of the Notes and, if prior to the Release Date,
the delivery by the Company of the Senior Note First Mortgage Bonds in
connection therewith will not result in any default under this Indenture,
the First Mortgage (if applicable), or any other contract, indenture, loan
agreement or other instrument to which the Company is a party or by which it
or any of its property is bound;
(G) that all consents or approvals of Oklahoma Corporation Commission
(or any successor agency) and of any other federal or state regulatory
agency required in connection with the Company's execution and delivery of
this Indenture, such series of Notes and any Senior Note First Mortgage
Bonds have been obtained and not withdrawn (except that no statement need be
made with respect to state securities laws); and
(H) if prior to the Release Date, that the First Mortgage and all
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, and the First Mortgage 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).
(3) If prior to the Release Date, the certificate of an Expert meeting the
requirements of Section 4.06(a) hereof and a series of Senior Note First
Mortgage Bonds meeting the requirements of
9
Section 4.10 hereof (except that, such items need not be delivered in connection
with the issue of the first series of Notes hereunder, as such items have
previously been delivered under Section 4.01 hereof).
(4) an Officer's Certificate stating that (i) the Company is not, and upon
the authentication by the Trustee of the series of Notes, will not be in default
under any of the terms or covenants contained in the Indenture, (ii) all
conditions that must be met by the Company to issue Notes under the Indenture
have been met, and (iii) if prior to the Release Date, the series of Senior Note
First Mortgage Bonds being delivered to the Trustee meets the requirements of
Section 4.10 hereof.
(d) The Trustee shall have the right to decline to authenticate and deliver
any Note:
(1) if the issuance of such Notes pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Notes and this Indenture or
otherwise in a manner that is not reasonably acceptable to the Trustee;
(2) if the Trustee, being advised by counsel, determines that such action
may not lawfully be taken; or
(3) if the Trustee in good faith by its Board of Directors, executive
officers or a trust committee of directors and/or responsible officers
determines that such action would expose the Trustee to personal liability to
Holders of any outstanding Notes.
(e) No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of an authorized officer, and
such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Indenture.
(f) If all Notes of a series are not to be authenticated and issued at one
time, the Company shall not be required to deliver the Company Order, Board
Resolutions, certificate of an Expert, Senior Note First Mortgage Bonds,
Officers' Certificate and Opinion of Counsel (including any such that would be
otherwise required pursuant to Section 15.05) described in Section 2.05(c)
hereof at or prior to the authentication of each Note of such series, if such
items are delivered at or prior to the time of authentication of the first Note
of such series to be authenticated and issued. If all of the Notes of a series
are not authenticated and issued at one time, for each issuance of Notes after
the initial issuance of Notes, the Company shall be required only to deliver to
the Trustee the Note and a written request (executed by one of the Chairman, the
President, any Vice President, the Treasurer, or an Assistant Treasurer, and the
Secretary or an Assistant Secretary of the Company) to the Trustee to
authenticate such Note and to deliver such Note in accordance with the
instructions specified by such request. Any such request 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 Note of such series are true and correct on the date
thereof as if made on and as of the date thereof.
SECTION 2.06. EXCHANGE AND REGISTRATION OF TRANSFER OF NOTES.
(a) Subject to Section 2.13 hereof, Notes may be exchanged for one or more
new Notes of any authorized denominations and of a like aggregate principal
amount, series and stated maturity and having the same terms and Original Issue
Date or Dates. Notes to be exchanged shall be surrendered at any of the offices
or agencies to be maintained pursuant to Section 6.02 hereof, and the Trustee
shall deliver in exchange therefor the Note or Notes which the Noteholder making
the exchange shall be entitled to receive.
(b) The Trustee shall keep, at one of said offices or agencies, a register
or registers in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall register or cause to be registered Notes and shall
register or cause to be registered the transfer of Notes as in this Article Two
provided. Such register shall be in written form or in any other form capable of
being converted into
10
written form within a reasonable time. At all reasonable times, such register
shall be open for inspection by the Company. Upon due presentment for
registration of transfer of any Note at any such office or agency, the Company
shall execute and the Trustee shall register, authenticate and deliver in the
name of the transferee or transferees one or more new Notes of any authorized
denominations and of a like aggregate principal amount, series and stated
maturity and having the same terms and Original Issue Date or Dates.
(c) All Notes presented for registration of transfer or for exchange,
redemption or payment shall be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee and duly executed by the Holder or the attorney in fact of such
Holder duly authorized in writing.
(d) No service charge shall be made for any exchange or registration of
transfer of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith.
(e) The Trustee shall not be required to exchange or register a transfer of
any Notes selected, called or being called for redemption (including Notes, if
any, redeemable at the option of the Holder provided such Notes are then
redeemable at such Holder's option) except, in the case of any Note to be
redeemed in part, the portion thereof not to be so redeemed.
(f) If the principal amount, and applicable premium, of part, but not all of
a Global Note is paid, then upon surrender to the Trustee of such Global Note,
the Company shall execute, and the Trustee shall authenticate, deliver and
register, a Global Note in an authorized denomination in aggregate principal
amount equal to, and having the same terms, Original Issue Date or Dates and
series as, the unpaid portion of such Global Note.
SECTION 2.07. MUTILATED, DESTROYED, LOST OR STOLEN NOTES.
(a) If any temporary or definitive Note shall become mutilated or be
destroyed, lost or stolen, the Company shall execute, and upon its request the
Trustee shall authenticate and deliver, a new Note of like form and principal
amount and having the same terms and Original Issue Date or Dates and bearing a
number not contemporaneously outstanding, in exchange and substitution for the
mutilated Note, or in lieu of and in substitution for the Note so destroyed,
lost or stolen. In every case the applicant for a substituted Note shall furnish
to the Company, the Trustee and any paying agent or Authenticating Agent such
security or indemnity as may be required by them to save each of them harmless,
and, in every case of destruction, loss or theft of a Note, the applicant shall
also furnish to the Company and to the Trustee evidence to their satisfaction of
the destruction, loss or theft of such Note and of the ownership thereof.
(b) The Trustee shall authenticate any such substituted Note and deliver the
same upon the written request or authorization of any officer of the Company.
Upon the issuance of any substituted Note, 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 connected therewith. If any
Note which has matured, is about to mature, has been redeemed or called for
redemption shall become mutilated or be destroyed, lost or stolen, the Company
may, instead of issuing a substituted Note, pay or authorize the payment of the
same (without surrender thereof except in the case of a mutilated Note) if the
applicant for such payment shall furnish to the Company, the Trustee and any
paying agent or Authenticating Agent such security or indemnity as may be
required by them to save each of them harmless and, in case of destruction, loss
or theft, evidence satisfactory to the Company and the Trustee of the
destruction, loss or theft of such Note and of the ownership thereof.
(c) Every substituted Note issued pursuant to this Section 2.07 by virtue of
the fact that any Note is mutilated, destroyed, lost or stolen shall constitute
an additional contractual obligation of the Company, whether or not such
destroyed, lost or stolen Note shall be found at any time, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Notes duly issued hereunder. All Notes shall be held and owned upon
the express condition that, to the
11
extent permitted by law, the foregoing provisions are exclusive with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes and
shall preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.08. TEMPORARY NOTES. Pending the preparation of definitive
Notes, the Company may execute and the Trustee shall authenticate and deliver
temporary Notes (printed, lithographed or otherwise reproduced). Temporary Notes
shall be issuable in any authorized denomination and substantially in the form
of the definitive Notes but with such omissions, insertions and variations as
may be appropriate for temporary Notes, all as may be determined by the Company.
Every such temporary Note shall be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Notes. Without unreasonable delay the Company shall execute and
shall deliver to the Trustee definitive Notes and thereupon any or all temporary
Notes shall be surrendered in exchange therefor at the corporate trust office of
the Trustee, and the Trustee shall authenticate, deliver and register in
exchange for such temporary Notes an equal aggregate principal amount of
definitive Notes. Such exchange shall be made by the Company at its own expense
and without any charge therefor to the Noteholders. Until so exchanged, the
temporary Notes shall in all respects be entitled to the same benefits under
this Indenture as definitive Notes authenticated and delivered hereunder.
SECTION 2.09. CANCELLATION OF NOTES PAID, ETC. All Notes surrendered for
the purpose of payment, redemption, exchange or registration of transfer shall
be surrendered to the Trustee for cancellation and promptly cancelled by it and
no Notes shall be issued in lieu thereof except as expressly permitted by this
Indenture. The Company's acquisition of any Notes shall operate as a redemption
or satisfaction of the indebtedness represented by such Notes and such Notes
shall be surrendered by the Company to and cancelled by the Trustee.
SECTION 2.10. INTEREST RIGHTS PRESERVED. Each Note delivered under this
Indenture upon transfer of or in exchange for or in lieu of any other Note shall
carry all the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Note, and each such Note shall be so dated that neither
gain nor loss of interest shall result from such transfer, exchange or
substitution.
SECTION 2.11. SPECIAL RECORD DATE. If and to the extent that the Company
fails to make timely payment or provision for timely payment of interest on any
series of Notes (other than on an Interest Payment Date that is a maturity
date), that interest shall cease to be payable to the Persons who were the
Noteholders of such series at the applicable Regular Record Date. In that event,
when moneys become available for payment of the interest, the Trustee shall (a)
establish a date of payment of such interest and a Special Record Date for the
payment of that interest, which Special Record Date shall be not more than 15
nor fewer than 10 days prior to the date of the proposed payment and (b) mail
notice of the date of payment and of the Special Record Date not fewer than 10
days preceding the Special Record Date to each Noteholder of such series at the
close of business on the 15th day preceding the mailing at the address of such
Noteholder, as it appeared on the register for the Notes. On the day so
established by the Trustee the interest shall be payable to the Holders of the
applicable Notes at the close of business on the Special Record Date.
SECTION 2.12. PAYMENT OF NOTES. Payment of the principal, interest and
premium on all Notes shall be payable as follows:
(a) On or before 9:30 a.m., New York City time, of the day on which payment
of principal, interest and premium is due on any Global Note pursuant to the
terms thereof, the Company shall deliver to the Trustee funds available on such
date sufficient to make such payment, by wire transfer of immediately available
funds or by instructing the Trustee to withdraw sufficient funds from an account
maintained by the Company with the Trustee or such other method as is acceptable
to the Trustee and the Depositary. On or before 10:00 a.m., New York City time,
or such other time as shall be agreed upon between the Trustee and the
Depositary, of the day on which any payment of interest
12
is due on any Global Note (other than at maturity), the Trustee shall pay to the
Depositary such interest in same day funds. On or before 10:00 a.m., New York
City time or such other time as shall be agreed upon between the Trustee and the
Depositary, of the day on which principal, interest payable at maturity and
premium, if any, is due on any Global Note, the Trustee shall deposit with the
Depositary the amount equal to the principal, interest payable at maturity and
premium, if any, by wire transfer into the account specified by the Depositary.
As a condition to the payment, at maturity or upon redemption, of any part of
the principal and applicable premium of any Global Note, the Depositary shall
surrender, or cause to be surrendered, such Global Note to the Trustee,
whereupon a new Global Note shall be issued to the Depositary pursuant to
Section 2.06(f) hereof.
(b) With respect to any Note that is not a Global Note, principal,
applicable premium and interest due at the maturity of the Note shall be payable
in immediately available funds when due upon presentation and surrender of such
Note at the corporate trust office of the Trustee or at the authorized office of
any paying agent. Interest on any Note that is not a Global Note (other than
interest payable at maturity) shall be paid to the Holder thereof as its name
appears on the register by check payable in clearinghouse funds; provided that
if the Trustee receives a written request from any Holder of Notes, the
aggregate principal amount of which having the same Interest Payment Date equals
or exceeds $10,000,000, on or before the applicable Regular Record Date for such
Interest Payment Date, interest shall be paid by wire transfer of immediately
available funds to a bank within the continental United States designated by
such Holder in its request or by direct deposit into the account of such Holder
designated by such Holder in its request if such account is maintained with the
Trustee or any paying agent.
(c) Subject to Article Eight hereof, all payments made by the Company to the
Trustee on a series of Senior Note First Mortgage Bonds shall be applied by the
Trustee to pay, when due, principal of, premium, if any, and interest on the
related series of Notes and, to the extent so applied, shall satisfy the
Company's obligations on such Notes. The Company shall pay to the Trustee
principal of, premium, if any, and interest on a series of Senior Note First
Mortgage Bonds in a manner and at a time that will enable the Trustee to make
payments when due, of the principal of, premium, if any, and interest on the
related series of Notes.
SECTION 2.13. NOTES ISSUABLE IN THE FORM OF A GLOBAL NOTE.
(a) If the Company shall establish pursuant to Section 2.05 that the Notes
of a particular series are to be issued in whole or in part in the form of one
or more Global Notes, then the Company shall execute and the Trustee shall, in
accordance with Section 2.05 and the Company Order delivered to the Trustee
thereunder, authenticate and deliver such Global Note or Notes, which (i) shall
represent, shall be denominated in an amount equal to the aggregate principal
amount of, and shall have the same terms as, the outstanding Notes of such
series to be represented by such Global Note or Notes, (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 Note is a
Global Note registered in the name of the Depositary (referred to herein) or a
nominee thereof and, unless and until it is exchanged in whole or in part for
the individual notes represented hereby, this Global Note 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 Depositary or a nominee
of such successor Depositary. Unless this Global Note is presented by an
authorized representative of The Depository Trust Company (00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx), to the trustee for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment is made to Cede & Co., any transfer, pledge or
other use hereof for value or otherwise by or to any person is wrongful since
the registered owner hereof, Cede & Co., has an interest herein" or such other
legend as may be required by the rules and regulations of the Depositary.
13
(b) Notwithstanding any other provision of Section 2.06 or of this Section
2.13, unless the terms of a Global Note expressly permit such Global Note to be
exchanged in whole or in part for individual Notes, a Global Note may be
transferred, in whole but not in part, only as described in the legend thereto.
(c) (i) If at any time the Depositary for a Global Note notifies the Company
that it is unwilling or unable to continue as Depositary for such Global Note or
if at any time the Depositary for the Global Note shall no longer be eligible or
in good standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, the Company shall appoint a successor
Depositary with respect to such Global Note. If a successor Depositary for such
Global Note is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to Section 2.05(c)(vi) hereof shall no longer be effective
with respect to the series of Notes evidenced by such Global Note and the
Company shall execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Notes of such series in exchange for
such Global Note, shall authenticate and deliver, individual Notes of such
series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of the Global Note in exchange for such
Global Note. The Trustee shall not be charged with knowledge or notice of the
ineligibility of a Depositary unless a responsible officer assigned to and
working in its corporate trustee administration department shall have actual
knowledge thereof.
(ii) The Company may at any time and in its sole discretion determine that
all outstanding (but not less than all) Notes of a series issued or issuable in
the form of one or more Global Notes shall no longer be represented by such
Global Note or Notes. In such event the Company shall execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
individual Notes in exchange for such Global Note, shall authenticate and
deliver individual Notes of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of such Global Note or
Notes in exchange for such Global Note or Notes.
(iii) In any exchange provided for in any of the preceding two paragraphs,
the Company will execute and the Trustee will authenticate and deliver
individual Notes in definitive registered form in authorized denominations. Upon
the exchange of a Global Note for individual Notes, such Global Note shall be
cancelled by the Trustee. Notes issued in exchange for a Global Note pursuant to
this Section shall be registered in such names and in such authorized
denominations as the Depositary for such Global Note, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Notes to the Depositary for delivery to
the persons in whose names such Notes are so registered, or if the Depositary
shall refuse or be unable to deliver such Notes, the Trustee shall deliver such
Notes to the persons in whose names such Notes are registered, unless otherwise
agreed upon between the Trustee and the Company, in which event the Company
shall cause the Notes to be delivered to the persons in whose names such Notes
are registered.
(d) Neither the Company, the Trustee, any Authenticating Agent nor any
paying agent shall have any responsibility or liability for any aspect of the
records relating to, or payments made on account of, beneficial ownership
interests of a Global Note or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest.
(e) Pursuant to the provisions of this subsection, at the option of the
Trustee and upon 30 days' written notice to the Depositary but not prior to the
first Interest Payment Date of the respective Global Notes, the Depositary shall
be required to surrender any two or more Global Notes which have identical
terms, including, without limitation, identical maturities, interest rates and
redemption provisions (but which may have differing Original Issue Dates) to the
Trustee, and the Company shall execute and the Trustee shall authenticate and
deliver to, or at the direction of, the Depositary a Global Note in principal
amount equal to the aggregate principal amount of, and with all terms identical
to, the Global Notes surrendered thereto and that shall indicate each applicable
Original
14
Issue Date and the principal amount applicable to each such Original Issue Date.
The exchange contemplated in this subsection shall be consummated at least 30
days prior to any Interest Payment Date applicable to any of the Global Notes
surrendered to the Trustee. Upon any exchange of any Global Note with two or
more Original Issue Dates, whether pursuant to this Section or pursuant to
Section 2.06 or Section 3.03 hereof, the aggregate principal amount of the Notes
with a particular Original Issue Date shall be the same before and after such
exchange, after giving effect to any retirement of Notes and the Original Issue
Dates applicable to such Notes occurring in connection with such exchange.
ARTICLE THREE
REDEMPTION OF NOTES
SECTION 3.01. APPLICABILITY OF ARTICLE. Such of the Notes as are, by their
terms, redeemable prior to their stated maturity date at the option of the
Company, may be redeemed by the Company at such times, in such amounts and at
such prices as may be specified therein and in accordance with the provisions of
this Article Three.
SECTION 3.02. NOTICE OF REDEMPTION; SELECTION OF NOTES.
(a) The election of the Company to redeem any Notes shall be evidenced by a
Board Resolution which shall be given with notice of redemption to the Trustee
at least 45 days (or such shorter period acceptable to the Trustee in its sole
discretion) prior to the redemption date specified in such notice.
(b) Notice of redemption to each Holder of Notes to be redeemed as a whole
or in part shall be given by the Trustee, in the manner provided in Section
15.10, no less than 30 nor more than 60 days prior to the date fixed for
redemption. Any notice which is given in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Noteholder
receives the notice. In any case, failure duly to give such notice, or any
defect in such notice, to the Holder of any Note designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Note.
(c) Each such notice shall specify the date fixed for redemption, the places
of redemption and the redemption price at which such Notes are to be redeemed,
and shall state that payment of the redemption price of such Notes or portion
thereof to be redeemed will be made upon surrender of such Notes at such places
of redemption, that interest accrued to the date fixed for redemption will be
paid as specified in such notice, and that from and after such date interest
thereon shall cease to accrue. If less than all of a series of Notes having the
same terms are to be redeemed, the notice shall specify the Notes or portions
thereof to be redeemed. If any Note is to be redeemed in part only, the notice
which relates to such Note shall state the portion of the principal amount
thereof to be redeemed, and shall state that, upon surrender of such Note, a new
Note or Notes having the same terms in aggregate principal amount equal to the
unredeemed portion thereof will be issued.
(d) Unless otherwise provided by a supplemental indenture or Company Order
under Section 2.05 hereof, if less than all of a series of Notes is to be
redeemed, the Trustee shall select in such manner as it shall deem appropriate
and fair in its discretion the particular Notes to be redeemed in whole or in
part and shall thereafter promptly notify the Company in writing of the Notes so
to be redeemed. If less than all of a series of Notes represented by a Global
Note is to be redeemed, the particular Notes or portions thereof of such series
to be redeemed shall be selected by the Depositary for such series of Notes in
such manner as the Depositary shall determine. Notes shall be redeemed only in
denominations of $1,000, provided that any remaining principal amount of a Note
redeemed in part shall be a denomination authorized under this Indenture.
(e) If at the time of the mailing of any notice of redemption the Company
shall not have irrevocably directed the Trustee to apply funds deposited with
the Trustee or held by it and available to be used for the redemption of Notes
to redeem all the Notes called for redemption, such notice, at
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the election of the Company, may state that it is subject to the receipt of the
redemption moneys by the Trustee before the date fixed for redemption and that
such notice shall be of no effect unless such moneys are so received before such
date.
SECTION 3.03. PAYMENT OF NOTES ON REDEMPTION; DEPOSIT OF REDEMPTION
PRICE.
(a) If notice of redemption for any Notes shall have been given as provided
in Section 3.02 hereof and such notice shall not contain the language permitted
at the Company's option under Section 3.02(e) hereof, such Notes or portions of
Notes called for redemption shall become due and payable on the date and at the
places stated in such notice at the applicable redemption price, together with
interest accrued to the date fixed for redemption of such Notes. Interest on the
Notes or portions thereof so called for redemption shall cease to accrue and
such Notes or portions thereof shall be deemed not to be entitled to any benefit
under this Indenture except to receive payment of the redemption price together
with interest accrued thereon to the date fixed for redemption. Upon
presentation and surrender of such Notes at such a place of payment in such
notice specified, such Notes or the specified portions thereof shall be paid and
redeemed at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption.
(b) If notice of redemption shall have been given as provided in Section
3.02 hereof and such notice shall contain the language permitted at the
Company's option under Section 3.02(a) hereof, such Notes or portions of Notes
called for redemption shall become due and payable on the date and at the places
stated in such notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption of such Notes, and interest on the
Notes or portions thereof so called for redemption shall cease to accrue and
such Notes or portions thereof shall be deemed not to be entitled to any benefit
under this Indenture except to receive payment of the redemption price together
with interest accrued thereon to the date fixed for redemption; provided that,
in each case, the Company shall have deposited with the Trustee or a paying
agent on or prior to such redemption date an amount sufficient to pay the
redemption price together with interest accrued to the date fixed for
redemption. Upon the Company making such deposit and, upon presentation and
surrender of such Notes at such a place of payment in such notice specified,
such Notes or the specified portions thereof shall be paid and redeemed at the
applicable redemption price, together with interest accrued thereon to the date
fixed for redemption. If the Company shall not make such deposit on or prior to
the redemption date, the notice of redemption shall be of no force and effect
and the principal on such Note shall continue to bear interest as if the notice
of redemption had not been given.
(c) No notice of redemption of Notes shall be mailed during the continuance
of any Event of Default, except (1) that, when notice of redemption of any Notes
has been mailed, the Company shall redeem such Notes but only if funds
sufficient for that purpose have prior to the occurrence of such Event of
Default been deposited with the Trustee or a paying agent for such purpose, and
(2) that notices of redemption of all outstanding Notes may be given during the
continuance of an Event of Default.
(d) Upon surrender of any Note redeemed in part only, the Company shall
execute, and the Trustee shall authenticate, deliver and register, a new Note or
Notes of authorized denominations in aggregate principal amount equal to, and
having the same terms, Original Issue Date or Dates and series as, the
unredeemed portion of the Note so surrendered.
ARTICLE FOUR
SENIOR NOTE FIRST MORTGAGE BONDS
SECTION 4.01. DELIVERY OF INITIAL SERIES OF SENIOR NOTE FIRST MORTGAGE
BONDS. Subject to the provisions of Section 4.11 and Article Five hereof, the
Company hereby (a) delivers to the Trustee, in connection with the initial
issuance of a series of Notes hereunder in an aggregate principal amount not to
exceed $ , Senior Note First Mortgage Bonds bearing the designation
" " in the aggregate principal amount of $ , fully registered in
the name of
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the Trustee, in trust for the benefit of the Holders from time to time of the
Notes issued under this Indenture as security for any and all obligations of the
Company under the Notes, including, but not limited to, (1) the full and prompt
payment of the principal of the Notes when and as the same shall become due and
payable in accordance with the terms and provisions of this Indenture or the
Notes, 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 Notes when and as the same shall become due and payable in accordance
with the terms and provisions of this Indenture or the Notes and (b) delivers to
the Trustee the certificate of the Expert required by Section 4.05 hereof.
SECTION 4.02. RECEIPT. The Trustee acknowledges receipt of the Senior Note
First Mortgage Bonds and Expert certificate described in Section 4.01 hereof.
SECTION 4.03. SENIOR NOTE FIRST MORTGAGE BONDS HELD BY THE TRUSTEE. The
Trustee, as a Holder of Senior Note First Mortgage Bonds, shall attend any
meeting of Bondholders under the First Mortgage 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 is sought without a meeting, the Trustee
shall vote all of the Senior Note First Mortgage Bonds held by it, or shall
consent or withold its consent with respect thereto, as directed by the Holders
of not less than a majority in the aggregate principal amount of the outstanding
Notes; provided, however, the Trustee shall not vote as such Holder of any
particular series of Senior Note First 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 First Mortgage Bonds in a manner not
shared generally by all other Senior Note First Mortgage Bonds, except upon
notification by the Trustee to the Noteholders of the related series of Notes of
such proposal and consent thereto of the Holders of not less than a majority in
aggregate principal amount of the outstanding Notes of such series.
SECTION 4.04. NO TRANSFER OF SENIOR NOTE FIRST MORTGAGE BONDS;
EXCEPTION. Except as required to effect an assignment to a successor trustee
under this Indenture or pursuant to Section 4.05 or Section 4.08 hereof, the
Trustee shall not sell, assign or transfer the Senior Note First Mortgage Bonds
and the Company shall issue stop transfer instructions to the Mortgage Trustee
and any transfer agent under the First Mortgage to effect compliance with this
Section 4.04.
SECTION 4.05. DELIVERY TO THE COMPANY OF ALL SENIOR NOTE FIRST 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 First Mortgage
Bonds shall be satisfied or deemed satisfied pursuant to Section 4.11 or Section
5.01 hereof, the Trustee shall, upon written request of the Company and receipt
of the certificate of the Expert described in Section 4.06(b) hereof (if such
certificate is then required by Section 4.06(b) hereof), deliver to the Company
without charge therefor all of the Senior Note First Mortgage Bonds, together
with such appropriate instruments of transfer or release as may be reasonably
requested by the Company. All Senior Note First Mortgage Bonds delivered to the
Company in accordance with this Section 4.05 shall be delivered by the Company
to the First Mortgage Trustee for cancellation.
SECTION 4.06. FAIR VALUE CERTIFICATE. (a) Upon the delivery by the Company
to the Trustee of Senior Note First Mortgage Bonds pursuant to Section 4.01 or
Section 4.09 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 First Mortgage Bonds and of this Indenture; (2)
stating the principal amount of such Senior Note First Mortgage Bonds so
delivered, the stated interest rate (or method of calculation of interest) of
such Senior Note First Mortgage Bonds and the stated maturity date of such
Senior Note First Mortgage Bonds; (3) identifying the Notes being issued
contemporaneously therewith, and (4) stating the fair value to the Company of
such Senior Note First Mortgage Bonds. If the fair value to the Company of the
Senior Note First Mortgage Bonds so delivered, as described in the certificate
to be delivered pursuant to this Section 4.06(a), both (l) is equal to or
exceeds (A) $25,000 and (B) 1% of the principal amount of the Notes outstanding
at the
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date of delivery of such Senior Note First Mortgage Bonds and (2) together with
the fair value to the Company, as described in the certificates to be delivered
pursuant to this Section 4.06(a), of all other Senior Note First 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 Notes
outstanding at the date of delivery of such Senior Note First Mortgage Bonds,
then the certificate required by this Section 4.06(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 First Mortgage Bonds delivered to the Trustee pursuant to Section
4.09 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 First Mortgage Bonds are delivered or surrendered to the
Company pursuant to Section 4.05 or 4.08 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 First
Mortgage Bonds and of this Indenture, (2) stating the principal amount of such
Senior Note First Mortgage Bonds so delivered, the stated interest rate (or
method of calculation of interest) of such Senior Note First Mortgage Bonds and
the stated maturity date of such Senior Note First Mortgage Bonds, (3) if
applicable, identifying the Notes, the payment of the interest on and principal
of which has been discharged hereunder, (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 First Mortgage Bonds so delivered and released, as described in
the certificate to be delivered pursuant to this Section 4.06(b), both (l) is
equal to or exceeds (A) $25,000 and (B) 1% of the principal amount of the
outstanding Notes at the date of release of such Senior Note First Mortgage
Bonds and (2) together with the fair value, as described in the certificates to
be delivered pursuant to this Section 4.06(b), of all other Senior Note First
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 Notes outstanding at the date of release of such Senior Note First
Mortgage Bonds, then the certificate required by this Section 4.06(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
First Mortgage Bonds, the Company provides to the Trustee an Opinion of Counsel
stating that the certificate described by this Section 4.06 is not required by
law, such certificate shall not be required to be delivered hereunder in
connection with such delivery or release.
SECTION 4.07. FURTHER ASSURANCES. The Company, 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 First Mortgage
Bonds and for maintaining, protecting and preserving such security interest.
SECTION 4.08. EXCHANGE AND SURRENDER OF SENIOR NOTE FIRST 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 First Mortgage Bonds in
exchange for Senior Note First 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 First Mortgage Bonds so
surrendered to the Company. In addition, at any time a Note shall cease to be
entitled to any lien, benefit or security under this Indenture pursuant to
Section 5.01(b) hereof, the Trustee shall surrender Senior Note First Mortgage
Bonds as provided in this Section to the Company for cancellation. The Trustee
shall, together with such Senior Note First 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
9.01 hereof) shall be fully protected in relying upon, (a) an Officers'
Certificate stating (i) the aggregate outstanding principal amount of the Senior
Note First Mortgage Bonds of the series
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surrendered by the Trustee, after giving effect to such surrender, (ii) the
aggregate outstanding principal amount of the related series of Notes, (iii)
that the surrender of the Senior Note First Mortgage Bonds will not result in
any default under this Indenture, and (iv) that any Senior Note First Mortgage
Bonds to be received in exchange for the Senior Note First Mortgage Bonds being
surrendered comply with the provisions of this Section.
The Company shall not be permitted to cause the surrender or exchange of all
or any part of a series of Senior Note First Mortgage Bonds contemplated in this
Section, if, after such surrender or exchange, the aggregate outstanding
principal amount of the related series of Notes would exceed the aggregate
outstanding principal amount of such series of Senior Note First Mortgage Bonds
held by the Trustee. Any Senior Note First Mortgage Bonds received by the
Company pursuant to this Section 4.08 shall be delivered to the Mortgage Trustee
for cancellation.
SECTION 4.09. ACCEPTANCE OF ADDITIONAL SENIOR NOTE FIRST MORTGAGE
BONDS. Upon the issuance of a series of Notes hereunder (other than the initial
series of Notes referred to in Section 4.01 hereof) at any time prior to the
Release Date, the Company shall deliver to the Trustee for the benefit of the
Holders of the Notes as described in Section 4.11 hereof, and the Trustee shall
accept therefor, additional Senior Note First Mortgage Bonds registered in the
name of the Trustee conforming to the requirements of Section 4.10 hereof.
SECTION 4.10. TERMS OF SENIOR NOTE FIRST MORTGAGE BONDS. Each series of
Senior Note First Mortgage Bonds delivered to the Trustee pursuant to Section
4.01 or Section 4.09 hereof shall 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 shall be in the same aggregate
principal amount, as the related series of Notes being issued.
SECTION 4.11. SENIOR NOTE FIRST MORTGAGE BONDS AS SECURITY FOR
NOTES. Until the Release Date and subject to Article Five hereof, Senior Note
First Mortgage Bonds delivered to the Trustee, for the benefit of the Holders of
the Notes, shall serve as security for any and all obligations of the Company
under the Notes, including, but not limited to (1) the full and prompt payment
of the principal of such Notes when and as the same shall become due and payable
in accordance with the terms and provisions of this Indenture or the Notes,
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
Notes when and as the same shall become due and payable in accordance with the
terms and provisions of this Indenture or the Notes.
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 First
Mortgage Bonds shall be deemed satisfied and discharged as provided in the
supplemental trust indenture or indentures to the First Mortgage creating such
Senior First Mortgage Bonds and the Senior Note First Mortgage Bonds shall cease
to secure in any manner Notes theretofore or subsequently issued. From and after
the Release Date, all Notes shall be unsecured, and any conditions to the
issuance of Notes that refer or relate to Senior Note First Mortgage Bonds or
the First Mortgage shall be inapplicable. Following the Release Date, the
Company shall cause the First Mortgage to be closed and the Company shall not
issue any additional First Mortgage Bonds or Senior Note First Mortgage Bonds
under the First Mortgage. Notice of the occurrence of the Release Date shall be
given by the Trustee to the Holders of the Notes in the manner provided in
Section 15.10 hereof not later than 30 days after the Company notifies the
Trustee of the occurrence of the Release Date.
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ARTICLE FIVE
SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS
SECTION 5.01. SATISFACTION AND DISCHARGE.
(a) If at any time:
(1) the Company shall have paid or caused to be paid the principal of
and premium, if any, and interest on all the outstanding Notes, as and when
the same shall have become due and payable,
(2) the Company shall have delivered to the Trustee for cancellation all
outstanding Notes, or
(3) the Company shall have irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds the entire amount in
(A) cash, (B) U.S. Government Obligations maturing as to principal and
interest in such amounts and at such times as will insure the availability
of cash, or (C) a combination of cash and U.S. Government Obligations, in
any case sufficient, without reinvestment, as certified by an independent
public accounting firm of national reputation in a written certification
delivered to the Trustee, to pay at maturity or the applicable redemption
date (provided that notice of redemption shall have been duly given or
irrevocable provision satisfactory to the Trustee shall have been duly made
for the giving of any notice of redemption) all outstanding Notes, including
principal and any premium and interest due or to become due to such date of
maturity, as the case may be and, unless all outstanding Notes are to be due
within 90 days of such deposit by redemption or otherwise, shall also
deliver to the Trustee an Opinion of Independent Counsel to the effect that
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or similar pronouncement by the Internal Revenue
Service or that there has been a change of law, in either case to the effect
that the Holders of the Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such defeasance or discharge of
the Indenture,
and if, in any such case, the Company shall also pay or cause to be paid all
other sums payable hereunder by the Company, then this Indenture shall cease to
be of further effect (except as to (i) rights of registration of transfer and
exchange of Notes, (ii) substitution of mutilated, defaced, destroyed, lost or
stolen Notes, (iii) rights of Noteholders to receive payments of principal
thereof, and any premium and interest thereon, upon the original stated due
dates therefor or upon the applicable redemption date (but not upon acceleration
of maturity) from the moneys and U.S. Government Obligations held by the Trustee
pursuant to Section 5.02 hereof, (iv) the rights and immunities of the Trustee
hereunder, (v) the rights of the Holders of Notes as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them, (vi) the obligations and rights of the Trustee and the Company under
Section 5.04, and (vii) the duties of the Trustee with respect to any of the
foregoing), and the Company shall be deemed to have paid and discharged the
entire indebtedness represented by, and its obligations under, the Notes, and
the Trustee, on demand of the Company and at the cost and expense of the
Company, shall execute proper instruments acknowledging such satisfaction of and
discharging this Indenture and the Trustee shall at the request of the Company
return to the Company all Senior Note First 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 this Section
5.01(a)(3) to be in excess of the amount required to be held under this Section.
If the Notes are deemed to be paid and discharged pursuant to Section
5.01(a)(3) hereof, within 15 days after those Notes are so deemed to be paid and
discharged, the Trustee shall cause a written notice to be given to each Holder
in the manner provided by Section 15.10 hereof. The notice shall:
(i) state that the Notes are deemed to be paid and discharged;
20
(ii) set forth a description of any U.S. Government Obligations and cash
held by the Trustee as described above;
(iii) if any Notes will be called for redemption, specify the date or
dates on which those Notes are to be called for redemption.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 9.06 shall survive.
If the Notes are deemed paid and discharged pursuant to this Section 5.01,
the obligation of the Company to make payment with respect to the principal of
and premium, if any, and interest on the Senior Note First Mortgage Bonds shall
be satisfied and discharged, as provided in the supplemental trust indenture or
indentures to the First Mortgage creating such Senior Note First Mortgage Bonds
and the Senior Note First Mortgage Bonds shall cease to secure the Notes 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 Note, as and when the same shall have
become due and payable or the Company shall have delivered to the Trustee for
cancellation any outstanding Note, such Note shall cease to be entitled to any
lien, benefit or security under this Indenture. Upon a Note 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 First Mortgage Bonds equal to the principal amount of such Note
shall be satisfied and discharged and such portion of the principal amount of
such Senior Note First Mortgage Bonds shall cease to secure the Notes in any
manner.
SECTION 5.02. DEPOSITED MONEYS TO BE HELD IN TRUST BY TRUSTEE. All moneys
and U.S. Government Obligations deposited with the Trustee pursuant to Section
5.01 shall be held in trust and applied by it to the payment, either directly or
through any paying agent (including the Company if acting as its own paying
agent), to the Holders of the particular Notes for the payment or redemption of
which such moneys and U.S. Government Obligations have been deposited with the
Trustee of all sums due and to become due thereon for principal and premium, if
any, and interest.
SECTION 5.03. PAYING AGENT TO REPAY MONEYS HELD. Upon the satisfaction and
discharge of this Indenture all moneys then held by any paying agent for the
Notes (other than the Trustee) shall, upon written demand by an Authorized
Agent, be repaid to the Company or paid to the Trustee, and thereupon such
paying agent shall be released from all further liability with respect to such
moneys.
SECTION 5.04. RETURN OF UNCLAIMED MONEYS. Any moneys deposited with or
paid to the Trustee for payment of the principal of or any premium or interest
on any Notes and not applied but remaining unclaimed by the Holders of such
Notes for two years after the date upon which the principal of or any premium or
interest on such Notes, as the case may be, shall have become due and payable,
shall be repaid to the Company by the Trustee on written demand by an Authorized
Agent, and all liability of the Trustee shall thereupon cease; and any Holder of
any of such Notes shall thereafter look only to the Company for any payment
which such Holder may be entitled to collect.
ARTICLE SIX
PARTICULAR COVENANTS OF THE COMPANY
SECTION 6.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The Company
covenants and agrees for the benefit of the Holders of the Notes that it will
duly and punctually pay or cause to be paid the principal of and any premium and
interest on each of the Notes at the places, at the respective times and in the
manner provided in such Notes or in this Indenture.
SECTION 6.02. OFFICE FOR NOTICES AND PAYMENTS, ETC. So long as any of the
Notes remain outstanding, the Company at its option may cause to be maintained
in the Borough of Manhattan, the City and State of New York, or elsewhere, an
office or agency where the Notes may be presented for
21
registration of transfer and for exchange as in this Indenture provided, and
where, at any time when the Company is obligated to make a payment of principal
and premium upon Notes, the Notes may be surrendered for payment, and may
maintain at any such office or agency and at its principal office an office or
agency where notices and demands to or upon the Company in respect of the Notes
or of this Indenture may be served. The designation of any such office or agency
shall be made by Company order pursuant to Section 2.05. The Company will give
to the Trustee written notice of the location of each such office or agency and
of any change of location thereof. If the Company shall fail to give such notice
of the location or of any change in the location of any such office or agency,
presentations may be made and notices and demands may be served at the corporate
trust office of the Trustee.
SECTION 6.03. APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 9.11, a Trustee, so that there
shall at all times be a Trustee hereunder.
SECTION 6.04. PROVISION AS TO PAYING AGENT. The Trustee shall be the
paying agent for the Notes and, at the option of the Company, the Company may
appoint additional paying agents (including without limitation itself). Whenever
the Company shall appoint an additional paying agent, it shall cause such paying
agent to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to this Section 6.04:
(1) that it will hold in trust for the benefit of the Holders and the
Trustee all sums held by it as such agent for the payment of the principal
of and any premium or interest on the Notes (whether such sums have been
paid to it by the Company or by any other obligor on such Notes) in trust
for the benefit of the Holders of such Notes;
(2) that it will give to the Trustee notice of any failure by the
Company (or by any other obligor on such Notes) to make any payment of the
principal of and any premium or interest on such Notes when the same shall
be due and payable; and
(3) that it will at any time during the continuance of any such failure,
upon the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such paying agent.
If the Company shall act as its own paying agent with respect to any Notes,
it will, on or before each due date of the principal of and any premium or
interest on such Notes, set aside, segregate and hold in trust for the benefit
of the Holders of such Notes a sum sufficient to pay such principal and any
premium or interest so becoming due and will notify the Trustee of any failure
by it to take such action and of any failure by the Company (or by any other
obligor on such Notes) to make any payment of the principal of and any premium
or interest on such Notes when the same shall become due and payable.
Whenever the Company shall have one or more paying agents, it will, on or
prior to each due date of the principal of (and premium, if any) or interest, if
any, on any Notes, deposit with such paying agent a sum sufficient to pay the
principal (and premium, if any) or interest, if any, so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, if any, and (unless such paying agent is the Trustee) the
Company shall promptly notify the Trustee of any failure on its part to so act.
Anything in this Section 6.04 to the contrary notwithstanding, the Company
may, at any time, for the purpose of obtaining a satisfaction and discharge of
this Indenture, or for any other reason, pay or cause to be paid to the Trustee
all sums held in trust by it or any paying agent hereunder, as required by this
Section 6.04, such sums to be held by the Trustee upon the trusts herein
contained.
Anything in this Section 6.04 to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section 6.04 is subject to Sections
5.03 and 5.04.
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SECTION 6.05. OPINIONS OF COUNSEL. The Company will 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 Noteholders and all rights of
the Trustee, and 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 Notes in the
Senior Note First 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 May 1 to maintain, perfect and make such security
interest effective; and
(b) on or before May 1 of each year, beginning in 1996, 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 6.05(b) or the first Opinion of
Counsel furnished pursuant to Section 6.05(a), 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 Notes in the
Senior Note First 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 May 1 to maintain, perfect and make such security interest
effective.
SECTION 6.06. CERTIFICATES TO TRUSTEE. The Company shall, on or before May
1 of each year, beginning in 1996, deliver to the Trustee a certificate from its
principal executive officer, principal financial officer or principal accounting
officer covering the preceding calendar year and stating whether or not, to the
knowledge of such party, the Company has complied with all conditions and
covenants under this Indenture, and, if not, describing in reasonable detail any
failure by the Company to comply with any such conditions or covenants. For
purposes of this Section, compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture.
ARTICLE SEVEN
NOTEHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 7.01. NOTEHOLDER LISTS.
(a) The Company shall furnish or cause to be furnished to the Trustee
semiannually, not later than 15 days after each Regular Record Date for each
Interest Payment Date that is not a maturity date and at such other times as
such Trustee may request in writing, within 30 days after receipt by the Company
of any such request, a list in such form as the Trustee may reasonably require
containing all the information in the possession or control of the Company, or
any paying agents other than the Trustee, as to the names and addresses of the
Holders of Notes, obtained since the date as of which the next previous list, if
any, was furnished. Any such list may be dated as of a date not more than 15
days prior to the time such information is furnished or caused to be furnished
and need not include information received after such date; provided that as long
as the Trustee is the registrar for the
23
Notes, no such list shall be required to be furnished. The Trustee shall
preserve any list provided to it pursuant to this Section until such time as the
Company or any paying agent, as applicable, shall provide it with a more recent
list.
(b) Within five business days after the receipt by the Trustee of a written
application by any three or more Holders stating that the applicants desire to
communicate with other Holders with respect to their rights under the Indenture
or under the Notes, and accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, and by reasonable proof
that each such applicant has owned a Note for a period of at least six months
preceding the date of such application, the Trustee shall, at its election,
either:
(i) afford to such applicants access to all information furnished to or
received by the Trustee pursuant to Section 7.01(a) or, if applicable, in
its capacity as registrar to the Notes; or
(ii) inform such applicants as to the approximate number of Holders
according to the most recent information furnished to or received by the
Trustee under Section 7.01(a) or if applicable in its capacity as registrar
for the Notes, 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 of Notes 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 such mailing, unless within five days
after such tender the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders or would be in violation of
applicable law. Such written statement shall specify the basis of such opinion.
If the Commission, after opportunity for a hearing upon the objections specified
in the written statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all
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 a Note, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
paying agent nor any Authenticating Agent 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 this Section, 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 this Section.
SECTION 7.02. SECURITIES AND EXCHANGE COMMISSION REPORTS. The Company
shall:
(a) 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 will 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
24
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;
(b) 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, including, in the case of annual reports,
if required by such rules and regulations, certificates or opinions of
independent public accountants, conforming to the requirements of Section 15.05,
as to compliance with conditions or covenants, compliance with which is subject
to verification by accountants; and
(c) transmit by mail to all Holders, as their names and addresses appear in
the 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 (a) and (b) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
SECTION 7.03. REPORTS BY THE TRUSTEE.
(a) Within 60 days after July 15 of each year, beginning with the July 15
after the first issuance of Notes hereunder, the Trustee shall transmit by mail
a brief report dated as of such date that complies with Section 313(a) of the
TIA (to the extent required by such Section).
(b) The Trustee shall from time to time transmit by mail brief reports that
comply, both in content and date of delivery, with Section 313(b) of the TIA (to
the extent required by such Section).
(c) A copy of each such report filed pursuant to this section shall, at the
time of such transmission to such Holders, be filed by the Trustee with each
stock exchange upon which any Notes are listed and also with the Commission. The
Company will notify the Trustee promptly upon the listing of such Notes on any
stock exchange.
(d) Reports pursuant to this Section shall be transmitted
(1) by mail to all Holders of Notes, as their names and addresses appear
in the register for the Notes;
(2) by mail to such Holders of Notes as have, within the two years
preceding such transmission, filed their names and addresses with the
Trustee for such purpose;
(3) by mail, except in the case of reports pursuant to Section 7.03(b)
and (c) hereof, to all Holders of Notes whose names and addresses have been
furnished to or received by the Trustee pursuant to Section 7.01 hereof; and
(4) at the time such report is transmitted to the Holders of the Notes,
to each exchange on which Notes are listed and also with the Commission.
ARTICLE EIGHT.
REMEDIES OF THE TRUSTEE AND
NOTEHOLDERS ON EVENTS OF DEFAULT
SECTION 8.01. EVENTS OF DEFAULT.
(a) If one or more of the following Events of Default shall have occurred
and be continuing:
(1) default in the payment of any installment of interest upon any of
the Notes as and when the same shall become due and payable, and continuance
of such default for a period of 60 days;
(2) default in the payment of the principal of or any premium on any of
the Notes as and when the same shall become due and payable and continuance
of such default for five days;
25
(3) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company contained in
the Notes or in this Indenture for a period of 90 days after the date on
which written notice of such failure, requiring the same to be remedied and
stating that such notice is a "Notice of Default" hereunder, shall have been
given to the Company by the Trustee by registered mail, or to the Company
and the Trustee by the Holders of at least 25% in aggregate principal amount
of the Notes at the time outstanding;
(4) prior to the Release Date, a completed default (as defined in the
First Mortgage) has occurred and is continuing, and the Mortgage Trustee,
the Company or Holders of at least 25% in aggregate principal amount of the
Notes at the time outstanding shall have given written notice thereof to the
Trustee;
(5) the entry of a decree or order by a court having jurisdiction over
the Company for relief in respect of the Company under Title 11 of the
United States Code, as now constituted or hereafter amended, or any other
applicable federal or state bankruptcy, insolvency or other similar law, or
appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or 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 unstayed and in effect for a
period of 60 consecutive days; or
(6) the filing by the Company of a petition or answer or consent seeking
relief under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other applicable federal or state bankruptcy,
insolvency or other similar law, or the consent by it to the institution of
proceedings thereunder or to the filing of any such petition or to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Company or
of any substantial part of its property, or the failure of the Company
generally to pay its debts as such debts become due, or the taking of
corporate action by the Company to effectuate any such action;
then and in each and every such case, unless the principal of all of the Notes
shall have already become due and payable, either the Trustee or the Holders of
a majority in aggregate principal amount of the Notes then outstanding, by
notice in writing to the Company (and to the Trustee if given by Noteholders),
may declare the principal of all the Notes to be due and payable immediately and
upon any such declaration the same shall become and shall be immediately due and
payable, anything in this Indenture or in the Notes contained to the contrary
notwithstanding and, upon the Notes being declared to be due and payable, the
Trustee can immediately file with the Mortgage Trustee a written demand for
redemption of all Senior Note First Mortgage Bonds pursuant to the applicable
provisions of the supplemental indentures to the First Mortgage. This provision,
however, is subject to the condition that if, at any time after the principal of
the Notes shall have been so declared due and payable, and before any judgment
or decree for the payment of the moneys due shall have been obtained or entered
as hereinafter provided and prior to the mailing to the Trustee by the 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, the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon all of the Notes and
the principal of and any premium on any and all Notes which shall have become
due otherwise than by acceleration (with interest on overdue installments of
interest, to the extent that payment of such interest is enforceable under
applicable law, and on such principal and applicable premium at the rate borne
by the Notes to the date of such payment or deposit) and all sums paid or
advanced by the Trustee hereunder, the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 9.06 hereof, and any and all defaults
under this Indenture, other than the non-payment of principal of and accrued
interest on Notes which shall have become due solely by acceleration of
maturity, shall have been cured or waived (including any defaults under the
First Mortgage, as evidenced by notice thereof from the Mortgage Trustee to the
Trustee) -- then and in every such case such payment or
26
deposit shall cause an automatic waiver of the Event of Default and its
consequences and shall cause an automatic rescission and annulment of the
acceleration of the Notes; but no such waiver or rescission and annulment shall
extend to or shall affect any subsequent default, or shall impair any right
consequent thereon.
(b) If the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company and
the Trustee shall be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceeding had been taken.
SECTION 8.02. PAYMENT OF NOTES ON DEFAULT; SUIT THEREFOR.
(a) The Company covenants that in case of:
(1) default in the payment of any installment of interest upon any of
the Notes as and when the same shall become due and payable, and continuance
of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on any of
the Notes as and when the same shall have become due and payable whether at
the stated maturity thereof, upon redemption thereof (provided that such
redemption is not conditioned upon the deposit of sufficient moneys for such
redemption), upon declaration of acceleration or otherwise.
then, upon demand of the Trustee, the Company shall pay to the Trustee, for the
benefit of the Holders of the Notes, the whole amount that then shall have so
become due and payable on all such Notes for principal and any premium or
interest, or both, as the case may be, with interest upon the overdue principal
and any premium and (to the extent that payment of such interest is enforceable
under applicable law) upon the overdue installments of interest at the rate
borne by the Notes; and, in addition thereto, such further amounts as shall be
sufficient to cover the costs and expenses of collection, including reasonable
compensation to the Trustee, its agents, attorneys and counsel, any expenses or
liabilities incurred by the Trustee hereunder other than through its negligence
or bad faith, and any other amounts due the Trustee under Section 9.06 hereof.
(b) If the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity 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 First Mortgage Bonds, and may enforce any such judgment or final
decree against the Company or any other obligor on the Notes and collect in the
manner provided by law out of the property of the Company or any other obligor
on such series of Notes wherever situated, the moneys adjudged or decreed to be
payable.
(c) If there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Notes under the United
States Bankruptcy Code or any other applicable law, or in case a receiver or
trustee shall have been appointed for the property of the Company or such other
obligor, or in the case of any similar judicial proceedings relative to the
Company or other obligor upon the Notes, or to the creditors or property of the
Company or such other obligor, the Trustee, irrespective of whether the
principal of the Notes 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 pursuant to this Section 8.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal and any premium and interest owing and
unpaid in respect of the Notes, and, in case of any judicial proceedings, to
file such proofs of claim and 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 First Mortgage
Bonds and including any amounts due to the Trustee under Section 9.06 hereof)
and of the Holders of Notes allowed in such judicial proceedings
27
relative to the Company or any other obligor on the Notes, its or their
creditors, or its or their property, and to collect and receive any moneys or
other property payable or deliverable on any such claims, and to distribute the
same after the deduction of its charges and expenses.
(d) All claims and rights of action under this Indenture, or under any of
the Notes, may be enforced by the Trustee without the possession of any of the
Notes, or the production thereof in any trial or other proceeding relative
thereto, and any such suit or proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall be for the ratable benefit of the Holders of the Notes in respect
of which such action was taken.
(e) Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent or to accept or adopt on behalf of any Noteholder any plan
of reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Noteholder in any such proceeding.
SECTION 8.03. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any moneys
collected by the Trustee with respect to any of the Notes pursuant to this
Article shall be applied in the order following, at the date or dates fixed by
the Trustee for the distribution of such moneys, upon presentation of the
several Notes, and stamping thereon the payment, if only partially paid, and
upon surrender thereof if fully paid.
FIRST: To the payment of all amounts due to the Trustee pursuant to Section
9.06;
SECOND: If the principal of the outstanding Notes in respect of which such
moneys have been collected shall not have become due and be unpaid, to the
payment of interest on the Notes, in the order of the maturity of the
installments of such interest, with interest (to the extent allowed by law and
to the extent that such interest has been collected by the Trustee) upon the
overdue installments of interest at the rate borne by the Notes, such payments
to be made ratably to the persons entitled thereto, and then to the payment to
the Holders entitled thereto of the unpaid principal of and applicable premium
on any of the Notes which shall have become due (other than Notes previously
called for redemption for the payment of which moneys are held pursuant to the
provisions of this Indenture), whether at stated maturity or by redemption, in
the order of their due dates, beginning with the earliest due date, and if the
amount available is not sufficient to pay in full all Notes due on any
particular date, then to the payment thereof ratably, according to the amounts
of principal and applicable premium due on that date, to the Holders entitled
thereto, without any discrimination or privilege.
THIRD: If the principal of the outstanding Notes in respect of which such
moneys have been collected shall have become due, by declaration or otherwise,
to the payment of the whole amount then owing and unpaid upon the Notes for
principal and any premium and interest thereon, with interest on the overdue
principal and any premium and (to the extent allowed by law and to the extent
that such interest has been collected by the Trustee) upon overdue installments
of interest at the rate borne by the Notes; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the Notes,
then to the payment of such principal and any premium and interest without
preference or priority of principal and any premium over interest, or of
interest over principal and any premium or of any installment of interest over
any other installment of interest, or of any Note over any other Note, 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 its
successors or assigns, or to whomsoever may lawfully be entitled to the same, or
as a court of competent jurisdiction may determine.
SECTION 8.04. PROCEEDINGS BY NOTEHOLDERS.
(a) No Holder of any Note shall have any right by virtue of or by availing
of any provision of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect
28
to this Indenture or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless such Xxxxxx previously shall have given to the
Trustee written notice of an Event of Default with respect to such Note and of
the continuance thereof, as hereinabove provided, and unless also Noteholders of
a majority in aggregate principal amount of the Notes then outstanding affected
by such Event of Default shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding.
(b) Notwithstanding any other provision in this Indenture, however, the
rights of any Holder of any Note to receive payment of the principal of and any
premium and interest on such Note, on or after the respective due dates
expressed in such Note or on the applicable redemption date, or to institute
suit for the enforcement of any such payment on or after such respective dates
shall not be impaired or affected without the consent of such Holder.
SECTION 8.05. PROCEEDINGS BY TRUSTEE. In case of an Event of Default
hereunder the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture, including, prior to the Release Date, its
rights as holder of the Senior Note First Mortgage Bonds, by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any of such rights, either by suit in equity or by action at law or by
proceeding in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted to it under this Indenture, or to enforce any other legal
or equitable right vested in the Trustee by this Indenture or by law.
SECTION 8.06. REMEDIES CUMULATIVE AND CONTINUING. All powers and remedies
given by this Article Eight to the Trustee or to the Noteholders shall, to the
extent permitted by law, be deemed cumulative and not exclusive of any powers
and remedies hereof or of any other powers and remedies available to the Trustee
or the Holders of the Notes, by judicial proceedings or otherwise, to enforce
the performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any Holder of any of
the Notes in exercising any right or power accruing upon any default occurring
and continuing as aforesaid shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence therein; and,
subject to Section 8.04, every power and remedy given by this Article Eight or
by law to the Trustee or to the Noteholders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the Noteholders.
SECTION 8.07. DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY MAJORITY
OF NOTEHOLDERS. The Holders of a majority in aggregate principal amount of the
Notes at the time outstanding 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; provided, that
(subject to Section 9.01) the Trustee shall have the right to decline to follow
any such direction if the Trustee being advised by counsel determines that the
action or proceeding so directed may not lawfully be taken or if the Trustee in
good faith by its board of directors or trustees, executive committee, or a
trust committee of directors or trustees or responsible officers shall determine
that the action or proceeding so directed would involve the Trustee in personal
liability or would be unduly prejudicial to the rights of Noteholders not
joining in such directions. The Holders of a majority in aggregate principal
amount of the Notes at the time outstanding may on behalf of all of the Holders
of the Notes waive any past default or Event of Default hereunder and its
consequences except a default in the payment of principal of or any premium or
interest on the Notes. Upon any such waiver the Company, the Trustee and the
Holders of the Notes shall be restored to their former positions and rights
hereunder, respectively, but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
Whenever any default or Event of Default
29
hereunder shall have been waived as permitted by this Section 8.07, said default
or Event of Default shall for all purposes of the Notes and this Indenture be
deemed to have been cured and to be not continuing.
SECTION 8.08. NOTICE OF DEFAULT. The Trustee shall, within 90 days after
the occurrence of a default, give to all Holders of the Notes, in the manner
provided in section 15.10, notice of such default, unless such default shall
have been cured before the giving of such notice, the term "default" for the
purpose of this Section 8.08 being hereby defined to be any event which is or
after notice or lapse of time or both would become an Event of Default; provided
that, except in the case of default in the payment of the principal of or any
premium or interest on any of the Notes, or in the payment of any sinking or
purchase fund installments, the Trustee shall be protected in withholding such
notice if and so long as its board of directors or trustees, executive
committee, or a trust committee of directors or trustees or responsible officers
in good faith determines that the withholding of such notice is in the interests
of the Holders of the Notes. The Trustee shall not be charged with knowledge of
any Event of Default unless a responsible officer of the Trustee assigned to the
corporate trustee department of the Trustee shall have actual knowledge of such
Event of Default.
SECTION 8.09. UNDERTAKING TO PAY COSTS. All parties to this Indenture
agree, and each Holder of any Note by 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 this Section 8.09 shall not apply to any suit instituted by the
Trustee, or to any suit instituted by any Noteholder, or group of Noteholders,
holding in the aggregate more than 10% in principal amount of the Notes
outstanding, or to any suit instituted by any Noteholder for the enforcement of
the payment of the principal of or any premium or interest on any Note on or
after the due date expressed in such Note or the applicable redemption date.
ARTICLE NINE.
CONCERNING THE TRUSTEE
SECTION 9.01. DUTIES AND RESPONSIBILITIES OF TRUSTEE.
(a) The Trustee, prior to the occurrence of an Event of Default and after
the curing of all Events of Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. If an Event of Default has occurred (which has not been cured or
waived), 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.
(b) No provisions 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 willful misconduct, except that:
(1) prior to the occurrence of any Event of Default and after the curing
or waiving of all Events of Default which may have occurred
(A) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture, and the Trustee shall
not be liable except for the performance of such duties and obligations
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(B) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein,
30
upon any 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 be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Indenture;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a responsible officer or officers of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(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 Section 8.07
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.
SECTION 9.02. RELIANCE ON DOCUMENTS, OPINIONS, ETC. Except as otherwise
provided in Section 9.01 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, consent, order, note 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, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof is herein specifically prescribed); and any Board
Resolution may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and any advice or 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
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Noteholders, pursuant to this Indenture, unless such Noteholders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred by such exercise;
(e) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after the
curing or waiving of all Events of Default, 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, consent,
order, approval, note or other paper or document, unless requested in writing to
do so by the Holders of at least a majority in principal amount of the then
outstanding Notes; provided that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by this Indenture, the
Trustee may require reasonable indemnity against such expense or liability as a
condition to so proceeding;
(g) no provision of this Indenture shall require the Trustee to extend 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; and
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(h) the Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or through agents or attorneys; provided
that the Trustee shall not be liable for the conduct or acts of any such agent
or attorney that shall have been appointed in accordance herewith with due care.
SECTION 9.03. NO RESPONSIBILITY FOR RECITALS, ETC. The recitals contained
herein and in the Notes (except in the certificate of authentication) shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the
Company of any Notes or the proceeds of any Notes authenticated and delivered by
the Trustee in conformity with this Indenture. The Trustee shall not be
responsible for recording or filing this Indenture, any supplemental indenture,
or any financing or continuation statement in any public office at any time or
times.
SECTION 9.04. TRUSTEE, AUTHENTICATING AGENT, PAYING AGENT OR REGISTRAR MAY
OWN NOTES. The Trustee and any Authenticating Agent or paying agent in its
individual or other capacity, may become the owner or pledgee of Notes with the
same rights it would have if it were not Trustee, Authenticating Agent or paying
agent.
SECTION 9.05. MONEYS TO BE HELD IN TRUST. Subject to Section 5.04, all
moneys received by the Trustee shall, until used or applied as herein provided,
be held in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
may allow and credit to the Company interest on any money received hereunder at
such rate, if any, as may be agreed upon by the Company and the Trustee from
time to time as may be permitted by law.
SECTION 9.06. COMPENSATION AND EXPENSES OF TRUSTEE. The Company covenants
and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation (which shall not be limited by any law in
regard to the compensation of a trustee of an express trust), and the Company
shall pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
this Indenture (including the reasonable compensation and the reasonable
expenses and disbursements of its counsel and agents, including any
Authenticating Agents, and of all persons not regularly in its employ) except
any such expense, disbursement or advance as may arise from its negligence or
bad faith. The Company also covenants to indemnify the Trustee for, and to hold
it harmless against, any loss, liability or expense incurred without negligence
or bad faith on the part of the Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the costs and expenses
of defending itself against any claim or liability. The obligations of the
Company under this Section 9.06 to compensate the Trustee and to pay or
reimburse the Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness shall be secured
by a lien prior to that of the Notes upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the Holders of any particular Notes.
SECTION 9.07. OFFICERS' CERTIFICATE AS EVIDENCE. Whenever in the
administration of this Indenture, the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to the taking, suffering
or omitting of any action hereunder, such matter (unless other evidence in
respect thereof is herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the Trustee, and
such Officers' Certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under this Indenture in reliance thereon.
SECTION 9.08. CONFLICTING INTEREST OF TRUSTEE. The Trustee shall be
subject to and shall comply with the provisions of Section 310 of the TIA;
provided that, to the extent permitted by law, Boatmen's First National Bank of
Oklahoma shall not be deemed to have a conflicting interest for
32
purposes of Section 310(b) of the TIA because of its capacity as trustee under
the First Mortgage. Nothing in this Indenture shall be deemed to prohibit the
Trustee or the Company from making any application permitted pursuant to such
section.
SECTION 9.09. EXISTENCE AND ELIGIBILITY OF TRUSTEE. There shall at all
times be a Trustee hereunder which Trustee shall at all times be a corporation
organized and doing business under the laws of the United States or any State
thereof or of the District of Columbia (or a corporation or other Person
permitted to act as trustee by the Commission), subject to supervision or
examination by such bodies and authorized under such laws to exercise corporate
trust powers and having a combined capital and surplus of at least $150,000,000.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid authority, then for the purposes
of this Section 9.09, the combined capital and surplus shall be deemed to be as
set forth in its most recent report of condition so published. No obligor upon
the Notes or Person directly or indirectly controlling, controlled by, or under
common control with such obligor shall serve as Trustee. If at any time the
Trustee shall cease to be eligible in accordance with this Section 9.09, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 9.10 hereof.
SECTION 9.10. RESIGNATION OR REMOVAL OF TRUSTEE.
(a) Pursuant to the provisions of this Article, the Trustee may at any time
resign and be discharged of the trusts created by this Indenture by giving
written notice to the Company specifying the day upon which such resignation
shall take effect, and such resignation shall take effect immediately upon the
later of the appointment of a successor trustee and such day.
(b) Any Trustee may be removed at any time by an instrument or concurrent
instruments in writing filed with such Trustee and signed and acknowledged by
the Holders of a majority in principal amount of the then outstanding Notes or
by their attorneys in fact duly authorized.
(c) So long as no Event of Default has occurred and is continuing, and no
event has occurred and is continuing that, with the giving of notice or the
lapse of time or both, would become an Event of Default, the Company may remove
any Trustee upon written notice to the Holder of each Note outstanding and the
Trustee.
(d) If at any time (1) the Trustee shall cease to be eligible in accordance
with Section 9.09 hereof and shall fail to resign after written request therefor
by the Company or by any Holder who has been a bona fide Holder for at least six
months, (2) the Trustee shall fail to comply with Section 9.08 hereof after
written request therefor by the Company or 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 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 the
Trustee may be removed forthwith by an instrument or concurrent instruments in
writing filed with the Trustee and either:
(1) signed by the President or any Vice President of the Company and
attested by the Secretary or an Assistant Secretary of the Company; or
(2) signed and acknowledged by the Holders of a majority in principal
amount of outstanding Notes or by their attorneys in fact duly authorized.
(e) Any resignation or removal of the Trustee shall not become effective
until acceptance of appointment by the successor Trustee as provided in Section
9.11 hereof.
SECTION 9.11. APPOINTMENT OF SUCCESSOR TRUSTEE.
(a) If at any time the Trustee shall resign or be removed, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee.
(b) The Company shall provide written notice of its appointment of a
Successor Trustee to the Holder of each Note outstanding following any such
appointment.
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(c) If no appointment of a successor Trustee shall be made pursuant to
Section 9.11(a) hereof within 60 days after appointment shall be required, any
Noteholder or the resigning Trustee may apply to any court of competent
jurisdiction to appoint a successor Trustee. Said court may thereupon after such
notice, if any, as such court may deem proper and prescribe, appoint a successor
Trustee.
(d) Any Trustee appointed under this Section 9.11 as a successor Trustee
shall be a bank or trust company eligible under Section 9.09 hereof and
qualified under Section 9.08 hereof.
SECTION 9.12. ACCEPTANCE BY SUCCESSOR TRUSTEE.
(a) Any successor Trustee appointed as provided in Section 9.11 hereof shall
execute, acknowledge and deliver to the Company and to its predecessor Trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as Trustee
herein; but nevertheless, on the written request of the Company or of the
successor Trustee, the Trustee ceasing to act shall, upon payment of any amounts
then due it pursuant to Section 9.06 hereof, execute and deliver an instrument
transferring to such successor Trustee all the rights and powers of the Trustee
so ceasing to act, including all right, title, and interest in the Senior Note
First Mortgage Bonds. Upon request of any such successor Trustee, the Company
shall execute any and all instruments in writing in order more fully and
certainly to vest in and confirm to such successor Trustee all such rights and
powers. Any Trustee ceasing to act shall, nevertheless, retain a lien upon all
property or funds held or collected by such Trustee to secure any amounts then
due it pursuant to Section 9.06 hereof.
(b) No successor Trustee shall accept appointment as provided in this
Section 9.12 unless at the time of such acceptance such successor Trustee shall
be qualified under Section 9.08 hereof and eligible under Section 9.09 hereof.
(c) Upon acceptance of appointment by a successor Trustee as provided in
this Section 9.12, the successor Trustee shall mail notice of its succession
hereunder to all Holders of Notes as the names and addresses of such Holders
appear on the registry books.
SECTION 9.13. SUCCESSION BY MERGER, ETC.
(a) Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, provided such corporation shall be otherwise qualified and
eligible under this Article.
(b) If at the time such successor to the Trustee shall succeed to the trusts
created by this Indenture any of the Notes shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor Trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor
Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided that the certificates
of the Trustee shall have; provided that the right to adopt the certificate of
authentication of any predecessor Trustee or authenticate Notes in the name of
any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
SECTION 9.14. LIMITATIONS ON RIGHTS OF TRUSTEE AS A CREDITOR.
The Trustee shall be subject to, and shall comply with, the provisions of
Section 311 of the TIA.
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SECTION 9.15. AUTHENTICATING AGENT.
(a) There may be one or more Authenticating Agents appointed by the Trustee
with the written consent of the Company, with power to act on its behalf and
subject to the direction of the Trustee in the authentication and delivery of
Notes in connection with transfers and exchanges under Sections 2.06, 2.07,
2.08, 2.13, 3.03, and 13.04 hereof, as fully to all intents and purposes as
though such Authenticating Agents had been expressly authorized by those
Sections to authenticate and deliver Notes. For all purposes of this Indenture,
the authentication and delivery of Notes by any Authenticating Agent pursuant to
this Section 9.15 shall be deemed to be the authentication and delivery of such
Notes "by the Trustee." Any such Authenticating Agent shall be a bank or trust
company or other Person of the character and qualifications set forth in Section
9.09 hereof.
(b) Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which 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 such Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section 9.15, without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent or such successor
corporation.
(c) Any Authenticating Agent may at any time resign 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 9.15, the
Trustee may, with the written consent of the Company, appoint a successor
Authenticating Agent, and upon so doing shall give written notice of such
appointment to the Company and shall mail, in the manner provided in Section
15.10, notice of such appointment to the Holders of Notes.
(d) The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services, and the Trustee shall be entitled to
be reimbursed for such payments, in accordance with Section 9.06 hereof.
(e) Sections 9.02, 9.03, 9.06, 9.07 and 9.09 hereof shall be applicable to
any Authenticating Agent.
ARTICLE TEN.
CONCERNING THE NOTEHOLDERS
SECTION 10.01. ACTION BY NOTEHOLDERS. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Notes may take any action, the fact that at the time of taking any
such action the Holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by such Noteholders in person or by agent or proxy appointed in
writing, (b) by the record of such Noteholders voting in favor thereof at any
meeting of Noteholders duly called and held in accordance with Article Eleven
hereof, or (c) by a combination of such instrument or instruments and any such
record of such a meeting of Noteholders.
SECTION 10.02. PROOF OF EXECUTION BY NOTEHOLDERS.
(a) Subject to Sections 9.01, 9.02 and 11.05 hereof, proof of the execution
of any instruments by a Noteholder or the agent or proxy for such Noteholder
shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The ownership of Notes shall be proved by the
register for the Notes maintained by the Trustee.
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(b) The record of any Noteholders' meeting shall be proven in the manner
provided in Section 11.06.
SECTION 10.03. WHO DEEMED ABSOLUTE OWNERS. Subject to Sections 2.04(f) and
10.01 hereof, the Company, the Trustee, any paying agent and any Authenticating
Agent shall deem the person in whose name any Note shall be registered upon the
register for the Notes to be, and shall treat such person as, the absolute owner
of such Note (whether or not such Note shall be overdue) for the purpose of
receiving payment of or on account of the principal and premium, if any, and
interest on such Note, and for all other purposes; and neither the Company nor
the Trustee nor any paying agent nor any Authenticating Agent shall be affected
by any notice to the contrary. All such payments shall be valid and effectual to
satisfy and discharge the liability upon any such Note to the extent of the sum
or sums so paid.
SECTION 10.04. COMPANY-OWNED NOTES DISREGARDED. In determining whether the
Holders of the requisite aggregate principal amount of outstanding Notes have
concurred in any direction, consent or waiver under this Indenture, Notes which
are owned by the Company or any other obligor on the Notes or by any person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any other obligor on the Notes shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination; provided that, for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
only Notes which the Trustee knows are so owned shall be so disregarded. Notes
so owned which have been pledged in good faith to third parties may be regarded
as outstanding for the purposes of this Section 10.04 if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right to take action
with respect to such Notes and that the pledgee is not a person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In the case of a dispute as
to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
SECTION 10.05. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND. Except as may
be otherwise required in the case of a Global Note by the applicable rules and
regulations of the Depositary, at any time prior to the taking of any action by
the Holders of the percentage in aggregate principal amount of the Notes
specified in this Indenture in connection with such action, any Holder of a
Note, which has been included in the Notes the Holders of which have consented
to such action may, by filing written notice with the Trustee at the corporate
trust office of the Trustee and upon proof of ownership as provided in Section
10.02(a), revoke such action so far as it concerns such Note. Except as
aforesaid, any such action taken by the Holder of any Note shall be conclusive
and binding upon such Holder and upon all future Holders and owners of such Note
and of any Notes issued in exchange, substitution or upon registration of
transfer therefor, irrespective of whether or not any notation thereof is made
upon such Note or such other Notes.
SECTION 10.06. RECORD DATE FOR NOTEHOLDER ACTS. If the Company shall
solicit from the Noteholders any request, demand, authorization, direction,
notice, consent, waiver or other act, the Company may, at its option, by Board
Resolution, fix in advance a record date for the determination of Noteholders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other act, but the Company shall have no obligation to do so.
If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other act may be given before or after the record
date, but only the Noteholders of record at the close of business on the record
date shall be deemed to be Noteholders for the purpose of determining whether
Holders of the requisite aggregate principal amount of outstanding Notes have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other act, and for that purpose the
outstanding Notes shall be computed as of the record date; provided that no such
request, demand, authorization, direction, notice, consent, waiver or other act
by the Noteholders on the record date shall be deemed effective unless it shall
become effective pursuant to this Indenture not later than six months after the
record date. Any such record date shall be at least 30 days prior to the date of
the solicitation to the Noteholders by the Company.
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ARTICLE ELEVEN.
NOTEHOLDERS' MEETING
SECTION 11.01. PURPOSES OF MEETINGS. A meeting of Noteholders may be
called at any time and from time to time pursuant to this Article Eleven for any
of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any Event of Default
hereunder and its consequences, or to take any other action authorized to be
taken by Noteholders pursuant to Article Eight;
(b) to remove the Trustee pursuant to Article Nine;
(c) to consent to the execution of an indenture or indentures supplemental
hereto pursuant to Section 13.02; or
(d) to take any other action authorized to be taken by or on behalf of the
Holders of any specified aggregate principal amount of the Notes, as the case
may be, under any other provision of this Indenture or under applicable law.
SECTION 11.02. CALL OF MEETINGS BY TRUSTEE. The Trustee may at any time
call a meeting of Holders of Notes to take any action specified in Section
11.01, to be held at such time and at such place as the Trustee shall determine.
Notice of every such meeting of Noteholders, setting forth the time and the
place of such meeting and in general terms the action proposed to be taken at
such meeting, shall be given to Holders of the Notes that may be affected by the
action proposed to be taken at such meeting in the manner provided in Section
15.10. Such notice shall be given not less than 20 nor more than 90 days prior
to the date fixed for such meeting.
SECTION 11.03. CALL OF MEETINGS BY COMPANY OR NOTEHOLDERS. If at any time
the Company, pursuant to a Board Resolution, or the Holders of at least 10% in
aggregate principal amount of the Notes then outstanding, shall have requested
the Trustee to call a meeting of Noteholders, by written request setting forth
in reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or such Noteholders may determine the
time and the place for such meeting and may call such meeting to take any action
authorized in Section 11.01, by giving notice thereof as provided in Section
11.02.
SECTION 11.04. QUALIFICATIONS FOR VOTING. To be entitled to vote at any
meetings of Noteholders a Person shall (a) be a Holder of one or more Notes
affected by the action proposed to be taken or (b) be a Person appointed by an
instrument in writing as proxy by a Holder of one or more such Notes. The only
Persons who shall be entitled to be present or to speak at any meeting of
Noteholders shall be the Persons entitled to vote at such meeting and their
counsel and any representatives (including employees) of the Trustee and its
counsel and any representatives (including employees) of the Company and its
counsel.
SECTION 11.05. REGULATIONS.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Noteholders in regard to proof of the holding of Notes and of the appointment of
proxies, and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall think fit.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by the Noteholders as provided in Section 11.03, in which case the
Company or Noteholders calling the meeting, as the case may be, shall
37
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by the Holders of a majority
in aggregate principal amount of the Notes present in person or by proxy at the
meeting.
(c) Subject to Section 10.04, at any meeting each Noteholder or proxy shall
be entitled to one vote for each $1,000 principal amount of Notes held or
represented by such Noteholder; provided that no vote shall be cast or counted
at any meeting in respect of any Note ruled by the chairman of the meeting to be
not outstanding. The chairman of the meeting shall have no right to vote other
than by virtue of Notes held by such chairman or instruments in writing as
aforesaid duly designating such chairman as the person to vote on behalf of
other Noteholders. At any meeting of Noteholders duly called pursuant to Section
11.02 or 11.03, the presence of persons holding or representing Notes in an
aggregate principal amount sufficient to take action on any business for the
transaction for which such meeting was called shall constitute a quorum. Any
meeting of Noteholders duly called pursuant to Section 11.02 or 11.03 may be
adjourned from time to time by the Holders of a majority in aggregate principal
amount of the Notes present in person or by proxy at the meeting, whether or not
constituting a quorum, and the meeting may be held as so adjourned without
further notice.
SECTION 11.06. VOTING. The vote upon any resolution submitted to any
meeting of Noteholders shall be by written ballots on which shall be subscribed
the signatures of the Holders of Notes or of their representatives by proxy and
the principal amount of Notes held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of such meeting of Noteholders shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 11.02. The record shall show the aggregate principal amount of the Notes
voting in favor of or against any resolution. The record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee and the Trustee shall have
the ballots taken at the meeting attached to such duplicate. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
SECTION 11.07. RIGHTS OF TRUSTEE OR NOTEHOLDERS NOT DELAYED. Nothing in
this Article Eleven shall be deemed or construed to authorize or permit, by
reason of any call of a meeting of Noteholders or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Holders of Notes under any of the provisions of this Indenture or of the
Notes.
ARTICLE TWELVE.
CONSOLIDATION, MERGER, SALE, TRANSFER OR CONVEYANCE
SECTION 12.01. COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS. The
Company shall not consolidate with or merge into any other corporation or sell,
transfer or otherwise convey to any Person all or substantially all of its
assets unless the corporation formed by such consolidation or into which the
Company is merged or the Person to which all or substantially all of the assets
are sold, transferred or otherwise conveyed (a) shall expressly assume, 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 and interest on all of the Notes and the performance of every
covenant of this Indenture on the part of the Company to be performed or
observed and (b) if such consolidation, merger, transfer, sale or other
conveyance occurs prior to the Release Date, shall expressly assume, by an
indenture supplemental to the First Mortgage, executed and delivered to the
Trustee and the Mortgage Trustee, in form satisfactory to the Trustee and the
Mortgage Trustee, the
38
due and punctual payment of the principal of and premium and interest on all of
the Senior Note First Mortgage Bonds and the performance of every covenant of
the First Mortgage on the part of the Company to be performed or observed. For
purposes of this Article Twelve, the phrase "ALL OR SUBSTANTIALLY ALL OF ITS
ASSETS" shall mean 50% or more of the total assets of the Company as shown on
the balance sheet of the Company as of the end of the calendar year immediately
preceding the day of the year in which such determination is made and nothing in
this Indenture shall prevent or hinder the Company from selling, transferring or
otherwise conveying during any calendar year (in one transaction or a series of
transactions) less than 50% of the amount of its total assets as shown on the
balance sheet of the Company as of the end of the immediately preceding calendar
year.
SECTION 12.02. SUCCESSOR CORPORATION SUBSTITUTED. Upon any consolidation
or merger, or any sale, transfer or conveyance of all or substantially all of
the assets of the Company in accordance with Section 12.01, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance 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 the Company shall be released from all
obligations hereunder.
ARTICLE THIRTEEN.
SUPPLEMENTAL INDENTURES
SECTION 13.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.
(a) The Company, when authorized by Board Resolution, and the Trustee may
from time to time and at any time enter into an indenture or indentures
supplemental hereto for one or more of the following purposes:
(1) to make such provision in regard to matters or questions arising
under this Indenture as may be necessary or desirable, and not inconsistent
with this Indenture or prejudicial to the interests of the Holders for the
purpose of supplying any omission, curing any ambiguity, or curing,
correcting or supplementing any defective or inconsistent provision;
(2) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Note outstanding created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision or
such change or elimination is applicable only to Notes issued after the
effective date of such change or elimination;
(3) to establish the form of Notes as permitted by Section 2.01 or to
establish or reflect any terms of any Note determined pursuant to Section
2.05 hereof;
(4) 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 Notes;
(5) to grant to or confer upon the Trustee for the benefit of the
Holders any additional rights, remedies, powers or authority;
(6) to permit the Trustee to comply with any duties imposed upon it by
law;
(7) to specify further the duties and responsibilities of, and to define
further the relationships among the Trustee, any Authenticating Agent and
any paying agent;
(8) to add to the covenants of the Company for the benefit of the
Holders, to add to the security for the Notes or to surrender a right or
power conferred on the Company herein; and
(9) to make any other change that is not prejudicial to the Trustee or
the Holders.
39
(b) The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder, but the Trustee
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.
(c) Any supplemental indenture authorized by this Section 13.01 may be
executed by the Company and the Trustee without the consent of the Holders of
any of the Notes at the time outstanding, notwithstanding any of the provisions
of Section 13.02.
SECTION 13.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS.
(a) With the consent (evidenced as provided in Section 10.01 hereof) of the
Holders of a majority in aggregate principal amount of the Notes at the time
outstanding, the Company, when authorized by Board Resolution, and the Trustee
may from time to time and at any time 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 any
supplemental indenture or of modifying in any manner the rights of the
Noteholders; provided that no such supplemental indenture shall:
(1) change the maturity date of any Note, or reduce the rate or extend
the time of payment of interest thereon, or reduce the principal amount
thereof or any premium thereon, or change the coin or currency in which the
principal of any Note or any premium or interest thereon is payable, or
change the date on which any Note may be redeemed or adversely affect the
rights of the Noteholders to institute suit for the enforcement of any
payment of principal of or any premium or interest on any Note, or impair
the interest hereunder of the Trustee in the Senior Note First Mortgage
Bonds, or prior to the Release Date, reduce the principal amount of any
series of Senior Note First Mortgage Bonds to an amount less than the
principal amount of the related series of Notes or alter the payment
provisions of such Senior Note First Mortgage Bonds in a manner adverse to
the Holders of the Notes, in each case without the consent of the Holder of
each Note so affected; or
(2) modify this Section 13.02(a) or reduce the aforesaid percentage of
Notes, the Holders of which are required to consent to any such supplemental
indenture or to reduce the percentage of Notes, the Holders of which are
required to waive Events of Default, in each case, without the consent of
the Holders of all of the Notes then outstanding.
(b) Upon the request of the Company, accompanied by a copy of the Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Noteholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
(c) It shall not be necessary for the consent of the Holders of Notes under
this Section 13.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
(d) Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to this Section 13.02, the Trustee shall give
notice in the manner provided in Section 15.10, setting forth in general terms
the substance of such supplemental indenture, to all Noteholders. Any failure of
the Trustee to give such notice or any defect therein shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
SECTION 13.03. COMPLIANCE WITH TRUST INDENTURE ACT; EFFECT OF SUPPLEMENTAL
INDENTURES. Any supplemental indenture executed pursuant to this Article
Thirteen shall comply with the TIA. Upon the execution of any supplemental
indenture pursuant to this Article Thirteen, the
40
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the
Noteholders shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
SECTION 13.04. NOTATION ON NOTES. Notes authenticated and delivered after
the execution of any supplemental indenture pursuant to this Article Thirteen
may 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 Notes
so modified as approved by the Trustee and the Board of Directors with respect
to any modification of this Indenture contained in any such supplemental
indenture may be prepared and executed by the Company, authenticated by the
Trustee and delivered in exchange for the Notes then outstanding.
SECTION 13.05. EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE
FURNISHED TRUSTEE. The Trustee, subject to Sections 9.01 and 9.02, may receive
an Officers' Certificate and an Opinion of Counsel as conclusive evidence that
any supplemental indenture executed pursuant hereto complies with the
requirements of this Article Thirteen.
ARTICLE FOURTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 14.01. INDENTURE AND NOTES SOLELY CORPORATE OBLIGATIONS. No
recourse for the payment of the principal of or any premium or interest on any
Note or any Senior Note First 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 in any
supplemental indenture, or in any Note, 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 Notes.
ARTICLE XV.
MISCELLANEOUS PROVISIONS
SECTION 15.01. PROVISIONS BINDING ON COMPANY'S SUCCESSORS. All the
covenants, stipulations, promises and agreements made by the Company in this
Indenture shall bind its successors and assigns whether so expressed or not.
SECTION 15.02. OFFICIAL ACTS BY SUCCESSOR CORPORATION. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the lawful successor of the
Company.
SECTION 15.03. NOTICES.
(a) Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Noteholders
on the Company may be given or served by being deposited postage prepaid in a
post office letter box addressed (until another address is filed by the Company
with the Trustee) at the principal executive offices of the Company, to the
attention of the
41
Secretary. Any notice, direction, request or demand by any Noteholder, the
Company or the Mortgage Trustee to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made in writing
at the corporate trust office of the Trustee, Attention: .
(b) The Company shall provide any notices required under this Indenture by
publication, but only to the extent that such publication is required by the
TIA, the rules and regulations of the Commission or any securities exchange upon
which any series of Notes is listed.
SECTION 15.04. GOVERNING LAW. This Indenture and each Note shall be deemed
to be a contract made under the laws of the State of Oklahoma, and for all
purposes shall be construed in accordance with the laws of said State.
SECTION 15.05. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
(a) Upon any application or demand by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture (including any covenants compliance with which constitutes
a condition precedent) relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
(b) Each certificate or opinion provided for in this Indenture and delivered
to the Trustee with respect to compliance with a condition or covenant provided
for in this Indenture (other than the certificates delivered pursuant to Section
6.06 hereof) shall include (1) a statement that each Person making such
certificate or opinion has read such covenant or condition and the definitions
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 Person, such Person has made such examination or investigation as is
necessary to enable such Person 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 or not, in the opinion of each such Person, such condition or covenant
has been complied with.
(c) 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.
(d) 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 such certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel delivered under the
Indenture 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 person knows, or in the exercise of
reasonable care should know, that the certificate or opinion of representations
with respect to such matters are erroneous. Any opinion of counsel delivered
hereunder may contain standard exceptions and qualifications satisfactory to the
Trustee.
(e) Any certificate, statement or opinion of any officer of the Company, or
of counsel, may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an independent public accountant
or firm of accountants, unless such officer or counsel, as the case may be,
knows that the certificate or opinions or representations with respect to the
accounting matters upon which the certificate, statement or opinion of such
officer or counsel may be based as
42
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate or opinion of any firm of independent
public accountants filed with the Trustee shall contain a statement that such
firm is independent.
(f) 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 15.06. BUSINESS DAYS. Unless otherwise provided pursuant to
Section 2.05(c), in any case where the date of maturity of the principal of or
any premium or interest on any Note or the date fixed for redemption of any Note
is not a Business Day, then payment of such principal or any premium or interest
need not be made on such date but may be made on the next succeeding Business
Day with the same force and affect as if made on the date of maturity or the
date fixed for redemption, and, in the case of timely payment thereof, no
interest shall accrue for the period from and after such Interest Payment Date
or the date on which the principal of the Note is required to be paid.
SECTION 15.07. TRUST INDENTURE ACT TO CONTROL. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties
imposed by any of Sections 310 to 317, inclusive, of the TIA, such required
provision of the TIA shall govern.
SECTION 15.08. TABLE OF CONTENTS, HEADINGS, ETC. The table of contents and
the titles and headings of the articles and sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
SECTION 15.09. EXECUTION IN COUNTERPARTS. This Indenture may be executed
in any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
SECTION 15.10. MANNER OF MAILING NOTICE TO NOTEHOLDERS. Any notice or
demand which by any provision of this Indenture is required or permitted to be
given or served by the Trustee or the Company to or on the Holders of Notes, as
the case may be, shall be given or served by first-class mail, postage prepaid,
addressed to the Holders of such Notes at their last addresses as the same
appear on the register for the Notes referred to in Section 2.06, and any such
notice shall be deemed to be given or served by being deposited in a post office
letter box in the form and manner provided in this Section 15.10. In case by
reason of the suspension of regular mail service or by reason of any other cause
it shall be impracticable to give notice to any Holder by mail, then such
notification to such Holder as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 15.11. APPROVAL BY TRUSTEE OF EXPERT OR COUNSEL. Wherever the
Trustee is required to approve an Expert or counsel who is to furnish evidence
of compliance with conditions precedent in this Indenture, such approval by the
Trustee shall be deemed to have been given upon the taking of any action by the
Trustee pursuant to and in accordance with the certificate or opinion so
furnished by such Expert or counsel.
IN WITNESS WHEREOF, OKLAHOMA GAS AND ELECTRIC COMPANY has caused this
Indenture to be signed and acknowledged by one of its Vice Presidents, and
attested by its Secretary, and Xxxxxxx's
43
First National Bank of Oklahoma has caused this Indenture to be signed and
acknowledged by one of its Vice Presidents, and attested by one of its Assistant
Secretaries, as of the day and year first written above.
OKLAHOMA GAS AND ELECTRIC COMPANY
By ------------------------------------
ATTEST: VICE PRESIDENT
------------------------------------
SECRETARY
BOATMEN'S FIRST NATIONAL BANK OF
OKLAHOMA, AS TRUSTEE
BY
----------------------------------------
VICE PRESIDENT
ATTEST:
------------------------------------
ASSISTANT SECRETARY
44
EXHIBIT A
FORM OF GLOBAL NOTE
PRIOR TO RELEASE DATE
REGISTERED REGISTERED
THIS NOTE IS A GLOBAL NOTE REGISTERED IN THE NAME OF THE DEPOSITARY
(REFERRED TO HEREIN) OR A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL
NOTE 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 DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (00 XXXXX XXXXXX, XXX XXXX, XXX XXXX), TO THE TRUSTEE FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
OKLAHOMA GAS AND ELECTRIC COMPANY
SENIOR NOTE, SERIES
CUSIP: NUMBER:
ORIGINAL ISSUE DATE(S): PRINCIPAL AMOUNT(S):
INTEREST RATE: MATURITY DATE:
OKLAHOMA GAS AND ELECTRIC COMPANY, a corporation of the State of Oklahoma
(the "COMPANY"), for value received hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon from the
Original Issue Date (or if this Global Note has two or more Original Issue
Dates, interest shall, beginning on each such Original Issue Date, begin to
accrue for that part of the principal amount to which that Original Issue Date
is applicable) set forth above or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semiannually in arrears on
the and in each year, commencing on the first such Interest
Payment Date succeeding the applicable Original Issue Date set forth above, at
the per annum Interest Rate set forth above, until the principal hereof is paid
or made available for payment. No interest shall accrue on the Maturity Date, so
long as the principal amount
A-1
of this Global Note is paid on the Maturity Date. The interest so payable and
punctually paid or duly provided for on any such Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Note is
registered at the close of business on the Regular Record Date for such
interest, which shall be the or , as the case may be, next
preceding such Interest Payment Date; provided that the first Interest Payment
Date for any part of any Note, the Original Issue Date of which is after a
Regular Record Date but prior to the applicable Interest Payment Date, shall be
the Interest Payment Date following the next succeeding Regular Record Date; and
provided that interest payable on the Maturity Date set forth above or, if
applicable, upon redemption or acceleration, shall be payable to the Person to
whom principal shall be payable. Except as otherwise provided in the Indenture
(as defined below), any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the Holder on such Regular Record
Date and shall be paid to the Person in whose name this Note 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
Noteholders not more than fifteen days or fewer than ten days prior to such
Special Record Date. On or before 10:00 a.m., New York City time, or such other
time as shall be agreed upon between the Trustee and the Depositary, of the day
on which such payment of interest is due on this Global Note (other than
Maturity), the Trustee shall pay to the Depositary such interest in same day
funds. On or before 10:00 a.m., New York City time, or such other time as shall
be agreed upon between the Trustee and the Depositary, of the day on which
principal, interest payable at Maturity and premium, if any, is due on this
Global Note, the Trustee shall deposit with the Depositary the amount equal to
the principal, interest payable at Maturity and premium, if any, by wire
transfer into the account specified by the Depositary. As a condition to the
payment, at Maturity or upon redemption, of any part of the principal and
applicable premium of this Global Note, the Depositary shall surrender, or cause
to be surrendered, this Global Note to the Trustee, whereupon a new Global Note
shall be issued to the Depositary.
This Global Note is a global security in respect of a duly authorized issue
of Senior Notes, Series (the "NOTES", which term includes any Global Notes
representing such Notes) of the Company issued and to be issued under an
Indenture dated as of , 199 (the "INDENTURE") between the Company
and Boatmen's First National Bank of Oklahoma, as trustee (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 more complete
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Noteholders and of the terms upon
which the Notes are and are to be authenticated and delivered. This Global Note
has been issued in respect of the series designated on the first page hereof,
limited in aggregate principal amount to $ .
Prior to the Release Date (as hereinafter defined), the Notes will be
secured by first mortgage bonds (the "SENIOR NOTE FIRST MORTGAGE BONDS")
delivered by the Company to the Trustee for the benefit of the Holders of the
Notes, issued under the Trust Indenture, dated as of February 1, 1945, from the
Company to Boatmen's First National Bank of Oklahoma, as successor trustee to
The First National Bank and Trust Company of Oklahoma City (the "MORTGAGE
TRUSTEE"), as supplemented and modified (the "FIRST MORTGAGE") pursuant to the
Supplemental Indenture dated . Reference is made to the First
Mortgage 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 and of the Mortgage Trustee in respect
thereof, the duties and immunities of the Mortgage Trustee and the terms and
conditions upon which the Senior Note First Mortgage Bonds are secured and the
circumstances under which additional first mortgage bonds may be issued.
FROM AND AFTER SUCH TIME AS ALL FIRST MORTGAGE BONDS (OTHER THAN SENIOR
NOTE, FIRST MORTGAGE BONDS) ISSUED UNDER THE FIRST MORTGAGE HAVE BEEN RETIRED
THROUGH PAYMENT, REDEMPTION OR OTHERWISE (INCLUDING THOSE FIRST MORTGAGE BONDS
"DEEMED TO BE PAID"
A-2
WITHIN THE MEANING OF THAT TERM AS USED IN ARTICLE X OF THE FIRST MORTGAGE) AT,
BEFORE OR AFTER THE MATURITY THEREOF (THE "RELEASE DATE"), THE SENIOR NOTE FIRST
MORTGAGE BONDS SHALL CEASE TO SECURE THE NOTES IN ANY MANNER.
Each Note shall be dated and issued as of the date of its authentication by
the Trustee and shall bear an Original Issue Date or Dates. Each Note or Global
Note issued upon transfer, exchange or substitution of such Note or Global Note
shall bear the Original Issue Date or Dates of such transferred, exchanged or
substituted Note or Global Note, as the case may be.
[As applicable, one of the following two sentences: This Global Note may not
be redeemed prior to , 19 . This Global Note is not redeemable prior
to the Maturity Date set forth on the first page hereof.] [If applicable: On or
after , , this Global Note is redeemable in whole or in part in
increments of $1,000 (provided that any remaining principal amount of this
Global Note shall be at least $100,000) at the option of the Company at the
following redemption prices (expressed as a percentage of the principal amount
to be redeemed) plus accrued interest to the redemption date:
Redemption Periods Redemption Prices
------------------ -----------------
Notice of redemption will be given by mail to Holders of Notes not less than 30
or more than 60 days prior to the date fixed for redemption, all as provided in
the Indenture. In the event of redemption of this Global Note in part only, a
new Global Note or Notes of like tenor and series for the unredeemed portion
hereof will be issued in the name of the Noteholder hereof upon the surrender
hereof.]
Interest payments for this Global Note shall be computed and paid on the
basis of a 360-day year of twelve 30-day months. If any Interest Payment Date or
date on which the principal of this Global Note is required to be paid is not a
Business Day, then payment of principal, premium or interest need not be made on
such date but may be made on the next succeeding Business Day with the same
force and effect as if made on such Interest Payment Date or date on which the
principal of this Global Note is required to be paid and, in the case of timely
payment thereof, no interest shall accrue for the period from and after such
Interest Payment Date or the date on which the principal of this Global Note is
required to be paid.
The Company, at its option, and subject to the terms and conditions provided
in the Indenture, will be discharged from any and all obligations in respect of
the Notes (except for certain obligations including obligations to register the
transfer or exchange of Notes, replace stolen, lost or mutilated Notes, maintain
paying agencies and hold monies for payment in trust, all as set forth in the
Indenture) if the Company deposits with the Trustee money, U.S. Government
Obligations which through the payment of interest thereon and principal thereof
in accordance with their terms will provide money, or a combination of money and
U.S. Government Obligations, in any event in an amount sufficient, without
reinvestment, to pay all the principal of and any premium and interest on the
Notes on the dates such payments are due in accordance with the terms of the
Notes.
If an Event of Default shall occur and be continuing, the principal of the
Notes may be declared due and payable in the manner and with the effect provided
in the Indenture and, upon such declaration, the Trustee can demand the
redemption of the Senior Note First Mortgage Bonds as provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Noteholders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the outstanding Notes. Any such consent or
waiver by the Holder of this Global Note shall be conclusive and binding upon
such Holder and upon all future Holders of this Global Note and of any Note
issued upon the registration of transfer hereof or in exchange therefor or in
lieu thereof whether or not notation of such consent or waiver is made upon the
Note.
A-3
As set forth in and subject to the provisions of the Indenture, no Holder of
any Notes will have any right to institute any proceeding with respect to the
Indenture or for any remedy thereunder unless such Holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to such Notes, the Holders of not less than a majority in principal
amount of the outstanding Notes affected by such Event of Default shall have
made written request and offered reasonable indemnity to the Trustee to
institute such proceeding as Trustee and the Trustee shall have failed to
institute such proceeding within 60 days; provided that such limitations do not
apply to a suit instituted by the Holder hereof for the enforcement of payment
of the principal of and any premium or interest on this Note on or after the
respective due dates expressed here.
No reference herein to the Indenture and to provisions of this Global Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Global Note at the times, places and rates and the coin or
currency prescribed in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, this Global Note may be transferred only as permitted by the legend
hereto.
If at any time the Depositary for this Global Note notifies the Company that
it is unwilling or unable to continue as Depositary for this Global Note or if
at any time the Depositary for this Global Note shall no longer be eligible or
in good standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, the Company shall appoint a successor
Depositary with respect to this Global Note. If a successor Depositary for this
Global Note is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election to issue this Note in global form shall no longer be effective with
respect to this Global Note and the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of individual
Notes in exchange for this Global Note, will authenticate and deliver individual
Notes of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of this Global Note.
The Company may at any time and in its sole discretion determine that all
Notes (but not less than all) issued or issuable in the form of one or more
Global Notes shall no longer be represented by such Global Note or Notes. In
such event, the Company shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of individual Notes in
exchange for such Global Note, shall authenticate and deliver, individual Notes
of like tenor and terms in definitive form in an aggregate principal amount
equal to the principal amount of such Global Note or Notes in exchange for such
Global Note or Notes.
Under certain circumstances specified in the Indenture, the Depositary may
be required to surrender any two or more Global Notes which have identical terms
(but which may have differing Original Issue Dates) to the Trustee, and the
Company shall execute and the Trustee shall authenticate and deliver to, or at
the direction of, the Depositary a Global Note in principal or amount equal to
the aggregate principal amount of, and with all terms identical to, the Global
Notes surrendered thereto and that shall indicate all Original Issue Dates and
the principal amount applicable to each such Original Issue Date.
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of Oklahoma.
Unless the certificate of authentication hereon has been executed by the
Trustee, directly or through an Authenticating Agent by manual signature of an
authorized officer, this Global Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
All terms used in this Global Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture unless otherwise indicated
herein.
A-4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
OKLAHOMA GAS AND ELECTRIC COMPANY
Dated: By:
--------------------------------------
Title:
------------------------------------
Attest:
------------------------------------
Title:
------------------------------------
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Notes of the
series herein designated, described or
provided for in the within-mentioned
Indenture.
BOATMEN'S FIRST NATIONAL BANK
OF OKLAHOMA, AS TRUSTEE
By:
---------------------------------------
AUTHORIZED OFFICER
A-5
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT
MIN ACT -- Custodian
-------- ----------------
(Cust) (Minor)
TEN ENT -- as tenants by the
entireties Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right
of survivorship and not as tenants in
common
--------------------------------------
State
Additional abbreviations may also be used
though not in the above list.
--------------
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address
including postal zip code of assignee
--------------------------------------
the within note and all rights
thereunder, hereby irrevocably
constituting and appointing
attorney to
transfer said note on the books of the
Company, with full power of
substitution in the premises.
Dated:
------------------------
--------------------------------------
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within instrument in every particular,
without alteration or enlargement or
any change whatever.
A-6
EXHIBIT B
FORM OF NOTE
PRIOR TO RELEASE DATE
REGISTERED REGISTERED
OKLAHOMA GAS AND ELECTRIC COMPANY
SENIOR NOTE, SERIES
CUSIP: PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE: MATURITY DATE:
INTEREST RATE: NUMBER:
OKLAHOMA GAS AND ELECTRIC COMPANY, a corporation of the State of Oklahoma
(the "COMPANY"), for value received hereby promises to pay to
or registered assigns, the principal sum of
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon from the
Original Issue Date set forth above or from the most recent date to which
interest has been paid or duly provided for, semiannually in arrears on
and in each year, commencing on the first such Interest Payment Date
succeeding the Original Issue Date set forth above, at the per annum Interest
Rate set forth above, until the principal hereof is paid or made available for
payment. No interest shall accrue on the Maturity Date, so long as the principal
amount of this Note is paid in full on the Maturity Date. The interest so
payable and punctually paid or duly provided for on any such Interest Payment
Date will, as provided in the Indenture (as defined below), be paid to the
Person in whose name this Note is registered at the close of business on the
Regular Record Date for such interest, which shall be the or ,
as the case may be, next preceding such Interest Payment Date; provided that the
first Interest Payment Date for any Note, the Original Issue Date of which is
after a Regular Record Date but prior to the applicable Interest Payment Date,
shall be the Interest Payment Date following the next succeeding Regular Record
Date; and provided, further, that interest payable on the Maturity Date set
forth above or, if applicable, upon redemption, shall be payable to the Person
to whom principal shall be payable. Except as otherwise provided in the
Indenture (referred to on the reverse hereof), 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 shall be paid to the Person in whose name
this Note 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 Noteholders not more than fifteen days nor fewer than
ten days prior to such Special Record Date. Principal, applicable premium and
interest due at the Maturity of this Note shall be payable in immediately
available funds when due upon presentation and surrender of this Note at the
corporate trust office of the Trustee or at the authorized office of any paying
agent in the Borough of Manhattan, the City and State of New York. Interest on
this Note (other than interest payable at Maturity) shall be paid by check in
clearinghouse funds to the Holder as its name appears on the register; provided
that if the Trustee receives a written
B-1
request from any Holder of Notes, the aggregate principal amount of all of which
having the same Interest Payment Date equals or exceeds $10,000,000, on or prior
to the applicable Regular Record Date, interest shall be paid by wire transfer
of immediately available funds to a bank within the continental United States or
by direct deposit into the account of such Holder if such account is maintained
with the Trustee or any paying agent.
REFERENCE IS XXXXXX MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH IN
FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE
THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an Authenticating
Agent by manual signature of an authorized officer, this Note 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.
OKLAHOMA GAS AND ELECTRIC COMPANY
Dated: By:
---------------------------------------
Title:
--------------------------------------
Attest:
-------------------------------------
Title:
--------------------------------------
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Notes of the
series herein designated, described or
provided for in the within-mentioned
Indenture.
BOATMEN'S FIRST NATIONAL BANK
OF OKLAHOMA, AS TRUSTEE
By:
---------------------------------------
AUTHORIZED OFFICER
B-2
[FORM OF REVERSE OF NOTE]
OKLAHOMA GAS AND ELECTRIC COMPANY
SENIOR NOTE, SERIES
This Note is one of a duly authorized issue of Senior Notes, Series (the
"NOTES") of the Company issued and to be issued under an Indenture dated as of
, 199 (the "INDENTURE") between the Company and Boatmen's First
National Bank of Oklahoma, as trustee (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 more complete statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Noteholders and of the terms upon which the
Notes are and are to be authenticated and delivered. This Note is one of the
series designated on the face hereof, limited in aggregate principal amount to
$ .
Prior to the Release Date (as hereinafter defined), the Notes will be
secured by first mortgage bonds (the "SENIOR NOTE FIRST MORTGAGE BONDS")
delivered by the Company to the Trustee for the benefit of the Holders of the
Notes, issued under the Trust Indenture, dated as of February 1, 1945, from the
Company to Boatmen's First National Bank of Oklahoma, as successor trustee to
The First National Bank and Trust Company of Oklahoma City (the "MORTGAGE
TRUSTEE"), as supplemented and modified (the "FIRST MORTGAGE") pursuant to the
Supplemental Indenture dated . Reference is made to the First
Mortgage 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 and of the Mortgage Trustee in respect
thereof, the duties and immunities of the Mortgage Trustee and the terms and
conditions upon which the Senior Note First Mortgage Bonds are secured and the
circumstances under which additional first mortgage bonds may be issued.
FROM AND AFTER SUCH TIME AS ALL FIRST MORTGAGE BONDS (OTHER THAN SENIOR NOTE
FIRST MORTGAGE BONDS) ISSUED UNDER THE FIRST MORTGAGE 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 X OF THE FIRST
MORTGAGE) AT, BEFORE OR AFTER THE MATURITY THEREOF (THE "RELEASE DATE"), THE
SENIOR NOTE FIRST MORTGAGE BONDS SHALL CEASE TO SECURE THE NOTES IN ANY MANNER.
[As applicable, one of the following two sentences: This Note may not be
redeemed prior to , 19 . This Note is not redeemable prior to the
Maturity Date set forth on the face hereof.] [If applicable: On or after
, , this Note is redeemable in whole or in part
in increments of $1,000 (provided that any remaining principal amount of this
Note shall be at least $1,000) at the option of the Company at the following
redemption prices (expressed as a percentage of the principal amount to be
redeemed) plus accrued interest to the redemption date:
Redemption Periods Redemption Prices
------------------ -----------------
Notice of redemption will be given by mail to Holders of Notes not less than 30
or more than 60 days prior to the date fixed for redemption, all as provided in
the Indenture. In the event of redemption of this Note in part only, a new Note
or Notes of like tenor for the unredeemed portion hereof will be issued in the
name of the Noteholder hereof upon the surrender hereof.]
B-3
Interest payments for this Note shall be computed and paid on the basis of a
360-day year of twelve 30-day months. If any Interest Payment Date or the date
on which the principal of this Note is required to paid is not a Business Day,
then payment of principal, premium or interest need not be made on such date but
may be made on the next succeeding Business Day with the same force and effect
as if made on such Interest Payment Date or the date on which the principal of
this Note is required to be paid, and, in the case of timely payment thereof, no
interest shall accrue for the period from and after such Interest Payment Date
or the date on which the principal of this Note is required to be paid.
The Company, at its option, and subject to the terms and conditions provided
in the Indenture, will be discharged from any and all obligations in respect of
the Notes (except for certain obligations including obligations to register the
transfer or exchange of Notes, replace stolen, lost or mutilated Notes, maintain
paying agencies and hold monies for payment in trust, all as set forth in the
Indenture) if the Company deposits with the Trustee money, U.S. Government
Obligations which through the payment of interest thereon and principal thereof
in accordance with their terms will provide money, or a combination of money and
U.S. Government Obligations, in any event in an amount sufficient, without
reinvestment, to pay all the principal of and any premium and interest on the
Notes on the dates such payments are due in accordance with the terms of the
Notes.
If an Event of Default shall occur and be continuing, the principal of the
Notes may be declared due and payable in the manner and with the effect provided
in the Indenture and, upon such declaration, the Trustee can demand the
redemption of the Senior Note First Mortgage Bonds as provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Noteholders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the outstanding Notes. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange therefor in lieu thereof whether
or not notation of such consent or waiver is made upon the Note.
As set forth in and subject to the provisions of the Indenture, no Holder of
any Notes will have any right to institute any proceeding with respect to the
Indenture or for any remedy thereunder unless such Holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to such Notes, the Holders of not less than a majority in principal
amount of the outstanding Notes affected by such Event of Default shall have
made written request and offered reasonable indemnity to the Trustee to
institute such proceeding as Trustee and the Trustee shall have failed to
institute such proceeding within 60 days; provided that such limitations do not
apply to a suit instituted by the Holder hereof for the enforcement of payment
of the principal of and any premium or interest on this Note on or after the
respective due dates expressed here.
No reference herein to the Indenture and to provisions of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the times, places and rates and the coin or currency prescribed
in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Note register. Upon
surrender of this Note for registration or transfer at the corporate trust
office of the Trustee or such other office or agency as may be designated by the
Company in the Borough of Manhattan, the City and State of New York, endorsed by
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note registrar, duly executed by the Holder hereof or the
attorney in fact of such Holder duly authorized in writing, one or more new
Notes of like tenor and series of authorized denominations and for the same
aggregate principal amount will be issued to the designated transferee or
transferees.
B-4
The Notes are issuable only in registered form, without coupons, in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of like tenor and
series of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of the Notes 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 Note is registered as the owner thereof for all
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of Oklahoma.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
B-5
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT
MIN ACT -- Custodian
-------- ----------------
(Cust) (Minor)
TEN ENT -- as tenants by the
entireties Under Uniform Gifts to Minors
JT TEN -- as joint tenants with
right of survivorship and not as
tenants in common
----------------------------------------
State
Additional abbreviations may also be used
though not in the above list.
--------------
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address
including postal zip code of assignee
--------------------------------------
the within note and all rights
thereunder, hereby irrevocably
constituting and appointing
attorney to
transfer said note on the books of the
Company, with full power of
substitution in the premises.
Dated:
------------------------
--------------------------------------
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within instrument in every particular,
without alteration or enlargement or
any change whatever.
B-6
EXHIBIT C
FORM OF GLOBAL NOTE FOLLOWING RELEASE DATE
REGISTERED REGISTERED
THIS NOTE IS A GLOBAL NOTE REGISTERED IN THE NAME OF THE DEPOSITARY
(REFERRED TO HEREIN) OR A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL
NOTE 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 DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (00 XXXXX XXXXXX, XXX XXXX, XXX XXXX), TO THE TRUSTEE FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
OKLAHOMA GAS AND ELECTRIC COMPANY
SENIOR NOTE, SERIES
CUSIP: NUMBER:
ORIGINAL ISSUE DATE(S): PRINCIPAL AMOUNT(S):
INTEREST RATE: MATURITY DATE:
OKLAHOMA GAS AND ELECTRIC COMPANY, a corporation of the State of Oklahoma
(the "COMPANY"), for value received hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon from the
Original Issue Date (or if this Global Note has two or more Original Issue
Dates, interest shall, beginning on each such Original Issue Date, begin to
accrue for that part of the principal amount to which that Original Issue Date
is applicable) set forth above or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semiannually in arrears on
the and in each year, commencing on the first such Interest
Payment Date succeeding the applicable Original Issue Date set forth above, at
the per annum Interest Rate set forth above, until the principal hereof is paid
or made available for payment. No interest shall accrue on the Maturity Date, so
long as the principal amount of this Global Note is paid on the Maturity Date.
The interest so payable and punctually paid or duly provided for on any such
Interest Payment Date will, as provided in the Indenture, be paid to the
C-1
Person in whose name this Note is registered at the close of business on the
Regular Record Date for such interest, which shall be the or ,
as the case may be, next preceding such Interest Payment Date; provided, that
the first Interest Payment Date for any part of any Note, the Original Issue
Date of which is after a Regular Record Date but prior to the applicable
Interest Payment Date, shall be the Interest Payment Date following the next
succeeding Regular Record Date; and provided, that interest payable on the
Maturity Date set forth above or, if applicable, upon redemption or
acceleration, shall be payable to the Person to whom principal shall be payable.
Except as otherwise provided in the Indenture (as defined below), 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 shall be paid to the
Person in whose name this Note 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 Noteholders not more than fifteen
days or fewer than ten days prior to such Special Record Date. On or before
10:00 a.m., New York City time, or such other time as shall be agreed upon
between the Trustee and the Depositary, of the day on which such payment of
interest is due on this Global Note (other than Maturity), the Trustee shall pay
to the Depositary such interest in same day funds. On or before 10:00 a.m., New
York City time, or such other time as shall be agreed upon between the Trustee
and the Depositary, of the day on which principal, interest payable at Maturity
and premium, if any, is due on this Global Note, the Trustee shall deposit with
the Depositary the amount equal to the principal, interest payable at Maturity
and premium, if any, by wire transfer into the account specified by the
Depositary. As a condition to the payment, at Maturity or upon redemption, of
any part of the principal and applicable premium of this Global Note, the
Depositary shall surrender, or cause to be surrendered, this Global Note to the
Trustee, whereupon a new Global Note shall be issued to the Depositary.
This Global Note is a global security in respect of a duly authorized issue
of Senior Notes, Series (the "NOTES", which term includes any Global Notes
representing such Notes) of the Company issued and to be issued under an
Indenture dated as of , 199 (herein called the "INDENTURE") between
the Company and Boatmen's First National Bank of Oklahoma, 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 more complete statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Noteholders and of the terms upon which the Notes are and are to
be authenticated and delivered. This Global Note has been issued in respect of
the series designated on the first page hereof, limited in aggregate principal
amount to $ .
Each Note shall be dated and issued as of the date of its authentication by
the Trustee and shall bear an Original Issue Date or Dates. Each Note or Global
Note issued upon transfer, exchange or substitution of such Note or Global Note
shall bear the Original Issue Date or Dates of such transferred, exchanged or
substituted Note or Global Note, as the case may be.
[As applicable, one of the following two sentences: This Global Note may not
be redeemed prior to , . This Global Note is not redeemable prior
to the Maturity Date set forth on the first page hereof.] [If applicable: On or
after , 19 , this Global Note is redeemable in whole or in part in
increments of $1,000 (provided that any remaining principal amount of this
Global Note shall be at least $100,000) at the option of the Company at the
following redemption prices (expressed as a percentage of the principal amount
to be redeemed) plus accrued interest to the redemption date:
Redemption Periods Redemption Prices
------------------ -----------------
C-2
Notice of redemption will be given by mail to Holders of Notes not less than 30
or more than 60 days prior to the date fixed for redemption, all as provided in
the Indenture. In the event of redemption of this Global Note in part only, a
new Global Note or Notes of like tenor and series for the unredeemed portion
hereof will be issued in the name of the Noteholder hereof upon the surrender
hereof.]
Interest payments for this Global Note shall be computed and paid on the
basis of a 360-day year of twelve 30-day months. In any case where any Interest
Payment Date or date on which the principal of this Global Note is required to
be paid is not a Business Day, then payment of principal, premium or interest
need not be made on such date but may be made on the next succeeding Business
Day with the same force and effect as if made on such Interest Payment Date or
date on which the principal of this Global Note is required to be paid and, in
the case of timely payment thereof, no interest shall accrue for the period from
and after such Interest Payment Date or the date on which the principal of this
Global Note is required to be paid.
The Company, at its option, and subject to the terms and conditions provided
in the Indenture, will be discharged from any and all obligations in respect of
the Notes (except for certain obligations including obligations to register the
transfer or exchange of Notes, replace stolen, lost or mutilated Notes, maintain
paying agencies and hold monies for payment in trust, all as set forth in the
Indenture) if the Company deposits with the Trustee money, U.S. Government
Obligations which through the payment of interest thereon and principal thereof
in accordance with their terms will provide money, or a combination of money and
U.S. Government Obligations, in any event in an amount sufficient, without
reinvestment, to pay all the principal of and any premium and interest on the
Notes on the dates such payments are due in accordance with the terms of the
Notes.
If an Event of Default shall occur and be continuing, the principal of the
Notes may be declared due and payable in the manner and with the effect provided
in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Noteholders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the outstanding Notes. Any such consent or
waiver by the Holder of this Global Note shall be conclusive and binding upon
such Holder and upon all future Holders of this Global Note and of any Note
issued upon the registration of transfer hereof or in exchange therefor or in
lieu thereof whether or not notation of such consent or waiver is made upon the
Note.
As set forth in and subject to the provisions of the Indenture, no Holder of
any Notes will have any right to institute any proceeding with respect to the
Indenture or for any remedy thereunder unless such Holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to such Notes, the Holders of not less than a majority in principal
amount of the outstanding Notes affected by such Event of Default shall have
made written request and offered reasonable indemnity to the Trustee to
institute such proceeding as Trustee and the Trustee shall have failed to
institute such proceeding within 60 days; PROVIDED, HOWEVER, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of and any premium or interest on this
Note on or after the respective due dates expressed here.
No reference herein to the Indenture and to provisions of this Global Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Global Note at the times, places and rates and the coin or
currency prescribed in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, this Global Note may be transferred only as permitted by the legend
hereto.
If at any time the Depositary for this Global Note notifies the Company that
it is unwilling or unable to continue as Depositary for this Global Note or if
at any time the Depositary for this Global Note shall no longer be eligible or
in good standing under the Securities Exchange Act of 1934, as
C-3
amended, or other applicable statute or regulation, the Company shall appoint a
successor Depositary with respect to this Global Note. If a successor Depositary
for this Global Note is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the
Company's election to issue this Note in global form shall no longer be
effective with respect to this Global Note and the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
individual Notes in exchange for this Global Note, will authenticate and deliver
individual Notes of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of this Global Note.
The Company may at any time and in its sole discretion determine that all
Notes (but not less than all) issued or issuable in the form of one or more
Global Notes shall no longer be represented by such Global Note or Notes. In
such event, the Company shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of individual Notes in
exchange for such Global Note, shall authenticate and deliver, individual Notes
of like tenor and terms in definitive form in an aggregate principal amount
equal to the principal amount of such Global Note or Notes in exchange for such
Global Note or Notes.
Under certain circumstances specified in the Indenture, the Depositary may
be required to surrender any two or more Global Notes which have identical terms
(but which may have differing Original Issue Dates) to the Trustee, and the
Company shall execute and the Trustee shall authenticate and deliver to, or at
the direction of, the Depositary a Global Note in principal or amount equal to
the aggregate principal amount of, and with all terms identical to, the Global
Notes surrendered thereto and that shall indicate all Original Issue Dates and
the principal amount applicable to each such Original Issue Date.
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of Oklahoma.
Unless the certificate of authentication hereon has been executed by the
Trustee, directly or through an Authenticating Agent by manual signature of an
authorized officer, this Global Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
All terms used in this Global Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture unless otherwise indicated
herein.
C-4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
OKLAHOMA GAS AND ELECTRIC COMPANY
Dated: By:
---------------------------------------
Title:
--------------------------------------
Attest:
-------------------------------------
Title:
--------------------------------------
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Notes of the
series herein designated, described or
provided for in the within-mentioned
Indenture.
BOATMEN'S FIRST NATIONAL BANK
OF OKLAHOMA, AS TRUSTEE
By:
---------------------------------------
AUTHORIZED OFFICER
C-5
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT
MIN ACT -- Custodian
-------- ----------------
(Cust) (Minor)
TEN ENT -- as tenants by the
entireties Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right
of survivorship and not as tenants in
common
--------------------------------------
State
Additional abbreviations may also be used
though not in the above list.
--------------
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address
including postal zip code of assignee
--------------------------------------
the within note and all rights
thereunder, hereby irrevocably
constituting and appointing
attorney to
transfer said note on the books of the
Company, with full power of
substitution in the premises.
Dated:
------------------------
--------------------------------------
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within instrument in every particular,
without alteration or enlargement or
any change whatever.
C-6
EXHIBIT D
FORM OF NOTE FOLLOWING RELEASE DATE
REGISTERED REGISTERED
OKLAHOMA GAS AND ELECTRIC COMPANY
SENIOR NOTE, SERIES
CUSIP: PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE: MATURITY DATE:
INTEREST RATE: NUMBER:
OKLAHOMA GAS AND ELECTRIC COMPANY, a corporation of the State of Oklahoma
(the "COMPANY"), for value received hereby promises to pay to
or registered assigns, the principal sum of
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon from the
Original Issue Date set forth above or from the most recent date to which
interest has been paid or duly provided for, semiannually in arrears on
and in each year, commencing on the first such Interest Payment Date
succeeding the Original Issue Date set forth above, at the per annum Interest
Rate set forth above, until the principal hereof is paid or made available for
payment. No interest shall accrue on the Maturity Date, so long as the principal
amount of this Note is paid in full on the Maturity Date. The interest so
payable and punctually paid or duly provided for on any such Interest Payment
Date will, as provided in the Indenture (as defined below), be paid to the
Person in whose name this Note is registered at the close of business on the
Regular Record Date for such interest, which shall be the or , as
the case may be, next preceding such Interest Payment Date; provided that the
first Interest Payment Date for any Note, the Original Issue Date of which is
after a Regular Record Date but prior to the applicable Interest Payment Date,
shall be the Interest Payment Date following the next succeeding Regular Record
Date; and provided, that interest payable on the Maturity Date set forth above
or, if applicable, upon redemption, shall be payable to the Person to whom
principal shall be payable. Except as otherwise provided in the Indenture
(referred to on the reverse hereof), 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 shall be paid to the Person in whose name this Note 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 Noteholders not more than fifteen days nor fewer than ten days prior to
such Special Record Date. Principal, applicable premium and interest due at the
Maturity of this Note shall be payable in immediately available funds when due
upon presentation and surrender of this Note at the corporate trust office of
the Trustee or at the authorized office of any paying agent in the Borough of
Manhattan, the City and State of New York. Interest on this Note (other than
interest payable at Maturity) shall be paid by check in clearinghouse funds to
the Holder as its name appears on the register; provided, that if the Trustee
receives a written request from any Holder of Notes, the aggregate principal
amount of all of which having the same Interest Payment Date equals or exceeds
$10,000,000, on or prior to the applicable Regular Record Date, interest shall
D-1
be paid by wire transfer of immediately available funds to a bank within the
continental United States or by direct deposit into the account of such Holder
if such account is maintained with the Trustee or any paying agent.
REFERENCE IS XXXXXX MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH IN
FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE
THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an Authenticating
Agent by manual signature of an authorized officer, this Note 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.
OKLAHOMA GAS AND ELECTRIC COMPANY
Dated: By:
---------------------------------------
Title:
--------------------------------------
Attest:
-------------------------------------
Title:
--------------------------------------
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Notes of the
series herein designated, described or
provided for in the within-mentioned
Indenture.
BOATMEN'S FIRST NATIONAL BANK
OF OKLAHOMA, AS TRUSTEE
By:
---------------------------------------
AUTHORIZED OFFICER
D-2
[FORM OF REVERSE OF NOTE]
OKLAHOMA GAS AND ELECTRIC COMPANY
SENIOR NOTE, SERIES
This Note is one of a duly authorized issue of Senior Notes, Series (the
"NOTES") of the Company issued and to be issued under an Indenture dated as of
, (herein called the "INDENTURE") between the Company and Boatmen's First
National Bank of Oklahoma, 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 more complete
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Noteholders and of the terms upon
which the Notes are and are to be authenticated and delivered. This Note is one
of the series designated on the face hereof, limited in aggregate principal
amount to $ .
[As applicable, one of the following two sentences: This Note may not be
redeemed prior to , 19 . This Note is not redeemable prior to the
Maturity Date set forth on the face hereof.] [If applicable: On or after
, , this Note is redeemable in whole or in part in increments of
$1,000 (provided that any remaining principal amount of this Note shall be at
least $1,000) at the option of the Company at the following redemption prices
(expressed as a percentage of the principal amount to be redeemed) plus accrued
interest to the redemption date:
Redemption Periods Redemption Prices
------------------ -----------------
Notice of redemption will be given by mail to Holders of Notes not less than 30
or more than 60 days prior to the date fixed for redemption, all as provided in
the Indenture. In the event of redemption of this Note in part only, a new Note
or Notes of like tenor for the unredeemed portion hereof will be issued in the
name of the Noteholder hereof upon the surrender hereof.]
Interest payments for this Note shall be computed and paid on the basis of a
360-day year of twelve 30-day months. In any case where any Interest Payment
Date or the date on which the principal of this Note is required to paid is not
a Business Day, then payment of principal, premium or interest need not be made
on such date but may be made on the next succeeding Business Day with the same
force and effect as if made on such Interest Payment Date or the date on which
the principal of this Note is required to be paid, and, in the case of timely
payment thereof, no interest shall accrue for the period from and after such
Interest Payment Date or the date on which the principal of this Note is
required to be paid.
The Company, at its option, and subject to the terms and conditions provided
in the Indenture, will be discharged from any and all obligations in respect of
the Notes (except for certain obligations including obligations to register the
transfer or exchange of Notes, replace stolen, lost or mutilated Notes, maintain
paying agencies and hold monies for payment in trust, all as set forth in the
Indenture) if the Company deposits with the Trustee money, U.S. Government
Obligations which through the payment of interest thereon and principal thereof
in accordance with their terms will provide money, or a combination of money and
U.S. Government Obligations, in any event in an amount sufficient, without
reinvestment, to pay all the principal of and any premium and interest on the
Notes on the dates such payments are due in accordance with the terms of the
Notes.
If an Event of Default shall occur and be continuing, the principal of the
Notes may be declared due and payable in the manner and with the effect provided
in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Noteholders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of
D-3
not less than a majority in principal amount of the outstanding Notes. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange therefor in lieu thereof
whether or not notation of such consent or waiver is made upon the Note.
As set forth in and subject to the provisions of the Indenture, no Holder of
any Notes will have any right to institute any proceeding with respect to the
Indenture or for any remedy thereunder unless such Holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to such Notes, the Holders of not less than a majority in principal
amount of the outstanding Notes affected by such Event of Default shall have
made written request and offered reasonable indemnity to the Trustee to
institute such proceeding as Trustee and the Trustee shall have failed to
institute such proceeding within 60 days; PROVIDED, however, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of and any premium or interest on this
Note on or after the respective due dates expressed here.
No reference herein to the Indenture and to provisions of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the times, places and rates and the coin or currency prescribed
in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Note register. Upon
surrender of this Note for registration or transfer at the corporate trust
office of the Trustee or such other office or agency as may be designated by the
Company in the Borough of Manhattan, the City and State of New York, endorsed by
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note registrar, duly executed by the Holder hereof or the
attorney in fact of such Holder duly authorized in writing, one or more new
Notes of like tenor and series of authorized denominations and for the same
aggregate principal amount will be issued to the designated transferee or
transferees.
The Notes are issuable only in registered form, without coupons, in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of like tenor and
series of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of the Notes 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 Note is registered as the owner thereof for all
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of Oklahoma.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
D-4
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT
MIN ACT -- Custodian
-------- ----------------
(Cust) (Minor)
TEN ENT -- as tenants by the
entireties Under Uniform Gifts to Minors
JT TEN -- as joint tenants with
right of survivorship and not as
tenants in common
----------------------------------------
State
Additional abbreviations may also be used
though not in the above list.
--------------
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address
including postal zip code of assignee
--------------------------------------
the within note and all rights
thereunder, hereby irrevocably
constituting and appointing attorney
to transfer said note on the books of
the Company, with full power of
substitution in the premises.
Dated:
------------------------
--------------------------------------
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within instrument in every particular,
without alteration or enlargement or
any change whatever.
D-5
